Plaintiff v Defendants

Supreme Court of Victoria|2008-10-08|Before: HARPER J

PRACTICE AND PROCEDURE - Alleged threats to kill - Application for protection - Application for a firearm licence - No power in the Court to provide protection or grant a firearms licence - Application for an injunction or an intervention order - Insufficiency of evidence - Failure to link any of the alleged incidents with the defendants - Applications dismissed.

For the First Defendant and the Chief Commissioner of Police

For the Second to Twentieth Defendants and for Mr T.Bateman

1 I commence this judgment with a reference to paragraph 4 of the summons of 26 September 2008 upon which the applicant, Mr Slaveski, relies. By that paragraph, he seeks orders that the Chief Commissioner of Police give protection to him and his three children or alternatively he asks for orders that the Chief Commissioner of Police grant him a licence under s.32 of the Firearms Act.

2 The court, as I have said, has limited powers. Those powers are limited by the law. Because the court must obey the law, the court cannot exercise or purport to exercise or attempt to exercise powers which the law does not give the court.

3 The question of whether the Chief Commissioner of Police should order that protection be given to individuals is a matter which is within the power of the Chief Commissioner. It is not within the power of the court to order the Chief Commissioner to give such protection.

4 Similarly, the power to lawfully grant a licence to anybody to possess a firearm is a power which is given by the Firearms Act and the Firearms Act does not give the power to the court. That power reposes in the Chief Commissioner, and perhaps in certain other people, but not in judges.

5 If the power is shown to have been exercised not in accordance with the proper process but in accordance with a process which is unlawful, then it may be that the court can order someone like the Chief Commissioner to observe the proper process; that is perhaps, for example, to ensure that the applicant for a firearms licence is given an appropriate opportunity put his or her case to the Chief Commissioner.

6 But that is a very different thing from having power to make the final decision about whether or not a firearms licence should be granted. That power remains with those to whom the Firearms Act gives it. I am not one of those persons. Accordingly, I cannot order the Chief Commissioner of Police to issue anybody - the applicant or anybody else - with a licence under the Firearms Act.

7 For these reasons, I cannot grant the application which the applicant makes by paragraph 4 of his summons.

8 Nothing so far has followed the alleged threat by Constable Bateman some three weeks ago. Nevertheless, if that incident were proved, that would be a serious threat.

9 I turn to examine further the evidence to which Mr Slaveski deposes in his affidavit sworn on 3 October 2008. There is, as recounted in paragraph 13, the complaint about Mr Bateman and the seatbelt. That is a complaint which, if made out, would indicate officious behaviour by the police. One might in certain circumstances ask: What is a policeman doing, worrying about in improperly adjusted seatbelt? Are there not matters of greater concern? Of course, there may be justification for such a charge, but one would wonder whether or not the police were simply being officious, or deliberately targeting someone they wanted to annoy. But a policeman being officious is not as serious as a policeman threatening to kill. Indeed, the level of seriousness of the one is so far below that of the other that they are not really comparable. Nevertheless, all these incidents are said by Mr Slaveski to be serious.

10 The second incident is described by the applicant as one in which a phone rang. It was answered by one of Mr Slaveski's children. The caller is reported as saying to the child: "We will kill you now".

11 A threat to kill is a very serious threat. But on this occasion, nothing happened after it was made. Nobody was killed. That, of course, is something for which all must be thankful. Nevertheless, and while never discounting the seriousness of such a threat if indeed it was made, one must retain a sense of proportion and balanced judgment. Children can be mistaken about what was said to them, especially if their parents are constantly telling the children that they are under threat.

12 It is necessary for me to repeat: making a threat to kill is a very serious offence. If a police officer were proven to have threatened to kill anybody, that would be an especially serious matter. Were there to be credible evidence that a police officer had behaved in this way, that police officer would no doubt be charged with threatening to kill. Criminal proceedings would follow.

13 When, after the phone had been handed to him by the child who answered it, Mr Slaveski placed it to his ear. He did not hear anybody threaten to kill. He simply heard deep breathing. That is not in itself a serious matter.

14 The only evidence of a threat to kill, therefore, is hearsay evidence from one of Mr Slaveski's children. I am not suggesting that the child was being dishonest. But she may have been mistaken. I do also point out that that is not the sort of evidence upon which a court can normally act. Mrs Slaveski would know as a law student that hearsay evidence is not as reliable as direct evidence and very often - in fact, almost always - hearsay evidence is not admissible. That therefore is a problem with the applicant's account of the second incident. Again I say, you cannot prove a threat to kill by hearsay evidence. It simply would not be admissible for that purpose.

15 I proceed to the third incident, the walking the dog incident. A man unidentified in a Nissan Maxima vehicle said "Leave your dogs at home and I will fix you up". That might be a threat. Then there is reference to taking medication and then the man is reported as saying: "I will be back to finish you off". That may be another threat to kill. But, as with all these threats so far, there is nothing to link them with any of the defendants.

16 Then there is the fourth incident, at the children's crossing. A police car blocked the path of the children and Mr Slaveski. The police officers laughed at Mr Slaveski. That is not serious. In these circumstances, I must ask myself: How is it that Mr Slaveski is categorising each of these episodes as serious when some of them clearly are not? If Mr Slaveski is prepared to exaggerate in this way in relation to the fourth incident, when all that happened is that the police laughed at him, is he prepared to exaggerate in relation to the other, more serious, incidents? That is one of the questions that a judge must ask when assessing the credibility of the evidence which is put before the judge. When some of the charges, as in this case, are very serious, the credibility of the evidence, if it is to be accepted, must match the seriousness of the allegation.

17 It is simply not credible to call the fourth incident a serious incident.

18 I turn to the fifth incident. According to Mr Slaveski, he was with his mother and wife at the University Hill Shopping Centre. They had a cup of coffee. Two men were looking at them. One of the two was recognised by Mr Slaveski as a serving member of the police, stationed at Epping Police Station. This officer, however, is not identified otherwise. The other man was not known. The two men left their breakfast half eaten and walked towards Mr Slaveski. He was scared.

19 The two men then followed the Slaveski party to Coles. When a mobile phone was used, however, the two turned and walked away. That is not a serious incident. I am not suggesting that Mr Slaveski did not think that these men were interested in him, but nothing happened apart from them walking up to him when his breakfast was half eaten, and then moving away when a telephone was used. To call that a serious incident is a misapplication of the word "serious". Again, I have to take into account that an exaggerated claim is being made at this point in the affidavit.

20 The next incident is the sixth. The gun threat. A man "started to pull a metal object from one of his side leg pockets and started to point it towards me". It was, according to the account given by Mr Slaveski in his affidavit, a gun. I am asked to take his word about that. I do not dismiss what he says as impossible, by any means, but that is a very serious allegation, and I have to assess the evidence concerning it against the fact that it is such a very serious allegation. It involved, at least at one point, two uniformed police officers cruising around the area. One of them was Ken Frost who is not a defendant to this proceeding. Another was a female police officer not otherwise identified. The complaint about the police is that they failed to respond until 15 to 20 minutes after the "triple 0" call was made. As I understand it, it is not suggested that the man who pulled the gun was a plain clothes policeman or a friend of the police or otherwise connected with the police. So the complaint against the police in the sixth incident, as I read it, is simply a complaint that they failed to respond as quickly as they might have when a gun was produced.

21 That is not a serious complaint about the police. It is of course a serious matter that a gun was produced, if indeed it was.

22 Then there is an account about Mrs Slaveski's attempts to get the police to act upon this incident. There is a reference to a meeting with Mr Cornelius, the Assistant Commissioner of Police; and then the affidavit moves to the seventh incident.

23 It happened in the vicinity of the County Court. There were three police members involved. One of them is identified as Sergeant Ron Brewer, a Senior Vice President of the Police Association but not a defendant to this proceeding. Another of the men involved "looked and sounded like the guy with the Nissan Maxima". We are now talking of an incident outside the County Court said to have occurred on 26 May 2008; the "Nissan Maxima" incident occurred seven months or so beforehand, in October 2007.

24 It would be quite wrong for me to conclude on the basis of that evidence that the man who "looked and sounded like the guy with the Nissan Maxima" in the third incident, was in fact the same person as was seen outside the County Court. I could not conclude on the basis of that evidence that the men were the same in each case.

25 Mr Slaveski adds to the incident in or near the County Court that, after the Court adjourned, five policemen waited for him downstairs and intimidated him. No details of the intimidation are given. Am I to proceed on the basis that the mere presence of those policemen was intimidating? If that is the case, then one wonders whether, if Mr Slaveski's house were surrounded by police to protect him, he might nevertheless feel intimidated. I cannot conclude that, simply because Mr Slaveski was in the presence of five policemen, he was genuinely intimidated. Even if he was, that might not have been the fault of the police. Did they threaten him? There is nothing in the affidavit to say that they did.

26 I could not conclude, on the basis of the evidence in the affidavit, that the seventh incident was serious. It boils down to this: that one of the men in the vicinity of the court may have been in the Nissan Maxima some eight or so months beforehand, and five policeman were somewhere near Mr Slaveski at some stage. That is not serious. It is a misuse of the word "serious" to describe it as such.

27 Then there's the eighth incident. "A protective service officer was flipping a book and pointing his rude middle finger towards me". Really, that is not serious. One has to take a little of this kind of behaviour now and again. It happens in everybody's life. I could not possibly conclude that because a protective service officer had his middle finger pointing towards Mr Slaveski that an "incident" occurred. That is not an "incident". And it certainly is not serious.

28 Mr Slaveski goes on to depose that the protective service officer then started to sing "Dreaming of a White Christmas". That may have been rude; or it may have been something that was not directed at Mr Slaveski at all. Even protective service officers are permitted to sing if they wish, and if the circumstances are not inappropriate. It may be that his singing was offensive in some way. It may be that he should not have been singing at all. But singing normally is not something that troubles normal citizens. Assuming he was rude, and assuming it was inappropriate for him to sing "Dreaming of a White Christmas"; nevertheless, even when coupled with a pointed middle finger, this is not a serious incident.

29 Things did not stop at that point, however. Mr Slaveski says that his wife went towards the protective service officer and asked him why he was following the members of her family. At this, the officer screamed at Mrs Slaveski and said: "Shut up and go to court".

30 If that happened, it was rude and inappropriate. It should not have happened, but it is not a serious incident in the sense that a threat to kill is serious. Indeed, in terms of matters which should be brought to court, it is simply not appropriate to bring this kind of matter to the Supreme Court of Victoria.

31 The ninth incident was, according to Mr Slaveski, another phone threat. As recounted in his affidavit: "A male voice started to talk and in the background. I could hear another few voices. As the conversation continued [it] started to get into arguments and swearing".

32 It is inappropriate to swear over the phone, as it is, generally speaking, in most situations. But, to this point, this is not a serious incident. Then the callers hung up three different times. Again, nothing serious so far. During the conversation, however, an offer was made of a "quarter of a million dollars" with "fake passports" and Mr Slaveski "was told to give them my business (shop) and if I do not they will slice mine and my children's throats".

33 Again threats to kill are very serious. So we now move to a point where a serious allegation is being made about something which, if true, certainly is serious. It is, however, on my calculation only the third serious episode so far. And I have dealt with nine incidents all of which Mr Slaveski describes as "serious".

34 Then there's the tenth. Two police officers in plain clothes parked right in front of the Supreme Court. Accepting that Mr Slaveski could properly identify these persons as police officers in plain clothes, nevertheless, parking outside the Supreme Court, of course, is not an incident at all. If one of those men was a police officer, and if without provocation he called Mr Slaveski a stupid small man, then he was rude and he was acting inappropriately. This is not the way which police officers ought to act, but the incident was not in itself a serious incident. Then the car involved started beeping its horn and drove off. This was therefore not a serious incident. In my opinion the tenth incident, again, is one which is quite inappropriately described as serious.

35 Then the 11th incident is threatening and prank phone calls. If threatening, albeit prank, phone calls are made, that is serious. Even if they are merely prank calls and they are constantly made, that could amount to a cause for serious concern. One or two prank calls might be irritating. They might be disturbing, they might cause great annoyance but in themselves, a couple of prank phone calls would not normally amount to a serious incident warranting the attention of the Supreme Court. A threat is quite different and I stress I have no problem at all with accepting that once a threat to kill or a threat to cause physical harm is made, that is serious. But, for the very reason that it is serious, it has to be properly proved before the court could act upon it.

36 Then there is the 12th and last incident. It occurred at the Magistrates' Court at Heidelberg. It involved Mr Bateman again, according to Mr Slaveski. I am not sure I can follow the account given in the affidavit, but a CD was played in court. It turned out to be the wrong CD. The informant said: "I'll come to your house today and give you another copy. I'll stick it on your fence with sticky tape". This may have been said aggressively although the affidavit does not suggest it was; otherwise, it would seem to be an innocuous statement. Mr Bateman was told: "Please don't come. Post it to me". He was told that he was not wanted near the house. He was told there were five security dogs guarding the house. Mr Bateman, it is alleged by Mr Slaveski, responded by saying: "I have six bullets in my gun for you".

37 That, if it were made out, is a serious threat, one that - if there was evidence to support it - would warrant a charge being laid. Indeed, if there were evidence to support it, it would warrant a serious charge being laid.

38 Those are the 12 incidents. Mr Bateman is involved in at least one of them. None of the 19 individual defendants are directly involved in any of them.

39 The court is always concerned when anybody comes before it and says that his or her life is in danger. If it is said that it is in danger because of the behaviour of a very large number of members of the police force, of course the court must look carefully at that allegation, because it is so serious. Accusing 20 police officers of seriously improper conduct is, by definition, a serious matter. Of course the court would take it seriously. But if it is to deal with it, it must have evidence which matches the seriousness of the charges.

40 The serious charges are the ones that involve threats, particularly threats to kill. If Mr Slaveski were seriously concerned about those threats, however, the appropriate authority to which charges of that kind should in the first instance be made is the Ethical Standards Department of the police force.

41 I have no reason to think that, if the Ethical Standards Department were given credible evidence that a member of the police force had threatened a citizen with death, they would not act upon that evidence. Just as a court cannot and should not act upon insubstantial evidence when dealing with a very serious charge, so the Ethical Standards Department must assess the credibility of evidence put before it and, taken together with the seriousness of the allegation, decide upon an appropriate response.

42 If a citizen were threatened in that way, the citizen's first point of contact with the authorities would be the police, and I would expect the police to do their duty and investigate the allegation - and investigate it to the extent that the evidence warranted. If there were any credible evidence, then the matter would normally be referred to the Director of Public Prosecutions, and the Director would then decide whether or not the evidence was sufficient to warrant prosecution. That is how the matter ought to be dealt with.

43 As for the relief which is sought in the summons, in my opinion there is simply not sufficient evidence against any of the individual police officers named as defendants to warrant the orders sought in paragraph 2 of the summons.

44 Mr Bateman's position is slightly different. The allegations against him are very serious. He, however, is not a defendant although - as Mr Lawrie accepts - he is, in effect, a respondent to the summons.

45 If sustained, the allegation against Mr Bateman would probably amount to a threat to kill, certainly a very serious threat warranting criminal prosecution. The evidence before me, however, is not sufficient for me to conclude that the threat was made.

46 I am particularly influenced by the fact that the only evidence before me is that of Mr Slaveski; yet he himself says, in the very affidavit that makes this allegation, that the threat was made in front of his children and in front of everybody in the courtroom. If that were the case, then I would expect that at least some additional evidence apart from that of Mr Slaveski would be put before the court as corroboration.

47 In any event, because Mr Bateman is not a defendant but merely someone named in the summons, it seems to me that it is not open to me to grant the relief sought against him. Otherwise, in my opinion, there is insufficient evidence to warrant my making the orders against the 19 individual defendants who are the subject of this application. For these reasons, the summons must be dismissed.

48 In my opinion, those letters do set out the position of respectively the State of Victoria, the Chief Commissioner and the individual defendants.

49 Both letters make plain that an application for costs will be made if the summons is unsuccessful and both letters give some basis for the author of the letter suggesting that the summons would be unsuccessful. The summons has been unsuccessful and accordingly the costs of the summons must be paid by the plaintiff to the respective defendants.

At a glance

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Judgment (53 paragraphs)

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