Ryan v State of Victoria [2014] VSCA 340

APPEAL - Application for leave to appeal - Sufficient doubt to justify the grant of leave to appeal.

1 The applicant, Mr Mark Ryan, seeks leave to appeal against a ruling given by a judge of the County Court upholding a claim by the respondent, the State of Victoria, to public interest immunity in respect of documents that had been discovered in a proceeding brought by Mr Ryan and a second plaintiff, Mr Alexander Forbes.

2 We announced at the conclusion of argument that we considered that leave to appeal should be granted. These are our reasons for that decision.

3 That proceeding was brought against Leading Senior Constable Turner, a member of the Mounted Branch of Victoria Police, and the State of Victoria alleging assault and battery by Senior Constable Turner. The applicant's proceeding arises from a demonstration at the Maribyrnong Immigration Detention Centre on 29 May 2011. Senior Constable Turner, riding Troop horse Upwey, was stationed at the demonstration. The applicant alleges that Senior Constable Turner caused Troop horse Upwey to:

(a) advance upon protestors, including Mr Ryan who was lying on the ground;

(c) fall to the ground and roll onto Mr Ryan using a rehearsed, controlled manoeuvre.

4 In the alternative, the applicant alleges that Senior Constable Turner failed to prevent Troop horse Upwey from:

(a) advancing upon protesters, including Mr Ryan who was lying on the ground;

(b) treading on the second plaintiff's foot; and

(c) falling to the ground and rolling onto Mr Ryan.

5 Senior Constable Turner, the first defendant in the proceeding, relied on the positive defence that any force used by her was authorised by s 462A of the Crimes Act 1958 and/or the common law in that it was proportionate and necessary to prevent the commission of offences of resisting or intentionally obstructing police in the lawful execution of their duty and/or reasonable to prevent breaches of the peace.

6 The second defendant in the proceeding, the State of Victoria, relied in its defence upon the provisions of s 123 of the then Police Regulation Act 1958.

7 The relevant documents, as described in the respondent's Affidavit of Documents dated 16 May 2014, fell into the following categories:

(a) The Victoria Police Mounted Branch's Defence Tactics Manual 2012;

(b) The Victoria Police Mounted Branch's Crowd Control Movements Manual;

(c) PowerPoint slide presentations on various Mounted Branch operational tactics; and

(d) PowerPoint slide presentations summarising police tactics and strategies to be utilised during the protest at the Maribyrnong Detention Centre on 29 May 2011.

8 The public interest immunity is claimed in respect of various redacted portions of the documents. Both the judge and this Court have been provided with, and read, the unredacted documents.

9 Her Honour concluded that the redacted portions of the documents were not relevant. She also directed that they were not to be adduced in evidence as they related to 'matters of state' under s 130 of the Evidence Act 2008. Section 130(1) states:

130 Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

10 Section 131A of the Evidence Act 2008 in effect applies the provisions of s 130 to disputes about the discovery of documents.

11 Her Honour concluded that the redacted portions of the documents fell within the category of circumstances outlined in s 130(4)(f) of the Evidence Act 2008. Section 130(4) of the Evidence Act 2008 sets out information or documents that may be taken to relate to 'matters of state'.

12 Section 130(4)(f) provides:

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would -

...

(f) prejudice the proper functioning of the government of the Commonwealth or a State.

I accept there is a genuine public interest in protecting the information in the documents from disclosure, that is, maintaining the effectiveness of operations of the Mounted Branch of Victoria Police. There is no sufficiently countervailing public interest that would justify their disclosure. The redacted portion of the documents in this case must not be adduced as evidence and should be afforded public interest immunity for the reasons I will outline.[1]

14 The respondent's application for public interest immunity was supported by an affidavit of Sergeant Matthew Astill, who was stationed at the Mounted Branch.

15 Her Honour first considered the importance of the information or the document to the proceeding as provided in s 130(5)(a) of the Evidence Act 2008, the nature of the cause of action or defence to which the information related and the nature of the subject matter of the proceeding as provided in s 130(5)(c) of the Evidence Act 2008 and the question of the respective liability of the first and second defendants and s 123 of the then Police Regulation Act 1958.

16 Her Honour also considered the likely effect of adducing evidence of the information or documents and the means available to limit their publication, which matters are stated in 130(5)(d) of the Evidence Act 2008.

17 Her Honour stated that she accepted the submission of the State of Victoria that the disclosure of information which publicly reveals police techniques in an operational context may hamper future police operations. Her Honour accepted Sergeant Astill's evidence. She considered that the documents should not be released to counsel.

18 Her Honour found that there had not been publication of the substance of the documents and redacted information by the release of video clips.

19 The applicant challenges the finding that the documents related to matters of state, and submits that, certainly, they did not fall within s 130(4)(f). The release of those documents could not, in any rational way, 'prejudice the proper functioning' of the Victorian Government.

20 In addition, the applicant submits that no other limb of s 130(4) could justify her Honour's ruling. He submits that the rules by which horses are to be used by police in responding to lawful public demonstrations cannot, relevantly, 'prejudice the prevention, investigation or prosecution of an offence' within the meaning of that expression in s 130(4)(c).

21 The applicant submits that the material now sought is relevant, and important, because it might, potentially, support his claims that Senior Constable Turner's actions were (subjectively) reckless, and that there was no lawful excuse for her conduct. Moreover, the material, if produced and received in evidence, might serve to increase the damages that the applicant could receive.

22 The applicant submits that her Honour failed to deal with his submission that the central purpose for which the redacted material was sought was that Senior Constable Turner's conformity with the techniques and guidelines contained in the redacted material had resulting implications for the issues of recklessness, lawful excuse and damages. The redacted material was likely to contain material evidence as it provides the standard to which Senior Constable Turner was expected to adhere in carrying out her duties. The material was likely to bear on whether she was acting in 'good faith' in the course of her duty as a member of the police in accordance with s 123 of the then Police Regulation Act 1958.

23 The applicant also submits that her Honour erred in not taking into account that it would have been possible to limit access to, and use of, the materials and that the materials would be subject to the implied undertaking that they could only be used for the conduct of the applicant's proceeding.

24 The respondent submits that 'matters of state' include the protection of sensitive and confidential aspects of police methodology.

25 The respondent further submits that her Honour correctly determined that nothing in the material bore one way or the other on whether Senior Constable Turner rode in conformity with techniques and guidelines. She had not called in aid any techniques or guidelines in her own defence. Her Honour had determined correctly that the material was not relevant to the issues raised in the proceeding.

26 Finally, the respondent submits that her Honour was entitled to be satisfied that the disclosure of the information in the documents would prejudice the effectiveness of mounted police operations and the maintenance of the public order of the state.

27 We consider that each of the grounds of appeal relied on by the applicant and as developed in argument justifies the grant of leave to appeal. We consider that her Honour's decision is attended with sufficient doubt to justify the grant of leave to appeal, and that substantial injustice would be done by leaving the decision unreversed.[2]

28 As we have determined to grant leave, it is appropriate that we only give brief reasons for our conclusion. The decision of the trial judge raises important issues about the scope of s 130 of the Evidence Act 2008, including, in particular, the meaning of the expression 'matters of state'. Analysis of the judgment also may require consideration of the extent to which, if at all, common law principles governing public interest immunity are still relevant, and applicable, to claims of that kind. We have also taken into account the fact that the State of Victoria listed the documents in its Affidavit of Documents when giving discovery, with no suggestion that parts of them might not be relevant. This called into question whether her Honour correctly identified the issues in the proceeding when she concluded, in general terms, that the redacted portions of the documents that were sought were not 'relevant'.

29 If the applicant succeeds on appeal, he will have access to discovered documents upon which he would not otherwise be able to rely. If he so decides, he may be able to tender, or otherwise utilise, those documents at trial. That consideration satisfies the second limb of Niemann v Electronic Industries Ltd.[3]

30 It was for these reasons that we granted leave to appeal.

[1] Ryan & Anor v Turner & Anor [2014] VCC 1692, [18].

[2] [1978] VicRp 44; [1978] VR 431, 441-2.