Skrijel v Mengler and Ors [2003] VSC 137

Supreme Court of Victoria|2003-04-16|Before: NETTLE J

The plaintiff seeks production by the fourth defendant, the State of Victoria, of certain guidelines for responses to threats received against police. The guidelines came into force in or about October 1994 and remain in force. The plaintiff contends that the contents of the guidelines may assist him in demonstrating that reports made by the firstnamed defendant in 1985 as to apprehensions that the plaintiff would carry out threats against the first defendant and other members of the police were not true. The plaintiff seeks to show, that the first defendant did not comply with the procedures for which the guidelines provide, and thus that it is to be inferred that the first defendant did not harbour the fears which he reported that he held.

Superintendent Billing further deposes that the current guidelines were adopted in October 1994 and are still in force and that they are regarded as being so confidential that they are not issued to police personnel below the rank of divisional superintendent. Superintendent Billing says that the guidelines contain specific information currently in use concerning the methodology to be employed and actions to be taken in protecting police who have been subjected to threats of violence. If the contents of the documents were disclosed to some elements in society, it would compromise the effectiveness of the methodologies and actions and possibly place at risk a significant number of police and their families at present being dealt with in accordance with the guidelines.

The guidelines have been provided to me on a confidential basis and they appear to me to confirm what is said about them by Superintendent Billing. Insofar as I am able to assess such a matter without expert guidance, they seem to me in truth to be guideline procedures for dealing with threats of violence made against police members, and disclosure of their contents might well compromise the ability of police to deal with threats of that kind.

The principles which govern the determination of claims of public interest immunity are well-known. The High Court dealt with the subject at some length in the Commonwealth of Australia v Northern Land Council ([1993] HCA 24; 1993) 176 CLR 604 and it has since been dealt with by the Full Court of the Federal Court in Eastman v R (1997) 76 FCR 9 and in a range of cases that have followed and applied those earlier authorities. Weinberg J undertook a detailed analysis of the authorities and principles in National Tertiary Education Union v The Commonwealth [2001] FCA 610; (2001) 111 FCR 583, at 595-598. The authorities call for a balancing exercise whereby a trial judge must consider and weigh up two competing aspects of the public interest, namely, whether the public interest in admitting into evidence material in the document that is the subject of a claim of public interest immunity and the public interest in preserving secrecy or confidentiality in relation to that material (see the decision of Mansfield J in Woodroffe v National Crime Authority (1999) FCA 1128 at [21] - [25]).

In my opinion there is little which the plaintiff would gain by obtaining access to the guidelines, because any point of the kind which he seeks to make may be made by reference to so much of the material as is disclosed in Superintendent Billing's affidavit. That is to say, it is apparent from Superintendent Billings' affidavit that there are procedures in existence, and if he is so advised the plaintiff is at liberty to point to other evidence as demonstrating that there do not appear to have been any procedures of that kind followed in this case. On the other hand, as I have said, it appears to me that it would be very much against the public interest if the procedures were disclosed.

Accordingly, I consider that the public interest in maintaining the confidentiality of the document outweighs the public interest in having the document produced for use by the plaintiff, and consequently I uphold the claim for public interest immunity.

I refuse the application made by the plaintiff for production of the guidelines for responses to threats received against police and I will return to you, Mr Gipp, the confidential document.

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