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[2005] VCAT 1757
Victorian Civil and Administrative Tribunal
2005-01-06
Original judgment source is linked above.
The Applicant has been subject to continuing vilification over the deaths of Jennifer Tanner and Adele Bailey. This has arisen largely through suspicion and innuendo. A fact confirmed by the decision of the Director of Public Prosecutions not to charge the Applicant because of a lack of admissible evidence. The Kale Taskforce has come under criticism for the handling of the investigation in a number of reports delivered by the Ombudsman. The applicant is campaigning to clear his name. The effect of the vilification has been serious. He was effectively forced from his employment with Victoria Police and has found it difficult to find alternative employment. He is confronted in public and his reputation is notorious.
The disclosure of this information is part of a larger request for information designed to conduct a review of the Kale Taskforce methods employed in this investigation in an attempt for the Applicant to clear his name. It is also important to note that the Taskforce is under investigation from a joint Victoria Police and Ombudsman team, concerning allegations of impropriety made by the Applicant and another serving member of Victoria Police. The disclosure of this information will "clear the air" and correct an illegal procedure employed by the Taskforce in failing to provide the Applicant with a list of property seized from the Police station which is in the public interest of justice.
64 In Re Ambikapathy and Victorian Legal Aid (unreported, VCAT, 27 August 1999) Deputy President Macnamara conceded there could be a strong public interest in righting the injustice done to a single individual. Indeed, that is the thrust of Mr Miller's submissions in this case. In Ambikapathy the Deputy President stated -
I accept that if it is demonstrated that an egregious injustice has been done or that there is convincing evidence that such an injustice might have been done, it would be in the public interest to expose that injustice or the facts surrounding the suspected injustice and that the public interest might require release of exempt documents even if the injustice or alleged injustice had not attracted any public notoriety prior to the release.
65 There is no question that the deaths of Jennifer Tanner and Adele Bailey have attracted some notoriety but the question is whether there has been some sufficient injustice to the applicant so as to elevate his position to one where the public interest demands that injustice done to him (presumably the injustice arising by reason of his inability to clear his name) should be rectified by release of the document as opposed to his grievances as an individual. The evidence given by Messrs McHugh and Irwin, apart from reinforcing their views as to the applicant's innocence, really focussed on their own relations with the police, Mr McHugh because of the listening device fiasco and Mr Irwin because it is clear that the version of events he is said to have given police originally, differed from a later version. None of their evidence led me to conclude there was any public interest in release to Mr Tanner. Neither witness has any faith in the police and enquiries, both were less than complementary about the police officer undertaking the present enquiries and it is clear neither intends to co-operate fully with those present enquiries.
66 Mr Tanner gave no evidence to the Tribunal.
67 There was no evidence before the Tribunal that Mr Tanner was been forced from his employment, no evidence of public confrontation, no evidence that his reputation is notorious and no evidence of continuing vilification.
68 Similarly there was no evidence before the Tribunal to show that Mr Tanner's concerns were part of a larger community controversy and frankly there was no evidence before me to convince me that any injustice had in fact occurred. Whilst one might conclude that the matter of the listening device warrant was clumsily handled by the police, if there was any perceived injustice there (and I am not satisfied on the evidence before me that there was) then it was to McHugh and his family not to Mr Tanner. Thus section 50(4) has no part to play in this case.
Orders
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At the expiration of 30 days from the date hereof, the documents (or part thereof as the case may be) as set out in paragraphs 25, 27, 36, 55 and 60 of these reasons are to be released to the applicant.
•
In all other respects the respondent's decision is affirmed.
Tanner
Victoria Police
30 It can readily be seen that the product is meaningless and entirely devoid of context and in my view the editing task is not practicable. Mr Miller urged upon me the view that if the product of editing were to be an incomprehensible document, then so be it. But that has never been the view of this Tribunal in like circumstances. (See Stewart v Department of Tourism, Sport and the Commonwealth Games [2003]VCAT 45; Police Force of WA v Winter ton (unreported WA Sup Ct, Scott J, 27 November 1997); Honeywood v Department of Education and Training [2003] VCAT 780; and Re Kotsiras and Department of Premier and Cabinet [2003] VCAT 472.
31 Inspector Newman gave evidence concerning the genesis of information reports generally. He explained how they came into existence, what was the source of the information on which the reports were based and the role of intelligence officers in generating the reports.
32 Insofar as three of the information reports (reports 1, 2 and 3 of the sample) reflect information supplied to Victoria Police by other regulatory agencies, and insofar as exemption is claimed pursuant to section 29(b) of the Act in respect of two of those documents, I observe there is no evidence to support the claim that disclosure would be contrary to public interest because it would divulge information communicated in confidence by another country or another government. No doubt there are memoranda of understanding between the various law enforcement agencies placing restrictions on the use of such material but precise evidence as to confidentiality was not before me although Inspector Newman told the Tribunal such information was usually communicated in confidence. Insofar as the reports contain information communicated by persons other than interstate and overseas enforcement agencies, Inspector Newman told the Tribunal that in order to secure the continuation of the information flow, it was necessary to communicate a sense of trust. He said that in his experience, if such trust is breached it will not be regained. In relation to one of the documents he told the Tribunal he had serious concerns for the safety of one named individual and he elaborated on this when he gave evidence in camera.
33 In relation to the exemption claimed pursuant to s.31(1)(a) the Tribunal heard evidence from Inspector Newman and from Detective Senior Sergeant Nash. In his statement dated 18 August 2004, Inspector Newman dealt with the possibility of investigations being compromised in the event disclosure should occur. At paragraph 13 of his statement he had this to say-