Yufeng MAO & Ors v Commonwealth of Australia & Anor

Judgment 1Before me is a notice of motion filed by the Commissioner of Police seeking to be excused from production of parts of two documents which are sought by a subpoena issued by the plaintiffs. The Commissioner seeks to resist production on the basis that they contain material which "relates to matters of State" within the meaning of ss 130(1) of the Evidence Act 1995. As such, they are said to fall within the definition of "privileged information" in the dictionary to the Evidence Act 1995. 2The Commissioner seeks by this contention to invoke r 1.9 of the Uniform Civil Procedure Rules 2005 which provides: 1.9 Objections to production of documents and answering of questions founded on privilege (1) This rule applies in the following circumstances: (a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer, (b) if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer, (c) if a question is put to a person in the course of an examination before the court or an authorised officer. (2) In subrule (1), authorised officer means: (a) any officer of the court, or (b) any examiner, referee, arbitrator or other person who is authorised by law to receive evidence. (3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information. (4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled. (5) For the purpose of ruling on the objection: (a) evidence in relation to the claim of privilege may be received from any person, by affidavit or otherwise, and (b) cross-examination may be permitted on any affidavit used, and (c) in the case of an objection to the production of a document, the person objecting may be compelled to produce the document. (6) This rule does not affect any law that authorises or requires a person to withhold a document, or to refuse to answer a question, on the ground that producing the document, or answering the question, would be injurious to the public interest. 3It can be seen that r 1.9(4) confers a discretion as to whether the court will require the production of what is described as "privileged information". That discretion embodies the balancing test in ss 130(1) of the Evidence Act 1995, to which I will refer to below. I should add that that balancing test is also accommodated for by s 131A of the Evidence Act 1995. 4In the principal proceedings the plaintiff sues the Commonwealth of Australia and the State of New South Wales. The Commonwealth is sued for the conduct of various officers working within the Department of Immigration and Citizenship. The State of New South Wales is sued by reason of the conduct of various police officers. 5The plaintiffs are husband and wife. They were originally, at least, citizens of the Peoples' Republic of China. They came to Australia. They have a daughter. At some point they applied for visas. By April 2006 the course of their visa applications was such that the first named plaintiff was being detained in Villawood Detention Centre, and the second named plaintiff and their daughter were residing in the community. 6A significant part of the pleaded case concerns an incident on 19 April 2006. It seems that a number of detainees, including the first plaintiff, had been moved from Villawood Detention Centre to a hotel in Bankstown. On 19 April 2006 the first named plaintiff was being visited by the second plaintiff and their daughter at the hotel. At some point the authorities sought to move the detainees back to Villawood Detention Centre. A standoff of some kind developed. 7According to the plaintiffs' counsel in her written submissions: "On the plaintiffs' case, the incident involved the two plaintiffs being kept in a small hotel room without an official interpreter with their 15-year-old daughter surrounded by armed, masked police who ran into the room. The plaintiffs were prevented from leaving the room. They were eventually both hit with Taser guns in the upper parts of the body. In the case of Mr Mao [the first plaintiff] on the left side of the chest, handcuffed and dragged away." 8It seems that this confrontation had been preceded by attempts to negotiate a peaceful outcome to the standoff. The significance of this will become clear shortly. 9The amended statement of claim pleads causes of action in negligence, false imprisonment, trespass and assault against the Commonwealth and the State. I will briefly mention two aspects of the claim against the State of New South Wales. 10First, the negligence claim against the State is not particularised in the amended statement of claim. I was advised the particulars have been requested and provided. 11Second, paragraph 79 of the amended statement of claim provides particulars of a claim for aggravated damages against, inter alia, the State of New South Wales. Those particulars include the following allegations: "Officers of the First Defendant wilfully made no attempt to avoid the confrontation and assault." The claim for exemplary damages against the State includes the followings allegations: "The First and Second Defendants had manifestly inadequate systems in place in order to prevent confrontation, assaults and harm arising in circumstances which were of the First Defendant's making, such that the First and Second Defendants exhibited a contumelious disregard to the rights of lawful non-citizens, including the Second Plaintiff." 12The Plaintiffs have been seeking documents from a number of sources, including the Commissioner of Police. To date, they have had considerable success. I was advised that one of the documents that was obtained was a manual that addressed the circumstances in which negotiations during a standoff failed and it was necessary to move to response which involved the use of force. 13Through negotiation, the Commissioner has agreed to provide the Plaintiffs with access to pages 1-7 and a redacted page 8 of a document entitled "New South Wales State Protection Group Basic Guidelines For Police Negotiators" (the "Guidelines") and a two-paged document entitled "Negotiation Incident Form" which had certain parts redacted. Restrictions were imposed on the access to these documents in their redacted form. The Plaintiffs seek access to the balance of these documents and the Commissioner resists. 14The significance of the portions of the documents which were redacted was addressed in two affidavits from an Assistant Commissioner of Police, Alan John Clarke, both sworn 12 April 2012. One of these affidavits was an "open" affidavit and the other was "closed". The closed affidavit was read before me but was not available to the Plaintiffs or their legal representatives. The unredacted documents to which access is sought are exhibits to the closed affidavit. I have inspected those documents. My discussion of the contents of the closed affidavit and the unredacted portion of the documents the subject of this motion is circumspect so as not to prejudice the very interest the Commissioner is seeking to uphold by his application. 15At paragraphs 13-15 of his open affidavit, Assistant Commissioner Clarke stated as follows in relation to the first of these documents, that is, the Guidelines: "13.As the name suggests, the State Protection Group Basic Guidelines for Police Negotiators ("Guidelines") are guidelines provided to officers during their negotiation training and formed part of the Basic Negotiation Course in 2006 ..... 14.The Commissioner objects to producing those parts of the Guidelines (pages 8-24) that contain confidential police methodology and techniques which, if disseminated to the general public, would disclose the methods specifically used by the NSW Police Force to contain and negotiate situations where police negotiators are deployed. Should details of the techniques and methods specifically used by the NU become generally known, persons wishing to commit self-harm or commit serious criminal acts such as taking hostages, kidnapping or threatening to commit suicide and harm others in the process could modify their behaviour in order to thwart the effectiveness of the NU. This in turn will jeopardise the effectiveness of law enforcement in this state and put police and members of the public at risk. 15.The use of the containment and negotiation strategy by the NSW Police Force to resolve high-risk situations has resulted in criminals being safely apprehended and arrested in numerous police operations. Whilst, it might be possible for criminals, through contact with others in prison or participation in illegal activities, to infer tactics used by the police to bring about their apprehension, if the information in the Guidelines, over which a claim of public interest immunity is made, is disseminated, the Commissioner fears that criminals will be better able to formulate strategies to evade detection and apprehension, as that information will be available in one easily accessible source. Criminals will not then need to be reliant on an amended defence hoc information exchange to piece together a picture of the methods used by the NU and other police in high-risk situations." I infer that the Guidelines are disseminated to persons in the course referred to in paragraph 13 under condition that they will be kept strictly confidential. 16In paragraph 16 of the open affidavit, Assistant Commissioner Clarke recounts an example of persons he described as "criminals" who have acquired knowledge of police negotiation methods and described how they have sought to use that knowledge to neutralise the effectiveness of police tactics in a hostage situations. Other and more detailed examples were given in the Assistant Commissioner's closed affidavit. 17Assistant Commissioner Clarke's comments are not restricted to persons who answer the description "criminals". In paragraph 18 he states: "18.Further, the Commissioner objects to the production of information detailing the specific techniques and methods used by the NU, due to fears that public knowledge of those specific techniques and methods could result in people who find themselves in a life threatening situations (such as the mentally ill or suicidal) demonstrating to the authorities that negotiators employ an incorrect methodology, and may take their own life or the life of another to prove their point. I am informed that over the years there have been numerous incidents where the NU has been deployed to deal with people who have become repeat subjects. That is, incidents (usually suicide or attempt suicide related) where the same person has been the subject of repeated NU deployments. Subjects become aware of negotiation tactics and techniques because of the frequency of being involved in these suicide interventions. The subject may go to extraordinary steps to put his or her life in danger and to counteract the effectiveness of the police negotiators. I am informed by Detective Inspector Abel and verily believe that the NU was involved with one male subject six times. On each occasion the man threatened suicide. Each time the subject paced himself in a more precarious and life threatening position and the timeframe of resolving the situation became more extended." For these reasons, Assistant Commissioner Clarke seeks to prevent disclosure of the contents of the guidelines in any public domain. 18My perusal of the Guidelines in their unredacted form confirms Assistant Commissioner Clarke's evidence. In parts, the document gives quite specific instructions about the conduct of such negotiations. In my view, their dissemination would substantially weaken their utility and undermine the role of those whose difficult job it is to apply them. 19I referred to the balancing test at the commencement of this judgment. There is no dispute between the parties about the approach to be adopted. I was referred to the well-known test from Alister v The Queen (1983-1984), 154 CLR 404 at 412, which, for present purposes at least is not relevantly different to that posed by ss 130(1). 20I will address the various criteria in ss 130(1). I am relevantly satisfied that the information disclosed in the redacted portion of the Guidelines "relates to matters of State". In particular, it is material, the adducing of which would, at the very least, "prejudice the prevention ..... of an offence" (ss 130(4)), or might be said to "prejudice the proper functioning of the government of the Commonwealth or the State" (ss 130(4)(f)). 21Moreover, I consider that the information in the unredacted portion of the Guidelines is material in respect of which there is a very strong public interest in it not being produced. It is material that is often engaged at one of the most acute points of the performance by police of their duties; namely, hostage or standoff situations which teeter on the brink of moving from the commission or an offence of a moderate degree of severity to a potential catastrophe. The position of a negotiator is weakened, perhaps seriously, if their negotiation approach is known by their opponent. That is not only true in the case of commercial negotiations, but in negotiations of the kind being considered here which can be matters affecting life or death. 22I am also satisfied that this aspect of the subpoena has a legitimate forensic purpose connected with the proceedings. However, subject to the comment I make below, I do not consider at this stage that the significance it has to the proceedings is so great that the need for access outweighs the public interest in non-disclosure. Invariably a case such as this will turn upon its facts and circumstances. An assessment of whether some part of the conduct of the police fell below the relevant legal standard can, in my view, be undertaken in the absence of obtaining such a document. From what I can ascertain, the gravamen of the complaint on this aspect of the case is not so much the standard of negotiation, but the decision to move from a response of negotiation to one involving force and then the amount of force that was applied. In this regard, I note that it was conceded by counsel for the Commissioner that the unredacted portions of the guidelines do not touch upon those latter matters. 23I have considered whether to allow access to the unredacted portion of the guidelines to the Plaintiffs' lawyers only, but I have decided against it. I mean no disrespect to the lawyers in doing so. However, the interests sought to be protected by restricting access to this document are, in my view, so significant that those who prepare and utilise it need to have some assurance that the extent to which it is disseminated is a matter within their control. 24I was informed that the Second Defendant, the State of New South Wales, is yet to file its evidence. I make it clear that the above analysis is premised upon assumption that the State of New South Wales will not seek, directly or indirectly, to refer or rely on the contents of the unredacted portions of this document in its defence to the Plaintiffs' claim. If that were to occur, then the matter might need to be reconsidered to avoid the hearing becoming unfair by virtue of the State being able to selectively rely on some material and then prevent the Plaintiffs from having access to it and thereby testing their case (see B v N (1994) 35 NSWLR 140). I will allow some measure of protection to the Plaintiffs against this contingency by the course I will adopt with the second document the subject of the notice of motion. 25As I have stated, the second document is a negotiation incident form. It reported on the incident on 19 April 2006. The redacted portion comprises two sentences on the first page, three sentences on the second page and four words on the third page. 26In paragraph 27 of his open affidavit, Assistant Commissioner Clarke states that: "The redacted information specifically identifies the methodology used by the NU [Negotiation Unit] which, if revealed, could adversely impact on the effectiveness of the NU and police law enforcement." He expands upon this in paragraphs 23 and 24 of his closed affidavit. 27Applying the test in ss 130(1), I am similarly satisfied that this material relates to "matters of state" of the kind referred to in ss 130(4)(c), and potentially ss 130(4)(f) of the Evidence Act. It is material that needs a strong measure of protection, although the quantity of material disclosed is not as significant as with the Guidelines. 28However, it also seems to me that the material in this document has much greater significance to the case than the Guidelines. It describes the approach that was adopted in this very case. It is much closer to the heart of the Plaintiffs' case. Given that, the point that I have made concerning the evidence yet to be filed by the State of New South Wales and the more limited knowledge of police methods that it reveals, I consider that the competing interests can be balanced by allowing access, but restricting it to the counsel and solicitors engaged by the Plaintiffs. 29This form of restriction will operate until further order and it will allow variation by the Court if it is considered appropriate. It is not appropriate for me to circumscribe the Court's discretion in that regard, but I make two observations based upon the material that is revealed before me today. 30First, I have been advised that the Plaintiffs have retained an expert. I was not advised in which field of expertise they practise. I can appreciate that it may be desirable for access to this document in its unredacted form to be provided to the expert. However, I would expect the Plaintiffs to put together a strict confidentiality regime before it either approached the Commissioner or the Court seeking a variation of the order. 31Second, restricting access to documents to counsel and solicitors can sometimes put the legal representatives in a difficult position. However, in this case, it seems to me that a very strong need would have to be demonstrated why the Plaintiffs should be shown the unredacted form of the document. If the version of the incident described in the redacted version of the incident form is accepted, the first named plaintiff is one of the very category of persons to whom this type of information should not be disseminated. 32Accordingly, the orders of the court are: (1)The Commissioner of Police be excused from producing a fully unredacted page 8 and pages 9-24 of the document entitled "New South Wales Protection Group Basic Guidelines For Police Negotiations". (2)The Commissioner of Police produce a fully unredacted portion of the documents entitled "Negotiation Incident Form". (3)Until further order, access to the fully unredacted version of the document entitled "Negotiation Incident Form" be restricted to the Plaintiffs' counsel and solicitors only. (4)That the "closed" affidavit of Assistant Commissioner Clarke sworn 13 April 2012 and the exhibit thereto be returned to the Commissioner. (5)Orders 2 and 3 be stayed for 21 days. (6)There be no order as to the costs of the Commissioner's notice of motion filed 12 April 2012. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2012