', NVI 1rVUK BIG TKIOUTLION ~ JUDGMENT No. 281.7 B71. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G 70 of 1987 DISTRICT REGISTRY ) ) ) GENERAL DIVISION IN THE MATTER of an application by RONALD ALWYN GREY, the Commissioner of the Australian Federal Police, made pursuant to sub-s.24(1A) of the Federal Court of Australia Act 1976 AND IN THE MATTER of proceedings pending in the Supreme Court of the Australian Capital Territory between The Queen and Ian Leslie Bush CORAM: Neaves J. DATE: 29 October 1987 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGiSTr REASONS FOR JUDGMENT oN On 13 October 1987 I dismissed an application made by Ronald Alwyn Grey, the Commissioner of the Australian Federal Police, pursuant to sub-s.24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Act") for leave to appeal from what was described in the application as "the judgment of the Supreme Court of the Australian Capital Territory given on 13 October 1987 at Canberra". In dismissing the application I said that I would give reasons for my decision. What follows are those reasons. The application arose in the following circumstances. On 12 October 1987 Ian Leslie Bush was arraigned in the Supreme 2. Court of the Australian Capital Territory before his Honour the Chief Justice, Mr Justice Miles, on a charge that on 25 January 1987 in the Australian Capital Territory he did murder Debra Michelle Bush. He pleaded not guilty to the charge and a jury was empanelled. In the absence of the jury, counsel for the accused made a call upon a subpoena duces tecum directed to the Commissioner, Australian Federal Police, requiring the production of the following documents - "All records of any complaints made against either of the following Police Officers:- 1. Chief Inspector Richard Thomas Ninness; 2. Detective Senior Sergeant Donald Max Bailey; in his capacity as a Police Officer, by any member of the public or of the Police Force at any time including - (a) any note of telephone conversation recording initial complaint; (b) any written complaint; (c) any Police Officer's notebook or official diary, occurrence report or witness' statement in so far as it relates to the complaint or to the investigation of the complaint; (d) any internal Police working document relating to the investigation of the complaint; (e) any records of the investigations of the complaint including the transcript of any proceedings; (f) any report of the result of the investigation of the complaint; (g) any records, transcripts or other documents relating to disciplinary proceedings by and on behalf of the Commissioner of the ACT Police and the Australian Federal Police." The two persons named in the subpoena were to be witnesses for the Crown at the trial of the accused. Certain documents were produced in answer to par.(g) of the subpoena but, in relation to the documents falling within pars (a) to (f) inclusive, counsel appeared for the Commissioner to object to their production on the ground that their disclosure would be contrary to the public interest. No challenge was made to the subpoena itself. Oral evidence was given by Inspector Patrick Joseph Leonard, an officer of the Australian Federal Police attached to the Internal Investigation Division, Canberra. He gave evidence as to the establishment of the Internal Investigation Division and its responsibilities and of the manner in which an investigation into a complaint against a member of the police force is conducted. The witness identified 9 files in the Commissioner's possession which answered the description in the subpoena and indicated the general nature of the material on each of those files. The evidence disclosed that two of the files (identified as files numbered 7 and 8) related to investigations which were then in progress and in relation to which the members of the police force against whom the complaints had been made had not been informed of the complaints nor had they been interviewed or required to furnish a report. 4. Inspector Leonard said that investigations by the Internal Investigation Division are conducted in confidence and he advanced as one reason for such confidentiality that it helped to remove any inhibitions which a member of the public might have in coming forward to make a complaint against a member of the police force. He also relied on certain provisions of the Complaints (Australian Federal Police) Act 1981 (Cth) ("the Complaints Act") as requiring confidentiality in the conduct of such investigations. He did not advance any basis, other than those mentioned, for the claim that the public interest required that the files relating to investigations which had been completed and in relation to which no disciplinary or other action was contemplated should not be produced. It was said, however, that to make public the files relating to complaints currently under investigation could seriously hamper those investigations. More detailed reference to the provisions of the Complaints Act which were relied upon in support of the claim that the public interest required that the documents not be produced should be made. Section 6 provides for certain complaints made against a member of the Australian Federal Police to be referred to the Internal Investigation Division established in pursuance of s.14. Section 7 requires the Division to investigate such complaints and provides for its powers. Sub-sections 7(5), (5A), (5B), (6) and (8) provide: 5. "(5) A member of the Investigation Division may, for the purposes of the investigation of a complaint or matter, direct a member of the Australian Federal Police to furnish information, Produce a document or other record, or answer a question, that is relevant to the complaint or matter, as the case may be. (5A) A direction under sub-section (5) has no effect unless the person giving the direction - {a) states in the direction that the member concerned 1s being expressly directed under sub-section (5) of this section; (b) specifies in the direction the substance of the complaint or matter being investigated; (c) if it is practicable to do so - gives the direction in writing; and (ad) if the direction is given in writing - causes a copy of the direction to be furnished to the member concerned. (SB) In any proceedings for a contravention of sub-section (8), the onus of proving that the person who gave a direction under sub-section (5) complied with sub-section (5A) lies on that person. (6) Where a member of the Australian Federal Police is directed under sub-section (5) to furnish information, produce a document or record or answer a question, the member is not excused from complying with the direction on the ground that - (a) the furnishing of the information, the Production of the document or record or the answering of the question - (i) would be contrary to the public interest; or (ii) might make him liable to a penalty; or (b) the information, the production of the document or record or the answer to the question might tend to incriminate him, or on any other ground, but the information, the production of the document or record or the answer to the question is not admissible in evidence against him in any civil or criminal 6. proceedings other than proceedings for an offence against sub-section (8) or for or in relation to a breach of discipline. (8) A member of the Australian Federal Police shall not - (a) without reasonable excuse, refuse or fail to furnish information, produce a document or other record or answer a question when so required in pursuance of this section; or (b) furnish information or make a statement to a member of the Investigation Division knowing that it is false or misleading in a material particular. Penalty: $1,000 or imprisonment for 6 months." Section 87, so far as material, provides: "(1) Each of the following persons is a person to whom this section applies: (a) a member of the Australian Federal Police; (b) a person who is conducting an investigation on behalf of the Investigation Division in pursuance of an authority given under section 8; (c) a person who is conducting an investigation in accordance with arrangements made by the Commissioner under section 46; (d) a person who is conducting an inquiry in accordance with arrangements made by the Minister under section 50; (e} a member of the staff referred to in section 16 of the Australian Federal Police Act 1979. (2) Subject to this section, a person who is, or has been, a person to whom this section applies, shall not, either directly or indirectly, and either while he is, or after he has ceased to be, a person to whom this section 7. applies, except in the performance of his duties or with the consent, in writing, of the appropriate person, make a record of, or divulge or communicate, prescribed information acquired at any time by him by reason of his' being or having been a person to whom this section applies. Penalty: $1,000. (3) Sub-section (2) does not - (a) prevent a person who 1S, or has been, a person to whom this section applies from disclosing, in a report under this Act, such matters as, in his opinion, ought to be disclosed in the course of setting out the grounds for the conclusions contained in the report; or (b) prevent a person from producing a record referred to in sub-section (2) or giving information so referred to in evidence before a court, the Disciplinary Tribunal or a person who is authorized to hear and determine proceedings instituted against a member in respect of a breach of discipline. (3A) Sub-section (2) does not prevent the Commissioner from disclosing information, or making a statement, to any person or to the public or a section of the public with respect to the performance of the functions of, or an investigation or inquiry by, the Investigation Division if, in the opinion of the Commissioner, it is in the interests of the Australian Federal Police or of any person, or is otherwise in the public interest, to do so, having regard to whether the disclosure of that information, or the making of that statement would, or could reasonably be expected to - (a) prejudice the fair trial of a person or the impartial adjudication of a particular matter; (Db) reveal, or enable a person to ascertain, the existence or identity of a confidential source of information or the identity of a complainant; (c) constitute an unwarranted invasion of the privacy of any person; or (d) endanger the physical safety of any person. (7) In sub-section (2), 'prescribed information' means information supplied to or obtained by the Australian Federal Police in the course of, or for the purposes of, the investigation of a complaint, or the holding of an inquiry, concerning action taken by a member." After hearing submissions by counsel for the Commissioner and for the accused, his Honour the Chief Justice considered that he should inspect the documents and for that purpose adjourned the further hearing of the matter. Having inspected the documents, his Honour "gave a ruling" on the question of their inspection by counsel for the Crown and for _ the accused. The ruling was in the following terms: "My ruling is that counsel for the prosecution and for the accused may inspect those documents in files number 1 to 6 and file number 9 which I have categorised as constituting evidentiary material; that is to say, all written complaints, all statements of complainants and any witnesses, all records of any conversations with complainants and witnesses relating to such complaints and all statements and records of conversations and reports relating to such complaints made by the officer under investigation. " His Honour ordered that his ruling should not take effect before 2.15 p.m. on 14 October 1987. In the course of ruling that the specified documents might be inspected by counsel, his Honour expressed himself as being in agreement with the conclusion reached by Gallop J. in Nimness v. Graham (1986) 70 9. A.C.T.R.1 that the Complaints Act did not prohibit the disclosure to a court, and, in particular, to the Supreme Court of the Australian Capital Territory in the course of criminal proceedings, of information acquired in the course of an investigation conducted under that Act. His Honour accepted, again agreeing with Gallop J. in the case cited, that the system of investigation envisaged by the Complaints Act was characterised by confidentiality and secrecy and that disclosure in proceedings not of a disciplinary nature of what a member of the police force had said in response to a direction under s.7 of the Complaints Act might well be inimical to the proper functioning of a well disciplined police force. His Honour also accepted that there was a public interest in the confidentiality of material gathered in the course of an investigation under the Complaints Act. The Chief Justice then referred to the reasons advanced by counsel for the accused in support of the proposition that inspection of the documents was necessary for the proper conduct of the accused's defence and expressed himself as being satisfied that an arguable case for inspection had been made out. His Honour said that, although he found some difficulty in seeing how the material on the files could be used by the accused effectively to attack the credit of Chief Inspector Ninness or that of Detective Senior Sergeant Bailey, he could not be certain that what he referred to as the evidentiary material on the files in question could not be used to that effect. He, therefore, concluded that the accused had a legitimate 10. forensic interest in the inspection of the evidentiary documents that related to investigations that had already been concluded and in respect of which no further action was in contemplation. Having weighed the conflicting public interests involved, his Honour gave the ruling the text of which I have set out earlier in these reasons. It was from that ruling that the Commissioner sought leave to appeal. At the threshold was the question whether an appeal lay from the "ruling" given by the Chief Justice. An appeal would lie only if the ruling answered the description of a judgment of the Supreme Court of the Australian Capital Territory within the meaning of that expression in par.24(1)(b) of the Act, "judgment" being defined in s.4 to mean, in the absence of a contrary intention, "a judgment, decree or order, whether final or interlocutory, or a sentence". It may be that, had a case for the grant of leave to appeal been made out, the appropriate course would have been to have granted leave, reserving the question whether the ruling was a judgment, order or decree from which an appeal lay for the consideration of the Full Court hearing the appeal. However, being of opinion that no sufficient ground had been shown for the exercise of the Court's discretion to grant leave to appeal, assuming an appeal lay, it was unnecessary to further consider these questions. ll. The grounds advanced on behalf of the Commissioner in support of the grant of leave to appeal may be summarised as follows: (a) His Honour had misapplied the principles stated by Gibbs C.J. in Alister v. The Queen (1984) 154 C.L.R. 404 at p.414 in failing to hold that the accused was engaged in a mere "fishing" expedition. (b) Insufficient weight had been given to the need to preserve the confidentiality of statements made by a member of the police force pursuant toa direction given under s.7 of the Complaints Act. (c) Insufficient weight had been given to the prejudice which could result to investigations by the Internal Investigation Division unless the person making the complaint and those interviewed in the course of such investigations could be assured that what they said would remain confidential except where disciplinary proceedings or proceedings for a breach of sub-s.7(8) of the Complaints Act were taken. As to the first of those grounds, his Honour the Chief Justice clearly proceeded, as he was required to do - see Alister v. The Queen (supra) per Gibbs C.J. at p.412 - "to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates". His Honour satisfied himself that, in the circumstances, both aspects of the public interest did require consideration, although the conclusion that the accused had a legitimate forensic interest in the documents of which inspection was 12. allowed was arrived at only with considerable hesitation. But, his Honour having reached that conclusion after himself inspecting the documents, it seemed to me most unlikely that the Commissioner could convince an appellate court to reach a conclusion that the case did not go beyond a mere "fishing expedition" by the accused. I was not satisfied that his Honour could be shown to have misapplied the relevant principles. The other grounds relied on concerned the weight to be given to each of the public interests involved. The submissions put on behalf of the Commissioner did not go further than to contend that different minds might give greater weight to those interests than was given to them by the Chief Justice. The submissions did not, however, to ny mind, establish that there was an arguable case that the discretion vested in his Honour had miscarried. In addition to the above matters, I took into account the general nature of the documents for which protection was claimed and the harm which might result from their disclosure, the circumstance that the claim was a "class" claim rather than a "contents" claim, the absence of material to assist the Court in appreciating the adverse effect disclosure of the documents, or documents of the class of those in question, would be likely to have upon the administration of the Australian Federal Police and, in Particular, upon the mechanism for the investigation of complaints against its members, and the inconvenience that 13. would result if, having granted leave to appeal, the trial then in progress had to be interrupted pending the determination of the appeal. Taking all those matters into account, I determined that the application for leave to appeal should be dismissed and I ordered accordingly. I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Associate Dated: 29 October 1987 Mr C. Erskine Australian Government Solicitor Counsel for the applicant Solicitors for the applicant Counsel for the accused : Mr J.H. Brewster Solicitor for the accused : Legal Aid Office (A.C.T.) Counsel for the Director of Public Prosecutions : Mr I. Bermingham Date of hearing 13 October 1987