AZ v DQ & Anor [2006] NSWSC 383

New South Wales Supreme Court

CITATION : AZ v DQ & Anor [2006] NSWSC 383

HEARING DATE(S) : 29/03/06 30/03/06

JUDGMENT DATE : 5 May 2006

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 26

LEGISLATION CITED : Limitation Act 1969

CASES CITED : Warran v Coombs 23 ALR 405 RTA v Connolly (2003) 57 NSWLR 310

AZ - Plaintiff PARTIES : DQ (as Legal Personal Representative of the Estate of the Late PC) - First Defendant State of NSW - Second Defendant

FILE NUMBER(S) : SC 20013 of 2002

COUNSEL : Mr B J Gross QC with Mr S Dixon - Plaintiff Mr G W Moore - Second Defendant

SOLICITORS : Carrroll & O'Dea Solicitor - Plaintiff I V Knight Crown Solicitor - Second Defendant

LOWER COURT JURISDICTION : Supreme Court (Master)

LOWER COURT JUDICIAL OFFICER : Master Harrison

LOWER COURT DATE OF DECISION : 18/05/2005

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Patten AJ

5 May 2006

No: 20013/2002

AZ - Plainitff

v

DQ (as Legal Personal Representative of the Estate of the Late PC) – First Defendant

State of New South Wales – Second Defendant

JUDGMENT 1 This is an appeal and cross appeal from a decision of Master Harrison given on 18 May 2005. The learned Master was, in turn, reviewing a decision of Assistant Registrar Howe given on 26 October 2004. The parties to the appeals are the Plaintiff represented by Mr B Gross QC with Mr S Dixon, and the Second Defendant, State of NSW, represented by Mr G Moore. Mr Moore also represented the Commissioner of Police. 2 The matter at issue before the Assistant Registrar and before the Master concerned the production of documents produced or liable to be produced under two subpoenas issued on 13 November 2002, one addressed to the Director General NSW Department of Education and Training and the other to the Commissioner of Police. 3 In the action, the Plaintiff, who was born on 28 February 1950, claims damages for psychological and psychiatric injuries sustained as a consequence of repeated acts of sexual assault committed by a teacher (PC), whilst he was a student at Sydney Boys High School from 1964 until 1968. Of course it should be made clear that at this stage the Plaintiff's assertions amount to no more than untested allegations. 4 The action was commenced on 15 January 2002. Its success, inter alia, depends upon the Plaintiff obtaining relief under either s58 or s60G of the Limitation Act in order to defeat a defence raised by the Defendants. He has applied for such relief and, for the purposes of the application, issued and served the subpoenas now under consideration. 5 The subpoena addressed to the Director General required production of: "All documents, correspondence, witness statements general statements, file notes, memoranda, photographs, investigations and reports compiled by the Case Management Unit in relation to the conduct, behaviour and activities of Mr William Charles Lucan-Roberts, formerly a teacher at Sydney Boys High School." 6 The subpoena addressed to the Commissioner of Police required: 1. All records, documents, files, statements, notebook entries, charge sheets and other documents in relation to charges against William Charles Lucan-Roberts (born 9 December 1938) – CNI ref: 692390660 – arising out of an offence on 31 October 1964. 2. All notebook entries and statements taken by Senior Constable Sencon Ratjens of the Child Protection Enforcement (H8582140) in the course of his investigations of offences involving William Charles Lucan-Roberts; 3. All other records, documents, files, statements, notebook entries, charge sheets and other documents in relation to William Charles Lucan-Roberts (born 9 December 1938) including a list showing all offences in relation to which he had been questioned, in relation to which he had been charged and in relation to which he had been convicted, and showing the nature of the penalty ordered in respect of any such conviction." 7 In order to understand the basis upon which the Plaintiff contends that he has a legitimate forensic purpose in seeking to require production of such a range of documents, it is important to record that in late 1999 and early 2000, PC (a pseudonym for William Charles Lucan-Roberts) was charged with a total of 67 offences involving sexual assaults upon students of Sydney Boys High School in the period of 34 years from 1964 to 1998 whilst he was a teacher at the school from 1964 until 1998. Altogether, some 10 pupils including the Plaintiff were alleged victims. PC himself committed suicide on 25 March 2000 and the action has been continued against his legal personal representative DQ. 8 The affidavit sworn by solicitor Mr Peter Bowe, representing the Commissioner of Police, on 25 October 2004 indicates that the offences for which PC was charged allegedly occurred between 31 October 1964 and 1 August 1999. 9 The affidavit also indicated that a police strike force was established to investigate the activities of PC. The affidavit identified documents liable to be produced under the subpoena addressed to the Commissioner as follows: "The documents that are held by the NSW Police service include · Statements of the 10 victims including audio recordings of interviews by Police with some of those victims; · Statements by investigating police in respect of the 67 charges laid by the NSW Police Service; · Various documents seized from the premises of PC pursuant to the execution of a search warrant. · Statements of various people which were intended to be used as corroboration, tendency and propensity evidence in the criminal proceedings. · Daily running sheets of the investigations carried out by various members of the strike force, · Copy of the Fact Sheet prepared for PC's court appearance, copies of the charges brought against PC, (in respect of Victims 1,3,4,5 and 6). COPS entries relating to the investigation; · Birth certificates of victims, marriage certificate of the Plaintiff, photographs of various location where the offences are alleged to have occurred, photographs taken by police of exhibits seized; · Medical records seized under search warrant relating to the Plaintiff and Victim No 7 · Terms of reference, progress reports and investigation plan relating to the entire investigation. · Documents obtained from the Department of Education; · Banking records of PC and various Telstra records; · Correspondence between PC and the Plaintiff; · Video and audio tapes of various interviews conducted by Police Officers (PC declined to be interviewed by the Police) and searches conducted under the authority of search warrants; · Translation of various documents from the Greek language to the English language. In answer to the 2002 subpoena the Commissioner of Police produced to the Court a bundle of COPS Events sheets, the fact sheet relating to charges involving the Plaintiff, Victims 3,4,5 and 6 and Police Statements in respect of those victims. In relation to Victim 3 the statements produced deleted any reference to the identity of Victim 3 as this Victim had consented to material being produced on condition that his identity not be disclosed. A similar procedure was adopted in respect of witnesses for this Victim. Those documents were edited so that the identity of Victims 2,3,7,8, 9 and 10 were not disclosed in those documents."