Valder v State of New South Wales (No 1) [2013] NSWSC 994

Supreme Court New South Wales

Medium Neutral Citation: Valder v State of New South Wales (No 1) [2013] NSWSC 994 Hearing dates: 23 July 2013 Decision date: 23 July 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Tender of CCTV footage rejected. Catchwords: CONTEMPT - tender of CCTV footage - tender rejected - vicarious liability of State for alleged contempt by police officers. Legislation Cited: Law Reform (Vicarious Liability) Act 1983 Category: Procedural and other rulings Parties: Valdemar Ian VALDER (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: In person (Plaintiff) M. Hutchings (Defendant) Solicitors: In person (Plaintiff) Henry Davis York (Defendant) File Number(s): 2012/300704

EX TEMPORE Judgment

Re leave to tender CCTV footage 1Mr Valder seeks to tender what is described as some CCTV footage of his attendance at Parramatta Police Station on 17 September 2012. The background is that Mr Valder was at that time seeking to appeal a conviction that had been entered against him in the Local Court to the District Court. He had apparently been ordered by the District Court to provide his evidence to either the Director of Public Prosecutions or a prosecutor responsible for the carriage of his appeal. He contends that he attended at the police station to provide his evidence but was rebuffed by the officer in charge. He further contends that when he attended at his appeal the prosecutor who appeared stated that he had not received his evidence and that the District Court then proceeded to reject his appeal and the evidence he sought to tender. 2He subsequently commenced proceedings in the Local Court seeking damages against the State of New South Wales for its alleged vicarious liability in respect of the alleged negligence of the officer in charge of the police station who he said denied him the ability to serve the evidentiary material. 3Subpoenas were issued both out of the Local Court and this Court seeking the production of the CCTV footage concerning his attendance upon the police station. Mr Valder alleges that there were various defects in the compliance with the terms of that subpoena. 4In late 2012 he filed a motion in this Court, one prayer of which sought punishment for contempt in some manner connected with the dealings with that subpoena. His motion for contempt was fixed for hearing today. 5In recent weeks there have been directions hearings concerning that motion, which culminated in him being required to file a notice of motion and a statement of charge. He filed such a motion and named the State of New South Wales as the respondent and, as I understand it, the alleged contemnor. It is agreed that, at a directions hearing before Garling J on 17 July 2013, Mr Valder identified the precise conduct that was said to be contemptuous by reference to four specific acts. 6In the notice of motion and statement of charge he filed subsequent to that directions hearing he added a fifth count in the following terms, namely: "The police substituted the original CCTV footage - thus interfered with the administration of justice". As explained today, Mr Valder contends that some footage produced in response to one or both of the subpoenas was effectively doctored to remove his image. If established, this would, of course, constitute serious misconduct. 7The State has objected to this count and their objection has arisen at the point where Mr Valder has sought to tender the CCTV footage that was produced in response to one or both of the subpoenas as part of his proof of this count. 8I am rejecting the tender for two related reasons. First, because there has not been in my view sufficient notice given to the State of the terms of this alleged contempt prior to today. As I have stated, the relevant allegation is in substance a serious one and should have been agitated before Garling J. Second, and perhaps most significantly, if the conduct that forms the subject of this count is made out, it might, or indeed most likely would, constitute either a contempt of court or a serious criminal offence or both. However, perhaps revealing a significant problem with Mr Valder's motion, such serious conduct would not fall within the ordinary course of the performance of duties by police officers. I cannot see how in the absence of any suggestion that it was sanctioned at some extremely high level, of which there is no evidence, it could ever be conduct for which the State of New South Wales could be held somehow vicariously liable for contempt. 9It should be noted that the vicarious liability effected by the Law Reform (Vicarious Liability) Act 1983 is restricted to torts committed by public servants and police officers. It would certainly not extend to making the State liable in contempt for the conduct of public servants or police officers that had a tendency to interfere with the administration of justice. 10For those two reasons, I reject the tender and indicate that the matter will not be proceeding in respect of count 5.