Brookfield v State of Queensland [2023] QSC 125 (2023) 14 QR 416

SUPREME COURT OF QUEENSLAND CITATION: Brookfield v State of Queensland [2023] QSC 125 PARTIES: IAN WALTER BROOKFIELD (Plaintiff) v STATE OF QUEENSLAND (Defendant) FILE NO: BS 15087 of 2021 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court DELIVERED ON: 14 June 2023 DELIVERED AT: Brisbane HEARING DATE: 27 March 2023 JUDGE: Sullivan J ORDER: The application is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY – COURTS – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION OF DOCUMENTS GROUNDS FOR RESISTING PRODUCTION – PRIVILEGE – PUBLIC INTEREST IMMUNITY – GENERALLY – where the plaintiff seeks disclosure from the defendant of two documents over which the defendant has claimed public interest immunity – whether harm to the public interest could arise from disclosure of the documents as a matter of real possibility – whether there is a conflicting public interest Corporations Act 2001 (Cth) s 596A, s 596B, s 597(12), s 597(12A) Police Service Administration Act 1990 (Qld) s 4.9, s 11.21 Police Service Administration Regulation 2016 (Qld) reg 7, reg 8, reg 22 Uniform Civil Procedure Rules 1999 (Qld) r 211, r 224(1), r 224(2)(d), r 225(1)(b), r 225(1)(c), r 239 Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405, cited Alister v The Queen (1984) 154 CLR 404, cited ASIC v P Dawson Nominees Pty Ltd (2008) 247 ALR 646; [2008] FCAFC 123, cited ASIC v Rich (2005) 220 ALR 324, cited -- 1 of 30 -- 2 Commissioner of Police v Coker [2019] QDCPR 3, considered Conway v Rimmer (1968) 1 All ER 874, considered Du Pont and Unwin [2014] FamCA 1003, considered Flori v Commissioner of Police & another [2014] QSC 284, considered HT v The Queen (2019) 278 A Crim R 133; [2019] HCA 40, cited Johns v ASC (1993) 178 CLR 408, cited McLean v Racing Victoria Limited & Anor [2020] VSCA 234, considered Nugent v Stewart (Commissioner of Police) & Anor [2016] QCA 223, considered R v Leach [2019] 1 Qd R 459; [2018] QCA 131, considered R v Sellers (2015) 89 NSWLR 155, considered R v Wellington [2018] QDCPR 24, cited Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) [2021] FCA 552, cited Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, considered The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; [2008] WASCA 34, cited COUNSEL: The plaintiff appeared on his own behalf Mr C Murdoch KC and Mr D M Favell for the defendant SOLICITORS: The plaintiff appeared on his own behalf Crown Law for the defendant [1] The matter before the Court is an interlocutory application by which the plaintiff seeks disclosure from the defendant of two documents over which the defendant has asserted public interest immunity. [2] The two documents are described in the defendant’s list of documents as follows. “2.1 QPS Ethical Standards Command (ESC) directed electronic record of interview between Officer Self and Officer Bishop. 2.2 That part of disclosed document 1.64 which discloses information provided by Officer Self in a directed interview.” [3] Each of the above documents deal with the content of a disciplinary interview which took place under a statutory regime which regulates police discipline. [4] The defendant concedes that documents 2.1 and 2.2 are directly relevant to the allegations against Detective Sergeant Self (DS Self) and are in its possession or control. It is also conceded that if the documents are found to not attract the immunity, then they ought to be disclosed to the plaintiff. -- 2 of 30 -- 3 Background [5] On 17 December 2021, the plaintiff commenced proceedings by way of claim and statement of claim. On 21 July 2022, an amended claim and statement of claim was filed. On 9 December 2022, an amended defence was filed in response. [6] The plaintiff’s case centres on the alleged conduct of various police officers stationed at Bundaberg. For present purposes, it is the allegations made against DS Self and Senior Sergeant Bishop (SS Bishop) that are relevant. [7] The allegations against DS Self are located in various parts of the Amended Statement of Claim. For the purpose of this application, I have had regard to each of the allegations made against DS Self. I will not purport to summarise all of those allegations, but I will set out some of their features. [8] DS Self charged the plaintiff with certain offences on 25 May 2019. It is common ground that each of those charges were later dismissed in the Magistrates Court. Part of the allegations against DS Self are that, in the period leading up to the charges being laid on 25 May 2019, he is said to have conspired with the solicitors for the complainant for the purpose of bringing the charges. It is alleged that the Queensland Police Service had made a prior decision (including by DS Self), that Mr Brookfield should not be pursued for the types of subject matters which ultimately formed the content of the 25 May 2019 charges. It is alleged that there were no new facts which justified a departure from this prior decision. [9] Associated allegations are made about the bail which was then imposed after the charging, the taking and holding of certain chattels of the plaintiff by police, and the effects which flowed from those actions. [10] Further allegations are made against DS Self, that he was the “mind and soul” behind separate charges laid against the plaintiff by other police officers. [11] On 15 October 2021, the plaintiff was arrested and charged on further offences by DS Self. Again, it is common ground that those charges were ultimately dismissed in the Magistrates Court. [12] Allegations are made in relation to bail conditions imposed on that occasion. In relation to this second set of charges laid by DS Self, it is alleged the Queensland Police Service had previously investigated them and made a decision that they were civil in nature and the complaint was unfounded. [13] The allegations of the plaintiff include that the charging, the arresting, the taking into custody and the bailing could only be viewed as conduct constituting:- (a) Malicious prosecution (malice); (b) Multiple wrongful arrests and imprisonment/detained in custody; (c) Misfeasance in public office (abuse of power); (d) Perverting the course of justice; (e) Acts to intimidate; and -- 3 of 30 -- 4 (f) Civil conspiracy. [14] The Amended Statement of Claim then concludes with what is said to be a claim for unliquidated damages, with further articulation of the claim in a series of fifteen paragraphs starting with paragraph (a) and ending with the second paragraph lettered (j). This is then followed by two paragraphs lettered (k) and (l), which allege that evidence is available to substantiate each and every claim made in the application, and that affidavit material will be forthcoming to support third party involvement. [15] The Amended Claim and Statement of Claim had sought relief against six officers, which included DS Self, SS Bishop and the Commissioner of the Queensland Police Service. In addition, there was a claim against the State of Queensland. Pursuant to an Order of this Court made by his Honour Justice Freeburn on 2 December 2022, the first to sixth defendants were removed from the proceeding, leaving the State of Queensland as the sole defendant. Amended Defence [16] In the Amended Defence, the State of Queensland disputes each of the causes of action which are alleged against it. That is done in the usual way by admission, denials with explanations, non-admissions and positive pleas. I do not intend to undertake a summary of the Amended Defence, but I have had regard to it for the purposes of this application, in order to understand the ambit of the disputes between the parties. The statutory regime [17] The creation of the two documents in question took place within an extensive statutory regime which operates in respect of police disciplinary matters. [18] That regime (as it existed in 2015) was summarised by Morrison JA in the decision of Nugent v Stewart (Commissioner of Police) & Anor [2016] QCA 223 in the context of an examination of the abrogation of the privilege against self-incrimination in a disciplinary interview. [19] Whilst there had been some minor changes to the regime subsequent to the date dealt with by Nugent as compared with the date on which the disciplinary interview in question in this proceeding occurred (being 9 October 2019), none of those changes had altered the substance of Morrison JA’s summary. I reproduce that summary below with subsequent relevant changes identified by way of footnotes: ‘[43] The Act1 [Police Service Administration Act 1990 (Qld)] provides for the creation of the Police Service, constituted by “a body of persons” who are police officers: ss 2.1 and 2.2. The Service is to be maintained at all times: s 2.1. The objects of the Act are to provide for the maintenance of the Queensland Police Service and the development and administration of that service: s 1.3. 1 The Act referred to was the Police Service Administration Act 1990 (Qld) and I have included the name above in brackets for identification purposes. -- 4 of 30 -- 5 [44] Section 2.3 of the Act sets out the functions of the police service as (relevantly): “The functions of the police service are the following— (a) the preservation of peace and good order … (b) the protection of all communities in the State and all members thereof— (i) from unlawful disruption of peace and good order that results, or is likely to result, from… (ii) from commission of offences against the law generally; (c) the prevention of crime; (d) the detection of offenders and bringing of offenders to justice; (e) the upholding of the law generally; (f) the administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of— (i) the provisions of the Criminal Code; (ii) the provisions of all other Acts or laws for the time being committed to the responsibility of the service; (iii) the powers, duties and discretions prescribed for officers by any Act.’ [45] The importance of the Service to the community is emphasised by the fact that the functions in s 2.3, are to be acted “in partnership with the community at large to the extent compatible with efficient and proper performance of those functions”: s 2.4(2). [46] If a question arises as to a person’s identity as an officer, or to a person’s entitlement to exercise the powers or to perform the duties of an officer, the Act provides that “the general reputation of a person, who is an officer, as being an officer is evidence of that identity and entitlement”: s 3.4 of the Act. The same section also provides that the absence of, or failure to produce, any written appointment or other documentary proof (to establish the police officer’s identity or entitlement to exercise the powers and perform the duties) does not prejudice or otherwise affect the exercise of the powers or the performance of the duties by a police officer. [47] Under the Act, the Commissioner is “responsible for the efficient and proper administration, management and functioning of the police service in accordance with law”: -- 5 of 30 -- 6 s 4.8(1). For that purpose, the Commissioner is “authorised to do, or cause to be done, all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility”: s 4.8(3). In discharging that responsibility, the Commissioner is, subject to the Act, “to ensure compliance with the requirements of all Acts and laws binding on members of the police service, and directions of the commissioner”: s 4.8(4)(b). [48] The Commissioner is given power to issue directions under s 4.9 of the Act: “(1) In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service. (2) A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act. (3) Subject to subsection (2), every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction.” [49] Thus it is evident that the power to give or issue directions is very broad: “such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service”: s 4.9(1). [50] The requirement for compliance with the Commissioner’s directions is first mentioned in s 2.3(f). That obedience is central to the administration of the service, as can be seen from the additional references to the Commissioner’s directions: (a) a breach of discipline includes a breach of a direction given by the Commissioner: s 1.4; (b) “Subject to section 7.1 where it applies, in performance of the duties of office, an officer is subject to the directions and orders of the commissioner …”: s 3.2(1); (c) the Commissioner is to “ensure compliance with the requirements of … directions of the commissioner”: s 4.8(4)(b); (d) unless a direction is inconsistent with the Act, “every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction”: s 4.9(3); -- 6 of 30 -- 7 (e) the Commissioner can direct that certain equipment must be surrendered when a person ceases to be an officer, and that must be complied with: s 10.13; and (f) where an officer is suspected by the Commissioner of being unfit to perform duties, the Commissioner can direct that officer to submit to a medical examination; if the officer fails without reasonable cause to comply with that direction, “it is to be conclusively presumed that the commissioner’s suspicion is true”: s 8.3(1) and 8(2A). [51] There are provisions that are designed to “enhance the public’s confidence in the service and the integrity of the service”: Part 5A. Thus, officers must submit to random alcohol testing if approved by the Commissioner: s 5A.9, as well as if they are suspected of contravening specified alcohol limits while on duty: s 5A.8. They must also submit to targeted drug testing, where the limit is that there must be no evidence of a dangerous drug: s 5A.12 and s 5A.13. The Commissioner is given wide disciplinary powers if an officer tests positive for alcohol or drugs: s 5A.16. [52] The Commissioner is given power to obtain information about a person’s criminal history if they wish to be engaged by the Service: Part 5AA. The potential employee is required to make that disclosure, which includes offences and disciplinary action under a public sector disciplinary law: s 5AA.8. [53] Part 7 of the Act deals with “Internal command and discipline”. The Act imposes duties on each police officer in respect of matters of misconduct and breaches of discipline, in s 7.2: “(1) In this section— Conduct means conduct of an officer, wherever and whenever occurring, whether the officer whose conduct is in question is on or off duty at the time the conduct occurs. Officer includes a police recruit. (2) If any officer or staff member— (a) knows or reasonably suspects that conduct to which this section refers has occurred; or (b) is one in respect of whom it can be reasonably concluded that the officer or staff member knew or reasonably suspected that conduct to which this section refers has occurred; it is the duty— (c) of the officer or staff member, in the case of conduct that is misconduct, to report the -- 7 of 30 -- 8 occurrence of the conduct, as soon as is practicable, to the commissioner and to the chairman of the Crime and Corruption Commission; and (d) of the officer, in the case of conduct that is misconduct or a breach of discipline, to take all action prescribed by the regulations as action— (i) to be taken in the circumstances of the case; and (ii) to be within the authority of an officer of the rank or description to which that officer belongs. (3) The commissioner may, by written instrument, exempt stated officers or staff members who have or are likely to have knowledge of conduct that is an alleged contravention of the Anti-Discrimination Act 1991 from compliance with subsection (2), generally or on stated conditions. (4) The commissioner may give an exemption under subsection (3) only if the commissioner is reasonably satisfied giving the exemption will not adversely affect the welfare of the officers or staff members affected by or involved in the conduct. (5) However, if a person is given an exemption generally because the person is likely to have knowledge of an alleged contravention of the Anti-Discrimination Act 1991 and the person is the person against whom the complaint for the contravention is made, the exemption does not operate in relation to the complaint against the person. (6) Also, the commissioner may, by written instrument, exempt an officer or staff member from compliance with subsection (2), generally or on stated conditions, if the officer or staff member— (a) is appointed to provide confidential counselling services to officers and staff members; or (b) is a prescribed person under section 5A.21A. (7) An exemption under subsection (6) only operates while the officer or staff member is providing professional counselling services in an official capacity. (8) If a person is not required to report misconduct under subsection (2) because of an exemption under subsection (3), the commissioner also is not required to report the misconduct.” -- 8 of 30 -- 9 [54] The importance of the standard of the Police Service conduct to the community is shown by the definition of “misconduct” which includes conduct which “does not meet the standard of conduct the community reasonably expects of a police officer”: s 1.4. That standard is maintained by the discipline imposed on officers, and administered by the Commissioner. [55] Officers are subject to very wide disciplinary control. Section 7.4 provides that an officer is “liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations”. The seriousness with which the Act treats a finding of misconduct is shown by the requirement that, in the event of such a finding, “the commissioner must give a QCAT information notice to the officer and the Crime and Corruption Commission for the decision or finding within 14 days after the making of the decision or finding”: s 7.4(2A). [56] Part 7A of the Act even gives the Commissioner power to start or continue an investigation into a breach of discipline by a former officer. [57] Regulation 3 of the Discipline Regulation2 [Police Service (Discipline) Regulations 1990] states the objects in this way: “The object of these regulations is to— (a) provide for a system of guiding, correcting, chastising and disciplining subordinate officers; and (b) ensure the appropriate standards of discipline within the Queensland Police Service are maintained so as— (i) to protect the public; and (ii) to uphold ethical standards within the Queensland Police Service; and (iii) to promote and maintain public confidence in the Queensland Police Service.” [58] Regulation 9 of the Discipline Regulation provides for disciplinary action to be taken against a police officer in various circumstances which include: “(1) For the purposes of section 7.4 or part 7A of the Act, the following are grounds for disciplinary action— … 2 The “Discipline Regulation” referred to is the Police Service (Discipline) Regulations 1990. I have included the name above in brackets for identification purposes. DS Self was interviewed on 9 October 2019. The Discipline Regulation referred to was repealed on 30 October 2019. Pursuant to s 11.21 of the Act, the Discipline Regulation remained operative for any disciplinary proceeding which was undertaken prior to 30 October 2019. -- 9 of 30 -- 10 (c) a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the commissioner; (d) a contravention of, or failure to comply with, a direction, instruction or order given by any superior officer or any other person who has authority over the officer concerned; ….” [59] Regulation 10 then provides for the type of disciplinary sanctions that can be imposed upon a finding of misconduct: “Subject to regulations 11 and 12 (and without limiting the range of disciplines that may be imposed by the commissioner or a deputy commissioner pursuant to section 7.4(3) of the Act or regulation 5) the disciplinary sanctions that may be imposed under these regulations are the following— (a) cautioning or reprimand; (b) a deduction from the officer’s salary or wages of an amount equivalent to a fine of 2 penalty units; (c) a reduction in the officer’s level of salary or wages (not being a reduction to a level outside that applicable to an officer of that rank); (d) forfeiture or deferment of a salary increment or increase; (e) a reduction in the officer’s rank or classification; (f) dismissal from the police service.” [60] The Administration Regulation3 [Police Service Administration Regulation 1990] is the means by which the Commissioner’s duty to administer and maintain the Service is regulated. It requires that all officers are to take reasonable steps to familiarise themselves with the provisions of the Act, regulations made under the Act, and those codes of conduct, general instructions and determinations that apply to them: reg 1.6.4 Amongst the particular matters within the Commissioner’s responsibility are: the promotion or demotion of officers, the training and development of members of the service, and the discipline of members of the service: reg 2A.1.5 [61] The Administration Regulation makes detailed provision in relation to non-disciplinary matters, such as: transfers, 3 The “Administration Regulation” referred to is the Police Service Administration Regulation 1990. I have included the name above in brackets for identification purposes. This regulation was repealed on 1 July 2016 and replaced by the Police Service Administration Regulations 2016 (Qld) (“2016 Administration Regulations”). The relevant parts of the previous regulations involved in Nugent, are, in substance, found in the new Police Service Administration Regulations 2016 (Qld), albeit the language of the drafting is not identical between the two documents. 4 The relevant equivalent became regulation 8 of the 2016 Administration Regulations. 5 The relevant equivalent became regulation 7 of the 2016 Administration Regulations. -- 10 of 30 -- 11 vacancies and promotions; resignation and retirement; and alcohol and drug testing. [62] Regulation 5.36 of the Administration Regulation provides that an officer must not withdraw from his or her duties unless authorised by the Act, any regulations made under the Act or by the Commissioner. Those duties are those of a constable at common law: s 3.2 of the Act. A constable at common law had the duty to maintain the King’s peace for the benefit of the citizenry, bringing to justice those by whom it is infringed. It is that duty that is reflected in the oath and affirmation that an officer must take before entering upon the duties of an officer. [63] Those duties now include: that the performance of an officer’s duties is subject to the directions and orders of the commissioner: s 3.2(1) of the Act; and that in s 4.9(3) of the Act, namely to comply in all respects with the Commissioner’s direction. [64] The necessity for, and importance of, discipline in the conduct of the Service, in the interests of the community, is signified by the Discipline Regulation, the entire objects of which are devoted to providing for a system of “guiding, correcting, chastising and disciplining” officers, and ensuring that “appropriate standards of discipline within the Queensland Police Service are maintained”: reg 3. Importantly, the aim of ensuring that appropriate standards of discipline are maintained is not just to uphold ethical standards, but also to “promote and maintain public confidence in the Queensland Police Service”: reg 3(b)(iii). [65] The Administration Regulation, itself, contains provisions, such as reg 5, whereby the Commissioner is given disciplinary powers.7 The grounds for disciplinary action include: (a) unfitness, incompetence or inefficiency in the discharge of duties; (b) negligence, carelessness or indolence in the discharge of duties; (c) a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the commissioner; (d) a contravention of, or failure to comply with, a direction, instruction or order given by any superior officer or any other person who has authority over the officer concerned; 6 The relevant equivalent became regulation 22 of the 2016 Administration Regulations. 7 The relevant equivalent became regulation 7 of the 2016 Administration Regulations. -- 11 of 30 -- 12 (e) absence from duty except on leave or with reasonable cause; in this case, the Commissioner has the power to compel an officer to submit to a medical examination as to the officer’s mental or physical condition, or both; (f) misconduct; and (g) conviction of an indictable offence. [66] Importantly, reg 9(c) makes it a ground for disciplinary action, if an officer disobeys a direction given by the Commissioner. [67] The range of sanctions that can be imposed for a disciplinary breach is wide, from a caution or reprimand, to deduction of pay and a reduction in salary, to a reduction in rank and ultimately dismissal from the Service: reg 10.”’ [original footnotes omitted from quotation] [20] Subject to my observations in the footnotes above, I adopt this summary as reflecting the statutory regime as it existed on 9 October 2019. The Commissioner’s Direction [21] Reference also needs to be made to the Complaint Resolution Guidelines for the QPS. These Guidelines were exhibited to the affidavit of Acting Detective Chief Superintendent Tod Reid (ADCS Reid), who gave evidence in this application. It is unclear to me what status this document should be given. The evidence does not deal with whether it was promulgated by a statutory power. [22] In any event, paragraph 4.10 sets out, amongst other matters, a direction from the Police Commissioner to members of the QPS to answer questions in disciplinary investigations honestly and in good faith. Paragraph 4.10 provides as follows: “4.10 Commissioner’s direction concerning disciplinary investigation Pursuant to section 4.9 of the Police Service Administration Act 1990, all members of the police service are directed to: • Truthfully, completely and promptly answer all questions directed to them by a member responsible for conducting an enquiry or investigation on behalf of the Commissioner. • Comply with any reasonable direction to assist a member responsible for conducting an enquiry or investigation on behalf of the Commissioner. • Participate in any disciplinary proceeding honestly and in good faith. The preceding direction applies to administrative and disciplinary matters but does not apply to criminal matters. Any investigations or interviews obtained in compliance with the above direction is not admissible in criminal proceedings -- 12 of 30 -- 13 against the person subject of the direction, but can be used in subsequent discipline proceedings A member who is conducting an enquiry or investigation on behalf of the Commissioner should reinforce the Commissioner’s direction before interviewing or directing a member to assist an investigation. Suggested wording: For interview: The Commissioner has directed all members of the Service to: • Truthfully, completely and promptly answer all questions directed to them by a member responsible for conducting an enquiry or investigation on behalf of the Commissioner. Should you fail to comply with this direction, you may be liable to disciplinary action. To assist investigation: The Commissioner has directed all members of the Service to: • Comply with any reasonable direction to assist a member responsible for conducting an enquiry or investigation on behalf of the Commissioner. Should you fail to comply with this direction, you may be liable to disciplinary action. Case officers can also give other lawful directions to members of the service as part of the investigation. This would include a direction not to discuss the matter with any person other than a legal representative, Senior Human Services Officer, medical practitioner or Queensland Police Union representative, not involved in the matter.” [23] The direction which is set out above is one issued by the Commissioner of Police pursuant to a statutory power, being s 4.9 of the Police Service Administration Act 1990 (Qld). [24] The Complaint Resolution Guidelines further provides, inter alia, as follows: “5. Investigative Issues … 5.2 Criminal/Discipline Investigations … All case officers are to be cognisant of the need to silo information obtained using statutory powers from disciplinary investigations. Case officers should be aware of the legal principle that information or material obtained by utilising legislative powers conferred for one purpose cannot lawfully be used for other purposes (including discipline), unless authority is expressly provided by legislation. -- 13 of 30 -- 14 … • It is also not permitted to make derivative use of any information obtained by direction pursuant to the PSAA. For example, if a SM raises a defence during a discipline interview which leads to a discipline investigator making enquiries to negate the defence, neither the interview or the further enquiries are admissible in criminal proceedings. Both the interview and any further enquiries should be quarantined from the criminal investigation. … See the decisions of the Supreme Court and District Court of Queensland in Flori v Commissioner of Police & another [2014] QSC 284 and R v Wellington [2018] QDC for further information.” [25] Having identified and summarised the statutory discipline regime and relevant portions of the Complaint Resolution Guidelines, it is appropriate to then examine the evidence. Tod Reid [26] ADCS Reid swore an affidavit in support of the defendant’s claim of public interest immunity. He is a senior member of the Queensland Police Service, who is currently acting in the position of Operations Commander at the Ethical Standards Command (ESC). His responsibilities include internal investigations. [27] ADCS Reid described in his evidence the role of the ESC as ensuring the trust and support of the community for police by maintaining high standards of integrity and professionalism within the Queensland Police Service (QPS) via deterrence (discipline), and education systems improvement. [28] He deposed that the ESC is split into two functional groups. The first is the Integrity and Performance Group (IPG), which focuses on maintaining integrity and preventing corruption through training and systems improvement. The second is the Internal Investigations Group (IIG), which is responsible for managing the disciplinary process including the receiving and investigating of complaints, and determining what action is warranted in accordance with the Complaint Resolution Guidelines. This interlocutory application is concerned with the IIG. [29] ADCS Reid deposed to an explanation of the disciplinary investigation process. The process begins with either the IIG receiving a complaint about a QPS member (via an internal or external source), or in circumstances where concerning conduct is identified as a result of a review of QPS systems. [30] The incident is then the subject of an internal review, where IIG members ensure there is sufficient initial information and confirm that the matter is one which can be dealt with under the disciplinary process. [31] The IIG case officer may then engage in assessment inquiries, which consist of initial investigations, such as obtaining information from QPS systems or records from QPS establishments. Those inquiries may also seek a version of events or a response to -- 14 of 30 -- 15 the complaint from the officer the subject of the complaint, or from members who were witnesses to the incident. [32] The matter is then referred to the Complaint Assessment Committee to confirm that the matter ought to be treated as a disciplinary complaint and fully investigated. Where it is assessed as suitable for full investigation, the case officer must then investigate the matter to a sufficient standard to determine what conduct occurred, why the conduct occurred, and any opportunities or requirements for improvement for the involved officer, and the QPS as a whole. [33] A full investigation, depending upon the circumstances of the case, is said to usually require the case officer to interview the officer the subject of the complaint and witnesses. These interviews may be verbal interviews or may seek a response or version of events in writing. [34] Once either an assessment inquiry into a complaint, or a full investigation is complete, the case officer will then prepare a report summarising information obtained during the investigation and recommend a course of action to deal with the complaint, which may include finding the complaint not to be substantiated, imposing managerial guidance, or referring the matter to a prescribed officer to conduct disciplinary proceedings. [35] The case manager will then consider the report and the associated material to make a determination as to how the complaint will be dealt with and to refer the matter to a prescribed officer if necessary. [36] ADCS Reid deposed to the fact that, as a result of the Police Commissioner’s Direction as recorded in paragraph 4.10 of the Complaint Resolution Guidelines, members of the QPS interviewed as either a subject officer, or as witness, in a disciplinary investigation must answer the questions put to them or risk having disciplinary sanctions imposed. [37] He explains that the purpose of discipline is set out in the Complaint Resolution Guidelines, and this includes the maintenance of public confidence in the QPS, the maintenance of the self-esteem of QPS members, the maintenance of efficacy in the QPS and the protection of the reputation of the QPS by maintaining proper standards of its members. In that respect, the QPS Complaint Resolution Guidelines relevantly provides as follows: ‘1. Purpose and scope Pursuant to the Police Service Administration Act 1990 (PSAA) the Commissioner of Police is “responsible for the efficient and proper administration, management and functioning of the Police Service”, including the “discipline of members of the Service”. These policies and procedures exist to provide for fair and timely resolution of complaints and a discipline management strategy which identifies instances of unacceptable behaviour and takes swift action to correct the behaviour and prevent a repeat of the conduct primarily through management intervention strategies. … -- 15 of 30 -- 16 The purpose of discipline is to: • maintain public confidence in the Queensland Police Service (the Service); • maintain the self-esteem of members of the Service; • maintain confidence in the ability of the Service to fulfil its statutory functions; • maintain proper standards of conduct for members of the Service (by specific and general deterrence principles); • maintain the efficiency of the Service; and • protect the reputation of the Service.’ [38] ADCS Reid further deposed that in his experience, the effectiveness and efficiency of the QPS relies upon the maintenance of the public confidence, and that the complaint management process is an integral part of achieving the purposes of discipline. [39] I accept the evidence of ADCS Reid which I have summarised above. The purpose of discipline identified by him, in part by reference to the Complaint Resolution Guidelines, is importantly reflected in substance in regulation 3 of the Discipline Regulation set out in the summary I have adopted for the statutory discipline regime as it existed at the time of the interview. [40] ADCS Reid then expressed the following views and understanding at paragraphs 23 to 25 of his affidavit: “23. In my view, the ability of case officers to obtain a full and correct version of events from QPS members is crucial in determining whether there have been any shortcomings by QPS members or systems, whether there is need for improvement and whether any disciplinary action to be taken to maintain the standards of the QPS. Having access to complete and honest accounts ensures that effective remedial action can be taken either by way of guidance, disciplinary sanctions aimed at rehabilitating or ensuring fitness to act as a member of the QPS or dismissal of QPS members who are not suitable to hold their positions. This is particularly important given that QPS members have powers and responsibilities that have a significant impact on the community such as the ability to use force or access confidential sensitive information. 24. It is my understanding that the use of compulsive powers, by way of the Commissioner’s direction, to obtain the information during the directed interview for the purpose of discipline means that information can only be used for that purpose. 25. In my view, if officers were not assured that the use of information they give under compulsion was restricted to use for the purposes of discipline, then they may be less likely to be -- 16 of 30 -- 17 fully open and frank with their responses or they may choose not to answer at all which would severely impact the discipline investigation process and, as a result, the ability of the QPS to achieve the purposes of discipline.” [41] ADCS Reid went on to depose to his belief that it would be injurious to the public interest for the current documents to be produced or disclosed to any person. ADCS Reid expressed the following view at paragraph 27 of his affidavit: “27. As set out above, it is necessary for the proper maintenance of the Queensland Police Service that information obtained via directed discipline interviews be restricted to use in discipline matters or there is a risk that the discipline investigation process will be prejudiced which is against the public interest.” [42] He deposed to the fact that the documents in question record information obtained during the disciplinary interview with DS Self whilst he was under the direction of the Commissioner and therefore under a compulsion to answer the questions put to him. He deposed that in those circumstances the documents ought to be kept confidential and the release of documents in this class, for the reasons set out above, creates the real risk of severely impacting the discipline process of the QPS. [43] I granted leave to Mr Brookfield to cross-examine ADCS Reid on matters raised in paragraphs 24, 25 and 27 of the affidavit. [44] In respect of ADCS Reid’s understanding set out in paragraph 24, ADCS Reid identified in cross-examination that it came from his experience in the QPS, from the current position he held within the QPS, from the Police Service Administration Act 1990 (Qld), from various policies contained in the Complaint Resolution Guidelines, and from some legal cases. He made mention of the matter of “Wellington”. That was evidently a reference to the decision of Her Honour Judge Dick in R v Wellington [2018] QDCPR 24. This decision is referred to in the Complaint Resolution Guidelines at paragraph 5.2. [45] In respect of paragraph 25 of his affidavit, ADCS Reid was asked if it was the case that where he used the phrase “open and frank” he meant that the police officers might not be honest, and whether that was what he meant by that paragraph. The response was “in terms of – during a disciplinary interview, we have an expectation that police are giving a full and open and frank account of their version of events, yes.” [46] In relation to paragraph 27, the following exchange occurred: “My question, Mr Reid is how is it against the public interest? --- I’d argue it’s against the public interest if we don’t have police giving full and frank accounts during their disciplinary interviews, so that we can’t get to the truth of what occurred, look for opportunities to prevent that behaviour from occurring again in the future, look for opportunities to correct and guide and rehabilitate those members that have been involved in those matters, if they weren’t giving full and frank accounts about their involvement in internal disciplinary matters. -- 17 of 30 -- 18 So your Honour, I’ll let you correct me on this next question – so my last question. So what you’re saying is that the public interest here is that if the discipline process was not kept confidential within those formal interviews, that the public would lose confidence? --- I’m saying that to give the public confidence in the disciplinary system, it’s important that police tell the truth, and it’s important by telling the truth under dur – under duress and direction, that we get to the heart of what they’re ha – alleged to have been involved in, so that we can look for opportunities to prevent, correct and guide and rehabilitate those members in the future. So if we didn’t have them feeling like they needed to do that and that their matters were going to be treated in confidence, I think the whole system would fail. So the key point that you’re making is about the honesty and truthfulness of the answers given in the interview? --- And the fullness.” [47] I accept the evidence of ADCS Reid summarised above in paragraphs [40] to [46]. I will deal with the basis of that acceptance later in these reasons. Mr Brookfield [48] The plaintiff, Mr Brookfield, has also sworn an affidavit in this proceeding. That affidavit, in part, appears to contain submissions as opposed to evidence. Mr Brookfield is self-represented and no objection was taken to the form of the affidavit. [49] The affidavit, inter alia, exhibits an article by certain political journalists which comments on the report by Her Honour Judge Deborah Richards in the Commission of Inquiry into Queensland Police Service’s responses to domestic and family violence. [50] It also exhibits a document headed “The Queensland Police Service Integrity Framework” (the Framework Document). That document records that it was approved by the Police Commissioner in December 2020 and provides, in part, as follows: “The QPS is a Queensland public sector agency. In carrying out our functions ethically and with integrity this Service aspires to the Ethics Principles and Values outlined in the Public Sector Ethics Act 1994. These are stated in the Code of Conduct for the Queensland Public Service and are: 1. Integrity and impartiality. 2. Promoting the public good. 3. Commitment to the system of government. 4. Accountability and transparency. … The work of the Queensland Police Service is crucial to maintaining a safe, just and fair community. It also requires the public’s cooperation to succeed. There is a clear public expectation for police to safeguard -- 18 of 30 -- 19 the rule of law, act fairly and impartially and provide a professional and ethical service. Confidence in our organisation is directly tied to our ability to demonstrate we carry out our functions in accordance with community expectation. Accountability is therefore an essential component of policing to ensure we are answerable for our decisions and the actions we take. Our responsibilities include: • Operating within our legal and policy constraints. • Utilising public resources efficiently and effectively. • Engaging responsibly with risk. • Acting in accordance with our stated Values. • Meeting community expectations. Accountability is: (a) Being transparent, open and demonstrating moral courage. …” [51] The status of this document is unclear. The evidence does not deal with whether it was promulgated by a statutory power. [52] The affidavit of the plaintiff itself seeks to make a number of points. [53] First, reference is made to the “accountability and transparency” of the QPS. The plaintiff deposes that, on his reading of ADCS Reid’s Affidavit, it appears that the QPS is seeking to impose a limitation on transparency and that the Framework Document contains no such limitation. The plaintiff says the Framework Document does not mention a limit on transparency and the language of “accountability”, which includes being transparent, open and demonstrating moral courage. [54] Secondly, the plaintiff says that, as a result of ADCS Reid only stating that ADCS Reid’s concerns over disclosure are the potential impacts on the QPS investigating process, those concerns are therefore in conflict with the QPS Framework which refers to open and transparent policing. [55] Thirdly, the plaintiff says that, as a consequence of the defendant’s limited argument for public interest immunity, the defendant has failed to establish any grounds whatsoever that the disclosure will prejudice the public interest. The plaintiff’s affidavit goes on to state that disclosure will actually strengthen the public interest in the transparency and openness of the investigation process conducted by the QPS. [56] Fourthly, the plaintiff says that the administration of justice will be well served by the discovery and production of the recorded interview, along with documents disclosed at the formal interview, and that the public interest is best served with open and transparent policing. -- 19 of 30 -- 20 [57] The rest of Mr Brookfield’s affidavit essentially goes to why the documents sought would be directly relevant to the relief sought in respect of the allegations made in the substantive proceeding. As I have noted above, direct relevance has been conceded by the defendant in this application. Legal principles for public interest immunity [58] The underlying legal principles for public interest immunity are identified in the observations of Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 38 to 39 as follows: ‘The general rule is that the court will not order the production of a document although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However, the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer,8 as follows: “There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.” It is in all cases the duty of the court, and not the privilege of the executive government to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer, “the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it”. In such cases, once the court has decided that “to order production of the document in evidence would put the interest of the state in jeopardy”, it must decline to order production.’9 [59] These principles dictate a three-part process. First, there needs to be a consideration of whether harm may be done to the State or the public service by the production of documents, such that there is a public interest in their non-production. Secondly, there needs to be a determination as to whether there is a conflicting public interest which would be frustrated if the documents were not produced. Thirdly, if both of the first two considerations are answered in the affirmative, then consideration needs to be given to the balancing of those two interests. 8 Conway v Rimmer (1968) 1 All ER 874. 9 See also further the observations by Gibbs CJ in Alister v The Queen (1984) 154 CLR 404, particularly at 412. -- 20 of 30 -- 21 [60] In relation to the first part of the process, the applicable test is whether harm to the public interest could arise from disclosure as a matter of real possibility, as opposed to a matter of probability. This is because the incurring of the identified risk of harm is itself injurious to the public interest.10 [61] The mere confidentiality of the documents in question in a given case will not by itself lead to a finding of a public interest in their non-production. However, the presence of confidentiality in the documents may be a substantial consideration to have regard to when determining whether there is a public interest in their non- disclosure.11 [62] In relation to the third part of the process, it is relevant to note that the balancing of the competing public interests may be struck differently in a civil as opposed to a criminal proceeding. The public interest in favour of disclosure is generally stronger in criminal proceedings, where the ultimate issue is the guilt or innocence of a particular individual and where personal liberty is at issue.12 [63] In this balancing process, it may be appropriate for the Court to look at the actual documents in question. This is to be done by the Judge privately examining the material and forming a view on the probative value of the documents. This view is then factored into the test which involves the balancing of the competing public interests. [64] The categories of public interest immunity are not closed. It has been observed they may alter from time to time, whether by restriction or by extension as social conditions and social legislation develops.13 Whether harm to the public interest could arise from disclosure of the documents as a matter of real possibility [65] The documents in question here are ones which have been created within a statutory regime concerning internal discipline within the QPS. As such, the documents have the necessary connection with processes of the public service so as to fall within the concept of documents to which a relevant public interest might arise. [66] The effective and efficient operation of that disciplinary process is important to the public in terms of both the internal discipline of, and the external confidence in, the QPS. As Morrison JA aptly observed in Nugent v Stewart (Commissioner of Police) & Anor [2016] QCA 223 at [64]: “The necessity for, and the importance of, discipline in the conduct of the Service, in the interests of the community, is signified by the Discipline Regulation, the entire objects of which are devoted to providing for a system of “guiding, correcting, chastising and disciplining” officers and ensuring that “appropriate standards of 10 The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83 at [46]; and Roberts- Smith v Fairfax Media Publications Pty Ltd (No 14) [2021] FCA 552 at [15] per Abraham J. 11 Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405 at 433 per Cross LJ. 12 HT v The Queen (2019) 278 A Crim R 133 at [33]; and Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) (supra) at [16]. 13 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) (supra) at [17]. -- 21 of 30 -- 22 discipline within the Queensland Police Service are maintained”: reg 3. Importantly, the aim of ensuring that appropriate standards of discipline are maintained is not just to uphold ethical standards, but also to “promote and maintain public confidence in the Queensland Police Service”: reg 3(b)(iii).” [67] Officers within the QPS perform duties in ways that often impact on the liberty of citizens, so it is essential that the QPS be, and be seen to be, a fully disciplined body, able to perform with efficiency and probity. Essential to that outcome is the need for the QPS, through the Commissioner, to be able to probe officers as to their conduct affecting questions of discipline, and for answers to be compelled. That is the evident purpose of legislative provisions14 which have been summarised previously in these reasons. [68] Paragraph 4.10 of the Complaint Resolution Guidelines contains the Commissioner’s direction to interviewed officers to truthfully, completely and promptly answer all questions directed to them by the member responsible for conducting an enquiry or investigation on behalf of the Commissioner. Paragraph 4.10 goes on to state that “any material obtained in compliance with the above direction is not admissible in criminal proceedings against the person the subject of the direction, but can be used in subsequent disciplinary proceedings”. In doing so, paragraph 4.10 is identifying that the information is being obtained for the purpose of the disciplinary investigation, which may include disciplinary proceedings, and not for criminal proceedings. [69] This is then reinforced by paragraph 5.2 of the Complaint Resolution Guidelines which re-emphasises that the information obtained in the disciplinary hearing is to be carefully siloed; and is not to be used for derivative purposes in criminal proceedings. This derivative purposes concept includes the information being used to provide lines of inquiry in investigations in a criminal proceeding context. [70] The answers made in response to the Commissioner’s direction are not made in a public forum. They have a significant level of confidentiality attached to them, subject of course to the possible15 ability to use that information in purely disciplinary proceedings. Even though, as the plaintiff submitted, the Complaint Resolution Guidelines do not expressly state the interview is “confidential”, it is necessarily implicit from the nature of the process that it will be. Two of the important indicators of this implicit confidentiality are:- (a) the interview answers are being obtained for an identifiable statutory purpose, namely disciplinary investigations and proceedings; and (b) the interview answers are being obtained under a form of compulsion, which is accompanied by an implicit abrogation of the right to assert the privilege against self-incrimination.16 14 Nugent v Stewart (Commissioner of Police) & Anor [2016] QCA 223 at [79] per Morrison JA. Similar observations were made by McMurdo P at [3] and Mullins J at [131]. 15 Nugent v Stewart (Commissioner of Police) & Anor [2016] QCA 223 at [90] per Morrison JA. The reference to disciplinary proceedings in paragraph [90] of his Honour’s reasons may be a reference to disciplinary proceedings brought as part of the statutory discipline regime summarised previously. This suggests that the answers given in a disciplinary interview may not be admissible in a disciplinary proceeding. 16 Nugent v Stewart (Commissioner of Police) & Anor [2016] QCA 223. -- 22 of 30 -- 23 [71] Accordingly, I find that the statutory regime for disciplinary inquiries, including interviews of officers the subject of complaint, is important to achieving the purposes of effective and efficient internal discipline of the QPS and the promotion and maintenance of external public confidence in the QPS. [72] This analysis under the above heading supports the acceptance of the evidence of ADCS Reid referred to in paragraph [45] above. This includes that if officers were not assured that the use of information they gave under compulsion was restricted to use for the purposes of discipline, then they may be less likely to be fully open and frank with their responses, or they may choose not to answer at all, which would severely impact the disciplinary investigation process and, as a result, the ability for the QPS to achieve the purposes of discipline. [73] I accordingly do find that a real possibility of harm to the public interest could arise from general disclosure in civil proceedings of the content of disciplinary interviews undertaken under the statutory discipline regime, which includes acting in accordance with the Commissioner’s direction. [74] In reaching this conclusion, I have taken into account the plaintiff’s affidavit material and submissions, including those summarised previously in these reasons. [75] Specifically, I do not regard the Framework Document as dictating a different result. [76] It is true, as the plaintiff has said, that the Framework Document expressly refers to accountability and transparency. However, this is in the form of statements which are made at a very high level of abstraction. I do not take such statements as dictating that every piece of information which the QPS obtains in whatever circumstance is to be made available to the public. That would be an entirely surprising result, given the breadth and sensitivity of many of the tasks which the QPS must perform in discharging its role. It is a proposition which I do not accept. [77] The summary of the statutory regime for disciplinary matters previously set out above demonstrates the existence of a highly detailed process. It contains features which are designed to achieve the public purposes of internal discipline and external maintenance and promotion of confidence in the QPS. As part of achieving those purposes, there is a form of compulsion on the examinee to answer questions, and an abrogation of an examinee’s right to refuse to answer questions on the grounds of self-incrimination. The investigation process is undertaken with a significant degree of confidentiality, with an express recognition in the detailed Complaint Resolution Guidelines that the answers, and any information ultimately derived from those answers, will not be used in criminal proceedings. [78] The making of a generalised statement in relation to the benefit of transparency within the QPS at a high level in the Framework Document does not abrogate those more detailed and specific features which exist as part of the statutory disciplinary regime. [79] Whilst strictly unnecessary for the purpose of my rejection of the plaintiff’s argument on this point, I do note that the relevant Framework Document sought to be relied upon by the plaintiff, on its face, was only approved by the Commissioner on a date subsequent to the interview occurring with DS Self. There is nothing in that document to indicate that it was intended to have a retrospective effect in relation to -- 23 of 30 -- 24 any public immunity interest which may have existed prior to the date it was approved. [80] I also do not accept the submissions made to me by the plaintiff which were based upon the journalistic report of the Commission of Inquiry held by her Honour Judge Richards. The submissions were to the effect that the report showed that there was a finding in the Inquiry of the existence of a view that senior leadership in the Service lacked integrity and there was a pervasive culture of fear and silence in the organisation. The submission was then to the effect that the true public interest lay in the transparency of disciplinary interviews. [81] Those submissions by the plaintiff fail to have regard to the statutory discipline regime and its identified statutory purposes. [82] That there may be failings within the QPS which are the subject of findings in the Report does not detract from the structure and purpose of the statutory discipline regime.17 [83] It is possible that there may be future statutory reform of policing within Queensland, including the statutory discipline regime, as a result of the Report delivered by her Honour Judge Richards. However, that is a matter for the legislature to consider at some future time. It does not speak to the statutory regime which existed as a matter of fact in 2019 and the important purposes for discipline which that statutory discipline regime was directed to. [84] Finally, I also reject the submissions made by the plaintiff, to the effect that in this case I should not find that there was a public interest to be protected because the individual process, as it related to the allegations in this proceeding, had lost credibility. In putting forward those submissions, the plaintiff took me to a variety of material contained in the exhibits to his affidavit. This included various transcripts and portions of the “Internal Investigation Group Assessment Inquiries Running Log”. [85] This is an interlocutory application. As I identified to the plaintiff, who is a self- represented litigant, such an application is not the occasion for the Court to make final findings on facts which are at the heart of the ultimate issues in this proceeding. I do not regard this material as being relevant to answering the first question of the three- part test. Even if I were wrong on the relevance of this material to the first question, there was nothing in the material I was taken to by the plaintiff which altered my view that the first question of the test should be answered in the affirmative. The material did not satisfy me that the individual disciplinary process had somehow lost credibility. [86] I am satisfied and find that the harm to the public interest could arise from disclosure of the two documents as a matter of real possibility. [87] I note the conclusion I have reached is consistent with the reasoning of Farr SC DCJ in Commissioner of Police v Coker [2019] QDCPR 3 and Bennett J of the Family Court of Australia in Du Pont and Unwin [2014] FamCA 1003. In the former decision, Judge Farr SC was concerned with the same regime relevant to this 17 The actual Report of Her Honour Judge Richards was not put before me by the plaintiff. -- 24 of 30 -- 25 application. In the latter of those two decisions, Bennett J was dealing with a somewhat similar police disciplinary regime in Victoria. [88] In paragraph [86] of Du Pont, Bennett J expressed the view that the release of documents generated as part of the Victorian Police disciplinary process, which had then been produced under a subpoena in the Family Court, would be highly prejudicial to the ability of the Victorian police force to properly receive and investigate complaints against police members. Whether there is a conflicting public interest [89] Prima facie, there is a conflicting public interest in this case. Relevantly, that is the proper administration of justice. Rule 211 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) imposes a disclosure duty on each party to the proceeding in respect of documents which are directly relevant. This is a process which includes compulsion. A failure to make disclosure exposes a party to, inter alia, contempt proceedings and adverse cost orders.18 [90] The exclusion of access to these documents would prima facie frustrate the public interest: (a) in litigants having access to documents in the power or possession of the other party which are directly relevant to matters in issue in the proceeding; and (b) in the Courts having access to relevant evidence which litigants may wish to adduce.19 [91] The defendants raise a novel submission to seek to displace the prima facie position. It says that the prima facie public interest is not at risk of being frustrated because the documents should not be produced for quite separate reasons. The substratum for this submission is founded on two bases. [92] The first basis is founded on the principle discussed in Flori v Commissioner of Police [2014] QSC 284, particularly at [21]-[24] and [37]-[41] per Atkinson J. [93] In Flori, her Honour was considering the subsequent proposed use by the QPS in discipline proceedings, of evidence which had been seized by the QPS on the execution of a warrant which had previously been obtained for the investigation of certain criminal offences. As part of the considerations, her Honour referred to paragraph [305] of ASIC v Rich (2005) 220 ALR 324, as follows: “[305] The constraint upon use of the seized materials as evidence in a civil proceeding is not itself an expressed statutory constraint. It is, as I have shown, an implied limitation emerging out of the structure and purposes of the search warrant legislation, combined with the general proposition that if a power is conferred for a particular purpose it is limited by the purpose for which the power is conferred ...” [94] The Victorian Court of Appeal recently stated the principle in this way in McLean v Racing Victoria Limited & Anor [2020] VSCA 234: 18 r 225(1)(b) and (c) of the Uniform Civil Procedure Rules 1999 (Qld). 19 See ASIC v P Dawson Nominees Pty Ltd (2008) 247 ALR 646 at [32] per the Full Federal Court. -- 25 of 30 -- 26 ‘[68] Brennan J held that: “[a] statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which information when obtained can be used or disclosed.’ As a corollary, the statute imposes on the person who obtains the information a duty not to disclose it except for the relevant purpose. The statutory duty of confidence reflects the purpose for which the power is conferred. It is imposed by statute, not equity, and does not depend on the information attracting qualities of confidence that would support a suit in equity. However, the equitable remedy of injunction is available to enforce a statutory duty against a public authority.’20 [95] The second basis was founded on the fact that there was compulsion to participate in the interview and answer questions, accompanied by an abrogation of the right against self-incrimination. The submission was that this engaged the principles discussed in R v Leach [2019] 1 Qd R 459, particularly at [58] to [60] by Sofronoff P, with whom Philippides JA agreed. The President stated: “[58] First, evidence obtained by means of a statutory power to compel the giving of answers, under a statute that abrogates the privilege against self- incrimination, from a person who has not been charged, and which is evidence that, upon the person’s being charged, would disclose defences or explanations of transactions by the accused which he or she may raise at a trial, and possibly evidence or information that would tend to show that documents or transactions, apparently regular on their face, in fact tend to support the charges, ought not be disclosed to a prosecutor and cannot be used by a prosecutor against the examinee. [59] Second, the reason why such material ought not be disclosed, is that its use would contravene what Hayne, Bell and Kiefel JJ were later to identify in X7 as the “fundamental principle”. [60] Third, while in X7 and in Seller the Act expressly prohibited the use of material as evidence, it was the common law which prohibited use of the material at all by the prosecutor.” [96] Where this second principle is in play in a subsequent criminal proceeding because there has been access by the prosecution to such material, one form of relief that may be granted is a permanent stay of the criminal proceedings if there is no other way in which the unfairness or defect can be remedied. The matter of R v Wellington [2018] QDCPR 24 is an example of such a proceeding. Another form of relief may be to order a retrial, if the use of the disclosed material (directly or derivatively) can be precluded. An example of such a proceeding was R v Sellers (2015) 89 NSWLR 155.21 In R v Leach [2019] 1 Qd R 459 at [53] Sofronoff P in his Honour’s examination of the decision in R v Sellers (2015) 89 NSWLR 155, referred to “other means by which improper use might be prevented, including by a stay, prohibition, injunction or by refusing to admit evidence.” 20 The footnotes from this extract from McLean v Racing Victoria Limited [2020] VSCA 234 have been omitted. However, the quote from Brennan J was from the decision of Johns v ASC (1993) 178 CLR 408 at 424. That statement was made in circumstances where the High Court was dealing with transcripts of an oral examination. 21 See R v Leach [2019] 1 Qd R 459 at [54] and [55]. -- 26 of 30 -- 27 [97] The reliance on both bases in this case may be relevant to the defendant’s argument. The Victorian Court of Appeal recently observed that there is not a precise analogue with a power to seize tangible things under a search warrant, as compared with compulsion of testimony in circumstances where there is no abrogation of the right against self-incrimination. In McLean v Racing Victoria Limited [2020] VSCA 234, the Court stated as follows: “[69] In Johns, the more specific application of the general principle concerned a power to obtain information by oral examination of a witness. Such a power is not a precise analogue with a power to seize tangible things. The law has not generally treated the seizure of documents and the compulsion of testimony in exactly the same way. A person is under no obligation to talk to police or investigating authorities and may remain silent. Even where under compulsion, the privilege against self-incrimination subsists unless unequivocally abrogated. On the other hand, in the context of resistance to the seizure of documents, the primary interest protected is privacy…” [98] Here the defendant identifies that there is a form of compulsion in the generation of this material for a specific statutory purpose, being for use in a disciplinary investigation. In addition, the evidence obtained under compulsion is also accompanied by the abrogation of the right against self-incrimination. [99] Accordingly, it is submitted that there is an implied limitation emerging out of the statutory scheme and by the engagement of the “fundamental principle” of common law, which restricts the answers from being used for any other purpose other than a disciplinary purpose. The submission continues to the effect that this effectively negates entirely the prima facie countervailing public interest identified above. [100] I requested Counsel for the defendant to identify any authority to support the proposition that the second limb of the public interest immunity test is automatically to be answered in the negative because of the presence of these factors. Counsel for the defendant identified that they had not located any authority for or against the submission as articulated. [101] I accept that just because a submission is novel, does not mean that it is not correct. [102] Ultimately, because of how I deal with the third part of the three-stage process22 it is strictly unnecessary for me to reach a concluded view on this novel argument. However, I will make some observations. [103] First, the two bases set out above are derived from sets of principles which are independent from public interest immunity. To the extent that either or both principles would justify the non-disclosure of the two documents in question, that would ordinarily be by way of an application of those principles in their own right in a given case. 22 I have proceeded in the third part of the process on the basis that it is assumed that the first two parts of the process are answered in the affirmative and that the prima facie countervailing public interest is operative. -- 27 of 30 -- 28 [104] Secondly, the focus of this application was always public interest immunity. If the true focus of the application was to be the discrete operation of these independent principles, then those principles ought to have been articulated as original objections to compliance with the disclosure duty. This would have brought into clear focus the need to articulate the relief necessary to give effect to that restraint. In the case of a duty of disclosure this could have been done by seeking relief in the form of an order relieving the defendant from the duty to disclose those documents (or in the case of the second document, the redacted portions).23 [105] No such relief was identified or sought. [106] Until that substantive relief is ultimately granted, the prima facie countervailing public interest in the administration of justice is one which does exist and has not been neutralised. I did not understand the defendant’s submissions to be that these principles engaged r 239 of the UCPR. [107] Thirdly, my provisional view is that there appears to be force in the defendant’s submissions that as a consequence of the information being compelled for a specific statutory purpose and of the abrogation of the right against self-incrimination, there would be a basis to seek to constrain production of the documents in the hands of the defendant. [108] The effect of this broad abrogation under the statutory discipline regime is that any interview takes place against a background where there is no bright line identifying where the interviewee may have wished to have asserted the privilege. This can be contrasted to examinations undertaken pursuant to s 596A and s 596B of the Corporations Act 2001 (Cth) (‘Corporations Act’). By the combination of s 597(12) and s597(12A) of the Corporations Act there is a bright line between specific answers which cannot then be admissible for criminal and penalty proceedings and other answers which do not have this constraint. [109] Further, based on the redacted “Internal Investigations Group Assessment Inquiries Running Log”, specifically by reference to the content of the “Allegations” section on page 1 of 1824 and the “Other Allegations” section on page 2 of 18, it can be seen that the subject matter of the complaints made by the plaintiff for disciplinary investigation are directly related to certain of the subject matters that the plaintiff alleges in the Amended Statement of Claim will, on his case, support very serious findings. Such findings, if made, could lead to a consideration by authorities of criminal charges. In making this observation, I should record clearly that these are merely allegations at this point in time and the defendant disputes them all in substance. [110] Nonetheless, the release of the documents in such circumstances would put that information from the interview potentially into the public domain during the trial process. Whilst one answer might be that such documents could be excluded as evidence in any subsequent criminal proceeding (if such an event were to arise), it would still carry the risk of providing possible and unintended derivative use to prosecutors by providing lines of inquiry, in circumstances where that derivative use might go undetected. This would tend to support that a safer option would be the 23 See r 224(1) and (2)(d) of the UCPR. 24 This is exhibited to the material of the plaintiff. -- 28 of 30 -- 29 grant of the relief of the duty of disclosure for the two documents. Again, I should record clearly that no submissions were made on these two principles by the defendant based on the actual content of the interview. My discussion on these two principles are equally on the basis that I have had no regard to the content of the interview. [111] Fourthly, whilst the defendant had not sought relief from the duty of disclosure (or indeed any other positive relief) for the production of these two documents based on these principles, the existence and substance of the two principles were raised in the written submissions of the defendant and were the subject of oral argument at the hearing of the application, albeit it was not until the oral argument that it became readily apparent that the contention was that the principles were said to be related to the second part of the three-part process.25 [112] Given the canvassing of the principles in argument and the fact that they concerned the administration of justice, at least in terms of DS Self’s rights deriving in part from the “fundamental principal” as discussed, the granting of the relief against disclosure is something the Court would have entertained if necessary. That would have precluded disclosure, regardless of the public interest immunity privilege. [113] Finally, even if I were incorrect on this provisional view, I observe that the interview being for a specific statutory purpose, and the recognition that it occurred under compulsion and in circumstances where the privilege against self-incrimination was abrogated, are relevant in answering the first question of the three-part process. Those matters support the confidential nature of the interview process and also emphasise the importance attached to the public purpose which is identified within the statutory discipline regime itself. Balancing of competing public interests [114] In this case, I regard the public interest identified above under the first part of the test to be a very important one. The general disclosure of disciplinary interviews has the real possibility of seriously undermining that public interest and thereby harming it. The disclosure of these interview documents would be highly prejudicial to the QPS’s disciplinary regime and consequently the purposes of internal discipline of QPS and external confidence in the QPS. [115] Against this consideration, I must weigh the countervailing public interest of the administration of justice which I assume is present for the purposes of this question. Part of that balancing process includes in the present case an assessment of the probative value of the documents for the substantive proceeding and whether the administration of justice would be frustrated or impaired if I do not allow the production of the documents. [116] I formed the view that it was appropriate to view the documents for the purpose of the balancing processes. Both parties consented to my doing so. I have privately listened to the recording contained in the first document and read the redacted portions of the second document. 25 Transcript 1-57 at line 13 -- 29 of 30 -- 30 [117] In terms of this last assessment, it should be acknowledged that not every document which is directly relevant to a proceeding is likely to have significant probative value, in the sense of evidentiary value. [118] Having reviewed all of the allegations made in the pleadings, I consider that the evidentiary value, particularly to the plaintiff, is likely to be small. This is both in terms of content as direct evidence and content as may assist with lines of inquiry. I am satisfied that the non-disclosure will not materially frustrate or impair the administration of justice. [119] In all the circumstances, I have formed the view and find that the real harm which would be occasioned by requiring the disclosure of the two documents far outweighs any benefit which would flow from their being disclosed to the plaintiff in this proceeding. [120] For the above reasons, I am satisfied that there is a proper claim for public interest immunity and the application ought to be dismissed. -- 30 of 30 --