Commissioner of Police v Coker [2019] QDCPR 3

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of Police v Coker [2019] QDCPR 3 PARTIES: COMMISSIONER OF POLICE (Applicant) v DANE ADAM COKER (Respondent) FILE NO/S: DC No 1769 of 2018 DIVISION: Criminal PROCEEDING: Pre-Trial Hearing DELIVERED ON: 1 February 2019 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 1 February 2019 JUDGE: Farr SC DCJ ORDER: 1. Application to set aside subpoena is upheld. CATCHWORDS: CRIMINAL LAW – EVIDENCE – RELEVANCE – GENERALLY – where the respondent has issued a subpoena for documents to be provided by the Queensland Police Service – where the applicant submits that the category of document sought is protected by public interest immunity – where the applicant submits the documents are not relevant – whether the documents subpoenaed would serve any legitimate forensic purpose and whether there is any competing public interest. Conway v Rimmer [1968] UKHL 2, followed. Dupont & Unwin [2014] FamCA 1003, followed. Sankey v Whitlam [1978] 142 CLR 1, followed. Fried and Others v The National Australia Bank and Others [2000] FCA 911, followed. COUNSEL: J Rodriguez for the Crown M Nicolson for the applicant K Bryson for the respondent SOLICITORS: Director of Public Prosecutions (Qld) for the Crown Commissioner of Police for the applicant Fisher Dore Lawyers for the respondent -- 1 of 5 -- HIS HONOUR: This is an application to set aside a subpoena which was issued by the respondent. The application is brought by the recipient of the subpoena, the Commissioner of the Queensland Police Service. The subpoena seeks disclosure of the Queensland Police Service personnel file, including the disciplinary file for the 5 complainant in the criminal trial, Michael Terrence Franks, who was, as I understand it, a serving Queensland Police officer. The subpoenaed material has been narrowed to a document entitled ‘QP466’ and forms of that nature which commence complaints or, where applicable, a copy of a relevant referral, and any and all notes from any investigation regarding Michael Franks and copies of any final reports. 10 This matter is set down for trial to commence Tuesday next week, as I understand it, so it is necessary for a decision to be made today. The trial, to which this matter relates, involves a charge of serious assault of a police officer causing bodily harm. The relevant facts which I take from the respondent’s 15 outline are these: at the relevant time, the complainant was an off-duty police officer. It is alleged he was engaging in building a fence with his two stepsons on a semi-rural property owned by a family friend. The defendant to the criminal trial, a Mr Coker, and another man, a Mr Tindall, had been visiting friends on the adjoining property. At approximately 9.20 am, the complainant was approached by his son, 20 who told him he had seen a man with a gun. The complainant walked towards the middle of the rear yard and alleges that he observed a man holding a black handgun in his right hand. He says in his material – in his statement, as I understand it, that that man was walking from the eastern side of the fence boundary toward him, heading west. 25 The complainant approached that male and the two had a conversation. The complainant alleges that he continued to observe that male person holding a firearm. The complainant then lit a cigarette, offered the male person a cigarette and the two continued to converse for about one minute and it’s alleged that the male person then 30 placed the firearm into his waistband. The complainant then asked if the male had come from next door. It’s alleged that the male person then became agitated and he turned away from the complainant and pointed to the direction from which he had come and at that time, the complainant tackled the male person to the ground and restrained him. The complainant alleges that he produced his police identification 35 and informed that male person that he was under arrest. He then instructed his two adult sons to sit on that person’s back and legs and to not let him move, and the complainant then contacted the Maroochydore communications section of the Queensland Police Service and requested that a crew attend. 40 Whilst he was on the phone making that request, the complainant alleges that he observed the defendant, Mr Coker, climb over the fence from the direction that the first male had approached from. Mr Coker then approached the complainant and asked what he was doing. It’s alleged that they were about three to four metres from where the first male was being restrained by the complainant’s two adult sons at that 45 stage. An exchange took place between the complainant and the defendant, at which time the defendant indicated he was looking for his friend, who he observed was being restrained on the -- 2 of 5 -- __________________________________________________________________________________ 3 RULING ground. At that time, that person on the ground, Mr Tindall, indicated that he was in pain and couldn’t breathe. The complainant alleges that he identified himself as a police officer. During the exchange, Mr Coker indicated he wanted to check to ensure that his friend was okay. 5 The complainant told him to leave the property immediately or he too would be arrested. The complainant then alleges that the defendant took a fighting stance and the complainant then struck him, that is, struck Mr Coker by punching him to the face with a clenched fist. It is alleged that this was a pre-emptive strike. The two then exchanged blows with the complainant instructing one of his stepsons to assist 10 him in fighting the defendant, Mr Coker, and Mr Coker was then restrained until other police arrived. The respondent submits that the subpoenaed material would or could have a legitimate forensic purpose, being, one, that the complainant stated in his statement 15 that the first physical contact between himself and the defendant was the complainant punching the defendant in the face. Therefore, the complainant’s credibility and reliability is of great significance. And, two, the issue of the complainant acting in the execution of his duty as a police officer when he punched the defendant would be an issue at the trial. I understand that there is no dispute that Mr Franks threw the 20 first punch as alleged in his statement. As confirmed by counsel for Mr Coker, the issues at trial, of significance, will be whether the jury is satisfied beyond reasonable doubt that at the relevant time, the complainant was acting in the execution of his duty as a police officer and whether 25 the jury is satisfied beyond reasonable doubt that the defendant was not acting in self-defence or in the defence of another or under provocation. Now, the applicant has submitted that the request pursuant to the subpoena is too broad and oppressive and/or not relevant to the issues at the trial and/or that considerations of public interest immunity apply and should result in the subpoena being set aside. I note that 30 in partial response to the subpoena, a summary of that which is sought has been provided to the respondent and is attached to an affidavit on the court file. I should say that I have now had the opportunity to review the entirety of the subpoenaed material and I can confirm that the summary that is attached to the affidavit of that officer is accurate. 35 Insofar as the applicant’s submission that the subpoenaed material is broad and oppressive, I perceive that that is a submission that’s not really been persisted with. In any event, it seems to me to be without merit and it’s not really been pushed by counsel for the applicant and I won’t deal with that beyond – that topic beyond those 40 comments. I turn then to the issue of relevance, though. The material that is publicly before the court reveals that during his service as a police officer, Mr Franks has been the subject of seven complaints, one of which dated back to a time before he was a police officer, some 18 to 19 years ago. That matter, in fact, did not involve an allegation of excessive force or violence and has no relevance, whatsoever, to the 45 matter at hand. The other complaints were investigated and found to be -- 3 of 5 -- 20190201/BSD/DC/28/Farr DCJ __________________________________________________________________________________ 4 RULING unsubstantiated. I note that they date to – five of the six of them date to a period between 2008 to 2011, with one, the most recent, being in 2015. The summary which has been provided does not suggest that Mr Franks had engaged in pre-emptive strikes towards members of the public in any of those matters. The 5 respondent submits, however, that the material might provide a basis for cross- examination and submission that Mr Franks has previously engaged in a course of conduct that has again occurred on this occasion. The evidentiary basis for such a submission appears to me to be non-existent, though. Furthermore, given that each of the complaints have been found after investigation to be unsubstantiated, how 10 evidence of the complaints themselves could adversely impact on Mr Franks’ credibility is mysterious to me. Upon the material before me and upon viewing the subpoenaed material, given the nature of the evidence and the allegations and the criminal trial to be heard next 15 week, I’m of the view that the subpoenaed material is of no relevance to the issues in that trial. Furthermore, for the reasons advanced in the applicant’s outline of submissions, it is my view that the material sought would fall within the category of documents that are protected by public interest immunity. In that regard, I have read the confidential affidavit of Assistant Commissioner, Sharon Cowden. The 20 foundation or common law statement of principle on public interest immunity is found in the High Court decision of Sankey v Whitlam [1978] 142 CLR 1, where Acting Chief Justice Gibbs said, at 38: The general rule is that the court will not order the production of a 25 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 [1968] UKHL 2 as 30 follows: There is the public interest that harm should 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 should not be 35 frustrated by the withholding of documents which must be produced, if justice is to be done. His Honour continued: 40 It is in all cases that duty of 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 45 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. -- 4 of 5 -- The common law doctrine of public interest immunity protects compulsory disclosure of documents or information where disclosure would be injurious to the public interest. Assessing whether a claim of public interest immunity ought to be upheld requires this court to weigh the public interest that would be harmed by the production of the evidence against the frustration or impairment of the administration 5 of justice if the evidence was withheld. Before the balancing exercise is undertaken, the parties seeking productions of the documents must demonstrate the relevance of the documents or categories of documents in question. It only becomes necessary to consider the claim of public interest immunity once the party seeking production establishes relevance. 10 If a claim of public interest immunity is made, then, if relevance is established, the court would – must embark upon a three-stage process, where it must firstly determine whether there is a public interest in the non-disclosure of the information in question; secondly, determine whether there is a public interest in the disclosure 15 of the information in question; and, thirdly, balance the public interest in disclosure against the public interest in non-disclosure to decide whether the information should be disclosed. And there is no dispute that the police service and police documents fall within the category of document that can be protected under public interest immunity considerations. And I refer to Conway v Rimmer [1968] UKHL 2 in that 20 regard. As I’ve indicated, it seems to me that public interest immunity would have application in this matter, even if the documents in question were in my view relevant to the issues in the trial. The information that is provided in the disciplinary 25 file of the subject officer is subject to privilege. And, as was identified in the decision of Dupont & Unwin [2014] FamCA 1003, the use of any information obtained through a discipline process should be considered confidential and not used for any purpose other than an investigation into the conduct of the subject officer. I have no doubt that the release of such confidential information would result in a loss 30 of confidence in terms of the internal complaint process within the police service, and the confidential nature in which discipline proceedings are undertaken would be jeopardised and perhaps not be able to be maintained. In fact, in Dupont it was stated that any release of information regarding the investigation of complaints against police officers would be against the public interest. 35 The applicant has, in paragraph 50 of his written outline, provided a quotation from the case of Fried and Others v The National Australia Bank and Others [2000] FCA 911 which also appears apposite to this matter insofar of the determination of public interest is concerned. I will not repeat that though in the course of these ex tempore 40 remarks. It follows that I am of the opinion that the subpoenaed material would not serve any legitimate forensic purpose in the case and that there is no competing public interest in the documents being provided to the respondent. By that I mean that the failure to provide the respondent with the documents sought would not have any adverse impact on his ability to have the charge against him tried fairly and 45 justly. And accordingly the application to set aside the subpoena is upheld. -- 5 of 5 --