Criminal Justice Commission v Collins [1994] QCA 10

IN THE COURT OF APPEAL [1994] QCA 010 SUPREME COURT OF QUEENSLAND Appeal No. 33 of 1993 Brisbane Before The Chief Justice Mr Justice McPherson Mr Justice Pincus [C.J.C. v. Collins] CRIMINAL JUSTICE COMMISSION (Applicant) v. SIMON MICHAEL COLLINS (Respondent) Ex parte: CRIMINAL JUSTICE COMMISSION JOINT REASONS FOR JUDGMENT - THE CHIEF JUSTICE and MR JUSTICE McPHERSON Judgment delivered 18/2/94 This is an appeal by order to show cause why a certain decision made by a stipendiary magistrate at Southport on 28 January 1993 should not be reviewed. The magistrate had been asked to decide whether a summons for the production of documents addressed to the chairman of the Criminal Justice Commission should be enforced -- 1 of 15 -- 2 notwithstanding objection to production made by counsel appearing on behalf of the Commission. The subpoena had been issued in connection with two charges preferred against the respondent by a complainant Police Constable Terrence Goldsworthy. The respondent was charged that on an occasion in October 1992 he used obscene language in a public place and resisted the police constable in the execution of his duty. When the two charges were called on for hearing, counsel for the Commission appeared and argued that the documents referred to in the subpoena issued on the day before were immune from production. Before the magistrate gave his ruling on the claim to immunity from production the following facts were sufficiently made to appear. On the date to which the two charges against the respondent related and following the episode which was the subject of those charges, the respondent made a complaint to the Criminal Justice Commission against certain police officers including Constable Goldsworthy. This complaint concerned the events the subject of the charges. There is provision in the Criminal Justice Act 1989 in s. 2.28 for the making of complaints "concerning conduct that is perceived as, or may be, official misconduct". Such complaints are handled by a particular section of the Commission. The Official Misconduct Division is constituted as an investigative unit within the Commission and it has the function amongst other things of investigating cases of alleged or suspected misconduct by members of the Police Force: see s. 2.20(2)(d) of the Act. The Commission through its investigative arm commenced an investigation of the respondent's complaint in this case but the magistrate was informed that the investigation was suspended pending the outcome of the Magistrate's Court proceedings against the respondent in respect of the two matters charged against him. However, before the investigation was suspended and as part of that process the Commission through its officers conducted interviews with Constable Goldsworthy concerning the respondent's complaint against him. Those interviews had been tape- recorded. Although the terms of the respondent's summons for production in this case were rather widely drawn it was accepted and the magistrate was informed that the respondent required -- 2 of 15 -- 3 production only of the tape-recordings of the interviews with Constable Goldsworthy. The Commission's objections to production of the tape-recordings were made on two grounds: a public interest immunity said to operate in the Commission's favour and an alleged absence of legitimate forensic purpose on the respondent's part in his request for production. After hearing argument from both sides the magistrate made the order which is now challenged, deciding that the Commission's grounds of objection should be rejected and requiring that the tapes be produced to him. It seems clear enough that the magistrate was intending to rule that the tapes should be made available also for inspection and use by the respondent but on its being intimated that the Commission desired to challenge this ruling the matter seems to have stopped below with the hearing of the charges adjourned, the respondent not yet acquainted with the contents of the tapes and the magistrate himself not having heard the tapes played. The objection to production was made before the magistrate on broad grounds. First of all it was said that the tapes fell within a broad class of documents protected against production on grounds of public interest, this class being said to include all material gathered by the Commission from witnesses in the course of investigating complaints of misconduct and the details of the complaints themselves. It was not said that these tapes contained material raising special public interest concerns beyond those present in other witnesses' statements. The magistrate was, in effect, invited to determine the matter of the immunity claim on the basis that the material obtained by the Commission in its interviews of Constable Goldsworthy merely recorded the constable's version of the events which led to his preferring the two charges against the respondent. Further, although the respondent was denying the two charges and wished to defend himself against them, on behalf of the Commission the contention was made to the magistrate that the respondent could have no legitimate forensic purpose in seeking access to the tapes assumed to contain Constable Goldsworthy's version because he did not know what was on the tapes and could not know whether the contents could assist him in any way in meeting the charges. The inference was said to be that the respondent -- 3 of 15 -- 4 was simply fishing and speculating that something on the tapes might conceivably assist him. When the Commission's argument was presented on appeal some fresh attempt was made to challenge the ruling made by the magistrate on the grounds of both public interest immunity and absence of legitimate forensic purpose but, in the end, counsel appearing for the Commission was content not to press this second point. Considering that the respondent wished to defend himself against the two charges and was seeking access to the contents of the tapes which were accepted as containing Constable Goldsworthy's statement of the substance of the two charges recorded at an earlier time, the decision of the Commission not to persist in arguing absence of legitimate forensic purpose is understandable. The defence could legitimately desire to be made aware of the complainant's earlier statement on the subject matter of the charges and it should not be regarded as disentitled to access to that information for the purpose of conducting the defence: cf. R. v. Kingston [1986] 2 Qd. R. 114 esp. at 127, 128. On the other point argued, namely the alleged public interest immunity, there was also some shift by both sides in the way it was put on appeal as compared with the way it was argued below. In distinct contrast with the arguments presented to the magistrate, some common ground emerged in the parties' submissions to this Court. Below, the argument for the Commission was, in effect, that all evidence which its investigative unit collected in the course of investigating official misconduct allegations was, on public policy grounds, protected from disclosure. It was said that otherwise the Commission's functioning would be impaired, that persons with knowledge of matters under investigation would be less likely to come forward and, if they did, would be less likely to candidly reveal what they knew if their identity and their disclosures were not protected. It may be accepted that statutory bodies with functions like those of this Commission must have some necessary degree of immunity if they are to function as intended, but, when a claim is made by such bodies for protection from the ordinary processes of the courts and the claim is disputed it is the courts who will make the necessary decision. They will do so by considering the -- 4 of 15 -- 5 terms of relevant constituent statutes and by giving attention to relevant public policy considerations. The court's decision will involve a balancing exercise once it has been decided that a public policy entitlement to protection exists. At this point the policy need for protection of the due functioning of the body's process will be balanced against the conflicting need to ensure that the demands of justice are served with protection offered to the individual rights involved. This balancing exercise has been described as a two stage process. At the first stage the concern is to determine whether a valid claim to public policy immunity arises by reason of the intended statutory function of the body on whom the demand for disclosure is made and then, in the particular circumstances of the case, there follows a weighing of the relative strength of that need and the competing need for reasons of justice to give access to the information which is sought: Sankey v. Whitlam (1978) 142 C.L.R. 1; Alister v. The Queen (1984) 154 C.L.R. 404. Even Cabinet documents are not nowadays regarded as absolutely immune from disclosure and claims for their production can involve the need to undertake a balancing exercise: The Commonwealth v. Northern Land Council (1993) 67 A.L.J.R. 405. The exercise which the examining court must undertake reflects the fact that claims to immunity are not automatically acceded to, but will be made subject to judicial assessment. It will be necessary for the body claiming immunity from disclosure to demonstrate the need for protection which its statutory function requires and establish the strength of that need in the particular case: cf. Mason J. in Sankey v. Whitlam (supra) at 96. In the present case, the argument for the Commission below was essentially based on the very broad proposition that all of the information collected by the Commission in its investigations of alleged misconduct was immune from disclosure. The Commission's arguments conceded nothing to the respondent and the pressures of the situation in which he found himself contesting the two charges brought against him. The principal sections of the Criminal Justice Act 1989 referred to in support of the Commission's argument were ss. 1.3(a)(v) and 2.15 (the Commission's obligation to investigate -- 5 of 15 -- 6 complaints of official misconduct), ss. 2.12(1)(a) and s. 2.20(2)(d) (imposing upon the Official Misconduct Division an investigative obligation) and ss. 2.24(2)(f) and 2.29(5) (under which findings of prima facie cases of misconduct go to the Commission's Chairman who may, in cases involving police officers, refer the matter to an appropriate officer for the taking of disciplinary action). Official misconduct generally is defined by s. 2.22 and such misconduct in the case of police officers is specially dealt with by s. 2.23. In connection with the statement taken from Constable Goldsworthy and tape-recorded in the course of the investigation by the Official Misconduct Division reference was also made to the provisions of the Police Service Administration Act 1990 and the Police Service Discipline Regulations of 1990 whereunder a police officer in the situation of Constable Goldsworthy was obliged, or could as a result of a direction given by a superior officer become obliged, to provide a statement of his knowledge of relevant events to the Commission's Misconduct Division. No information of the detailed contents of the statement supplied by Goldsworthy has been conveyed to the court and there is no reason to think that the fact of its having been supplied in response to his duty as a police officer should necessarily affect the way in which the claim to immunity should be treated or make the relevant considerations any different from those which would apply to any prior statement of a police witness appearing in an ordinary criminal case. While it may be accepted that provisions of the kind found in the Criminal Justice Act can be taken as establishing some prima facie claim to immunity from obligations of disclosure on public interest grounds they do not, without more, demonstrate how that claim for immunity should be dealt with when faced with a competing claim for access to information by someone in the position of the respondent. The magistrate was not asked by counsel for the Commission (or, indeed, the respondent) to listen to the tapes if he was not disposed to give automatic effect to the claim for immunity that is simply because it was made. Further, he was not provided by counsel for the Commission with any -- 6 of 15 -- 7 detail of the matters dealt with on the tapes. In fairness to the Magistrate it has to be said that he was, in effect, invited to determine the immunity claim simply on the basis of the statutory provisions and on the assumption that the tapes could be taken as containing no more than Constable Goldsworthy's version of the events involved in the two charges against the respondent. No mention was made of any sensitive or particularly confidential information which might have been recorded upon the tapes. It is understandable that the respondent in conducting his defence to the two charges and challenging, as he did, Constable Goldsworthy's version of events which presumably would be led to prove the charges against him would be anxious to have access to that officer's version in the form in which it was recorded at an earlier time: cf. R. v. Kingston (supra). Neither the prosecutor nor the constable raised any objection to the respondent's being given access to the tapes. The reality which the Commission's argument below did not recognise is that there is not a single broad class which will helpfully embrace all of the documents recording information collected in the course of the Commission's investigations. The claim made by the Commission below on a bare "class" basis regardless of contents, involved a certain risk for the Commission as to the possible outcome of the claim. The distinction between claims for immunity of documents on a "class" as opposed to a "contents" basis involves the making of a rough distinction: see The Commonwealth v. Northern Land Council (supra) at 407, 2nd col. C. The information collected by the Official Misconduct Division of the Commission will not all be subject in the same degree to considerations of unvarying strength whatever the circumstances in which the claim for immunity from production is made. Towards one end of the spectrum it might be thought that there will be statements obtained from known police witnesses in a pending prosecution brought against the person seeking the information when the statements contain no confidential material or collateral information. Nearer the other end of the spectrum would be placed statements obtained confidentially from unidentified informants especially when the one who seeks the information is neither the instigator of the complaint of -- 7 of 15 -- 8 misconduct nor the subject of it and is not concerned to defend himself against proceedings of a criminal nature. In the present case the magistrate was placed under pressure simply to make the best decision open in circumstances where he was given no detailed outline of the contents of the tapes and was not clearly informed by the parties that they wished him to listen to the tapes for the purpose of carrying out the necessary balancing exercise. Notwithstanding this deficiency in the way in which the parties conducted the matter below, the positions eventually taken by the parties on the hearing of the appeal have changed considerably with counsel for the Commission confining himself to an argument that the magistrate should have undertaken a balancing exercise and counsel for the respondent announcing that he would not oppose an order remitting the matter to the magistrate to carry out such an exercise. In these rather special circumstances it seems desirable to dispose of the appeal by making an order in the terms which, in effect, are accepted by both sides. The appeal should be allowed and the order made below overruling the claim for immunity against the production of the tapes set aside; there should now be an order for the magistrate to undertake a further hearing of the claim and, on the assumption that the claim for immunity is persisted in, undertake as part of that further hearing a balancing of the competing interests in the manner identified in these reasons and after hearing the further submissions of the parties. In view of the conduct of the proceedings by the parties below, no order should be made in respect of the costs of the appeal. -- 8 of 15 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 33 of 1993 Brisbane [C.J.C. v. Collins] CRIMINAL JUSTICE COMMISSION (Applicant) v. SIMON MICHAEL COLLINS (Respondent) Ex parte: CRIMINAL JUSTICE COMMISSION Macrossan C.J. McPherson J.A. Pincus J.A. Judgment delivered: 18/2/94 Joint reasons for judgment delivered by the Chief Justice and Mr Justice McPherson. Mr Justice Pincus delivering separate dissenting reasons. APPEAL ALLOWED. ORDER MADE BELOW OVERRULING THE CLAIM FOR IMMUNITY SET ASIDE. ORDER THAT THE MAGISTRATE UNDERTAKE A FURTHER HEARING OF THE CLAIM FOR IMMUNITY ON THE BASIS REFERRED TO IN THE REASONS OF THE CHIEF JUSTICE AND McPHERSON J.A. NO ORDER IN RESPECT OF THE COSTS OF THE APPEAL. CATCHWORDS: PRIVILEGE - IMMUNITY - public interest - Magistrate's enforcement of summons for production of documents addressed to CJC - Criminal Justice Act 1989 - s209 Justices Act 1886 Counsel: Mr M. Irwin for the applicant Mr A. Rafter for the respondent Solicitors: The Official Solicitor for the applicant -- 9 of 15 -- 2 McLaughlins Southport for the respondent Hearing date: 19.5.93 -- 10 of 15 -- 3 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 33 of 1993. Brisbane [CJC v. Collins] Before Macrossan C.J. Pincus J.A. McPherson J.A. BETWEEN: CRIMINAL JUSTICE COMMISSION (Applicant) - and - SIMON MICHAEL COLLINS (Respondent) REASONS FOR JUDGMENT - PINCUS J.A. Judgment delivered 18/02/94. This is an appeal by way of order to review under s. 209 of the Justices Act 1886. Under that section an order has been made by a judge having the effect of requiring the review of a Magistrates Court order described as one that "the Criminal Justice Commission produce the tapes of the records of interview between the Criminal Justice Commission and Constable Terrence James Goldsworthy for inspection by the Stipendiary Magistrate at Southport..." The record discloses that the respondent was charged with having used obscene language and having resisted Goldsworthy, a policeman, in the execution of his duty. When the matter was called on in the Magistrates Court, reference was made to a summons which had been issued out of -- 11 of 15 -- 4 the Registry directed to the Chairman of the Commission requiring production of certain tapes and other objects. The Commission resisted production on the ground that it could be detrimental to the public interest. Counsel appearing for the Commission before the Magistrate told his Worship that the Commission had received a complaint against certain police officers in relation to the events the subject of the charges before the court, had commenced an investigation and had interviewed certain persons. The respondent's solicitors told the Magistrate that what was sought was "information and records and any tapes relating to the investigations of the police officer Goldsworthy". That later was narrowed, as I understand the record, to "tape recordings of records of interview of Goldsworthy". After the matter had been partially debated before the Magistrate, Counsel for Collins appeared and said that "...prior to undertaking the balancing exercise...the person claiming public interest immunity must get over what is described as the first hurdle...must satisfy your Worship that some harm would be done". Counsel submitted that no harm could be shown to have been suffered by the Commission. Counsel submitted, in effect, that if satisfied that harm would be done, then the Magistrate had to perform a balancing exercise, in determining whether the material in question should be produced. As it appears to me, the Magistrate ultimately decided to follow the mode of dealing with the case which counsel had suggested; but he did not order production, as counsel for the respondent had requested. The Magistrate, after some further submissions were made, adjourned, presumably to consider the matter, and then gave a decision with reasons. He expressed the opinion that - "...there is no harm in the CJC being required to produce the record of interview, as -- 12 of 15 -- 5 it would relieve any perception by the public of the Criminal Justice Commission protecting corrupt police officers" He also rejected the contention that harm would be occasioned to the Commission in that the police might not be candid if they realised their statement to the Commission might be given to the defence. More generally, his Worship denied that any harm would be done by production of the documents and went on: "Accordingly, it is unnecessary for me to take the second step and to balance the inquiry, which the CJC would be likely to suffer - sorry, balance the injury, which the Criminal Justice Commission would be likely to suffer, which would be against the public interest, and the evidentiary value and importance of the documents in the litigation. I therefore order that the Criminal Justice Commission produce the documents for inspection by me." At the hearing in this Court, Counsel for the Commission contended that the case should be remitted to the Magistrate with the direction that he undertake "that balancing exercise...". The Magistrate had not undertaken the exercise because he thought no damage would be done to the public interest by the production of the documents; if his Worship was right about that, then the balancing exercise was unnecessary: Alister v. The Queen (1984) 154 C.L.R. at 404 at 412 per Gibbs CJ; see also Commonwealth v. Northern Land Council (1993) 67 A.L.J.R. 405 at 407, 408 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ. So if the view the Magistrate expressed that the public interest would not be harmed by the production of the documents was correct, then his Worship was also right in thinking that there was nothing to balance. It appears then that the Commission's complaint must be that the Magistrate was wrong in holding that there was no harm to the public interest shown. But it must be kept in mind that the power of this Court which is invoked is one to review a -- 13 of 15 -- 6 conviction or an order or the issue of a warrant: see s. 209 of the Justices Act 1886. In my respectful opinion, the order made by the Magistrate did not trench upon any relevant privilege. It is not suggested that any possible harm could accrue to the public interest by the Magistrate's order that the "documents", by which he meant the tapes, be produced for inspection by him; indeed it was conceded by counsel for the Commission before us that "the Magistrate would have been entitled...to inspect the tape". That concession appears to me correct. In Alister the High Court itself inspected the relevant documents, a claim of privilege on public interest grounds having been made, and in the Northern Land Council case the propriety of the Court determining to inspect documents in "class" cases was recognised (p. 408). There is no authority for the proposition that any balancing exercise must be performed before such an inspection occurs; an inspection, where deemed necessary, is done for the purpose of the balancing exercise. Although it was not, with respect, very clear what the attitude of counsel for the respondent before us was, he seemed to acquiesce in the suggestion that the case should be remitted to the Magistrate. In my opinion the Court should not adopt that course. What s. 209 contemplates is an appeal against a conviction or an order or the issue of a warrant. No complaint is in reality made of the Magistrate's order, which went no further than to require that the documents be produced for inspection by him. It is true that in arriving at the conclusion that the order should be made, his Worship gave as a reason that no harm would be done by the production of the tapes, but that reason does not throw doubt upon the propriety of the order actually made. If the Magistrate is invited to make any further order in relation to the tapes - for example, -- 14 of 15 -- 7 for their production to the respondent, it will remain open to the Commission then to argue that such an order should not be made because harm would accrue to the public interest if that were done. The Magistrate would not be estopped from acceding to that submission by the view he expressed when making the order for production of the tapes to himself for inspection. But even if it were convenient for the court to express an opinion as to the correctness or otherwise of the reasons the Magistrate gave for his order, that would be merely gratuitous; no order or direction or issue of a warrant is attacked and so this Court has no power to deal with the matter under s. 209 of the Justices Act 1886. In my opinion the order nisi should be discharged with costs. -- 15 of 15 --