Brookfield v State of Queensland

This case concerned an interlocutory application for disclosure of records of police disciplinary interviews, conducted by the QPS Ethical Standards Command (“ESC”). Justice Sullivan rejected the application, finding that the records were subject to public interest immunity. That was because their disclosure would likely result in officers being less likely to be fully frank and open in their interviews with the ESC, which would be highly prejudicial to the QPS disciplinary regime and, consequently, prejudicial to the public interest.

Sullivan J

14 June 2023

Background

The plaintiff commenced proceedings by claim against the State of Queensland, with a case centred on the alleged conduct of various police officers in Bundaberg. [6]. The claim includes allegations of malicious prosecution (amongst other things) against two officers, each of whom was the subject of internal interviews conducted by the Queensland Police Services’ Ethical Standards Command (“ESC”). [2], [6].

This judgment concerned an interlocutory application brought by the plaintiff seeking disclosure of the records of the interviews conducted by the ESC with each of the officers. [1]–[2]. The defendant resists the application on the basis that the records are the subject of public interest immunity. [1].

In the result, Sullivan J agreed that the records were subject to public interest immunity, and so the application for disclosure was dismissed. [120].

Why the records were subject to public interest immunity

His Honour noted that the principles relevant to public interest immunity were summarised by Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1. Drawing on observations made in that case, Sullivan J said that the “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”; and
• “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”. [59].

His Honour then applied that three-stage process to the facts of this case, as outlined below.

Whether there was a public interest in non-production

His Honour found that the ESC interviews were conducted pursuant to a statutory regime for disciplinary inquiries and were “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”. [71]. His Honour noted that there was a “significant level of confidentiality” attached to the interviews, and that interview answers were obtained under compulsion. [70]. His Honour accepted evidence to the effect that:

“[I]f officers were not assured that the use of information they gave under compulsion was restricted to use for the purpose 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”. [72].

Accordingly, his Honour found that there was a “real possibility of harm to the public interest” that could arise from disclosure of the records. [73].

Whether there was a public interest in production

Justice Sullivan noted that, prima facie, there was a conflicting public interest favouring production. [89]. In particular, exclusion of access to the records may 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” (per UCPR r 211); and

(b)“in the Courts having access to relevant evidence which litigants may wish to adduce”. [90].

His Honour noted a “novel argument” of the defendant, to the effect that as a consequence of information in the records being compelled for a specific statutory purpose, and because of the abrogation of the right against self-incrimination, there was an “implied limitation” arising which “restricts the answers from being used for any other purpose other than a disciplinary purpose”. [99], [107]. The submission was that “this effectively negates entirely the prima facie countervailing public interest identified above”. [99].

Although his Honour considered that there was some force in this argument, because of the way his Honour dealt with the third stage of the process (addressed below), it was “strictly unnecessary … to reach a concluded view on this novel argument”. [102], [107].

Balancing of the competing interests

His Honour regarded the public interest identified in the first stage of the test to be “a very important one”, and:

“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”. [114].

His Honour noted that, in conducting the balancing process, a Court could have regard to the “probative value of the documents” – and he considered this to be an appropriate case in which to view the records in question for this purpose. [115]–[116]. Having done that, his Honour considered that “the evidentiary value” of the records, “particularly to the plaintiff, is likely to be small”. [118]. Accordingly, his Honour was “satisfied that the non-disclosure will not materially frustrate or impair the administration of justice”. [118].

Accordingly, in all the circumstances, the harm that would be occasioned by requiring disclosure of the records would outweigh the benefit that would flow from their disclosure. [119]. For that reason there was a “proper claim for public interest immunity”, and the application for disclosure was accordingly dismissed. [120].

W Isdale of Counsel