Commissioner of Police v Hughes [2009] NSWCA 306

Commissioner of Police v Hughes [2009] NSWCA 306

The primary judge did not err in finding a legitimate forensic purpose for the subpoena, given the pleaded allegation that Mr Hughes had been targeted for an Integrity Test. However, the primary judge erred in holding that copies of documents made for a Part 8A investigation were not subject to statutory privilege and in limiting statutory privilege to cases of a formal complaint complying in all respects with s 127 of the Police Act 1990. Copies made for the purpose of a Part 8A investigation were documents within s 170, and written records made by police personnel or employees from information including oral material could constitute complaints sufficient to support a Part 8A...

Jurisdiction
Australia
Judgment Date
28 September 2009
Procedural Posture
Application for Leave to Appeal and Appeal From District Court Orders Requiring Production of Documents Under Subpoena Despite a Claim for Privilege / Court of Appeal
Outcome
Leave to appeal granted on conditions; appeal allowed; subpoena set aside.
Legal Topics
['subpoena Duces Tecum' 'objection to Production' 'legitimate Forensic Purpose' 'statutory Privilege' 'police Complaints Under Part 8 a of the Police Act 1990' 'internal Police Investigations' 'public Interest Immunity']
['civil Procedure' 'evidence' 'police Law'] ['subpoena Duces Tecum' 'objection to Production' 'legitimate Forensic Purpose' 'statutory Privilege' 'police Complaints Under Part 8 a of the Police Act 1990' 'internal Police Investigations' 'public Interest Immunity']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From District Court Orders Requiring Production of Documents Under Subpoena Despite a Claim for Privilege / Court of Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from interlocutory procedural rulings about subpoenaed documents.' 'Whether the subpoena had a legitimate forensic purpose.' 'Whether copies of documents made for the purpose of an internal police investigation under Part 8A of the Police Act 1990 were subject to statutory privilege under s 170 of the Police Act 1990 and UCPR Pt 1.9(3).' 'Whether statutory privilege was limited to investigations arising from a formal complaint complying in all respects with s 127 of the Police Act 1990.']

Ratio Decidendi

The primary judge did not err in finding a legitimate forensic purpose for the subpoena, given the pleaded allegation that Mr Hughes had been targeted for an Integrity Test. However, the primary judge erred in holding that copies of documents made for a Part 8A investigation were not subject to statutory privilege and in limiting statutory privilege to cases of a formal complaint complying in all respects with s 127 of the Police Act 1990. Copies made for the purpose of a Part 8A investigation were documents within s 170, and written records made by police personnel or employees from information including oral material could constitute complaints sufficient to support a Part 8A...

Court Disposition

Leave to appeal granted on conditions; appeal allowed; subpoena set aside.

Orders

  • ["Leave to appeal granted on condition: (a) That the Commissioner of Police pay the respondent's costs of the appeal in any event; (b) That should there be a further contest in connection with the subpoena the subject of this appeal on the grounds of public interest immunity, the whole of the reasonable costs of...