FEDERAL COURT OF AUSTRALIA

O’Malley v Keelty, Commissioner of the Australian Federal Police [2005] FCA 861

POLICE – rights, powers and duties – duty of AFP Commissioner to enforce the law – duty of AFP Commissioner where a complaint is received from a member of the public

PRACTICE AND PROCEDURE – judgments and orders – order limiting ability of applicant to file certain process

Australian Federal Police Act 1979 (Cth)

Judiciary Act 1903 (Cth)

Telecommunications (Interception) Act 1979 (Cth)

Hinchcliffe v Commissioner of Police of the Australian Federal Police (2001) 118 FCR 308 followed

O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688, followed

R v Metropolis Police Commissioner; Ex parte Blackburn [1968] 2 QB 118, cited

Scott v Northern Territory of Australia & Anor [2003] FCA 658, followed

PATRICK O’MALLEY v MICHAEL KEELTY, COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

ACD 10 of 2005

MADGWICK J

28 SEPTEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      No further initiating process be received in this Court from the applicant concerning alleged criminal interception of his telephone communications said to have occurred before 7 June 2005 unless:

(i)                  such process has been settled by a legal practitioner who has certified that he or she has read the judgment in these proceedings and that, in his or her opinion, the proceedings are reasonably and properly undertaken; or

(ii)                by leave of a judge.

3.      The applicant pay the respondent’s costs.

REASONS FOR JUDGMENT

madgwick J:

1                     This is an application for a writ of mandamus to be issued against the Commissioner of the Australian Federal Police under s 39 of the Judiciary Act 1903 (Cth).  The basis for this application is the alleged failure of the Australian Federal Police (‘AFP’) to investigate all aspects of some possible breaches of the Telecommunications (Interception) Act 1979 (Cth). 

2                     In essence, although this was not specifically pleaded, the applicant suspects and alleges that he has been the victim of a breach of s 7(1) of the Telecommunications (Interception) Act 1979 (Cth).  The subsection relevantly provides that:

‘(1) A person shall not:

(a)   intercept;

(b)   authorize, suffer or permit another person to intercept; or

(c)    do any act or thing that will enable him or her or another person to intercept;

a communication passing over a telecommunications system.’

Background

3                     The genesis of these proceedings is the alleged unauthorised interception of Mr O’Malley’s two home telephone lines over several years.  The facts that gave rise to Mr O’Malley’s concern are as follows.

4                     From 1988 to 1996, Mr O’Malley had been employed as an economist in what is now known as the Department of Industry, Tourism and Resources (‘the Department’).  He held a Grade 4 (lower-middle range) position that was equivalent to a graduate entry level position.  During his employment in the Department, Mr O’Malley formed the view that some senior members of the Department were engaging in serious misconduct.  Specifically, he felt that ‘Z-plated’ Commonwealth cars were being purchased in excessive numbers and bestowed upon favoured people within the Department.  Subsequently, an inquiry was conducted.  The inquiry consisted of a taped interview with Mr O’Malley.  It appears that no further steps were taken in relation to this allegation.

5                     Also while employed in the Department, Mr O’Malley applied for a promotion.  During the selection process, two references were unexpectedly submitted for a competitor from the highest echelons of the Department.  Mr O’Malley perceived the fact and timing of these submissions to be unusual and irregular, given the relatively minor nature of the position in question.  Moreover, Mr O’Malley formed the impression that one member of the selection committee had an inappropriately close connection with one of the senior staff members who had supplied a reference.  These concerns were raised in Parliament and the issue was dealt with in a Senate Estimates Committee hearing.

6                     As a result of these two incidents, Mr O’Malley formed the view that his actions had been resented by at least some of the Department’s senior members, and that consequently, he had fallen into serious disfavour in the Department.

7                     This impression was reinforced by the perceived manner in which the Department later implemented redundancies.  Initially, Mr O’Malley volunteered for a redundancy, but subsequently withdrew his offer in order to ‘test the mood of the Department’.  Mr O’Malley was made excess immediately after this withdrawal.  Apparently, the practice within the Department was to provide a standardised employment reference to those who accepted a voluntary redundancy, yet one was not made available to Mr O’Malley.  Instead, he was provided with a less valuable, but still formal, acknowledgement of his service to the Department.  As a result, Mr O’Malley felt that he had been discriminated against.

8                     Mr O’Malley believed, from the combination of these events, that at least one member of the Department had come to feel considerable animosity towards him.  This belief then generated the suspicion that this person (or persons) was responsible for tapping his telephone lines, once he later formed the view that calls on his home telephones were being intercepted – see below.

9                     After the Departmental incidents, Mr O’Malley enrolled in a Certificate in English Language Teaching to Adults (CELTA) course run by the University of Cambridge through the University of Queensland with the aim of qualifying as a teacher of English to students from a non-English speaking background.  While studying in Queensland, Mr O’Malley had a number of telephone conversations with his sister in which they discussed his plans for the future.  While Mr O’Malley had also discussed the future with his family, only his sister was privy to his then plan to undertake a certain journey.  However, it soon became apparent to Mr O’Malley that at least one other person in Queensland knew of this plan.  In July 2003 a tutor in his course relayed that information to a group of students.  It was at this point that suspicion became firm belief, and Mr O’Malley hired a private investigator. 

10                  An investigator, Mr Hippe, was asked to examine Mr O’Malley’s telephone lines and determine whether or not they had been tapped.  Mr O’Malley says that Mr Hippe discovered a section of wire running off the inside of a telephone pole that fed into the connector box on his land.  The main telephone line also ran from this connector box to the applicant’s house.  It was Mr O’Malley’s understanding (following a discussion with Mr Hippe) that, at the conclusion of this inspection, Mr Hippe held a firm view that Mr O’Malley’s telephone had been tapped.  However, when Mr Hippe’s reports arrived, they were not consistent with this conclusion.  The first report was equivocal or inconclusive (at best), and the second report ruled out the possibility of telephone tapping all together.  Mr O’Malley attributed this inconsistency to interference by, and/or pressure from those persons responsible for the telephone interference.  That Mr Hippe would be susceptible to such interference and pressure was explained by Mr O’Malley by reference to the fact that Mr Hippe also worked in Canberra as an investigator for a federal government agency. 

11                  By this time, Mr O’Malley had also become involved in a dispute with the University of Queensland after he failed the CELTA course.  The University had explained his failure by reference to his inadequate attendance, however, Mr O’Malley contended that the University was instead actuated by the confidential information that he had passed to his sister over the telephone.  The fact that the course had a global failure rate of only three percent, and that his command of the English language was considerable (especially when contrasted with the rest of the relevant student body, made up of many individuals for whom English was not their first language) provided the foundation for this view.  This view was also reinforced by the knowledge that the last person to fail the course at the University of Queensland was an individual with a very severe hearing impediment.  From these factors, Mr O’Malley inferred that the antipathetic telephone listener(s) had passed on the confidential information to agents of the University, who in turn, ensured that Mr O’Malley failed the course.

12                  Mr O’Malley argues that the disclosure of the confidential information gives rise to a reasonable suspicion that the investigator incident was not simply a case of a consultant who had initially been over-zealous, only to revise and soften that appraisal on reflection once the writing process began.  Rather, Mr O’Malley contends that the leaking of the information reinforces his suspicion that Mr Hippe was some how pressured by the people who bore him ill will.

13                  The final incident raised by Mr O’Malley involved the attempted sale of his house.  Mr O’Malley was the owner of a well-built, comfortable and very presentable house in the ACT.  On indicating a wish to sell the house, he was immediately inundated with approaches from real estate agents.  However, at one point, two of the agents suddenly lost interest in being selling agents for the property – a phenomenon uncommon among such agents.  Mr O’Malley suspected that this withdrawal of interest was a result of pressure applied by his Departmental enemies to the real estate agents in order to cause economic embarrassment to him.  Mr O’Malley did not suggest that the agents were part of any conspiracy but that they had been warned away from him. 

14                  Mr O’Malley also placed significance upon the publication of a newspaper article about a former competitor for a job who had become employed as a “translator” for Hansard in the Federal Parliament.  Similarly, Mr O’Malley put forward evidence of a dispute he had with the University of Queensland and the University of Cambridge in relation to a notification of result and the mode of payment of fees for his course.

15                  Mr O’Malley contends that all of these incidents exhibit a strange and suspicious pattern; in short: a conspiracy.  He approached the police with this information in the hope of prompting an investigation, but was not satisfied with their response. 

History of Proceedings

16                  This application follows two earlier sets of proceedings in which the applicant sought to compel the Commissioner to investigate the alleged unlawful interception of his telephone lines.  The initial proceedings were commenced in October 2003 and were dismissed generally by Justice Stone in March 2004 pursuant to Order 20 rule 2 of the Federal Court Rules 1979 (Cth).  Fresh proceedings were then commenced in August 2004, and later dismissed by Justice Emmett in October 2004 (see O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688).  In those proceedings, Emmett J concluded that (at [31] and [32]):

‘I am not persuaded on the material before me that there has been any failure on the part of the Australian Federal Police to discharge the duties which they have under the Australian Federal Police Act 1979 (Cth).  I do not consider that the evidence before me suggests that an honest police officer acting reasonably could not properly come to the view that there is insufficient material of substance to warrant further investigation, particularly when coupled with the failures of Mr O’Malley to which I have referred. …

Having regard to the view I have formed that there has been no breach of duty, it is not a question of my refusing relief on discretionary ground.  However, had there been evidence of even a minor breach, I would have expected Mr O’Malley to have taken greater steps to pursue the matter than he has.  I do not consider that Mr O’Malley is entitled to any relief at this stage, and accordingly I consider that the proceedings should be dismissed.’

17                  The present proceedings were commenced in March 2005. 

Current application

18                  After the decision of Emmett J was handed down, Mr O’Malley provided a considerable amount of material to the AFP. Since then, he had also contacted the AFP, including the Commissioner, several times in order to determine the status of his request for an investigation, and to inform the AFP of his willingness to take part in an interview. 

19                  Shortly after the last set of proceedings concluded, Ms Denley, a sergeant of the AFP (who had apparently been officially encouraged to represent herself as a “federal agent”) from the Professional Reporting Standards Unit of the AFP, and who has almost twenty years of experience with the AFP, was asked to evaluate Mr O’Malley’s request for an AFP investigation into the alleged unauthorised interception of his telephone lines.  Ms Denley considered the material that Mr O’Malley had provided to the AFP since the decision of Emmett J.  Sergeant Denley also had a telephone conversation with Mr O’Malley in which she requested that he provide her with more information.  A case note entry made by Detective Sergeant Sagripanti of the AFP was also taken into account.  The case note was made two weeks after the judgment of Emmett J was handed down.  Det. Sgt. Sagripanti had contacted Mr Hippe and ‘asked him for his opinion of O’Malley’s state of mind; what he found and in answer to the issues raised in O’Malley’s letter’ [sic].  Det. Sgt. Sagripanti noted that Mr Hippe had found ‘no proof that the tel [sic] was currently being bugged or had been’.  Ms Sagripanti also observed that ‘Hippe now thinks that O’M is not totally rational (my words)’.  Sergeant Denley too had a conversation with Mr Hippe which essentially confirmed what was suggested by the case note entry.  Ms Denley also took into account material that Mr O’Malley submitted subsequently.  She did not consider that any or all of this material provided evidence that an offence had been committed. 

20                  Following a request made by Mr O’Malley under the Freedom of Information Act 1982 (Cth), the case note entry made by officer Sagripanti was released to him in February 2005.  While Mr O’Malley had submitted a request for several categories of AFP records, the case note entry was the only document held by the AFP that was deemed relevant to his request.  The case note entry related to the part of his request which sought a

‘[c]opy of all AFP communication records with Mr Kurt Hippe of Advanced Investigations regarding his discovery of the Intercept as well as information emanating from AFP inquiries into Mr Hippe’s report of 9 September 2003 and his letter of 29 September 2003…’.

Subsequently, Mr O’Malley sought an internal review pursuant to s 54 of the Freedom of Information Act 1982 (Cth) in the hope of obtaining documents that related to the rest of his request.  The review confirmed that there were no other documents fitting the description of Mr O’Malley’s wider request.

21                  Emmett J had said that ‘[i]t is significant, in my view, that Mr O’Malley has failed to take up several invitations that may or may not have resulted in further information as to commission of an offence’ (O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688at [30]).  These opportunities included the suggestion made by the AFP that Mr O’Malley make enquiries with Telstra as to how the intercept wire may have been placed on his telephone line.  Similarly, making further enquiries of the investigator, Mr Hippe, in relation to the purported inconsistency between the latter’s oral and written reports was also suggested.  Mr O’Malley had also not pursued the proceeding commenced in October 2003 against the AFP, which sought similar relief to that sought in the proceeding before Emmett J.  Finally, Mr O’Malley had not taken up the invitation from the Fraud Intelligence Section of ACT policing to discuss the allegations made in his file. 

22                  Mr O’Malley appears to have attempted to pursue some of the avenues that Emmett J considered he might have done.  Since the last set of proceedings, Mr O’Malley contacted Telstra in an attempt to ascertain information about the wire.  In response, Telstra suggested that Mr O’Malley contact his service provider directly due to restrictions allegedly placed on access to the customer details of other service providers by the ACIF ‘Protection of Personal Information of Customers of Telecommunications Providers’ Industry Code.  In reply, Mr O’Malley reiterated his request for information but confined it to the period in which he had been a Telstra customer.  Telstra’s response repeated its earlier statement that it was unable to assist him because Telstra ‘is not permitted to view details for customers of another service provider’.  Mr O’Malley also contacted AAPT Limited in its capacity as his current service provider for the same purpose, but he had not received a reply by the time the hearing of the present application concluded. 

23                  During the hearing, with a view to avoiding any more possible proceedings, I asked Sergeant Denley to consider afresh whether the matter should be further investigated or reinvestigated.  She examined the transcript of the hearing held on 5 May 2005, and two exhibits from those proceedings.  She also conducted a taped interview with Mr O’Malley.  During the interview they discussed at length the conflicting reports from Mr Hippe; an individual who Mr O’Malley believed to have a connection with the investigator and who had visited one of his neighbours; Mr O’Malley’s time at the Department; the marketing of the sale of his home, and Mr O’Malley’s grievances with the University of Queensland. 

24                  Ms Denley determined that the AFP would not investigate the possible interference with Mr O’Malley’s telephone(s) and/or computer(s) on the following grounds.  Firstly, she noted that Mr O’Malley ‘is unable to provide any information to the Australian Federal Police (‘AFP’) to suggest that this has occurred other than his own unconfirmed theories and suspicions’.  Moreover, ‘even if such interference had occurred, I consider that there is very little prospect of successfully obtaining a conviction’.  She formed this view from the absence of concrete evidence suggesting that an offence was committed, the fact that the identity of the alleged perpetrators was not known, and the fact that, due to the time frame of the alleged offence, the possibility of obtaining any concrete evidence was remote.  In determining whether to investigate an alleged offence, the AFP is required to comply with the ‘AFP Case Categorisation and Prioritisation Model’ in the interest of efficient rationing of resources.  The model ‘requires the AFP to ensure that its limited resources are directed to the matters of highest priority and the decision to accept or reject matters for investigation is guided by this precept’.  It was within this framework that Mr O’Malley’s complaint was assessed as a ‘routine low matter’ by Sergeant Denley, and an investigation was not commenced. 

Submissions

25                  The applicant, self-represented, submits that a reasonable, honest police officer ought to have decided to investigate the matter further.  Specifically, Mr O’Malley contends that if the AFP had interviewed both the Telstra technician who installed Mr O’Malley’s second telephone line in 1998 and the technician’s area manager at that time, they would have confirmed that an intercept wire had been connected to the connector box at that time.  Secondly, the applicant submits that the AFP should have pursued the University of Queensland line of inquiry.  Specifically, the AFP should have looked into why all of the fees due to the University of Cambridge were not paid, and secondly, the reasons underpinning Mr O’Malley’s course failure.  In short, the applicant contends that by investigating these avenues, the source of the interference with his telephone lines would be identified.

26                  The respondent submits that Mr O’Malley’s application should be dismissed pursuant to Order 20 rule 2 of the Federal Court Rules 1979 (Cth) for three reasons: the application constitutes an abuse of process; it is frivolous and/or vexatious; and, in any case, the writ of mandamus is not available to compel the investigation sought by the applicant. 

27                  The respondent argues that the abuse of process stems from an attempt to invoke the procedures of the Court in order to relitigate controversies already decided by the Court, relying on Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA1699 and Walton v Gardiner (1993) 177 CLR 378.  In particular, the respondent argues that there appears to be no good reason why the information the applicant provided to the AFP after the proceedings before Emmett J were dismissed could not have been provided to the Commissioner prior to filing his application in those same proceedings.  Furthermore, the respondent questions the relevance of a large portion of the new information the applicant has since provided to the AFP.  Moreover, it is argued, the remaining new information provided simply re-canvasses issues that were dealt with in the correspondence to the AFP that was before Emmett J. 

28                  The respondent argues that these factors also render the current proceedings frivolous and vexatious, relying on Tampion v Anderson [1973] VR 321and Peruvian Guano Company v Bockwoldt (1883) 23 Ch D 225.  However, the respondent submits that frivolity and vexation also stem from the fact that the proceedings are without foundation and obviously unsustainable.  The respondent submits that the proceedings can be categorised in this way because the writ of mandamus is not available to compel the investigation sought by the applicant, relying on Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.  This argument is grounded on the proposition that mandamus is only available to compel the performance of a public duty that is justiciable and unperformed.  However, the exercise of discretion as to what matters police forces investigate, and decisions as to the allocation of their investigative resources, have traditionally been considered not justiciable.  As such, there can be no general duty, justiciable or otherwise, to comply with such a request from a member of the public to investigate a perceived offence. 

29                  The respondent argues that the applicant is estopped from again asserting that the material placed before Emmett J suggests that an honest police officer acting reasonably could not properly come to the view that there was insufficient material of substance to warrant further investigation.  As a result, the question is whether the material subsequently provided to the AFP meets this test.  The respondent argues that it does not, and as such, denies the availability of the writ of mandamus.

30                  At the conclusion of proceedings, the respondent again submitted that nothing had been put forward by Mr O’Malley that remotely came close to suggesting that an honest police officer acting reasonably could not have come to the conclusion that no further investigation of the matter was warranted.  Furthermore, Mr O’Malley has had ample opportunity to present his case:  the AFP has spoken to Mr O’Malley, giving him the opportunity to raise all matters and all evidence.  As such, the respondent submits that whatever further inquiries Mr O’Malley might make, or letters he might write, or areas he might pursue, it remains very likely that he will not be in a position, in all likelihood, to bring forward evidence that would compel an honest police officer acting reasonably to the view that an investigation should be commenced.  If Mr O’Malley is able to bring forward such evidence, it should be made patently obvious that he has located such evidence before he is permitted again to agitate the matter.

Consideration

31                  The primary question in this case is whether the Commissioner, or his officers, have breached any duty by failing to investigate further the allegations made by Mr O’Malley.  In determining whether a breach occurred, the issue to consider is whether a reasonable, honest police officer would have decided to investigate in this case after having given the matter due and proper consideration.  This test is consistent with the approach taken in Hinchcliffe v Commissioner of Police of the Australian Federal Police (2001) 118 FCR 308 (‘Hinchcliffe’)at [31]-[36], O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688 at [6], and Scott v Northern Territory of Australia & Anor [2003] FCA 658 (‘Scott’).

32                  In Hinchcliffe Kenny J outlined the duties of AFP officers after examining the Australian Federal Police Act 1979 (Cth) and the relevant English and Australian authority.  Her Honour concluded at [35]-[37]:

‘Australian courts too have accepted that whilst a commissioner of police has a duty to enforce the law, he or she also has a broad discretion as to the manner in which he or she chooses to fulfil the responsibilities of office…The authorities do not support the proposition that the respondents owed a duty of the kind pleaded…(i.e., a duty to investigate their complaint and to consider whether any person should be prosecuted in consequence of such investigation).  As the respondents’ counsel noted, there can be no duty to consider prosecution if there is no duty to undertake an investigation. 

…counsel for Mr and Mrs Hinchcliffe did not really attempt to support the existence of a duty of the kind formulated in the amended statement of claim.  Rather, he submitted:

“a refusal by police to receive a bona fide complaint, or the refusal to consider it, is a failure to perform their duty which is capable of attracting intervention of the Court.” 

I accept that, where a member of the AFP receives a complaint from a member of the public, the member discharges his or her duty to enforce the law if:

(1)               he or she gives due and proper consideration to the question whether and in what way an initial inquiry into the complaint should be made; and

(2)               he or she acts appropriately upon the view which he or she has formed. 

A range of matters may be pertinent to the member’s consideration of the complaint, depending on the circumstances.’

33                  In O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688, Emmett J considered the role and function of the AFP Commissioner.  His Honour said (at [6]-[8]):

‘Where a member of the Australian Federal Police receives a complaint from a member of the public, the member of the Australian Federal Police would certainly discharge his or her duty to enforce the law if he or she gives due and proper consideration to the question of whether, and in what way, an initial inquiry into the complaint should be made, and then acts appropriately upon the view formed:  see Hinchcliffe…at [31]–[36]. … 

The duty of the Commissioner is to enforce the law.  He or she must take steps to post police officers so that crimes may be detected and that honest citizens may go about their affairs in peace.  But the Commissioner is not the servant of anyone save the law itself.  Although the Commissioner is answerable to the law, there are nevertheless many fields in which the Commissioner will have a discretion with which the law will not interfere.  It is for the Commissioner to decide in any particular case whether inquiries should be pursued.  It must be for the Commissioner to decide on the disposition of the force and concentration of the resources available on any particular crime or area.  No court can or should give the Commissioner direction on such a matter: see R v Metropolis Police Commissioner; Ex parte Blackburn [1968] 2 QB 118 at 136.

Nevertheless, the Commissioner of Police is not beyond the law.  If the police fail in the duties, however ephemeral it may be to describe them, a citizen is entitled to assistance in ensuring that the police do their duty.  For example, if there was evidence of a dishonest refusal to investigate on the part of an investigating officer, or if the evidence suggests that an honest police officer acting reasonably could not properly come to the view that the matter was not capable of investigation there may be, and I emphasise may be, a basis upon which the Court could interfere.’  [Original emphasis].

34                  In Scott I considered the role of the courts in relation to the duties of police officers.  My view was (at [70]) that:

‘It is true that the courts should respect the importance, subtleties, and intricacies of the processes of investigating and prosecuting crimes and should not be quick to intervene.  Nevertheless, police officers, like other public officers, are not above the law.  They are, in my opinion, expected and legally required to act “according to law and not humour”.  While they have a large discretion about the extent, if any, to which they investigate or re-investigate alleged crimes, they must certainly exercise this discretion honestly, in good faith and without caprice.  There may well be other limitations on their discretion.  I see no reason why, in a proper case, a court ought not intervene to see that police duties, including of investigation, are carried out lawfully.  Appropriate exercise of the court’s discretion can well prevent any undue disruption of the orderly and proper work of police officers or of the process of vindication of the criminal law.’

35                  In agreeing with Kenny J’s formulation in Hinchcliffe, I added (at [73]-[75]):

‘I have difficulty seeing why, if a court will go as far as Kenny J (as it seems to me rightly) did, the court should not, in a proper case, go further.  It ought not be seen as only “policy decisions” that, while preserving real respect for the proper authorities’ capacity to manage a police force, the courts might investigate.  Australian experience of the last 20 or 30 years does not support the proposition that all is necessarily well in every police force in the country.  Citizens in my view are entitled to look to the courts for assistance in having police do their duty in considering whether to make further inquiries.  Different considerations may apply once prosecutions have been launched in a court, but obviously different questions and a different and now well-known framework of legal analysis, founded on preventing court processes being used as a means of injustice, are then involved …

There is, however, as it seems to me, nothing unlawful in a police officer bona fide determining, where there is some proper material to support the view, that one or more crucial witnesses are unlikely to be believed by a jury, and on that account to cease an inquiry.  It must happen frequently in police work.  In the case of a very serious crime, such as the various applicants allege here, one would usually expect that such a determination would not be made without interviewing the witness(es) concerned.  Nevertheless, unusual circumstances may exist such that a police officer might reasonably come to the view that the matter is not worth investigating further or taking to court.’  (Original emphasis.)

To the extent that there may be any difference of opinion or of emphasis between Emmett J and Kenny J I prefer the formulation of the latter in Hinchcliffe.  It may be that my own formulations of principle in Scott were more “liberal” than those of Emmett J and even than those of Kenny J.  Nevertheless, they still appear to me to be appropriate.  Organising and assigning priorities in a modern police force are patently complex, difficult, and likely politically controversial matters.  Courts should exercise very considerable restraint before intervening in such an area.  But a court should in proper cases act to ensure that police forces and their commanders are not, in their dealings with complainants, beyond the necessity to deal lawfully and not according to whim with the concerns of citizens, no matter how humble.

36                  Nevertheless, a court cannot and should not compel a police force to investigate every breach of the law.  There are many mysteries in this world.  Some of them involve possible commissions of crime.  It is not, however, the responsibility of police officers to investigate all of them.  Indeed, the role of the police is not to investigate whether, at large, there has been a breach of the law.  Rather, their duty is to investigate whether there has been a breach of the law for which an identifiable person might be convicted if prosecuted.  The requirements of the AFP Case Categorisation and Prioritisation Model are consistent with this view.  I adhere to what I said in Scott at [69]:

‘…except in the context of a coronial inquiry, one must allow that, if there appears to be no serious prospect of obtaining a conviction, it may be a quite reasonable decision, even in a very serious case, by the relevant police officer(s) not to expend resources or further resources on an investigation.  Among other matters militating against the prospect of obtaining a conviction will often be the lapse of time since the alleged offence.’ 

37                  Mr O’Malley’s allegations suggest a conspiracy against him.  While many conspiracy allegations are ultimately explicable as misunderstandings and mistakes, occasionally a conspiracy theory is correct.  However, in my opinion, even if everything that Mr O’Malley believed amounted to a reasonable suspicion, there is no material that would require an honest and reasonable police officer to conclude that any identifiable person might now be successfully prosecuted for any wrongdoing.  Consequently, there is no reason why an honest and reasonable police officer might not decide, as Sgt. Denley did, against commencing or continuing an investigation.

38                  Further, even if Mr O’Malley’s phone was intercepted for a period of time in breach of the Telecommunications (Interception) Act 1979 (Cth), when viewed in relation to the full spectrum of criminal behaviour, it would be difficult to classify it as a relatively major matter.  The relatively small penalty attached to such a breach would relegate it to a low priority matter.  While such a breach would at least constitute an invasion of privacy, when the degree of individual and social harm likely involved in such a breach is compared to the harm associated with more serious crimes, it is clear that a reasonable and honest police officer might consider the matter to be of such low priority as to warrant the devotion of no further resources to it. 

39                  Again, the present lack and difficulty of obtaining any legally admissible evidence identifying those responsible for the alleged interference with Mr O’Malley’s home telephone lines, and the long supposed time frame of events, (spanning more than a decade) makes it unlikely that the Director of Public Prosecutions would ever be prepared to prosecute the matter. 

40                  In short, neither the respondent Commissioner nor any of his officers has breached any duty by failing to ensure that any further investigation into Mr O’Malley’s concerns took place.  The application must fail.

41                  Mr O’Malley has now had three chances to persuade this court to intervene.  On the third occasion I took some care fully to understand all of the bases for his suspicions, to ensure that all of those were understood by the relevant police officer and to have that police officer interview Mr O’Malley again so that there could be no question of any misunderstanding as to his concerns nor any appreciable risk that a judgment about whether the AFP should further investigate his complaints might be tainted by anybody’s perception of Mr O’Malley.  (If, as to which I have no view, Mr O’Malley is eccentric, he is nevertheless as much entitled to the attention of the police for his proper concerns as anyone else).  Mr O’Malley has nevertheless failed.

42                  The only thing that saves this matter from being caught by issue or Anshun estoppel, or the doctrine of abuse of process, is that there were some new factors raised.  However, there can be distinctions without any substantial difference. 

43                  It is by no means impossible that some further factor will arise that may intensify Mr O’Malley’s concerns and his hypothesis that conspirators have criminally invaded his privacy.  It is much less likely that any such further factor will force a conclusion by a judge that any such factor is significant enough to warrant yet another judicial examination of his concerns and complaints about police inaction.  I propose to order that no further initiating process be received in this Court from Mr O’Malley concerning alleged criminal interception of his telephone communications unless such process is settled by a legal practitioner who certifies that, in his or her opinion, the proceedings are reasonably and properly undertaken, or by leave of a judge. 

44                  The application will be dismissed with costs.

Associate:

Dated:              28 September 2005