Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158, [24]
Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41
Simring v Commissioner of Police [2009] NSWSC 270
Source
Original judgment source is linked above.
Catchwords
CYL v YZA [2017] NSWCATAP 105Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158, [24]Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41Simring v Commissioner of Police [2009] NSWSC 270State of New South Wales (Justice Health) v Dezfouli [2018] NSWADTAP 69.
Category: Procedural rulings
Parties: Luke P Ainscough (Applicant)
Judgment (6 paragraphs)
[1]
reasons for decision
This is an ex parte interlocutory motion by the respondent Commissioner seeking confidentiality for certain evidentiary material and exemption from the obligation to file and serve certain documents as required by s 58 of the Administrative Decisions Review Act 1997 (ADR Act).
The applicant Mr Luke Peter Ainscough applied to this tribunal on 18 December 2020 for review of a decision by the respondent Commissioner taken on 8 October 2020 to refuse his application for a category AB firearms licence.
The ground for refusal was that police records, specifically event E31787582 and charge number H34724758, showed that the applicant had been charged on 23 July 2008 with, and later convicted of, the offence of "Take/detain person in company with intent to obtain an advantage".
The police fact sheet for that offence relates that the applicant had known the alleged victim of that offence for five or six years and during that time they had been on friendly terms, but they had had a falling out. It was alleged that on 11 April 2008, the applicant and a confederate had entered into an arrangement that the applicant would assist the co-offender to assault and restrain the victim in order to induce him to repay an alleged debt. The applicant freely assisted the co-accused in subduing the victim on the ground, as he struggled and attempted to break free. After the victim was eventually restrained, the applicant obtained some cable ties with which he helped the co-accused to secure the hands and feet of the victim. He also obtained a cloth rag which he doused in a clear liquid and forced into the victim's mouth in order to muffle the victim's cries for help.
He then helped his co-accused to stand the victim up and carry him to the victim's car, where they attempted to force him into the luggage compartment, before making him sit in the front passenger seat. The co-accused then drove the car through the Hawkesbury area to Lithgow. During the trip the co-accused allegedly continued to threaten the victim with assault and further assaults directed towards his family, if the victim failed to repay the alleged debt of $3000.
After some time, the co-accused returned with the victim to the Kurrajong area where he released him and allowed him to drive from that area in his car. That was done only after the victim under duress agreed to pay the alleged debt of $3000 the following day. After arranging with his mother to obtain the money, the victim met with the co-accused near Windsor Downs, where the moneys were paid, the victim fearing further reprisals from both the applicant and the co-accused.
It was not alleged that the applicant was the principal offender in the matter, but that he did have knowledge of what was to occur and assisted his co-accused to commit the offence. The offence could not have been perpetrated by the co-accused without the applicant's assistance. The victim did not sustain any significant injuries as a result of the offence. On 8 February 2010 at Penrith District Court the applicant received a suspended sentence of 18 months' imprisonment.
The applicant applied for an internal review of the decision to refuse him a licence on 23 October 2020, but the review was not finalized and the applicant was not notified of the outcome within 21 days. Accordingly, the internal review was taken to have been finalized on 13 November 2020 under s 59(3)(b) of the ADR Act, and any application for review should have been lodged with the tribunal on or before 11 December 2020. The parties agreed, however, on an extension of time to lodge the application, and an extension was duly granted.
On 1 February 2021 the respondent applied for an order under s 59 of the ADR Act in relation to the filing of certain confidential material required by s 58 of that Act and for certain other confidentiality orders. Pearson PM on 27 January 2021 directed inter alia that this interlocutory motion should be heard in the absence of the applicant.
[2]
Applicable legislation
Section 49 of the CAT Act provides for the holding of confidential hearings:
49 Hearings to be open to public
(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.
(2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.
Confidentiality orders relating to evidence and proceedings are regulated by s 64, which relevantly provides:
Tribunal may restrict disclosures concerning proceedings
(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),
(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
Section 59 of the ADR Act gives the tribunal the power to direct that an administrator not be required to lodge certain documents as would otherwise be required by s 58 of that Act::
59 Objections to lodgement
(1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58.
(2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:
(a) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or
(b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.
In the present interlocutory motion, the respondent seeks orders under those provisions.
[3]
The evidence
The respondent did not call oral evidence but relied on the s 58 documents and certain other documentary material, including confidential exhibit CR2. The respondent tendered a signed statement by Senior Constable Rochelle Blue, currently of the Crime Prevention Unit based at Windsor, dated 11 February 2021 (exhibit R3).
The officer declared that the material for which the respondent claims confidentiality comprises records held by the New South Wales Police Force (NSWPF) containing confidential criminal intelligence in respect of the applicant which can be provided to the tribunal if its disclosure is prohibited. The statement refers to the operation of the Computerised Operational Policing System (COPS) as a record-keeping system to capture, record and store operational information and intelligence on an organization-wide basis. It provides a means for NSWPF to record and enquire on the details of persons, organizations, locations, objects, property and vehicles of interest to police. When an officer enters information into COPS relating to an event or other matter, the system allocates a COPS event number to that entry.
The other avenue for classifying and recording information is the Information Report, which records information that is, or could be, of interest to police. It can be derived from one of a number of different types of sources. It could be based on something that was observed or reported by a member of the public. When an officer enters information into COPS, the system allocates a unique number to that report, and it can then be used to identify, assess and evaluate the law enforcement environment.
S/C Blue had reviewed the confidential information and concluded that, given its content, disclosure of any of it would or could identify confidential sources of information to law enforcement, place identified persons at risk of harm and expose police methodology. The confidential material is only accessible by law enforcement personnel with the appropriate clearance. It is necessary that such intelligence holdings remain confidential and not known to those who are subject to such holdings.
Disclosure of the material would allow a picture to emerge showing what matters are known to NSWPF about the activities of the persons of interest known to police and from which inferences could be drawn by the applicant as to what matters are therefore not known to the police. While it is possible that the applicant might suspect or know some of the information held by NSWPF, disclosure of the confidential material could confirm any such suspicions.
Further, as police rely heavily on assistance from persons who provide confidential sources of information, which is widely regarded as an important and useful form of intelligence, if the identity of any individuals providing such assistance were disclosed, or such individuals was suspected (rightly or wrongly) of being confidential sources, they could be subjected to acts of retribution. In addition, those who might otherwise have supplied information to the police might in the future be deterred from doing so.
There was a risk that persons against whose interests a confidential source of information had acted, may have a motive to carry out, or to procure, reprisals against individual who provided the information. Further, sources of criminal intelligence are regarded with antipathy generally and some people are willing to harm sources for no reason other than that they are sources. The physical security, safety and protection of informants are of paramount concern to the police, and therefore NSWPF is committed to ensuring and maintaining the security and protection of all informants.
S/C Blue also prepared a confidential statement dated 11 February 2021 (confidential exhibit CR2).
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[4]
Consideration
The normal rule in the tribunal is that its hearings are open to the public and its reasons for decision given publicly, sometimes orally, but more often in writing. That rule is recognized in s 49(1) of the CAT Act. As the Appeal Panel has said, however, the principle of open justice must sometimes be balanced against other values. There are other public interests that may militate against identifying witnesses or third persons mentioned in proceedings (CYL v YZA [2017] NSWCATAP 105, [94] - [96]). That is particularly so where the evidence to be provided concerns evidence of a sensitive nature provided by a victim or matters that are being investigated by police.
Before making an order under s 59 of the ADR Act or s 64 of the CAT Act, the tribunal must consider that it would be appropriate to make an order prohibiting disclosure of the documents because of "the confidential nature" of those documents or "for any other reason" (Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41, [3]. See also Bungree Aboriginal Association Ltd v New South Wales Registrar of Community Housing [2019] NSWCATAD 61, [26] - [27].).
The Appeal Panel surveyed the applicable principles in detail in State of New South Wales (Justice Health) v Dezfouli [2018] NSWADTAP 69 (examining the equivalent provisions in the Administrative Decisions Tribunal Act 1997), [50] - [53] and [81] - [82]:
50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT Act), three elements of prime importance are the word 'desirable', the phrase 'for any other reason' and the word 'may'. These indicate that the purpose (or purposes) to be served by a suppression order may be 'any … reason' (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is 'desirable' and that the actual making of the order is not mandatory but within the Tribunal's discretion.
51 There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is 'really necessary to secure the proper administration of justice in proceedings before it'. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act.
52 In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person - most commonly a witness - involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym.
53 In such cases, the courts have applied a criterion of 'necessity', such as that stated by McHugh JA. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally - i.e., in future proceedings as well as in the proceedings currently being heard. ….
81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.
82 In view of Ms Johnson's submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition….
As Smart J said in Simring v Commissioner of Police [2009] NSWSC 270, [69], there is a strong public interest in criminal offences being reported to the police and the sources of information not drying up: "If the victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the Police…."
S/C Blue's statement of 11 February 2021 (exhibit R3) explains in general terms the confidential and sensitive nature of the confidential material, which could be accessed only by select law enforcement personnel who hold the required clearance. The purpose of the information is to assist in monitoring and investigating persons who participate in unlawful conduct and is collated by police. For that purpose it needed to remain confidential, and any disclosure of the confidential material would demonstrate what matters are known and unknown to the police about the activities of the applicant or other persons.
It could reveal the identity of persons providing confidential intelligence to police, including registered sources and informants. Police rely heavily on assistance from these people and the confidential information provided is an important and useful form of intelligence. Disclosing the identity of these persons could result in retribution against them and also in deterring those who might otherwise have supplied valuable information. Disclosure could endanger the physical security, safety and protection of an individual who has provided information. The police wished to minimize the risk of reprisals against informants and protect its sources and those who provide confidential information.
The evidence suggests that the circumstances of this case are sufficiently special that the making of the orders sought is "desirable" within the meaning of s 64(1). The confidential information strengthens that conclusion.
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For the purposes of this motion, I assume that the facts are as stated in exhibits R1, R3 and CR2. In my view that evidence, both open and confidential, makes a cogent case for the grant of confidentiality and I will make the orders as asked.
[5]
Orders
1. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement.
2. Pursuant to s 59 of the Administrative Decisions Review Act 1997, the respondent ("the Commissioner") not be required to lodge copies of the documents or parts of documents ("the Confidential Material") specified in the Confidential Statement in support of the application and provided to the tribunal in accordance with the orders of the tribunal (confidential exhibit CR2).
3. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibit CR2, or matters contained in the Confidential Material and confidential exhibit CR2 is prohibited.
4. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR2, or matters contained in the Confidential Material and confidential exhibit CR2, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.
5. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these preliminary proceedings, including confidential exhibit CR2 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 March 2021
Parties
Applicant/Plaintiff:
Ainscough
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force