Danis v Commissioner of Police

Summary of the Proceedings before the Tribunal

1. The respondent relies on the public interest considerations against disclosure set out in cl 1(d), cl 1(g), cl 3(a), cl 3(g) of the Table to s 14 of the Act (s 14 Table) as matters which outweigh considerations in favour of disclosure.
2. The appellant disputed that the respondent had established that the public interest considerations relied upon could reasonably be expected to have the effect set out in cl 1(d), cl 1(g), cl 3(a) and cl 3(g) of the s 14 Table.
3. In the appellant's submission, the public interest considerations against disclosure relied upon by the respondent were outweighed by the presumption in favour of disclosure in s 5 of the Act, the general public interest consideration in favour of disclosure in s 12(1) of the Act, other public interest considerations in favour of disclosure in ss 12(2)(a), 12(2)(c) and 12(2)(e) of the Act, and the personal factor of the access application as a referred to in s 55(1)(a) of the Act.
4. The Tribunal at [15] identified that there were seven issues to be considered as follows: "(1) whether, because of the FCoA proceedings, the information sought by the applicant has already been "revealed" having regard to the meaning ascribed to that term under the Act, and also having regard to the application of s 121 of the Family Law Act 1975 (Cth) (the FLA); (2) the applicant's objection to any reliance being placed on the evidence of Detective Sergeant Ferns (DS Ferns), an officer of the respondent who gave evidence and was cross-examined in the hearing, on the grounds suggested by the applicant that DS Ferns purported to be an impartial expert witness. While I note that both parties in fact rejected the proposition that DS Ferns was acting as an expert witness, I will nonetheless address the applicant's submissions insofar as it is relevant to my assessment of the evidence of DS Ferns and the weight I give to it; (3) whether, as alleged by the applicant, DS Ferns and other officers of the respondent, namely Detective Senior Constable O'Donnell and Inspector Greene, failed to comply with s 71 of the NCAT Act in providing information or a statement to the Tribunal knowing that the information or statement is false or misleading in a material respect; (4) whether the Withheld Information, if released, would give rise to public interest considerations against disclosure on the grounds that: (a) as set out in cl 1(d) of the s 14 Table, disclosure could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions; (b) as set out in cl 1(g) of the s 14 Table, disclosure could reasonably be expected to found an action against the respondent for breach of confidence or otherwise result in the disclosure of information provided to the respondent in confidence; (c) as set out in cl 3(a) of the s 14 Table, disclosure could reasonably be expected to reveal an individual's personal information; and (d) as set out in cl 3(g) of the s 14 Table, disclosure could reasonably be expected, in the case of the disclosure of personal information about a child, to not be in the best interests of the child to have the information disclosed; (5) the identification of public interest considerations in favour of disclosure (which, as noted in s 12(2) of the Act, are not limited), and whether the following matters raised by the applicant ought be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of the Withheld Information: (a) whether, pursuant to s 12(2)(a) of the Act, disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; (b) whether, pursuant to s 12(2)(c) of the Act, disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds; (c) whether, pursuant to s 12(2)(e) of the Act, disclosure of the information could reasonably be expected to reveal or substantiate that the respondent (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct); and (d) whether, pursuant to s 12(2) of the Act, there is a public interest in the administration of justice, relying upon the decision in JY v Commissioner of Police, NSW Police [2008] NSWADT 306 (JY's case); (6) Whether, pursuant to s 55 of the Act, there are any personal factors of the application that the respondent is entitled to take into account (for or against disclosure) in determining whether there is an overriding public interest against disclosure of the Withheld Information; (7) whether, after weighing the considerations for and against disclosure and the personal factors of the access application, there was an overriding public interest against disclosure which justified the respondent's decision to refuse to release the Withheld Information."
5. The evidence relied upon by the respondent was set out in DS Ferns' affidavit (exhibit R1) and his oral testimony.
6. The Tribunal summarised DS Ferns' evidence at paragraph [73] as follows: "(1) the police do not, as a matter of practice, release confidential information relating to an interview because it is important for the community to trust police officers and that if confidentiality is not observed then witnesses would stop cooperating with police; (2) the release of such information can lead to compromised and contaminated evidence if, for example, a person uses information that has been released to investigate on their own or discuss evidence with other potential witnesses; and (3) the release of personal information or the record of interviews can reveal information that leads to reprisals and harassment against the alleged person of interest or witnesses for either providing certain information or being unwilling to assist the police."
7. The appellant made a wide-ranging attack on the credit and evidence of Detective Sergeant Ferns, including that he had conducted himself contrary to the provisions of s 6 and s 7 of the Police Act 1990 (NSW) (the Police Act), and committed criminal offences against one or more of the following: s 71 of the NSW Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), s 29 and s 33 of the Oaths Act 1900 (NSW) (the Oaths Act) and s 317 of the Crimes Act 1900 (NSW) (the Crimes Act): see [101].
8. In addition, the applicant asserted that: "DS Ferns, the respondent, and the respondent's legal representatives made brazen attempts to turn the truth into lies and lies into truth, and to use the public interest considerations against disclosure to cover up what he described as "bad policing": see [101].
9. The Tribunal rejected these allegations as having no basis and found DS Ferns to be a truthful witness, who gave clear and direct answers to questions under cross-examination: see [109].
10. Relying upon the evidence of DS Ferns, the Tribunal accepted that disclosure of the Withheld Information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions pursuant to cl 1(c) of the s 14 Table: see [111].
11. The Tribunal also found that the considerations in clause 3(a) and 3(g) of the s 14 Table were made out and were factors to be given weight against disclosure.
12. The Tribunal then went through the factors relied upon by the appellant in favour of disclosure.
13. The Tribunal found some of those submissions were substantiated. In particular, the Tribunal came to the view that release of the Withheld Information may contribute to positive and informed debate on the issue of domestic violence: see [159].
14. Accordingly, the Tribunal gave a reasonable amount of weight to this consideration under s 12(2)(a) of the Act.
15. The Tribunal found in balancing the personal factors of the applicant and the considerations in favour of disclosure, the balance weighed against disclosure, to ensure the community continues to feel comfortable providing information to police to ensure the effective exercise of its functions, and its confidence that such information will remain confidential: see [125] and [186].

Ground 1: The Tribunal ignored evidence critical to disputed issues contrary to assertions of fact made by the applicant

1. During oral addresses, the appellant made it clear that he was referring to two documents, being transcript of the appellant's cross-examination of DS Ferns on 19 February 2020 and the appellant's affidavit dated 28 January 2020, both from previous Tribunal proceedings.
2. In this regard, we were taken to transcript of the hearing of the Tribunal in these proceedings where the Senior Member indicated to the appellant that these documents would be taken into account.
3. Based on paragraphs [17] and [62] of the Decision, the appellant submitted that these documents were overlooked by the Tribunal. Paragraphs [17] and [62] of the Decision are as follows: "17 For the applicant, the following material was provided: (1) Administrative review application dated 30 March 2020; (2) Submissions in Reply dated 29 June 2020; (3) Affidavit by Emil Danis sworn on 29 June 2020 with annexures "A" to "Z (with exception of "Q") and "AA" (marked as Exhibit A1"); (4) For reference purpose only, a copy of an Affidavit by Emil Danis sworn on 28 January 2020 in connection with proceedings 2019/258041 before this Tribunal (marked for identification as "Exhibit A2"); (5) Outline of oral submissions made in the hearing on 19 April 2021 (filed on 21 April 2021); (6) Documents tendered for reference during the hearing on 19 April 2021 (and subsequently filed on 22 April 2021) comprising: (a) Chester Porter QC, The Gentle Art of Persuasion, Random House, 2nd Ed, 2008, extracts purported to be from pages 23 and 165; (b) Sophie Isobel, Melinda Goodyear and Kim Foster, 'Psychological Trauma in the context of Familial Relationships: A Concept Analysis' (2019), Vol 20(4) Trauma, Violence & Abuse 549-559; and (c) Jackie Amos, Leonie Segal and Chris Cantor, 'Entrapped Mother, Entrapped Child: Agonic Mode, Hierarchy and Appeasement in Intergenerational Abuse and Neglect' (2015), 24 J Child Fam Stud 1442-1450, (marked for identification as "Exhibit A3"); (7) Final written submissions filed on 25 June 2021 (after the hearing in this mater had concluded.) … 62 By way of clarification, I note that Exhibit A2 was not tendered into evidence in the proceedings before me and was marked for reference purpose only. Likewise, the applicant's cross-examination of DS Ferns during the hearing that resulted in the Danis 2020 Decision was not tendered into evidence in the proceedings before me (although the applicant's submissions filed on 29 June 2020 purported to rely upon that material as either evidence or argument in support of his position)."
4. The appellant disputed that the affidavit of the appellant sworn 28 January 2020 in proceedings 2019/258041 before the Tribunal was "for reference purpose only". The submission, in essence, was that this label indicated that the affidavit was not properly taken into account. Similarly, the appellant relied upon the statement at [62] that the material was "marked for reference purpose only".
5. Secondly, the appellant relied upon the statement of the Tribunal at [62] that the applicant's cross-examination of DS Ferns during the hearing that resulted in the Danis 2020 Decision was not tendered into evidence in the proceedings, though it was material purported to be relied upon in the applicant's submissions. Again, the submission of the appellant was that this indicated that this material was overlooked.
6. We note that s.38(1) and (2) of the NCAT Act is as follows: "(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
7. Accordingly, the distinction between receiving material which is not formally marked an exhibit or is only received "for reference purposes" is not as significant as in the case of a court of law bound by the rules of evidence. The appellant submitted that the significance of the material alleged to have been overlooked by the Tribunal was that it cast doubt upon the credibility and veracity of the evidence of DS Ferns. The material in question was relied upon by the appellant in his cross-examination of DS Ferns before the Tribunal in the current proceedings.
8. The appellant in oral addresses confirmed that anything and everything relevant in the material, being the previous cross-examination of DS Ferns and the appellant's affidavit sworn 28 January 2020 was put to DS Ferns in his cross-examination of DS Ferns.
9. The appellant estimated that his cross-examination of DS Ferns went for some 4-5 hours. Similarly, the respondent's solicitor who appeared before us, Ms Tipene, estimated that the cross-examination went for almost a full day.
10. The Tribunal referred to the fact that DS Ferns was cross-examined "vigorously and at length": see [120]. The Tribunal clearly dealt with the evidence of DS Ferns and his cross-examination by the appellant in some detail in the Tribunal's Decision. The Decision reveals a careful analysis of the allegations put by the appellant to DS Ferns during cross-examination: see, for example, [90]-[100], [109], [118]-[120].
11. We have no doubt that the Tribunal must have taken into consideration, and not overlooked, the material that the appellant used in his cross-examination of DS Ferns. This obviously included any and all of the relevant material from the previous cross-examination of DS Ferns and the appellant's previous affidavit of 28 January 2020.
12. Accordingly, we dismiss this ground of appeal.
13. We note that in the appellant's written submissions he sought to review in some detail the evidence and cross-examination of DS Ferns to challenge the acceptance of DS Ferns' evidence as a matter of weight and the Tribunal's alleged flawed fact-finding process. We deal with this contention in the other grounds of appeal raised by the appellant.

Ground 2: The Reasons for Decision are inadequate or insufficient

1. In support of this submission, the appellant relied upon the principles stated in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [16], [25], [59.4] and [91]; Keith v Gal [2013] NSWCA 339 at [109], [112]-[130], [149]; Khan v Kang [2014] NSWCATAP 48 at [42] and [43].
2. The submission of the appellant was that the Tribunal failed to: 1. consider, grapple with and mention relevant or critical evidence; 2. consider and apply relevant authorities or legislation relied upon; and 3. sufficiently expose the Tribunal's reasoning.
3. Particulars of these contentions were given by the appellant. For example, it was contended that there were 26 annexures to the appellant's affidavit dated 29 June 2020, but mention was only made of five of them in the Reasons. The appellant also repeated his submissions in ground 1 to state that the critical evidence referred to in that ground was also not considered or sufficiently referred to in the Reasons. The appellant was also critical of the Tribunal in stating that the contents of annexures to the affidavit of the appellant, which were generally critical of the family law system, were not relevant to the public interest test in his case: see [78] of the Decision. In our view, there was no error in the Tribunal coming to the view that these annexures were not of significance or relevance to the actual public interest test and the other matters required to be considered under the Act. It is clear that the operation of the Family Court has no relevance to the matters to be considered under the GIPA Act.
4. The appellant was also critical of the Tribunal in not referring to and regarding as relevant four cases cited by the appellant to the Tribunal, being recent cases of police officers' misconduct or unlawful conduct. In our view, there was no error by the Tribunal in not regarding these cases as of significance or in failing to specifically refer to them. This matter is addressed further in relation to appeal ground 3.
5. More generally, the appellant contended that the Tribunal did not conduct an analysis of, and did not examine why, the evidence which was accepted by the Tribunal was to be preferred to the evidence which was rejected.
6. We note that the Tribunal is not required to itemise and discuss every document that is before it in the making of its decision, and failure to itemise every document or every submission put is not an error of law. Further, the Tribunal is not required to address every authority or statute that may happen to be cited before it in submissions. The authorities for this proposition were cited in the Decision.
7. The Tribunal dealt with the issue of sufficiency of reasons at paragraphs [75]-[78] as follows: "75 By way of preliminary comment, I note that the applicant submitted that his evidence was not challenged and should be admitted as "proven facts". I have already referred to the task of the Tribunal and identified what I consider to be the issues to be considered. In determining this application, I am not required to make findings on every argument or every submission advanced before me. Nor am I required to record, in my reasons, every argument or submission made: Liang v University of Technology, Sydney [2018] NSWCATAP 285 (Liang), referring to Beale v Government Insurance Office of NSW (1997) 148 NSWLR 430 (Beale) at [443] and affirmed recently in EMF v Cessnock City Council [2021] NSWCATAP 234 (EMF) at [31]-[32]. 76 In his final written submissions, the applicant argued that the Tribunal was to consider the whole of his evidence before the Tribunal and not simply consider the information sought under the access application. In Mifsud v Campbell (1991) 21 NSWLR 725 (Mifsud), Samuels JA said at [728]: "… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case." (emphasis added) 77 The following remarks of Meagher JA in Beale at [443]-[444] (citations omitted) provide guidance in determining the sufficiency of a statement of reasons: "It follows, that reasons need not necessarily be lengthy or elaborate … The scope of the reasons to be given is … related "… to the function to be served by the giving of reasons". Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. [emphasis added]. … Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. … … In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal." [emphasis added] 78 The applicant (in paragraph 26 of Exhibit A1) was critical of the Tribunal for not mentioning in the Danis 2020 Decision the material he had provided in those proceedings that was critical of the family law system. In the proceedings before me, the applicant has annexed similar material to Exhibit A1. In my view, relying upon the reasoning in Liang, Beale, EMF and Mifsud, it is not necessary for me to refer to every document purportedly submitted as evidence in support of each party's position, or every submission made. In that vein, I do not intend to have regard to the material in Annexures "V", "W", "X", "Y" to Exhibit A1 because in my view they are not relevant to the issues to be considered."
8. In our view, there was no error of principle in this approach.
9. Having considered the Tribunal's quite lengthy, detailed and considered Reasons, we have no hesitation in concluding that they are adequate and do not reveal any error of law in this regard. In particular, the Tribunal's reasoning process was logical and defensible. The Tribunal undertook in an adequate manner the following tasks: 1. identified the issues; 2. identified the relevant law; 3. had regard to the parties' evidence and authorities; 4. discussed the parties' submissions in relation to each of the relevant issues for determination; 5. outlined the Tribunal's findings and conclusions on the basis of the critically relevant material before it and had regard to relevant authorities the Tribunal found to be persuasive; and 6. reached a conclusion.
10. Accordingly, we reject ground 2.

Ground 3: The Tribunal erred at law

1. Under this ground, the appellant put forward a number of alleged errors of law or principle. They can be summarised as follows: 1. the Tribunal misconstrued the principle in Commissioner of Police (NSW) v Barrett [2015] NSWCATAP 68 (Barrett) and wrongly distinguished JY v Commissioner of Police, NSW Police [2008] NSWADT 306 (JY); 2. the Tribunal erred in its construction of s.121 of the Family Law Act (FL Act); 3. the Tribunal erred in failing to take into account the appellant's submissions in relation to s.18(1)(b) of the Privacy and Personal Information Act 1998 (NSW) (PPIP Act); and 4. the Tribunal failed in its construction of the public interest test.
2. Dealing with each of these contentions in turn.
3. The Tribunal applied Barrett's case at [105]-[109]: "105 As set out in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 (Barrett) at [136]: "[136] It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that "disclosure … could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct." As expressed, this consideration carries an imputation in relation to the agency's conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal's reasons to indicate that it had any material that "could properly be expected to reveal" the types of improper conduct to which the above formulation refers." 106 In Barrett, the Appeal Panel found that the Tribunal did not have any evidentiary basis for a finding that the Commissioner of Police or an officer of the NSWPF had engaged in misconduct or negligent, improper or unlawful conduct. In the proceedings before me, the applicant argued that Annexure "Z" to his affidavit was part of a "cover up" to protect the dishonest police officers involved in the investigation of the alleged assault of his son. Annexure "Z" is a letter from the NSWPF to the applicant advising him that they had reviewed and assessed the applicant's complaint and that the documents reviewed (including the FLA transcripts) did not contain any evidence that support charges against the Third Party. On its face, Annexure "Z" does not provide evidence for a finding as alleged by the applicant. 107 Paragraphs 33, 34, 35, 36, 37 and 38 of the applicant's affidavit contain a number of assertions which represent his personal views that officers of the respondent regularly break the law and fabricate false evidence. They are not supported by objective evidence put before this Tribunal that DS Ferns or any other person has provided information or a statement that is false or misleading in a material respect in the proceedings before me. 108 The applicant's allegations (which are strongly refuted by the respondent) about the conduct of officers of the respondent under the Police Act, the Oaths Act, the Crimes Act and the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act) are not among the issues for determination by this Tribunal. Further, the Tribunal does not have jurisdiction to make findings in relation to allegations of non-compliance with that legislation (a matter that the applicant acknowledged in his submissions filed on 21 April 2021). 109 On the basis of the material before me, I regard the applicant's submissions that DS ferns failed to comply with his obligations under s 71 of the NCAT Act as having no basis. I refer also to my earlier comments on the evidence of DS Ferns whom I found to be truthful and a witness who, under oath, gave clear and direct answers to questions under cross-examination."
4. In our view, the Tribunal correctly applied Barrett but found on the facts and evidence that the requisite threshold was not met. No error of law as a result arises.
5. In relation to JY, it was plainly open to the Tribunal to distinguish JY on its facts when considering what weight, if any, to give to the public interest factors in favour of disclosure. This was dealt with by the Tribunal at [175]-[179].
6. The Tribunal dealt with s.121 of the FL Act at [83]-[89] as follows: "83 On a proper reading of s 121(1) and s 121(3) of the FLA, the use of the disjunctive "or" immediately preceding "of any part of any proceedings" means that the restriction on publication is not limited to circumstances where an account of the proceedings is provided. 84 As explained in the Danis 2020 Decision at [87], while family law proceedings are generally held in open court under s 97 of the FLA, s 121 of that Act prohibits the publication or dissemination beyond the courtroom to the public at large, of an account of the proceedings (and I add to that "or any part of any proceedings") which identifies the parties or those related to them. The policy behind s 121 was discussed by Chief Justice Bryant in AH & SS [2005] FamCA 854 at [26]-[27]: "[26] Section 121 of the Act was inserted into the Family Law Act upon its inception. It is commonly accepted that when the Family Law Act was enacted, section 121 was placed in the Act to overcome prurient reporting that had occurred prior to the passing of the Family Law Act in relation to parties who were involved in divorce proceedings. [27] Initially the court was a closed court, but subsequent amendments to the Act made the court open so that members of the public were free to attend and listen to and observe the proceedings. What they were not permitted to do however, by virtue of section 121, was to publish an account of the proceedings which identified parties or witnesses in the manner that I have described." 85 Even if the interview (or part of the interview) between the police and the Third Party had been played in open court in the family court proceedings (and the evidence of the applicant is that it was not played), s 121 of the FLA clearly prohibits the publication or dissemination to the public at large of an account of the proceedings, or any part of the proceedings, which identifies the parties or those related to them. 86 I accept that, as a matter of practical consequence, in his cross-examination of the Third Party in the family law proceedings, questions drawn from the applicant's reading of the transcript of the Third Party's interview with police may have disclosed information contained in the transcript of that interview. 87 However, in line with the reasoning in the Danis 2020 Decision at [88], while some information contained in the transcript of the police interview with the Third Party may have been disclosed in the court room in the family law proceedings, the public at large outside the courtroom would not have access to the information because of the restriction on publishing and reporting imposed by s 121 of the FLA. 88 Notwithstanding that part of the interview with the applicant's son had been played in the family law proceedings, it was not "revealed" for the purposes of the Act: Danis 2020 Decision at [88]. The Appeal Panel in the Danis Appeal Decision at [83] rejected the appellant's contention that Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 (Richards) is authority for the proposition that in all cases information disclosed in open court has "been publicly disclosed". 89 I find that the Withheld Information (also containing the personal information of the Third Party) was not publicly disclosed to the world at large and has not been "revealed" as defined in, or for the purposes of, the Act."
7. In our view, there was no error in this construction of the section which we note was also consistent with the Tribunal's construction in Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAP 138.
8. In respect of the PPIP Act, we note that the parties did not rely upon any public interest consideration against disclosure flowing from the PPIP Act as applied by s.14(3)(b) of the Act: see [6] and [7].
9. We also note that the Tribunal did have regard to s.14(3)(b) of the Act in making its final decision: see [150].
10. In our view, the appellant has not identified any error of law in these circumstances.
11. Finally, in respect of whether or not the Tribunal applied and construed the public interest test correctly, we note the Tribunal dealt with these matters in detail, in particular at [37]-[58]. No error of law has been demonstrated to arise from the Tribunal's interpretation or application of this public interest test.
12. Accordingly, we reject ground 3.

Ground 4: The Tribunal made findings without evidence or in the face of the evidence

1. The appellant's submission in this regard is that the Tribunal erred by failing to refer and deal with each of the documents itemised and tendered by the appellant. In our view, we have already dealt with this submission in our reasons in rejecting ground 2. In our view, no error of law has been demonstrated under this ground.
2. Accordingly, we reject ground 4.

Ground 5: The Tribunal's fact-finding process was erroneous

1. The submissions in support of this ground are dealt with in conjunction with the lengthy submissions made in support of ground 1 to the effect that the Tribunal, according to the appellant, failed to have proper regard to the evidence led by the appellant. In particular, the appellant attacked the Tribunal's finding that the evidence of DS Ferns in its critical aspects should be accepted and that he was a credible and honest witness.
2. In our view, it is clear that leave to appeal is required to entertain this ground of appeal: s 80(2) of the NCAT Act.
3. The Appeal Panel in Collins v Urban [2014] NSWCATAP 17 (Collins) considered the principles which generally guide a determination as to whether leave to appeal should be granted.
4. As a general principle, the Appeal Panel in Collins determined that "the applicant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at": at [84]. Further, with respect to factual matters, leave should only be granted where "the factual error was unreasonably arrived at and clearly mistaken" or where the Tribunal has "gone about the fact-finding process in such an unorthodox manner … that it was likely to produce an unfair result": at [84].
5. In our view, the Tribunal clearly dealt with the evidence before it with care and considered the relevant issues in relation to DS Ferns' evidence in detail. The Tribunal's conclusion in accepting the evidence of DS Ferns was plainly open to it.
6. By way of example, without being exhaustive of the relevant passages in the Decision, we quote paragraphs [118]-[120] of the Decision: "118 In the proceedings before me, the repeated evidence of DS Ferns that the Third Party participated in an interview with the police, was not contradicted by direct evidence. On the material before me, including the Confidential Material (Exhibit CR1), I am of the view that the Third Party engaged in an interview with the police voluntarily, and did so on the understanding that the information would remain confidential. 119 I accept the evidence of DS Ferns who has spent the majority of his career (spanning around 20 years) with the NSWPF in criminal investigations, as reliable and credible. He has personally investigated approximately 200 child abuse cases and supervised well in excess of 1000 child abuse cases, figures which he said (in oral evidence) were underestimated. DS Ferns therefore has the experience to assert that the police could not carry out their functions if the community did not trust and support them, and come forward to inform or report on criminal activity, and to cooperate with them "to provide information in order to solve crimes." 120 The applicant cross-examined DS Ferns vigorously and at length on the level of public trust in the police. The applicant referred to a stream of cases as reported in the media about professional standards in the NSWPF, asserting that police continue to engage in misconduct and unlawful conduct. In paragraph 32 of his affidavit, the applicant contended that DS Ferns' statements about the public trusting the police are 'misnomers'. With reference to Annexure "AA" to Exhibit A1 (the results of a global survey published in 2019 by Ipsos), the applicant contended that, globally, people do not trust the police. DS Ferns disagreed with the applicant's assertions, saying that the police investigate and prosecute thousands of domestic violence cases and are trusted by the public."
7. In our view, leave to appeal to raise these issues of fact should not be granted under s.82(b) of the NCAT Act when, in our view: 1. no error of law has been established; 2. the Tribunal's decision is reasonably open to it; 3. the Tribunal's fact-finding process was orthodox; 4. the Tribunal did not have regard to any wrong principles in relation to its decision; 5. the Tribunal's Decision does not involve issues of principle or give rise to questions of public importance.
8. The appellant also made submissions about the failure of the Tribunal to accept its case that officers of the NSW Police Force engaged in misconduct. In our view, it was reasonably open to the Tribunal to conclude that the evidence did not establish misconduct having been undertaken by any particular police officer or any criminal offence having been committed by any particular officer.
9. The Tribunal on the other hand accepted that an allegation of misconduct may be a public interest consideration in favour of disclosure, as set out in the notes to s.12(2)(e) of the Act. The Tribunal thereby regarded that public interest consideration in favour of disclosure: see [164]-[174] of the Decision.
10. There was no error of law or unorthodox fact-finding process in the Tribunal's conclusions and treatment of the allegation of misconduct or criminal behaviour by particular police officers.
11. Accordingly, leave to appeal to raise this ground is refused and otherwise this ground of appeal is dismissed.

Ground 6: The hearing miscarried

1. We note that in the appellant's notice of appeal and particulars to the notice of appeal no detail is given of this allegation.
2. In the appellant's written submissions, the appellant argued that the hearing miscarried because: 1. the Tribunal failed to "keep track" of documents marked for identification, admitted into evidence and used during cross-examination; and 2. the Tribunal failed to take into consideration the appellant's evidence.
3. In our view, we have sufficiently dealt with such contentions in our reasons in dismissing the above grounds of appeal.
4. Accordingly, we reject this ground of appeal.

Other ground of appeal: bias

1. We note that the appellant in his written submissions contended that the Tribunal "favoured" the respondent. The examples of this contention were said to be the Tribunal's preference for the evidence of the police officers over the contentions and evidence of the appellant. In our view, such contention cannot make out any case of bias for the reasons given above in rejecting the other grounds of appeal.
2. In oral argument, the appellant raised for the first time the suggestion that the Tribunal was biased against him in seeking to restrict his cross-examination and submissions to allegedly "relevant material". No transcript references were provided.
3. Given the lateness of this contention and the absence of any particulars, we decline to grant leave to the appellant to raise this additional ground of appeal.

Orders

1. The orders of the Tribunal are as follows: 1. Leave to Appeal is refused 2. The Appeal is dissmissed.

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: 16 March 2022