Goulton v Commissioner of Police

Relevant legislation

1. Section 58 of the ADR Act obliges the Commissioner to lodge with the Tribunal, amongst other things, a copy of every document or part of a document that is in the possession, or under the control, of the Commissioner that the Commissioner considers to be relevant to the determination of the Substantive Application by the Tribunal.
2. There is express provision, in the FA Act for evidence to be withheld from an Applicant and from the public. Section 75(5)(a) of the FA Act provides that the Tribunal "is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in s 11(5A) or 29(3A). Section 75(5)(b) provides, "in order to prevent the disclosure of any such report or other information," the Tribunal "is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant's representative." However, the Commissioner did not rely on Section 75(5) of the FA Act in respect of the present application. Instead, the Commissioner relied on ss 49(2) and 64(1) of the CAT Act.
3. Section 49 of the CAT Act is headed "Hearings to be open to the public". At s 49(1) is the general provision that hearings will be open unless the Tribunal orders otherwise. Section s 49(2) provides that the Tribunal may "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" order that a hearing be conducted wholly or partly in private.
4. Section 64 of the CAT Act is headed "Tribunal may restrict disclosures concerning proceedings". Section 64(1) relevantly states: (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) … (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. …
5. Section 59 of the ADR Act gives the Tribunal the power to direct that the Commissioner is not required to lodge certain documents which would otherwise be required by s 58 of that Act. Relevantly s 59 provides that the Tribunal may make such an order on application by the Commissioner if: (2)(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.

Material before the Tribunal

1. In support of the Miscellaneous Matters Application, the Commissioner relied on the affidavit of Senior Constable Rebecca Nethercote (the Senior Constable) affirmed 18 August 202, the document styled "Open Submissions for Respondent on the Application for Miscellaneous Matters filed 15 July 2021" (Respondent's Open Submissions) and the oral submissions of S Huang, solicitor, during the open hearing.
2. [NOT FOR PUBLICATION]
3. Mr Goulton relied on written and oral submissions by Mr McMahon of counsel.

The evidence

1. In the internal review requested by Mr Goulton, the Commissioner relied on findings of fact including, in summary: 1. The Applicant was charged with aggravated breaking and entering a property and committing a serious indictable offence with violence and in company in 2019, which was later withdrawn; 2. A search of the Applicant's residential address located prohibited drugs, a prohibited weapon and a vehicle believed to be rebirthed; and 3. The Applicant is a confirmed member of the Mongrel Mob Outlaw Motorcycle Gang (''Mongrel Mob OMCG"), which is well known for its involvement in violent organized crime and use of firearms and prohibited drugs.
2. As at August 2021 the Senior Constable was performing duties within the Raptor Squad of the State Crime Command, targeting mid to large scale organised crime involving 'criminal groups' and/or outlaw motorcycle gangs (OMCGs).
3. The Senior Constable's work included review and analysis of intelligence information relating to 'criminal groups' and OMCGs. The work also includes the investigation of criminal activity of OMCGs in regard to serious offences, prohibited drugs and firearms offences, interviewing suspects in relation to those offences and involvement and coordination of search warrants of homes and businesses of suspects.
4. The Senior Constable was authorised to make the 18 August 2021 affidavit on behalf of the Commissioner. The Senior Constable affirmed that the facts and matters set out in the affidavit are true to the best of her knowledge, information and belief.
5. Except where otherwise stated, the Senior Constable deposed to the matters set out in the affidavit from her own knowledge and from records held and maintained by the NSW Police Force (the Police).
6. The Senior Constable affirmed that the affidavit was prepared in support of the Miscellaneous Matters Application for the orders set out in that application, and reproduced at paragraph [7] in her affidavit, in respect of certain confidential information and material (the Confidential Material).
7. The Senior Constable affirmed that the Confidential Material comprises records and documents held by the Police that contain confidential criminal intelligence in respect of Mr Goulton. Such criminal intelligence was relied on by the Commissioner's delegate to make the Firearms Prohibition Order against Mr Goulton.
8. Based on her experience, the Senior Constable's evidence was to the effect that disclosure of any of the Confidential Material would or could: A. prejudice current and future investigations into criminal activity; B. identify confidential sources of information to law enforcement; C. expose Police methodology D. place identified persons at risk of harm; or E. pose a risk to public safety through further acts of violence.
9. The Confidential Material is only accessible by law enforcement personnel with clearance to access the material. The information in the Confidential Material has been collated and maintained by the Police and other law enforcement agencies to assist in the monitoring and investigation of criminal activity and those persons who participate in unlawful conduct. It is necessary, she affirmed, that such intelligence holdings remain confidential and not known to those the subject of them.
10. The Senior Constable affirmed that disclosure of the Confidential Material, would allow a picture to emerge showing what matters are known to the Police about the activities of the Applicant and persons other than the Applicant from which inferences could be drawn as to what matters are not known by the Police. While it is possible that the Applicant may suspect or know some of the information held by the Police about his activities, disclosure of the Confidential Material has the potential to confirm any such suspicions.
11. Law enforcement agencies rely heavily on assistance from persons who provide confidential sources of information, including "Human Sources" and informants. Such confidential information is widely regarded as an important and useful form of intelligence. If the identity of any individuals providing confidential assistance is disclosed, or such individuals were suspected (rightly or wrongly) of being confidential sources of any information in the Confidential Material, they may be subjected to acts of retribution. Further, those who may otherwise have supplied information to the Police may, in the future, be deterred from doing so.
12. There is a risk that persons, against whose interests a confidential source of information has acted, have a motive to engage in, or to procure, reprisals against the individual who provided the Confidential Material. The physical security, safety and protection of any Human Source of information is of paramount concern to the Police who are committed to ensuring and maintaining the security and protection of information relating to all Human Sources.
13. The Commissioner also relied on the Senior Constable's confidential affidavit and evidence given in a confidential hearing. I do not propose to discuss, in open Reasons, any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as "[NOT FOR PUBLICATION]": s 64(1) of CAT Act.
14. [NOT FOR PUBLICATION]
15. [NOT FOR PUBLICATION]
16. [NOT FOR PUBLICATION]
17. [NOT FOR PUBLICATION]
18. [NOT FOR PUBLICATION]
19. [NOT FOR PUBLICATION]
20. [NOT FOR PUBLICATION]

Consideration

1. I referred at [9] above to the usual rule in s 49(1) of the CAT Act that hearings are to be open to the public (including parties such as the Applicant). However, I also mentioned that s 49(2) of the CAT Act provides that the Tribunal may order that a hearing may be conducted wholly or partly in private. In reaching its decision, the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) CAT Act. Section 64(1)(d) CAT Act (see [10] above) permits the Tribunal to order that evidence be withheld from a party if the Tribunal considers this to be "desirable." The word "desirable" is to be interpreted with regard to the "basic common law precept of open justice": see State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (Dezfouli) at [61].
2. The written submissions for Mr Goulton, refer expressly at [5] and [10] to s 64. I have considered the written and oral submissions generally as well as having specific regard to those paragraphs. Paragraph [10] refers to the exercise by the Tribunal of its discretion and in particular submits that this exercise "includes consideration of the applicant's right to natural justice". I accept that submission.
3. It was submitted on the Applicant's behalf that the Tribunal should be mindful of the discretionary nature of s 64 of the CAT Act and that the question for the Tribunal is whether the circumstances are sufficient for the exercise of its discretion. It was submitted at [3] that there was nothing in the open material suggestive of any "identified history of possessing or even associating with firearms" and "the lack of prior criminal history is not consistent with" the Commissioner's claim (without providing any disclosed basis) that Mr Goulton is "confirmed to be a member of the Mongrel OMCG". The Applicant's counsel was critical of the Senior Constable's evidence and submits it was largely generic in its terms: at [6].
4. I observe that the provisions of s 64 by itself do not provide guidance as to how the discretion should be exercised.
5. In CYL v YZA [2017] NSWCATAP 105, the Appeal Panel, at [102] held that the Tribunal's power to make suppression orders is less constrained than the position at common law. The Appeal Panel adopted the reasoning in Dezfouli (which had examined comparable provisions in the Administrative Decisions Tribunal Act 1977 (NSW)). In Dezfouli, the Appeal Panel stated as follows at [50] and [81]-[82]: 50. Within the opening words of section 75(2) of the ADT 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. … 81. It is difficult if not impossible to set out in short form all the matters that, according to the case law ..., should be taken into account in deciding whether an order should be made under section 75(2). … 82. 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.
6. The Senior Constable's evidence satisfies me that the circumstances at hand are sufficiently "special" (per Dezfouli) so as to justify the making of confidentiality orders substantially being those sought by the Commissioner, for the following reasons:
7. Firstly, there is significant public interest in protecting police investigative techniques: see for example Brennan v State of New South Wales [2006] NSWSC 167 at [42] - [44] as follows: 42 … the issue now becomes whether public interest immunity operates to prevent publication of specific evidence and submissions touching or concerning the particular issues which I will identify below. Application of relevant principles to police methods and procedures 43 There has been surprisingly little judicial analysis of the application of public interest immunity to undercover police processes, including in particular, strategies and methodologies. 44 In addition to protecting ongoing and/or future investigations, immunity may also be claimed to prevent the disclosure of information that would reveal police methods of operation or of information which tends to disclose the channels by which police obtain their information: Woodroffe v. National Crime Authority [1999] FCA 1128 (Mansfield, J.); Young v. Quinn (1985) 59 ALR 225 at 234; Beneficial Finance Corporation Limited v. Commissioner of Australian Federal Police (1991) 103 ALR 167.
8. Secondly, s 58(1)(b) of the ADR Act requires the decision-maker to file with the Tribunal the material the decision-maker considers to be relevant to the determination of the Application by the Tribunal. The Respondent apparently considers that all the Confidential Material is relevant to the substantive matter. The relevance or the weight to be attached to that material remains to be determined in the substantive matter.
9. Thirdly, I am satisfied that it is more likely than not that disclosure of the Confidential Material would have a real effect on Police operations, and that there is a rational basis for the Commissioner's concerns.
10. There can be no doubt that there is a significant public interest in protecting the confidentiality of Police sources and not disclosing information concerning informants: see, for example Fisher v NSW Police [2002] NSWADT 267, at [34]; and Simring v Commissioner of Police [2009] NSWSC 270 (Simring), at [69].
11. [NOT FOR PUBLICATION]
12. The Senior Constable deposed at [19] of her affidavit that she was aware of the general principles of public interest immunity in court proceedings and that in court proceedings, the confidential material would be subject to claims of public interest immunity to prevent their disclosure and use. I accept that, generally, information that reveals the identity of a confidential informant is immune from production: Cain v Glass (No 2) (1985) 3 NSWLR 230, at [246]-[248]. I also observe that public interest immunity extends to the protection of confidentiality of Police methodology: McCausland v State of NSW [2010] NSWSC 1562 at [20].

Conclusion

1. I find that the Senior Constable's evidence and the submissions on behalf of the Commissioner make a strong case for the grant of confidentiality orders in respect of the identified documents and the conduct of the hearing.
2. Having regard to my above findings, the Tribunal's correct and preferable decision is to make the below Orders, substantially as requested by the Commissioner.

Orders

1. Pursuant to s. 49 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the hearing of this application, as well as the hearing in the substantive proceedings, be conducted in the absence of the Applicant, the legal representatives of the Applicant, and the public insofar as it relates to the Confidential Documents specified in the Confidential Affidavit
2. Pursuant to s. 59 of the Administrative Decisions Review Act 1997 (NSW), the Respondent is not required to lodge copies of the Confidential Documents specified in the Confidential Affidavit in support of the application and provided to the Tribunal in accordance with the orders of the Tribunal.
3. Pursuant to s. 64(1)(c) of the CAT Act, the publication of the Confidential Documents and the Confidential Affidavit, or matters contained in the Confidential Documents and the Confidential Affidavit, is prohibited.
4. Pursuant to s. 64(1)(d) of the CAT Act, the disclosure of the Confidential Documents and the Confidential Affidavit, or matters contained in the Confidential Documents or the Confidential Affidavit, to the Applicant or his legal representatives is prohibited.
5. Pursuant to ss. 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the transcript and recording of the confidential hearing in this preliminary proceeding are not to be published or released to the Applicant, the legal representatives of the Applicant, or the public.

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: 01 March 2022