On 23 November 2012, the applicant Mr Neary was convicted by Judge Colefax sitting in the District Court of supplying cannabis on a number of occasions, of cultivating it in the large commercial quantity, of unlawfully selling three or more firearms within a 12 month period, and of possessing a military style weapon (a smoke grenade) without authorisation. He had pleaded guilty to these prior to the sentencing hearing on 31 August 2012, when agreed facts were handed up. They disclosed that Mr Neary had sold the cannabis and guns to undercover police involved in controlled operation no 11/22.
On 23 November 2012, he was sentenced to a term of imprisonment of five years and six months, with a non-parole period of three years and seven months, with time already served to count. His sentence was expressed to expire on 27 January 2015. He has served his term of imprisonment.
On 21 August 2013, while serving his sentence, Mr Neary sought access to three documents held by the NSW Police relating to the controlled operation. They were:
1. a request for approval of the controlled operation,
2. the approval itself dated 10 February 2011, and
3. the cost records for the operation.
On 6 March 2014, the Police decided to refuse his access application, on the grounds that the public interest in favour of disclosure was outweighed by the public interest against it.
On 26 November 2014, Mr Neary was advised by his counsel that there was no merit in an appeal against conviction or sentence because, among other things, his cannabis growing enterprise had been established prior to 10 February 2011 when controlled operation 11/22 was first authorised, and there was no evidence that the controlled operation itself was illegal. His counsel did, however, advise that:
… the failure of the DPP or the NSW Police to disclose material relevant to the legality of CO11/22 could potentially form the basis of an appeal as Mr Neary would not necessarily have pleaded guilty had such evidence of illegality been disclosed.
To illustrate the point, Mr Neary produced to the Tribunal:
1. a paper delivered at the 2013 Public Defenders' Criminal Law Conference on the ethical duties of prosecutors, including the duty to make proper disclosures to the defence, and
2. a submission made by the Law Society of NSW to the Department of Premier and Cabinet on 31 March 2011 reviewing the operation of the Law Enforcement (Controlled Operations) Act 1997.
Mr Neary explained to the Tribunal that he seeks access to the three documents concerned, in order to prove that the controlled operation was itself illegal, and to enhance his prospects of success on appeal against conviction.
On 4 December 2014, the Information and Privacy Commissioner recommended that the NSW Police conduct an internal review of its decision.
On 19 January 2015, on internal review, the NSW Police again refused access. This time, its refusal was based on the ground that there was a conclusive presumption of an overriding public interest against disclosure, because the documents had been created by the State Crime Command in the exercise of its functions concerning the collection, analysis or dissemination of intelligence.
On 16 April 2015, Mr Neary commenced these proceedings; seeking review by the Tribunal of the decision to refuse him access to the three documents the subject of his original access application.
In a supplementary decision made on 24 July 2015, the respondent decided to release to Mr Neary all three documents to which he sought access, subject only to redaction of the application to conduct the controlled operation, and parts of the documents relating to its cost. The authority to conduct the operation issued on 10 February 2011 was released in full. In making that decision, the respondent no longer asserted that the material was created by the State Crime Command in the execution of its intelligence gathering duties, but rather asserted that the public interest in favour of disclosure was outweighed by the public interest against it.
It is not disputed that the decision to release in full the authority to conduct the controlled operation was the correct and preferable decision. Mr Neary now seeks access to the information redacted from the application itself, and from the costs records.
In respect of the material redacted, the sole issue for determination whether the public interest in favour of disclosure is outweighed by the public interest against it.
[2]
Legislation
The Government Information (Public Access) Act 2009 empowers the Tribunal to review decisions of an agency in respect of an access application, including decisions to refuse to provide access to information: sections 80 and 100.
The function of the Tribunal on review is to decide the correct and preferable decision, having regard to the material then before it: section 63, Administrative Decisions Review Act 1997.
1. Where access has been refused, the burden of establishing that the decision under review is justified lies on the agency: section 105, Government Information (Public Access) Act 2009.
The objects of the Act are set forth in section 3 as follows.
Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5.
Clause 7(c) of Schedule 1 to the Act provides that information in "a document created by the State Crime Command of the NSW Police Force in the exercise of its functions concerning the collection, analysis or dissemination of intelligence" is conclusively presumed to be subject to an overriding public interest against disclosure.
A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information: section 9.
There is a general public interest in favour of the disclosure of government information: section 12(1).
Public interest considerations in favour of disclosure include, but are not limited, to, the factors listed in subsection 12(2).
Except in the case of documents listed in Schedule 1, there is an overriding public interest against disclosure of government information if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: section 13.
In effect, on review by the Tribunal, the Act requires that the agency prove that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. This has been referred to by the Appeal Panel as the 'weighing of the balance required by section 13': Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 [at paragraph 22].
Except where the decision is of a kind listed in Schedule 1 to the Act, in weighing the balance required by section 13, the only public interest considerations against disclosure which may be taken into account are those set out in the Table to section 14: section 14(2).
The words, 'could reasonably be expected' in section 14 are to be given their ordinary meaning, and require something more than a possibility, risk or chance of the relevant event occurring, assessed objectively: see Salmon v Corrective Services NSW [2016] NSWCATAD 257 [at paragraphs 22 - 30] and the cases there cited.
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set forth in section 15, which are as follows:
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
In determining whether there is an overriding public interest against disclosure, an agency is entitled to take the 'personal factors of the application' into account: section 55(1). These are:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
Those factors may only be taken into account as factors against providing access to the extent that they relate to whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 of the Table to section 14: section 55(2).
[3]
Mr Neary's evidence
Mr Neary gave evidence by way of a number of affidavits sworn by himself and by an associate, Luke Johnson. Those affidavits describe the background facts generally, and in particular his interactions with Luke Johnson, and with other persons including Daniel Martens (deceased), Scott Richards and various police officers involved in the investigations which led to Mr Neary's arrest. They go to the reasons why he considers the controlled operation to have been conducted illegally. The issue as to whether the conduct of that operation was within the confines of the law is not among the issues for determination by this Tribunal. For that reason, it is unnecessary to describe the contents of those affidavits in detail.
Mr Neary also produced a statement of one of the undercover police officers involved in the controlled operation. For the same reasons, it is unnecessary to describe its contents.
Mr Neary also produced the remarks on sentence of Judge Colefax, which detailed the offences of which he was convicted and for which he was sentenced. He also tendered the police facts sheet provided to him by the prosecution, and the facts sheet provided to the judge at sentence hearing, from which references to Luke Johnson had been removed.
These illustrated, in part, the reasons why he felt there was some prospect of success on appeal. As the correctness of his convictions and the sentences passed is not a matter for determination by the Tribunal, it is unnecessary to consider this evidence further.
[4]
Evidence of Detective Sergeant Kiem
Detective Sergeant Kiem gave evidence by way of a statement and oral evidence. She was cross examined. She said that she had been a Detective Senior Constable serving with the Firearms and Organised Crime Squad within the respondent's State Crime Command from 2009 to 2012. She had served as an investigator with Strike Force Lindner which was set up to investigate the illegal supply of firearms, explosives and drugs.
She said that on 17 February 2011 Luke Johnson was arrested and charged with firearms and drug offences. On 8 February 2011, she completed the application for authority to conduct a controlled operation under the Law Enforcement (Controlled Operations) Act 1997.
On 10 February 2011, she said, her application was approved by Detective Superintendent Lanyon, of the Organised Crime Directorate, State Crime Command.
From 10 February 2011 to 28 June 2011, she said, police purchased drugs and firearms from Mr Neary in the course of the controlled operation. She detailed telephone intercepts conducted as part of the investigations, and the inclusion by police in the brief of evidence of transcripts of those intercepts. She provided copies of the indexes to three briefs of evidence served on Mr Neary. She said these briefs contained all the material relied on by the prosecution.
She confirmed that Luke Johnson's name had been removed from the facts sheet provided to Judge Colefax because, she said, the references to him were irrelevant to the case against Mr Neary. She noted there had been no objection by the applicant to this course.
Much of her evidence responded to, and denied, Mr Neary's suggestions that she had obtained authority to conduct the controlled operation by using false information. In particular, she denied that she had used telephone intercepts falsely attributed to Mr Neary in order to obtain approval. There is no evidence to suggest otherwise.
There is nothing inherently improbable about her evidence. It was internally consistent. It was not contradicted by other evidence. She did not resile from it in cross examination. I accept her evidence as accurate.
[5]
Statement of Detective Superintendent Blackmore
Detective Superintendent Blackmore gave evidence by way of a statement. He is the Commander, Operational Intelligence, of the State Crime Command. He has served as an officer of police for 28 years.
He said that police rely heavily on informants from the community to provide them with intelligence as to criminal activities, the more so now that criminals are effectively using encrypted mobile phone technology to avoid detection. Informants can include persons known to the criminals under investigation, including the victims of crime, and the associates of the criminals themselves.
Criminals, he said, impose a strict rule of confidentiality among their associates. Where an informant breaks that confidentiality, their personal safety and that of their family is at risk of retribution. He detailed a number of retributions, including situations in which the informant was known to have been murdered as a result of giving information about criminal activity.
He noted that some informants participate in, or provide information in respect of, controlled operations.
An informant providing information on a regular basis, he said, is registered with the police and referred to as a "registered source". To protect their identity, they are given an identifying number in police documents. Their true identity, he said, is 'carefully guarded' and known to few police. This is to protect them and their families from harm, to comply with the undertakings routinely given them by police not to disclose their identities, and to protect the continued flow of information from them.
Detective Blackmore said that it was highly likely that the flow of information would cease if informants thought their identities might be disclosed by police, either directly by releasing their names, or indirectly by releasing information about them which might lead to their identification, such as their place of work, their presence at an identified event, or an array of different information which, together with other information, might be used to identify them.
He noted Detective Sergeant Kiem's application for approval of the controlled operation 11/22. He said the disclosure in full of applications for approval would prejudice the future supply of information to the police, and the prevention, detection or investigation of criminal activity, by discouraging police from making such applications for fear of harming their informants.
He also observed that disclosure of applications for approval generally had the potential to confirm any suspicions which might be held by the criminals under investigation as to the identity of informants.
He said that such applications were required to disclose a plan for the operation. This discloses the process, methodology and tactics used in the covert operations, including specialist techniques to infiltrate criminal rings and to ensure that the criminals act as they would normally do in order to allow the collection of evidence.
He said sophisticated criminals are vigilant to detect conduct indicating police involvement, and it was important that the covert investigation techniques were not known generally or disclosed to criminals, for instance by disclosing operational plans in applications for approval of controlled operations. If those techniques were disclosed, the effectiveness of controlled operations would be compromised, he said.
He said these police techniques included the methods of funding these operations, including the level of funding and the methods of obtaining and supplementing it as needed. He referred specifically to the operational plan proposed by Detective Sergeant Kiem, and observed that this disclosed the police methodology. He considered that its disclosure would prejudice the prevention, detection or investigation of crime.
He said disclosure of the bureaucratic methods by which funds were obtained by police, would better enable criminals to understand how police operate, and how to avoid a covert operation.
Superintendent Blackmore's evidence was not challenged. By virtue of his senior position in the State Crime Command, and of his long police service, I accept that he possesses significant expertise in the field of criminal investigation, and is highly qualified to express the opinions above. There is nothing about those opinions which is inherently improbable. I accept his evidence as reliable and accurate.
[6]
Respondent's confidential evidence
The confidential exhibits tendered by the respondent included unredacted versions of the application to conduct the controlled operation, and the costs records for it. These are considered below. In light of the conclusions to which I have come, it has not been necessary to consider other confidential exhibits tendered.
The application to conduct the controlled operation was signed by Detective Sergeant Kiem on 8 February 2011. I am satisfied that she prepared and signed the documents, and that she did so in the course of her duties as an officer of the State Crime Command.
The redacted material identifies by number the registered source who provided the intelligence which led to the approval request, detailed the involvement of that source in another controlled operation, and detailed intelligence revealed by other sources about the applicant's criminal activities. Where known, those sources were identified by number in the document. The redacted material also set forth a plan for the operation, revealing how the registered source and undercover officers were to participate in the operation. It detailed methods of surveillance conducted and to be conducted in respect of the applicant. It gave information about the proposed operatives to be involved in the operation, including their training. It expressed opinions as to whether it is necessary for the registered source to participate in the controlled operation and why. It detailed the level of funding already approved and spent, apparently for another related controlled operation already in progress.
[Not for Publication]
[Not for Publication]
It follows that the correct and preferable decision was to release the application for authority to conduct controlled operation 11/22, redacted in accordance with the supplementary decision of 24 July 2015.
The costs records for controlled operation 11/22 consisted of a series of Work Expenditure Vouchers prepared and signed by Detective Senior Constable Kiem (as she then was), and two other members of the State Crime Command, being Detectives Sergeants Nilon and Schell.
The redacted material in those vouchers discloses the level of funding and supplementary funding authorised throughout the course of the controlled operation, the dates on which (and, by implication, the stages of the controlled operation at which) that funding and supplementary funding was approved, the methods by which those funds were accounted for by police, and the operational uses to which the funding was put.
[Not for Publication]
[Not for Publication]
It follows that the correct and preferable decision was to release the costs records, redacted in accordance with the supplementary decision of 24 July 2015.
[7]
Findings and orders
For the reasons given, I find that the correct and preferable decision in respect of the access application made on 21 August 2013 was as follows:
1. To release the application for authority to conduct controlled operation 11/22 subject to the redactions made in accordance with the respondent's supplementary decision dated 24 July 2015.
2. To release in full the authority dated 10 February 2011 to conduct controlled operation 11/22.
3. To release the costs records for controlled operation 11/22 subject to the redactions made in accordance with the respondent's supplementary decision dated 24 July 2015.
The decision made on 6 March 2014 is accordingly set aside and replaced with a decision to release the above documents subject to the redactions listed above.
[8]
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
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: 07 June 2018