Smith v South Australia Police [2025] SACAT 77

Smith v South Australia Police [2025] SACAT 77 | Case summary | Zoe

[25]

This hearing was conducted by telephone, pursuant to my directions of 4 July 2025. The respondent had submitted that a determination on the papers would be adequate in this matter, given the extensive submissions already made in this matter. However Mr Smith submitted that he wanted an oral hearing to ensure he was able to articulate his submissions, and he was concerned he might not be able to do so in written submissions alone.
Mr Smith also indicated he wished to call a witness at the full hearing of this matter.
Mr Smith told the Tribunal he wished to call a named police officer so he could cross examine him. The person he sought to call was a police officer involved in the police interview with Mr Smith on 27 December 2015, and who made the entry on Document 2. Mr Smith stated he wanted to cross examine the police officer on the statement he made in the PIIO that ... these are the FACTS that i rely upon. Mr Smith said he wanted to cross examine the officer on whether this statement truly represented his opinion, and if so, how that opinion had been arrived at, or whether he considered the allegations to be "facts".
I refused Mr Smith's proposal to call the police officer. Mr Smith only referred to cross examining the police officer. The respondent indicated it would not be calling the police officer to give evidence. Mr Smith cannot cross examine his own witness. In any event however, I was not satisfied that any evidence the police officer could give would be relevant to these administrative review proceedings, where the issue before the Tribunal is not whether the underlying substance of the matters referred to is incorrect or misleading, but whether the information in the documents concerning the matters is incorrect or misleading. As the substance of the matter is not before the Tribunal, and the Tribunal's role is to determine if the Determination not to amend the record is a correct or preferable decision, my view was that any evidence the police officer might have given was not likely to assist the consideration of the matter before the Tribunal.
I was satisfied an oral hearing could assist in this matter, despite the already large volume of written submissions from Mr Smith, and the oral submissions he had already made. I noted that Mr Smith was not legally represented, and was very concerned that only in an oral hearing he would be able to ensure his submissions were clearly before the Tribunal.
Accordingly, I directed this matter proceed to a full hearing by telephone, with submissions to be made based on the written submissions already provided.

[32]

Mr Smith made numerous written submissions in support of his application. I shall set out and address the substance of his submissions below. However, the nature of his submissions also requires some comment, as it affects both the weight to be provided to some of the submissions, and raises some broader concerns.
Mr Smith's principal written submission is contained in a lengthy (30 page) document filed on 21 July, in response to the respondent's Outline of Argument.
This document addresses only Mr Smith's submissions in respect of Document 2. It does so in a repetitive manner, repeating the same submissions in a slightly different form, and appears to have been generated through an artificial intelligence (AI) model. I have concluded this is the case for several reasons, including the repetitive content; the language used (and in some circumstances referring to Mr Smith in the second person, for example, "your case"); the format of the submission; and the citation of "hallucinated cases" purportedly in support of the submissions. I note there are also a number of references to incorrect or irrelevant sections of the FOI Act, possibly references to similar legislative provisions in other jurisdictions.
That some or all of the cases cited in support of his submissions by Mr Smith are "hallucinated cases" was drawn to the Tribunal's attention on 14 August, the day before the full hearing on this matter, by the solicitor for the respondent.
It is not necessarily of concern to the Tribunal if a party before the Tribunal obtains some assistance in making submissions from AI or any other source. However, submissions made to the Tribunal are required to be serious and relevant submissions, not containing irrelevant or misleading material, especially misleading authorities on which the Tribunal might rely and be misled.
Although alerted to this issue by the respondent's submission of 14 August, Mr Smith did not address this in his oral submissions at the hearing, and he did not produce the cases referred to, concentrating in the hearing on his submissions concerning Document 1, which are not addressed in the 21 July document.
In his submission of 21 July, Mr Smith refers to a number of cases in support of various submissions concerning the interpretation and application of the relevant legislation. Five of these cases (Re Traynor and Department for Social Security (1985) 8 AL:D 531; Re Ryle and Department of Social Security (1985) 7 ALD 442; Creed v Queensland Police Service [2021] QI Cmr 38; Crewdson v Central Gippsland Health Service [2002] VCAT 639); and French v Sydney Turf Club Ltd (No2) [2002] NSWADT 98), could not be located and verified. Two other cases, cited as Crewdson v Central Sydney Area Health Service [2002] NSWADT 98 (this is the reference given for French v Sydney Turf Club Ltd (No2)), and Crewdson v Central Gippsland Health Service [2002] VCAT 639), are located at those references as Crewdson v Central Sydney Area Health Service [2002] NSWCA 345, and Crisera and Anor v Mildura SC [2002] VCAT 639. However, neither of those cases contain the passages referred to in Mr Smith's submissions.
"Hallucinated cases" is the term given to cases generated by AI which are not actual cases but are presented as though they are actual authorities. "Hallucinations", in this context, are made up or false cases presented as real authorities purportedly and misleadingly presented as actual authorities providing or supporting a legal proposition or authority which is submitted as applicable in the matter before the court or tribunal.
Presentation of "hallucinated" misleading material in submissions before a court or tribunal is a serious matter. It potentially misleads the other party and the court or tribunal. It is for this reason, dishonest. It creates significant and unproductive work for the court or tribunal and for the other party in the proceedings, as the purported authority must be checked, and when it is not located, or the excerpt is not located, according to the citation given, a further search must be undertaken to ensure there has been no oversight. In this matter, nine authorities had to be searched for: only two of them, not actually cited in Mr Smith's submission, were able to be located. Such presentation wastes the time of the court or tribunal, and so directs a misuse of public money, as well as the time (and costs) of the other party in the matter.
This concern was identified in Weedbrook v Partlin [2024] QDC 194, where Porter DCJ made the following comment:

[34]

Further comment was made in Finch v The Heat Group Pty Ltd [2024] FEDFC 161 at [128] - [138], where a self-represented litigant emailed 24 purported authorities to the court. Some of the citations provided were for different cases, and some for cases that did not exist at all. The Court referred to this as an egregious instance of the self-represented litigant misleading the Court, where there was a possibility (if, for example, an ex-tempore judgement had been delivered), that a court could have relied on the summaries of the hallucinated cases, and fallen into substantial error.
Three of the cases referred to by Mr Smith in his submission have been located, namely, Re Dyki and FCT (1990) 12 AAR 3445, and (1990) 22 ALD 124; Re Waterford and Department of Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588; and Crewdson v Central Sydney Area Health Service [2002] NSWADT 98. However in my view these cases do not support the propositions advanced by Mr Smith in his written submission, and he did not address them in his oral submissions.
It is a real concern that references to non-existent cases ("hallucinations"), or non-existent quotes from cases, are included in written submissions. Such reference in a submission is a different matter from submissions based on a misunderstanding of precedent cases, or an interpretation of authorities disputed by the parties and not accepted by the court or tribunal.
It creates a significant amount of pointless work and uncertainty in the management and determination of the proceedings, and is contemptuous of the role of the court or tribunal and the rule of law: that is, it suggests that it is immaterial if the court or tribunal is misled or tricked, and that the substance of the law and the court or tribunal process - that is, applying the law correctly, "getting it right", achieving a correct outcome in the proceedings, which are central concerns of courts and tribunals, and essential to the proper functioning of government and community - are unimportant considerations, compared with putting a case that appears to support the person's case.
The role of the Tribunal is to determine if a decision subject to review before the Tribunal is "correct or preferable". "Correct" means correct according to law, and whether a decision is "preferable" requires the Tribunal to make an assessment of the appropriateness of a decision, taking into account the context, including the legal context, of the decision. The Tribunal is required to act in a fair manner, according to law, and this is emphasised in s 8 of the SACAT Act, which sets out the main objectives of the Tribunal, including the promotion of the "best principles of public administration". This function is undermined if parties misrepresent the legal principles for consideration in making decisions concerning proceedings before it. "Fake law" will not assist a consideration of whether a decision under review is "correct or preferable", or lead to a fair decision for all parties, promoting the best principles of public administration. "Fake law" threatens and undermines the rule of law.
This is not to suggest that the use of AI is itself necessarily wrong or inappropriate in the preparation of a party's submissions. AI is likely to be particularly attractive and useful to a self-represented applicant, as is the case in this matter, and indeed AI has a significant role in enabling access to the law and justice. However, AI models do not replace human research, verification and analysis to ensure that the information provided by an automated model is appropriate and correct. It cannot be assumed that a "submission" generated by AI will provide an accurate or appropriate submission addressing the relevant issues, as AI is not a research assistant or an encyclopaedia or search engine: it is merely a generator of words in a given context, based on statistical analyses. On this basis any material or submission generated by AI should not in itself and without further proper consideration and verification, be relied upon by the user. Nor does AI replace a qualified, educated and competent legal advisor.
I do not assume Mr Smith has deliberately presented the Tribunal with made up cases and irrelevant (and likely non-existent) excerpts from other cases, or that he included these with specific intent to mislead the Tribunal, and I note he did not rely on these in his oral submissions. I appreciate that self-represented parties before the Tribunal do not have the same professional duties to the Tribunal as do legal practitioners. Nevertheless, this remains a serious and concerning matter.

[36]

Mr Smith told the Tribunal he had never been charged by the police in the circumstances of the matter. He agreed he had been arrested on 27 December 2015 following complaints from his partner, and he was taken to a police station, and later released on bail. However, he told the Tribunal he was not charged with any offence, and the bail agreement was "wrongful bail". When he later attended at the Magistrates Court as arranged on 10 February 2016 no charges were laid before the Court.
Mr Smith said there was no evidence he had been charged. He told the Tribunal SAPOL had never issued a discontinuance notice, which he said would be necessitated by the withdrawal of a charge. He had applied for this notice to be disclosed by SAPOL, but this had been refused. He said that without such a notice there was no evidence that there was any charge.
Mr Smith agreed he had signed a Bail Agreement which referred to a charge against him having been made at 1.46 am on 27 December 2015. The Bail Agreement was entered into at 6.58 am on the same day, and required Mr Smith to appear in court in respect of that charge on 10 February 2016. Mr Smith told the Tribunal that there had in fact never been a charge, and the Bail Agreement evidenced in the document signed by him was "wrongful bail", and was proof only of illegal detention by SAPOL.
Mr Smith told the Tribunal there was no evidence to support the assertion by SAPOL that he had been charged. There was no reference to this alleged charge in the SAPOL Offender History Summary, which states "no charge" against his name; there was no filing of any charge before the Court on 10 February 2016; there was no withdrawal or discontinuance filed, and he had not been notified in any other way that any charge had been withdrawn. He said that SAPOL's failure to provide any documentary support indicated there had never been any charge against him. He submitted that the suggestion he had been "internally charged" was meaningless. The Custom Occurrence Report indicates "no records to display" under "CHARGES", and the Apprehension Report makes no reference to a charge.
Mr Smith told the Tribunal that the screen grab provided by SAPOL showing the charge of aggravated assault against him was an insufficient basis for the assertion that he had been charged. He submitted that a screen grab could be easily manipulated and should not be relied upon.
Mr Smith submitted that SAPOL could not be trusted, and that his circumstances had been caught up in a political environment, where SAPOL was expected to provide arrests of men relating to charges of domestic violence against women, as this was demanded of the police by government and the media. He said the police therefore "constructed" charges of assault relating to domestic violence event where they were completely unwarranted and unsupported, and then the "charges" just "went away". He said this was all a false set of circumstances, and concerns relating to men engaged in domestic violence were false and constructed in response to a political and media "narrative", not reality.

[37]

Mr Smith's lengthy written response addressed this aspect of his application, in addition to his other email submissions and his oral submissions at the hearing.
Mr Smith told the Tribunal the reference in Document 2 to the "FACTS" of an alleged assault on his partner was presented to the Family Court in the course of proceedings he was involved in with his partner in that Court. He said the document was presented to the Court as evidence of certain facts, but Mr Smith said these "facts" had never been proved in a court, and in fact the intervention order they related to had been withdrawn. He said this was evidence of the "misleading" nature of the information contained in the record and why it should be amended. Mr Smith said it didn't matter what the context of the information was, as the matters referred to were allegations only, not facts as stated, and as "facts" they were being held against him. Mr Smith told the Tribunal he should not have to explain to a judge (or anyone else) that if the context was taken into account it was clear they were not established facts: he said the document itself should make this clear by not recording them as "facts".
Mr Smith also rejected SAPOL's argument that Document 2 documented the police officer's opinion as required by the relevant legislation in order to pursue a Police Initiated Intervention Order. Mr Smith said he knew that the police officer did not hold this opinion, because the police officer told him at the time of his arrest that he had no view on what had occurred and that "the truth is probably in the middle". Mr Smith submitted that the police officer could not have held the view expressed to him and later hold the view that in his opinion there were "facts" to support the PIIO. Mr Smith asserted that if this was the case, the police officer had changed his mind "because of the need to fit into the narrative" required about men engaged in domestic violence against women.
In addition, Mr Smith submitted that the police officer had no right or power to decide any "facts" concerning him, as he was not a court, and was in any event bound by the Universal Declaration of Human Rights which required him to treat all as "innocent until proven guilty", and Mr Smith had never been proven guilty.

[38]

Ms Toubanakis for SAPOL submitted that the Ombudsman's Determination, in part reviewed and confirmed in the reconsideration decision of 16 April 2025, should be affirmed as both correct and preferable, and that neither document should be amended. She relied largely on her written submission of 19 June 2025 but also made oral submissions.
At the commencement of the hearing Ms Toubanakis addressed some of the authorities referred to by Mr Smith in his written submission of 21 July.
She referred to Crewdson v Central Sydney Area Health Service [2002] NSWCA 345, where an amendment of records on the ground that they were not up to date, was refused. In that case the NSW Court of Appeal identified that the object of the record is the quality of the information, as opposed to the quality of the process which established the information, as the focus is on the record and its contents. The Court of Appeal's view was that records by their nature are representative of what was considered relevant or necessary information at the time the record was created, and it is only with respect to "unvarying" facts that they will remain "up to date". The issue then is whether the information was "up to date" when recorded.
In Crewdson, the NSW Court of Appeal considered whether the record of a medical opinion should be amended as incorrect because the procedure in obtaining the record had been legally flawed. The Court of Appeal rejected this argument, and took the view that the application was effectively a collateral review of the merits of the process. The Court rejected this approach, taking the view that an action under Freedom of Information legislation could not be used as a vehicle for collateral review of the merits of some other action.
In respect of the specific application for the amendment of records containing a medical opinion, and whether the opinion could be considered misleading, the view taken by Handley J was that a medical opinion is "the product of the application of medical knowledge and skill", and he accepted it was a correct statement of the doctor's opinion at the time, and so could not be considered out of date at the time the record was created, but was an accurate report of opinion at the time the record was created, and its "correctness" was not impacted upon by any failure of process.
Ms Toubanakis submitted this case has some relevance to the issues, but does not support Mr Smith's submissions that the documents be amended.
Ms Toubanakis also referred to some of the other cases cited by Mr Smith in his written submission which she had identified and located, and she questioned their relevance to his application. These were Welsh v R [2024] SASCA 29, concerning the meaning of "taken into custody"; Waterford v Department of Treasury (No 2) [1984] AATA 67; Re Dyki and the Commissioner of Taxation (1990) 12 AAR 544, concerning whether a freedom of information application was within the exemptions in the relevant legislation; French v Sydney Turf Club (No 2) [2002] NSWADT 98, which was concerned with how the applicant's physical restrictions were accommodated by an employer; Central Sydney Area Health Service v Crewdson [2001] NSWADTAP 44, concerning amendment of records; Crewdson v Central Sydney Area Health Service [2000] NSWADT 184; and Crisera and Knight v Mildura SC [2002] VCAT 639, which concerned the sub division of land.

[39]

Ms Toubanakis submitted that the record in question, which includes the following passage "... and later charged with aggravated assault", should not be amended, as it was an accurate report of the events which occurred and are recorded in the document.
Ms Toubanmakis told the Tribunal that police records detail that Mr Smith was charged with the offence of Aggravated Assault at 1.46 am on 27 December 2015 at the Elizabeth Police station by an identified policer officer. On the same date at 6.58 am, Mr Smith entered into a Bail Agreement in relation to this charge. This Agreement details that Mr Smith was charged with the offence and agreed to attend at the Elizabeth Magistrates Court at 11.30 am on 10 February 2016 in relation to the charge. Mr Smith signed this agreement, along with another authorised person. The Bail Agreement is included in the Book of Documents.
Ms Toubanakis conceded that the charge never proceeded to the court and no charges were laid in the court: the charge was not proceeded with.
Ms Toubanakis told the Tribunal the document is quite clear. It states that Mr Smith was conveyed to the police station where he was charged with an offence, and later discharged on bail to answer to the charge at a later date.
Ms Toubanakis explained that there is a clear distinction in law and police procedure between a person being "charged with an offence", and an information alleging that offence being "laid in a court", where the charge will be determined. She said that information is not entered into a criminal history summary if the charge is never laid in a court. She referred the Tribunal to s 100(2) of the Criminal Procedure Act 1921 which makes this distinction between the charging of an offence, and the laying of the offence.
Ms Toubanakis also referred the Tribunal to the SAPOL statements in the reconsidered decision of 16 April 2025. SAPOL explains in that decision that when a matter is reported to the police, if police form a reasonable suspicion that a person has committed an offence, police will arrest and subsequently charge the person, generally when the person is in police custody. The person will then be granted or refused bail, and provided a date to appear before a court in relation to the relevant charges. During the period between the charge date and the court date, a decision is made as to whether the matter will proceed, which involves consideration of whether there is sufficient evidence for a reasonable prospect of conviction, and whether it is in the public interest to proceed with the charge.
SAPOL advised in the 16 April reconsideration that a complaint had been made to the police on 26 December 2015 concerning a domestic violence complaint involving Mr Smith, and Mr Smith was subsequently arrested and taken to the Elizabeth Police Station, where he was charged with the offence of Aggravated Assault at 1.46 am on 27 December 2015. The reconsidered decision included a copy of a screen grab of the charging sheet showing the record of the charge. At 6.58 am on the same date Mr Smith entered into a Bail Agreement which refers to the charge of Aggravated Assault and the date of 10 February 2016 for attendance at court in respect of that charge.
SAPOL reiterates that although the aggravated assault charge was never laid before a court, Mr Smith was charged with the offence by police on 27 December 2015, but the police subsequently determined not to proceed with laying the charge, which is why there is no reference to it in Mr Smith's offender history summary statement.
Ms Toubanakis also referred the Tribunal to arrangements in place for the grant of bail. She said that eligibility for bail arises only where a person has been taken into custody and charged with an offence. Bail eligibility and arrangements do not arise unless a person has been charged with an offence.
Ms Toubanakis told the Tribunal that the screen shot of the charging sheet, and the bail agreement signed by Mr Smith, as well as the other information and documents provided, provide details of the charge and the circumstances in which it occurred, and that the charge did not proceed to be laid before a court.
Ms Toubanakis submitted that Document 1 is not incorrect or misleading in recording that Mr Smith was charged with aggravated assault, as this was what occurred, and the document accurately records the events of 27 December 2015.

[40]

Ms Toubanakis submitted that the decision not to amend this document should also be affirmed, as the document is neither incorrect nor misleading. She told the Tribunal the assertion in the document does not amount to, or purport to be, a finding by a judge or court, but is an expression by a police officer in respect of an application for a police-issued intervention order (PIIO).
Mr Smith's objection in respect of Document 2 is to the reference to "these are the FACTS that I rely upon", followed by assertions concerning domestic violence. Mr Smith states there were no "FACTS" as recorded in Document 2, as the Interim Intervention Order proceedings were discontinued, and there were no findings of fact made against him in respect of the allegations set out in the document.
Ms Toubanakis submitted that pursuant to s 18(1) of the Intervention Orders (Prevention of Abuse) Act 2009 (the IO Act), a police officer may issue PIIO if it appears to the police officer that there are grounds for issuing the order. The legislation requires that the police officer must be satisfied that it is reasonable to suspect that, without further intervention, the defendant will commit an act of abuse: that is, the police officer must form this belief or opinion before he or she has the power to take action under the IO Act.
Ms Toubanakis submitted that the document sets out a statement of the belief held by the issuing officer, that it was reasonable to suspect that acts of abuse would occur without the issue of the order. She submitted this is a statement of the view on which the police officer acted, not a finding of fact by the police officer, but a recording of the information on which the PIIO was to be sought.
Ms Toubanakis submitted that the issue is whether the document purports to record an objective fact concerning Mr Smith, or whether it is properly characterised as recording the subjective views, impressions or observations of another person in respect of the information available to the investigation. She submitted that if it were characterised as the latter, then the document could not be considered incorrect or misleading, so long as it is an accurate record of the person's views, impressions or observations.
Ms Toubanakis submitted that the purpose of a PIIO is not to record findings of fact, but to set out the police officer's statement of belief underpinning the issue of the PIIO. The document therefore constitutes a record of the information on which the police officer relied in forming his state of mind to enable him to issue the PIIO. The document, including this statement, is presented with the proposed interim intervention order, and forms the basis for the case to be presented. The document is not and does not purport to constitute or represent a final Order or findings of fact by a court, but rather to provide an account of the allegations by the person who was to be protected by the intervention order, and the information on which that order was sought.

[44]

The respondent accepted that s 30(a) and (b) applied in this matter, and I am satisfied that the records in question do come within the requirements set out in s 30(a) and (b). I also accept that Mr Smith is of the view that the records for which he seeks amendment are incomplete, incorrect, out-of-date or misleading.
An agency may amend its records in accordance with such an application, or may refuse to do so. Section 35 of the FOI Act provides that an agency may refuse to amend its records if it is satisfied that the records are not incomplete, incorrect, out-of-date or misleading (s 35(a)).
If, as in this matter, the respondent refuses to amend its records, the onus is on the respondent to establish that its refusal is justified. However, the applicant bears a preliminary burden to provide evidence in support of the application for amendment, that is, that the information sought to be amended is incomplete, incorrect, out-of-date or misleading: this is clear from Morgan v DG Department of Education and Training [1999] NSWADT 91 [37-39]; and Crewdson v Central Sydney AHS [2002] NSWCA 345 [32].
The agency (SAPOL) has refused to amend the two records in question, including following a reconsideration of the decision concerning Document 2. In undertaking the review of these decisions, the Tribunal's role is not to investigate the substantive issues behind the records: that is, the Tribunal cannot make an assessment of whether Mr Smith engaged in domestic violence, or whether the complainant was telling the truth, or, indeed, as Mr Smith suggested, whether the police were inappropriately ("corruptly") engaged in a "political narrative" concerning domestic violence, in response to political and media pressure.
The Tribunal's role is to consider if the records are, in their own terms and as recording, as it were, a snapshot in time, incomplete, incorrect, out-of-date or misleading, not to make substantive changes or to consider amending the records to present a set of events or circumstances which was not apparent when the record was constructed, or which reflects a different view which might have become apparent later with the provision of further information of the effluxion of time.
To be complete, correct, and not out-of-date or misleading, the records should record an account of the events at the time the record is made, including an accurate record of any reports or views made at that time, even though those views or reports might later change, or be shown to be incorrect. The correct record, including the change of view or "correct" circumstances, may be for a new record, not the "correction" of an earlier record where the circumstances or views were different. To "correct" or amend the earlier record in the light of a different view being formed, a report being corrected, or new information, would be to falsify the recording of the circumstances at the time the initial record was made.

[45]

The words Mr Smith seeks to have amended, by exclusion, is the clause in Document 1, and later charged with aggravated assault.
Mr Smith's fundamental submission concerning this document was that it should be amended because it is both incorrect and therefore misleading. Mr Smith states that the document records an incorrect fact, that he was charged with aggravated assault, when he was not in fact charged at all.
I do not accept Mr Smith's submissions that he was never charged with the offence of aggravated assault.
I am satisfied there is sufficient evidence to show that following Mr Smith's arrest on the evening of 26 December 2015, he was charged with the offence in the early hours of 27 December, when being held in the Elizabeth Police Station. He was subsequently released on bail, which would not have been necessary had he not been charged. Mr Smith has signed the Bail Agreement which sets out the charge and the undertaking to attend at court at a later date. It is agreed, and not inconsistent with these facts, that the charge was never laid before the court or proceeded with.
There are two independent documents which record the charge being made against Mr Smith, namely the screenshot of the charging sheet, and the Bail Agreement.
Mr Smith submitted that the Tribunal should not rely on the screenshot of the charging sheet, as he submitted that a screenshot can be easily manipulated. However, Mr Smith has provided no evidence that this has occurred in this case, or how or when this may have occurred.
The second document is the Bail Agreement. Mr Smith agreed he had signed this document, which refers to the charge against him, but he submitted that all this proved was "wrongful bail", and that he had been unlawfully detained. He did not provide any further information or submissions on this assertion. I am satisfied the Bail Agreement, signed by Mr Smith, reflected the true state of affairs, namely that Mr Smith had been arrested, charged, and then granted bail in respect of the charge, agreeing to attend in court on 10 February 2016, noting however, that in the event the charge was not proceeded with. This does not mean there was any "wrongful bail" at the time the Bail Agreement was made.
Mr Smith's submissions that there was proof that no charge had been made against him turned on the absence of any reference to charges in various other documents, and the absence of a "discontinuance" of the charge. I accept this is the case, but I am satisfied this is because the charge initially made was never proceeded with against Mr Smith: he was initially charged, but the charge was never laid. I am not satisfied that the absence of any "discontinuance" document (however described) proves anything: it may not have been required; it may have been overlooked; it may be misplaced, but I am satisfied that Mr Smith was subject to a charge on 27 December 2015, in respect of which he was granted bail. That charge was later not proceeded with.
Mr Smith's submissions were backgrounded by assertions that the police were corrupt, and that police made up and constructed charges alleging and relating to domestic violence in order to "fit into a political narrative" driven by government and the media concerned with establishing that men engaged in domestic violence against women. Mr Smith asserted that "real" statistics proved that most domestic violence was not perpetrated by men against women, but these statistics were not publicised, and the purpose of making false charges of domestic violence against men, later withdrawn, as in his case, was to provide "evidence" to support the required "narrative".
There is nothing before me to support the assertions made by Mr Smith in this respect. However, the issue in this matter is whether the reference in Document 1 to Mr Smith being charged with aggravated assault is incomplete, incorrect, out-of-date or misleading.
The document is referring to events of 26 and 27 December 2015. I am quite satisfied that the account recorded is an accurate report of those events. I am satisfied that as part of those events, Mr Smith was charged with aggravated assault. In this respect, the record is not "incorrect": he was so charged.
However, I note the charge was not proceeded with. Given this, does this make the recording in the document of the charge of aggravated assault against Mr Smith, incomplete, out-of-date, or misleading?
I am satisfied it does not render the record incomplete, out-of-date or misleading. The document (the Police Apprehension Report) provides a record of those events of 26 and 27 December 2015. To amend the record to remove the reference to the charge against Mr Smith would be to make the record itself incomplete and misleading, as the charge is part of those events. The reference to the charge, albeit later not proceeded with, does not make the record out-of-date, as the record depicts a point in time, and at that time (27 December 2015), the record including the fact of the charge, was up to date.
This view is, with respect, supported by the discussion of an identical statutory provision in the NSW Freedom of Information legislation, in Crewdson v Central Sydney Area Health Service [2002] NSWCA 345, by the NSW Court of Appeal. The Court of Appeal's view in that case was that records by their nature are representative of what was considered relevant or necessary information at the time the record was created, and it is only with respect to "unvarying" facts that they will remain "up to date". The issue then is whether the information was "up to date" when recorded. I am satisfied that in this case, it was "up-to-date" when recorded, and indeed, the fact remains, that on 27 December 2015 Mr Smith was charged with the offence of aggravated assault.
I am satisfied that the respondent's refusal to amend this record should be affirmed, as the record challenged is not incomplete, incorrect, out-of-date or misleading.

[47]

Mr Smith sought to have this record amended as it refers to "FACTS" purportedly relied on by the police officer in issuing the PIIO, when there were no "facts" established by any court or other formal process, only allegations (which Mr Smith denies) made against him by the complainant. Mr Smith's submissions were that the allegations were not "facts"; they were false allegations; the police officer had no authority to describe them or find them to be "facts"; and they had been relied on in another court to his disadvantage and he ought not be placed in a position where he was required to explain the context of the reference in order to have the nature of the record understood.
On this basis Mr Smith submitted that the record should be amended as incomplete (as the record does not include the context); incorrect (as there were no facts, only allegations, which were false); out-of-date (as the PIIO based on these alleged "facts" was later withdrawn); and misleading, as the record in referring to the false allegations as "facts" implied wrongly that the allegations had been established as "facts" by a court, and were true.
I accept Mr Smith's submission that the statement of the allegations made against him by the complainant, and used as the basis for the PIIO, were allegations only, and did not constitute "facts" established by a court or other fact finding body. I also note that the PIIO based on these allegations, was later withdrawn.
However, as stated above in relation to the consideration of Document 1, it is the case that the record presents a recording of the state of affairs at the time it was made. It is not a retrospective narrative made after the event providing an overarching account.
The purpose of the record is to record the events as they were at the time it was created. Where a document records a report made by another person, the accuracy of the record is focussed on whether the report made is accurately recorded, not on the underlying truth of the events to which the report relates. In this matter, Mr Smith asserts the allegations are false: however, the issue in terms of any amendment is whether the report of the content of the allegations is accurate, not whether the allegations are true or false. Similarly, the reference to the "facts" relied on by the police officer in issuing the PIIO is a record of the police officer's view of the events for the purpose of the issue of the PIIO: it is not a record of the truth of the information on which the police officer relied in reaching this conclusion for the purpose of issuing the PIIO.
I note the basis for the issue of a PIIO as set out in the IO Act. This legislation requires a police officer, in issuing a PIIO (for the purpose of providing protection to the complainant in the interim, until the matter can be authoritatively dealt with in a court, where the "facts" on which the interim order might well be disproved), to form an opinion on the basis of the available information. Section 6 of the IO Act enables a PIIO to be issued where it is reasonable to suspect that an act of abuse will occur, and it is reasonable in the circumstances to issue the order. To issue the PIIO in this matter, the police officer was required to form an opinion on the basis of the available information, which was the complaint made against Mr Smith by the complainant. Those allegations formed the "facts" on which the police officer issued the PIIO.
I am satisfied that the document does not present the allegations made against Mr Smith as any more than allegations made by a complainant which led to the issue of a PIIO (later withdrawn). To issue the PIIO the police officer was required to form a view on the basis of the allegations. It is clear, and in my view nowhere suggested, that the police officer is not a finder of facts, and the facts were not established as a court might do so. Nor was the police officer treating Mr Smith as guilty, but was issuing a PIIO, an interim, temporary protective measure, subsequently subject to court consideration, as permitted by legislation.
There is no evidence to suggest the assertions made in Document 2 are not accurately recorded: that these are the allegations (whether true or not) made against Mr Smith; and that the police officer formed a view about the circumstances on the basis of those allegations and issued a PIIO. Mr Smith told the Tribunal the police officer had told him in the cells that he was making no judgment about the allegations, and "the truth probably lay between the two", and Mr Smith submitted this showed that the police officer could not have formed the view expressed in the record, and the record in this respect was incorrect and misleading.
However, in my view this is not inconsistent with the police officer's action, and recording that on the basis of the allegations he issued a PIIO, as it records he had made an assessment, as required by the legislation and circumstances, that it was reasonable to suspect from the allegations that an act of abuse might occur and that it was reasonable in the circumstances to issue the PIIO. I do not conclude from this that the police officer formed a view about the objective truth of the allegations (as he apparently told Mr Smith he had not done so), but rather that he found the allegations of sufficient force to lead him to conclude it would be reasonable to suspect that Mr Smith would commit an act of abuse without the issue of an order. It is important to note that the context is that the PIIO is an interim and protective measure, requiring police officers to act where there are likely to be allegations only, and not proven facts.
Nor do I accept that the police officer changed his position from that expressed to Mr Smith that he made no judgment on the matter, to one to "fit into the narrative" "required" from police by government and the media.
I am satisfied Document 2 records the process by which the PIIO was issued, that is, by the police officer forming an opinion as required by the relevant legislation, on the basis of the information, namely the allegations, before him.
I am satisfied the record is not incomplete, being satisfied the context of the issue of the PIIO and the basis for doing so is clear from the document; it is not incorrect, as the document sets out the basis on which the PIIO was issued, including the facts of the allegations relied upon for the formation of the opinion; it is not out-of-date, as it remains an accurate account of how the decision was made; and it is not misleading, as the circumstances and context are clear from the record.
Mr Smith made submissions concerning the truth of the allegations, asserting they were false, which he submitted was clearly true from the fact that no charge was pursued against him and the Intervention Order was not proceeded with. However, his application for amendment of records does not provide an opportunity to correct the underlying substance of the matters underlying the records: the records may record the reporting of false allegations, but that the allegations are false in themselves does not make the record of the report that allegations were made and formed the basis of the issue of the PIIO, incomplete, incorrect, out-of-date or misleading.
I am satisfied that the respondent's refusal to amend this record should be affirmed, as the record challenged is not incomplete, incorrect, out-of-date or misleading.

[48]

The submissions provided by Mr Smith after the hearing mostly focussed on the absence of references in various other documentation to any charges against Mr Smith. Mr Smith made submissions on these matters at the hearing and in some of his earlier written submissions. Some of these additional submissions were not provided to the respondent. I do not consider any of these additional written submissions add anything substantial to the submissions already made and addressed at the hearing, and on this basis although I have read the submissions I do not accord them any weight and did not consider it necessary to provide to the respondent for further submissions.
Mr Smith's last submission was made by email on 11 September 2025. This submission was not copied to the respondent. Mr Smith states in that email that he is requesting that "the requirements of procedural fairness" are taken into account in dealing with his application. He refers to his mistrust of the Tribunal, and states that in the hearing of this matter I "let hang ... in limbo" "the whole purpose of the hearing", which he states was to determine whether he had been charged. He asserts the "Ombudsman lied" about this matter in the Determination subject to review, and that was not addressed in the hearing.
Mr Smith requests in this submission that if I "intend to rely on any arguments, reasoning, or issues that were not raised in the submissions of either party" that he be provided with an opportunity to respond.
In considering this matter I have only taken into account arguments and issues raised in the written or oral submissions of the parties. I have read the subsequent submissions made by Mr Smith, some of which he did not provide to the respondent, but I do not accord them any weight. I initially read those submissions bearing in mind that Mr Smith was not legally represented and so perhaps did not fully understand the finality of the hearing process, and because he was clearly very anxious about the hearing. However, Mr Smith clearly does understand the requirements of procedural fairness, which he invokes in his last submission, and should note that giving any weight to his submissions made after the hearing would fail to accord procedural fairness to the respondent.
The only material I have addressed in these reasons which were not the subject of oral submissions by Mr Smith is that relating to the cases he referred to in his written submission of 21 July 2025. However, the respondent provided a brief written submission in respect of these cases, and also made oral submissions concerning them at the hearing of this matter. Mr Smith could have made submissions concerning the nature and relevance of the authorities he cited but did not do so.

[49]

Mr Smith raised numerous other issues particularly in his oral submissions in this matter. I have referred to some of these above in these reasons.
He asserted that police action in respect of allegations of domestic violence by men against women was driven by a corrupt involvement in "a narrative" driven by government and media, and that this "narrative" was not supported by facts and the police were complicit in manufacturing evidence to establish this "narrative". He asserted that this was behind the alleged inaccuracies in the records he sought to have amended, and these wrong and misleading records were being used against him elsewhere, in particular in the Family Court, as part of this "narrative".
He also asserted that police action was contrary to requirements of international law, in particular the requirements of the Universal Declaration of Human Rights, in that police were required to treat him as innocent until proven guilty. Mr Smith said he had never even been charged with any offence, but the police acted against him on the assumption he was guilty, as evidenced by the issue of the PIIO on the basis of unproven "facts" asserted by the police. This submission suggests a misunderstanding of the relevance of international law in the context of Australian domestic law generally, and State legislation in particular, and is not an argument that is likely to be successful where police action is supported by valid legislation.
Mr Smith also referred to a number of purported authorities in his written submission of 21 July 2025. I have set these out above. A number of the authorities referred to could not be located through the citations provided. Some of the cases referred to appear to be misspelt or miscited versions of the same case. Mr Smith did not make oral submissions in respect of the application of these authorities. However, following consideration of the cases I did locate, I am satisfied that only the case of Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 is of direct relevance to this matter. However, it does not support the position put by Mr Smith.
I am satisfied that the decision the subject of this review should be affirmed as both correct and preferable.

At a glance

Court

Decision date

Source

Judgment (50 paragraphs)

Smith v South Australia Police [2025] SACAT 77 (1 October 2025)

Parties

Legislation Cited (4)