Svanda v Commissioner of Police, NSW Police Force

Relevant legislation

1. Section 3 of the GIPA Act states that the object of the Act is to open government information to the public and: (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.
2. Section 5 of the GIPA Act provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
3. Section 53 provides: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
4. Section 59 of the GIPA Act provides: 59 Decision that information already available to applicant (1) An agency can decide that information is already available to an applicant only if the information is: … (d) available to the applicant as the applicant has already been provided with access to the information and the agency has no reason to believe the information is no longer in the applicant's possession, or … (2) An agency is not required to provide access to information that the agency has decided is already available to the applicant, but notice of the decision must indicate why the agency believes the information is already available to the applicant and, if necessary, how the information can be accessed by the applicant.
5. Section 100 provides: 100 Administrative review of decision by NCAT (1) A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review). (2) An aggrieved person who is not the access applicant is not entitled to apply to NCAT for an NCAT administrative review of a decision if the person is still entitled to apply for an internal review of the decision under Division 2.
6. Section 63 of the Administrative Decisions Review Act 1997 provides 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
7. Section 166 of the Criminal Procedure Act 1986 provides: 166 Certification and transfer of back up and related offences (1) On committal for trial or sentence of a person charged with an indictable offence - (a) the prosecutor must inform the Magistrate as to whether or not the person has been charged with any back up offence or related offence, and (b) if the person has been charged with any back up offence or related offence - (i) the prosecutor is to produce to the court a certificate specifying each back up offence and related offence with which the person has been charged, and (ii) the proceedings on each back up offence and related offence with which the person has been charged are to be transferred to the court in which the person has been committed to trial or sentence (along with the certificate). (2) This section does not prevent the person referred to in subsection (1) being charged with any offence after committal. (3) Proceedings on a back up offence or related offence that are laid after committal for trial or sentence of a person charged with an indictable offence are to be transferred to the court in which the person has been committed to trial or sentence.

Evidence

1. Mr Matthew Smith, a Senior Advisory Officer in the respondent's Infolink Unit, provided evidence that on or about 15 May 2019 searches were carried out for the documents within the scope of item 4. This included reviewing the applicant's criminal history bail report; undertaking a search on the New South Wales Police records management system known as TRIM; and undertaking a search on the police COPS system. He stated that he was unable to locate any documents which fell within the scope of paragraph 4.
2. He wrote to the Downing Centre District Court Criminal Registry seeking assistance to identify what charges against the applicant were withdrawn and/or dismissed by Justice Huggett on 18 September 2015. He received a response from the Registry advising that no proceedings were dismissed on that day. A copy of an Advice of Court Result document was tendered dated 16 May 2019 which related to the case of R v Pavel Svanda in which the result is recorded that the applicant was sentenced to imprisonment. There is no reference to offences being dismissed.
3. Detective Senior Constable Lisa Howard provided evidence that she charged the applicant with a number of offences in 2014. On 7 November 2014 she charged him with further offences including "contravene prohibitions/restriction in AVO (domestic)". She stated that she arranged with the officer on duty in the police custody room at Silverwater jail where the applicant was in custody for the service of the additional charges. She stated that she later confirmed that service had occurred and she faxed a copy of the charge papers to the applicant's legal representative on 19 November 2014. The matter was first mentioned at Downing Centre Local Court on 19 December 2014. On this and subsequent occasions she said there was a Czech interpreter present at Court.

Paragraphs 1 and 2 of the request

1. I note that the dates of the charges in the application vary from the respondent's dates but I assume this is an error as the applicant's representative has adopted in his submissions the dates referred to by the respondent.
2. The respondent's case is that the applicant was served with the charge by the charge papers being faxed to his legal representative at the time and therefore should be in his possession or control. Reliance is placed on s 59(1)(d) of the GIPA Act. The respondent says it is not responsible for interpreters at Court.
3. The respondent also states that related documents were provided with the first GIPA decision in the form of a screenshot from the COPS system. This showed that a future Court Attendance Notice was served in person on the applicant in the Correctional Centre at Silverwater on 19 November 2014 as well as upon his legal representative. It appears that the entry was made by Det. Sen. Constable Howard.
4. The applicant's submissions state that that the applicant was not present in court on one of the dates named by Det. Sen. Constable Howard. However there is no evidence to this effect and it is not disputed he was present on the other dates.
5. The applicant submits that the respondent's evidence indicates that he was "never charged" with the offence referred to, as it was not personally served on him and the respondent has not produced any document showing that this had occurred.
6. Where the Tribunal is reviewing a decision that an agency does not hold information, it should consider: 1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so, 2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances. (Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5).
7. The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances (Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186 at [33]-[34]).
8. The COPS screenshot referred to above would appear to satisfy the first part of paragraph 1. As to the name of the person who informed him of the charge, the applicant's submission appears to be that he was never served personally by the police with the charge papers. The respondent's case is that it does not have information showing the name of the person who served the papers on him in Silverwater Gaol, and the person who informed him of the charge otherwise was presumably his own legal representative. I am not satisfied that reasonable grounds exist to show that the information sought by the applicant is held by the respondent. The evidence supports a finding that the search efforts of the respondent have been reasonable in the circumstances.
9. If the applicant's submission is that he was served personally, then in my view the respondent is also entitled to assume that he has a copy of those papers under s 59(1)(d).
10. Paragraph 2 appears to seek a copy of the same document in the Czech language and the name of the person who interpreted the charges to him. Based on the evidence outlined above, I am not satisfied that reasonable grounds exist to show that the information sought by the applicant is held by the respondent and I am satisfied that the search efforts of the respondent have been reasonable in the circumstances.

Paragraph 4 of the request

1. The applicant asked for documentation showing which two back up offences and one related offence the Prosecutor asked her Honour Judge Huggett to dismiss on 18 September 2015. He attached to his application an extract from the transcript of the proceedings before her Honour in the District Court on 18 September 2015 in which her Honour refers to "back up or related offences" in relation to the applicant.
2. My reading of the transcript suggests that the judge dismissed those three offences with the prosecutor's consent.
3. The applicant also claimed that the offences were referred to in certificates issued under s 166 of the Criminal Procedure Act 1986. Section 166 states that the prosecutor issues such certificates. The applicant in submissions stated that he was "certain that the Crown tendered them to the Court" and tendered a list of the evidence tendered by the Crown in its case as well as a Crown Sentence summary in support of this. In a further submission he stated that he had located the s 166 certificates by other means.
4. The transcript extract, on its own, might constitute reasonable grounds to believe that the requested information exists. However an enquiry made by Mr Smith to the District Court Criminal registry resulted in advice that no proceedings were dismissed on that date. The Advice of Court Result document also does not refer to this. Therefore there is some doubt as to what occurred.
5. As to whether the information is held by the respondent, Mr Smith's evidence is that after reviewing the applicant's criminal history bail report, undertaking a search on the New South Wales police records management system and undertaking a search on the police COPS system, he was unable to locate any documents which fell within the scope of paragraph 4.
6. The applicant's own submissions indicate that the certificates were issued by the Crown prosecutor, not the police. Also his most recent submission states that he now has the s 166 certificates, therefore the respondent might also be entitled to rely upon s 59(1)(d).
7. In my view there are not reasonable grounds to believe that the information, if it exists, is held by the respondent and I am satisfied that the respondent's search efforts have been reasonable in the circumstances.
8. Accordingly in my view the decision under review should be affirmed.

Order 1. The decision under review is affirmed.

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: 25 October 2019