Turner v Commissioner of Police, NSW Police Force

Procedure

1. These proceedings were heard over the course of four days, concluding on 30 November in 2016. At the conclusion of the hearing, the respondent was directed to file and serve a table by way of submission, referring to evidence tendered at hearing, by 7 December 2016. The applicant was given leave to file an alternative table if he wished by 9 December 2016. The respondent filed a table in accordance with the directions. The applicant did not file a table in reply.
2. On 16 May 2017, without leave, the applicant filed extensive further written submissions with supporting documentary evidence. These have not been taken into account. To do so, as it would be necessary to afford an opportunity to the respondent to file and serve evidence in reply and, even if there were no objections to evidence and no application to cross examine, to hold a further hearing for the purposes of submissions, and possibly to bring further oral evidence. That course would not give effect to the Tribunal's guiding principle, namely the just, quick and cheap determination of the real issues in the proceedings.

Applications for review and submissions

1. As indicated, Mr Turner applies to the Tribunal for review of the decisions made by the respondent: 1. on 30 June 2015, in respect of access application 130755, and 2. on 24 August 2015, in respect of access application 131400.
2. In respect of application no 130755 (for the briefs of evidence), Mr Turner invites the Tribunal to infer that three separate briefs of evidence were brought into existence - one in respect of each of three charges brought against him - that they remain in the possession of the respondent, and that access to them should be granted. In support of those contentions he says (among other things): 1. that he was charged with three offences - two prior to trial, and a third by way of indictment at trial; 2. that in August 2008, a Highway Patrol officer from Sutherland attended him at the Heathcote caravan park and handed him two black folders which the police officer referred to as 'briefs' in the plural, one of which was smaller than the other, and 3. that the Court documents detail, among other things, three separate orders to serve a brief or briefs of evidence on him.
3. On questioning by the Tribunal, he was unable to say that he had examined the contents of the folders provided by the police officer - which he no longer possesses - and observed that they constituted more than one brief of evidence, as distinct from two folders containing the one brief. He infers that there were three separate briefs from all the documents that he tendered at the hearing.
4. The respondent says that its decision to decline access to three alleged briefs of evidence was correct, and should be affirmed, because it had already decided an application for access to the same material on 6 March 2015. In the alternative, it says that only one brief of evidence was ever brought into existence relating to Mr Turner, albeit one which was contained in three folders, and was added to from time to time. It says that, subject to the redaction of some personal information which is not in dispute, that brief has been provided to him: 1. in part, on 25 August 2010 in response to an access application he made on 29 July 2010 (police reference no 100725) for: 1. 'FULL BRIEF and the following material regarding' his committal on 23 October 2008 and trial on or about 23 October 2008, and 2. "Full Brief including cross examination of Mr Turner by prosecutor"; and 1. in full, on 17 April 2012, in response to his application made on 27 February 2012 (police reference no 111488) for access to it.
5. Mr Turner does not deny that he received the above documents, but says that they constitute, at most, only one of the three briefs which he believes exists.
6. In respect of the DVD disc containing the audio and video signal of his interview of 30 May 2008, the respondent says Mr Turner made application for access to it on 27 February 2012 (access application 111488), and his request for the DVD was dealt with on 17 April 2012.
7. In respect of any DVD discs of interviews conducted between 2008 and 2009, the respondent says none are in its possession.
8. In respect of any arrest, search or crime scene warrants authorising the arrest and investigations conducted on 30 May 2008, the respondent says none were brought into existence, because: 1. Mr Turner was arrested without an arrest warrant, and 2. both Mr Turner and the owner of the premises on which the crime was committed signed written consents to their investigations, rendering search and crime scene warrants unnecessary.
9. In respect of arrest or search warrants issued after 30 May 2008, it says none exist.
10. For his part, Mr Turner invites the Tribunal to infer that an arrest warrant was brought into existence for his arrest, that crime scene warrants and search warrants were brought into existence to authorize the searches and examinations of the crime scene on 30 May 2008, and that further crime scene and search warrants were brought into existence after that date. He seeks access to them, in the absence of any argument that there is an overriding public interest against disclosure.
11. The respondent does not rely on any overriding public interest against disclosure, but says that his decisions were correct, and ought to be affirmed for the reasons given in the text of each decision.

Legislation

1. 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.
2. 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(1), Administrative Decisions Act 1997. The Tribunal may affirm the decision under review, vary it, or set it aside and either substitute a decision for it, or remit it for further consideration by the administrator: section 63(3).
3. 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.
4. Section 58(1) empowers the agency to decide an access application by, among other things, deciding that the information is not held by it, or deciding to refuse to deal with the application - subparagraphs (1)(b) and (e) respectively.
5. Section 60(1)(b) provides that an agency may refuse to deal with an access application in whole or in part, if: 'the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application'.
6. Section 53(2) obliges the agency to: '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 moist efficient means reasonably available to the agency.'
7. As the Administrative Decisions Tribunal found in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 (affirmed on appeal in Beesley v Commissioner of Police, New South Wales Police Service [2001] NSW ADTAP 8), when considering similar provisions in the Freedom of Information Act 1989: 18 … an application to the Tribunal under s 53(1) of the FOI Act can extend to seeking review of a determination under s 24 which refuses to give access to one or more documents described in an application under s 17 on the ground that such a document is not, or such documents are not, "held" by the agency by reason of their non-existence or otherwise. 19 To some people, it may appear awkward for the Tribunal to be required to determine whether an agency is correctly asserting that it does not hold a document or additional documents. Certainly, the Tribunal is not equipped in the manner of the Ombudsman with staff able physically to access and search document registries and filing systems and to interrogate the custodians of agency documents. All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW).
8. As indicated, where access has been refused, the onus lies on the agency to prove that the decision to decline access was justified. This includes the burden of proving that reasonable searches have been conducted in accordance with section 53(2).

Issues for determination

1. The respondent does not submit that there is an overriding public interest against disclosure. The issues for determination may be therefore summarized as follows: 1. Whether an application for three briefs of evidence the subject of access application no 130755 (or information substantially the same) had already been dealt with by the agency and, if so, whether there are reasonable grounds to believe the agency would now make a different decision: 2. Whether an application for the following information the subject of access application no 131400 (or information substantially the same) had already been dealt with by the agency and, if so, whether there are reasonable grounds to believe the agency would now make a different decision: 1. ERISP DVD of 30 May 2008 2. Search warrant authorizing searches on 30 May 2008, and 3. Crime scene warrant in respect of examinations conducted on 30 May 2008. 1. In respect of the following items, whether such reasonable searches as may be necessary have been conducted in response to access application 131400 and, if so, whether the information is held by the agency. 1. Any DVD of his ERISP made between 2008 and 2009. 2. Any arrest warrant authorizing his arrest on 30 May 08. 3. Any arrest or search warrants brought into existence after 30 May 2008. 1. Having regard to the findings in respect of the issues above, what is the correct and preferable decision in respect of the following access applications: 1. no 130755 on 17 June 2015 - for briefs of evidence, and 2. no 131400 on 24 July 2015 - for the following information: 1. ERISP DVD of 30 May 2008, 2. Search warrant of 30 May 2008. 3. Crime scene warrant of 30 May 2008. 4. DVD's of ERISPs conducted in 2008 and 2009 after 30 May 2008. 5. Arrest warrant authorizing arrest on 30 May 2008. 6. Arrest or search warrants brought into existence after 30 May 2008.

(1) Access application 130755 - whether application for access to 3 briefs previously dealt with

1. There was before the Tribunal a copy of access application no 128841, signed by Mr Turner on 10 February 2015 while serving his sentence. By that application, Mr Turner sought access to a number of documents, including the following: 1. Brief of Evidence - to charge 001 Maliciously inflict GBH with intent to do so - si. 2. Brief of Evidence - to charge 002 Recklessly Wound any other person (DV) - T1. 3. Brief of Evidence - to charge 003 Wound person with intent to cause grievous bodily harm - si.
2. By letter dated 23 February 2015, the agency acknowledged receipt of the application and payment on 23 February 2015.
3. On 6 March 2015, the agency gave notice of its decision to release in full all documents to which access was sought, except the three documents requested above. Of those, the decision maker observed: "It should be very clearly noted that there is one ONE Brief of Evidence for Charge H34968816 which has THREE offences listed. Refer to Page 2 attached. The Brief of Evidence was presented to your solicitor at the time of your trial [in] June 2009, a further copy was released to you directly in part under IAU reference 100725 in August 2010 and a further full copy was released to you directly under IAU 111488 in April 2012. I have reviewed the previous applications and the information sought. I can confirm that the information sought is the same in all material respects and there is no further information either available generally or provided by the applicant that would alter the previous decision."
4. Having regard to this, I am satisfied of the following. 1. By his access application signed on 10 February 2015 (no 128841), Mr Turner sought access to the same documents to which he now seeks access in his access application no 130755 made on 17 June 2017. 2. On 6 March 2015, the agency dealt with access application no 128841, in the manner set forth above.
5. There is no evidence to suggest that the applicant would make a different decision now, in respect of an application for the three briefs of evidence alleged to exist.
6. The respondent relies on a statement by Senior Constable Crutchett to the effect that: "in relation to the incident that occurred at the Dameeli Lodge at Kirrawee on 29 May 2008, there is only one brief of evidence prepared by the NSWPF [New South Wales Police Force] in relation to Mr Turner, and one disclosure certificate in relating to that brief of evidence."
7. The respondent submits that I should accept that evidence as accurate.
8. Whether or not the evidence of Senior Constable Crutchett is accurate, the fact that the respondent relies on it causes me to be satisfied: 1. that he believes it to be accurate, and 2. that he would not make a different decision today if he were to decide the access application in respect of the three briefs of evidence which Mr Turner alleges to exist.
9. If follows that the respondent was entitled, by operation of section 60(1)(b), decline to refuse to deal access application no 130755, because on 6 March 2015 it had already dealt with an application for access to the same information - namely, access application no 128841. For the reasons given, I am satisfied the respondent would not make a different decision if he decided the access application today.
10. The decision made on 6 March 2015 was the correct and preferable decision, and will be affirmed.
11. Having regard to that conclusion, it is unnecessary to decide whether only one brief of evidence was brought into existence, or three - one in respect of each charge. However, as the much of the applicant's evidence was directed to this point, it is appropriate to indicate that none of it persuades me that more than one brief of evidence ever existed.
12. The fact that Mr Turner was the subject of three separate charges does not compel the conclusion that three briefs were prepared. As the Court of Criminal Appeal observed in Turner (at paragraphs 22-35 of its judgment and following: 22. On the evening of 30 May 2008 committal proceedings were commenced against the applicant in respect of two offences. Those proceedings were commenced by the issue and filing of a Court Attendance Notice returnable before Parramatta Local Court on the following day. The two offences charged were: 001 On 29 May 2008, maliciously inflicting grievous bodily harm on Troy Clough with intent to do so contrary to s 33 of the Crimes Act. 002 On 29 May 2008, recklessly wounding Troy Clough contrary to s 35(4) of the Crimes Act. 23. The relevant charge numbers were H34968816/1 and H34968816/2. On 31 May the applicant was granted bail. The proceedings were then before the Court for mention on 11 June, 7 August, 4 September, 25 September and 23 October 2008. 24. In July 2008 the New South Wales Police brief of evidence was delivered. That brief identified as outstanding items the statements of Constable Reyes and Officer Austin. By this time the applicant was legally represented by a solicitor of the Legal Aid Commission of New South Wales. Before the hearing on 23 October 2008 the applicant consented, under s 68 of the Criminal Procedure Act 1986 (NSW), to waive his right to a committal hearing in respect of the two offences with which he was charged. On 23 October 2008 an order was made in the Local Court that the applicant be committed for trial in the District Court and to appear before that Court on 31 October 2008. 25. In November 2008, counsel was briefed to appear for the applicant at his trial. At that time, the Legal Aid Commission had not been served with a copy of the indictment. Later in November 2008 the Office of the Director of Public Prosecutions identified the Crown witnesses to be called at the trial which was originally scheduled for 12 December 2008. The trial eventually commenced on 23 March 2009. The indictment charging an offence under s 33(1) of the Crimes Act was presented to the Court and read, and a plea of not guilty was entered (tcpt 23/03/09, p 2).
13. At paragraph [9] of its judgment, the Court of Criminal Appeal described the indictment presented by the Crown at trial: 9. The applicant was charged with wounding Mr Clough with intent to cause grievous bodily harm, contrary to s 33(1) of the Crimes Act. Sub-section 33(3) provided for the entry of an alternative verdict of reckless wounding contrary to s 35, meaning that if the jury was not satisfied that the offence against s 33 had been committed, but were satisfied that he was guilty of an offence against s 35, a verdict of guilty could be entered in respect of the latter offence.
14. The difference between the wording of the original charge under section 33(1) - maliciously inflict grievous bodily harm - and the indictment at trial - wounding with intent - reflects legislative amendments to section 33 which had come into effect on 15 February 2008. When charging Mr Turner on or about 30 May 2008 with an offence against section 33, the police officers had used the wording of the section as it had stood until three months before. That wording was, by then, out of date. It was updated in the indictment at trial. It is an inescapable inference that it was always the intention of police to charge Mr Turner with an offence against section 33, and with its available alternative under section 35, arising out of the altercation that occurred at Kirrawee on 30 May 2008. That neither compels nor justifies a conclusion that more than one brief of evidence was ever prepared. It is inherently unlikely that more than one brief would have been prepared, as both offences - the offence under sections 33 and its alternative under section 35 - were brought in respect of the same altercation.
15. As indicated, Mr Turner says that a Highway Patrol officer handed him two folders in August 2008, and referred to them as 'briefs' in the plural. Even if this occurred as he remembers it, there is no evidence that the police officer had inspected the contents of either folder, or had any knowledge as to whether they contained one brief or more. There is no evidence as to his identity, and no evidence that he had anything to do with the investigation into Mr Turner, his arrest or subsequent prosecution, apart from delivering the folders on that date. Even if he did use the words alleged, it would not satisfy me that the folders contained more than one brief of evidence.
16. The "Bail CAN Master Coversheet" relied on by Mr Turner similarly does not justify a conclusion that there was more than one brief produced. It demonstrates that his committal proceedings were before the Parramatta Local Court on 31 May 2008, and again before the Court (in Parramatta, Sutherland or elsewhere) on 25 September 2008 and 23 October 2008. It records that, at some stage or stages, orders were made to serve the police brief by 10 July 2008, 21 August 2008 and 23 September 2008. Mr Turner interprets those orders as requiring the service of three separate briefs. It is equally open to infer that the orders were made in respect of the one brief, after the police were experiencing delays in preparing and serving it.
17. The index to the brief was before the Tribunal. It demonstrates that it was served originally in an incomplete state. There was also correspondence between the Legal Aid Commission and Mr Turner, evidencing the provision by the Commission to him of copies of the brief on different occasions. By letter dated 22 September 2008, the Commission provided Mr Turner with a 'partial brief of evidence'. That is consistent with the police practice of serving a brief of evidence piecemeal over a period of time, as statements or evidence come to hand. This does not cause me to suspect that there was more than one brief of evidence.
18. Senior Constable Crutchett gave evidence that only one brief was ever brought into existence. Though it is unnecessary to make a finding in respect of it in light of the conclusion to which I have come - that the respondent was entitled to decline to deal with the request for briefs because it had previously dealt with such a request - I accept his evidence as accurate.

2(a) Access application 131400 - whether application for ERISP DVD previously dealt with

1. There was before the Tribunal a copy of access application no 111488, made by Mr Turner on 17 December 2011 while serving his sentence. That application appears to have been intended to give formal effect an informal application made on or about 22 July of that year. By access application 111488, Mr Turner sought access to a number of documents, including: "All D.V.D Interview by Mr Turner to police".
2. Correctly interpreted, this is an application for access to every DVD on which was recorded the audio and visual signal of an electronically recorded interview of Mr Turner by police, conducted on or about 30 May 2008.
3. Access application 111488 was dealt with by decision dated 17 April 2012. In that decision, the respondent indicated that it interpreted the access application to mean an application for access to the following: 1. All correspondence between Mr Turner and the Information Access and Subpoena Unit of the Police Force. 2. Brief of Evidence. 3. Transcript of phone call to Crime Stoppers. 4. Certificate of Disclosure.
4. It listed the documents in its possession which corresponded to this request. That list included a transcript of the electronically recorded interview, but not the DVD containing its audio and visual signal, or digitally encoded data capable of producing that signal.
5. For all those reasons, I am satisfied that, notwithstanding Mr Turner's request for the DVD, his application for access to it (no 111488) was not decided by the respondent because, for some reason, the respondent did not interpret the access application as an application for the DVD. It follows that section 60(1)(b) does not apply, and the respondent was not entitled to refuse to deal with his request for the DVD in answer to access application 131400. Its decision in that respect was not the correct and preferable decision and ought to be set aside. The correct and preferable decision is considered below.

2(b) and (c) Access application 131400 - whether applications for search warrant and crime scene warrant in respect of investigations on 30 May 2008 previously dealt with

1. Access application 111488 did not include a request for any search warrant or crime scene warrant, either in respect of investigations conducted on 30 May 2008 or at all. It would follow, ordinarily; that the respondent could not validly refuse to deal with Mr Turner's application for a search warrant and crime scene warrant on the basis that requests for those documents had already been dealt with.
2. However, in the respondent's table filed in accordance with the Tribunal's directions, the respondent submitted: 1. that access application 111488 (page 6, as numbered by the respondent) included a request for the brief of evidence, 2. that the brief of evidence included a consent to a crime scene investigation signed by the occupier of the boarding house at Kirrawee on 3 May 2008, 3. that this was a document that related to a search warrant, and 4. that a request for the brief should be interpreted as a request for all its components, including the consent to investigate the crime scene.
3. Page 6 to which the respondent referred includes a request for access to: "copy of Brief manager documentation and/or approval of/sig [sic] to Disclosure Certificate relevant to Mr Turner's court proceedings"
4. According to Senior Constable Crutchett, it is not the function of a brief manager to assemble the police brief. That is the function of the officer in charge of the investigation. The officer in charge submits it to the brief handling manager for checking. The phrase, 'brief manager documentation' would include documents produced by the brief handling manager. It does not, on its face, appear to include documents received by him or her from the officer in charge.
5. The subheading on this page of the access application read: Regarding: … Disclosure of Brief of evidence, etc, in that of "Disclosure Certificate" received by "Brief Manager"
6. This takes the matter no further, as it is a subheading only, describing the matter to which the information requested relates. The specific requests for documents are contained separately in the body of the application. As indicated, they do not include a request for the brief itself.
7. For all those reasons, I do not accept that access application 111488 included a request for access to the police brief. Even if it did, I am unable to accept the respondent's submissions on this aspect, for the reasons which follow.
8. The contents of the brief of evidence were listed in the decision made in respect of access application 111488, which was before the Tribunal. They do not include a search warrant or a crime scene warrant. For that reason I do not accept that the brief contained either a search warrant or a crime scene warrant.
9. The brief did include signed consents by two of the occupiers of the boarding house, signed on 30 May 2008. Those are not warrants of any kind. They are consent forms. Their existence demonstrates why it was unnecessary to obtain a search warrant or a crime scene warrant.
10. For all those reasons, I do not accept that Mr Turner had sought access to search warrants or crime scene warrants in his access application no 111488. It follows that, in answer to access application no 131400, the respondent was not entitled to decline to deal with the application for a search warrant and crime scene warrant in respect of investigations made on 3 May 2008. That decision should be set aside. The correct and preferable decision is considered below.

3(a) Whether reasonable searches made for DVD's produced between 2008 and 2009

1. In its decision of 24 August 2015 in respect of access application 131440, the respondent noted Mr Turner's request for DVD's of ERISPs (electronically recorded interviews of suspect persons) conducted between 2008 and 2009 (in addition to that which had been conducted by police on 30 May 2008), and found: Searches could not locate any other ERISP interviews in relation to charge H349968816.
2. As indicated, where access is declined, the respondent bears the onus of proving that its decision was justified. In this case, access was declined because searches failed to locate the information to which access was sought. To demonstrate that its refusal was justified, the respondent must at least give evidence of the searches which it conducted and which failed to locate the information sought. In Beesley's case, for example, the respondent gave detailed evidence of its searches, which the Tribunal at first instance described as 'exemplary' [at paragraph [ ]].
3. In this case, the respondent has provided no evidence as to what searches were conducted. It merely says that some searches were conducted, without describing their nature. It does not say why they constituted 'such reasonable searches as may be necessary' in accordance with section 53(2). In those circumstances, the respondent has failed to satisfy its onus of proof, and the Tribunal is unable to be satisfied that reasonable searches have been conducted in accordance with section 53(2).
4. The respondent argued that the Tribunal should first establish whether the documents sought exist, relying on a decision of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7; (1994) 1 QAR 464. That decision rested on provisions in the Freedom of Information Act 1992 (Queensland) - see at paragraphs [18] and [19] of the decision - which were distinct from those at hand. This Tribunal must give effect to sections 53(2) and 105 of the Government Information (Public Access) Act 2009 which, in combination, cast the onus on the agency of proving: 1. what searches were made, and 2. that they complied with section 53(2).
5. For those reasons, the respondent's decision to decline access to DVD's produced after 30 May 2008 and in 2008 or 2009 will be remitted for further consideration, with a direction to detail what searches he conducts and has conducted.

3(b) Whether reasonable searches made for warrant for arrest on 30 May 2008

1. In its decision of 24 August 2015, the respondent found: "Inquiries were directed to the Warrant Unit (OIA) who advised that on searching the records there was no arrest warrant issued on 30 May 2008. Advice received from Senior Constable Parish indicates that Donovan Turner was arrested and charged by Leading Senior Constable Wilkinson and (myself) [L Trost] on the 30/052008 [sic] charge H34968816 relates."
2. This evidence establishes that the decision maker caused inquiries to be made of the Warrant Unit of the NSW Police as to the existence of any arrest warrants issued on 30 May 2008, with negative result. On its face, the Warrant Unit is likely to be the relevant unit for determining whether such a warrant existed.
3. There was before the Tribunal a statement signed by leading Senior Constable Wilkinson on 24 June 2008 which formed part of the police brief of evidence. In that statement, she indicated that she attended the boarding house at Kirrawee at about 4.35 pm on Friday 30 May 2008 with Constable Parish and another officer, spoke with Mr Turner, and arrested him. There is no evidence to contradict the version of events given by Leading Senior Constable Wilkinson in respect of the arrest, and I accept her account as accurate. No mention is made in the statement of any warrant for his arrest. There is no evidence before me to suggest that any warrant was obtained, or was necessary. This is consistent with the result of the searches made by the Warrant Unit.
4. However, the onus of proving that reasonable searches were made lies on the respondent. There is no evidence to establish what searches were conducted by the Warrant Unit and that those searches complied with section 53(3). In the absence of that evidence, I am not able to be satisfied that reasonable searches were made, even though there is no evidence to support the existence of a warrant. For those reasons, the decision will be remitted to the respondent for further consideration, with a direction to detail what searches are conducted and have been conducted.

3(c) Whether reasonable searches made for subsequent arrest or search warrants

1. In its decision of 24 August 2015, the respondent found: "The Warrant Unit advised that no search and/or arrest warrants were issued in relation to Donovan Turner after 30/05/2008. It should also be noted that Mr Turner was granted bail and reported regularly to Sutherland Police from July 2008 until August 2009 when he was in gaol."
2. As no evidence was brought to the contrary, I am satisfied that enquiries were made of the Warrant Unit for search and arrest warrants issued after 30 May 2008, with negative result. As indicated, the Warrant Unit appears to be the appropriate unit to conduct and report on any search undertaken for warrants. There is no evidence that any such warrants were ever brought into existence in this case.
3. However, to satisfy its onus of proof, the respondent must at least detail what searches were made by the Warrant Unit, and demonstrate that they complied with section 53(2). That has not been done. For those reasons, this decision will be set aside and remitted to the decision maker for further consideration, with a direction to detail the searches he conducts, or has conducted.

4(a) Correct and preferable decision: access application 130755

1. For the reasons given above, the correct and preferable decision with respect to access application 130755 was to decline to deal with the application for access to three briefs of evidence, because such a request had already been dealt with in respect of access application no 128841. I am satisfied that the respondent would be unlikely to make a different decision. The respondent's decision of 30 June 2015 in respect of access application 130755 will be affirmed.

4(b) Correct and preferable decision: access application 131400

(i) DVD of ERISP, 30 May 2008

1. For the reasons given, I am not satisfied that Mr Turner's request for the DVD of his ERISP of 30 May 2008 was previously dealt with in response to his access application no 111488. It follows that the respondent was not entitled to decline to deal with a further request for access to it in access application no 131400.
2. The correct and preferable decision was to provide a copy of the DVD, containing the full and unedited audio and visual signal of the interview of 30 May 2008, or digitally encoded data capable of producing that signal. During the course of these proceedings, the respondent provided the applicant with a further DVD disc containing video of his interview. It is common ground that the disc does not contain a complete copy of the interview, because the video data has been cropped to remove the images of the two interviewing police.
3. Mr Turner says that he has never received a full and unedited copy of the recording of his interview. The DVD which was released to him prior to trial, he says, was faulty, in that scenes had been removed. That DVD was played, in part, during the course of these proceedings. At one point, the signal was interrupted and the image of the officer in charge of the investigation disappeared. By his solicitor, the respondent conceded, as he was bound to do, that the data on the DVD was not a complete record of the interview. There was no evidence to suggest that the video data, incomplete as it was, constituted the entirely of the data in the possession of the respondent - for instance, because the interview itself had only partially been recorded. I cannot be satisfied that the DVD discs provided to the applicant by the respondent have provided access to the full and unedited data representing the recorded interview.
4. The respondent's decision in respect of this DVD will be set aside, and replaced a decision to grant access to a DVD containing the complete audio and visual signal of the interview of 30 May 2008, or digitally encoded data capable of producing that signal.

(ii) Search warrant authorising arrest on 30 May 2008

1. No request for access to a search warrant was made in access application 111488. It follows that the respondent was not entitled to decline to deal with requests for that information in answer to access application no 131400. The respondent ought to have made reasonable searches for it. Though the Warrant Unit advised that no search warrant or crime scene warrant was issued 'after 30 May 2008', there is no evidence that any searches were conducted for warrants in respect of an arrest on that date.
2. This decision will be set aside and remitted to the decision maker with a direction to conduct such searches as may be necessary to find any such search warrant, and to detail the searches made.

(iii) Crime scene warrant in respect of investigations conducted on 30 May 2008

1. No request for access to a crime scene warrant was made in access application 111488. It follows that the respondent was not entitled to decline to deal with requests for that information in access application 131400. The respondent ought to have made reasonable searches for it. Though the Warrant Unit advised that no search warrant or crime scene warrant was issued 'after 30 May 2008', there is no evidence that any searches were conducted for search or crime scene warrants issued in respect of investigations on that date.
2. This decision will be set aside and remitted to the decision maker with a direction to conduct such searches as may be necessary to find any such crime scene warrant, and to detail the searches made.

(iv) DVD's of ERISP's conducted in 2008 and 2009, after 30 May 2008

1. In the absence of evidence detailing what searches were made by the agency, it is not possible to conclude that reasonable searches were made. The matter will be remitted for further decision, with a direction to detail what searches are made and have been made for DVD's of ERISP's (if any) conducted in 2008 and 2009 after 30 May 2008.

(v) Arrest warrant authorising arrest on 30 May 2008

1. For the reasons given, the correct and preferable decision was to conduct such searches as may be reasonably necessary to find an arrest warrant, if any, and to detail the searches that were made. The searches made have not been detailed by the respondent. His decision will be remitted for further consideration with a direction to detail the searches made.

(vi) Arrest or search warrants bought into existence after 30 May 2008

1. For the reasons given, the correct and preferable decision was to conduct searches as may be reasonably necessary to find any arrest or search warrants bought into existence after 30 May 2008, and to detail the searches that were made. The searches made have not been detailed by the respondent. His decision will be remitted for further consideration with a direction to detail the searches made.

Orders

1. I make the following orders. 1. The respondent's decision of 30 June 2015 in respect of access application 130755 is affirmed. 2. The respondent's decision of 24 August 2015 to decline to deal with the request, in access application no 131400, for access to the DVD of an ERISP conducted on 30 May 2008 is set aside and replaced with a decision to grant access to a DVD containing the complete audio and visual signal of the interview, or digitally encoded data capable of producing that signal. 3. The respondent's decisions of 24 August 2015 to decline to deal with the requests, in access application no 131400, for access to the following information are set aside and remitted to the respondent for further consideration: 1. Search warrant authorizing arrest on 30 May 2008. 2. Crime scene warrant authorising investigations conducted on 30 May 2008. 1. The respondent's decisions of 24 August 2015 to refuse access to the following information, requested by the applicant in access application no 131400, are set aside and remitted to the respondent for further consideration: 1. "Any additional ERISP(s) (DVD) 2008-2009 period". 2. Arrest warrant authorizing his arrest on 30 May 2008. 3. "Any other arrest/search warrants after date 30/05/2008". 1. The respondent is directed to conduct such reasonable searches as may be necessary to find the information referred to in orders (3) and (4) above and, in his decisions on further consideration, to detail the searches which he makes and has made.

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: 08 June 2017