Turner v Commissioner of Police, NSW Police Force

Applicable Legislation

1. The task of the Tribunal in determining the application under section 100 of the GIPA Act is to decide what the correct and preferable decision is, having regard to the material before it: section 63 Administrative Decisions Review Act 1997. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: section 63(3) Administrative Decisions Review Act 1997.
2. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. Mr Turner has a legally enforceable right to access the information that he requested if it is held by the Respondent, unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.
3. The Respondent does not assert that any overriding public interest considerations against disclosure exists for the requested information.
4. In this matter, the Respondent has determined to refuse to deal with Item 1 of the access application and determined that it did not hold the other requested information.
5. Section 58 of the GIPA Act provides: 58 How applications are decided (1) An agency decides an access application for government information by: … (b) deciding that the information is not held by the agency, or … (e) deciding to refuse to deal with the application (see section 60), or ... Note : These decisions are reviewable under Part 5. ... (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
6. In Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 at paragraphs [41] - [42] Senior Member Dinnen summarised the principles to be applied in addressing section 58(1)(b): 41. The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information falling within the scope of the access request exists that has not been supplied: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]. This requires the applicant to put some credible material or submission before the Tribunal that documents of the requested kind exist. The requirement will not be satisfied by an assertion of non-compliance based on a general distrust of the agency in question: Camilleri at [13]; Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195; Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at [32]. 42. The Respondent then bears the onus of satisfying the Tribunal that the searches conducted by the Respondent were reasonable in the circumstances. In determining whether reasonable searches have been conducted, relevant considerations include "the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant": Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30].
7. Section 53 of the GIPA Act specifies the searches an agency is required to undertake if it seeks to rely on s 58(1)(b) of the GIPA Act: 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.
8. In Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 the Queensland Information Commissioner identified two questions for consideration: first, whether there are reasonable grounds to believe that the requested material is held by the agency, and secondly, whether the search efforts made by the agency have been reasonable in the circumstances of the case. That decision has been followed in numerous decisions of the Tribunal under the GIPA Act.
9. Section 53(1) limits the agency's obligation to respond to a request for information held by it at the time of the access request. The obligation does not extend to information once held by the agency but which is no longer held in the primary systems of the agency: Robinson v Commissioner of Police [2014] NSWCATAP 73.
10. Section 60 of the GIPA Act provides: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): … (b) 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,
11. Section 60(1)(b) has two elements: whether the agency has already decided a previous application for the information concerned in the present application, or information that is substantially the same as that information; and secondly, whether there are reasonable grounds for believing that the agency would make a different decision on the application.
12. The burden of establishing that the decision is justified lies on the Respondent: subsection 105(1) of the GIPA Act.

The Issues for Determination

1. The Respondent does not submit that there are overriding public interests against disclosure. The application requires consideration of the following issues: 1. Whether the refusal to deal with the application in relation to item 1 pursuant to s 60(1)(b) of the GIPA Act is the correct and preferable decision; 2. Whether the Respondent has undertaken reasonable searches for the information requested in items 2 and 3; and 3. Whether the Respondent's decision that it does not hold the information requested in items 2 and 3 is the correct and preferable decision.

The material before the Tribunal

1. The Respondent relies on the evidence of Senior Sergeant Fam and Senior Constable David Crutchett. Senior Sergeant Fam and Senior Constable Crutchett both attended the hearing and were cross-examined.
2. Mr Turner relies on his own evidence.
3. Each of the parties has provided written submissions in support of its case.
4. As noted, this application concerns one of a number of access applications made by Mr Turner. Much of the material filed in these proceedings relates to other proceedings and the relevance to these proceedings is not readily apparent other than to highlight the manner in which the Respondent has dealt with other access applications or to indicate discrepancies and inconsistencies in records maintained by the Respondent. Where the relevance of the material to the issues in this matter is not apparent I have not taken it into account.
5. I note that several of the issues raised by Mr Turner have been discussed in other proceedings and where that overlap exists I do not propose to revisit those issues in this matter.

Item 1 - disclosure certificate dated 23 June 2008

1. As noted the Respondent determined to refuse to deal with this aspect of the access application pursuant to subsection 60(1)(b). Senior Sergeant Fam provided the following explanation for her decision in regard to Item 1: On 27 February 2012, NSWPF received a bundle of previous applications you made to the agency for access to information, which was taken together as one application (IAU 111488). Relevantly, in the application in that bundle, dated 22 July 2011, you requested access to the following information: "Disclosure of Brief of evidence etc. in that of "Disclosure Certificate" received by "Brief Manager"..." On 17 April 2012, the agency provided a notice of decision in relation to IAU 111488, and released 230 pages of documents in response to your application. Relevantly, at pages 226-230 of that decision, you were provided with a copy of the disclosure certificate dated 23 June 2008. This is the same copy that you have attached to your current application, marked 'Annexure A'. Insofar as you have requested information that is relevant to the disclosure certificate (itemised as 12 separate requests at (i)-(xii)), I note that all information related to this disclosure certificate is contained within the brief of evidence relating to this offence (H34968816). The brief of evidence was released to you under IAU 111488. On this basis, I am satisfied that you have previously made a request for this, or substantially the same, information (by way of IAU 111488). I am also satisfied that the agency has decided that previous application. I am also satisfied that there are no reasonable grounds for believing that the agency would make a different decision on the current application. I am so satisfied because you have been provided with the disclosure certificate and the brief of evidence to which it relates. As you have been provided with all of the information you have requested, I do not consider there to be any reasonable basis to believe a different decision would be made. I note that a disclosure certificate is a template document, which relates to a brief of evidence. Its purpose is for the investigating officer, in compiling the brief of evidence to provide to the Director of Public Prosecutions (DPP), to confirm that all relevant material obtained during an investigation of an alleged offence, that might reasonably be expected to assist the case for the prosecution or the case for the accused person, has been disclosed within the brief of evidence. Accordingly, I do not consider there to be any reasonable ground to believe that any further material is held by this agency that was not released to you under IAU 111488. Notwithstanding the above, I have made enquiries with the brief handling manager at Sutherland Station, Senior Constable Crutchett, who has searched the physical archives containing the brief of evidence. I have been advised by Senior Constable Crutchett, and I am aware that he has given sworn evidence to this effect in other proceedings before the Tribunal, that in the ordinary course, only one brief of evidence would be created in relation to one charge, and that only one disclosure certificate would be provided in relation to that brief of evidence. I have also been advised by Senior Constable Crutchett, who has reviewed the brief of evidence (and the disclosure certificate) several times, that this is the case in the present matter. I have also reviewed records on the Computerised Operational Policing Systems (COPS). Whilst a disclosure certificate is not stored on COPS, COPS can identify the existence or otherwise of a brief of evidence. As above, a disclosure certificate attaches to a brief of evidence. I have identified that there was only one brief of evidence. Accordingly, I am satisfied that there is only one disclosure certificate. As you have attached that disclosure certificate to your application, and on the basis of the agency's decision in IAU 111488, I am satisfied that you have previously sought access to, and have been provided with, the only disclosure certificate held by this agency in respect to the incident at Dameeli Lodge on 29 May 2008. Accordingly, I am firmly satisfied of the following: a. NSWPF hold one disclosure certificate in relation to the incident at Dameeli Lodge on 29 May 2008, and it is dated 23 June 2008; b. You have previously sought access to, and been provided with, the disclosure certificate dated 23 June 2008 (IAU 111488); c. All information relating to the disclosure certificate dated 23 June 2008 is contained within the brief of evidence, there is only one brief of evidence, and you have received that brief of evidence; and d. You have received all information requested in respect of this aspect of your application, and there are no reasonable grounds to believe that a different decision could or would be made.
2. Senior Sergeant Fam provided a statement in these proceedings. She appeared at the hearing and was cross-examined. She annexed to her statement a copy of the access application related to this matter and also a copy of the access application received by the Respondent on 27 February 2012. Her evidence was consistent with the explanation that she provided in the Notice of Delayed Decision.
3. Mr Turner does not deny that he received the documents referred to by Senior Sergeant Fam, but he believes other information exists.
4. Related to this issue is Mr Turner's contention that two or more briefs were created in relation to the charges arising from the Dameeli Lodge incident. The Respondent disputes Mr Turner's contention and asserts that only one brief was created.
5. Senior Constable Crutchett is Brief Handling Manager at the Sutherland Local Area Command. He has held that position since October 2010. He is responsible to provide quality assurance of briefs of evidence and other briefs. His evidence is that during the course of his duties he has acquired knowledge in relation to the nature of a brief of evidence in a criminal matter.
6. He stated that a brief of evidence is a collection of documents relevant to a particular charge laid by NSW Police. In his experience where a person has been charged with a number of offences relating to the same incident a brief of evidence is not created individually in relation to each offence and there will be a single brief of evidence.
7. Senior Constable Crutchett's evidence is that where a person has been charged with a number of offences relating to the same incident a brief of evidence is not created individually in relation to each offence and there will be a single brief of evidence. Only one brief of evidence was created in relation to the Dameeli Lodge incident.
8. This issue has been discussed in other decisions of this Tribunal and I will not revisit it here: see Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 183, Turner v Commissioner of Police, NSW Police Force (No 2) [2017] NSWCATAD 356 and Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 177.
9. In Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 177 Senior Member Perrignon discussed Mr Turner's contention that there were three briefs created in relation to the Dameeli Lodge incident. He concluded that on the evidence there was no reason to suspect that more than one brief of evidence had been created.

Consideration

1. Notwithstanding Mr Turner's contention to the contrary, the evidence suggests that only one brief of evidence was created in relation to the Dameeli Lodge incident. The evidence also suggests that Mr Turner was given a copy of that brief along with a copy of the disclosure certificate dated 23 June 2008.
2. I note that Mr Turner has pointed to a number of discrepancies in the material that he has put before the Tribunal. He contends that these discrepancies indicate the existence of more than one brief of evidence. These discrepancies have been discussed in details in the decisions that I have referred to above. I agree with Turner that there are inexplicable discrepancies in the material that he has provided. I am unable to express a view in regard to whether or not those discrepancies were inadvertent or deliberately included. However, I am not satisfied that more than one brief of evidence was created in relation to the Dameeli Lodge incident. If I am wrong in that view, I am satisfied that the Respondent no longer holds more than one brief of evidence in relation to the Dameeli Lodge incident.
3. I am satisfied that Mr Turner has already been given a copy of the disclosure certificate dated 23 June 2008. The Respondent is not required to provide him with a further copy of that document.
4. Insofar as Mr Turner's access application requested information that relates to the disclosure certificate, Senior Sergeant Fam's evidence is that all information related to the disclosure certificate dated 23 June 2008 was contained within the brief of evidence that was released to Mr Turner.
5. Senior Constable Crutchett stated that he has searched COPS and located the physical case file and confirms that there is only one brief of evidence in relation to the Dameeli Lodge incident.
6. I accept the Respondent's evidence in regard to this issue. I am satisfied that further searches are unlikely to locate any additional information related to the disclosure certificate dated 23 June 2008. In the circumstances there are no reasonable grounds for believing that the agency would make a different decision on the application if it were to be re-determined.
7. It follows that the Respondent was entitled, by operation of section 60(1)(b), to decline to refuse to deal with item 1 of the access application. This is because it had already dealt with an application for access to the same information, and I am satisfied the Respondent would not make a different decision if he decided the access application today.
8. It follows, in my view, that the determination should be affirmed in regard to Item 1 of the access application.

Item 2 - disclosure certificate dated 16th October 2008

Item 3 - disclosure certificate dated 25 September 2008

1. Mr Turner contends that additional Disclosure Certificates are in existence and as they are within the scope of the access application they must be disclosed. In support of this contention he provided a copy of a disclosure certificate dated 16 October 2008. That document is headed "Disclosure Certificate (NSW DPP)". It is apparent from the face of the document that it is a document of the DPP and not of the Respondent.
2. The Respondent concedes that it holds the disclosure certificate dated 16 October 2008 now because it received a copy from Mr Turner. However, it is noted that it is not the respondent's document and it appeared to relate to the functions of another agency.
3. The Respondent relies on the evidence of Senior Constable Crutchett and, Senior Constable Fam who both gave evidence that in their experience, there is usually only one disclosure certificate attached to a brief of evidence.
4. Senior Constable Crutchett confirmed that there is only one brief of evidence and one disclosure certificate in relation to the Dameeli Lodge incident. In his written evidence he stated: ... All of the evidence in respect of each offence is contained within a single brief of evidence. Once a brief of evidence is compiled by the police officers in charge of the investigation, a Disclosure Certificate must be completed by the police officer with carriage of the investigation. This person is known as the "Officer in Charge". By completing and signing a disclosure certificate, the Officer in Charge confirms that they have disclosed to the Director of Public Prosecutions all of the relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person. If there is any material that is relevant to the case that is not included in the brief, this must be disclosed in the disclosure certificate. In my experience, there is only one Disclosure Certificate created by the Officer in Charge in respect of the brief of evidence. The Officer in Charge of the investigation is responsible for compiling a brief of evidence. The officer is required to submit the brief for checking prior to the hearing. The service of brief on the defendant is recorded on COPS. The Officer in Charge of an investigation is responsible for submitting the brief of evidence to the Brief Handling Manager. Details of the brief of evidence are recorded in the COPS case management system. This brief had a case file index number 11/07/2008 and the physical brief of evidence was securely stored in the Sutherland Command Case/Brief file compactus. I have searched COPS and located the physical case file and confirm 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 in relation to Mr Turner, and one disclosure certificate in relation to that brief of evidence. A court order was made for a brief of evidence to be prepared for this matter and it was to be served on the defendant by 10 July 2008. The OIC, Leading Senior Constable Wilkinson submitted the brief of evidence (1) for checking to the Brief Manager, Senior Constable Catherine Ridley. The brief was quality reviewed by S/C Ridley, who returned copies of the brief to serve on the defendants legal representative and the ODPP who were prosecuting the matter. It is recorded on COPS that the one (1) brief of evidence was served on Legal Aid Sydney on 1 July 2008. The Legal Aid solicitor was Leigh Johnson. I have reviewed the contents page of the brief of evidence which was provided to Mr Turner in relation to IAU 111488. A copy of this document is reproduced at pages 59 and 60 of IAU 111488. This contents page corresponds with the contents page of the brief of evidence kept on COPS. I have reviewed material relating to an application made by Mr Turner under the GIPA Act with the Information Access Unit (IAU) number 100725. In doing so, I identified a document which confirms that a search was undertaken in relation to IAU 100725, and that the brief of evidence relating to Charge H34968816 was provided to the Information and Access Subpoena Unit (IASU). ... I have reviewed two documents headed 'Forensic Examination Request Form P377' and 'P967 Person DNA Sample Examination Form' which appear at pages 209 to 213 of IAU 111488. I recall that I conveyed the material listed in those documents to a laboratory. I confirm that these documents are true and accurate to the best of my knowledge and belief, and are complete documents. I confirm that I did not make a statement or make an entry in my police note book in relation to the conveyance of the material to the laboratory referred to in the documents at pages 209 to 213 of IAU 111488. I have reviewed a document, being two receipts address to the DPP, which appear at page 165 of IAU 114888. Based on my knowledge, I recognise these as being receipts produced by the DPP confirming receipt of the items listed therein. In my experience, a member of NSWPF would go to the DPP and provide a copy, or multiple copies, of the brief of evidence in relation to a case. Upon doing so, a receipt would be issued by the DPP. Where additional items are later added to the brief, those items are delivered to the DPP, and a receipt is again issue. In my experience, an example of an additional item would be where a statement is made by a person after the brief was initially filed. I have reviewed COPS for the brief of evidence created in relation to Mr Turner and the incident that occurred at Dameeli Lodge on 29 May 2008 and searched the documents recorded as being part of that brief of evidence. There is not a statement made by Philip Austin and dated 26 June 2008.
5. The Respondent also relies on the evidence of Senior Sergeant Fam in relation to the searches undertaken in order to confirm that the Respondent does not hold any disclosure certificates in respect to Mr Turner, other than the disclosure certificate the subject of item 1. Senior Sergeant Fam's evidence in regard to the searches undertaken is set out above.
6. The Respondent submits that the Tribunal can be comfortably satisfied that the agency does not hold a further disclosure certificate, dated 16 October 2008, 25 September 2008, or otherwise.
7. Mr Turner points to notations contained in a number of documents that he has annexed to his submissions, as well as discrepancies between several records that have been produced. He contends that these indicate the existence of information that has not been provided to him. He submits that the searches undertaken by the Respondent were inadequate and limited in scope with the effect that many locations were not fully searched and that there are potential sources of documents that have not been searched in response to his request.

Consideration

1. In Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 Judge O'Connor stated at paragraph [69]: An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists... It is not enough for an applicant simply to base the assertion [that an agency does not hold material] on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.
2. This approach has been applied consistently in relation to applications under the GIPA Act. Mr Turner has provided a significant amount of material in support of his case and has dissected a number of records to identify notations and discrepancies that he says support a finding that the Respondent holds other information falling within the scope of his access application.
3. These notations and discrepancies have been considered in other decisions of this Tribunal that I have referred to above. I do not propose to revisit the issues here other than to note that I agree with Mr Turner that there are discrepancies between several documents to which I have been referred and that it appears that the Respondent's established procedures have not always been followed. However, I do not agree with the assumptions that Mr Turner has made in relation to those issues. I do not agree that the notations and discrepancies indicate the existence of further disclosure certificates that have not been provided to him.
4. I accept the Respondent's evidence in regard to the purpose of a disclosure certificate and the usual procedure surrounding the creation of disclosure certificates. I also accept the Respondent's evidence in regard to the searches that have been undertaken to locate the requested information.
5. It is probable that only one disclosure certificate was created in relation to the charges arising from the Dameeli Lodge incident. That disclosure certificate is dated 23 June 2008 and Mr Turner has been given a copy of that disclosure certificate.
6. In the circumstances I am also satisfied that reasonable searches have been undertaken to locate other records that are within the scope of items 2 and 3. I am satisfied that further searches are unlikely to locate other information related to disclosure certificate dated 16 October 2008 or 25 September 2008.
7. I am satisfied that there are no reasonable grounds for believing that the Respondent holds a disclosure certificate dated 16 October 2008 or a disclosure certificate dated 25 September 2008 or other information related to those disclosure certificates.
8. It follows, in my view, that the Respondent's determination should be affirmed in regard to Items 2 and 3 of the access application. As noted above, it is also my view, that the Respondent's determination should be affirmed in regard to Item 1 of the access application.

Order 1. The decision under review is affirmed. ​

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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: 15 December 2017