Wilson v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-10-11

REASONS FOR DECISION

This matter concerns an application seeking administrative review of the Respondent's decision of 25 September 2022 to refuse his application for a Category ABH firearms licence having formed the view that the Applicant was not a fit and proper person to hold a firearms licence.
On 24 May 2023, the Respondent filed an application seeking orders pursuant to ss 49(2), 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and s 59 of the of the Administrative Decisions Review Act 1997 (the ADR Act) (the Respondent's s 64 Application) prohibiting the disclosure and publication of certain alleged confidential material.
A few days prior to the hearing of the Respondent's s 64 Application, the Applicant filed an application seeking orders pursuant to s 49(2) and s 64 of the CAT Act prohibiting the disclosure and publication of certain alleged confidential material (the Applicant's s 64 Application).
On 2 August 2023, the Tribunal heard the Respondent's s 64 Application and made orders excusing the Respondent from the obligation to file documents under s 58 of the ADR Act and prohibiting the disclosure and publication of that material to the Applicant and his legal representative.

Background

The Applicant has initiated appellant proceedings in the District Court relating to a decision of the Local Court. The Applicant has also initiated proceedings in the Supreme Court, Court of Appeal. the Tribunal was informed that the Supreme Court appeal was initiated by way of summons and related to a costs order. In respect of the appeal proceedings in the District Court, according to the Applicant, he intends to rely upon "fresh" evidence in the appeal proceedings including the material he alleges is confidential in the proceedings before this Tribunal. In this regard, the "grounds" as provided in the Applicant's application state: The confidential documents are evidence that shows that evidence supplied to the Parkes Local Court on 10 February 2023, by the NSW Police and the Prosecution, has been tampered with, manufactured, and shows Police corruption [sic] because of this False evidence. This evidence needs to be protected from the Respondent, As there is an Appeal in the District Court at Orange NSW, the Initial hearing is set down for the 4th August 2023, before a District Court Justice. On 21st June 2023, Evidential proof was also refused to be lodged. The evidence of Police corruption needs to be protected until the Justice is able to view and consider the Evidence at a Hearing do [sic] determine the Appeal. It would be improper to provide access to this evidence to the Respondent, before the Justice views it, and witnesses give evidence to the Justice in the District Court, probably late 2023.

The Tribunal's jurisdiction

As is made clear by s. 49(1) of the CAT Act, the orthodox position is that Tribunal hearings are to be open to the public unless the Tribunal orders otherwise. Section 49(2) permits the Tribunal to depart from this position and conduct a private hearing if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.
Pursuant to s 38(2) of the CAT Act, the Tribunal is bound by the rules of natural justice. What is appropriate in terms of natural justice depends on the circumstances of the case. However, the rules of open justice and procedural fairness are "not absolute" as reflected in the enactment of s. 59 of the ADR Act and s. 64 of the CAT Act.
Section 64 of the CAT Act relevantly provides: (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders- (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal). (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
In the recent decision of Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27, the Tribunal identified the principles which apply when deciding whether to exercise the discretion under s 64 of the CAT Act including: a. The power to prohibit or restrict the disclosure of evidence to a party is to be exercised albeit sparingly, for the purpose of securing to the Tribunal the availability of as mush as relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve. b. It may be relevant, when determining an application under s 64(1) of the CAT Act in administrative review proceedings under the Firearms Act, that it is an underlying principle of that Act that "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. c. The basis upon which an order under s 64(1)(d) of the NCAT Act is sought, and the public interest (if any) such an order is said to serve, form part of the circumstances of the case which are relevant to determining whether to make the order and, if so, what order to make. [Emphasis added]

Submissions and evidence

The Applicate relied upon: 1. Submissions by cover marked "confidential" dated 8 September 2023 ; 2. Materials attached to those submissions the subject of the Applicant's s 64 Application being: 1. A transcript of the recording at (b) below; 2. A copy of an audio recording between the Applicant and a police officer; 3. A copy of a card given to the Applicant by the police containing the telephone number of one of the police officers 4. A copy of an in-car video taken by the police 5. A copy of a second in-car video taken by police 6. An email from the Applicant's previous lawyers asking for money to be deposited into an account for payment of a report in the context of compiling evidence for the Local Court proceedings 7. Copies of pages from the Respondent's Facebook site 8. Sworn Statement of a Leading Senior Constable relied upon in the Local Court Proceedings in respect of which the Respondent is a party. 9. Sworn Statement of Senior Constable relied upon in the Local Court Proceedings in respect of which the Respondent is a party 10. Search results for two vehicle registration searches from the "free rego check" service provided by NSW government with photos of cars attached 11. Subpoena to produce filed in the District Court in proceedings in which the Respondent is a party 12. Letter from Transport NSW in respect of compliance with the subpoena at (k) filed in the District Court proceedings. 13. Minutes of four meetings attended by the Police entitled "Central west Police District - Parkes, Forbes & Lachlan LGA's Community Safety Precinct Committee Meeting"
Noting that for the purposes of the Applicant's s 64 Application, the documents have been taken at their highest such that the description of the documents given by the Applicant is accepted. However, no findings have been made by virtue of this decision as to the authenticity, admissibility, or relevance of any of those records. To the extent any are filed and served as evidence and sought to be relied upon at the final hearing, such decisions (to the extent objection or issue is taken to those documents) will be made by the Tribunal Member hearing the application for administrative review. Nothing in this decision fetters the Tribunal's discretion or decision-making in this regard.
According to the Applicant, the document at (f) is replied upon to support that such a report exists (despite failing to produce the actual report). The document from Transport NSW is relied upon in respect of compliance related to the subpoena.
The Applicant also relied upon his written submissions in reply dated 24 September 2023.
The submissions of the Applicant, in summary, was that the evidence and allegations supporting his allegation of corruption should be kept confidential because: 1. it should be reserved for the presentation to the Judge in the District Court Appeal so as to preserve the course of justice and natural justice; 2. of the Applicant's desire to keep the evidence that he asserts in unknown to the Respondent secret and only introduce it later in the District Court (noting that leave has not yet been granted for any fresh evidence to be adduced); 3. because of the fact that the Respondent's s 64 Application was granted so "if its good enough" for the Respondent, an order should be made for the Applicant; 4. if the Respondent knows that the Applicant has made allegations of corruption as against the Respondent, there may be further tampering of evidence; and 5. otherwise, the submissions of the Applicant concentrated on attempting to convince the Tribunal of the probative value of the evidence and the persuasiveness of his allegations in this regard.
The Applicant was oft reminded during the hearing that the Tribunal was not deciding any allegations of corruption but was deciding the Applicants s 64 Application. In that regard, the Tribunal requested the Applicant to provide his submissions and evidence as to why it was in the public interest, or otherwise for what reason, the Tribunal should act inconsistently with notions of procedural fairness and open justice and make non-disclosure orders.
In response the Applicant stated that if the Respondent knew of the allegation of corruption, the harassment and threatening behaviour that he and his family experience by the police would escalate. The Tribunal asked the Applicant to take it to the evidence that the Applicant and his family experience harassment and threatening behaviour from the police. The Applicant took the Tribunal to 1. parts of the transcript described at 11(2)(a); 2. two copies of "Advice of Court Result" in the Local Court where the Applicant was the accused and charged with certain crimes which were later overturned; and 3. parts of a transcript of cross-examination of a police officer in a different set of proceedings with such transcripts including a police officer admitting that some of his behaviour towards the Applicant was "unprofessional" and in answer to what it meant if the Applicant and his family was "now on our radar", the police officer said "special attention is what it means". In this respect, the transcript was not provided but the Applicant read from a summary that he had made of such evidence.
In response, the Respondent (who had not been served with the alleged confidential submissions and confidential evidence) submitted that there was no evidence that the material was confidential, and no harm identified if the evidence is disclosed. On this basis the Respondent resisted the orders sort including an order pursuant to s 49(2).
The Respondent also drew the Tribunal's attention to the fact that the Applicant admitted that some of the evidence was created by the Respondent and, as such, there was no confidentiality to be preserved as against the Respondent. Additionally, to the extent that the allegation is that there has been corruption, there is no public interest in keeping that secret. To the extent it has occurred (which was denied), it is the past and will not stop it.
Lastly, the Respondent indicated that the allegations being made by the Applicant were highly serious to which the Respondent ought to have an opportunity to respond to the extent they were relevant to the administrative review of the Respondent's decision.

Application for an order pursuant to s 49(2) of the CAT Act

After consideration of the submissions by each party, I made orders pursuant to s 49(2) of the CAT Act for the limited purpose of giving the Applicant the opportunity of taking me through what he alleged was evidence that ought to remain confidential. That order was made pursuant to the "some other reason" criteria in s 49(2) because to not make that order and to hear the Applicant's submissions regarding the confidential evidence in open court would pre-determine the application for non-disclosure because it would become part of the public record.
For this reason, the hearing was conducted partly in the "open", being open to the public, and partly "closed", being closed to the public, the Respondent and the Respondent's representative.

Application for orders pursuant to s 64 of the CAT Act

For the reasons below, I otherwise reject the Applicant's s 64 Application.
I accept the submissions of the Respondent that the documents that were created or within the possession of the Respondent could not be considered confidential because they were already within the knowledge of the Respondent. This applies to the documents described at paragraphs 11(2)(c), 11(2)(d), 11(2)(e), 11(2)(g), 11(2)(h), 11(2)(i), 11(2)(k) and 11(2)(m).
In respect of documents filed in Court proceedings of which the Respondent is a party, those documents were either served on the Respondent as part of those proceedings or could be accessed by the Respondent by accessing the Court file in those proceedings. This applies to the documents described at paragraphs 11(2)(h), 11(2)(i) and 11(2)(k). This also applies to the documents at paragraphs 11(2)(f) and 11(2)(l) as they are relied upon, respectively, for the purposes of evidencing a report that the Applicant alleges was evidence and compliance with a subpoena in those proceedings. I otherwise see no basis of making non-disclosure orders over such records.
In respect of the documents that are part of the public record or are accessible to the general public, these documents are not confidential and are available to the Respondent (and others). This applies to the documents described at paragraph 11(2)(j). With respect to the photographs attached to the searches, the photographs are of police cars accordingly, those cars would be known to the police. There is no basis to assert a need to keep confidential this information.
That leaves only the documents listed at paragraphs 11(2)(a) and 11(2)(b) which the Applicant contends is unknown to the Respondent. I reject this submission. The Applicant alleges that this is a recording of a conversation with a police officer. According to the Applicant, the police made a recording of this conversation at the time of speaking with the Applicant. This was framed in oral submissions as a fact by the Applicant. Later when questioned by the Tribunal it was said that it was suspicion. In any case, whether the Respondent made a recording or not, to the extent that it is an accurate recording (as contended by the Applicant), the entire substance of the conversation would be taken to be known to the Respondent given that it was a conversation with a police officer. To the extent that the Applicant wants to ensure that the Respondent's lack of knowledge subsists, such a desire is motivated by the Applicant's desire to gain a tactical advantage in other proceedings and otherwise make serious accusations of corruption in these proceedings without having those accusations, or the evidence that they rely upon, tested. I reject this as a legitimate basis to make non-disclosure orders and see it as a serious breach of procedural fairness and natural justice.
With respect to the Applicant's other submissions, I find as follows: 1. In respect of the Applicant's submissions that findings related to the Applicant's allegations of corruption should be reserved for the presentation to the Judge in the District Court Appeal to preserve the course of justice and natural justice but while simultaneously raising them in this Tribunal, I reject this submission. First, whether or not the evidence can be relied upon in those proceedings is currently unknown given that leave has not been granted. However, in any case, to the extent that this issue becomes part of the dispute between the parties as part of the application before this Tribunal, then, it becomes part of the justifiable controversy as between the parties which will need to be resolved by this Tribunal. To the extent that the Applicant believes that there is some advantage to these issues not being raised in this Tribunal, that is a matter for the Applicant. 2. In respect of the Applicant's desire to keep the evidence that he asserts in unknown to the Respondent secret and only introduce it later in the District Court (noting that leave has not yet been granted for any fresh evidence to be adduced), I reject this for the reasons at paragraph 27 above. 3. In respect of the Applicant's submission that his application should be granted because of the Respondent's s 64 Application was granted, I reject this application. The Respondent's s 64 Application was decided on its merits. Likewise, the Applicant's s 64 Application must be decided on its merits also. The granting of one party's interlocutory application does not lead to the automatic granting of another. 4. In respect of the Applicant's submissions that if: 1. the Respondent knows that the Applicant has made allegations of corruption as against the Respondent, there may be further tampering of evidence 2. the Respondent knew of the allegation of corruption, the harassment and threatening behaviour that he and his family experience by the police would escalate.
First, I am not satisfied from the evidence presented to me that the Applicant or his family is being threatened or harassed by the police however, even if there is other evidence that may establish that, the Applicant has already openly alleged that the police are corrupt. This was disclosed: 1. in open court on this application; 2. according to the Applicant, disclosed at the last directions hearing in the District Court where he described having the recording listed at paragraphs 11(2)(a) and 11(2)(b); and 3. in the Applicant's s 64 Application which states, in part: The confidential documents are evidence that shows that evidence supplied to the Parkes Local Court on 10 February 2023, by the NSW Police and the Prosecution, has been tampered with, manufactured, and shows Police corruption [sic] because of this False evidence. [Emphasis added]
As such, there is nothing to be preserved by now treating these allegations as confidential as the Applicant has repetitively made these allegations as against the Respondent to the Respondent or in the presence of the Respondent.
I note on 22 August 2023, this Tribunal made orders pursuant to s 64 preserving any confidentiality in the documents the subject of the Applicant's s 64 Application until determination of the application or until further order. Those orders need not be set aside as no further orders are made extending that preservation.
Otherwise, apart from the s 49(2) order, I dismiss the Applicant's s64 Application.
Lastly, I make an order that the documents the subject of the Applicant's s 64 Application be made available at the registry for return to the Applicant. To the extent that the Applicant seeks to rely upon the records the subject of the Applicant's s 64 Application, such documents will need to be re-filed with the Tribunal and served on the Respondent pursuant to the evidentiary and submission timetable which will be set in due course. To set a timetable, the matter is listed for directions on 24 October 2023 which the Tribunal was informed was convenient for both parties.

Orders

The Tribunal makes the following orders: 1. Pursuant to s 49(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the parts of the hearing relating to the discussion of the material the subject of the interlocutory application filed by the Applicant on 26 July 2023 (the Applicant's Application) be conducted in the absence of the Respondent, their legal representative, and members of the public. 2. The evidence and written submissions the subject of the Applicant's Application filed in this Tribunal be returned to the Applicant by making it available for pick-up from the Tribunal. 3. Apart from order 1, the Applicant's interlocutory application filed 26 July 2023 is otherwise dismissed. 4. The proceedings be set down for directions in the directions list on 24 October 2023 at 10.30am by AVL. 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: 19 October 2023

At a glance

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Judgment (7 paragraphs)

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