Vinciguerra v Commissioner of Police [2020] NSWCATAD 284

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vinciguerra v Commissioner of Police [2020] NSWCATAD 284 Hearing dates: 14 August 2020 Date of orders: 16 November 2020 Decision date: 16 November 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: The decision of the respondent made on 4 December 2019 is affirmed. Catchwords: GIPA Act – Government Information – Access – Reasonable Search Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 Law Enforcement (Powers and Responsibilities) Act 2002 Service and Execution of Process Act 1992 (Cth) Cases Cited: Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD Category: Principal judgment Parties: Aniello Vinciguerra (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: M Norquay (Respondent) File Number(s): 2019/00342161 Publication restriction: None

REASONS FOR DECISION 1. On 4 July 2019, the applicant lodged an application under the Government Information (Public Access) Act 2009 ("the GIPA Act") with the respondent seeking: Exhibit, MFI1, statement or affidavit on oath, application for executing interstate search and arrest warrant including the extradition order under the State of (New South Wales) & (Cth) Rules and Regulations Required by a Magistrate or Judge order or Justice of the Peace sealed and signed, members of the (NT), (NSW) Police Force, Crown Witnesses and Expert Witnesses, that have participated into this inquiry/matter. 1. The application was originally lodged by the applicant with the Department of Justice and transferred to the respondent on 4 July 2019. 2. On 16 July 2019, the respondent wrote to the applicant to request that the application be refined in accordance with s60(4) of the GIPA Act. 3. On 24 July 2019, the applicant responded to the request for refinement with an 8 page letter detailing the information he was seeking. 4. On 13 August 2019, a Notice of Decision - deemed refusal was sent to the applicant. 5. Following the respondent's decision an application was filed with this Tribunal seeking administrative review on 31 October 2019. 6. The applicant on 13 July 2020, filed with the Tribunal a statement clarifying his request. The applicant confirmed that the information he seeks is set out in paragraph 6 of that document, which was marked in this hearing (A1). The information sought by the applicant is: (i) Statement/affidavit and any reports made to eligible Judge and to Attorney General by any member of the NSW Police Service including but not limited to DESC Michael Wilkins concerning to [sic] the obtained material from extra-territorial evidence by NT, VIC and NSW, the electronic items, angel eye camera, mobile phones, prior telephone intercept from calls and the review of the mobile/prisons phone records involving the applicant. (ii) All documents, of any nature, prepared or received at any time by any person either previously or presently in the employ of the NSW Dept of Corrective Services concerning the NSW Police investigation between the [sic] January 2015 to October 2016 in regards to the MRRC Silverwater and Long Bay CC relating to the CS NSW prison telephone interceptions recordings and the review of the phone records involving the applicant as the calling party. (iii) Copies of all communications, of any kind, between the servants and agents of the NSW Commissioner for Police and the NSW Dept of Corrective Services concerning the provisions of items covered above. (iv) A person to whom a warrant has been granted under (Cth) or (NSW) legislation to obtain the extra-territorial and NSW evidence being the electronic [unreadable], angel eye camera, mobile phones, prison telephone interception calls and the review of the mobile/prison phone records involving the applicant as the calling party, requires within the time specified therefore in warrant, furnish a report to writing to an eligible Judge and to Attorney General refer to the seminal case of Haddad v Theglia. The applicant is requesting any report issued by NSWPF to an eligible Judge and to Attorney General in regards to the above evidence to be released in full in accordance with the aforementioned case authority. (v) The applicant is seeking access to records/information concerning the notice of application for all warrants issued in his matter by NSWPF which have been previously served to Attorney General in relation to the granting of the warrant before it is granted within terms of the NSW or Cth regulations. (vi) Statement/affidavit including any reports made to eligible Judge and to Attorney General by DSC Paul Gardiner concerning the applications to execute interstate asset warrant which is in accordance with the Part 5 execution of warrants s83 sub (8) PP (6) of the Service and Execution of Process Act 1992 (Cth) involving the applicant as a person of interest to be released in full. (vii) Statement signed by DSC Michael Wilkins in relation to the applicant dated on; 10th March 2015; 1 September 2015; 3 December 2015; 4 September 2015; 7 September 2015 and 19th September 2016. (viii) Statement of the ACMA expert analysis from the State of VIC James Karamalakis. (ix) Statement of witness A and witness B (anonymised to protect the witnesses identity) to be released in full. (x) Statement/affidavit of the DSC Timothy Carter concerning the interstate search warrant issued in the State of VIC requires to furnish a (unreadable): (a) application form - (Annexure C) to request the issue and execution of a search warrant in another State; (b) complete and sign the affidavit (Annexure B) detailing the information to support request for the issue of the search warrant and have if sworn in front of a Justice of the Peace ensure all pages of the affidavit are acknowledged by Justice; (c) application must be checked and endorsed by a crime manager/supervisor before forwarding to coordinator, crime directorate support client; (d) forward signed application form (Annexure C) and affidavit (Annexure B) to the crime directorate support client, State Crime Command, via email (send to the SECOPSCO) for processing, include all known details of a contact officer in the receiving State of known (telephone contact should be made with crime directorate support unit prior to forwarding any request to ensure with compliance; (e) the applicant is requesting the above authorised information all records to be released in full. 1. On 4 December 2019, the respondent issued a Notice of Decision (Decision) which determined: to provide access to information requested under s58(1)(b) of the GIPA Act, except where there is an overriding consideration against disclosure noting that certain information sought is not held pursuant to s58(1)(d) of the GIPA Act. 1. Following a case conference held in January 2020 the respondent has released a number of documents in full to the applicant. 2. The following documents remain in contention: (i) Statement/affidavit and any reports made to eligible Judge and to Attorney General by any member of the NSW Police Service including but not limited to DESC Michael Wilkins concerning to [sic] the obtained material from extra-territorial evidence by NT, VIC and NSW, the electronic items, angel eye camera, mobile phones, prior telephone intercept from calls and the review of the mobile/prisons phone records involving the applicant. (ii) All documents, of any nature, prepared or received at any time by any person either previously or presently in the employ of the NSW Dept of Corrective Services concerning the NSW Police investigation between the [sic] January 2015 to October 2016 in regards to the MRRC Silverwater and Long Bay CC relating to the CS NSW prison telephone interceptions recordings and the review of the phone records involving the applicant as the calling party. (iii) Copies of all communications, of any kind, between the servants and agents of the NSW Commissioner for Police and the NSW Dept of Corrective Services concerning the provisions of items covered above. (iv) A person to whom a warrant has been granted under (Cth) or (NSW) legislation to obtain the extra-territorial and NSW evidence being the electronic [unreadable], angel eye camera, mobile phones, prison telephone interception calls and the review of the mobile/prison phone records involving the applicant as the calling party, requires within the time specified therefore in warrant, furnish a report to writing to an eligible Judge and to Attorney General refer to the seminal case of Haddad v Theglia. The applicant is requesting any report issued by NSWPF to an eligible Judge and to Attorney General in regards to the above evidence to be released in full in accordance with the aforementioned case authority. (v) The applicant is seeking access to records/information concerning the notice of application for all warrants issued in his matter by NSWPF which have been previously served to Attorney General in relation to the granting of the warrant before it is granted within terms of the NSW or Cth regulations. (vi) Statement/affidavit including any reports made to eligible Judge and to Attorney General by DSC Paul Gardiner concerning the applications to execute interstate asset warrant which is in accordance with the Part 5 execution of warrants s83 sub (8) PP (6) of the Service and Execution of Process Act 1992 (Cth) involving the applicant as a person of interest to be released in full. (ix) Statement of the witness A and witness B to be released in full.