Trau -v- Minister for Police [2003] NSWADTAP 8

Appeal Panel - Internal

CITATION: Trau -v- Minister for Police [2003] NSWADTAP 8 APPELLANT PARTIES: Dr Jerzy Trau RESPONDENT Minister for Police FILE NUMBER: 029046 HEARING DATES: 24/02/2003 SUBMISSIONS CLOSED: 02/24/2003 DATE OF DECISION: 02/24/2003

Trau -v- Minister for Police [2002] NSWADT 180 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Conley J - Judicial Member; Bolt M - Member CATCHWORDS: opportunity to be heard MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 023052 DATE OF DECISION UNDER APPEAL: 09/25/2002 LEGISLATION CITED : Freedom of Information Act 1989 CASES CITED: Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Trau -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 215 APPELLANT REPRESENTATION: In person RESPONDENT D Paterson, solicitor ORDERS: Orders made on 24 February 2003; 1. Appeal dismissed.

DELIVERED EX TEMPORE 1 Dr Trau, we will deal with your appeal immediately today. I will give the Appeal Panel's decision and our reasons for decision. Our decision is to dismiss the appeal. 2 The appeal is made by you, Dr Trau, in respect of the decision handed down by Mr Robinson, Judicial Member, on 25 September 2002 in the case of Trau -v- Minister for Police [2002] NSWADT 180. 3 In that case, Mr Robinson dealt with the question of whether in response to your FOI application, the Minister had identified all relevant documents. There was a question as to whether certain documents which you were seeking had been located; and the evidence of the Minister's staff was that the documents in issue were unable to be found. 4 The question often arises in FOI cases as to whether agencies have undertaken adequate searches. Mr Robinson applied the principles as they have developed in the Tribunal, essentially from a case called Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52. He was satisfied on the evidence before him that adequate searches had been undertaken. 5 Your objection today, as I understand it when it is reduced to its essentials, is that there was evidence that you believed you could have put before Mr Robinson but you did not have the opportunity to place before him; and therefore you say you were denied procedural fairness. 6 During the course of the hearing this morning, we looked, as you know, at the transcript of the proceedings on that day, and there is nothing on the face of the transcript to indicate that Mr Robinson did anything other than extend to you every opportunity to put your case. What you say is that in the course of that day, you made it known to Mr Robinson, as I understand it by handing up some forms of summons, that there were two people you would have liked to have had, I think, attend the hearing and give evidence on this question of the missing documents. One was a Mr Flory and the other was a Detective Hunter. 7 You say that these forms of summons which I understand were addressed to these people were handed back to you by Mr Robinson. There is no record of the transaction on the transcript. You say that you now have learned that for these people to have been brought to the hearing, it would have been necessary to have had the summonses issued; and then for you to serve those summonses. The Tribunal's file does show (and this may be something that Ms Paterson is not aware of) that there is a letter from you, Dr Trau, dated 27 February 2002 in which you appear to be requesting the Registry for summonses to be issued. 8 You say you 'request the issuing of summonses whose forms were delivered to ADT by me on 10.2.02'. There are two draft summonses addressed to the New South Wales Minister for Police and the New South Wales Attorney General seeking the Crown Advocate's advice; and two draft summonses to attend addressed to Detective Sergeant Stuart Hunter from Chatswood Police Station and Martin Flory from the New South Wales Police Headquarters. So I accept what you say, Dr Trau, that there was some attempt by you in the course of these proceedings to have summonses effected. 9 It is not clear to me that that was a matter that was known to Mr Robinson on the day. Equally, there is nothing in the transcript to indicate as at that time of hearing you were continuing to press for these people to be giving evidence in relation to your search for the documents. 10 The Appeal Panel's view of your appeal as it has been presented today is that it is not one that is made out in any way. 11 What Member Robinson did was simply engage in a conventional exercise of hearing the police evidence and giving you an opportunity to put forward your material. There is no reference in the proceedings in that day before him of any concern on your part as to needing to bring these people forward. 12 So having regard to all those factors, it is our view that the process that Mr Robinson engaged in was satisfactory; and that you were not denied procedural fairness. Additional Comments 13 Now I might make some additional comments. 14 The first is that it would seem to me (at least) to be unlikely that the document that you seem to be looking for most of all, which is a signed version of the Gillett report, would be in the possession of the Minister or the Ministry. The Ministry, as Ms Ross's affidavit explains, is really a kind of small policy department that lies between the Minister's office and the operational arms of Policing and Emergency Services in New South Wales. You have got a very large New South Wales Police Service and large Emergency Services organisations. Then you have a very small number of public servants, relatively speaking, lying between these operational bodies and the Minister. In my view at least, it would be unlikely that you would find operational material of the kind that you are looking for in the Ministry environment; and Ms Ross says that. 15 Secondly, that would seem to me to suggest that the environment where the document you are after would be more likely to be located is the Commissioner's office, and the New South Wales Police Service. 16 This observation brings us back to your earlier case. There was a previous case that you brought in the Tribunal. Ms Paterson gave me a copy of the decision in that case (also before Mr Robinson); and that was decided on 17 December 2001. That was your case against the Commissioner of Police: Trau -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 215. It would seem that much the same matter (whether the agency held the Gillett report) was considered on that occasion. Certainly I would have thought that if you were to be successful in locating the Gillett report, it would have been in the context of that case. 17 Now as I see it, you say (and Ms Paterson understands this to be the case) that, 'Well, really, it would have been good if I had been able to get some evidence from Flory and Hunter for that case.' But that case has now been decided 15 or 16 months ago. There was no appeal against the decision at that time and it seems far too late now to be reopening that case. 18 As I understand your appeal today, really the issues you are raising are ones that, if anything, are more pertinent to that earlier case than they are to the present case which involves the inability of the Minister for Police to find a signed copy of the Gillett report in his office or Ministry. 19 The one observation I would make, Ms Paterson, is that it seems to me that - and this is probably the last thing you want to hear from me that there be any further work generated by these proceedings - your own FOI Officers at the New South Wales Police Service are in a position to make their own inquiries of Flory and Hunter and see if they can shed any light on the whereabouts of a signed copy of the Gillett report. It does seem strange on the face of it that the signed version of the Gillett report does not appear to have surfaced. 20 What I am really trying to convey to you, Dr Trau, in these comments is that I appreciate your questioning of the failure of the Police Service to be able to produce, as I understand the problem, their own record of this Gillett report when you have got a record. You have a record that is unsigned and you say that you have communications involving Mr Blanch when he was Crown Advocate and Mr Flory, as I understand it, and also possibly Sergeant Hunter. I am not as clear what the evidence is there that might go to the question of the current location of the document. 21 I do not think any of that needs summonses. 22 I would simply be suggesting through Ms Paterson to the New South Wales Police Service FOI Officers that they speak to these people, if necessary, to find out whether they can shed any light on the location of the document. Conclusion 23 But as to the issue before us today - the process that Mr Robertson engaged in - it was, we consider, a satisfactory process; and he gave satisfactory reasons. The appeal today in respect of his decision vis a vis the Minister for Police is not made out. 24 On the other hand I simply want to convey to you, Dr Trau, that one can understand your surprise that such a document is not able to be produced from Police sources, especially if what you say is right and what Ms Paterson says is right, that is that there has been a substantial Internal Affairs Branch investigation at some stage going to your allegations in respect of the handling of that report. But that is as far as we can take it. 25 My sense of today's appeal is that, if anything, the objections are more addressed to a case that was decided 16 months ago. 26 So they are our reasons, Dr Trau, and for those reasons the appeal is dismissed.