Bonatti -v- Commisioner of Police, New South Wales [2002] NSWADT 147

CITATION: Bonatti -v- Commisioner of Police, New South Wales [2002] NSWADT 147 DIVISION: General Division APPLICANT PARTIES: Daniel Bruno Bonatti RESPONDENT Commissioner of Police, New South Wales, Police Service FILE NUMBER: 013276 HEARING DATES: 26/07/02 SUBMISSIONS CLOSED: 07/26/2002 DATE OF DECISION: 08/20/2002

BEFORE: Hennessy N (Deputy President) APPLICATION: amendment of documents MATTER FOR DECISION: Principal matter Crimes Act 1900 LEGISLATION CITED : Summary Offences Act 1988 Freedom of Information Act 1989 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT Commissioner of Police, New South Wales Police Service ORDERS: Decision of the agency not to amend Mr Bonatti's criminal record dated 21 August 2001 is affirmed.

Introduction 1 Mr Bonatti maintains that his criminal record is incorrect and he has asked the Commissioner of Police (the agency) to amend the record pursuant to s 39 of the Freedom of Information Act 1989 (FOI Act). Unfortunately Mr Bonatti's concerns, while strongly and genuinely held, stem from several fundamental misunderstandings about the way the criminal justice system operates and about the meaning of the District Court's judgement in relation to his appeal on 11 April 1996. I have dealt comprehensively with Mr Bonatti's relevant submissions in an effort to allay his concerns that his criminal record is incorrect. Legislative framework 2 Under s 39 of the FOI Act, "a person to whom access to an agency's document has been given may apply for the amendment of the agency's records." Two pre-requisites for such an application are that the document must contain information concerning the person's personal affairs and the information is available for use by the agency in connection with its administrative functions. There was no dispute that a person's criminal record meets both of these pre-requisites. 3 The third criterion which a person must establish is that "the information is, in the person's opinion, incomplete, incorrect, out of date or misleading." Pursuant to an application under the FOI Act, Mr Bonatti was given access to two print outs of his criminal record obtained from the COPS system, one dated 5 January 2001 and the other dated 21 August 2001. These print outs differed. The 21 August 2001 print out contained an entry in relation to "Breach of Recog of 23/07/93." In relation to this breach it was recorded that on 4 April 1995 Mr Bonatti was fined $300 and ordered to pay court costs of $46. Mr Bonatti's submitted that this entry should be deleted from his record because it was incorrect. The main reason Mr Bonatti said it was incorrect was that he had appealed to the District Court against the breach of recognisance and that Judge Nash had upheld his appeal in relation to that matter. 4 As well as submitting that the entry in relation to the breach of recognisance should be deleted, Mr Bonatti submitted that his entire criminal record should be deleted. The submissions in relation to these matters are set out below at paragraphs 9 and 25. 5 Pursuant to s 41 of the FOI Act, the agency refused to amend Mr Bonatti's criminal record as shown in the print out of 21 August 2001. The reason for the refusal was that it was "satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect." Evidence 6 The evidence in this case consisted of: · a statement from Robert Waterson, Acting Detective Superintendent of Police and the Commander of the Criminal Records Branch within the Forensic Services Group of the NSW Police; · the District Court file in relation to Mr Bonatti's appeal heard on 11 April 1996; and · Mr Bonatti's Notice of Appeal to the District Court. 7 The undisputed facts are that on 28 October 1992 Mr Bonatti was charged with two counts of assaulting police, one count of resisting arrest and one count of offensive language ("the first group of offences."). On 23 July 1993 the Local Court dealt with Mr Bonatti under s 556A of the Crimes Act 1900 (now repealed). In relation to the two assault police matters he was discharged conditionally and released on a recognisance to be of good behaviour for two years. The remaining charges were dismissed under s 556A of the Crimes Act 1900 after Mr Bonatti discharged his responsibilities before the Community Aid Panel. Section 556A and s 556B of the Crimes Act 1900 8 Section 556A and s 556B of the Crimes Act 1900 (now repealed) are central to an understanding of these reasons. Those sections are set out in full below. 556A. Power to permit release of offenders (1) Where any person is charged before any court with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the court thinks it proper to consider, it is inexpedient to inflict any punishment, or any other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either: (a) dismissing the charge; or (b) discharging the offender conditionally on his entering into a recognisance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order. (1A) A recognisance mentioned in subsection (1) shall be conditioned upon and subject to such terms and conditions as the court shall order. (1B) The power conferred on a court by subsection (1) does not extend to the Children's Court or to any other court exercising the powers of the Children's Court. (2) Where an order is made under this section the order shall, for the purpose of revesting or restoring stolen property, and of enabling the court to make orders as to the restitution or delivery of property to the owner, and as to the payment of money upon or in connection with such restitution or delivery, and for the purpose of the exercise of any power conferred on the court by Part 6 of the Victims Compensation Act 1987, have the like effect as a conviction. (3) Where under subsection (1) a charge is dismissed or an offender is conditionally discharged, the person charged shall have the same rights as to appeal on the ground that he was not guilty of the offence charged as he would have had if convicted of the offence. 556B. Proceedings on breach of condition of recognisance If the court before which an offender is bound by recognisance (whether entered into for the purposes of section 556A or otherwise) to appear for conviction or sentence, or any court of like jurisdiction to that court, is satisfied by information on oath that the offender has failed to observe any condition of his recognisance, it may issue a warrant for his apprehension and upon his apprehension, on being satisfied that he has failed to observe any condition of his recognisance, may convict and sentence him, or sentence him, as the case may require, for the offence with which he was originally charged as if he had not been released on recognisance. First group of offences 9 I understood Mr Bonatti to be submitting that none of the matters which were dealt with under s 556A should appear on his criminal record because he was not convicted of any offence. Instead the charges were either dismissed or he was conditionally discharged. While it is correct to say that he was not convicted of any of these offences on 23 July 1993, Mr Bonatti was dealt with under the Crimes Act 1900. It is my understanding that matters dealt with under s 556A of the Crimes Act 1900 (now repealed) are recorded on a person's criminal record. Second group of offences 10 It was not in dispute that on 7 September 1994 Mr Bonatti was charged with further offences. These offences were assaulting Person A, assaulting Person B, two counts of resisting arrest and once count of malicious damage. He appeared before the Local Court at Newcastle on 4 April 1995. In relation to each assault charge he was convicted and ordered to perform 150 hours of community service. In relation to each of the resist arrest charges he was found guilty and agreed to enter into a two year recognisance under s 558 of the Crimes Act 1900. (That section replace s 556A of the Crimes Act 1900.) The charge of malicious damage was dismissed. Conviction for breach of recognisance 11 On the same day as he appeared in the Local Court at Newcastle (4 April 1995), the presiding Magistrate placed before him the s 556A recognisance matters for assault police which Mr Bonatti had entered into on 23 July 1993. This occurred because Mr Bonatti was alleged to have breached a condition of those recognisances, namely to be of good behaviour, by committing further offences. Section 556A, as it then was, states that if a defendant enters into a recognisance, he or she must appear for conviction and sentence when called on at any time during such period specified in the order. He was convicted of each of the assault police charges on 23 July 1993 and fined $300 for each and $46 court costs. 12 It is at this point that Mr Bonatti's interpretation of events differs from that of the agency. Mr Bonatti gives three reasons why he should never have been brought before the Local Court for breaching the recognisance. The first is that he believes that the recognisance to be of good behaviour would only be breached if he committed another offence of assaulting police. Because the new offences occurred on private property and related to a domestic dispute, they were not covered by the recognisance. That is not right. Section 556A allows a court to dismiss a charge or discharge a defendant conditionally on his entering into a recognisance to be of good behaviour and to appear for conviction and sentence when called on at any time during the specified period. There were no conditions in Mr Bonatti's recognisance that the bond to be of good behaviour only meant that he could not commit a similar offence again, that is assault police. 13 The second reason Mr Bonatti said that he should never have been brought before the Local Court for breaching the recognisance was that the first offences were under the Summary Offences Act 1988 whereas the later charges were under the Crimes Act 1900. Again, nothing Mr Bonatti could show me demonstrated that the recognisance to be of good behaviour was restricted to offences committed under certain legislation. 14 The third reason Mr Bonatti said that he should never have been brought before the Local Court for breaching the recognisance was that he did not re-offend during the two year period. Mr Bonatti was charged with the first assault offences on 28 October 1992. He was discharged conditionally by the Magistrate under s 556A on 23 July 1993. Mr Bonatti submitted that the two years runs from 28 October 1992, rather than 23 July 1993. That submission is not correct. Mr Bonatti entered into a recognisance to be of good behaviour for two years on 23 July 1993. The two years runs from that date. Because Mr Bonatti was charged with further offences within the two year time period (namely on 7 September 1994) he breached the recognisance and was dealt with by the Court. Appeal to the District Court 15 Mr Bonatti appealed to the District Court and the appeal was heard by Judge Nash on 11 April 1996. There is a dispute about whether Mr Bonatti's appeal included the conviction resulting from the breach of the recognisance. Mr Bonatti said that it did. He made several points in support of this submission. 16 Mr Bonatti's first submission that the appeal included the conviction resulting from a breach of the recognisance was that the Notice of Appeal states "I am not guilty." The Notice of Appeal identifies the offences as: "assault (2); resist police (2). It was agreed by the parties that the appeal was an "all grounds" appeal. Mr Tunks, for the agency, submitted that an "all grounds" appeal can be distinguished from an appeal relating to the severity or inadequacy of the penalty. It does not relate to the number of convictions which are being appealed. I accept this submission. The Notice of Appeal specifies four convictions which were being appealed, namely the two assault convictions involving Person A and Person B and the two convictions for resisting arrest. There is no mention in the Notice of Appeal of an appeal against the conviction which resulted from the breach of the recognisance. 17 Mr Bonatti's second submission was that Judge Nash dealt with and made orders about the conviction resulting from breach of recognisance in his judgement. There is no dispute that the record of the orders made by Judge Nash does not refer to the conviction resulting from the breach of the recognisance. The orders, signed by Judge Nash, were as follows: Re Appeal of assault on Person A: Appeal allowed. Re Appeal of assault on Person B: Appeal dismissed. Re Appeal of resist police: appeals allowed Re appeal of assault upon Person B: I confirm the Magistrate's order that you perform 150 hours community service, I specify Newcastle Local Court as the supervising Court. I direct you report to the Community Service Organisation at the Newcastle Office of the Probation Service no later than 4 pm on 19/4/96 to enable the administration of this order to be effected. 18 Mr Tunks, representing the agency, relies on this record and states that it can be the only basis for entries being included or removed from Mr Bonatti's criminal record. Mr Bonatti submitted that I should also look at the transcript of Judge Nash's judgement to determine whether His Honour has upheld his appeal against the convictions for assaulting the police officers. 19 I accept Mr Tunks' submission that the transcript of the judgement is not relevant. The judgement is not the official record of the orders made by the court. The transcript records the preliminary discussion with the parties and the court's reasoning, but not its orders. On that basis, I find that the criminal record of 21 August 2001 is accurate because the conviction for two counts of assault police as a result of a breach of the recognisance, appear on that record. Alternative submission 20 However, in case I am wrong and the District Court transcript does form part of the relevant material to be considered, I will deal with Mr Bonatti's submission in relation to the transcript. 21 The transcript consists of some 17 pages. It begins with a discussion between the representative of the Crown, Mr Leech, the representative for Mr Bonatti, Mr Kozlowski, and Judge Nash. In particular, Mr Bonatti drew my attention to a passage on pages 13 and 14 of the transcript in the following terms: Kozlowski: He was dealt with in relation to a breach of the recognisance which he was – His Honour: What happened to him on that? Kozlowski: Your Honour, I think he was fined eight hundred dollars your Honour, three hundred dollars your Honour. He was - and court costs of forty six dollars in relation. He was actually breached in relation to each matter as your Honour will see the – His Honour: Well how could he be breached for each of them? Kozlowski: Well there were two 556A. His Honour: Well according to this record, he got a 556A recognisance for – Kozlowski: I'm sorry your Honour. His Honour: In respect of, it looks like two counts, according to this. The others were proved dismissed under 556A, without recognisance. That's if this record is correct. Leech: No that's the case your Honour, yes. Kozlowski: Well he received the benefit of s 556A in relation to each count of – His Honour: Anyway he was fined therefore a total of six hundred for them was he? Kozlowski: that's right your Honour, three hundred dollars on each of the breaches. His Honour: Has he paid them? Kozlowski: No your Honour. His Honour: Why not? Kozlowski: Well I suppose he was waiting the result of the appeal your Honour. His Honour: Well he didn't appeal against them, so. Kozlowski: Well had your Honour found that the appeal was successful in relation to all matters, obviously there would have been His Honour: He would have still had to pay that wouldn't he? Kozlowski: Well he wouldn't have then, with respect had – His Honour: Oh well that's true, yes. Well I don't know if you can give leave to file them out of - Leech: Well it wouldn't have been breaches your Honour. His Honour: Well it couldn't have been breaches, therefore it couldn't have been, yes that's right. 22 Although it is difficult to know exactly what the participants in this exchange were intending to impart by these words, there is no doubt whatsoever that no orders were made by Judge Nash during this exchange. He did not use the words "appeal allowed" or "appeal dismissed" or any other words indicating that an order was being made. Consequently I reject Mr Bonatti's submission that Judge Nash made an order upholding an appeal against his conviction of two counts of assaulting a police officer. 23 In an attempt to assist Mr Bonatti to understand what the participants in this exchange may have intended by their words, I have set out below my interpretation (in italics) of what they intended to say. This interpretation is by way of comment only. Kozlowski: He was dealt with in relation to a breach of the recognisance which he was – ( Mr Bonatti was dealt with by the Local Court for breaching the recognisance which he entered into on 23 July 1993 in relation to two matters of assault police) His Honour: What happened to him on that? Kozlowski: Your Honour, I think he was fined eight hundred dollars your Honour, three hundred dollars your Honour. He was - and court costs of forty six dollars in relation. He was actually breached in relation to each matter as your Honour will see the –(Mr Kozlowski corrects his initial mistake and confirms that he was fined $300. $300 was the amount Mr Bonatti was fined on each count of assault police after being convicted for those offences on 4 April 1995 following the breach of his recognisance. Mr Bonatti was also ordered to pay $46 in court costs in relation to each of those convictions. The reference to being breached in relation to each matter is a reference to breaching the recognisance to be of good behaviour in relation to each of the two counts of assault police.) His Honour: Well how could he be breached for each of them? (Judge Nash is querying how Mr Bonatti could be breached for both matters when he is under the impression that only one of the matters was dealt with by entering into a recognisance under s 556A) Kozlowski: Well there were two 556A. (Mr Kozlowski clarifies the situation by pointing out that there were two matters dealt with under s 556A for which a recognisance was entered into, that is the two counts of assault police.) His Honour: Well according to this record, he got a 556A recognisance for – Kozlowski: I'm sorry your Honour. His Honour: In respect of, it looks like two counts, according to this. The others were proved dismissed under 556A, without recognisance. That's if this record is correct. Leech: No that's the case your Honour, yes. Kozlowski: Well he received the benefit of s 556A in relation to each count of – (he was going to say each count of assault police) His Honour: Anyway he was fined therefore a total of six hundred for them was he? (Judge Nash is clarifying that Mr Bonatti was fined $300 for each of the assault police matters after being convicted of them having breached the recognisance.) Kozlowski: that's right your Honour, three hundred dollars on each of the breaches. His Honour: Has he paid them? Kozlowski: No your Honour. His Honour: Why not? Kozlowski: Well I suppose he was waiting the result of the appeal your Honour. (The inference here is that if Mr Bonatti was successful on his appeal and all his convictions in the Local Court made on 11/4/96 were dismissed, then Mr Bonatti would not have breached his recognisance and the convictions for assault police could not stand.) His Honour: Well he didn't appeal against them, so. (Judge Nash is conveying his understanding that Mr Bonatti has not appealed to the District Court against the convictions for assault police arising from the breach of the recognisance.) Kozlowski: Well had your Honour found that the appeal was successful in relation to all matters, obviously there would have been . . (Mr Kozlowski is formulating his understanding of what the situation would have been in relation to the convictions for assault police if the appeal was successful in relation to all matters.) His Honour: He would have still had to pay that wouldn't he? (Judge Nash's understanding is that even if Mr Bonatti was successful in relation to all his appeals, the convictions for two counts of assault police would not be affected and Mr Bonatti would still have to pay the fines.) Kozlowski:" Well he wouldn't have then, with respect had (Mr Kozlowski expresses a different view - he is saying that if Mr Bonatti was successful in relation to the appeals he wouldn't have to pay the fines for the convictions of assault police.) His Honour: Oh well that's true, yes. Well I don't know if you can give leave to file them out of . . . (Judge Nash agrees with that and raises the question of whether leave should be given to Mr Bonatti to lodge an appeal on the convictions for assault police out of time.) Leech: Well it wouldn't have been breaches your Honour. (Mr Leech is expressing the view that if the appeal is totally successful, there would have been no breaches of the recognisance.) His Honour: Well it couldn't have been breaches, therefore it couldn't have been, yes that's right. (Judge Nash is agreeing with Mr Leech's comment.) 24 On the basis of this interpretation, the understanding of Judge Nash and the parties' representatives was that no appeal had been lodged in relation to the convictions for assault police. Consideration was given to whether leave should be granted to lodge an appeal against that conviction out of time. It was agreed that it was unnecessary to do so because if the appeal in relation to all the other matters was successful, there would have been no breach of the recognisance, and the conviction for assault police would fall away. In the end, Judge Nash dismissed the appeal in relation to the assault on Person B. This meant that the basis for the conviction of two counts of assault police still existed and the conviction for those matters was not changed. 25 As a result of the District Court's orders and representations made by Mr Bonatti, his convictions for assaulting Person A and the two convictions for resisting arrest were correctly removed from his criminal record. Mr Bonatti maintains that all his other convictions should be removed. I have dealt with his submissions in relation to the records of 23 July 1993. In relation to the conviction for assaulting Person B, I explained to Mr Bonatti that the only way that conviction could be deleted was if he successfully appealed against the conviction. Conclusion 26 The agency corrected Mr Bonatti's criminal record after correspondence with him. Mr Bonatti did not agree with new version of his criminal record. My conclusion, on the basis of all the evidence and submissions, is that the criminal record is now correct. I accept that from Mr Bonatti's point of view the question of an appeal against the conviction for assault police was not dealt with explicitly by the District Court, but that is because, on my reading of the transcript, such an appeal was not before the Court. This interpretation is confirmed in the official record of the orders made by the District Court which do not include any reference to the assault police matters. Consequently the criminal record dated 21 August 2001 is correct. Orders Decision of the agency not to amend Mr Bonatti's criminal record dated 21 August 2001 is affirmed.