Kiss v Commissioner of Police, NSW Police Force [2008] NSWADTAP 33

Appeal Panel - Internal

CITATION: Kiss v Commissioner of Police, NSW Police Force [2008] NSWADTAP 33

APPELLANT Jack Kiss PARTIES: RESPONDENT Commissioner of Police, NSW Police Force

FILE NUMBER: 079059

HEARING DATES: 25 March 2008

SUBMISSIONS CLOSED: 25 March 2008

DATE OF DECISION: 25 March 2008

BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; O'Neill A - Non Judicial Member

CATCHWORDS: Question of law

MATTER FOR DECISION: Principal matter

DECISION UNDER APPEAL: Kiss v Commissioner of Police, NSW Police [2007] NSWADT 237

FILE NUMBER UNDER APPEAL: 073186

DATE OF DECISION UNDER APPEAL: 09/11/2007

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

CASES CITED: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

APPELLANT In person REPRESENTATION: RESPONDENT C Weiss, agent

ORDERS: The decision of the Tribunal is affirmed.

REASONS FOR DECISION 1 Mr Kiss applied to the NSW Police Force under the Freedom of Information Act 1989 (FOI Act) for the following documents: "Video records in digital format (preferably) of telephone conversation between Jack Kiss and callers in Redfern Police Station on 25/11/2006 after 8 pm and 3/12/2006 about 12 pm." 2 A delegate of the Commissioner advised Mr Kiss that a search had been undertaken but that no records could be found that fell within the scope of his request. Mr Kiss sought an internal review of the determination and the original determination was affirmed. Mr Kiss appealed to the Tribunal against this decision. The Tribunal affirmed the decision of NSW Police Force that it did not hold any documents requested by Mr Kiss. Mr Kiss appealed to the Appeal Panel against that decision. On 25 March 2008 the Appeal Panel gave oral reasons for its decision affirming the Tribunal's decision. 3 The background to Mr Kiss' application under the FOI Act is set out in Tribunal's reasons for decision at [10] to [12] Mr Kiss contends that he reported a break-in to his apartment at the Redfern Police Station on 25 November 2006. He dealt with Constable Cain, and whilst at the Police Station he was told that there was a telephone call for him. Mr Kiss says that the caller was the Prime Minister of Australia. Mr Kiss provided an account of his recollections of the conversation that took place between himself and the Prime Minister. Mr Kiss accepts that the CCTV tapes that he requested have been destroyed. However, he contends that the computer record of his attendance "was fraudulently removed from the computer and all related videos were removed from the Redfern Police Station as well to cover up a joint operation between the NSW and Federal Police and the Federal Government which ended up with a need for a cover up." Mr Kiss says that the Tribunal's role is to find out why the tapes do not exist any longer, why there are contradictions in statements and to refer the matter to determine how to punish the Commissioner. He requested that a report be made under section 58 of the FOI Act. He alleged that Timothy Cain and Emma Finlay failed to exercise in good faith a function imposed on them by the FOI Act. 4 Below is a transcript of the Appeal Panel's oral reasons for decision with minor editorial amendments. 5 The Tribunal came to the view that there were no documents held by the NSW Police, which would have met the description in Mr Kiss' request. The Tribunal accepted the evidence from Constable Cain that, if there was any record of the conversation being recorded by CCTV, that record no longer existed given that by the time of the Tribunal hearing six months had passed since the incident in the police station. 6 In the Notice of Appeal, Mr Kiss lists three grounds of appeal. The first is that the Tribunal has reversed the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11. That decision was a decision of the High Court to the effect that a Tribunal at first instance could reconsider its own decision if a jurisdictional error had occurred, such as a breach of procedural fairness. The circumstances of that case do not apply here because Mr Kiss is not asking the Tribunal to reconsider its own decision. Rather, he has appealed to the Appeal Panel on a question of law. He is entitled to do so under the provisions of the Administrative Decisions Tribunal Act 1997: section 113. There is nothing in the decision in Bhardwaj, which is applicable when the Appeal Panel is hearing an appeal on a question of law. 7 Mr Kiss' second ground of appeal is that, despite his request that Constable Cain and Ms Schultz be available for cross-examination, they did not attend and the Tribunal made a decision without their evidence being tested. We should clarify that Ms Schultz did not file any evidence. It was only Constable Cain who filed an affidavit therefore Mr Kiss was only entitled to request that he attend for cross-examination. 8 Under section 61 of the FOI Act, the burden of establishing a determination lies on the Minister or the agency. In this case the agency had made a decision that there was no video record of a telephone conversation that Mr Kiss says he had with the then Prime Minister. We understand that the reason for that decision was that the CCTV footage is footage, which records movements in and out of the police station. It is not designed to record phone conversations that a person in the police station may or may not have had with another person. 9 The evidence of Constable Cain that CCTV footage is destroyed after six months was an additional point made at the time that the matter was referred to the Tribunal. It was not a matter that was raised initially in the determination or on internal review. In any event, the Tribunal's decision records that Mr Kiss accepted that the CCTV tapes have been destroyed. There is consequently no issue about whether the NSW Police Force conducted an adequate search for the documents. 10 We should also clarify that Mr Kiss' evidence differed from that given by Constable Cain. Constable Cain said that he called Mr Kiss from another part of the police station because he needed to go to another computer to enter the COPS data. That would have been an unusual course of events given that it does not appear that Constable Cain had to go very far to access another computer and in the normal course it would obviously be preferable to speak to people coming into the police station face to face. Mr Kiss' evidence is that another officer came to him at the counter and told him that he had a telephone call from the Prime Minister. 11 Mr Kiss said he took that call and that the then Prime Minister, the Hon John Howard, spoke to him. He says that the Prime Minister then gave the phone to the then Foreign Minister, the Hon Alexander Downer who, Mr Kiss said, also spoke to him. As we have said, the evidence from NSW Police is that there was no call made externally to the police station from anyone, let alone the Prime Minister or Mr Downer. In those circumstances the fact that Mr Kiss was unable to cross-examine Constable Cain is not a matter, which could have made any difference to the ultimate decision of the Tribunal. The Tribunal's decision was based on an acceptance of evidence that there was no document (including CCTV footage) recording a phone conversation. It was incidental to the Tribunal's decision that it also decided that had there been CCTV footage of the event it would have been destroyed because more than six months had passed since the incident concerned. Consequently, there is no error of law disclosed by the fact that Mr Kiss was unable to cross-examine Constable Cain. 12 Finally, Mr Kiss says that Tribunal erred by not referring the matter to the Minister under section 58 of the FOI Act for improper conduct. That section says that: "If, as a result of a review application the Tribunal is of the opinion that an officer of an agency has failed to exercise, in good faith, a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency." 13 The Tribunal Member was not satisfied on the basis of the material before him, that an officer had failed to exercise a function imposed by the Act in good faith. Consequently, he declined to refer the matter to the Minister. 14 Mr Kiss' point is that his request was made prior to the six month period and therefore the CCTV should have been available. In his view the CCTV footage was deliberately destroyed. As we have said, we did not understand the police to have interpreted Mr Kiss' request as a request for CCTV footage, but rather as a request for a video recording of a phone conversation. Even if a decision made under section 58 is an appealable decision, we cannot identify any error in relation to the manner in which the Tribunal has exercised its discretion pursuant to that provision.