McGuirk v NSW Police Force [2011] NSWADT 155

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: McGuirk v NSW Police Force [2011] NSWADT 155 Hearing dates: On the papers Decision date: 27 June 2011 Jurisdiction: General Division Before: N Isenberg, Judicial Member Decision: In Matter 103223: The decision under review is affirmed in respect of folios 1, 3, 7-11, 19, 26, 27, 29, 30-31, 32, 33 to 35, 51 to 52, 53 to 54, 55 to 56, 57, 62, 63 to 72, 112 - 115 The decision under review is set aside in respect of folios 2,4,5, 6, 20 to 25, 28 In Matter 103224: The decision under review is affirmed in respect of folios 54, 63, 163-164, 269 to 273 the decision under review is set aside in respect of folio 55 commencing with the words 'In the 61 page document' and ending on folio 56 with the words 'the charges of Assault and Resist Police', and folio 72 Legislation Cited: Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997 Cases Cited: Commissioner of Police v District Court of New South Wales and Anor (1993) 31 NSWLR 606 Category: Principal judgment Parties: Gerard Michael McGuirk (Applicant) NSW Police Force (Respondent) Representation: G McGuirk (Applicant in person) Bartier Perry (Respondent) File Number(s): 103223 103224

Reasons for decision

Background

Matter 103223 1 By application dated 28 June 2010 Mr McGuirk requested the following documents under Freedom of Information Act 1989 ( the FOI Act ) from the New South Wales Police Force (the Police): * · All written communications (including letter s, facsimiles, emails etc., and any attachments to those communications) between the Police Prosecutions Unit of the NSW Police Force and Police Legal Services relating to the prosecution of Mr Gerard Michael McGuirk in the Burwood Local Court over some 2 years on the charge of 'remain on inclosed lands' in relation to events which occurred on 12 August 2006 (the 'McGuirk Burwood prosecution'). * · Note:The relevant period during which such communication will have taken place is from August 2006 to April 2009 inclusive. * · All file notes held by the Police Prosecutions Unit and/or Police Legal Services relating to the McGuirk Burwood prosecution. * · All written communications Police Legal Services and the Office of the Director of Public Prosecutions relating to the McGuirk Burwood prosecution and the request by Police Legal Services that the Director of Public Prosecutions appeal against the decisio n of Magistrate William Pierce made on 6 February 2009 to permanently stay the McGuirk Burwood prosecution on the basis that it constituted an abuse of the process of the court. * · All documentation held by the Police Prosecutions Unit of the NSW Police Fo rce relating to the decision to replace Sergeant Gregory Hunt as prosecutor in the McGuirk Burwood prosecution in or around February 2008 by Sergeant Graham Wedge. * · All invoices from Mr C Lonergan of counsel for legal services provided to the NSW Police Force (and/or to the Commissioner or other officers of the NSW Police Force) in relation to the McGuirk Burwood prosecution. * · All documents which were sent to, or received from, the Office of the Commissioner of the NSW Police Force by the Police Prosecu tions Unit and/or Police Legal Services relating to the McGuirk Burwood prosecution. * · Any report made by the NSW Police Force (whether made by officers of the Police Prosecutions Unit, Police Legal Services, officers of the Burwood LAC or any other offic er of the NSW Police Force) to the NSW Ombudsman following the making by Magistrate Pierce of findings of improper conduct by an officer (and/or officers) of the Burwood LAC (whether currently serving or not) in relation to the events of 12 August 2006 and the staying by Magistrate Pierce on 6 February 2009 of the McGuirk Burwood prosecution on the basis that it was an abuse of the process of the court. * · Any record of any investigation by the NSW Police Force into the arrest of Mr Gerard Michael McGuirk by officers of the Burwood LAC on 12 August 2006, his subsequent * · detention for 12 hours in the cells at the Burwood Police Station, the 'failed invest igation' conducted by then Acting Inspector Russell Wood into those matters, and the prosecution of Mr McGuirk by the Police Prosecutions Unit over a period of 214 years, after 6 February 2009, the day on which Magistrate Pierce permanently stayed the McGuirk Burwood prosecution on the basis that it was an abuse of the process of the court. * · Any record of any disciplinary action taken by the NSW Police Force against those officers who were involved in the events of 12 August 2009 (including, but not limited to, Inspector Francis Gomes, A/Inspector Russell Wood, Sergeant Stamatis Drakos, Serg eant Colin Iles, Constable Vanessa Hadley and Constable Clint Geelan), and/or in respect of the decision taken by officers of Police Prosecutions Unit (including, but not limited to, Sergeants Timothy Lowe, Gregory Hunt and Graham Wedge) to maintain the McGuirk Burwood prosecution after 10 November 2006, the date on which the relevant officers knew (and/or should have known) that the complainant, Ms Robyn Buchanan, had misled officers of the Burwood LAC on 12 August 2006 as to the nature of her relationship with Mr McGuirk. * · All records held by the NSW Police Force (including COPS entries and notebook entries of officers of the Burwood LAC and/or former officers of the Burwood LAC) of reports made by Ms Robyn Buchanan (and/or Gribble) of alleged breaches b y Mr McGuirk of 'bail conditions' imposed on him by Sergeant Colin Iles on 12 August 2006. * · All records held by the NSW Police Force (including COPS entries and notebook entries of officers of the Burwood LAC and/or former officers of the Burwood LAC) of 'attendances' by officers of the Burwood LAC at the home of Mr McGuirk at 1/2 Regent Street Summer Hill on the following days:15 February 2007, 19 February 2007, 29 March 2007, 1 April 2007, 3 April 2007, 8 April 2007, 9 April 2007. 2 No original decision was made within the statutory time frame and in accordance with section 24(2) of the FOI Act, Mr McGuirk 's application was deemed to have been refused. An internal review was conducted at Mr McGuirk's request, and some documents were released, either in whole or in part.