Turner v Commissioner of Police, NSW Police Force (No 2) [2017] NSWCATAD 356

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Turner v Commissioner of Police, NSW Police Force (No 2) [2017] NSWCATAD 356 Hearing dates: 14 September, 1 December 2016, 6 April, 13 September 2017 Date of orders: 30 November 2017 Decision date: 30 November 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: L Pearson, Principal Member Decision: The respondent's decision of 8 August 2017 is affirmed. Catchwords: ADMINISTRATIVE REVIEW – Government Information – Reasonableness of searches Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 Robinson v Commissioner of Police [2014] NSWCATAP 73 Turner v Commissioner of Police, NSW Police [2016] NSWCATAD 303 Turner v Commissioner of Police, NSW Police [2017] NSWCATAD 177 Turner v Commissioner of Police, NSW Police [2017] NSWCATAD 183 Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 Category: Principal judgment Parties: Donovan Turner (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: D Turner (Applicant in person) Sparke Helmore Lawyers (Respondent) File Number(s): 2016/00377836

REASONS FOR DECISION 1. On 14 November 2015 Mr Donovan Turner sought access under the Government Information (Public Access) Act 2009 (the GIPA Act) to information held by NSW Police (the respondent). 2. In his access application Mr Turner stated that the information sought relates to an incident which occurred on 29 May 2008 at Dameeli Lodge Kirrawee, where he and the alleged victim, Troy Clough, were then living. The incident was investigated by NSW Police, and he was subsequently charged and convicted, and imprisoned. In his application Mr Turner stated that the disclosure of the information is requested for the purposes of an appeal, for current matters before the Tribunal, and for investigative purposes. The access request covered 23 specific requests, and included 56 supporting annexures. 3. By letter dated 2 December 2015 the respondent informed the applicant that his access request had been given the number 133631, and that if that application was not decided by 4 January 2016 it is taken to be refused. On 7 January 2016 the applicant applied pursuant to s 100 of the GIPA Act to the Tribunal for administrative review in relation to the deemed refusal. On 9 November 2016 the respondent issued a notice of decision in relation to the access request (the delayed decision), and the administrative review proceedings in the Tribunal proceeded pursuant to s 108(3) of the GIPA Act as an application for review of the delayed decision of 9 November 2016. 4. On 13 June 2017 in Turner v Commissioner of Police, NSW Police [2017] NSWCATAD 183 I made orders affirming the determination of the respondent other than in relation to the determination for items 1-9 and 11. I set aside those parts of the 9 November 2016 determination relating to items 1-9 and 11 of the access request, which were in the following terms: REQUEST A: Disclosure of Forensic Evidence – records held by your agency, whether owned by your agency, or otherwise in the possession of your agency then specify, being of the period 2008-2009 REQUEST B: Disclosure of Forensic Evidence – analysis results in your agency's possession, or at any time held by your agency, whether owned by your agency, or otherwise in the possession of your agency then specify, being of the period 2008-2009 NOTE: Annexures 1 to 55, and associated information, is provided for the assistance of searches to be conducted in concern to disclosure of analysis results, documents, and any other relevant information requested by the applicant to items 1 to 18. The requests include subsections "(i)" "(ii)" etc. SCHEDULE OF ANAYLSIS RESULTS & RECORDS SOUGHT BY APPLICANT TO BE DISCLOSED RELATE TO: 1.Troy Clough Clothing (i)Bloodstained white rag (ii)Bloodstained white Adidas t-shirt 2.Donovan Turner Clothing (i)Light Blue t-shirt (bloodstained, carpet fibres, glass) (ii)Singlet (iii)Beige shorts 3.Hallway (Floor) swab 4.Unit 6 carpet swab 5.Unit 5 door frame swab 6.Hallway wall swab 7.Unit 6 Door frame swab 8.Physical evidence (i)Glass pieces – hallway (ii)Glass pieces – unit 6 (iii)Glass pieces – vacuum (iv)Glass pieces – brushpan/bin (v)Section of carpet removed – Unit 6 (bloodstained) 9.Section of carpet removed … 11.Annexure 56 – ODPP Document Receipt 96096 x2 copies briefs Receipt 97723 additional brief items (i)The applicant requests disclosure of the content to Receipt 96096, and copy of the original full document as opposed to a single document for both receipts to 96096 and 97723 (ii)The applicant requests disclosure of the content to Receipt 97723, and copy of the original full document as opposed to a single document for both receipts to 96096 and 97723 (iii)The applicant requests disclosure of information related to a "sexual component" which may relate to Receipt 96096, and Receipt 97723 1. I made directions for the respondent to reconsider the determination in relation to those items, for reasons given at paragraphs [38]-[40] for items 1-9, and paragraph [46] in relation to item 11. 2. On 8 August 2017 the respondent provided notice of determination of the remitted matters (the remittal decision). The respondent also provided a statement dated 11 August 2017 by Jennifer Evans A/g Information Senior Advisory Officer with the NSW Police External Information Access Unit (EIAU), and written submissions dated 16 August 2017. Mr Turner provided written submissions in response, dated 3 September 2017 and 9 September 2017.