Svanda v Commissioner of Police, NSW Police Force [2019] NSWCATAD 219

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Svanda v Commissioner of Police, NSW Police Force [2019] NSWCATAD 219 Hearing dates: On the papers Date of orders: 25 October 2019 Decision date: 25 October 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: The decision under review is affirmed. Catchwords: FREEDOM OF INFORMATION – sufficiency of searches – whether information exists and is held by respondent – whether applicant has already been provided with access to the information Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Criminal Procedure Act 1986 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186 Category: Principal judgment Parties: Pavel Svanda (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: S Janda (Agent) (Applicant) Office of the General Counsel (Respondent) File Number(s): 2019/00105256 Publication restriction: Nil

REASONS FOR DECISION

Background 1. The applicant seeks review of the decision of the respondent under the Government Information (Public Access) Act 2009 ("GIPA Act") in which he sought the following information: "1. Please provide a copy of the police document showing the date when I was charged with the offence of "contravention /prohibition in AVO" for which I was sentenced on 3 December 2015 and the name of person who informed me about the charge. 2. Please provide a copy of the police document showing the date when I was informed about the charge mentioned in 1. Above in the Czech language that I understand and the name of the person performing the interpreting duties when I was so informed. 3. Please provide a copy of the police ballistics certificate concerning a prohibited weapon (Taser), mentioned by prosecutor Crespo to judge Huggett during the court hearing on 11 September 2015. I attached relevant page 9 of the court transcript (lines 35 and 36) mentioning this certificate. 4. Please provide a copy of the police document showing which two backup offences and one related offence prosecutor Crespo asked judge Huggett to dismiss the court hearing on 18 September 2015. I attached relevant page one of the court transcript (lines 25 to 38) showing that judge Huggett dismissed three offences in that hearing." 1. On 6 March 2019, the respondent issued a decision which released to the applicant a Court Attendance Notice, a New South Wales police facts sheet, a COPS report and charge papers from the St George Police Area command and an expert certificate from the forensic ballistics investigation section. All documents were released in full. The respondent determined that it did not possess any other documents relating to the application. 2. The application to this Tribunal, filed on 4 April 2019, stated that the respondent did not fully respond to his application and did not respond to his application for internal review. 3. On 16 May 2019, the Tribunal remitted the matter to the respondent by consent for a further four weeks in order for the respondent to finalise enquiries in relation to items 3 and 4. 4. On 30 July 2019, the proceedings were listed for directions on 3 September following the service of submissions by each party. On 3 September, the Tribunal made an order pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with a hearing. 5. According to submissions provided by the applicant, in relation to paragraphs 1 and 2 of the request, he seeks access to documents which show the date when he was charged with the offence of "contravention/prohibition in AVO" for which he was sentenced on 3 December 2015, as well as the name of the person who informed him about the charge in the Czech language and the date on which this occurred. 6. The respondent has served evidence indicating that the police never charged the applicant with that offence but rather the charge was served on his Legal Aid lawyers when the applicant was in jail. The applicant submits that the process of charging an accused person with committing a criminal offence requires the accused person to be informed personally by police of the charge. 7. The applicant also submits in relation to paragraph 4 of his request that the searches by the respondent were insufficient. 8. For these reasons the applicant submits that the Tribunal should not affirm the decision under review made by the respondent. 9. At this stage no documents have been issued by the respondent in relation to paragraph 4 of the application. Paragraph 3 is no longer in issue.