Bonatti v Commissioner of Police, New South Wales Police Service [GD]

[2003] NSWADTAP 21

Appeal Panel - Internal

CITATION:	Bonatti v Commissioner of Police, New South Wales Police Service [GD] [2003] NSWADTAP 21
PARTIES:	APPELLANT Daniel Bruno Bonatti RESPONDENT Commissioner of Police, New South Wales
FILE NUMBER:	029041
HEARING DATES:	10/06/2003
SUBMISSIONS CLOSED:	06/10/2003
DATE OF DECISION:	06/20/2003
DECISION UNDER APPEAL:	Bonatti v Commissioner of Police, New South Wales Police Service [2002] NSWADT 147
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Member
CATCHWORDS:	no question of law identified
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	013276
DATE OF DECISION UNDER APPEAL:	08/20/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Criminal Records Act 1991 Criminal Records Regulation 1999 Freedom of Information Act 1989
CASES CITED:
REPRESENTATION:	APPELLANT W Hadley, barrister RESPONDENT D Paterson, solicitor
ORDERS:	Appeal dismissed.

1 The Police Service has in its record system a short criminal history record relating to the applicant, Mr Bonatti. The record refers essentially to two events. The first event relates to charges that were laid against Mr Bonatti on 28 October 1992 (‘first event’). The second event relates to charges that were laid against Mr Bonatti on 7 September 1994 (‘second event’). Each event resulted in the making of Court orders.

2 Mr Bonatti has sought amendment of his criminal history record under s 39 of the Freedom of Information Act 1989 (FOIA) to remove all references to both events, including the charges that had been laid and their outcome. Section 39 provides:

‘ 39. Right to apply for amendment of agencies' records

A person to whom access to an agency's document has been given may apply for the amendment of the agency's records:

(a) if the document contains information concerning the person's personal affairs, and

(b) if the information is available for use by the agency in connection with its administrative functions, and

(c) if the information is, in the person's opinion, incomplete, incorrect, out of date or misleading.’

3 The respondent, the Commissioner of Police, through his authorised delegate, refused the application. Mr Bonatti applied for review of the determination by the Tribunal. The Tribunal affirmed the Commissioner’s decision. Mr Bonatti now appeals.

4 Mr William Hadley, of counsel, appeared on behalf of Mr Bonatti and acknowledged the difficulty that the appeal faced. It was noted that the notice of appeal, as drafted by Mr Bonatti, does not identify with clarity any alleged error of law. The decision under appeal appears, on its face, not to involve any possible error of law. In the decision the Tribunal went to some pains to identify and explain some misunderstandings that Mr Bonatti had in respect of the orders made by the court in respect of each event and the way the police criminal history record system works. The Tribunal noted that the system drew a distinction as between what was recorded in respect of acquittals and what was recorded in respect of cases where there was a finding that the charge had been proven.

5 On 23 July 1993, the Local Court dealt with the charges that had been laid against Mr Bonatti in respect of the first event. The Local Court found Mr Bonatti guilty of each of the four charges that had been laid against him, however, the Court did not enter into a conviction pursuant to s 566A of the Crimes Act 1900.

6 In respect of two charges (assaulting police) the Local Court also placed Mr Bonatti on a good behaviour bond for two years.

7 In respect of the remaining charges (resisting arrest and using offensive language) the Local Court ordered Mr Bonatti to attend an intervention program, the Community Aid Panel. At the appeal hearing counsel for Mr Bonatti handed up his discharge report from the Community Aid Panel. It records that in June and July 1993 he had worked approximately 30 hours as a voluntary general kitchen hand. The report noted that he had been very reliable and had worked well in all the tasks allocated to him. The report also noted that he was very sorry for the actions that had given rise to the charges. There is no dispute in regard to this report and to the fact that these charges (resisting arrest and using offensive language) were dealt with to finality on Mr Bonatti completing his attendance at the Community Aid Panel.

8 On 4 April 1995, the Local Court dealt with the charges arising from the second event. The charges were of assaulting Person A, assaulting Person B, resist arrest (two charges) and malicious damage. On this occasion the Local Court found Mr Bonatti guilty and convicted him of the charge of assaulting Person A, assaulting Person B and resist arrest (two charges). In respect of the malicious damage charge, the Local Court found that it had not been proven and dismissed it.

9 The findings made by the Local Court on 4 April 1995 in respect of the second event necessarily gave rise to a breach of the recognisances to be of good behaviour entered into on 23 July 1993 in respect of the first event (i.e. the finding of guilt in respect of the two assault police charges). This point was clearly explained in the decision under appeal, in reply to Mr Bonatti’s contention that the two year period (to be of good behaviour) commenced from the date of the offence charged (namely 28 October 1992) rather than from the date he had been found guilty (namely 23 July 1993).

10 Accordingly, on 4 April 1995, pursuant to s 556B of the Crimes Act 1900, the Local Court having convicted Mr Bonatti of the three charges arising from the second event proceeded to enter convictions in respect of the two assault police charges arising from the first event. He was also sentenced on these convictions. These convictions are recorded in his criminal history as breaches of his good behaviour bond (i.e. breach of recognisance) that he entered following the Local Court’s finding that he was guilty of the two assault police charges on 23 July 1993.

11 Mr Bonatti appealed against the convictions arising from the second event to the District Court. This appeal was heard on 11 April 1996 and Mr Bonatti was partly successful in his appeal. It is his belief that his appeal was entirely successful. However, the Court record shows that he was only successful in relation to three of the four convictions. The conviction of assault in relation to Person B remained.

12 Had Mr Bonatti been fully successful in his appeal, it would have been open to the District Court to set aside the finding that he had breached his good behaviour bond and therefore his convictions and sentence for the two assault police charges arising from the first event. However, as he remained convicted of one of the charges arising from the second event, the finding and entry of the two convictions and sentence for the assault police charges arising from the first event remained in force.

13 Mr Bonatti also contended before the Tribunal that there had been a misinterpretation of what the District Court decided on 11 April 1996. He stated that he had also appealed the breaches of his good behaviour bond. The Police position is simply that the criminal history reflects the orders entered in the Court’s records on that occasion. The criminal history record states that in respect of the assault charge arising from the second event - ‘conv conf’: conviction confirmed. The Tribunal, we note however, was of the view that his breach of his good behaviour bond or conviction for the two assault police charges arising from the first event may not have been the subject of appeal at all, as it is not referred to in the notice of appeal to the District Court. Whatever the situation there is nothing to indicate that the findings of the Local Court for breach of the good behaviour bond or convictions had been disturbed.

14 Mr Bonatti contends that the transcript of the proceedings before the District Court indicates that the judge upheld all appeals and set aside the two convictions arising from the first event.

15 The Tribunal closely examined the transcript, and explained at length in its decision, one, that the orders were the appropriate record for the Police to be guided by, and that there was nothing in the transcript to support the conclusion that the orders as recorded by the Police were an inaccurate reflection of the proceedings. It is noted that Mr Bonatti’s criminal history record dated 23 August 2001, which is the most recent criminal record before the Tribunal, makes no reference to the two charges that had been dismissed by the Local Court on 23 July 1993 and 4 April 1995. Nor does it contain any reference to the three charges for which Mr Bonatti was convicted on 4 April 1995 and which he successfully appealed before the District Court on 11 April 1996.

16 An appellant is entitled to challenge a Tribunal decision on the basis of error of law: Administrative Decisions Tribunal Act 1997, s 113.

17 In this instance no error of law is revealed.

18 The matter before the Tribunal was an application to amend a criminal history record on the basis that it was incorrect. No relevant inaccuracy was shown. The Tribunal reached the only conclusion open to it - that there was no basis for amending the Police criminal history record as it now stands (see printout dated 21 August 2001 annexed to the affidavit of A/Det Supt I A Waterson, Commander, Criminal Records Branch sworn 31 May 2002 in evidence before the Tribunal).

19 Mr Hadley said that he could not cavil with the Tribunal’s decision, and had explained this to his client. He said that his client would like to see the entire record expunged; or, in the alternative, that so much of the record of 28 October 1992 as refers to the resist arrest and offensive language charges should be expunged.

20 There is no legislative provision giving a person a right to have his/her criminal record expunged. The Criminal Records Act 1991 makes provision for ‘convictions’, which is broadly defined to include findings of guilt, for certain offences to be spent after a specified period of time (ss 5, 7, 8 and 9). In the case of convictions for an offence of assault the period is ten years after the conviction was entered so long as no other offences were committed within that period (s 9). If there has been a finding of guilt and the offender is discharged by the Court on, entering into a good behaviour bond for a specified period or, participating in an intervention program ‘the conviction’ is spent on the satisfactory completion of the period of the bond or the satisfactory completion of the intervention program (s 8(4)).

21 In this case, Mr Bonatti’s convictions in respect of the two assaulting police charges arising from the first event have not been spent. However, the findings of guilt in respect of the resisting arrest and using offensive language charges, also arising from the first event, have been spent as he satisfactorily completed the Community Aid Panel program he was required to attend. The Criminal Records Act 1991 expressly provides that the provisions in the Act do not authorise the destruction of a record relating to a spent conviction (s 23). Accordingly, the Commissioner is unable to remove Mr Bonatti’s spent convictions from the police record system. However, the Act does prohibit the disclosure of these spent convictions without lawful authority (s 13(1)). The Act also provides that a question concerning a persons criminal history is taken to refer only to any convictions of a person that are not spent (s 12(c)). This provision is subject to some exceptions or exclusions as provided in Division 2 Part 3 of the Act and in the Criminal Records Regulation 1999. These exclusions relate to applications for specified employment and proceedings before a court, which is defined to include a tribunal (s 4).

22 For the reasons stated above, the appeal is dismissed.