Bradshaw v SA Police; SA Police v Bradshaw
[2012] SADC 184
•20 December 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
BRADSHAW v SA POLICE; SA POLICE v BRADSHAW
[2012] SADC 184
Judgment of His Honour Judge Muscat
20 December 2012
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Appeal and cross-appeal under the Freedom of Information Act 1991 from a determination by the Police Complaints Authority upon an external review from South Australia Police refusing access to documents.
Consideration of clauses 6 and 13 of Schedule 1 of the Freedom of Information Act 1991.
Held: Appeal and cross-appeal allowed in part.
Freedom of Information Act 1991 s 3, s 3A, s 4, s 26, s 40, s 48; Schedule 1 clauses 6(1) & (2), 4(2)(a)(iii), 5, 9, 10, 13(1)(a) & (b); District Court Act 1991 s 42E, s 42F, referred to.
Konieczka v South Australian Police [2006] SADC 134; Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606; Treglown v SA Police [2011] SADC 139; Sellars v SA Police [2012] SADC 9; Argent v SA Police Unreported District Court Judgment No. D2671 delivered 19 October 1992; Page v Metropolitan Transit Authority (1988) 2 VAR 243; News Corp Ltd v NCSC (1984) 5 FCR 88; Re Chandra & Department for Immigration and Ethnic Affairs (1984) 6 ALN N257; Re Lapidos and Office of Corrections (No. 3) (1990) 4 VAR 150; Victoria Police v Marke (2008) 23 VR 223; Re Lawless et al (1995) 1 VAR 42; Re Maher and A-G's Department (1985) 7 ALD 731; Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 1221; Secretary, Department of Foreign Affairs and Trade v Whittaker (2005) 214 ALR 696; Corrs Pavey v Collector of Customs (1987) 74 ALR 428, considered.
BRADSHAW v SA POLICE; SA POLICE v BRADSHAW
[2012] SADC 184Introduction
This is an appeal and cross-appeal pursuant to s 40(2) of the Freedom of Information Act 1991 (SA) (“the FOI Act”) against a determination by the Police Complaints Authority (“the Authority”) upon an external review by the appellant (“Mr Bradshaw”) for the release of documents withheld by South Australia Police (“SAPOL”) relating to an investigation into the murder of Anthea Bradshaw-Hall (“the deceased”).
Mr Bradshaw is the brother of the deceased and is representing the Bradshaw family. He is appealing against the Authority’s determination refusing him access to documents said to be exempt under the provisions of the FOI Act. The Authority’s primary reasons for refusing him access were that the documents contained the “personal affairs” of another or contained “allegations or suggestions of criminal or other improper conduct” on the part of a third party, the release of which would be “unreasonable”.
SAPOL have cross-appealed against the Authority’s decision to release certain documents relating to DNA testing undertaken by the Connecticut Forensic Science Laboratory (USA) in 1996 and 2007, on the basis that the documents were released to SAPOL on a confidential basis and so exempt from release under the FOI Act.
After the appeal was instituted SAPOL located a number of other documents that were, through oversight, not produced at the time either SAPOL or the Authority came to consider Mr Bradshaw’s application for release/review of the material sought by him. SAPOL have now produced those documents to the Court under cover of a closed affidavit. The parties have agreed, for the purposes of finality, that I make the determination whether or not to release those documents having regard to the objects and principles contained in the FOI Act.
Background
The deceased was murdered in Brunei on 21 July 1994.
At the time of her murder she was visiting her husband, who had only recently moved to Brunei for work.
The deceased was found dead in her apartment by her husband when he returned home from work. She had been killed by way of manual strangulation but there were multiple stab wounds inflicted to her chest and abdomen after her death.
The deceased was due to return to Australia the following day, after spending two weeks in Brunei. It was her intention to find employment in Brunei as a teacher and then return to be with her husband. Indeed, on the morning of her death she had been interviewed by one of the local schools for a teaching position.
The Royal Brunei Police investigated the murder. Numerous witnesses were spoken to and evidential samples forensically examined.
No person has ever been charged with murdering the deceased as the Brunei Attorney-General (who is also the Public Prosecutor) formed the view that upon the available evidence there was no reasonable prospect of securing a conviction against any person. The murder therefore remains unsolved after more than 18 years.
In 1998 an inquest into the death of the deceased was conducted in Brunei by the Coroner. An open verdict was returned by the Coroner. The Coroner’s findings were provided to the Australian High Commission and to the deceased’s family.[1]
[1] Document 41. See also Exhibit CB-1 to the affidavit of Craig Bradshaw sworn 30 July 2012.
Sometime before 2001 the Bradshaw family approached SAPOL seeking its assistance in relation to the investigation of the murder of the deceased.
SAPOL conducted an extensive review of the file provided to it by the Royal Brunei Police and sent a detective to Brunei to meet with them. SAPOL also arranged further forensic testing of evidential samples provided to it by the Royal Brunei Police. As a result, forensic reports were produced in 2006 and 2007 and forwarded to the Royal Brunei Police.
SAPOL has been in communication with the Brunei authorities regarding the investigation. However, the Brunei Attorney-General has consistently maintained his view that there is no reasonable prospect of securing a conviction against any person.[2]
[2] Document 9.
Therefore, for all practical purposes, investigations into the murder of the deceased have now concluded and no prosecution of any person by the Brunei authorities is likely.
Understandably the Bradshaw family have a strong interest in knowing the circumstances surrounding the murder of the deceased and the nature of the investigation conducted in Brunei and by SAPOL.
The Documents
As a result of SAPOL’s review of the investigation it has come to hold a large number of documents which fall broadly into three categories:-
1.Documents provided to SAPOL by the Royal Brunei Police and other law enforcement agencies in respect of the investigation. These are largely witness statements and forensic reports.
2.Documents generated by SAPOL in relation to further examinations undertaken by it and internal correspondence concerning the matter.
3.Correspondence between SAPOL and other agencies in respect of the matter.
The Application for Access
On 21 October 2010 Mr Bradshaw made an application under the FOI Act for the release of the following material held by SAPOL:-
·All information in regards to the SAPOL investigation of the murder of the deceased;
·All forensic evidence from each forensic investigation;
·All information gained from overseas police; and
·All information from the Brenton Rowney visit to Brunei.[3]
[3] Application for Access to SAPOL Records by Mr Bradshaw Exhibit TMG-C to the affidavit of Tracy McLeod Gentgall sworn 9 May 2012.
SAPOL determined not to release any of the material, as at that time it was considered a Coronial inquest into the death of the deceased may be carried out in this State.[4]
[4] Exhibit CB-2 to the affidavit of Craig Bradshaw sworn 30 July 2012.
An external review against SAPOL’s determination was sought by Mr Bradshaw and conducted by the Authority. On 28 September 2011 the Coroner informed Mr Bradshaw’s solicitors of his decision not to hold an inquest into the death of the deceased.
Following the external review the Authority varied SAPOL’s determination and released a vast number of documents within the possession of SAPOL to Mr Bradshaw, either in whole or in part.[5]
[5] Police Complaints Authority determination dated 8 February 2012.
Mr Bradshaw is appealing against the failure to release all documents sought by him. The primary basis for the Authority’s determination that the documents not be released to Mr Bradshaw was that they contained information concerning the “personal affairs” of another or “allegations or suggestions of criminal or other improper conduct”, the disclosure of which would be “unreasonable”.[6]
[6] Applying clause 6 of the FOI Act.
Conduct of the Appeal and Cross-appeal
The appeals are to the Administrative and Disciplinary Division of this Court.
The approach to the disposition of the appeals is governed by s 42E of the District Court Act 1991 (SA), which states:-
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal -
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
It is not necessary for Mr Bradshaw to demonstrate any error of approach employed by the Authority in order to succeed on his appeal. Rather, it is for SAPOL to satisfy the Court that the determination of the Authority not to release the documents, or part of them, was correct.[7]
[7] s 48 FOI Act; Konieczka v South Australian Police [2006] SADC 134.
In relation to the cross-appeal SAPOL must first be granted permission to appeal by the Court on a question of law.[8] SAPOL has formulated the questions of law involved in its appeal against the Authority’s decision to release certain documents to Mr Bradshaw said to have been provided to SAPOL by other agencies in confidence.
[8] s 40(1) FOI Act.
On the hearing of the appeal Mr Bradshaw did not oppose the granting of permission to appeal to SAPOL. The questions of law involve an interpretation of clause 13 of Schedule 1 of the FOI Act as it relates to the provision of documents to SAPOL in confidence and an interpretation of clause 6(1) insofar as the documents contained material concerning DNA profiling of individuals and hence was a personal affair of an individual given its use as a unique identifier of that individual. I was satisfied that these raised questions of law and accordingly granted SAPOL permission to appeal.[9]
[9] Further, I extended to SAPOL time in which to appeal in light of the explanation for the delay set out in the affidavit of Judith Jefferson sworn 2 May 2012. Mr Bradshaw did not oppose the granting of an extension of time and indeed conceded that the Authority erred in relation to the documents released on the basis now complained of by SAPOL.
This Court may affirm the decision appealed against, rescind the decision and substitute a decision it considers appropriate, or remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendation of the Court.[10]
[10] s 42F District Court Act 1991.
Exempt Documents
The FOI Act confers a legal right to access documents held by government, subject only to such restrictions as are consistent with the public interest and the preservation of personal privacy. In administering the Act, Parliament has intended that it should be interpreted and applied in such a way so as to further the objects of the Act. Any exercise of administrative discretion should, as far as possible, favour disclosure of information without infringing an individual’s right to privacy.[11]
[11] ss 3 and 3A FOI Act.
The starting point therefore is that an applicant is entitled to access documents unless a document is adjudged to be exempt under the FOI Act.
Schedule 1 of the Act provides the class and basis upon which certain documents are exempt from being accessed.
This appeal and cross-appeal is principally concerned with clause 6(1) and (2) and clause 13(1)(a) and (b) of Schedule 1 of the FOI Act.
Clause 6
Clause 6 relates to documents affecting personal affairs. It relevantly states:-
(1)A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
(2)A document is an exempt document if it contains allegations or suggestions of criminal or other improper conduct on the part of a person (living or dead) the truth of which has not been established by judicial process and the disclosure of which would be unreasonable.
...
Clause 6 essentially protects third party interests in documents in the possession of agencies.[12]
[12] See s 4 FOI Act for the definition of an agency.
Both sub-clauses require two criteria to be established before a document is exempt from release.
The “unreasonableness” of disclosure is common to both sub-clauses. It is an important consideration in this appeal, given the special interest of Mr Bradshaw into the circumstances surrounding the death of the deceased, the lengthy period which has now elapsed since her murder and the unlikelihood of there being any prosecution. I will come back to the limb relating to the unreasonableness of disclosure of documents later in these reasons.
The object of clause 6(1) is to protect the private information of third parties who may be referred to in agency documents but who may be unaware that their private affairs stand subject to exposure by a claim for access under the FOI Act.[13]
[13] Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 at 620 per Kirby P.
The term “personal affairs” in clause 6(1) is defined inclusively in s 4(1) of the FOI Act. It includes a person’s “financial affairs, criminal record, marital or other personal relationships, employment records and personal qualities or attributes”.
Mr Bradshaw has made it clear that he is not seeking personal information, such as addresses, dates of birth, telephone numbers or banking and financial affairs of any person who provided the Royal Brunei Police with a witness statement which form part of the documents in the possession of SAPOL. I observe that most of the deletions made by the Authority on the basis of this sub-clause relate to such matters, although I am not fully convinced that such matters alone would necessarily involve the release of a person’s “personal affairs”.[14]
[14] See Commissioner of Police v District Court of NSW ibid at 624-625; Treglown v SA Police [2011] SADC 139; Sellars v SA Police [2012] SADC 9 at [16]-[17], citing Argent v SA Police Unreported District Court Judgment No. D2671 delivered 19 October 1992.
Documents which contain “allegations or suggestions of criminal or other improper conduct” on the part of a third party are also exempt from release under clause 6(2). Parliament has recognised that the release of such information, which has not been tested through the judicial process, can be particularly damaging to an individual.
An “allegation” is simply an assertion. A “suggestion” involves a lower threshold and includes to inform or insinuate. A suggestion, in this context, simply requires that a document, by its content, be capable of conveying an idea of information to the reader.
Mr Bradshaw accepts that any direct allegations or suggestions of criminal or other improper conduct contained within the documents would be protected from disclosure under clause 6(2). The reasons for protecting information of the class described in clause 6(2) are apparent. An individual’s personal views of another’s involvement in criminal or other improper conduct does not warrant public ventilation and may be very damaging to that person’s reputation.
Mr Bradshaw contended that such information contained within a document is to be distinguished from a document which simply records a person’s direct observations of matters of fact, such as found in most witness statements. Here it is argued that as there is no direct expression of opinion as to a person’s involvement in criminal or other improper conduct the document falls outside the scope of clause 6(2).
It was submitted that direct observations are nothing more than a recitation of sensory perceptions or the articulation of the occurrence of observed facts. Whilst there is a justification for withholding expressions of opinion by others as to a person’s involvement in criminal or other improper conduct, it was submitted it does not apply to this genus.
I do not accept Mr Bradshaw’s narrow interpretation of clause 6(2). A simple illustration serves to demonstrate the difficulty with Mr Bradshaw’s contention. A statement by a witness that they observed A strike B plainly conveys an allegation of criminal conduct, namely an assault, one that is untested and may be entirely disputed by A. Whilst the witness might not be expressing an opinion by recounting their observations it is, nonetheless, an allegation, or at the very least, a suggestion of criminal conduct. Obviously a variety of observations can amount to an allegation or suggestion, depending on what is observed, and this only highlights why such a narrow construction cannot prevail.
Whether or not a document falls within clause 6(2) is a question of fact and degree to be determined upon a consideration of the document and any other document(s) the release of which is sought. Allegations or suggestions may be made directly or indirectly.
Whether or not an allegation or suggestion is contained within a document may also depend on the context to be drawn from the document itself, or when read in combination with another document, or from information which is otherwise known to the applicant.
At times, whether something amounts to an allegation or a suggestion is only apparent when documents are read together.
To approach the interpretation of clause 6(2) in any other way would have the effect of frustrating the protection afforded to a person, which is the very reason for the clause.
As Herriman DCJ stated in Treglown v SA Police:-[15]
· the fact that whilst material contained in a particular document might, on its face, not fall within a particular exemption, its disclosure, when accompanied by other disclosures of a like nature and the appellant’s asserted knowledge of particular matters, might in a cumulative way give rise to an exemption issue.
[15] [2011] SADC 139 at [102]. See also News Corp Ltd. v NCSC (1984) 5 FCR 88.
One must also bear in mind that the deceased’s husband was the last person to see her alive and the first person to find her deceased. It is only natural that he would be a person of interest who the police would be obliged to investigate. This does not mean that any evidence exists to implicate him but the police would be remiss in their duties if they failed to properly investigate him as a possible suspect, given his close relationship to the deceased.
This brings me to a consideration of the second limb of each sub-clause, that being whether disclosure of the documents would be “unreasonable”.
The word “unreasonable” used in connection with the disclosure of documents in clauses 6(1) and 6(2) clearly contemplates that there will be a balancing exercise undertaken by the relevant decision-maker. A decision-maker is required to weigh a person’s legal right to access information in documents against the right of a third party to the protection of their privacy which the FOI Act seeks properly to guard against.
In Page v Metropolitan Transit Authority,[16] in considering the Victorian equivalent of clause 6(1) Judge Jones stated:-[17]
I first turn to the exemption claimed ... A person’s name and address relate to his personal affairs. What therefore has to be decided is whether disclosure of this information would be unreasonable. This requires a balancing of interests: the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed by granting access to the information and the object of the Act to extend as far as possible the right of the community to have access to information in the possession of the Government or Agencies. More particularly, this balancing exercise requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. It is apparent that the purpose of s 33(1) of the Act is to prevent the unreasonable invasion of the privacy of third parties. (Citations omitted)
[16] (1988) 2 VAR 243.
[17] Ibid at 246.
This “balancing exercise” and the broad range of relevant factors to be considered when weighing the competing interests have consistently been followed by decision-makers in determining whether disclosure of a document would be unreasonable.[18]
[18] Re Chandra & Department for Immigration and Ethnic Affairs (1984) 6 ALN N257 cited in Page vMetropolitan Transit Authority; Re Lapidosand Office of Corrections (No. 3) (1990) 4 VAR 150; Victoria Police v Marke (2008) 23 VR 223 per Weinberg JA and Pagone AJA; cf Maxwell P who rejected such an approach.
In determining whether disclosure would be unreasonable a decision-maker may take into account any matter considered “relevant, logical and probative” to the question.[19] As Pagone AJA observed in Victoria Police v Marke:-[20]
The facts which may be relevant to the balancing process may be as diverse as the facts which arise for consideration.
[19] Victoria Police v Marke ibid per Pagone AJA at [104].
[20] Ibid at [104].
From the statements of principle mentioned above a number of general observations can be made in respect to exemptions which arise under clause 6(1) and (2) when considering whether disclosure would be unreasonable.
It is accepted that an applicant seeking access to documents held by an agency is not required to demonstrate any particular interest in the document nor disclose what might be done with the document if access is granted. In this way the FOI Act deliberately does not discriminate against one applicant over another. However, there are a number of authorities which have held that in an appropriate case, a decision-maker is permitted to have regard to the special interest of an applicant in seeking access to documents when considering this aspect of the exemption.[21]
[21] Victoria Police v Marke ibid; Re Lawlesset al (1995) 1 VAR 42; Re Lapidos and Office of Corrections (No. 3) (1990) 4 VAR 150.
In this appeal the Bradshaw family have a strong interest in the release of the documents. For obvious reasons they are seeking access to as much information as they can relating to the investigation of the murder of their daughter and sister, conducted by both overseas and local police authorities.
Access to documents under the FOI Act is given unconditionally. There is no provision under the Act to grant access on condition, for example that there be no publication of its contents. In this respect it can be accepted that once a document is made available to an applicant it has the potential to be disseminated widely.[22] That is, its release is potentially to “the world at large”.
[22] Victoria Police v Marke (2008) 23 VR 223 per Weinberg JA at [67]-[68] and per Pagone AJA at [103]; cf Maxwell P at [24]-[28].
Consideration must be given to whether disclosure of a document, when considered in the light of other information or documents of which access is sought, reveals that disclosure would be unreasonable.[23]
[23] The so called “mosaic effect”.
A decision-maker must have regard, where relevant, to the views of the person whose personal affairs are concerned. Before an agency can grant access to a document which contains information concerning personal affairs it must take such steps, as are reasonably practicable, to obtain the views of the person concerned when determining whether or not a document is exempt from disclosure.[24]
[24] s 26(2) FOI Act.
In Victoria Police v Marke [25] Maxwell P conveniently summarised what, in the ordinary case, a decision-maker would take into account when considering whether the disclosure of a document containing personal information would be unreasonable:-
[25] (2008) 23 VR 223 at [19].
·the nature of the personal information;
·the sensitivity (past and present) of the personal information;
·any view about disclosure expressed by any person to whom personal information relates;
·the relationship between the personal information and any other information in the document;
·how the personal information was obtained by the agency (whether voluntarily or involuntarily and whether or not in confidence);
·whether and to what extent the personal information was already known to the applicant;
·the nature of any interest which the applicant can demonstrate in -
(i) the information in the document other than the personal information; or
(ii) the personal information.
I would add to this list that once a document is disclosed it has the potential to be disseminated widely and that may in fact happen.[26]
[26] A consideration favoured by Weinberg AJ and Pagone AJA in Victoria Police v Marke; cf Maxwell P who rejected such a consideration as a relevant factor.
In the appeal before me one can also add to the mix that the murder of the deceased occurred over 18 years ago. Many of the persons who provided witness statements to the Royal Brunei Police at the time were working temporarily in Brunei and are no longer living there. It is reasonable to assume that it would now be very difficult locating many of those witnesses.
When witnesses provide statements to the police they are usually under no compulsion to do so. Witnesses are routinely informed by the police that they may have to give evidence in court at a later time of the contents of their statements. Such is the way of criminal investigation. Indeed, it would be rare for a witness to provide a statement to the police on a confidential basis only, and if so, one would expect this to be made clear in any statement provided by the witness. Even then, in terms of disclosure, once a prosecution is commenced there exists a duty upon the prosecution to provide an accused person with all relevant material and statements, unless a claim for public interest immunity is made in relation to them. These are all relevant matters to consider in terms of disclosure under clause 6.
In this case the investigation has, for all practical purposes, come to an end and there is little prospect of a prosecution being commenced in Brunei against any person for the murder of the deceased. Thus any allegations or suggestions contained within the documents have been untested by a court and are likely to remain unproven.
One must obviously have regard to the seriousness of the allegations or suggestions of criminal or other improper conduct made on the part of a person as a relevant consideration. In this case there can be no more serious allegation or suggestion that can be made against a person.
Other factors can include whether the information is already known to the applicant and whether the material is notorious. As already noted, Mr Bradshaw has had released to him the findings of the Brunei Coroner which contain certain information relevant to the death of the deceased.
Once all the relevant factors are determined a decision-maker is required to form a judgment, based upon a synthesis of those factors, in determining whether disclosure of a particular document or documents to an applicant would be unreasonable.
Before a decision is reached as to whether the release of a document would be unreasonable a decision-maker should be satisfied to a high degree of confidence about its conclusion.
As Pagone AJA stated in Victoria Police v Marke:-[27]
A decision-maker is required by the section to predict about the disclosure of a document that its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of a person. That requires the decision-maker to identify all of the facts and matters relevant to the question to be determined and make an evaluative judgment based upon them. The use in the section of the word “would” indicates that the decision-maker must have a high degree of confidence about the conclusion: it is not enough for the decision-maker to conclude that disclosure of a document might or could result in the unreasonable disclosure of the personal information in question. The need for that degree of confidence reflects the primary objective of the Act to provide public access “as far as possible”.[28]
[27] Ibid at [97].
[28] cf Herriman DCJ in Treglown v SA Police [2011] SADC 139 at [128] who stated that the relevant onus is no higher than the civil one.
Clause 13
Clause 13 relates to documents containing confidential material. Sub-clause (1) states:-
(1)A document is an exempt document-
(a) if it contains matter the disclosure of which would found an action for breach of confidence; or
(b) if it contains matter obtained in confidence the disclosure of which -
(i)might reasonably be expected to prejudice the future supply of such information to the Government or to an agency; and
(ii) would, on balance, be contrary to the public interest.
The test under clause 13(1)(b) simply requires that the document contains matter that has been “obtained in confidence”. Whether a document has been communicated in confidence is a question of fact. This requires an analysis of the circumstances of the provision of the document at the time it was obtained. It is only necessary to show that the document was communicated and received under an express or inferred understanding that it would be kept confidential.[29]
[29] Re Maher and A-G’s Department (1985) 7 ALD 731 at 737; Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 1221.
In Secretary, Department of Foreign Affairs and Trade v Paul Whittaker [30] the Court observed:-
If the disclosure of a document would divulge any information or matter communicated in confidence ... that is sufficient to attract the relevant exemption. The fact that the information or matter may no longer be confidential is not to the point. The only question is whether the disclosure of the document would divulge information or matter that had been communicated in confidence.
[30] [2005] FCAFC 15 at [25].
Once the issue of confidentiality is decided a decision-maker is next required to consider whether disclosure of such documents meets the criteria set out in both (i) and (ii).
Application of Principles to the Appeal, Cross-appeal and the Additional Documents
With the above principles in mind I turn to the documents the subject of the appeals.
Mr Bradshaw is seeking release of documents 4, 9, 12, 13,14 (save for any information relating to the DNA loci of any individual), 15, 17, 18, 25, 32, 34, 37, 38, 39, 42-73, 76-85, 86(b), 86(c), 86(e), 86(f), 86(g), 86(h), 86(j), 86(q), 86(r), 86(u), 86(v), and 86(x).
SAPOL’s cross-appeal relates to the release to Mr Bradshaw of documents 14 (page 5 only), 20, 21, 22, 23, 24, 29 and 30.
The Appeal
SAPOL has undertaken a consultation of interested third parties. I have been provided with the views of two affected persons as to why disclosure of the documents sought should be exempted as far as their privacy is concerned.[31] I have had regard to their expressed views in considering the appeal and in making my determinations in relation to the documents not previously considered by either SAPOL or the Authority when conducting its review.
[31] The views are contained in the second closed affidavit of Tracy McLeod Gentgall sworn 29 August 2012.
I have read all the documents for which access has been sought by Mr Bradshaw so that I am able to determine whether any exemptions apply in the light of any documents which the Authority has already released to him. As earlier observed, such an approach is necessary in order to properly determine whether it would be unreasonable to disclose a document rather than simply considering the document in isolation.
The documents to which clause 6(1) and (2) are said to apply fall into a number of broad categories:-
(i)Photographs of the deceased taken in situ, at the morgue or at autopsy. Photographs of a person semi-dressed and photographs of items of clothing which may identify a person. Autopsy, post mortem or forensic reports of the deceased and other forensic reports.
(ii)Documents in which there is direct reference to a person being a suspect in relation to criminal allegations.
(iii)Documents which are in the form of witness statements (either alone or in combination with other documents) which are said to contain an allegation or suggestion of criminal or other improper conduct on the part of a person.
(iv)Those witness statements which contain questions from which an inference may be drawn relating to an allegation or suggestion of criminal or other improper conduct on the part of another person.
I have considered the documents the subject of the appeal and have applied the legal principles discussed above. In some instances I consider it sufficient to delete parts of a document so as to permit access, consistent with the objects and principles of administration the FOI Act.
Most obviously the photographs of the deceased taken in situ or at autopsy/post mortem are matters to which clause 6(1) plainly applies. They are of a most graphic nature. I consider that it would be unreasonable to release them, even taking into account the special interest of Mr Bradshaw.
Similarly, with the other photographs mentioned, I consider that both clause 6(1) and (2) apply and that it would be unreasonable to release them.
As for the autopsy/post mortem reports and other forensic reports of the deceased, whilst they are matters which amount to the personal affairs of the deceased, I consider that in light of the passage of time which has now elapsed since her murder and the special interest of Mr Bradshaw in having access to those documents it would not be unreasonable to release them to him.
As for the remaining documents, most relate to the application of clause 6(2) and whether or not it would be unreasonable to release the documents sought. I am mindful of the seriousness of the allegations or suggestions raised in them, singularly or collectively, the truth of which remains untested by judicial process nor are ever likely to be so tested. Insofar as any witness has expressed an opinion of a person, either directly or indirectly, which is unfavourable, I consider disclosure would be unreasonable.
I have carefully undertaken the balancing exercise required by the FOI Act in arriving at my determinations which are attached to this judgment. As will be seen, I have allowed greater access to the documents than the Authority, who I consider has applied too restrictive an approach to clause 6(2) without sufficient regard to the interests of Mr Bradshaw or the significant passage of time that has passed since the murder of the deceased.
Accordingly, I allow the appeal insofar as appears in the attached schedule.
The Cross-Appeal
Turning to the cross-appeal, SAPOL has argued that the Authority erred in its approach to its claim under clauses 13(1) that documents 20-23 were received by it on a confidential basis. Further, SAPOL contended that the Authority erred in its application of clause 6(1) in releasing those same documents and documents 14 (page 5 only), 24, 29 and 30.
The documents (apart from document 14) relate to DNA reports and electopherogram printouts prepared in relation to the investigation by Dr Ladd of the Connecticut Forensic Science Laboratory, dated 7 August 1996 (document 30). Parts of that report have been extracted and copied (documents 26 and 29). A supplementary explanatory report prepared by Dr Ladd dated 8 January 2007 (document 24) was provided to SAPOL at its request. On 9 April 2007, under cover of a letter from Dr Ladd (document 19), SAPOL were provided with the electropherogram results arising from the DNA testing (documents 20-23).
Subsequently, Forensic Science South Australia prepared a report dated 11 December 2011 (document 14) containing the results of forensic analysis of evidential samples obtained by SAPOL from the Royal Brunei Police. Page five of the report contains the “tabulated DNA results of analysis” which SAPOL argues is exempt from disclosure on the basis of clause 6(1).
The DNA results are profiles obtained from various samples taken from the crime scene, including from the fridge door, washing basin, floor and knife blade. A blood sample taken from the shirt of the deceased was assumed to have originated from her and used as a reference sample.
An attempt was made by the Authority to contact Dr Ladd and obtain his views on the claim for confidentiality raised by SAPOL. He did not reply to correspondence sent to him and on this basis the Authority concluded that the documents were not provided on a confidential basis, or if they had been provided at an earlier point in time, there was now no objection raised in relation to their release.
It is plain from e-mail correspondence between Detective Schneemilch of SAPOL and Dr Ladd of the Connecticut Forensic Science Laboratory dated 9 February 2007 that Detective Schneemilch indicated the terms upon which SAPOL was seeking the supply of the electropherograms (documents 20-23):-
I have received an assurance from the head of Forensic Biology of FSSA that the EPG’s will be restricted only to his personal use in relation to this matter and will not be made available for further release nor placed into the case notes. [32]
[32] Document 110 contained within the closed affidavit of Tracy McLeod Gentgall sworn 9 May 2012.
Dr Ladd responded to the e-mail in general terms agreeing to provide the material sought.[33] In my view, the Authority has erred in its determinations in relation to the exemption sought by SAPOL founded on clause 13. It is apparent from its reasons that the Authority applied the wrong test in relation to material provided in confidence.
[33] Ibid.
Clause 13(1)(a) requires an analysis of whether information was received in circumstances that import an obligation of confidence. It applies the test for breach of confidence in either contract or equity.[34] In this case the circumstances reveal that the release of the documents could found a cause of action for breach of confidence.
[34] Corrs Pavey v Collector of Customs (1987) 74 ALR 428 AT 473.
Clause 13(1)(b) simply requires that the document was obtained in confidence. As noted earlier, this requires an analysis of the circumstances of the provision of the documents at the time they were provided.[35]
[35] Secretary, Department of Foreign Affairs and Trade v Whittaker (2005) 214 ALR 696.
The e-mail correspondence seeking the release of the electropherograms bears out the claim made by SAPOL. It is irrelevant to that analysis to consider the current view of the provider.
The Authority wrote to Dr Ladd but did not receive a reply and so assumed that he was not concerned with any claim for confidentiality. Silence on the part of Dr Ladd cannot, of itself, be construed as consent to the release of documents. If Dr Ladd had specifically given his consent to the release of the documents then he would have waived confidentiality but it cannot be assumed that his silence on the matter amounts to consent.
Separately, in addressing the public interest test relevant to the application of clause 13(1)(b), the Authority concluded that the information in the documents is “incomprehensible ... to the vast majority of citizens”. As SAPOL contended, the technical complexity and comprehensibility of the information to the ordinary reader is not a relevant consideration. In this case the information relates to the DNA profile of an individual. It may be assumed that those with suitable scientific expertise are capable of interpreting and explaining the information contained within the documents.
There was no challenge to the submission advanced by SAPOL that there exists difficulty in seeking information concerning police investigations in other jurisdictions. Unless confidentially can be maintained whenever SAPOL gives such an assurance, it might reasonably be expected to prejudice the supply of information to it. Furthermore, as SAPOL submitted, the public interest favours the capacity for it to share information so as to perform its investigative duties and that such assurances as given by SAPOL can be relied upon to the exclusion of an applicant seeking access to documents.
It follows that there was an error on the part of the Authority in determining SAPOL’s claim for exemption based on clause 13.
SAPOL has also argued that the Authority failed to have regard to clause 6(1) when considering whether the documents were exempt. The documents contain the DNA profile of a person. There can be little doubt that a person’s DNA profile is a unique identifying feature of that individual and is therefore a “personal affair”. The fact that the reported DNA profile might be incomprehensible to most people is not an answer to it not amounting to a personal affair. Neither is it an answer, for the reasons previously mentioned when addressing the same considerations in respect to clause 13(1), that its release would not be unreasonable.
However, in relation to page 5 of document 14, whilst I accept the DNA profile contained therein is a “personal affair” I do not consider it would be unreasonable to release the information. I do so on the basis of the significant time that has elapsed since the murder and the special interest of Mr Bradshaw in having access to it.
For the above reasons SAPOL’s cross-appeal must be allowed in part. I rescind the decision of the Authority to allow full access to documents 20, 21, 22, 23, 24, 29 and 30 and hold that they are exempt documents applying clauses 6(1) and 13(1) of the FOI Act. Again my orders are reflected in the schedule.
The Additional Documents
I have been separately asked to determine access to documents 87-111, the existence of which was only discovered by SAPOL after this appeal was instituted and so were not considered by either SAPOL or the Authority upon review. I have also been asked to determine access to documents 10, 11 and 36 which the Authority wrongly found were outside the scope of Mr Bradshaw’s application.
In doing so I have had regard to the written submissions contained within the Outline of Argument of SAPOL and Mr Bradshaw’s submissions in relation to his appeal.
SAPOL has submitted that clauses 4(2)(a)(iii), 5, 6(1), 6(2), 9, 10 and 13(1) have application to those documents.
Clause 4(2)(iii) was said to apply to documents 96 and 108-110. There is nothing which appears in any of the documents which would have the effect suggested by SAPOL. I cannot see how the content of the documents could reasonably be expected to prejudice the effectiveness of cooperation between SAPOL and those other bodies or how it would be contrary to the public interest to release them.
Clause 13(1) was said to apply to documents 108-109. I do not accept that the matters contained within those documents would have the effect suggested by SAPOL such as to justify exemption. There is nothing contained within the documents to suggest that the matters were being communicated in confidence. I do not accept that a generic statement at the bottom of a facsimile sheet, email or letter, of itself, invokes the protection of the clause. Something more is needed than that before the protection afforded by the clause can be claimed. This would usually be gained from a reading of the text as a whole. The text should disclose that the writer has, in some way, directed their mind to the issue of whether information is being communicated or disclosed to the recipient in confidence. To construe clause 13(1) as applying in each instance where a standard claim of confidentiality is incorporated into a document, without more, would be to frustrate the objects of the FOI Act.[36] In any event, even if I am wrong about this, I do not consider sub-placita (i) and (ii) of clause 13(1)(b) have been established.
[36] ss 3 and 3A FOI Act.
I accept clauses 5, 6(1), 6(2), 9 and 10 apply to the documents.
My determinations in relation to these additional documents are included in the schedule.
SCHEDULE OF DOCUMENTS
Doc No.
Document Date
Description of Document
Access
Exemption Clauses Applied
Decision of Authority
4
15/09/2010
Letter from Bruneian Deputy Public Prosecutor to Stephen Pallaras QC.
Part Access
Delete paragraph 2.
Clause 6(2)
Affirmed
9
01/06/2010
Letter from Bruneian Attorney-General to Stephen Pallaras QC.
Part Access
On page 2 delete paragraph 1.
Clause 6(2)
Affirmed
10
27/11/2008
Email to Brunei High Commissioner in Australia from Stephen Pallaras QC.
Part Access
On page 1 delete paragraphs 3-7.
Clause 6(2)
11
18/11/2008
Letter to Detective Superintendent John Venditto from Commonwealth DPP.
Access Refused
Clauses 6(2) & 10
12
30/06/2010
SA Police property receipt 05/A10456.
Part Access
On page 1 delete name and other details of first associated person.
On pages 5, 16-38 delete name and status of second associated person.
On pages 25, 27 and 27 delete name of owner of items of clothing.
Clause 6(2)
Affirmed
13
14/12/2007
Statement of witness of Desmond John Carroll, Forensic Science SA.
Part Access
On page 1 in paragraph 4 delete words appearing immediately after “Anthea Bradshaw-Hall (deceased)”.
Clause 6(2)
Affirmed
14
11/122007
Forensic Biology Court report on the examination of items.
Part Access
On page 1 delete words appearing immediately after “Anthea Bradshaw-Hall (deceased)” in heading.
On page 3 delete whole of 1.3.
On page 3 delete final of 2.1.
On page 4 delete words following “(all from scene)” from 2.2.
Delete 2.3 on page 4.
Clause 6(2)
Affirmed
15
13/12/2007
SA Police Request for Scientific Examination.
Part Access
On page 8 of 9 delete items 16, 24,27,28,29 and 32.
On page 9 of 9 delete exhibits after 05/A10456 4.
Clause 6(2)
Affirmed
17
04/05/2006
Statement of witness of Brevet Sergeant David Paul Veldhoen, SA Police Physical Evidence Section.
Part Access
On Statement Cover Sheet delete four words appearing immediately after “Anthea Lily BRADSHAW-HILL” up to Incident.
On page 12 delete dot points 1, 2, 4, 5, 6, 7 in 8.1.
On page 15 delete all words appearing immediately after “blood having been transferred onto the handle by a third party” in 9.6.
On page 15 delete all words appearing immediately after “evidence of a small movement to the left leg of the deceased” in 9.7.
Clause 6(2)
Varied
18
26/10/2007
Statement Sergeant Mark Edward Reynolds, WA Police Crime Scene Unit.
Part Access
On page 13 delete 7.6.
On pages 13 and 14 delete 7.7.
On pages 14-16 delete Conclusion Points 4, 5, 6, 7 and 8 of 7.9.
On page 18 delete 8.8 – 8.10.
Clause 6(2)
Varied
19
09/04/2007
Letter from Dr Carll Ladd, Connecticut Forensic Laboratory to Detective Brevet Sergeant John Schneemilch.
Full Access
Affirmed
20
25/10/2006
Identifiler Injection/Analysis Worksheet.
Access Refused
Clause 6(1) & 13(1)
Rescinded
21
25/10/2006
Identifiler Injection/Analysis Worksheet.
Access Refused
Clause 6(1) & 13(1)
Rescinded
22
25/102006
Identifiler Injection/Analysis Worksheet.
Access Refused
Clause 6(1) & 13(1)
Rescinded
23
25/10/2006
Identifiler Injection/Analysis Worksheet.
Access Refused
Clause 6(1) & 13(1)
Rescinded
24
08/01/2007
Supplemental DNA report of Connecticut Forensic Science Laboratory.
Access Refused
Clause 6(1), 6(2) & 13(1)
Rescinded
25
16/05/1996
Report of Connecticut State Police Forensic Science Laboratory.
Part Access
On page1 delete #S1-1 to #S1-4.
On page 3 in fourth paragraph delete all from point 3 to point 7 on page 7.
Delete Point 8 from “Bloodstains from...” to “;the back of the victim’s shirt (item #V1)”.
Delete Points 4-8 in Conclusions and Summary
.
Clause 6(2)
Varied
29
Undated
Results obtained from Polymarker PCR from Connecticut State Police Forensic Science Laboratory.
Part Access
Delete #S1-3-LB1 to #S1-2-LB3.
Clauses 6(1), 6(2) & 13(1)
Varied
30
07/08/1997
Criminalistics DNA report of Connecticut State Police Forensic Science Laboratory.
Part Access
Delete #S1-3-LB1 to #S1-2-LB3.
Clauses 6(1) & 13(1)
Varied
32
01/081997
Letter from Supt Latiff/Ghaffar, Royal Brunei Police Force to First Secretary, Australian High Commission.
Part Access
Delete second, third and fourth paragraphs.
Clause 6(2)
Affirmed
34
Undated
52 Photographs.
Part Access
Delete photographs 9, 10 and 11.
Clause 6(2)
Varied
36
19/06/1994
Will of the deceased.
Access Refused
Clause 6(1)
37
28/07/1994
Autopsy Report of Clinical Professor Chao Tzee Cheng.
Full Access
Rescinded
38
22/07/1994
Post-Mortem Report of Dr Pu Telisinghe.
Full Access
Rescinded
39
09/08/1994
Analysis report of Norliza Binti Haji Abdul Halim, Brunei Scientific Services Laboratory.
Full Access
Rescinded
42
22/07/1994
Statement of Carolyn Chillcott.
Part Access
On page 1, delete passport particulars and British address.
Clause 6(1)
Affirmed
43
22/07/1994
Statement of Beverley Dawn Simpson.
Part Access
On page 1, delete passport particulars and British address.
On page 3, delete last question and answer.
Clauses 6(1) & 6(2)
Varied
44
22/07/1994
Statement of Martin Robert Forster.
Part Access
On page 1, delete passport particulars.
Clause 6(1)
Varied
45
25/07/1994
Statement of Martin Robert Forster.
Part Access
On page 1, delete passport particulars and British address.
Clause 6(1)
Varied
46
09/08/1994
Statement of Martin Robert Forster.
Full Access
Rescinded
47
22/07/1994
Statement of William Allen Bolser.
Part Access
On page 1 delete passport particulars and US address.
On page 3 delete third and fourth questions and answers.
On page 4, delete last question and answer.
Clauses 6(1) & 6(2)
Varied
48
22/07/1994
Statement of Kerry Patricia Page.
Part Access
On page 1, delete Australian address.
Clauses 6(1)
Varied
49
30/07/1994
Statement of Kerry Patricia Page.
Part Access
On page 1, delete Australian address.
Clauses 6(1) & 6(2)
Varied
50
22/07/1994
Statement of Mr Varghese M Panlose.
Part Access
On page 1, delete passport particulars and Indian address.
Clauses 6(1)
Varied
51
22/07/1994
Statement of Emma Cecilia Timperley.
Part Access
On page 1, delete passport particulars and British address.
Clause 6(1)
Affirmed
52
30/07/1994
Statement of Emma Cecilia Timperley.
Part Access
On page 2, delete last sentence in second answer.
On page 3, delete first and second questions and answers.
On page 4, delete question and answer.
Clause 6(2)
Varied
53
22/07/1994
Statement of Niranjala Rajendiran.
Part Access
On page 3, delete third question and answer.
Clause 6(2)
Varied
54
22/07/1994
Statement of Antoniswamy Amirtharaj.
Part Access
On page 2, delete last question and answer.
Clause 6(2)
Varied
55
22/07/1994
Statement of Lindy Sutton.
Part Access
On page 1, delete Australian address.
Clauses 6(1) & 6(2)
Varied
56
01/08/1994
Statement of Lindy Sutton.
Part Access
On page 1, delete passport particulars and Australian address.
Clauses 6(1) & 6(2)
Varied
57
22/07/1994
Statement of Beverly Anne McMorrow.
Part Access
On page 1 delete British address.
Clauses 6(1) & 6(2)
Varied
58
30/07/1994
Statement of Beverly Anne McMorrow.
Part Access
On page 1 delete passport particulars and British address.
On page 3, delete last question and answer.
On page 4, delete first and second questions and answers.
Clauses 6(1) & 6(2)
Varied
59
22/07/1994
Statement of Valerie Kathleen Harris.
Part Access
On page 1, delete passport particulars.
Clauses 6(1)
Varied
60
30/07/1994
Statement of Valerie Harris.
Part Access
On page 3 delete second, third, fourth and fifth questions and answers.
Clause 6(2)
Varied
61
23/07/1994
Statement of Peta Lyn Heydenrych.
Part Access
On page 1, delete Australian address.
On page 5, delete the first and fourth questions and answers.
Clauses 6(1) & 6(2)
Varied
62
23/07/1994
Statement of Mr Thonglaw Soonthrodom.
Part Access
On page 1, delete Thai address.
Clause 6(1)
Varied
63
23/07/1994
Statement of Mr Paiboon Matamma.
Part Access
On page 1, delete Thai address.
Clause 6(1)
Varied
64
23/07/1994
Statement of Mr Sommai Khetkham.
Part Access
On page 1, delete passport particulars and Thai address.
Clause 6(1)
Varied
65
25/07/1994
Statement of Soh Siew Hoon.
Part Access
On page 1, delete passport particulars and Malaysian address.
Clause 6(1)
Varied
66
25/07/1994
Statement of Fong Sow Yoong (incomplete).
Part Access
On page 1, delete Canadian address.
Clause 6(1)
Affirmed
67
29/07/1994
Statement of Glenda Joyce Muffutte.
Part Access
On page 1, delete passport particulars and Canadian address.
On page 3 delete last question and all of page 4.
Clauses 6(1) & 6(2)
Varied
68
29/07/1994
Statement of Michael William Doyle.
Part Access
On page 1, delete passport particulars and Irish address.
Clauses 6(1)
Varied
69
02/08/1994
Statement of Ma. Aileen J Mallen.
Part Access
On page 1, delete passport particulars and Philippines address.
On page 3 delete first and last questions and answers.
Clauses 6(1) & 6(2)
Varied
70
02/08/1994
Statement of Sandra Helen Ogunrinde.
Part Access
On page 1 delete passport particulars and Canadian address.
On page 4 delete last question and answer.
Clauses 6(1) & 6(2)
Varied
71
17/06/1995
Statement of Mona Adly Mostafa Metwaly.
Part Access
On page 1, delete passport particulars and Canadian address.
On page 4, delete * at very bottom of page.
Clauses (1) & (2)
Varied
72
04/08/1994
Statement of Richard Desmond Chillcott.
Part Access
On page 1, delete passport particulars and British address.
On page 1, delete third answer.
Clauses 6(1)
Varied
73
Undated
Statement of Shaaban Essam.
Part Access
On page 1, delete passport particulars.
Clause 6(1)
Affirmed
76
22/07/1994
Statement of Martin Robert Forster (Malay version of Document 44).
Part Access
On page 1 delete passport particulars.
Clause 6(1)
Rescinded
78
23/07/1994
Statement of Wan Thong Yok Paen (English translation).
Full Access
Rescinded
79
23/07/1994
Statement of Thian Joo Fatt (English translation).
Part Access
On page 1, delete passport particulars.
Clause 6(1)
Affirmed
80
28/07/1994
Statement of Kong Khie Fah (English translation).
Part Access
On page 1, delete passport particulars.
Clause 6(1)
Affirmed
81
03/08/1994
Statement of Anzar Thamrin (English translation).
Part Access
On page 1, delete Indonesian address.
On page 12, delete first question and answer.
Clause 6(1) & 6(2)
Varied
82
03/08/1994
Statement of Kuek See Chuan (English translation).
Part Access
On page 1, delete passport particulars and Malaysian address.
Delete third sentence in paragraph 2 on page 12.
Delete all of page 13.
Clause 6(1) & 6(2)
Varied
83
20/11/1996
Statement of Zenaida C Victoria.
Part Access
On page 1 delete passport particulars and Philippines address.
Delete questions and answers numbered 7–13, 15.
Clauses 6(1) & 6(2)
Varied
84
22/07/1994
Statement of Mr Jeffrey John Hall.
Part Access
On page 1, delete passport particulars and Australian address.
On page 8 delete last question and first answer on page 9.
On page 12 delete question and answer.
Clauses 6(1)
Varied
85
09/08/1994
Letter from Dato Hj Abd Rahman Bin Hamid, Head of CID, Royal Brunei PoliceForce to Directior, Singapore Institute of Science and Forensic Medicine.
Part Access
On page 2 delete from “Request” (i) through to (iii) inclusive.
On page 2, delete all of II.
On page 5, delete all of IV to heading “Additional Specimen”.
Clause 6(2)
Varied
86(c)
Undated
Photographs of the deceased in situ.
Access Refused
Clause 6(1)
Affirmed
86(e)
Undated
Photographs of the deceased in situ.
Access Refused
Clause 6(1)
Affirmed
86(f)
Undated
Photographs of the deceased in situ.
Access Refused
Clause 6(1)
Affirmed
86(g)
Undated
Post mortem photographs of the deceased.
Access Refused
Clause 6(1)
Affirmed
86(h)
Undated
Post mortem photographs of the deceased.
Access Refused
Clause 6(1)
Affirmed
86(i)
Undated
Post mortem photographs of the deceased.
Access Refused
Clause 6(1)
Affirmed
86(j)
Undated
Post mortem photographs of the deceased.
Access Refused
Clause 6(1)
Affirmed
86(q)
Undated
Photographs of a person semi dressed.
Access Refused
Clause 6(1) & 6(2)
Affirmed
86(r)
Undated
Photographs of a person semi dressed and items of clothing.
Access Refused
Clause 6(1) & 6(2)
Affirmed
86(u)
Undated
Post mortem photographs of the deceased.
Access Refused
Clause 6(1)
Affirmed
86(v)
Undated
Post mortem photographs of the deceased.
Access Refused
Clause 6(1)
Affirmed
86(x)
Undated
Photographs of items of clothing.
Access Refused
Clause 6(1) & 6(2)
Affirmed
87
15/07/2010
Correspondence with SA DPP.
Part Access
On page 1 paragraph 1 delete bullet point 5.
On page 1 paragraph 2 delete arrows 3, 4, 7, 8.
Clause 6(2)
88
17/11/2008
Correspondence with Commonwealth DPP.
Part Access
On page 1, delete last sentence of paragraph 2.
On page 1 delete paragraph 6.
On page 2, delete paragraph 1.
Clause 6(2)
89
17/11/2008
Letter to John Venditto, Officer in Charge, Major Crime, SAPOL.
Access Refused
Clause 10
90
12/11/2008
In Confidence memo to Assistant Commissioner Crime Service seeking approval of request for legal advice from State DPP and referral to the Coroner.
Part Access
On page 1 delete paragraph 1.
Clause 6(2)
91
06/09/2008
Fax entitled cybercrime enquiries to Assistant Commissioner Harrison (AC Crime Service) providing response to previous SAPOL correspondence.
Part Access
On letter to Assistant Commissioner dated 4/9/2008 delete paragraph 2.
On page 1 of attached letter to the Commissioner of Police dated 30/5/2006 delete from paragraph 2 all words following “... should be conducted ...”
Clause 6(2)
92
Undated
Undated memo to AC Crime Service through OC Major Crime.
Full Access
93
27/08/2008
Fax to Peng Eng Lee, Royal Brunei Police Force.
Part Access
Delete from Facsimile paragraph 2 the words following “... progress of the file ...”.
Delete from Facsimile paragraph 3 the words following “... has been received....”.
Delete whole of Copy Only letter dated 20/12/07.
Clause 6(2)
94
31/01/2008
Letter from Commissioner Hyde to Commissioner of Royal Brunei Police Force advising of outcome of SAPOL review of investigation and provision of documentation.
Part Access
On page 1, paragraph 3 delete all words appearing after “... available to assist you ... ”.
On page 1 paragraph 5 delete second sentence.
Clause 6(2)
95
29/01/2008 (approval date)
Briefing Paper requesting correspondence to be forwarded to Royal Brunei Police (to Commissioner through Operations Inspector Major Crime on 24 December 2007 and approved by AC Crime on 29 January 2008). Draft correspondence attached.
Part Access
On page 2 of Briefing Paper, delete mobile telephone number.
On page 1 of Briefing paper delete 4 second sentence from bullet point 4.
On page 1 of Briefing paper, delete bullet point 8.
Delete whole of draft letter dated 20/12/07.
Clause 6(1) & 6(2)
96
21/12/2007
E-mail Correspondence with Commonwealth Attorney-General’s Dept.
Part Access
Delete second sentence in paragraph 2, all of paragraph 3 and all words following “... aware of ... ” in paragraph 4.
Delete mobile telephone number.
Refuse access to two attachments to email.
Clauses 6(1) & 6(2)
97
22/12/2004
Email from Brenton Rowney to John Venditto.
Access Refused
Clause 6(2)
98
21/10/2004
Letter to Commissioner (SA Police) requesting assistance from SAPOL with forensic examination.
Part Access
On page 1 delete paragraphs 3 and 4. From first sentence in paragraph 5 delete words appearing after “... assist us ...” to end of the sentence.
Clause 6(2)
99
24/06/2004
Correspondence with Brunei advising SA investigators and experts that further forensic examination is required for progress of investigation.
Part Access
On page 1 from paragraph 3 delete the words following “... blood evidence”.
On page 1 delete all of paragraphs 4, and 5.
On page 2 delete paragraph 1.
Clause 6(2)
100
12/02/2004
Internal memo to OC Executive Services (Support service to the Commissioner) seeking Commissioner to raise matter with Commissioner for Royal Brunei Police Force.
Full Access
101
21/11/2003
Offer of assistance to Commissioner of Royal Brunei Police Force in respect to forensic issues in investigation.
Full Access
102
16/09/2003
Internal memo to AC Crime advising that Bradshaw-Hall matter raised in face to face meeting with Commissioner, Royal Brunei Police Force and detailing arrangements for progressing matter.
Full Access
103
11/09/2003
Internal memo to Commissioner seeking Commissioner Hyde to raise matter with Commissioner, Royal Brunei Police in face to face meeting on 15 September 2003.
Part Access
Delete paragraphs 2.
Delete from paragraph 4 words after “... it seems ...” and before “... more could be done ...”
Clause 6(2)
104
08/09/2003
Memo to Commissioner (through AC Crime Service) covering report from Detective Senior Sergeant Baird seeking Commissioner Hyde to raise matter with Commissioner, Royal Brunei Police.
Part Access
On page 1 of memo from Superintendent Symons dated 8/9/03 delete paragraphs 3, 4 and 5.
On page 2 delete paragraph 2 and first sentence of paragraph 3.
Access to whole of report from Det S/Sgt Baird to Officer in Charge Major Crime dated 5/9/03 refused.
Clauses 5, 6(2) & 9(1)
105
24/08/2003
Correspondence to Detective Senior Sergeant Baird regarding DNA technology.
Part Access
Delete Point 2.
Delete second paragraph of Point 4.
Clause 6(2)
106
01/06/ 2001
Copy of correspondence with Manager, Interpol (Canberra) seeking access to Royal Brunei Police Force’s investigation file for review.
Part Access
On page 1 delete words in, sentence 3 of paragraph 2 following “... from the victim ...” to “... during their investigation ...”.
On page 1 delete paragraph 3.
On pages 1-2 delete all but the first sentence of paragraph 5.
On page 2 delete sentence 3 of first full paragraph.
On page 2 delete from second paragraph the words following “... from the deceased...” to “... and any other exhibits ...”
On page 2 delete all words following “... DNA technology ...” in last sentence of third paragraph.
On page 2 delete all words in first sentence of paragraph four following “... can be gleaned ...”
On page 2 delete from second sentence of the fifth paragraph words following “... behalf of the family ...” to “... we may be able ...”
Clause 6(2)
107
01/02/2002
Fax coversheet to Interpol.
Part Access
Delete second sentence of paragraph 3.
Clause 6(2)
108
2402/2002
Fax coversheet providing Interpol fax to Major Crime.
Part Access
Delete paragraph 2 from Fax to D/S/Sgt Baird 24/2/2002
Clause 5
109
11/05/2003
Fax from Interpol.
Full Access
110
19/02/2007
Email correspondence between Carll Ladd and John Schneemilch regarding DNA.
Full Access
111
Undated
Handwritten notes made on the back of document number 28 - statement of Peng Eng Lee.
Full Access