Camilleri v Commissioner of Police, NSW Police Force
[2012] NSWADT 5
•19 January 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Hearing dates: 3 August 2011 Decision date: 19 January 2012 Jurisdiction: General Division Before: Judicial Member N Isenberg Decision: Matter 113027: the decision under review is affirmed
Matter 113105: the decision under review is set aside
Matter 113177: the decision under review is affirmed
Legislation Cited: Government Information (Public Access) Act 2009 Cases Cited: Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201
DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215
Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213
Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35
O'Hara v North Sydney Council [2005] NSWADT 100
Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.
Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195
Miriani v Commissioner of New South Wales Police [2005] NSWADT 187Category: Principal judgment Parties: Clement Camilleri (Applicant)
Commissioner of Police (NSW Police Force)Representation: C Clement (Applicant in person)
NSW Police (Respondent)
File Number(s): 113027 113177 113105
REASONS FOR DECISION
Mr Camilleri requested the documents under Government Information (Public Access) Act 2009 (the GIPA Act) from the New South Wales Police Force (the Police):
Matter 113027 ('photographs'):
Photos of a white Toyota Camry on the 3rd April 2008 at about 4 PM by Constable Colman outside Penrith Police Station Reg No: [specified]. The photos relate to a gunshot pellets (sic) that hit the back bumper of the car.
Matter 113105 ('000 call'):
000 call made by Martin Bartolo of [address] on 1 st April 2008 at about 3:08 am. The call is about malicious damage to his property. The call was taken by Constable Bulpitt at Penrith Police Station.
Matter 113177 ('statements'):
Two signed statements by Mr and Ms Bartolo
Mr Camilleri considered that the responses provided by the respondent in respect of each matter were inadequate and has brought an application for review in respect of each request to the Tribunal.
Background
Mr Camilleri has been in dispute with his neighbor, Mr Bartolo, for some time. Matters came to a head in the early hours of 1 April 2008. A phone call was made to 000 from the Bartolo home complaining to police that Mr Camilleri had damaged the property with paint. At about the same time Mr Camilleri attended Penrith Police Station alleging that he had been shot at and that there were gunshot marks on his car. Three photographs were taken of Mr Camilleri's car by Constable Colman on his personal phone. Mr Bartolo and his daughter provided statements to police. Mr Camilleri was subsequently charged with damaging Mr Bartolo's property ('the court proceedings').
Consideration
Evidence was given by Mr Camilleri and by Constable Colman.
Photographs
Constable Colman's evidence was that he asked that Mr Camilleri to remain at the police station on 1 April 2008 while he investigated Mr Bartolo's complaint. Mr Camilleri however, left, returning the following day. At that time, at Mr Camilleri's request, Constable Colman photographed Mr Camilleri's car using his personal phone. He took one photograph of the entire car and one each of the 2 marks which Mr Camilleri said were gunshot marks but which, on examination, Constable Colman believed were stone chips. He did not provide a copy of the 3 photographs to Mr Camilleri at that time. Neither were copies provided to Mr Camilleri in the brief of evidence in respect of the charges against him in relation to the alleged malicious damage of Mr Bartolo's property because Constable Colman did not consider them to be relevant to the charges in the court proceedings. In any event, he did not consider the car to have been damaged by gunshots, and had only taken the photographs at Mr Camilleri's insistence.
In the court proceedings, in cross-examination, Constable Colman produced the 3 photographs on his phone and they were shown to the presiding magistrate and to counsel. Subsequent to the hearing, the charges having been dismissed, Constable Colman attempted to download the photographs, but his phone had been damaged and he was unable to do so. Later, he was able to repair the phone sufficiently such that he emailed the photographs to his work email and saved them into to his work computer. However only two of the photographs were able to be saved in this way, and they were of poor quality. At that time there were no proceedings on foot involving Mr Camilleri. Constable Colman did not anticipate that the photographs would be required again so he did not take any further efforts to locate and extract the third photograph. He recalled that the missing photograph was very similar to the one which he considered to be a stone chip and that it too was of poor quality. Constable Colman said that he no longer has the phone on which he took the photographs, having replaced it at least a year before he made his statement in May 2011.
Although the respondent initially said, in response to Mr Camilleri's application, that it did not have any of the photographs, at the Planning Meeting on 1 March 2011 I was informed that two photographs that Constable Colman had taken of Mr Camilleri's car had been located - one of the entire and one that he believed was a stone chip. These were provided to Mr Camilleri.
Mr Camilleri alleged that the third photograph was being deliberately withheld from him and that the police were destroying evidence of the gunshots.
Section 53 of the GIPA Act sets out the obligations of agencies in locating government information in response to a request:
(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.
(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.
(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.
(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
The Tribunal's role is to make the correct and preferable decision as to whether or not the respondent holds any further documents, in this case, a photograph , falling within the scope of the applicant's application.
In deciding whether a sufficient search has been carried out, the ultimate issue for the Tribunal is whether the agency's conclusion, that it does not hold the documents sought by the applicant, is sound.
What constitutes a sufficient search has been considered by the Tribunal in a number of cases. In Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18], the President said that the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning ( 1994) 1 QAR 464, should be adopted in addressing sufficiency of search issues. In Shepherd the Information Commissioner said at [19] that there were two questions for consideration were:
'(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.'
This approach has been followed by the Tribunal in a number of cases such as DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 ( Patsalis ); Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35; O'Hara v North Sydney Council [2005] NSWADT 100 (O'Hara ); and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.
It is not enough for the applicant to merely assert non-compliance on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69].
With regard to the second part of the test set out in Shepherd, President O'Connor considered the key factors in assessing whether a sufficient search had been carried out in Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]. These factors included, relevantly, the ability to retrieve any documents that are the subject of the request. What constitutes a sufficient search will vary with the circumstances.
In Patsalis at [63], President O'Connor said that the standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate: see also O'Hara . In Patsalis, the documents to which the applicant sought access had existed but were subsequently lost. Numerous searches were conducted but failed to find them and, ultimately, his Honour concluded at [59] that 'it would be a waste of time to ask the agency to do any more searches'.
Constable Colman 's evidence set out clearly, in my view, the endeavours he, on behalf of the respondent, undertook in good faith to retrieve all the photograph s. It is important to note that he had taken them at the insistence of Mr Camilleri , notwithstanding that, on inspection of the vehicle, he did not consider the damage to be as a result of gunshots. Further, his evidence , which I accept, was that the photographs were not immediately downloaded and saved because they were not relevant to any charge against Mr Camilleri . As no charges were laid against Mr Bartolo there was no reason for their retention. That two were able to be retrieved was fortuitous.
It was unclear whether the third photograph was in fact still 'held by the agency' at the time the application was received. If it was not, there is no obligation to produce the photograph, nor indeed to attempt to locate it: s53(2). Even if it could be said to have been held by the respondent at the date of application, I am satisfied that the respondent has undertaken reasonable searches to locate the third photograph and that must be conducted using the most efficient means reasonably available to the agency: s53(3).
The decision under review is therefore affirmed.
000 call
The respondent had declined to provide to Mr Camilleri the recording or the transcript of the 000 call on the basis that there was an overriding public interest against its disclosure. Mr Camilleri pointed to some inconsistences in the statements of Mr and Ms Bartolo as to who it was who made the call.
The respondent made a number of submissions in relation to public interest considerations against disclosure.
Section 14 Table 1(d)
The respondent submitted the disclosure of the 000 call could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of NSW Police Force's functions.
The respondent submitted there is an expectation, if not an express undertaking, that information reported to Police will be kept confidential and will only be used and disclosed by the Police in the conduct of law enforcement activities. I was referred to Simring v NSW Police [2009] NSWSC 270 in which the applicant appealed a decision of the Tribunal in respect to an application for access to a range of documents under the then Freedom of Information Act 1989 (NSW) ( FOI Act ), including the written statements of a victim and witnesses to the alleged offence. The victim in that case objected to the proposed disclosure of their witness statement in response to an FOI application, notwithstanding the victim understood those statements would later be used in court proceedings related to the alleged offence.
At [ 69], the Smart J stated as follows:
When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police...
The respondent submitted that these remarks are directly relevant to the facts in the present matter.
It was Constable Colman's evidence that the witness statements prepared by Mr and Ms Bartolo - the notebook statement of Mr Bartolo dated 1 April 2008, the typed version of that statement and the typed statement of Ms Bartolo dated 6 April 2008 - were served on Mr Camilleri in the course of the criminal proceedings. Mr Camilleri agreed in cross-examination that the witness statements had been provided to him. The respondent submitted that there is a difference between the disclosure of a witness statement formally prepared by an alleged victim for use in criminal proceedings, from other classes of information provided by that person to the Police in the course of the investigation, such as the 000 call reporting the alleged offence. Further, t he respondent submitted that I should not draw any distinction between 'informants' and 'complainants'.
This approach is consistent, it was submitted, with the Tribunal's finding in Fisher v NSW Police [2002] NSWADT 267 ( Fisher ). There, the applicant sought access to a number of documents, including the 000 call of an informant. Britton JM stated at [34]:
It seems to me a matter of commonsense, as well as consistent with the weight of authority, that unless there is clear evidence to the contrary, information given by informers to police must be presumed to be given on a confidential basis. Evidence that might tend to contradict that presumption would be, for example, where a witness statement has been given to the police along with an undertaking to give evidence. In other words, where an informer is willing to identify him or herself publicly as the accuser of another or is willing to give some evidence which would inevitability be given in a public trial or hearing without a claim of confidentiality. Otherwise, however, it seems to me that it is reasonable to presume that communications between police and informers are confidential. I include in this category, communications with police and informers over the 000 line or services such as Crimestoppers.
I do not agree with the respondent 's submission. In Fisher the Tribunal was concerned with information provided by an informant. In the present matter the call was known to have been made from the Bartolo residence and it gave rise to firstly, attendance by the Police there, the taking of statements, the interviewing and subsequent charging of Mr Camilleri. The call was not in the nature of a tip-off; the Bartolo family was, in using the 000 service, utilising a convenient means to contact Police to lodge a complaint which was acted upon and resulted in charges being laid and members of the family giving evidence against Mr Camilleri . I think it is an important to a distinction between anonymous tip-offs and calls made in circumstances where the caller actively seeks Police intervention on their behalf.
The respondent submitted that it is well established that the confidentiality of information communicated can be inferred from all of the circumstances and referred me to cases such as Re Maher and Attorney General's Department (1985) 7 ALD 731 at 737, Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338, and McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 ( McMahon ). It also submitted that confidential quality of information may be inferred from the nature of the relationship between the informer and the person informed: Department of Health v Jephcott (1985) 8 FCR 85.
Each case will turn on its own facts. I do not consider in the present matter that that caller had any expectation of confidentiality whatsoever, and in fact was seeking Police intervention.
The respondent further submitted that the disclosure of 000 calls could reasonably be expected to prejudice the supply of confidential information to the Police, as it could reasonably be expected to impede the willingness of members of the community to report criminal activity for fear of reprisal. As the Police rely on information provided by members of the community in the performance of its law enforcement functions, it is critically important that the information reported to the Police be accurate and comprehensive. If members of the community are no longer willing to provide such information to the Police, this will prejudice the effective exercise of NSW Police Force's law enforcement functions. In particular, i t was submitted that Mr Bartolo may not have made the call if he knew information would be released because he may have feared reprisals.
In respect to whether disclosure could "prejudice" supply, the respondent referred me to McMahon. Applying that case to the present facts, the test is not whether, in this matter, members of the Bartolo family could reasonably be expected to refuse to supply information in future, but whether the agency will be able to obtain such information in the future.
I was also referred to Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13. There the Appeal Panel held (in respect to the exemption in clause 13(b)(ii) of Schedule 1 of the FOI Act) that:
In our view, clause 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary...
While the cases referred to the 'future' supply of information, as was the test under the FOI Act , I do not think there is any real distinction between that and the GIPA Act requirements, as it is, is my view, as a matter of commonsense when assessing 'prejudice supply' that this can only mean 'prejudice future supply'.
I do not agree with the respondent's submission that a 000 is always confidential. Confidentiality is to be inferred from all of the circumstances and I find that in circumstances where a complainant has an expectation of Police intervention that leads to criminal charges the disclosure of this type of information would not reasonably be expected to prejudice the supply of information to the Police.
section 14, Table 1(f)
A similar submission was that the disclosure of the 000 call could reasonably be expected to prejudice the effective exercise by Police of their law enforcement functions. I accept that Police rely on information from a range of sources, including 000 calls made by victims, witnesses and informers. I do not consider that it necessarily follows, having regard to my finding s above , that it could reasonably be expected that such persons would refrain from providing information to the Police in future, for fear of the disclosure of that information to the alleged offender. Therefore this submission also fails.
Section 14 Table 3(a)
The respondent submitted that disclosure of the 000 call would reveal personal information about the person or persons who made the call and submitted that, on balance, there is an overriding public interest against the disclosure of this personal information.
"Personal information" is defined in Schedule 4 clause 4(1) of the GIPA Act as follows:
1)In this Act, personal information means information or an opinion (including information or an opinion forming part of a database whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
"Reveal" is defined in Schedule 4 clause 1 of the GIPA Act as follows:
reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
The respondent accepted that some information about the events which are the subject of the 000 call are already known to the applicant, however submitted that the 000 call contains other personal information which has not been revealed. Further, the voices of the persons who made the 000 call, their personal account of the events and their emotional responses to those events, are 'personal information' of those individuals which has not previously been revealed to the applicant.
Section 55 of the GIPA Act provides as follows:
55 Consideration of personal factors of application
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note: An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
Mr Camilleri would like to know who called the Police; at what the time the 000 call was made; and what information was contained in the 000 call. These are personal factors of the application to which I may have regard to under section 55(1)(b) when determining whether there is an overriding public interest against disclosure of the personal information contained in the 000 call. The respondent submitted there are a number of other personal factors of the application, which are relevant and referred to Mr Camilleri's evidence that there has been an ongoing dispute between him and Mr Bartolo for 18 years; that he considered Mr Bartolo as a "monster" and a "psycho"; that he alleged Mr Bartolo "almost killed his other neighbours some years back"; that Mr Bartolo "came out of his property with a full brick in his hand coming into my property to hit me"; and that the Police have attended Mr Camilleri's residence in response to complaints on numerous occasions.
Having regard to the personal factors of the application referred to above, the respondent submitted this is a particularly strong public interest consideration against disclosure to Mr Camilleri of the content of the 000 call.
The respondent submitted that such a finding would be wholly consistent with a recent decision under the QLD Right to Information Act 2009 ( RTI Act ), which is legislation consistent with the GIPA Act . I was referred to Marshall and Department of Police [2011] QICmr4 ( Marshall ), the Office of the Information Commissioner Queensland (OICQ) made a decision under the RTI Act and the (QLD ) Information Privacy Act 2009 ( IP Act ) in respect to the disclosure of a victim's account to the Police, in the context of a neighbourhood dispute. In Marshall , the applicant applied to the Police under the IP Act for documents relating to its investigation into a dispute between the applicant and his neighbour. Relevantly, the Police refused to release part of a memorandum detailing the investigation, and all of a three-page witness statement made by the applicant's neighbour, on the basis that disclosure of the documents would, on balance, be contrary to the public interest. In the consequential appeal to the OICQ, the OICQ determined that disclosure of the information would, on balance, be contrary to the public interest. In that matter the applicant had submitted that he has been subject to harassment by his neighbour and his complaints to the Police about these matters have not been adequately addressed; he has been the subject of false and misleading statements and declarations made by his neighbour; and he was considering legal action against his neighbour, and required access to all pertinent documentation. These submissions are similar to Mr Camilleri's evidence and submissions to the Tribunal.
In Marshall , the OICQ considered a number of public interest considerations in favour of disclosure of the information to the applicant. The OICQ considered it was arguable that disclosure of the information in issue may permit the applicant to better understand how the Police had dealt with his complaint; reveal information relied upon by the Police not to proceed with the complaint; and serve to further the Police's accountability for its investigation.
Relevantly, the OICQ considered that the substance of the information "such as a witness statement - consisting as it almost invariably will include an individual's impressions, opinions and even emotional responses to relevant events" was information of a private and personal nature. The OICQ found that the public interest factors against disclosure of the information outweighed those in favour, and refused access to the information sought.
The respondent submitted that a number of elements of Marshall are common to the present matter case. In particular, the applicant in both matters sought access to information provided by a neighbour to the Police, in the context of an ongoing neighbourhood dispute; the neighbour is the alleged victim in the dispute and provided information to the Police about the dispute; the applicant was dissatisfied with how the Police have dealt with the issue; and the applicant considered he had been subject to false and misleading statements made about him by his neighbour.
An important difference, in my view, however, is that in Marshall , the applicant had not been provided with the neighbour's statement. To that extent the information has already been 'revealed' to Mr Camilleri.
Also, in Marshall , the information related to events to which the applicant was a party, whereas in this instance, Mr Camilleri's evidence has consistently been that he did not attend the Bartolo residence.
I do not accept that the disclosure of the personal information in the 000 call to Mr Camilleri may cause further disruption between the parties and that the public interest factors in favour of releasing the 000 call outweighs those against.
Section 14 Table 3(f)
The respondent submitted that disclosure of the 000 call could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.
The respondent submitted, taking into account that Mr Camilleri has, for many years had an ongoing dispute with Mr Bartolo, who he from time to time has described as a "psycho" and a "monster", and that the Police have been called to attend to disputes on numerous occasions, disclosure of the 000 call could reasonably be expected to expose Mr and Ms Bartolo to some risk of harm. It appears that the dispute between them is a longstanding one. I do not consider that the evidence supports a finding that disclosure of the details of the 000 call would exacerbate their already poor relationship.
In summary, the respondent submitted, having balanced the public interest factors both for and against disclosure of the 000 call, and the personal factors of the application in respect to the public interest consideration against disclosure in section 14, Table (3)(a) and Table (3)(f) that the public interest considerations against disclosure outweigh those in favour of disclosure in the circumstances. For the reasons given above, I do not agree.
The decision under review is therefore set aside.
Statements
Constable Colman's evidence was that he attended the Bartolo home in response to the 000 call in the early hours of 1 April 2008. There he took a statement from Mr Bartolo. He recorded the statement in his notebook which Mr Bartolo signed and dated. Subsequently that statement was transcribed. A copy was provided to Mr Camilleri for the purposes of the court proceedings.
A formal statement was also provided by Ms Bartolo. Although dated 5 May 2008 it appears to have been signed on 6 May 2008. That statement had also been provided to Mr Camilleri for the purposes of the court proceedings.
Mr Camilleri said that on 3 April 2008 he was (electronically) interviewed by Constable Colman at Penrith Police Station. He said Constable Colman showed him two signed handwritten statements by Mr and Ms Bartolo. He attached a page of an electronic recording of his record of interview conducted on 3 April 2008:
... Mr Camilleri, ... I have two statements one form Mr Bartolo and one from his daughter ... who are prepared to go to court and have singed and written, provided written statements ... that they saw you ...
Mr Camilleri contended that the statements made by Mr and Ms Bartolo on 1 April 2008, which were shown to him by Constable Colman were re-written.
He pointed to a number of discrepancies between his recollection of what was in the first statement and the record in Constable Colman's notebook (and its subsequent reproduction in Mr Bartolo's formal statement). For example, the first statement did not refer to a 'white car'; and that Mr Bartolo changed the location of where he said he hid to observe Mr Camilleri. He said that the first statement was more detailed than the handwritten or formal statement.
He also contended in his submissions that he had been given the two hand-written statements which he provided to his (then) lawyer. He made a very serious allegation that his solicitor 'made the statements disappear', and it was inferred that this was at the request of Constable Colman.
A statement presumably extracted from the court proceedings dated 17 September 2008 was provided by Senior Constable Richter to the effect that he attended the Bartolo home with Constable Colman on 1 April 2008. Constable Colman had recorded a statement by 'the victim' (Mr Bartolo) in his notebook, which Mr Bartolo signed. Senior Constable Richter recorded that Constable Colman also spoke with Ms Bartolo. There was no mention however of Constable Colman having taken a written statement from her at that time. In his statement for the purposes of the court proceedings dated 6 May 2008 Constable Colman wrote that he had had a brief conversation with Ms Bartolo that night and informed her he would be in touch to arrange for her to provide a statement. He also wrote that on 6 May 2008 Ms Bartolo attended Penrith police station to provide a statement. In this regard, in Ms Bartolo's statement of 6 May 2008 she wrote only that she saw her father sign Constable Colman's notebook and did not record that she had made any earlier written statement.
In her evidence in the court proceedings Ms Bartolo said in cross-examination that she made a 'statement' to Police on 1 April 2008. She said she signed a statement at the police station. She thought though that Constable Colman had made notes which she signed i n addition to the typed statement. The statement of 1 April 2008 was called for but the prosecutor informed the court that there was no statement. She thought she gave the police an account of what had happened and that it was recorded in a notepad. She could not recall if she signed something but said she read the notes.
In his evidence Constable Colman explained that when he interviewed Mr Camilleri there was actually only one statement - that of Mr Bartolo which was recorded in his notebook, but that Ms Bartolo had given an account of what had occurred, but not a formal statement. He said there had been no time to take a statement from her on the night of the alleged incident because he had been informed that Mr Camilleri was at the police station and he needed to get back there to interview him. He said Ms Bartolo saw him taking notes in his notebook. His partner who attended took no statements because he, Constable Colman, was the OIC of the case.
He said that Mr Camilleri's representative had been provided with the brief of evidence which had included the statements of Mr and Ms Bartolo. Notebook entries do not ordinarily form part of the brief of evidence.
He said he may have shown Mr Camilleri the signed statement in his notebook but it was unlikely that he would have given him or his lawyer a copy as this is not the usual practice.
I do not accept that there were additional statements by Mr and Ms Bartolo as Mr Camilleri alleges. I accept the evidence of Constable Colman that he took a handwritten statement in his notebook from Mr Bartolo in the early hours of 1 April 2008. That statement was signed and dated and s ubsequently transcribed.
I accept the evidence that no written statement was provided by Ms Bartolo at that time, although she provided to Constable Colman an oral account of what had occurred. This was consistent with the evidence of Constable Richter which was not made for the purposes of this review. I also accept that Constable Richter took no statements because Constable Colman was the OIC of the case.
I accept that Ms Bartolo only made a formal statement on 6 May 2008, and observe that in her statement Ms Bartolo wrote only that she saw her father sign Constable Colman's notebook and did not record that she had made any earlier written statement. I accept that, in accordance with her evidence in the court proceedings Ms Bartolo made a 'statement' to Police on 1 April 2008. Ultimately she could not recall if she signed something at that time, although she had read Constable Colman's notes.
As to the transcript of Mr Camilleri's record of interview I accept that the most likely interpretation of the events is that Constable Colman referred to 'two statements' although he had in fact only one written statement at that time, and perhaps, somewhat generously, given that nothing had been committed to paper, described Ms Bartolo's account as a 'statement'. I do not accept Mr Camilleri's evidence that Constable Colman showed him two signed handwritten statements.
Neither do I accept that Mr Camilleri (or his lawyer) was given two hand-written statements which his lawyer destroyed - because I accept Constable Colman's evidence that notebook entries do not ordinarily form part of the brief of evidence.
Therefore, I find that Mr Camilleri, having been provided with the formal statements of Mr and Ms Bartolo and also the handwritten statement of Mr Bartolo, no documents remain outstanding in relation to his request. The decision under review in relation to this application is affirmed.
In summary therefore:
Matter 113027: the decision under review is affirmed
Matter 113105: the decision under review is set aside
Matter 113177: the decision under review is affirmed
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Decision last updated: 19 January 2012
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