Maksimovic and Commonwealth Director of Public Prosecutions

[2008] AATA 700

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 700

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3933

GENERAL ADMINISTRATIVE   DIVISION		)
Re		DEJAN MAKSIMOVIC

Applicant

And COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date11 August 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Mr Egon Fice

Member

FREEDOM OF INFORMATION – documents relating to the applicant – documents relating to decisions to initiate prosecution – request refused as documents do not exist – all reasonable steps taken to locate documents

Administrative Appeals Tribunal Act 1975 s 42B

Freedom of Information Act 1982 ss 11, 24A, 54, 55

Re Maksimovic and Commonwealth Director of Public Prosecutions [2007] AATA 1993

REASONS FOR DECISION

11 August 2008 Mr Egon Fice, Member      

1.      Mr Dejan Maksimovic made a request under the Freedom of Information Act 1982 (FOI Act) to the Director of Public Prosecutions (DPP) for access to any document and statement of reasons for all decisions to initiate prosecutions against [him]. The DPP responded that there were no documents or statements of reasons as requested by Mr Maksimovic. He then requested a review of that decision. The DPP responded that no documents or statements of reasons for decisions to initiate prosecution against him were held by the DPP because his criminal prosecution commenced as a result of his arrest by members of the Australian Federal Police (AFP). Dissatisfied with the DPP’s response, Mr Maksimovic applied to the Tribunal for a review of the decision refusing to grant him documents in accordance with his request pursuant to s 55 of the FOI Act.

2.      The only issue before me is whether the DPP’s decision to refuse Mr Maksimovic’s request on the grounds that the documents could not be found or did not exist was correct.

BACKGROUND

3.      On 1 March 2005 a customs officer with the Australian Customs Service, while performing X-ray duties in the mail screening process, selected a parcel addressed to a Mr S Weatherhead at an address in Victoria.  The parcel was sent from Costa Rica in Central America. Upon examination by customs, the parcel was discovered to contain a quantity of white powder in a compressed block form.  This white powder was later identified as cocaine.  The parcel was secured by customs officers and handed to the AFP.

4.      The AFP deconstructed the package and substituted an inert white powder for the cocaine.  They then arranged for a controlled delivery of the reconstructed parcel to the addressee.  Mr Weatherhead was an acquaintance of Mr Maksimovic and lived only a short distance from his home.  After taking delivery of the package, Mr Weatherhead phoned Mr Maksimovic and arranged to meet with him.  Apparently Mr Maksimovic had telephoned Mr Weatherhead on the evening before the parcel was delivered enquiring about a package which he was expecting to be delivered to Mr Weatherhead.  The AFP executed a search warrant at Mr Weatherhead’s premises and Mr Weatherhead explained that the parcel was intended for Mr Maksimovic.  At the arranged meeting, the AFP arrested Mr Maksimovic. Mr Maksimovic was charged with importing a prohibited substance into Australia and attempting to possess those goods.

5.      Mr Maksimovic was tried in the County Court between August and September 2006, and found guilty on both counts.  In November 2006 he was sentenced to a total of seven years imprisonment with a non parole period of four years.  Mr Maksimovic filed an appeal against his conviction.  The appeal was dismissed on all grounds.

6.      On 2 July 2007 Mr Maksimovic wrote to the DPP requesting:

Any document and statement of reasons for all decisions to initiate prosecutions against the above mentioned.

7.      DPP responded on 9 July 2007 stating:

As this matter commenced as a result of your arrest by members of the Australian Federal Police, there are no documents or statement of reasons for decisions to initiate prosecution against you.

8.      Dissatisfied with DPP’s response, Mr Maksimovic again wrote to the DPP requesting a review of the decision made on 9 July 2007.

9.      Following an internal review by the DPP, Mr Maksimovic was informed by letter dated 10 August 2007 that:

My decision is that the CDPP does not hold any documents falling within your request. I have come to this conclusion following my searching the relevant material. I note that Melbourne Office indicated to you that your prosecution was initiated as a result of your arrest by the Australian Federal Police.

10.     On 20 August 2007 Mr Maksimovic applied to the Tribunal for a review of the DPP’s decision.

11. On 17 September 2007 the DPP applied for orders dismissing Mr Maksimovic’s application on two grounds: first, the application did not disclose any basis on which the Tribunal could exercise jurisdiction; and secondly, the application was untenable and manifestly groundless and accordingly frivolous pursuant to s 42B of the Administrative Appeals Tribunal Act 1975.

12. On hearing the DPP’s application on 20 November 2007, Deputy President S A Forgie found that the DPP should be taken to have made a decision refusing Mr Maksimovic’s request for access to documents and to have made that decision under s 24A of the FOI Act. The Deputy President held, therefore, that the decision was reviewable (Re Maksimovic and Commonwealth Director of Public Prosecutions [2007] AATA 1993).

LEGISLATIVE SCHEME

13. The right to access documents held by a government agency is contained in s 11 of the FOI Act which relevantly provides:

1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)a document of an agency, other than an exempt document; or

(b)an official document of a Minister, other than an exempt document.

14. Where the government agency makes a decision refusing to grant access to the documents requested, the person requesting those documents may seek an internal review pursuant to s 54 of the FOI Act. Section 54, in so far as it is relevant, provides:

(1)Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:

(a)a decision refusing to grant access to a document in accordance with a request; or

…

15. Where a person is dissatisfied with the decision on internal review, an application may be made to the Administrative Appeals Tribunal under s 55 of the FOI Act for review of a decision refusing to grant access to a document in accordance with a request.

16. Under Part III of the FOI Act, which deals with access to documents, is s 24A which provides:

An agency or Minister may refuse a request for access to a document if:

(a)all reasonable steps have been taken to find the document; and

(b)the agency or Minister is satisfied that the document:

(i)is in the agency’s or Minister’s possession but cannot be found; or

(ii)does not exist.

CONSIDERATION

17.     This application turns on the evidence provided by the DPP regarding the steps that have been taken to find the requested documents, and whether, as a result of its enquiries, the DPP is satisfied that the documents requested do not exist.

18.     Ms Abigail Burchill, the FOI Officer for the Melbourne office of the DPP, provided affidavit evidence to the Tribunal and was cross-examined by Mr Maksimovic.  According to Ms Burchill, the decision to initiate prosecution against Mr Maksimovic was made by the AFP.  In fact, the DPP did not become involved until after the committal proceeding when it was asked to formulate an indictment against Mr Maksimovic.  The indictment was filed in the County Court by the DPP on 23 November 2005.  Prior to the indictment being filed, the AFP had arrested Mr Maksimovic in March 2005 and a filing hearing was held on 4 March 2005.  A committal hearing was held on 2 August 2005 and the informant in respect of that proceeding was an AFP officer.  It was only after Mr Maksimovic was committed for trial that the DPP took over the role in the name of the AFP informant.

19.     Mr Maksimovic disputed this and relied on the prosecution policy guidelines prepared by the DPP.  Mr Maksimovic pointed to paragraph 2.2 of the guidelines which states:

2.2      the decision whether or not to prosecute is the most important step in the prosecution process. In every case great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice system.

20.     However, Mr Maksimovic did not refer to paragraph 1.3 of the guidelines which, in my view, clearly supports what Ms Burchill said in evidence about the fact that not all prosecutions are initiated by the DPP.  Paragraph 1.3 states:

1.3      the Act has also ensured that there will be a separation of the investigative and prosecutorial functions in the Commonwealth criminal justice system. Once a prosecution has been commenced and referred to the DPP, the decision whether to proceed with that prosecution is made by the DPP independently of those who are responsible for the investigation.

21.     In my view, that reflects precisely what DPP did in this case.  The AFP initiated prosecution, having Mr Maksimovic charged with the offences I have described above.  The AFP commenced prosecution by filing the charges with the Magistrates’ Court at Melbourne on 4 March 2005.  The DPP did not become involved in this matter until November 2005 when it filed an indictment on behalf of the Commonwealth.

22.     Upon the DPP receiving Mr Maksimovic’s request for documents under the FOI Act, Ms Burchill conducted searches.  Ms Burchill said that she first took steps to isolate all the potential sources of information relating to Mr Maksimovic.  She made extensive enquiries with Ms Jennifer Bryant, the case officer responsible for Mr Maksimovic’s prosecution.  She made extensive searches on the DPP’s computer network to identity all files and documents stored electronically.

23.     After completing that process, she identified that the Melbourne office and the head office, located in Canberra, held files in relation to Mr Maksimovic.  She made enquiries with the head office in Canberra and was told that the documents held there related only to mutual assistance requests and requests made under the FOI Act by Mr Maksimovic.  It did not hold any documents relating to his prosecution.  Ms Burchill extensively searched the applicant’s file including:

(a)the paper file held by the original case officer;

(b)the electronic file on the DPP’s computer network;

(c)notes of the in-house counsel who was initially briefed to appear at the committal hearing who, as it turned out, was unable to appear at that hearing and instead a barrister from the Victorian Bar was briefed; and

(d)the electronic file of the documents that the in-house counsel made in the matter.

24.     After completing her searches, Ms Burchill confirmed with the case officer that she had not missed any document.  As a consequence of those searches, Ms Burchill arrived at the conclusion that the documents requested by Mr Maksimovic did not exist.  I accept the evidence of Ms Burchill.  Accordingly, I am satisfied that the documents requested by Mr Maksimovic do not exist.

CONCLUSION

25.     The DPP may refuse a request for access to a document under the FOI Act where all reasonable steps have been taken to find the document and the DPP is satisfied that the document or documents do not exist.  I am satisfied in this matter that the DPP took all reasonable steps to find the document and, as a consequence of its enquiries, satisfied itself that the documents requested by Mr Maksimovic do not exist.

26.     Therefore, I find that the DPP’s refusal to provide documents requested by Mr Maksimovic was correct and must be affirmed.

DECISION

27.      The Tribunal affirms the decision under review.

I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision herein of Mr Egon Fice, Member

(sgd) Mara Putnis

Clerk

Date of Hearing  7 April 2008
Date of Decision  11 August 2008
Advocate for the Applicant          self-represented
Counsel for the Respondent        Mr R. Gipp
Solicitor for the Respondent        Ms T. Campbell