Murdoch v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 196

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Murdoch v Commissioner of Police, NSW Police Force [2025] NSWCATAD 196

Hearing dates:

3 July 2025

Date of orders:

05 August 2025

Decision date:

05 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Hennessy ADCJ, Deputy President

Decision:

The decision of the Commissioner of Police, NSW Police Force to refuse to deal with Mr Murdoch’s application is affirmed.

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information — where respondent refused to deal with application — whether there are “no reasonable grounds for believing that the agency would make a different decision” — meaning of “excluded information”

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Criminal Procedure Act 1986 (NSW)

Director of Public Prosecutions Act 1986 (NSW)

Freedom of Information Act 1982 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Interpretation Act 1987 (NSW)

Cases Cited:

Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185

Betzis v Commissioner of Police [2020] NSWCATAD 71

Commissioner of Police v Danis [2017] NSWCATAP 7

DF v Director-General, Attorney General's Department [2002] NSWADT 164

EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94

FZS v Commissioner of Police, NSW Police Force [2024] NSWCATAD 88

Jeray v Information and Privacy Commissioner [2024] NSWCATAP 239

Klaric v Commissioner of Police [2020] NSWCATAP 153

Miller v Director of Public Prosecutions [2012] NSWADT 38

Category:

Principal judgment

Parties:

Michael Murdoch (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Dr C Harrington (agent for Applicant)
Crown Solicitor (Respondent)

File Number(s):

2025/00014249

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. In 1987 Michael Murdoch and four co-offenders were tried and convicted of the abduction, sexual assault and murder of Anita Cobby. They are each serving a life sentence with no possibility of parole. Mr Murdoch continues to maintain that he has been wrongfully convicted on evidence manufactured by detectives and wishes to challenge both his conviction and the sentence imposed.

2. In 2024, Mr Murdoch applied to the Commissioner of Police, NSW Police Force (the Commissioner) under the Government Information (Public Access) Act2009 (NSW) (GIPA Act) for access to the following information:

“1. Copies of the two records of interview of Michael Murdoch conducted on Friday 21 February 1986 and Monday 24 February 1986.

2. Copy of the audio recording, (cassette m.f.i 9 or Exhibit 000 in the trial) and its transcript, that contains the conversation between Miss X and Mr Murdoch only.

3. Copies of police statements and notebooks regarding the investigation of Mr Michael Murdoch, of the following police officers:

Detectives Kennedy and Rosetta, Sgts/Constables Hamilton, Rynne and Dundas.

5. Copy of the “Chronology of events”, as submitted to the Court.

6. Copies of all witness statements.”

3. The Commissioner told Mr Murdoch that the following information was held in electronic – PDF format at the Blacktown Police Area Command:

“Tab 1: GIPA instruction sheet 14 February 2023 (3 pages)

Tab 2: Charge sheets – Gary Steven Murphy, Michael Patrick Murphy, Leslie Murphy, John Raymond Travers and Michael Murdoch. Date: 23 June 1986 (5 pages).

Tab 3: Transcript of recorded interview between Detective Sergeant Kennedy and Michael James Murdoch taken at the Blacktown Police station on Friday 21 February 1986 (6 pages).

Tab 4: Statement of Detective Sergeant Graham Rosetta dated 28 February 1986 (12 pages).

Tab 5: Transcript of recorded conversation between Michael Murdoch, Det Sgt Kennedy and Det Sen/Const Hamilton dated 24 February 1986 (2 pages).

Tab 6: Transcript of record of interview between Detective Sergeant Kennedy and Michael James Murdoch taken at the Blacktown Police Station on Monday 24 February 1986 (11 pages).

Tab 7: Statement of Detective Sergeant Kennedy dated 29 May 1986 (15 pages).”

4. The Commissioner gave this list to Mr Murdoch, but not the documents themselves. The Commissioner gave the documents to the Tribunal on a confidential basis.

5. The information in tabs 2, 3, 4, 5, 6 and 7 is also held by the office of the Director of Public Prosecutions (office of the DPP). That information is in the brief of evidence that was served on Mr Murdoch at the time he was prosecuted in 1987. Mr Murdoch had that information but says he gave the physical documents to a lawyer sometime between 2006 and 2009. His attempts to locate that person and retrieve the documents have been unsuccessful. That is why he has applied for the information under the GIPA Act.

6. Relying on s 60(1)(b) of the GIPA Act, the Commissioner refused to deal with Mr Murdoch’s application.

60   Decision to refuse to deal with application

(1)  An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)—

…

(b)  the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application …

7. Mr Murdoch applied to the Tribunal for an administrative review of the Commissioner’s “refuse to deal” decision.

8. The Commissioner’s decision in response to the previous application was that the requested information was “excluded information” because it relates to the prosecuting functions of the office of the DPP. There is a conclusive presumption that there is an overriding public interest against disclosure of such information unless the office of the DPP consents to disclosing the information. The office of the DPP did not consent. The Tribunal has no power to review that decision. I note that the office of the DPP has not given a reason for refusing to consent to the disclosure of excluded information other than saying that it is excluded information.

9. The combined effect of the Commissioner’s and the office of the DPP’s decisions is that Mr Murdoch has been refused access to information which the office of the DPP gave him in 1987. The Commissioner described that outcome as “curious”. Mr Murdoch considers it to be unfair.

10. The Tribunal’s guiding principle is to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 36(1). The Tribunal must seek to give effect to that principle. I have decided to affirm the Commissioner’s decision not to deal with the application. The Commissioner has already decided a previous application for substantially the same information and there are no reasonable grounds for believing that the Commissioner would make a different decision. Even if that result is “curious” or “unfair”, the Tribunal must determine and apply its understanding of the applicable law. If there is an anomaly or injustice, that is a matter for the legislature to address.

Tribunal’s power to review the Commissioner’s “refuse to deal” decision

11. A person who is aggrieved by a decision to refuse to deal with an access application may apply to the Tribunal for an administrative review of that decision: GIPA Act, s 80(c) and s 100(1). The review is conducted in accordance with the provisions of both the GIPA Act and the Administrative Decisions Review Act1997 (NSW) (ADR Act).

12. In determining an application for administrative review the Tribunal is to decide what the “correct and preferable” decision is having regard to any relevant factual material and any applicable law: ADR Act, s 63(1). The burden of establishing that the decision is justified lies on the Commissioner: GIPA Act, s 105(1).

13. The power to refuse to deal with an application in s 60(1)(d) of the GIPA Act is “clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests”. One aim is the “avoidance of wasteful use of administrative resources” where an applicant has already applied for the same or substantially the same information previously: Commissioner of Police v Danis [2017] NSWCATAP 7 at [43].

14. In Klaric v Commissioner of Police [2020] NSWCATAP 153 at [31]-[32] the Appeal Panel held that when reviewing a decision under s 60(1)(b) of the GIPA Act, the Tribunal is not required to assess the merits of the previous decision. The Appeal Panel expressed the view that “[i]t would have been an error for the Tribunal to embark on a re-hearing of the merits of Mr Klaric’s previous applications.” However, in this case, Mr Murdoch has provided detailed submissions as to why the Commissioner’s previous decision was wrong and the Commissioner has defended the previous decision that access cannot be given to the information because it is “excluded information”. In those circumstances, to determine whether “there are no reasonable grounds for believing that the agency would make a different decision” I need to assess the merits of the grounds on which the Commissioner made the previous decision. That does not involve determining the merits of the previous decision.

Did Mr Murdoch make a previous application for the same or substantially the same information (Yes)

15. In a previous application in 2023 Mr Murdoch applied to the Commissioner for access to the following information:

“1. Any and all documents, including running sheets and police diary notes pertaining to Detectives Sgt Rosetta, Kennedy, Gaspert, Raul, and Sgt Hamilton, Lynne and Dundas, and pertaining to the investigation into Michael James Murdoch for the abduction, rape and murder of Anita Cobby.

2. Any and all audio and/or video files and footage in which Michael Murdoch is a participant pertaining to the investigation of Michael James Murdoch for the abduction, rape and murder of Anita Cobby.

3. Any and all documents comprising a separate police file for Michael Murdoch pertaining to the investigation into Michael James Murdoch for the abduction, rape and murder of Anita Cobby.

4. Any and all documents, including running sheets, police diary notes and records of interview pertaining to the interviews of Michael James Murdoch, including on 21 February 1986 and 24 February 1986, pertaining to the investigation into the abduction, rape and murder of Antia Cobby.”

16. A comparison of the information requested in the 2023 application with the information requested in the 2024 application (see [2] above) demonstrates that the information at points 1, 2 and 3 of the 2024 application was also requested in the previous application. The information in points 4 and 5 (the chronology of events as submitted to the Court and copies of all witness statements) was not expressly requested in the previous application. Nonetheless, I am satisfied that the information requested in the 2024 application is “substantially the same” as the information requested in the previous application.

Are there “no reasonable grounds for believing that the agency would make a different decision”? (Yes)

The previous decision and its legislative basis

17. As outlined above, the Commissioner’s previous decision was that the information was “excluded information” because it relates to the prosecuting functions of the office of the DPP and there is a conclusive presumption that there is an overriding public interest against disclosure of such information unless the office of the DPP consents to disclosing the information.

18. A person who applies for government information has a legally enforceable right to be provided with access to the information unless there is an “overriding public interest against disclosure”: GIPA Act, s 9. It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1: GIPA Act, s 14(1). Under Schedule 1, clause 6:

6   Excluded information

(1)  It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.

19. Schedule 4, clause 1 defines “excluded information of an agency specified in Schedule 2” to mean “information that relates to any function specified in that Schedule in relation to the agency”. Schedule 2 to the GIPA Act is headed “Excluded information of particular agencies”. Clause 1 is headed “Judicial and prosecutorial information”:

1   Judicial and prosecutorial information

A court—judicial functions.

The office of Director of Public Prosecutions—prosecuting functions.

20. The terms “function” and “exercise a function” are defined in Sch 4, cl 1 as follows:

function includes a power, authority or duty.

exercise a function includes perform a duty.

21. In summary, information that relates to the prosecuting functions of the office of the DPP is excluded information and it is to be conclusively presumed that there is an overriding public interest against disclosure of such information by the Commissioner unless the office of the DPP has consented.

Does the information relate to the prosecuting function of the office of the DPP? (Yes)

22. The “prosecuting function” of the office of the DPP is described in s 7(1)(a) of the Director of Public Prosecutions Act 1986 (NSW):

(a)  to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court …

23. The prosecutorial function in this case is instituting and conducting the prosecution of Mr Murdoch.

24. In Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 at [75]-[77] the Appeal Panel provided the following analysis of the term “relates to” in a similar legislative context:

“75 The term ‘relates to’ was considered by the New South Wales Court of Appeal in Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390. Campbell JA reviewed the relevant authorities at [44] and following. His Honour referred (at [45]) to Taylor J’s judgment in Tooheys Ltd v Cmr of Stamp Duties (NSW) (1961) 105 CLR 602 at 620, where his Honour said:

the expression ‘relating to’ is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified.

76 His Honour also referred (at [46]) to the judgment of Beaumont and Lehane JJ in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285, where their Honours referred to Taylor J’s judgment in Tooheys then continued:

Other decisions of the High Court have acknowledged that, ordinarily, ‘relates to’ is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice…

77 We consider that the term ‘relates to,’ as it is used in the definition of “excluded information’ in Sch 4 to the GIPA Act, has a broad meaning. Notwithstanding Parliament’s intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to ‘open government information to the public by … providing that access to government information is restricted only when there is an overriding public interest against disclosure’ (GIPA Act, s 3(1)(c)). The use of the term ‘relates to’ indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG’s complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2).”

25. In Jeray v Information and Privacy Commissioner [2024] NSWCATAP 239 the Appeal Panel added that [143] that:

“Ultimately, the question in each case is the extent to which the information in issue has a connection with the specified function: Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [16].”

26. In the context of the prosecutorial functions under the GIPA Act, the Tribunal has held that the information relates to that function if the information comprises advice to or from the office of the DPP or internal memoranda: DF v Director-General, Attorney General's Department [2002] NSWADT 164 at [23]-[24]; Miller v Director of Public Prosecutions [2012] NSWADT 38 at [30].

27. In Betzis v Commissioner of Police [2020] NSWCATAD 71 at [36] the Tribunal concluded that information in a Coronial Brief prepared following a police investigation is “excluded information”. The Coroner had decided to dispense with an inquest into the father’s death. The Tribunal held that the Coronial Brief was “integral to the Coroner’s decision-making process” and therefore “relates to” the judicial functions of the Coroner. The Tribunal adopted similar reasoning in Sawari v Commissioner of Police, NSW Police Force [2023] NSWCATAD 291 at [60] when concluding that information forming part of a brief of evidence held by the office of the DPP was “excluded information”.

28. Based on these authorities, for the information to relate to the function, there must be some degree of connection or relationship between the information and the function. The object in s 3(1) of the GIPA Act to “open government information to the public” is qualified. Access to government information is restricted when there is an overriding public interest against disclosure: GIPA Act, s 3(1)(c). For the reasons given by the Appeal Panel in Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 at [77], I agree that the term “relates to” has a broad meaning. If there is a direct and substantial relationship between the information and the function, the information will “relate to” the prosecuting function. If the relationship is indirect or less substantial, there may be some room for argument but I do not need to determine that issue.

29. In this case there is a direct and substantial relationship between the information and the function of instituting and conducting prosecutions. The brief of evidence is one of the mechanisms by which prosecutors comply with the obligations for disclosure of evidence to the accused in the prosecution of indictable offences under the Criminal Procedure Act1986 (NSW). The brief of evidence contains the evidence on which the prosecution is based.

30. The fact that the information in the brief of evidence was generated by the NSW Police Force and not the office of the DPP does not change its character. It is irrelevant whether there was any involvement of the office of the DPP in producing the information: Betzis v Commissioner of Police [2020] NSWCATAD 71 at [36].

31. I also reject Mr Murdoch’s submission that the information must be excluded information in the hands of the Commissioner. Despite what was said by the Tribunal in EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94 at [32]-[33], there is an overriding public interest against disclosure of information held by an agency even if that information is not the excluded information of that agency. Excluded information includes information held by one agency (in this case the Commissioner) that is the excluded information of another agency (in this case the office of the DPP). The Tribunal agreed with that proposition in FZS v Commissioner of Police, NSW Police Force [2024] NSWCATAD 88 at [153]-[155].

32. Mr Murdoch submits that the Tribunal should consider extrinsic material because the ordinary meaning of the legislative provisions leads to “a result that is manifestly absurd or is unreasonable”: Interpretation Act 1987 (NSW), s 34(1)(b)(ii). I have not been able to identify any extrinsic material that is capable of assisting in the ascertainment of the meaning of any of the relevant provisions of the GIPA Act.

26. Mr Murdoch also relied on an assertion that there are no comparable exemptions under the Freedom of Information Act 1982 (Cth). However, even if that is the case, the provisions of the federal legislation do not affect the way in which the NSW legislation should be interpreted.

27. Finally, Mr Murdoch provided evidence of the extent to which the information was already in the public domain in various books and articles. That assertion, even if true, does not change the character of the information. In Betzis v Commissioner of Police [2020] NSWCATAD 71 at [30], the Tribunal held that:

“Government information can be sought and obtained through a variety of means. The fact that information may have already been released to a person in other circumstances does not change the character of the information as ‘excluded information’ under the GIPA Act. The provisions which apply to the characterisation of the relevant information are to be found solely within the GIPA Act. The issues for determination concern whether or not under that Act the information is ‘excluded information’.”

35. Mr Murdoch made a previous application for the same or substantially the same information and there are no reasonable grounds for believing that the Commissioner would make a different decision on Mr Murdoch’s 2024 application from the decision she made on the previous application. In those circumstances, the correct decision is to affirm the Commissioner’s decision to refuse to deal with Mr Murdoch’s application.

Orders

1. The decision of the Commissioner of Police, NSW Police Force to refuse to deal with Mr Murdoch’s application is affirmed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 05 August 2025