Patsalis v Commissioner of Police, New South Wales Police Service

[2003] NSWADT 213

CITATION:	Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213
DIVISION:	General Division
PARTIES:	APPLICANT Michael Patsalis RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	033041
HEARING DATES:	18/08/2003
SUBMISSIONS CLOSED:	08/18/2003
DATE OF DECISION:	09/10/2003
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - operation of agencies - Freedom of Information Act - access to documents - operation of agencies
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	B v Commissioner of Police [2000] NSWADT 168 Beesley v Commissioner of Police [2000] NSWADT 52 Patsalis v Commissioner of Police, New South Wales Police [2003] NSWADT 171 R v Reid 1999 NSW Court of Criminal Appeal 258 Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	1. Application dismissed in respect of items 1 and 2 of the request.; 2. Application withdrawn in respect of items 9 and 10 of the request.; 3. Application adjourned to a date to be fixed in relation to items 3, 4, 5, 6, 7 and 8 of the request, in accordance with directions as revised on 18 August 2003.

REASONS FOR DECISION

1 This decision deals with the issue of sufficiency of search.

2 The applicant (Mr Patsalis) made a request dated on or about 11 September 2002 under the Freedom of Information Act 1989 (FOI Act) for documents held by the respondent agency, the Commissioner of Police, NSW Police Service. The request has been the subject of an internal review determination made 11 February 2003. A substantial amount of material had been released in relation to the original request. But there were some refusals, and in some instances the agency asserted that the scope of the request was too voluminous to handle and would involve an unreasonable diversion of resources (s25(a1)).

3 Mr Patsalis has applied to the Tribunal for review of that determination.

4 The request sought ten categories of documents. So far the Tribunal has been dealing with points 1 and 2 of the request. The Tribunal has so far sat at Goulburn to deal with the review application on 12 March 2003, 29 May 2003 and 18 August 2003. A ruling was issued after the hearing on 29 May 2003 setting aside a summons for documents served by Mr Patsalis on the Commissioner: see further Patsalis v Commissioner of Police, New South Wales Police [2003] NSWADT 171.

5 In that decision the Tribunal noted at [2] that:

‘…Mr Patsalis's request has as its context steps being taken by him to make an application to the Supreme Court for an inquiry into his conviction. The request sought numerous documents connected or said to be connected with the police investigation of the death of Klaus Ludwig and the subsequent trial where Mr Patsalis (and an accomplice) were convicted of his murder.’
6 In the original request, Mr Patsalis had described items 1 and 2 as follows:
‘1. All COPS and NetMail police computer system records for 12 April 1996 in respect of the investigation into the murder of Mr KP Ludwig.

2. All documents evidencing the accessing of the COPS and NetMail police computer system records for Friday 12 April 1996 in respect of the investigation into the murder of Mr KP Ludwig, by any person since that time.’

7 At hearing on 12 March 2003 Mr Patsalis indicated that he did not press for items 1 and 2 in respect of NetMail material. He also indicated that his main concern in respect of items 1 and 2 was to get access to a printout.

8 At hearing on 12 March 2003, after reviewing the ten items of the request the Tribunal gave directions to the agency to file submissions in relation to its claim for exemption of 22 photographs, and the basis for its administrative objections to the request which divided into two categories - (a) unreasonable diversion of resources (relevant to point 5); and (b) inability to locate certain documents, or documents not held by agency (relevant to points 1,2,3 and 7 to 10).

9 Mr Patsalis indicated that his greatest anxiety was to locate the printout document, and that he needed that, he felt, for his Supreme Court application. Accordingly the Tribunal made further directions seeking to bring forward that matter for consideration ahead of the rest of the case.

10 The Tribunal directed the agency to file and serve submissions in relation to its claim that there were no records held by it that fall within items 1 and 2 of the request as revised, including providing material as to any contact with Detective Inspector Jacob (Mr Jacob), who was in charge of the investigation, in relation to any records he might have which were responsive to the request.

11 The item 1 and item 2 issues came on for hearing on 29 May 2003. In an affidavit filed 24 April 2003 Mr Jacob indicated that he could not recall the document that Mr Patsalis was referring to. Mr Jacob was unable to be present at the hearing on 29 May 2003. Therefore it was impossible to conclude the inquiry as it related to items 1 and 2.

12 It was known that Mr Patsalis was trying to obtain a document which he said Mr Jacob had produced at court during the trial but it had not been tendered or admitted into evidence. The Tribunal said in its ruling that day at para [9]:

‘… It has emerged today the document of most concern to Mr Patsalis, which is in respect of items 1 and 2 of the FOI request, is a document which I will call the printout. Mr Patsalis has explained today what the relevance of that printout was to the trial and given us transcript references to more clearly identify that document. It was, he states, the subject of observations by the Crown Prosecutor at a certain point in the trial but it does not appear ever to have been received into evidence. Mr Patsalis's position is that he did see the document at that time. He believes the document is of significance to the application he wishes to make to the Supreme Court for a reopening of his conviction. [It has not been located in response to the FOI request.]’
13 As to items 1 and 2, Mr Waters for the agency said that its position was that it had produced everything. Mr Patsalis then gave references to the transcript as to the document he was seeking (a print out). He referred to Trial, 48th day, Wednesday 15 September 2003, Transcript 2582:52-82; and Transcript 2583:1-40. He said the document was a 3 or 4 page document relating to searches done on RTA database by the Internal Investigation section of the agency dated 12 April 1996.

14 Mr Waters indicated a preparedness to pursue this matter, to see if the document referred to at this part of the evidence was available. The Tribunal gave directions that the agency make inquiries as to the existence and location of the document referred to in the trial Transcript at 2582-2584 and file and serve any statements as to its inquiries; and if located that it make a determination as to whether access is to be granted, and if there is a refusal, the Tribunal ordered that that refusal become part of these proceedings without there being a further application for review.

15 As a result the proceedings on that occasion mainly concentrated on the question of the summons that Mr Patsalis had obtained. The Tribunal set aside the summons: see ruling Patsalis v Commissioner of Police, New South Wales Police [2003] NSWADT 171.

16 The Tribunal also ruled that the request had been satisfied in relation to items 1 and 2 except for the question of the document referred to at 2582-2584 of the Transcript.

17 The Tribunal resumed at Goulburn on 18 August 2003 to hear evidence from Mr Jacob and Acting Senior Sergeant McCarthy (Mr McCarthy), of the Special Crime & Internal Affairs section as to searches undertaken in relation to the printout.

18 At hearing on 18 August 2003 Mr Patsalis again explained what he wanted, saying:

‘It's the printout document which was disclosed to myself by the Crown prosecutor and by Detective Jacob at the trial on the 48th day, being Wednesday, 15 September 1999. The transcript reference pages are 2582 and 2595.

The printout document records information of the police investigation for Friday, 12 April 1996 relating to a number of police inquiries which were made on this day on the New South Wales police database, also called the COPS computer system from the evidence of the police officers at the trial. The computer system was accessed by a number of police officers associated in the investigation of Mr Ludwig's death. That is, for Friday, 12 April 1996.’

(1) Applicant’s Request for Adjournment
19 The applicant applied to have the matter adjourned essentially on the basis that he had been unable to procure legal representation to assist him in conducting his application for review. He referred in the course of his submissions to a case R v Reid 1999 NSW Court of Criminal Appeal 258 which he said laid down relevant principles. The Legal Aid Commission had advised the Tribunal and Mr Patsalis it had declined his application for assistance.

20 The Tribunal rejected the application ruling as follows (some slight revisions):)

‘My understanding at this stage is that the Supreme Court appeal [re summons ruling] may not have been registered though it's possible that that's in the mail. In any event the police have got no knowledge that a formal appeal has been lodged. The two issues that you've raised are not in my view ones that are sufficient to justify an adjournment.
21 As to the absence of legal representation, that unfortunately is a fact of life in this Tribunal for almost all the applicants that appear before us. I would say that in the General Division of the Tribunal, which is where you're appearing at the moment, Mr Patsalis, it's relatively uncommon for applicants to be represented. And whilst they're not in custody in the way you are, they're often people of limited means and sometimes of limited abilities in English and the like, and they do their best to put their cases forward, and the Tribunal has got an obligation under section 73 of the Administrative Decisions Tribunal Act 1997 to do as much as practicable to assist people to understand the issues that they have to address and so on.

22 And equally it is common for those unrepresented applicants to face represented respondents because the respondent to all applications in the General Division of the Tribunal that belong to the reviewable decisions area and similarly in the Revenue Division of the Tribunal and in the Community Services Division of the Tribunal, the respondent invariably is some manifestation of the State of New South Wales, some agency or another.

23 So, today it is the Police Service. Another day it might be the Director-General of the Department of Transport and so on. And all of those bodies are routinely represented either by lawyers from their own agency or from officers of the Crown Solicitor's Office and sometimes barristers. So, it is a normal dynamic in the Tribunal to be faced with an imbalance of representation as between the applicant and the respondent.

24 And maybe in an ideal world it would be different to that but that is the reality. The Legal Aid Commission has in my experience very rarely been involved in matters in the General Division of the Tribunal; and certainly I can not recall a matter in which they have been involved concerning the Freedom of Information Act. But I might be wrong about that.

25 So, whilst I can understand that point of view you are expressing, it is not in my view a ground for adjournment in normal circumstances in the Tribunal. And I might add, Mr Patsalis, that it is clear from the level of detail that you have gone into, your correspondence and your general presentation, that in fact you possess skills in presentation that are greater than many of the unrepresented applicants that we deal with. So, I can not see that there are any reasons on that ground to adjourn the matter.

26 As to the second matter - the question of your appeal to the Supreme Court somehow needing to be disposed of because its outcome if it is favourable to you may prejudice the disposal of the application in respect of categories 1 and 2 today - as to that matter, as I indicated in my comments to you earlier, I can not see any great difficulty. If there is a problem with my ruling on the summons issue and you are entitled to have those summonses issued, then it may well be that, at that point, any decision I make today, if it is negative to you on the FOI application, would be set aside or remitted for further consideration.

27 I cannot see what difficulty you face. It is not a situation where the preliminary ruling somehow governs a hearing that might go on for several days, in which case it might be important to separate off the preliminary ruling and get the appeal point disposed of. This is a relatively small matter that can be dealt with easily today. We are all ready to proceed, so I think we should go ahead and proceed.

28 If you are unhappy with the decision, you have got appeal rights in relation to that decision so, they are my reasons. The application for the adjournment is refused. I have not dealt, in detail, with Ms Paterson's submissions but, obviously, I have, in effect, acknowledged those in what I have already said.’

(2) Sufficiency of Search
29 Ms Paterson for the agency sought to rely on an affidavit of Mr Jacob filed 7 July 2003. Mr Patsalis objected for reasons that were not entirely clear but had to do, as best the Tribunal understood his objection, with a concern that some material in the affidavit if entered into evidence may have some negative effect on his Supreme Court application. The Tribunal decided not to admit the evidence and suggested in the circumstances that Ms Paterson lead evidence from Mr Jacob.

30 He said he was the officer in charge of the overall investigation and as such took on a leading role with liaising with the Crown Prosecutor in relation to the management and presentation of witnesses before the Supreme Court and the management of exhibits produced to the Supreme Court.

31 His evidence was that he copied and forwarded everything to the FOI Unit of the agency that he still held in relation to the trial. The records were uplifted from the Archives at Strawberry Hills. He said that as a result of a conversation with Ms Paterson he specifically reviewed all of the material looking for a document from Internal Affairs or any document relating to this particular matter.

32 He said in reply to a question from Ms Paterson that:

‘I looked through all of the material again as I wasn't sure what I was looking for in the original inquiry, that I may have overlooked it. You brought to my attention that a - there was a reference in a transcript to a Crown Prosecutor indicating that I had some contact with Internal Affairs. I can't recall such a contact, but in light of that additional information that you gave me, I went back to the material with a specific view of focusing my attention on any document that may fit that general description.’
33 He said he could not find any document matching the description he had been given. Mr Jacob said he spoke to his co-officer on the case, Detective Sergeant Jubelin, who could not remember any document of the kind described. He checked his duty book for dates around 15 September. The duty book was made available to the Tribunal. The Tribunal is satisfied that there is nothing in the duty book relevant to the question of the printout. Mr Jacob said that all he could remember was that: ‘I certainly remember speaking to the Crown Prosecutor and Mr Patsalis's legal representative and then later, Mr Patsalis about an issue. I cannot recall what it was that my recollection is it was insignificant. Whatever it is we dealt with it and the trial moved on.’ He said that he had also made inquiries of Internal Affairs but they could not assist.

34 It emerged that despite the very specific detail given by Mr Patsalis at the previous hearing (transcript references etc) this information had not been supplied to Mr Jacob. In fact Mr Jacob had gone to the Crown Prosecutor, Mr Power, to see if he had a copy of the transcript. It was clear at the last hearing that Mr Patsalis had a copy of the transcript. It appears that no attempt was made to obtain it from him. This was not essential as the exact text of the passages from the transcript were read into the record on that day. It would seem that Mr Jacob was not given this material despite its ready availability.

35 This omission must cast doubt on the adequacy of his search.

36 The text has now been formally entered into evidence: see Exhibit C. At the luncheon adjournment Mr Jacob was given the pages from the trial transcript which refer to this document.

The Transcript Extract
37 At page 2583 the Crown Prosecutor at trial before Kirby J of the Supreme Court says:
‘I had had presented to me a list – a printout of certain inquiries from the New South Wales Police Service which relate to the recurring question which took place at various stages on 12 April [sic]. These are records which I understand are not kept by the RTA but are kept by the Police Department and at time when the initial inquiries were made I think the evidence was that they were in fact two separate record keeping systems but it took some time to access the Police Department’s.

HIS HONOUR: I don’t remember there being any reference to a separate system.

CROWN PROSECUTOR: I am in a position to call evidence about that from Detective Jacob and in light of the point made by Mr Patsalis yesterday I again asked Detective Jacob about that point and he has obtained a printout relating to various inquiries which I am quite happy to show Mr Patsalis, but, if Mr Patsalis was seeking for some reason to raise this or tender some document at this stage, I would then be seeking to, on this very minor matter, if necessary, re-open and call Detective Jacob to give evidence about his inquiry.

Just so Mr Patsalis knows that, but in the meantime I am quite content to show Mr Patsalis the printout (shown to Mr Patsalis). If necessary as I say I can call evidence.’

38 Mr Patsalis examined the printout.

39 After a short adjournment the following statement was made to the Court:

‘CROWN PROSECUTOR: I have has some discussion with Mr Patsalis as has Detective Jacob. He has had an opportunity to look at that material which was furnished by Internal Affairs Section of the Police Department. I gather Mr Patsalis doesn’t wish to now proceed with the RTA tender in light of other information that has come to light. I have indicated to him that if he doesn’t proceed with that step obviously I won’t be seeking to reopen the case and allude to any other material available.’
40 Following scrutiny of the document, Mr Jacob said:
‘I've read the document as supplied, pages 2583 and - sorry, 2582, 3 and 4, and it doesn't refresh my memory of a particular document that we're talking about, but certainly I can see that a document was spoken about, the contents of which I'm not able to assist this Tribunal with. But it would appear from my reading that at some point the Crown Prosecutor, Mr Power, had a document probably from Internal Affairs, and that is the document that I believe is referred to in these transcript pages.

HIS HONOUR: Yes.

THE WITNESS: My view of having read this material is that it's probably - the reason it's not with our records is that it's with the DPP, that Mr Power took custody of it and maintained possession of it. That's what I pick up from reading that transcript. Mr Power had it, there was discussion on it. Mr Power and myself have spoken to Mr Patsalis, or it's indicated that we did, and whatever was in those documents resolved whatever concern Mr Patsalis may have had at the time.’

41 As to how Internal Affairs fitted in to the case, Mr Jacob said:

‘THE WITNESS: I think, your Honour, if my interpretations are right, the inquiries were about access to computer records, and normal police such as myself cannot have access to that type of information, and if I'm pulling together this in the correct manner - - -

HIS HONOUR: I see what you're saying.

THE WITNESS: Internal Affairs are the only people that can get access to the people who get access to computers.’

42 Mr McCarthy then gave evidence. He is attached to the unit referred to in the proceedings as Internal Affairs (the formal name being Special Crime and Internal Affairs). His affidavit set out the searches he had undertaken. Again it was affected by the problem that the exact text of the transcript as provided by Mr Patsalis at the previous hearing had not been supplied to him.

43 He made a search of Internal Affairs internal record database to find a reference to Mr Patsalis and found none. As Mr Patsalis objected in cross examination and submissions this misperceived what was required. As best one can understand the material relating to the printout it was a record of police searches on the RTA database on the day the murder investigation commenced. The entries are likely to refer to police and RTA data that was interrogated. It does not necessarily follow that at that stage there would have been any search on the name ‘Patsalis’.

44 Mr McCarthy’s affidavit explained why it was that Internal Affairs had the special authority to undertake RTA searches, which linked back to the problems of corrupt police access identified in the early 1990s. He said in any case the system was designed so that only the police officer’s name was at the relevant time kept. The name he searched against was not kept.

45 Mr McCarthy that the right to search against the subject name was extremely restricted. He said:

‘I conducted two searches. Internal Affairs has its own internal data base for which we record what we can refer to as "jobs" to our intelligence unit. Typically, when a request is received an entry is made in that data base detailing the nature of the inquiry. In this case it would be, "Request for an audit on Mr Patsalis." I searched the data base for the name Patsalis and variations of spelling and it did not return any such record. The second inquiry I conducted was in TRIM. It stands for Tower Record Information Management System. It is the corporate records system used by the New South Wales Police.

THE WITNESS: … I had our records staff, while I was present, conduct a search of TRIM for the name Patsalis and there was no date restriction entered. It did not return any document relating to an audit regarding Mr Patsalis.’

46 He said he was unable to locate a document of the type that Mr Patsalis sought.

47 Mr McCarthy said that if an officer wanted to have the most up to date information about a registration number the best place to go is the RTA database. But often there registration details can be found stored in the COPS system if the car has come to attention in the past, and given rise to a report. Mr McCarthy agreed with the Tribunal that it is quite possible that at the time a single printout was generated, it was given to the prosecution team and may have, as Mr Jacob, suggested ended up with the Crown Prosecutor or more likely the Office of Director of Public Prosecutions.

48 Mr Patsalis said in further explanation of what he was seeking:

‘So the records that I'm after is which police officer accessed the system on Friday, 12 April 1996 in respect of their duties that they were performing on that day. That is, investigating a murder.’
49 Mr McCarthy said that what he did was to check whether Mr Patsalis had been the subject of a request in or about September 1999. The logic, as the Tribunal understood the matter, was that this was a way of seeing whether a printout was generated. Mr McCarthy did not go back to April 1996 to conduct a search.
Approach
50 Sufficiency of search challenges are difficult ones for applicants to establish. The agency will ordinarily put on evidence from relevant personnel. Here it was the officer in charge of the investigations, and an officer with authority to search Internal Affairs records. The applicant does not have inside access to the records system, and is left as occurred here to ask questions that might demonstrate some weakness in what was done. Here one weakness was shown, that is that the officers did not have the details he gave on 29 May 2003 when they undertook their further inquiries.

51 Ultimately the question is:

‘Whether the conclusion [the agency] reached, that the agency did not hold any documents relating to the applicant other than the ones released … was sound. If so, it would be open to the Tribunal to conclude that there were no other documents held by the agency in relation to the request, that the request had been met and consequently there was no basis for the application for review’: B v Commissioner of Police [2000] NSWADT 168 at [13].
52 To similar effect, the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464:
‘18. It is my view that in an external review application involving sufficiency of search issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested.

19. In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer:

(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined … the FOI Act);

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.

22. With regard to the second question set out in paragraph 19 above, I agree with the view expressed by the Commonwealth Administrative Appeals Tribunal, in its decision on a sufficiency of search case in Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 at p.167, that:

"the adequacy of the search effort made to locate the document should be judged by having regard to what was reasonable in the circumstances.”’

53 In Beesley v Commissioner of Police [2000] NSWADT 52 at [19] the Tribunal said:
‘All the Tribunal can do is assess the evidence in each case to decide the strength of the applicant’s suspicions and the adequacy of the agency’s endeavours to satisfy them. If left unsatisfied by the agency’s evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches or the reference of the cases to the Ombudsman.’
Submissions
54 I reject Ms Paterson’s submission in closing that: ‘The agency has, up until today, I might note, no clear description from the transcript itself, no clear idea that the document was ever actually tendered in court, where the document had come from, and can I say today, still has no evidence of whether that document was tendered to the court, where that document is now.’ This is not accurate. The relevant extract from the transcript was provided on the record at the hearing on 29 May 2003. The Tribunal was left on that occasion with the understanding that Mr Waters of counsel would ensure that this information was given to the agency for further searches. That did not occur.

55 Ms Paterson submitted that the agency had looked in all reasonable locations; and that the searches have been careful and methodical and thoughtful as to the possible locations.

56 Mr Patsalis submitted that he went to great pains to spell out for the agency what it was - and which document it was – that he sought access to. I agree with Mr Patsalis.

57 He questioned the appropriateness of Mr McCarthy conducting an audit search against his name around the dates of 15 September 1999 as a way of answering his inquiry. I do not regard this as inappropriate. He was trying to find whether any document was generated within Internal Affairs at that time that might be connected with the trial of Mr Patsalis.

58 Mr Patsalis submitted that ‘in essence the agency has not conducted a reasonable search because Detective McCarthy who, in essence, conducted the searches, went about them the wrong way’. Mr Patsalis said:

‘What I'm after, and I've said it again and again is, it's the police officers not the private individual who I require the order to be made upon who gained access to the systems on the 12th, Friday, April 1996 and as yet I have not seen a skerrick of evidence produced by the agency that any such searches were made in respect of Friday 12 April 1996 in respect of the police officers, not any private individuals. And that is the information which I seek, your Honour.’
Assessment
59 Here the situation is one where it is clear beyond doubt that a document of the kind that Mr Patsalis seeks was produced by the agency to the prosecution team. While I have some reservations arising from the fact that Mr Jacob and Mr McCarthy did their searching without the exact description of the document Mr Patsalis had given on 29 May 2003 at the previous hearing, my conclusion is that it would be a waste of time to ask the agency to do any more searches.

60 Mr Jacob gave an explanation as to why he still could not recall the document after reading the transcript. I am satisfied that he gave up everything in his possession, or to which he had access through Archives, to the FOI Unit. Mr McCarthy explained the nature of the searches that he did. I do not think that he would get any different a result if he went back again. His evidence is that the generation of the print out would not itself be a recorded transaction.

61 Mr Patsalis wants the search activity of 12 April 1996 checked, and as I see it some kind of replica of the printout created. This strictly is not the position required by FOI law. In any case my understanding of Mr McCarthy’s evidence was that this was not possible to achieve. The request was for the document given to the Crown Prosecutor at trial on 15 September 1999 and shown to Mr Patsalis. Mr McCarthy did in my view do the right thing which was to use tracing methods within Internal Affairs that might reveal the document generated around 15 September 1996.

62 Mr Jacob has, I consider, been fully co-operative with the request. There is little or no likelihood that he would now be able to find the document. He still has no specific recollection of it.

63 The sufficiency of search standard is simply whether ‘reasonable’ searches have occurred. In this case I am satisfied that they were reasonable.

64 I should indicate I do regard it as odd that a document that was on the edge of being placed in evidence in a serious trial is not able to be tracked down. Mr Jacob’s explanation is, for me, the most likely – that the document passed to the prosecution lawyers and it is more likely to be with the Director of Public Prosecutions.

Further Conduct of Matter
65 Mr Patsalis does not continue to press items 9 and 10 of the request. Accordingly the case will now proceed to deal with items 3, 4, 5, 6, 7 and 8.
Orders

1. Application dismissed in respect of items 1 and 2 of the request.

2. Application withdrawn in respect of items 9 and 10 of the request.

3. Application adjourned to a date to be fixed in relation to items 3, 4, 5, 6, 7 and 8 of the request, in accordance with directions as revised on 18 August 2003.