Saleam v Commisioner of Police, New South Wales Police Service

[2002] NSWADTAP 31

Appeal Panel

CITATION:	Saleam -v- Commisioner of Police, New South Wales Police Service [2002] NSWADTAP 31
PARTIES:	APPELLANT James Saleam RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	029017
HEARING DATES:	05/08/02
SUBMISSIONS CLOSED:	08/05/2002
DATE OF DECISION:	08/30/2002
DECISION UNDER APPEAL:	Saleam -v- Commisioner of Police, New South Wales Police Service [2002] NSW ADT 40 revised-10/04/2002
BEFORE:	Hennessy N (Deputy President); Britton A - Judicial Member; Bolt M - Member
CATCHWORDS:	no question of law identified
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	013004
DATE OF DECISION UNDER APPEAL:	03/25/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Freedom of Information Act 1989
CASES CITED:	Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 R v Abdullah [1999] NSWCCA 188
REPRESENTATION:	APPELLANT In person RESPONDENT M Tzannes, barrister
ORDERS:	Appeal dismissed.

Introduction

1 This is an appeal against a decision made by the Tribunal affirming the decision of the Commissioner of Police, NSW Police Service, (the agency) not to grant Mr Saleam access to documents held by the former Special Branch of the Police Service. Mr Saleam applied under the Freedom of Information Act 1989 ("the FOI Act") for documents in his own file and in other files which related to him during the period from about 1972 to 1997, when Special Branch was disbanded.

Jurisdiction

2 The Appeal Panel has jurisdiction to hear this matter under s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113(2) allows a party to appeal to an Appeal Panel of the Tribunal "on any question of law." With leave, the appeal may extend to a review of the merits of the appealable decision. Mr Saleam applied to the Tribunal for the appeal to be extended to a review of the merits of the Tribunal's decision. That application is dealt with at the end of these reasons.

3 The agency submitted that, as a threshold question, the Appeal Panel must be satisfied that the appeal raises questions of law before giving leave to extend the appeal to a review of the merits (or factual findings) of the decision. The approach that the Tribunal has consistently adopted in relation to this issue was outlined by the Appeal Panel in Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8. The Appeal Panel said, at [4] that:

It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established.
4 We have adopted this approach in the present case.

Motivation for FOI application

5 Mr Saleam told the Appeal Panel that his primary motivation in seeking access to the disputed documents is to have a number of past convictions overturned through an application to the Supreme Court under s 474D and E of the Crimes Act 1900. Section 474D of the Crimes Act 1900 states that:

(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

6 Section 474E(2) and (3) of the Crimes Act 1900 states that:
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a) it appears that the matter:

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the repealed provisions, and


(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (Emphasis added.)
7 In relation to s 474E(3)(b) Mr Saleam intended to use the documents he had requested pursuant to the FOI Act to support his submission to the Supreme Court that there are “special facts or special circumstances that justify the taking of further action.”

Tribunal’s decision

8 The Tribunal affirmed the agency’s decision not to release any of the documents requested by Mr Saleam. The Tribunal concluded that all of the disputed documents are exempt documents pursuant to Clause 4(3)(b) and/or Clause 4(1)(b) of Schedule 1 to the FOI Act. Clause 4(3)(b) makes documents created by the “former Special Branch of the Police Service” exempt under the FOI Act. Section 4(1)(b) states that:

A document is an exempt document if it contains matter the disclosure of which could reasonably be expected to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained.
Grounds of Appeal

9 Mr Saleam had difficulty identifying any question of law, much less any error of law, as the basis for his appeal. He appeared to be suggesting that the Appeal Panel re-hear the matter in its entirety. Many of the points he made related to the veracity of evidence given by witnesses for the agency and the genuineness of documents.

10 One of Mr Saleam’s concerns was that the evidence given in camera by the agency’s witness was not reliable. Ms Tzannes, representing the agency, pointed out that Mr Saleam had not made submissions to the Tribunal that any witness was biased. In those circumstances, as the Tribunal made its findings in accordance with the evidence, no error of law has been established. We agree with this submission.

11 Mr Saleam did not submit that the Tribunal had failed to give adequate weight to certain evidence, merely that it should not have accepted certain unchallenged evidence. No question of law is raised by these grounds of appeal and they are dismissed.

Procedural fairness

12 In the Notice of Appeal, Mr Saleam submitted that procedural fairness demands that he not be excluded from any part of the proceedings. He was excluded from parts of the proceedings pursuant to s 57(2) of the FOI Act. That section states that:

(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:
(a) the public, and

(b) the review applicant, and

(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.

13 At the hearing Mr Saleam clarified that he understood that the Tribunal had no other option but to exclude him from hearing certain evidence. Mr Saleam could not identify any procedural unfairness in relation to the application of s 57(2) of the FOI Act and that ground of appeal is dismissed.

Misdirection on the evidence of Jane Quantrill

14 Mr Saleam submitted that the Tribunal had misdirected itself in relation to the evidence of Jane Quantrill and her status as a Special Branch informant. At paragraph 19 of its decision, the Tribunal said that:

Although there was a lot said or suggested by the respondent about the motives of Ms Quantrill in giving her evidence, for example, it was suggested that the applicant held something over her in order for her to present favourable evidence on his behalf, I accept her evidence. However, I do not consider that her evidence advanced the applicant's cause in any relevant or significant fashion. Merely because a person believes or asserts that person was an informant is normally, without more, an insufficient basis on which a police agency or a Tribunal standing in its shoes may then confirm or deny the person's assertions to be true. Confirmation of the identity and status of an informer by the police or the Tribunal is totally different to an assertion by a person that person is or was a police informer. The law places great weight on the continued protection of the identity of an informer in most cases (except where it is necessary to establish the innocence of an accused person at a criminal trial; see, eg, R v Abdullah [1999] NSWCCA 188). Accordingly, I do not accept her evidence assists the applicant in any substantial way.
15 Mr Saleam’s submission was that the Tribunal erred firstly by maintaining an informant’s privilege of confidentiality in the face of that informant purportedly waiving that privilege and secondly in its reading of R v Abdullah (1999) NSWCA 188.

16 The Tribunal accepted Ms Qantrill’s evidence but did not consider it a sufficient basis on which the agency or a Tribunal standing in its shoes may then confirm or deny the person's assertions. The test the Tribunal correctly applied, as set out in Clause 4(1)(b), was that a document is exempt if it “contains matter the disclosure of which could reasonably be expected to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law to be ascertained.” The Tribunal was making the point that the fact that a person claims to be an informant, or is in fact an informant, does not necessarily mean that a document automatically loses its exempt status.

17 The case of R v Abdullah (supra) was cited as an exception to the general proposition that the law places great weight on the continued protection of the identity of an informer. That case concerned the test to be applied in relation to a claim for public interest immunity in relation to a confidential police informer. Reliance on that case was not essential to the reasoning by which the Tribunal reached its conclusion. Consequently, we can detect no error of law.

Misdirection in the exercise of the override discretion in s 25(1)

18 Mr Saleam agreed that the Tribunal has an overriding discretion to grant access to exempt documents as discussed in the Tribunal’s decision at [38]. According to Mr Saleam the Tribunal should have exercised its discretion in his favour by releasing several documents.

19 The agency submitted that the Tribunal properly directed its mind to the considerations applicable to the exercise of any overriding discretion. The Tribunal decided that a refusal to release the restricted documents is necessary for the further administration of the law in NSW.

20 Mr Saleam did not identify any question of law in relation to the Tribunal’s exercise of its overriding discretion. This ground of appeal is dismissed.

Costs

21 In this case no application for costs was made by the agency, however Mr Saleam should understand that he is at risk of having an order for costs made against him on the Tribunal’s own motion, if not on the application of another party, if he continues to prosecute appeals which have no chance of success.

Extension to the merits

22 As no question of law has been identified, the Tribunal does not grant leave to extend the appeal to the merits of the decision.

Order

Appeal dismissed.