Turner v Director of Public Prosecutions (GD)

[2013] NSWADTAP 27

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Turner v Director of Public Prosecutions (GD) [2013] NSWADTAP 27
Hearing dates:	20 May 2013
Decision date:	20 May 2013
Jurisdiction:	Appeal Panel - Internal
Before:	Judge K P O'Connor, President
Decision:	Leave to appeal refused
Catchwords:	APPEAL - Out of time - Inadequate explanation for delay - Point of law not arguable - Leave refused
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009
Category:	Interlocutory applications
Parties:	Donovan Turner (Appellant) Director of Public Prosecutions (Respondent)
Representation:	In person (Appellant) G Rees, Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	139016
Decision under appeal	Citation: Turner v Director of Public Prosecutions [2012] NSWADT 198 Date of Decision: 2012-09-24 00:00:00 Before: General Division File Number(s): 123013

reasons for decision

1. On 20 May 2013, I heard an application by Mr Turner to proceed with an appeal to the Appeal Panel out of time and refused leave. I gave short oral reasons, and promised a fuller set of reasons, now provided.

1. Mr Turner lodged his notice of appeal on 17 April 2013. It concerned a decision of the General Division made 24 September 2012.

1. Section 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act) provides:

(3) An appeal under this Part must be made:

(a) within 28 days after the Tribunal gives the party oral reasons or written reasons for the appealable decision (whichever is the later), or

(b) within such further time as the Appeal Panel may allow.

1. This is an interlocutory issue. The Appeal Panel may be constituted by one presidential member, as it was (ADT Act, s 113(2A), (2B); see also s 24A(1)).

Background

1. The Tribunal's decision dealt with Mr Turner's application under the Government Information (Public Access) Act 2009 (GIPA) for review of decisions made by the Director of Public Prosecutions refusing his applications for access to some documents said to be held by the DPP. The DPP did disclose some documents the subject of the access applications, but refused the remainder on the basis that they fell into the category of 'excluded information'. The DPP considered that the access applications were not valid to that extent, and the DPP's decisions were not reviewable.

1. GIPA s 43 provides:

43 Access application cannot be made for excluded information

(1) An access application cannot be made to an agency for access to excluded information of the agency.

Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency.

(2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.

1. Further to s 43(1), Schedule 2, cl 1 provides:

1 Judicial and prosecutorial information

A court - judicial functions.

The office of Director of Public Prosecutions - prosecuting functions.

1. Section 14(1) provides:

14 Public interest considerations against disclosure

(1) 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.

1. Schedule 1 provides:

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.

...

(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.

1. The DPP submitted successfully that the documents sought by the appellant all related to a prosecution for maliciously inflicting grievous bodily harm that has given rise to his present imprisonment, and that they were all connected with the 'prosecuting functions' of the office.

Leave to Appeal

1. At the hearing of the leave application, Mr Turner participated by telephone from the Lithgow Correctional Centre. Mr Graham Rees, solicitor, Office of the DPP (ODPP), attended.

1. I refused to grant leave for two reasons.

1. One, the application was many months out of time. This was not a case of a delay of a few days where some tolerance might be given. In explanation of his delay, Mr Turner referred to the conditions of his imprisonment, and asserted that he had been denied access to his 'legals'. Initially I misunderstood this to be a reference to being denied access to legal aid. But Mr Rees and Mr Turner corrected me, and explained that the claim was that he had been denied access by prison authorities to legal materials enabling him to prepare his appeal.

1. Mr Turner also asked me whether I had before me a document he had filed with the Registry relating to his claim for access. I informed him that no document appeared on the file before me. I have since been advised by the Registry that such a document had been filed but placed on another file relating to different proceedings brought by Mr Turner. The document consists of 588 handwritten pages.

1. I have not considered that document in providing these written reasons.

1. I have no evidence in relation to Mr Turner's claim that he was denied access to legal materials to such an extent that the first reasonable opportunity he had to file his appeal was on or about 17 April 2013.

1. In these circumstances I do not accept the explanation.

1. If I am wrong in that regard, I rely on a second reason for denying leave. There is, in my opinion, no utility in the appeal.

1. Mr Turner's review application followed a series of GIPA applications, and they have been summarised, in my view fairly, by the ODPP as applications for the evidence and other material in relation to the proceedings that gave rise to his conviction and imprisonment, conducted before his Honour Judge Frearson SC in the Sydney District Court during 2009.

1. The Tribunal made a mixed finding of law and fact, the consequence of which was that Mr Turner did not have the foundation for a review application in the Tribunal, i.e. a valid access application within the meaning of GIPA.

1. The Tribunal's account of the law relating to the meaning to be given to 'prosecuting functions' is, in my view, correct.

1. The key item of evidence accepted by the Tribunal is provided by the affidavit of Mr George Galanis, managing lawyer of the Court of Criminal Appeal unit at the ODPP, sworn 29 March 2012. The material parts of the affidavit are at paras [14]-[17] and they divide into 17 categories the information covered by Mr Turner's access applications. The categories cover information that became part of the formal record of the court, as well as preparatory and other administrative records that are a usual part of the activities involved in the conduct of a criminal trial. In my opinion, the categories all relate to activities that fall within the ordinary understanding of the prosecuting functions of the DPP. More specifically and in response to a point that Mr Turner has pressed, I agree with the Tribunal that the disclosure certificate documentation, and related notes and records, are protected.

1. In my view the point of law is not arguable.

Order

Leave to appeal refused.

Decision last updated: 24 June 2013