Aldrich v Boulton
[2000] QSC 39
•6 March 2000
SUPREME COURT OF QUEENSLAND
CITATION: Aldrich v Boulton & Anor [2000] QSC 039 PARTIES: WILLIAM GRANT ALDRICH
(applicant)
v
KERRY F BOULTON
(first respondent)
and
CALLUM GRANT ROSS
(second respondent)FILE NO/S: 8825 of 1999 DIVISION: Trial Division PROCEEDING: Application for Statutory Order of Review DELIVERED ON: 6 March 2000 DELIVERED AT: Brisbane HEARING DATE: 7 February 2000 JUDGES: Chesterman J ORDER: That the application be allowed and that the
orders of the Misconduct Tribunal in
TA 1 of 1999 made on 3 September 1999 be
set asideCATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – GROUNDS FOR REVIEW OF DECISION – ERROR OF LAW – review of decision of Misconduct Tribunal – nature of appeal to Misconduct Tribunal – appeal against discretion – whether discretion miscarried
Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616
Bradshaw v Medical Board of Western Australia [1990] 3 WAR 322
Hope v The King (1936) 55 CLR 499
Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Cranssen v The King (1936) 55 CLR 509
Stalling v Blizzard App No. 2/1990
Hodgekiss [1962] 62 SR (NSW) 340
Re Bowen [1996] 2 Qd R 8Hardcastle v Commissioner of Police (1984) 53 ALR 593
Police Service Board v Morris (1984-5) 156 CLR 394
Gronow v Gronow (1979) 144 CLR 513Police Service Administration Act 1990
Misconduct Tribunals Act 1997 s 26, s 16, s 23, s 28
Judicial Review Act 1991 s 7, s 20, s 30
Criminal Justice Act 1989 s 40, s 42
Police Service (Discipline) Regulations 1990 rr 3, 5, 9, 10
Police Service Administration Act 1990 s 7.4COUNSEL: Mr P J Flanagan for the applicant
Ms C E Holmes and Mr D A O’Gorman
for the respondentSOLICITORS: Queensland Police Service for the applicant
Gilshenen & Luton for the respondent
CHESTERMAN J: Until 7 April 1999 the second respondent (“the respondent”) was a police officer with the rank of senior constable. On that day he was dismissed from the Queensland Police Service by the applicant who was the Deputy Commissioner of Police. The respondent had been directed to appear before the applicant “for consideration of what action in relation to the interests of the discipline of the Police Service, if any, should be taken under the provisions of … the Police Service Administration Act 1990 ….”. The direction identified two complaints of misconduct which made the respondent liable to disciplinary action. They were:
That between 2 and 10 July 1998 the (respondent’s) conduct showed unfitness to be or continue as a police officer in that he :
(1)(a) on 5 July 1998 disclosed to his brother confidential information contained in a document classified as secret and which had come into his possession in the performance of his duties as an intelligence analyst. The information was that one Dennis Allen was suspected of being involved in the commission of drug related offences and it was proposed to conduct a covert operation to investigate this suspicion; and
(b)on 9 July 1998 disclosed to Dennis Allen confidential information contained in the document. The information was that Allen was suspected of involvement in offences drugs.
(2)That between 31 December 1995 and 31 March 1998 the respondent’s conduct was improper in that he unlawfully possessed supplies of steroids, a restricted drug, which he had unlawfully obtained from Dennis Allen for his personal use and he assisted his brother Lachlan Ross to obtain supplies of the drug.
The respondent was represented at the hearing before the applicant by Sergeant Hall, a fellow officer. He had prepared, no doubt with the assistance of solicitors, a detailed written submission which was given to the applicant. The respondent did not dispute the substance of the charges. His, and Sergeant Hall’s, endeavours were directed toward reducing the severity of the disciplinary action that must inevitably occur.
The applicant determined:
“… after consideration of all the material, … due to your conduct it is in the interest of the discipline of the Queensland Police Service, the community and the efficient and proper discharge of your responsibilities… that the following sanctions are imposed:
Matter 1. The respondent is dismissed from the Queensland Police Service as from termination of duty today 7 April 1999.
Matter 2. The applicant is reduced in rank to Constable pay point 1”.
Although it was necessary to deal separately with each complaint the sanction imposed in respect of the second matter had no practical effect.
The respondent appealed to a Misconduct Tribunal which, on 3 September 1999 varied the disciplinary action taken by the applicant in respect to both complaints and substituted, respectively, an order “that the punishment of dismissal … be suspended for a period of 12 months from the date of this order” and that the respondent be demoted to the rank of constable pay point 5, rather than pay point 1. The applicant seeks a statutory order of review against the decision of the Tribunal on the grounds that its decision is wrong in law.
Section 26(3) of the Misconduct Tribunals Act 1997 provides that:
“the decision of the Tribunal is final and conclusive, and is binding on, and must be given effect by, all persons concerned.”
The applicant submits that this enactment does not prevent his seeking a review of the Tribunal’s decision pursuant to the Judicial Review Act 1991. The respondent does not controvert this submission. The applicant further submits that he is a person aggrieved by the decision of the Tribunal for the purposes of s 7 and s 20 of the Judicial Review Act on the basis that he had an interest in and responsibility for maintaining discipline in the police service and that the decision may affect the discipline of the service as well as public confidence in it. Again, the respondent does not controvert the submission.
By s 16 of the Misconduct Tribunals Act a Tribunal has jurisdiction to hear and decide an appeal against a reviewable decision. The applicant’s imposition of sanctions on the respondent were reviewable decisions. Section 23 provides that an appeal “is by way of rehearing on the evidence… given in the proceeding before the original decision maker…”, though further evidence may be adduced with the leave of the Tribunal. Section 26 empowers a Tribunal exercising appellant jurisdiction to:
“(a) confirm the decision appealed against
(b) set aside the decision and substitute another decision(c) set aside the decision and return the matter to the original
decision maker with such directions as appear appropriate.”
Section 28(2) allows a tribunal to order that a punishment be suspended for
a stated period.
The nature of the appeal for which provision is made by Part 4 of the Misconduct Tribunals Act may be contrasted with the appellant process of the Misconduct Tribunals constituted earlier under the Criminal Justice Act 1989. By s 40(2) and s 49(2) of that Act appeals were new hearings in which charges were determined afresh by the Tribunals.
It is, I think, clear from the words employed in s 23(4),(5)&(6) of the Misconduct Tribunals Act that the review to be conducted by a Tribunal exercising appellate jurisdiction is truly appellate and is not a second, new adjudication of the matters determined by the original decision maker. The change in description of the jurisdiction from that found in the Criminal Justice Act is surely deliberate. The considerations discussed by Mason J in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] 135 CLR 616 at 621 point to the same conclusion. The applicant conducted a formal hearing inter partes. The respondent was represented, though not by a lawyer. Charges had been formulated in advance and notice of them given to the respondent who appeared and argued his case. The applicant was required to determine whether the charges had been proved and what consequence should flow if they had. A transcript of the hearing was made and the applicant gave reasons for his determination.
It follows that to have succeeded before the Tribunal the respondent had to demonstrate that the applicant’s decision was affected by some error of fact or law. The point was put in these terms by Kennedy J in Bradshaw v The Medical Board of Western Australia [1990] 3 WAR 322 at 328:-
“… an appeal in the nature of a re-hearing … remains an appeal and the court “must recognise the onus upon the appellant to satisfy it that the decision below is wrong”:…but this should not be seen as derogating from the primary duty of the appellate judge to make up his own mind what facts are proved by the evidence and what inferences should be drawn from those facts, always giving due weight to the opinion of the … Board.”
I also agree with the authors of Halsbury’s Laws of Australia (in para 325/11110)
“The expression “appeal by way of re hearing” is ordinarily employed to indicate that the Appeal Court is not confined to the law and facts at the time the decision appealed from was made and that, in addition, the court has power to receive further evidence. Standing alone, however, the words are not to be lightly taken to mean that there is, in effect, a retrial of the issues between the parties”.
Before turning to consider the Tribunal’s decision and the applicant’s attack on it, it is convenient to consider the statutory provisions pursuant to which the applicant took disciplinary action against the respondent, the nature of the powers conferred by them, and the facts relevant to the charges.
Regulation 3 of the Police Service (Discipline) Regulations [1990] provides that their object is to:
· “Provide for a system of guiding, correcting, chastising and disciplining subordinate officers; and
· Ensure that appropriate standards of discipline within the Queensland Police Service are maintained.”
Regulation 5 provides that where a Deputy Commissioner has formed the opinion that an officer should be disciplined he may order the officer to be disciplined “in a manner that appears … to be warranted”. The grounds for disciplinary action appear in r 9. They include unfitness in the discharge of duties and misconduct. By r 10 the disciplinary sanctions that may be imposed are:
(a) cautioning or reprimand
(b)a deduction from the officer’s salary or wages of an amount equivalent to a fine…
(c) a reduction in the officer’s level of salary or wages…
(d) forfeiture or deferment of a salary increment or increase
(e) a reduction in … rank…
(f) dismissal from the Police Service.
In similarly broad terms s 7.4 of the Police Service Administration Act [1990] makes an officer liable to disciplinary action in respect of his conduct if the Deputy Commissioner (inter alia) considered it to amount to misconduct or a breach of discipline. Misconduct is defined to mean conduct that is improper or unbecoming, or which shows unfitness to be a police officer on which does not meet the standard of conduct reasonably expected by the community. Section 7.4(3) allows the Deputy Commissioner to impose a wide range of disciplinary outcomes, including dismissal, demotion in rank, and reduction in salary level.
In a case where misconduct is proved (or, as in the present case, where it is admitted) these provisions confer a wide discretion upon the Deputy Commissioner with respect to what disciplinary action may be taken against the offending officer. No criteria are identified by the Act or Regulations to control the exercise of disciplining an errant police officer. As a matter of principle it would seem to follow that there is little scope for appellate correction of the exercise of such a discretion.
The facts in relation to the complaints were not in dispute. They were:
(i)In July 1998 the respondent was attached to the Bureau of Criminal Intelligence performing duty as an intelligence officer at the Property Crime Squad.
(ii)On 3 July 1998 a document described as a “target application”, classified as secret, was left with the respondent while he was on duty. The target application proposed an investigation into alleged cannabis and amphetamine distribution. Dennis Allen was named as a suspect.
(iii)Allen had supplied steroids to the respondent and his brother over a number of years.
(iv)No such investigation was contemplated. The proposal was given to the respondent as a test of his integrity.
(v)When the test was initiated the respondent became the object of surveillance. His telephone calls were recorded and a listening device was placed in his motor car.
(vi)On 5 July 1998 the respondent spoke to his brother when the two men were in the respondent’s car. The respondent discussed the proposed investigation of Allen as it appeared in the target application and expressed concern that Allen might reveal the fact that he had supplied steroids to him and his brother.
(vii)On 8 July 1998 the respondent was interviewed by staff employed by the Criminal Justice Commission. He denied that he had disclosed any information to Allen but did not mention that he had told his brother information contained in the target application.
(viii)On 9 July 1998 the respondent met Allen in the middle of a playing field at Sunnybank. He had asked his brother to arrange the meeting. The venue was chosen so that the conversation could not be overheard. The respondent, before speaking to Allen, ascertained that he was not equipped with any listening devices. Allen asked the respondent why he had been asked to come to the meeting. The respondent said “I think they’re looking at me for steroids”. Allen asked why that involved him and the respondent told him that “something came across my table … with your name on it …”.
(ix)The respondent had earlier told his brother that Allen was suspected of transporting marijuana from New South Wales to Brisbane and Lachlan Ross had passed on that information to Allen. During his conversation with the respondent Allen asked, in effect, for confirmation that he was suspected of conducting that activity. The respondent said “Well, have you?” In the same conversation the respondent advised Allen to stop selling steroids.
Some other facts should be mentioned for an understanding of the course of proceedings before the applicant on 7 April 1999 and the reasons of the Misconduct Tribunal.
The target application was given to the respondent by Sergeant Costello on 3 July 1998. He instructed the respondent “not to go anywhere near the targets … as they were known to be surveillance conscious”. The respondent advised Costello that he knew Allen but he did not then express any discomfort at being involved in the proposed investigation. Later that day the respondent asked to be relieved from any further involvement in the investigation. Costello agreed.
Sergeant Weightman was an experienced officer known to the respondent. He had met Allen in the company of the respondent. On 3 July 1998 the respondent telephoned Weightman and told him that Allen was a suspect in a proposed drugs investigation. He asked Weightman what he should do “because Allen was his friend”. Weightman advised the respondent that he should inform his superior that he had a conflict of interest and “to keep away from Allen”. That advice was subsequently repeated.
The applicant submits that the Tribunal did not adhere to the principles which govern appeals against the exercise of a discretion. Instead, it is said, it considered for itself what the outcome should be. Thus it is submitted the Tribunal erred in law because, to put things another way, there was no lawful basis on which it could disturb the exercise of the applicant’s discretion. The respondent on the other hand submits that the Tribunal properly exercised its appellate jurisdiction in the course of which it identified errors made by the applicant. It then, as it was obliged to do, formed an opinion different to the applicant’s. In seeking to review the Tribunal’s decision, which is itself discretionary, it is said the applicant seeks an impermissible review on the merits.
Which submission is to be accepted depends upon whether the Tribunal properly approached the task of reviewing the applicant’s discretion. If it did the respondent is, I think, right that judicial review is not available to challenge the appellate process. If, however, the applicant is right that process has been legally erroneous.
The principle is well established. Its locus classicus appears in House v The King (1936) 55 CLR 499 at 504, 505. In Australian Coal and Shale Employees’ Federationv The Commonwealth (1953) 94 CLR 621 Kitto J said at 627
“… cases of the highest authority .. establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that the decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law opposes in the court of first instance: House v The King 55 CLR 499 at 504, 505.”
In Cranssen v The King (1936) 55 CLR 509 Dixon, Evatt & McTiernan JJ said (519/520):
“… the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority.”
At least in those cases in which no specific error is identified in the notice of appeal and an appellant relies upon the manifest unreasonableness of the decision as demonstrating a miscarriage of discretion, considerable restraint should, in my view, be exercised by a Misconduct Tribunal. This is particularly so where the decision appealed from was made by someone with particular knowledge and understanding of the need for and difficulty of maintaining discipline among police officers. I have been reminded of some remarks I made when I constituted a Misconduct Tribunal established under the previous legislation. In Stalling v Blizzard (Appeal No 2/1990) I wrote
“… a Misconduct Tribunal reviewing the decision … of an officer responsible for the administration and maintenance of discipline ought to be reluctant to substitute its opinion for that of the Deputy Commissioner. … the role of the tribunal … is one of review. It is an appeal the purpose of which is to demonstrate that the decision made at first instance was wrong. When the decision is that of a very senior officer with close knowledge and experience of the Police Service and its discipline, I do not think that the disciplinary sanction imposed should be altered unless it appears clearly to be disproportionate to the misconduct or breach of discipline, or unless, in imposing a sanction, there is an error in law or fact in the decision making process. I think the Tribunal ought to be particularly slow in making any decision which is likely itself adversely to effect the authority of those charges with a discipline of the Police Service and therefore the discipline of the service.”
I note that similar approach was taken by Owen J in Hodgekiss [1962] 62 SR (NSW) 340 in relation to appeals from a solicitors’ disciplinary committee. His Honour said (at 343)
“Such a tribunal is eminently fitted to decide whether the conduct of a solicitor … amounts to professional misconduct and to determine what is the proper penalty to be imposed in any particular case. While an appeal from this decision to the court is in the nature of a rehearing, the court should give great weight to and be slow to differ from the committee’s opinion … as to the appropriate order to be made in a particular case.”
The identical point is made in Bradshaw, in particular at 335.
The change to the nature of an appeal to a Misconduct Tribunal is significant. The Tribunals when hearing appeals no longer determine the matter afresh. Their role is the more limited one of reviewing the impugned decision to see whether it was erroneously made. Its role is not to substitute its own judgment for that decision. It is, I think, particularly important that the Tribunals not do so. Their function and that of the Commissioners of the Police Service are very different. The latter have the important and difficult task of managing a large institution whose officers play an important part in society and who are given substantial powers and responsibilities for their task. They must be kept honest, efficient and conscientious. The Misconduct Tribunals do not have particular experience in managing the Police Service. Their function concentrates, as it must, upon particular instances of management. The Tribunals should, I think, be astute not to increase the difficulty of management by undue interference in the process. Interference will be undue if the Tribunals do not bear in mind the restraint imposed on their function by the need for error to be shown before a decision can be overturned. When the error is said to be that a sanction imposed was excessive particular caution is needed. The appellate process focuses on one individual in a particular circumstance. The management decision is made in a wider context of what is necessary for the service as a whole and the public it protects.
The only ground set out in the respondent’s notice of appeal was that the applicant’s decisions, dismissing him and demoting him to the rank of constable pay point 1 were “manifestly excessive in all the circumstances”.
The reasons of the Tribunal do not reveal that it turned its attention to the fact that the appeal was against the exercise of a discretion, or of the limitation inherent in such appeals. Rather the Tribunal referred to a number of authorities which discuss the nature and object of disciplinary proceedings. Reference was made to re Bowen [1996] 2 Qd R 8; Hardcastle v Commissioner of Police (1984) 53 ALR 593 and Police Service Board v Morris (1984 – 5) 156 CLR 394, which may be summarised by a passage from the last mentioned case.
“The purpose of police discipline is the maintenance of public confidence in the Police Force, of the self esteem of police officers and of efficiency”.
The Tribunal, having noted the cases, proceeded to analyse the respondent’s conduct by reference to the purposes, identified in re Bowen, which might be served by disciplinary proceedings. There is a danger in such an approach. By focussing attention upon what purpose is to be served by disciplinary action, the Tribunal may be tempted into a consideration of what sanction it considers appropriate in the circumstances. This is not its function. Its proper concern was whether the discretion of the primary decision maker had miscarried.
It should be noted that re Bowen was an appeal from a Misconduct Tribunal exercising original, not appellate, jurisdiction. The judgment considered what was the purpose of disciplinary proceeding because of a submission that the Tribunal had misunderstood its role and set itself the task of punishing, rather than disciplining, the police officer in question. The discussion of disciplinary purpose was relevant to whether the Tribunal had applied the correct legal principle.
The Tribunal did not, however, rely only on the manifest excess of the decision. It identified an error in the applicant’s reasoning which it described in these terms:
“In his short statement of reasons … the (applicant) acknowledged that his decision was a difficult one. He found himself unable to see any mitigating circumstances that might incline him towards imposing a lesser sanction than the most severe provided for … or to suspend the punishment pursuant to r 12 … he stated:
‘It is fundamental to your role as a police officer to be trusted with the information that comes into your possession’:
And later:
‘I can’t excuse your actions in disclosing that information … to your brother … and to Allen and whilst I note the matters in your submission about what you see as mitigating circumstances, I can’t see any such circumstances …’
A number of matters were advanced in mitigation …
The transcript of proceedings on the 7th April 1999 and the (applicant’s) report on his decision dated the 8th April 1999 do not disclose the (applicant’s) reasons for concluding that there were no circumstances of mitigation. The impression given is that the (applicant) took the view that, taking into account the sensitive position that the (respondent) held with the Bureau of Criminal Investigation, his disclosure of such confidential information over rode all other considerations and necessitated a sanction of dismissal.Although the disclosures … were serious instances of misconduct, particularly for a police officer holding the position that the (respondent) then held, there were a number of mitigating circumstances which ought to have been, but were not, given appropriate weight, by the (applicant).”
This reasoning appears to contain two inconsistent strands. The first is that the applicant overlooked the existence of mitigating circumstances. The second is that the applicant considered but gave insufficient weight to mitigating circumstances.
The first is clearly incorrect. The whole thrust of the respondent’s submissions to the applicant on 7 April 1999 was an attempt to ameliorate the seriousness of what he had done. The written submission furnished by the respondent to the applicant prior to the hearing contains this:
“Sir, subject to the limited comments below, I indicate at this stage my willingness to accept the charges of misconduct against me, and acknowledge my wrong doing in respect of those charges, except in the consequences that flow from that position. My submissions … are primarily directed to the question of the sanction to be imposed … with my ultimate aim being to remain a member of the Queensland Police Service … I will … (point) out features of the evidence … which I ask you to take into account when assessing penalty …”
Early in the hearing the applicant said
“ … you’re effectively admitting the matters the subject of the charges but you’re giving a number of explanations by way of mitigation …”
Sergeant Hall replied
“That is basically right. So we’re … pleading guilty to both charges with circumstances of extenuation and some explanation in relation to parts of it.”
Later in the hearing the respondent said to the applicant
“Sir, if I might just point out to you, and I’ll just ask you to take particular notice of those enumerated points at the bottom of page 6 and the top of page 7 which … really is the crux of this matter in relation to the first charge.”
The reference is to the written submission. Towards the end of the hearing the applicant said
“… this is the part that hurts as far as I’m concerned and I say that quite sincerely “(he then described briefly the respondent’s service and continued)” (the respondent) has worked in his career (in) areas where workers go … so they are things that I note and are issues very much that weigh on me in respect to (the respondent’s) future.”
In giving his reasons the applicant said:
“I’ve listened to everything that both you (the respondent) and you (Sergeant Hall) have said and I’ve read the submission and I have given all due consideration to the issues including your proposal that any sanctions be given the benefit of r 12 … and I have made the following determinations. …. in respect to the (first) matter which is the one I had most difficulty over – I have a fundamental problem with your actions in that whilst it’s true that … it was to your brother and that the information that was passed onto Allen was in reference to a target application that was not of a genuine investigation it is fundamental to your role as a police officer to be trusted with the information that comes into your possession. … Weightman … specifically advised you not to approach Allen … you took the advice of your superiors … unfortunately chose not to follow that advice to its fullest. I can’t excuse your actions in disclosing that information to … your brother … and to Allen and whilst I note the matters in your submission about what you said on mitigating circumstances I can’t see any such circumstances and I direct that you be dismissed …”
It is perfectly clear that the applicant did take into account what had been said on behalf of the respondent by way of mitigation. He did not accept that what was relied on in fact amounted to mitigating circumstances or he thought the circumstances insufficient to overcome the other circumstances which indicated dismissal as the appropriate sanction.
The second strand of reasoning does not justify appellate interference. It is a ground for intervention that the primary decision maker has ignored a relevant factor, but it is not a ground that the appellate tribunal disagrees with the degree of importance attached to a factor which was taken into account. (see Gronow v Gronow (1979) 144 CLR 513 at 519 per Stephen J; 534, 537 per Aicken J with whom Mason and Wilson JJ agreed.
My own opinion is that the applicant was right in his assessment. The Tribunal thought that the applicant should have been persuaded by those circumstances to impose a lesser sanction. Neither opinion matters. The process of assessment and evaluation was committed by the relevant legislation to the applicant and he made no appealable error in his consideration of mitigating factors.
The Tribunal itself appears to have considered that dismissal as a disciplinary sanction was within the permitted range of outcomes for the respondent’s admitted misconduct. The Tribunal said:
“It is not difficult to understand that some might take the view that the Police Service whilst well rid of an officer who has fallen is what might be considered a relatively low hurdle.”
This passage appears to accept that the opinion could reasonably be held that dismissal was justified as a response renunciation of his duty. But this means that the respondent’s dismissal was not a manifestly excessive outcome. What the Tribunal has done is to prefer its own opinion of what the exigencies of the occasion called for.
The Tribunal’s reasons went on to consider the respondent’s motivation for alerting a suspected drug dealer that he was about to be investigated. It “expressly declined to conclude” that his motivation was to prevent the disclosure of his own misconduct in relation to the use of steroids. Why the applicant behaved as he did formed no part of the applicant’s reasons for dismissing him from the Police Service. The Tribunal was apparently led into a discussion of the question by the submissions put to it. It is not entirely clear what part the examination of motive played in the Tribunal’s decision. It does not appear that the applicant’s disregard of the question was relied upon as showing that he did not take in to account a relevant factor.
The examination of motive could not have helped the respondent’s cause. The only plausible explanation for his approach to Allen was to warn him that he may be under scrutiny or questioned about illegal activities. The purpose of giving such a warning can only have been to assist him to conceal his activities, thereby helping protect those who like the respondent, were involved in them. But if this is not right the consequence is that the respondent wantonly revealed information about a proposed investigation to a suspect.
It was argued on the respondent’s behalf that he spoke to his brother and Allen only after he was convinced that the proposed investigation was not genuine but was designed as a test of his integrity. I cannot see this helps the respondent. For a start the evidence does not establish that the respondent had become firmly convinced that, he, not Allen was the object of investigation. Even if he were convinced his conduct remains inexplicable. Knowing that he had been put in a situation where his self interest and his public duty conflicted, and that his response to the conflict was being observed, he deliberately preferred self interest, or acted as though he did.
For these reasons I conclude that the respondent in his appeal to the Tribunal did not satisfy any of the preconditions necessary if a discretionary judgment is to be altered. The applicant’s decision did not rest upon a wrong principle of law nor upon a mistake of fact as explained in the authorities. The applicant did not fail to take account of relevant factors. His decisions are not themselves demonstrative of some hidden error. It follows that in replacing the applicant’s opinion that the respondent was not fit to remain a police officer with its own contrary opinion the decision of the Tribunal involved an error of law. The applicant has, accordingly, made out his ground for a statutory order of review.
The second complaint was dealt with briefly by both the applicant and the Tribunal, no doubt for the reason that it is far less serious and, as far as the applicant was concerned, became academic once he had dismissed the respondent. The Tribunal reduced the reduction in salary imposed because the order made was “manifestly excessive” and the applicant had refused “to acknowledge any mitigating circumstances”. Because of the view I have come to with respect to the first matter the outcome of the second is inconsequential. Consistent with what approach the legislation appears to require I would hold that the respondent did not demonstrate any error in the decision making process in relation to the second matter and that the Tribunal was not justified in altering the sanction imposed.
The applicant seeks an order pursuant to s 30(1)(a) of the Judicial Review Act setting aside the decision of the Misconduct Tribunal. The alternative is to set aside the decision and require the Tribunal to reconsider it in accordance with the principles of law I have endeavoured to state. (see s 30(1)(b).) There seems no point in remitting the matter. I have found that there is no discernible error in the exercise of discretion by the applicant in his hearing of the complaints against the respondent so that any appeal should have failed. Accordingly I order that the applicant be allowed and that the orders of the Misconduct Tribunal in TA 1 of 1999 made on 3 September 1999 be set aside.
1
4
6