Bekker v Commissioner of Police
[2017] WASC 376
•19 DECEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BEKKER -v- COMMISSIONER OF POLICE [2017] WASC 376
CORAM: CHANEY J
HEARD: ON THE PAPERS
DELIVERED : 19 DECEMBER 2017
FILE NO/S: CIV 1953 of 2017
BETWEEN: COENRAAD FRANCOIS BEKKER
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Administrative law - Judicial review - Findings of disciplinary offences by police officer - Statutory provisions for dealing with disciplinary offence not followed - Denial of procedural fairness - Findings invalid - Steps taken on basis of invalid findings
Legislation:
Nil
Result:
Decisions quashed
Category: B
Representation:
Counsel:
Applicant: No appearance (on the papers)
Respondent: No appearance (on the papers)
Solicitors:
Applicant: Tindall Gask Bentley Lawyers
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Parker v Miller [1998] WASCA 124
CHANEY J: The applicant is a first class constable in the Western Australian Police Force. On 11 January 2017, he was served with an 'Assistant Commissioner's Warning Notice' (Warning Notice). The Warning Notice asserted that the applicant's behaviour and conduct had fallen well below the standard expected of him by the community and by the WA Police and that he had significantly breached the WA Police Code of Conduct.
On 12 January 2017, the applicant was served with a Management Action Plan (MAP) which asserted that actions by him were in breach of reg 608(1)(d) and reg 601(2) of the Police Force Regulations 1979 (WA), and concluded that it was necessary that he transfer to an alternative position in the police service (Transfer Direction).
On 6 February 2017, the applicant received a direction by email from the WA Police that he was to transfer from the Canine Section in which he worked to North West Metro Response - South (Transfer Order).
On 8 June 2017, the applicant issued an application for judicial review seeking to quash the Warning Notice on the basis that it was issued in excess of power and was void because he had been denied procedural fairness.
On 31 August 2017, the applicant was given leave to amend his application so as to include an application for a writ of certiorari quashing the Transfer Direction and a declaration that the Transfer Direction was issued in excess of power and was void for denial of procedural fairness. The amended application also sought a writ of certiorari quashing the Transfer Order of 6 February 2017 and seeking a declaration that the Transfer Order was invalid.
The matter was listed for hearing on 31 October 2017. Prior to the hearing, each of the parties filed written submissions on the application. In his submissions, the respondent accepted that the court may find that the Warning Notice was issued in excess of power, and that the consequence of such a finding is that the Transfer Direction and the Transfer Order, which materially depended upon the Warning Notice, are similarly infected by error. The respondent accepted that the court may find that it is appropriate to make orders sought by the application in relation to the Warning Notice, the Transfer Direction and the Transfer Order.
Having considered the submissions of both parties, I was satisfied that the Warning Notice was issued by the respondent in excess of power and that the Warning Notice, the Transfer Direction and the Transfer Order should all be quashed. In view of that conclusion, I accepted the parties' submissions that it was not necessary for the hearing to proceed, and I made the following orders on 30 October 2017:
1.The Assistant Commissioner's Warning Notice issued by the respondent to the applicant on 11 January 2017 is quashed on the ground that it was issued in excess of power and in denial of procedural fairness, and the respondent thereby fell into judicial error.
2.The order made by the respondent on 12 January 2017 directing the applicant to apply for a transfer from Mounted and Canine Operations Section of the Western Australian Police Force is quashed on the ground that it was made in excess of power and in denial of procedural fairness, and the respondent thereby fell into jurisdictional error.
3.The order made by the respondent on 6 February 2017 by transferring the applicant to North West Metro Response - South section of the Western Australian Police Force is quashed on the ground that it was made in excess of power, and the respondent thereby fell into jurisdictional error.
4.The respondent is to pay the applicant's costs to be agreed, and if not agreed, to be taxed.
These are my reasons for making those orders.
Factual background
There was no issue between the parties as to the relevant facts. The facts were helpfully and accurately set out in the applicant's submissions. All of those facts were supported by the evidence identified in the footnotes, and it is convenient to reproduce the applicant's account as to the relevant facts which is as follows:
1.By email sent to the applicant on 1 December 2016, Detective Sergeant Trevor Douglas, of the Internal Affairs Unit of WA Police, invited the applicant to participate in a 'criminal review' at the Internal Affairs Unit (IAU).[1] The stated purpose of the interview was to investigate 'an allegation that the applicant purchased a Malinois puppy from Hardog Kennels, in a manner that may have been fraudulent or corrupt'.
[1] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑1, p 5.
2.In response, by email sent on 1 December 2016, the applicant declined the invitation.[2]
[2] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑1, p 5.
3.By email sent on 2 December 2016, Detective Sergeant Douglas issued to the applicant a direction under reg 603 of the Police Force Regulations 1979 (WA) (Regulations), to attend a 'managerial interview' on 7 December 2016 (Email).[3] The email advised the applicant that he would be obliged to answer questions put to him at the interview in relation to the subject matter of the investigation, which was allegations relating to his dealings with Hardog Kennels between 14 July 2016 and 21 October 2016; his purchase of a Malinois puppy from Hardog Kennels at a reduced price; and his improper use of his position for private advantage. The email stated that:
[3] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑2, p 8.
'The above requirement does not imply that sufficient evidence currently exists to prefer a charge, or that investigators have formed a particular view of the veracity of the allegation.[4]'
[4] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑2, p 8.
4.In compliance with the direction, on 7 December 2016, the applicant attended the interview, where he was ordered by Detective Sergeant Douglas pursuant to reg 603 of the Regulations to answer the questions put to him.[5]
[5] At the request of the applicant's solicitor, Detective Sergeant Douglas provided a disc containing an audio recording of the interview held on 7 December 2016: Affidavit of Samuel Joyce, sworn 7 June 2017, par 6, Attachments SJ‑3, SJ‑4, SJ‑5. A transcript of the interview held on 7 December 2016 was prepared by Kerri Terrell: Affidavit of Kerri Terrell, sworn 6 June 2017. The transcription is in Attachment LOW‑1 to the affidavit of Lucy Olivia Wood, sworn 6 June 2017.
5.By email set on 16 December 2016 Detective Sergeant Douglas advised the applicant that he had had a meeting with the executive team at the IAU, which had come to the conclusion that 'fraud' was not sustained; 'conduct unbecoming' was sustained; and 'use position for private advantage' was sustained.[6] The team had recommended that the applicant be issued with an 'Assistant Commissioner's Warning Notice'.[7]
[6] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑6, p 18.
[7] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑6, p 18.
6.On 5 January 2017 Detective Sergeant Douglas provided a briefing note to the Assistant Commissioner Professional Standards, Nicholas Anticich and Detective Superintendent, IAU, John Brandham (Briefing Note), setting out factual findings, making determinations that the applicant had breached regs 608(1)(d) and 601(2), breached the Western Australian Police Code of Conduct 2010 (Code) and engaged in unprofessional conduct, and recommending the issue of an Assistant Commissioner's Warning Notice.[8] The Briefing Note attached a draft Assistant Commissioner's Warning Notice (Draft Notice).[9] These two officers initialled the Briefing Note the same day.[10] In support of the recommendation, the Briefing Note referred to five incidents of managerial intervention in the period from 2009 to 2013, and to the fact that the applicant had lodged a bullying complaint, finding that he consequently displayed a 'wilful disregard for authority'.[11]
[8] Affidavit of Trevor John Douglas, sworn 27 September 2017, par 28, Attachment TJD3, p 12.
[9] Affidavit of Trevor John Douglas, sworn 27 September 2017, par 28, Attachment TJD3, p 16.
[10] Affidavit of Trevor John Douglas, sworn 27 September 2017, par 28, Attachment TJD3, p 15.
[11] Affidavit of Trevor John Douglas, sworn 27 September 2017, par 28, Attachment TJD3, p 15.
7.On 11 January 2017 the applicant was served with the Notice,[12] which was identical to the Draft Notice, and which found that the applicant:
[12] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑7, p 20; Affidavit of Trevor John Douglas, sworn 27 September 2017, par 28, Attachment TJD4, p 21.
(i)had engaged in conduct in breach of reg 608(1)(d) of the Regulations in that he had improperly used his reputation or position as a member of the Police Force for private gain;[13]
[13] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑7, p 22.
(ii)had engaged in conduct in breach of reg 601(2) of the Regulations in that his actions brought discredit on the Police Force and on himself;[14]
[14] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑7, p 22.
(iii)had engaged in 'unprofessional conduct'; and
(iv)had significantly breached the Code.[15]
[15] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑7, p 22.
8.The Notice also stated that:[16]
(i)the applicant's conduct fell well below the standard expected of him by the community and by the Police Force:
(ii)his conduct would in future be closely examined;
(iii)further unprofessional conduct would result in further managerial intervention which may include disciplinary action, or his removal under the loss of confidence provision in s 8 of the Act; and
(iv)this was a final warning.
9.On 12 January 2017 the applicant was served with an unsigned 'Management Action Plan' (MAP), which re‑stated that the applicant was in breach of regs 608(1)(d) and 601(2) of the Regulations, had failed to comply with the Code, and had engaged in unprofessional conduct.[17] The MAP stated that the 'managerial intervention' was that the applicant was not to have any further contact with any representative of Hardog Kennels, save in any civil proceedings. The MAP also contained the Transfer Direction, namely that the applicant was directed to immediately seek a transfer from Mounted and Canine Operations to an alternate position.[18] If he did not apply for a transfer he would be placed into a vacant position deemed suitable.[19]
10.At a meeting held on 6 February 2017 with the applicant, the Superintendent of State Operations Division, Mary Brown, required the applicant to select from a list of available positions one to which he would be transferred, commencing on 13 February 2017.[20] By email from Gregory Moffitt sent on 6 February 2017, the applicant received the Transfer Order, notifying him that he was transferred from Canine and Mounted Section to North West Metro Response - South.[21]
[16] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑7, p 22.
[17] Affidavit of Samuel Joyce, sworn 7 June 2017, Attachment SJ‑8, p 25, p 24; Affidavit of Mary Brown sworn 26 September 2017, par 15, Attachment MB 1.
[18] Affidavit of Samuel Joyce sworn 7 June 2017, Attachment SJ‑8, p 24, p 25.
[19] Affidavit of Samuel Joyce sworn 7 June 2017, Attachment SJ‑8, p 25.
[20] Affidavit of Mary Brown sworn 26 September 2017, par 20, Attachment MB 2.
[21] Affidavit of Samuel Joyce sworn 7 June 2017, Attachment SJ‑9, p 27.
Ground 1
The first ground of review is that the Warning Notice was issued in excess of the Commissioner's powers under the Police Act 1892 (WA). The particulars of the ground refer to the background to the issue of the Warning Notice set out above and to the fact that the Warning Notice contained a finding as to breaches of reg 608(1)(d) and reg 601(2) of the Regulations. The particulars assert that a breach of reg 608(1)(d) and reg 601(2) is a disciplinary offence for the purposes of the Police Act and Regulations, and that pursuant to s 23 of the Police Act and reg 624(3) and reg 625 of the Regulations, a determination that a member of the police force has committed a disciplinary offence is to be reached after a charge of a disciplinary offence and summary examination as provided for in s 23 and reg 625. The determination made in the Warning Notice is said to have been made without compliance with the required procedures.
The respondent concedes that those contentions are made out and that the issue of the Warning Notice was beyond power. That concession is correctly made.
Section 23(1) to (5) of the Police Act provides:
Disciplinary offences, how they are dealt with
(1)The Commissioner, or an officer appointed by the Commissioner for the purpose, may examine on oath any member of the Police Force, police auxiliary officer, police cadet or Aboriginal police liaison officer upon a charge of an offence against the discipline of the Police Force being made against any member of the Force, police auxiliary officer, cadet or liaison officer.
(2)Where the member of the Force against whom the charge is alleged is an officer, an examination under this section shall be conducted by an officer of the rank of Chief Superintendent or above.
(3)The Commissioner or officer conducting an examination under this section shall have the same power to summon and examine witnesses and to administer oaths as a Justice.
(4)Where the Commissioner or officer conducting an examination under this section determines as a result of that examination that any other member of the Police Force or any police auxiliary officer, police cadet or Aboriginal police liaison officer has committed an offence against the discipline of the Police Force, he shall record that determination in writing and, subject to the provisions of subsection (5), may thereupon caution such member, police auxiliary officer, cadet or liaison officer or by order in writing impose on him one or more of the following punishments -
(a)a reprimand;
(b)a fine of not more than 3% of the annual base rate of pay of the member, police auxiliary officer, cadet or liaison officer;
(c)demotion;
(d)reduction in salary to a specified rate within the limits of salary fixed in relation to the office held by him;
(e)suspension from duty;
(f)discharge or dismissal from the Force or, in the case of a police auxiliary officer or Aboriginal police liaison officer, cancellation of his appointment.
(5)An order made under subsection (4) for demotion or reduction in salary, suspension from duty, discharge or for dismissal or cancellation of appointment, shall not have effect unless or until -
(a)in the case of a member who is not an officer, or of a police auxiliary officer, cadet or liaison officer, it is imposed or confirmed by the Commissioner; or
(b)in the case of an officer, it is confirmed by the Governor.
Subsections 23(5) and 23(6) are not material to the present application.
Regulation 625 of the Regulations requires that where proceedings are taken pursuant to s 23, the charge shall be in writing in the form of the disciplinary charge sheet set out in the first schedule to the Regulations. It requires that the relevant officer cause a copy of the disciplinary charge sheet to be served on the member charged before he or she pleads to the charge and for the relevant officer to take reasonable steps to secure the attendance at the hearing of all persons whose names and addresses have been supplied by the accused member as witnesses on his or her behalf.
None of those procedures were followed in advance of the findings against the applicant being made and notified to the applicant by way of the Warning Notice. There is no other power conferred by the Police Act that enables findings of specific breaches of the Regulations to be made. It follows that the Warning Notice, being based upon findings made in excess of the jurisdiction of the Commissioner, should be set aside.
Ground 2 of the application also asserts jurisdictional error on the basis of a denial of procedural fairness. That ground asserts that the respondent failed to disclose to the applicant that he was charged with the breaches of the Regulations with which he was purportedly found guilty and failed to offer the applicant an opportunity to call witnesses and examine them or an opportunity to be heard on the question of penalty. The respondent conceded that he failed to extend procedural fairness in relation to the allegations of a breach of the Regulations. That ground is also made out. Regulation 625, and the procedure under s 23 of the Police Act, are all directed to the provision of procedural fairness and an opportunity to be heard. The applicant was denied that opportunity. The Warning Notice is liable to be set aside on that basis as well.
Transfer Direction
Ground 3 of the application relates to the Transfer Direction. The applicant contends that the Transfer Direction was based upon a determination that the applicant had committed disciplinary offences, that that determination was invalid and a nullity, and that in turn rendered the Transfer Direction invalid. The respondent, correctly in my view, concedes that ground. Both parties refer to the decision in Parker v Miller[22] in which the members of the Court of Appeal concluded that where the Commissioner's reasons for imposing a suspension on police officers was based on findings by a special investigator which the court found were invalidly made, the suspension was also invalid. The same principles apply in this case. The Transfer Direction was entirely based on the invalid findings in the Warning Notice. Ground 3 is made out. The Transfer Direction is invalid.
[22] Parker v Miller [1998] WASCA 124.
Ground 4 also asserts that the Transfer Direction was made in excess of the respondent's powers in s 23 of the Police Act on the basis that there is no power under s 23(4) to make an order directing a transfer of a member of the police force as a punishment for a disciplinary offence. As can be seen above, s 23 provides a range of actions which might be taken by the Commissioner following a finding of an offence against discipline. A power to transfer is not one of those possible actions. It was not open to the Commissioner to make the Transfer Direction on the basis upon which he did.
The denial of procedural fairness that infected the findings set out in the Warning Notice also affected the validity of the Transfer Direction, for the reasons explained in Parker v Miller. Ground 5 of the application relies on that contention and is made out.
Transfer Order
Ground 6 asserts that the Transfer Order was made in excess of power. Grounds 4 and 5 are repeated as particulars of ground 6. The Transfer Order was consequent upon the Transfer Direction (and in turn the invalid findings in the Warning Notice) which, as I have concluded, were made in excess of the powers available under s 23 of the Police Act. The Transfer Order was invalid and for that reason I ordered that it should be set aside.
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