Casino Pty Ltd v Police Complaints Authority No. Scgrg-96-1973 Judgment No. 6025 Number of Pages 12 Administrative Law

[1997] SASC 6025

IN THE SUPREME COURT OF SOUTH AUSTRALIA

NYLAND J

Administrative law - administrative decisions judicial review legislationcertiorari - police complaints authority - procedure on investigation of complaints - plaintiff argued Police Complaints Authority failed to comply with procedure for assessment and recommendations following complaint - duty of Commissioner to respond in writing to an assessment or recommendation of Authority - consideration of whether Commissioner can delegate responsibility under Act - judicial review applicable to decisions of Police Complaints Authority - finding that incorrect procedure followed - order in nature of certiorari made - decision of Authority quashed - matter remitted back to Police Complaints Authority. Police (Complaints and Disciplinary Proceedings) Act 1985 ss3, 5, 13, 16, 18, 19, 23, 25 - 34 inclusive; Police Act 1952s53, referred to. Carltona v Commissioner of Works
(1943) 2 All ER 560; O'Reilly v Commissioners of the State Bank of Victoria
(1982) 153 CLR 1, discussed.

ADELAIDE, 7 February 1997 (hearing), 27 February 1997(decision)<

#DATE 27:2:1997

Counsel for plaintiff: Mr J R Sulan

Solicitors for plaintiff: Antonio Tropeano

Counsel for defendant: Mr M F Johns

Solicitors for defendant: Crown Solicitor (SA)

n

Application allowed.

NYLAND J

1. In this matter, the plaintiff, by way of judicial review, seeks an order in the nature of certiorari to quash the decision of the Police Complaints Authority made on 16 April 1996. On the hearing of this matter I had regard to the affidavit of Antonio Tropeano sworn on 2 October 1996 and the exhibits annexed thereto and the affidavit of Antonio Tropeano sworn on 25 November 1996, together with the exhibits annexed thereto. The exhibit numbers which hereinafter appear refer to the annexures to this affidavit. I also referred to the affidavit of Wayne Nicholas Mackay sworn on 12 December 1996 and the exhibits annexed thereto and the affidavit of Friend Geoffrey Edwards sworn on 6 February 1997 and the exhibits annexed thereto.

2. The facts which gave rise to this matter are not in dispute. On 16 and 17 September 1995, police officers attended at licensed premises occupied by the plaintiff at 111 Hindley Street, Adelaide, in the State of South Australia and known as Rio International. On 18 September 1995, Mr Tropeano, a solicitor, wrote to the Commissioner of Police and complained about the conduct of the police officers during their attendance (AT1). A further letter was written on 21 September 1995 (AT2). On 21 September 1995, Mr Tropeano forwarded to the Police Complaints Authority, a complaint in writing, pursuant to s16 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (the Act), concerning the conduct of the police officers at the relevant times. He attached to that complaint the two letters to which I have referred (AT3).

3. On 3 January 1996, a police report on the investigation into the complaint was forwarded by the Deputy Commissioner of Police to the Police Complaints Authority. That report was signed by P R Mildren, Superintendent, Senior Investigator (North) for F. G. Edwards, Commander, Officer in Charge, Internal Investigations Branch (AT10).

4. On 12 March 1996, an assessment and recommendation by the Police Complaints Authority was forwarded to the Commissioner of Police (AT9). Part of that report incorporated the report of Superintendent Mildren. The report stated (at p4):

"Notwithstanding the fact police may have had legitimate reasons for attending the hotel, I have difficulty in accepting it was reasonable for so many officers to have been present for such an extended period. In his s31 Report Superintendent Mildren makes the following comments:

'It appears on analysis that the majority of police members played no active part whilst on the premises, and when viewed from that perspective I am of the opinion that the police presence on the occasions in question was excessive and was extended for an unnecessary period of time. In this issue it appears that the police members involved were unaware of or ignored the sensitivity of the situation where their presence may have affected a legitimate trade and caused embarrassment or inconvenience to the on-scene management of the hotel.'

In my view the responsibility for these officers being deployed in this way must ultimately be borne by Sergeant Thalborne, as the supervisor of the Team. For this reason, I find, pursuant to s32(1)(a)(i)(B), Sergeant Thalborne's conduct unreasonable. I RECOMMEND he receive Recorded Advice on this issue.

Apart from the unreasonableness of police actions when considered from the complainant's perspective, I note Superintendent Mildren also considers their actions to have been unreasonable from a police management perspective, in the sense that considerable resources were used to police what he describes as 'minor infractions of the law'. This of course is a police management issue and one more appropriately dealt with internally. I therefore refrain from making any formal finding in this regard."

5. On p6 of the report, under the heading "Finding", it is stated (AT9):

"For whatever reason, Senior Constable Rogerson's aim has clearly been to stop Ms Summers, and other women associated with the prostitution industry, from frequenting the Rio International Hotel. In my view the warnings given to Rio management on the 16th, 17th and 24th September 1995 - each of which I am satisfied were put in terms of Ms Summers being either a 'prostitute' or 'reputed prostitute' - were unreasonable and resulted in unfairness to Ms Summers. Consequently I find there was conduct by Senior Constable Rogerson which came within the ambit of s32(1)(a)(i)(B).

I RECOMMEND, pursuant to s32(1)(b)(ii), that Senior Constable Rogerson receive Recorded Advice on this issue. I further recommend that the word 'prostitute' currently noted under Ms Summers' name on the police computer system be deleted."

6. On 16 April 1996, an amended assessment and recommendation was forwarded to the Commissioner of Police (AT8). That report was in substantially similar terms to the earlier report but the section which referred to Superintendent Mildren's comments, which appear above in italics, was deleted and in lieu thereof the report stated (AT4):

"Clearly, police carried out a variety of activities whilst at Rio's on these mornings, and whilst I consider the deployment of so many officers for such lengthy periods of time to be bordering on the excessive, particularly given the relatively minor nature of the offences being policed, in the final analysis I am not satisfied their attendance could be described as unreasonable."

7. In addition, the section relating to Ms Summers was amended. In lieu of the comments appearing in italics above was the following (at p5):

"In labelling Ms Summers a 'prostitute' Senior Constable Rogerson may have been misled by the warning placed against her name on the Police Computer System, namely the word 'Prostitute'. In light of this inaccurate warning I do not propose to find conduct against Senior Constable Rogerson personally, instead I find conduct, pursuant to s32(1)(a)(i)(B), against the SA Police Department as a whole for the unreasonable and unfair manner in which Ms Summers was treated."

8. On 22 April 1996, a copy of this assessment was forwarded to the Disciplinary Review Officer, Internal Investigation Branch ("IIB"). The covering letter (AT7) stated:

"Dear Chief Inspector Clarke,

Re: Mr A Tropeano

I refer to our recent discussion in relation to this matter and enclose a copy of my assessment with the amendments as discussed.I look forward to the Commissioner's early agreement.

Yours faithfully, Anthony D Wainwright Police Complaints Authority."

9. On 2 May 1996, the Commissioner of Police wrote to the Police Complaints Authority acknowledging receipt of the amended assessment and recommendation and advised of his agreement thereto (AT6).

10. On 7 May 1996, a letter was forwarded to Mr Tropeano acknowledging receipt of the complaint and enclosing a copy of the assessment and recommendation. The letter advised that the Deputy Commissioner of Police had agreed with the assessment and the Register of Police Complaints had been noted accordingly (AT2).

11. It appeared that a copy of the report was also sent by fax to Mr Tropeano on 3 May 1996.

12. The plaintiff in these proceedings complains of the failure of the defendant to comply with the procedure set out in the Act relating to his assessment and recommendation following the investigation of a complaint.

13. In order to consider this matter it is necessary to have regard to some of the specific provisions of the Act.

14. The Police (Complaints and Disciplinary Proceedings) Act 1985 came into operation on 1 September 1985. The preamble describes it as:

"An Act to provide for the investigation of complaints made in respect of members of the police force; to provide for the appointment of a Police Complaints Authority and to prescribe his duties and functions; to make provision in relation to police disciplinary proceedings; and for other purposes."

15. Section 3 of the Act defines "the Authority" as

"the person appointed to be the Police Complaints Authority under Part 2 or a person acting in the office of Police Complaints Authority in pursuance of that Part."

16. Section 5(2) provides that:

"A person shall not be appointed to be the Authority unless he is enrolled as a barrister or solicitor, or both, or legal practitioner, of the High Court or the Supreme Court of this State or another State or Territory of the Commonwealth and has been so enrolled for not less than five years."

17. It is clear therefore that it is intended that the Authority be constituted by a legal practitioner who will be independent of the police force.

18. Section 3 defines "the Commissioner" as meaning the Commissioner of Police and includes -

"(a) the Deputy Commissioner of Police acting subject to the direction of the Commissioner; or

(b) the Deputy Commissioner or an Assistant Commissioner of Police acting in the place of the Commissioner during a period for which the Commissioner is absent or the office of the Commissioner is vacant."

19. The "internal investigation branch" ("IIB") is defined in s3 to mean the "branch of the police force established in pursuance of Part 3".

20. Part 3 of the Act is headed "Police Internal Investigation Branch". Section 13 provides: "(1) The Commissioner shall constitute within the police force a separate branch to carry out investigations under this Act in relation to complaints about the conduct of members of the police force.

(2) In addition to carrying out investigations referred to in subsection
(1), the internal investigation branch may carry out such other investigations in relation to the conduct of members of the police force as may be required by the Commissioner."

21. Part 4 of the Act is concerned with "Complaints and Their Investigation". Section 16 provides that: (1) A complaint about the conduct of a member of the police force may be made -

(a) to a member of the police force (not being the member about whose conduct the complaint is made); or

(b) to the Authority."

22. Section 18 of the Act deals with the action upon a complaint being made to a member of the police force, and provides: (1) Where a complaint to which this Act applies is made to a member of the police force, the member shall, in accordance with any directions of the Commissioner -

(a) refer the complaint by the most expeditious means available to him, to the internal investigation branch for investigation; or

(b) refer the complainant to a member of the police force authorised to receive the complaint.

(2) Where a complaint is made to a member of the police force to whom the complainant has been referred under subsection (1)(b), that member shall refer the complaint, by the most expeditious means available to him, to the internal investigation branch for investigation.

(3) Where a complaint is referred to the internal investigation branch under this section, the Authority shall be notified, by writing, of the complaint and furnished with particulars of the complaint."

23. Section 19 of the Act deals with the situation in which a complaint is made to the Authority. That section provides: (1) Where a complaint to which this Act applies is made to the Authority, the Authority shall -

(a) notify the Commissioner, by writing, of the complaint and furnish him with particulars of the complaint; and

(b) subject to any determination under section 21, 22 or 23, refer the complaint to the Commissioner.

(2) Where a complaint is referred to the Commissioner under subsection
(1)(b), the Commissioner shall refer the complaint to the internal investigation branch for investigation."

24. Section 23 provides: (1) Subject to subsection (2), the Authority may determine that a complaint to which this Act applies (whether being a complaint made to the Authority or a complaint of which the Authority has been notified under section 18) should be investigated by him.

(2) The Authority may make a determination under subsection (1) -

(a) after consultation with the Commissioner, in relation to any complaint that he is satisfied -

(i) concerns conduct of a member of the police force holding a rank equal to or senior to the rank held by the officer in charge of the internal investigation branch; or(ii) concerns conduct of a member of the police force serving in the internal investigation branch; or

(iii) is in substance about the practices, procedures or policies of the police force; or

(iv) should for any other reason be investigated by the Authority; or

(b) in relation to any complaint that concerns conduct of a prescribed officer or employee - if the Authority is of the opinion, having regard to the nature of the matters raised by the complaint in relation to the prescribed officer or employee, that there are no special reasons justifying investigation of the complaint by the internal investigation branch; or

(c) as otherwise provided under this Act.

(3) Where a determination is made under subsection (1), the Authority may, in addition, make one or more of the following determinations:

(a) a determination -

(i) that the complaint; or

(ii) that a matter or matters raised by the complaint,

should be investigated or further investigated by the internal investigation branch in conjunction with the investigation to be carried out by him;

(b) a determination -

(i) that the complaint; or

(ii) that a matter or matters raised by the complaint,

should not be investigated or further investigated by the internal investigation branch or any member of the police force acting under the direction of the Commissioner.

(4) Where the Authority makes a determination under this section, he shall, by writing, notify the Commissioner of the determination.

(5) Where -

(a) a determination is made under this section in relation to a complaint; and

(b) the internal investigation branch has commenced but not completed an investigation or further investigation of the complaint,

the officer in charge of the branch shall, as soon as is practicable, cause a report, in writing, of the results of the investigation or further investigation to be prepared and delivered to the Commissioner.

(6) The Commissioner shall, as soon as practicable after his receipt of a report under subsection (5), furnish a copy of the report to the Authority and, when doing so, may attach to the report such comments as he thinks fit to make in relation to the investigation or further investigation."

25. Section 25 of the Act deals with investigation of complaints by the internal investigation branch and it includes certain powers with respect to the obtaining of information and making inquiries.

26. Section 26 of the Act deals with the powers of the Authority to oversee investigations by the internal investigation branch. Section 26(1) provides: "The Authority may, at any time after a complaint has been referred to the internal investigation branch for investigation or further investigation under this Act -

(a) discuss the complaint or any aspect of the complaint with the complainant; or

(b) require the Commissioner or, as approved by the Commissioner, the officer in charge or any other member of the internal investigation branch -

(i) to provide information to him about the progress of the investigation; or

(ii) to arrange for him to inspect any document or record in the possession or under the control of the branch that is relevant to the complaint; or

(iii) to arrange for him to interview a person other than the complainant in relation to the complaint."

27. The Authority can therefore enlist the aid of the IIB in order to investigate complaints although the IIB remains under the direction of the Commissioner.

28. Section 27 of the Act requires the officer in charge of the internal investigation branch to maintain a register containing the prescribed particulars with respect to each complaint referred to the branch for investigation or for further investigation under the Act.

29. Section 28 deals with investigations of complaints by the Authority. Section 28(1) is important. It provides that: "Where the Authority has made a determination under section 23 that a complaint should be investigated by him, the investigation shall be conducted in private and, subject to this section, in such manner as he thinks fit."

30. Section 29 of the Act deals with the requirement of the Authority to keep a register containing particulars of each complaint.

31. Section 30 provides: "Any inquiry by a complainant as to the investigation of his complaint shall be directed to the Authority who shall, in response to the inquiry, furnish such information as he considers appropriate in relation to the investigation or further investigation of the complaint."

32. Part 5 of the Act deals with the action consequential upon the investigation. Section 31 provides that reports of the investigations by internal investigation branch be furnished to the Authority. Section 31 is as follows: "(1) When the internal investigation branch completes an investigation or further investigation of a complaint referred to it under this Act, the officer in charge of the branch shall, as soon as practicable, cause a report, in writing, of the results of the investigation or further investigation to be prepared and delivered to the Commissioner.

(2) The Commissioner shall, as soon as practicable after his receipt of a report under subsection (1), unless he directs that further investigations be carried out by the internal investigation branch, furnish a copy of the report to the Authority and, when doing so, may attach to the report such comments as he thinks fit to make in relation to the investigation or further investigation."

33. Section 32 requires the Authority to make an assessment and recommendations in relation to the investigations by the internal investigation branch. It provides as follows: (1) Where the Authority receives from the Commissioner pursuant to section 31 a report of the results of the investigation or further investigation of a complaint by the internal investigation branch, he shall consider the report and any comments of the Commissioner attached to the report and, subject to subsection (2), shall, by writing, notify the Commissioner of -

(a) his assessment of whether -

(i) any conduct of a member of the police force -

(A) constituted an offence or breach of discipline or was contrary to law; or

(B) was unreasonable, unjust, oppressive or improperly discriminatory; or

(C) was in accordance with a rule of law, a provision of an enactment or a practice, procedure or policy, being a rule, provision, practice, procedure or policy that is or may be unreasonable, unjust, oppressive or improperly discriminatory; or

(D) was based either wholly or partly on a mistake of law or of fact; or

(E) was otherwise, in all the circumstances, wrong; or

(ii) a member exercised a discretionary power for an improper purpose or on irrelevant grounds; or

(iii) in a case where the conduct to which the complaint relates comprised or included a decision by a member to exercise a discretionary power in a particular manner or to refuse to exercise such a power -

(A) irrelevant considerations were taken into account in the course of reaching the decision to exercise the power in that manner or to refuse to exercise the power, as the case may be; or

(B) the complainant in respect of the investigation or some other person was entitled at law to have been furnished, but was not furnished, with the reasons for deciding to exercise the power in that manner or to refuse to exercise the power, as the case may be; and

(b) his recommendations as to whether -

(i) action should be taken -

(A) to charge a member of the police force with an offence or breach of discipline; or

(B) to reconsider, vary or reverse a decision or to provide reasons for a decision; or

(C) to rectify, mitigate or alter the effects of a decision, act or omission; or

(D) to alter a rule of law, a provision of an enactment or a practice, procedure or policy on which a decision, act or omission was based; or

(ii) any other action should be taken in relation to the matter; or

(iii) no action should be taken in relation to the matter.

(2) Notwithstanding the provisions of subsection (1), the Authority may, if he considers that the complaint has not been adequately investigated, in addition to or instead of making an assessment and recommendations under that subsection - (a) refer the complaint back to the Commissioner for further investigation; or

(b) make a determination under section 23(1) that the complaint should be investigated by the Authority.

(3) Where a complaint is referred to the Commissioner under subsection
(2)(a), the Commissioner shall refer the complaint to the internal investigation division for further investigation."

34. Section 33 requires the Authority to report upon and to make assessment and recommendations in relation to the investigation carried out by him. This section states: "When the Authority completes any investigation or further investigation of a complaint conducted by him under this Act, he shall furnish to the Commissioner a report, in writing, of the results of the investigation or further investigation and shall include in the report his assessment of and recommendations as to the matters referred to in section 32(1)(a) and (b)."

35. Section 34, which goes to the heart of this matter, deals with the action to be taken by the Commissioner consequential upon receiving a recommendation of the Authority. It provides: "(1) When the Commissioner receives from the Authority pursuant to section 32 or 33 an assessment and recommendations made by the Authority in relation to the investigation or further investigation of a complaint, he shall, as soon as practicable, consider the assessment and recommendations together with the report relating to the investigation or further investigation and -

(a) if he agrees with the assessment and recommendations, notify the Authority, by writing, of his agreement; or

(b) if he does not agree with the assessment or a recommendation, notify the Authority, by writing, of his disagreement and the reasons for his disagreement.

(2) The Authority shall, where the Commissioner notifies him of disagreement with an assessment or recommendation pursuant to subsection (1), after considering the Commissioner's reasons for disagreement and conferring with the Commissioner, by notice in writing to the Commissioner, confirm or vary the assessment or recommendation or substitute for the assessment or recommendation a new assessment or recommendation.

(3) The Commissioner shall -

(a) take all such steps (if any) as are necessary to give effect to any recommendations of the Authority -

(i) as agreed to by the Commissioner pursuant to subsection (1); or

(ii) as confirmed, varied or substituted by the Authority pursuant to subsection (2); or

(b) refer the matter to the Minister."

36. The remaining subsections deal with the procedure consequent upon the referral to the Minister.

37. The remainder of the Act is not relevant to this matter but deal with the police disciplinary tribunal and appeals in respect of disciplinary matters.

38. As can be seen from these various sections, the Act creates a specific regime relating to the investigation of complaints against police officers. The Authority is constituted as a body independent of the police force to deal with such matters although it is permitted to employ the services of the IIB to investigate on its behalf. The IIB is a separate branch of the police force but remains under the direction of the Commissioner. The IIB provides its report to the Commissioner who then provides it to the Authority. The Authority then completes its report and provides it to the Commissioner. Section 34 provides the Commissioner with a final opportunity to agree or disagree with the recommendation of the Authority.

39. In this case, the complaint was made both to the Commissioner and the Authority. For present purposes I treat it as a complaint to the Authority, pursuant to the provisions of s19 of the Act.

40. Mr Mackay, in his affidavit, describes himself as a legal practitioner, employed as a senior case officer by the Authority. He said that he had the responsibility on behalf of the Authority for the conduct of Mr Tropeano's complaint. He said that the complaints were investigated by Inspector Perry of the Internal Investigations Branch. He said that on 5 January 1996, the Authority received from the Deputy Commissioner of Police, a copy all of the statements, transcripts of interview, and other material identified as relevant, together with a report prepared by Inspector Perry and a report detailing the results of investigations pursuant to s31 of the Act. He said he considered all of the material provided by the Deputy Commissioner of Police and prepared an assessment and recommendation for consideration by the Authority, that being the report dated 12 March 1996. He said the report was signed by the Authority and then forwarded to the Commissioner of Police, pursuant to s32 of the Act. Subsequently, however, he had at least two conversations on the telephone with Chief Inspector Clarke (as he then was) a disciplinary review officer in the Internal Investigations Branch, in respect of the assessment and recommendation. He could not recall the exact date of these conversations, nor the precise details thereof, but said he could remember the general gist of what was said.

41. He stated that during the first conversation, Chief Inspector Clarke stated that he disagreed with Superintendent Mildren's view that there was an excessive police presence for an unnecessary period of time at Rio International on 16 and 17 November 1995. He argued that the fact that there were differing opinions within Internal Investigation Branch over whether or not the officers' actions were reasonable, illustrated the subjective nature of such assessment. He stated that as a person who had experience in policing the Hindley Street precinct, it was his belief that the police officers acted appropriately. He indicated he would discuss the matter with Superintendent Mildren and Commander Edwards and advise him of whether or not the position as expressed in Superintendent Mildren's s31 report would continue to be the South Australian Police Department's position. Mr Mackay said that he indicated to Inspector Clarke that he would wait for him to contact him further to discuss the matter. He said that Chief Inspector Clarke contacted him later that day, or the following day, and advised that following their discussions, the Internal Investigations Branch had reached the conclusion that it was not possible to say with any degree of certainty that the deployment of the officers in question for the length of time in question was unreasonable. Mr Mackay said that he agreed to give the matter further consideration in the light of his comments, stating that he would discuss the matters with Tony Wainwright, that is, the Authority. Mr Mackay apparently then spoke to Mr Wainwright, who agreed that the assessment and recommendation of 12 March 1996 should be varied on the basis that the situation fell somewhere in the "grey area" between what was clearly appropriate and what was clearly inappropriate.

42. Following those verbal discussions, the assessment and recommendation was varied in the manner which I have described. The varied assessment, dated 16 April 1996, was then signed by the Authority. According to Mr Mackay, he forwarded it to the Internal Investigations Branch (not the Commissioner) under cover of a letter dated 22 April 1996. He confirmed that the Deputy Commissioner of Police subsequently notified the authority in writing of his agreement with the varied assessment and recommendation in a letter dated 2 May 1996. The report dated 16 April 1996 was then forwarded to Mr Tropeano.

43. The defendant admits that there was no written notification by the Commissioner to the Authority of any disagreement with the report of the 12 March 1996 as required by s34(1)(b). On the hearing of this application, the plaintiff submitted that the requirement for a written response from the Commissioner was mandatory and that in the absence of any such written advice, the Authority did not have the jurisdiction to vary or substitute the assessment or recommendation. As a result of the failure of the Commissioner or his delegate to consider and provide written notification of his objections to the March report, there was no legal foundation for the report of 16 April 1996.

44. The defendant argued, however, that the statutory functions detailed in s34(1) of the Act could be discharged by any person under the supervision of the Commissioner or his delegate, by reason of administrative necessity.

45. The defendant further argued that the duties or functions imposed or conferred by s34(1) of the Act were not solely exercisable by the Commissioner or his delegate, they might be exercised by an authorised person. In making this submission, the defendant relied on Carltona v Commissioner of Works
(1943) 2 All ER 560 and O'Reilly v Commissioners of the State Bank of Victoria
(1982) 153 CLR 1.

46. There is no dispute that the Commissioner has a power to delegate pursuant to the provisions of s53 of the Police Act 1952. Nor is it disputed that certain duties and functions can be exercised by an authorised person. It must be remembered, however, as Gibbs CJ said in O'Reilly v Commissioners of the State Bank of Victoria (supra) at p11: "The answer to the question whether the statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case."

47. The duties and responsibility of the Commissioner pursuant to this Act are significant, given that the Act is concerned with the investigation of complaints against police officers, which investigations are conducted in private. In my view, this would not be an appropriate case for the delegation of power to any person other than a delegate properly appointed in accordance with s53 of the Police Act 1952. In this case, there was no such delegation to Chief Inspector Clarke or anyone else. In any event it would have been improper for the Commissioner to delegate his duties under this Act to a member of the IIB. That would be to confuse the separate roles and responsibilities of each of the bodies concerned in the administration of this Act (which I believe is what has occurred in this case) and would in effect result in the IIB reporting to itself.

48. The defendant further argued that the requirement for a written notice pursuant to ss34(1) and (2) of the Act was directory, not mandatory, because the statutory purpose was achieved if there had been an effective consultation between the Authority and the Commissioner. As that had occurred there was substantial compliance with the statutory purpose of s34(1) and 34(2)being achieved.

49. It would seem that the procedure followed on this occasion has been the standard practice in existence for some time. Commander Edwards, in his affidavit, says: "11. When I joined the IIB Branch in January 1994 it was the usual practice of the Branch to orally notify the Authority where IIB disagreed with some aspects of an assessment and recommendations. IIB and the Authority would then attempt to negotiate a position in respect of the matter. The Authority would then either confirm or vary the assessment and recommendations. The original or varied document would then be forwarded to the Deputy Commissioner who pursuant to advice from the IIB Branch, would notify the Authority in writing as to whether he agreed or disagreed with the assessment and recommendations. This practice has continued to date.

12. Whilst IIB did not (and does not) generally obtain instructions from the Deputy Commissioner before contacting the Authority to advise of a disagreement, Deputy Commissioner Hurley was fully aware of the practice and was of the opinion that it was very practical and efficient since it reduced the 'paper war'. (I agree with that opinion.) The current Acting Deputy Commissioner is also aware of the practice.

13. Whilst I do not recall the exact discussions within IIB regarding the original assessment and recommendations relating to Mr Tropeano's complaint, I do recall that IIB did discuss the original assessment and recommendation upon its receipt.

14. In essence we considered it difficult to determine whether the presence of the police officers at Rio's was reasonable or unreasonable, particularly since we were looking at the issue in hindsight. We also disagreed with the recommendation that conduct be found against one of the police officers involved, since he was relying on inaccurate police records. We were concerned that if the relevant police officers did not accept recorded advice, the matter would proceed to a disciplinary hearing, and we considered that it would be difficult to substantiate a breach of the Regulations in light of the facts.

15. (not relevant) ...

16. Superintendent Clarke had conduct of the file at this time since it is the office practice for the Disciplinary Review Officer to give consideration to an assessment and recommendations where the Authority finds conduct against a police officer. This practice has developed because it is the Disciplinary Review Officer's role to lay and prosecute disciplinary matters before the Police Disciplinary Tribunal. Superintendent Clarke is currently on annual leave."

50. The procedure adopted by the police undoubtedly is convenient, but convenience is hardly an excuse for what, in my opinion, is a blatant disregard of the provisions of the Act. The Act clearly specifies the distinct roles and functions of the Authority, the Commissioner of Police and the Internal Investigations Branch. The Act creates a specific regime for investigating complaints with respect to the conduct of police officers. These inevitably are matters of considerable sensitivity which presumably is the reason for s28(1) providing that such an investigation be conducted in private. The only document to which the complainant is entitled as a matter of law is the final assessment. I view with some concern the suggestion that the IIB and the Authority would attempt to "negotiate a position" in a situation in which the complainant has no right to be heard. If the public is to have confidence in the Authority it must be seen to be acting in a truly independent manner. It is essential that there be a strict adherence to the procedures set out in the Act. The legislature obviously contemplated that situations might arise in which there could be a disagreement between the Commissioner and the Authority which might, in appropriate cases, require the Authority to reconsider its initial recommendation. This is understandable. The complainant is afforded protection in that situation by the requirement for the Commissioner to set out his disagreement in writing. The public will have confidence in any subsequent adjudication by the Minister following a disagreement if he/she has access to a properly documented contemporaneous record of the reason for such a disagreement. Otherwise the Minister would be placed in the invidious position of having to call for a report concerning undocumented private conversations between the Authority and the IIB which may well have taken place a substantial time before and which potentially compromise the Authority's independence.

51. The Act establishes the Internal Investigations Branch as a separate branch of the police force for the purpose of investigating complaints. It is not for the IIB to make suggestions to the Authority as to how the report should be prepared. If there is an internal dispute within the IIB arising out of the investigation it has ample opportunity to resolve that matter before the report goes to the Authority. Once the IIB has completed its investigation, it is obliged to report to the Commissioner. Any conflicting views can easily be set forth in that report. The Commissioner will then furnish a copy of that report to the Authority and the Authority can give such weight to the differing views as he/she considers appropriate. In my opinion, once the Authority has completed its report it is only the Commissioner, the Deputy Commissioner or his properly appointed delegate who has the right to express his disagreement with the contents of that report and he must do so in writing. It is not intended to provide the IIB with a further opportunity to have the contents of the report reviewed.

52. Judicial review is applicable to decisions of the Police Complaints Authority on the ground that the Authority is a body which has legal authority to determine questions pursuant to Statute. On the hearing of this application, the defendant did not dispute that an order in the nature of certiorari would lie as a form of relief.

53. The defendant argued however that, even if I considered this to be an appropriate case to grant the order, relief should be denied on the ground that the errors, if any, were a de minimus departure from the requirements of the Act. In addition the plaintiff did not issue the proceedings as promptly as possible in accordance with Supreme Court Rule 98.06. These arguments can be disposed of shortly. Far from being de minimis, I view the current procedure to be a significant serious departure from the requirements of the Act. The procedure must be rectified as a matter of urgency.

54. It is arguable that the plaintiff did not proceed as promptly as he could have, given that he obtained a copy of the report on 3 May 1996 but did not issue these proceedings until 25 September 1996. Nevertheless, the proceedings were issued within time. The matter was investigated by the defendant in some detail. It took the defendant some six months to investigate the matter between the date of receipt of the complaint and the provision of the report. The detailed nature of the information contained in the reports suggests there is not any prejudice to the defendant by reason of the delay and no such prejudice was raised on the hearing of this application. I am not prepared to deny the relief on the basis of delay. In my opinion, it is appropriate to make an order in the nature of certiorari quashing the report of 16 April 1996.

55. I remit the matter back to the Authority to be dealt with according to law. In view of the manner in which the matter has progressed, I consider that it would be appropriate for the Authority to appoint his Deputy for the purposes of completing the investigation of this matter, but I make no order with respect thereto.