Chief Commissioner of Police v Chen
[2015] VSC 380
•13 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 05909
| CHIEF COMMISSIONER OF POLICE | Plaintiff |
| v | |
| YONG CHEN | First defendant |
| -and- | |
| POLICE REGISTRATION AND SERVICES BOARD | Second defendant |
---
JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 July 2015 |
DATE OF JUDGMENT: | 13 August 2015 |
CASE MAY BE CITED AS: | Chief Commissioner of Police v Chen & Anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 380, First Revision: 17 August 2015; paragraph [3] |
---
ADMINISTRATIVE LAW – Judicial review of a decision by the Police Registration and Services Board – Did the Board fail to take a relevant consideration into account? – Public interest – Police Regulation Act 1958 (Vic) ss 80, 86AH, 86AL, 86AM, 86AN, 86AR, 86AQ.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Knowles | Victorian Government Solicitor’s Office |
| For the First Defendant | Mr E White | Tony Hargreaves & Partners |
| For the Second Defendant | Mr T McEvoy | Carroll & Dillon |
HIS HONOUR:
Introduction
Yong Chen, the firstnamed defendant, has been employed by Victoria Police as a Protective Services Officer (PSO). On 28 November 2013, he appeared at the Melbourne Magistrates’ Court charged with failing to store firearms and ammunition correctly. He pleaded guilty to both charges and was fined without conviction an aggregate of $1,000. The firearms and ammunition were forfeited. The charges were both punishable by terms of imprisonment.
In February 2014, a delegate of the Chief Commissioner commenced disciplinary proceedings against PSO Chen. A hearing before the delegate was conducted on 14 March 2014. On 28 March 2014, the delegate determined to dismiss PSO Chen pursuant to s 80(1) of the Police Regulation Act 1958 (Vic) (‘the Act’).
PSO Chen applied to review the delegate’s decision to the Police Registration and Services Board (‘PRS Board’ or ‘the Board’). Written submissions were prepared by both parties and a hearing was conducted on 3 September 2014. On 8 September 2014, the PRS Board set aside the delegate’s decision and, in substitution, imposed upon PSO Chen a fine of $2,000 and a 12-month good behaviour bond. It is that decision that is the subject of these proceedings. The Chief Commissioner of Police brings an Originating Motion seeking orders in the nature of certiorari and mandamus, setting aside the decision of the PRS Board and remitting the matter back to the Board for determination according to law. The sole ground that is argued in support of this application is that the PRS Board was obliged to and failed to have regard to “the public interest” and, in particular, the interest of maintaining the integrity of, and community confidence in, the police force.[1]
[1]See ss 86AM(1) and 86AM(3) of the Act.
Background
I shall set out the offending misconduct in a little more detail. Two uniformed officers attended at PSO Chen’s Brunswick unit on 17 September 2013. They met with the plaintiff and observed a freestanding metal gun safe with the key in the lock. The safe was empty. The plaintiff was asked where his guns were and he replied he kept them at a friend’s house in Craigieburn. He was asked to accompany the police to Craigieburn and he then admitted that the guns were in his unit. Beside his bed and under some clothing were a Pelican gun case and a soft longarm rifle carry case. Three longarm rifles were seized. A small green metal ammunition box containing 69 rounds of rifle ammunition was seized from a linen press. PSO Chen stated that the reason for his failure to store the items lawfully was that he was “just slack”. He pleaded guilty in the Magistrates’ Court and was sentenced on the factual basis that the relevant items were not secured for a finite 48-hour period.
The plaintiff commenced his PSO training on 22 April 2013 and graduated on 12 July 2013. He had been a member of the Victoria Police Force for four months at the time of the commission of these offences. As I have indicated, the plaintiff was dealt with in the Magistrates’ Court by way of a non-conviction aggregate fine. As a result of being found guilty of offences punishable by imprisonment a delegate of the Chief Commissioner commenced the relevant disciplinary proceedings.
The legislative scheme
6.1 The Victoria Police Act 2013 (Vic) came into operation on 1 July 2014. On that day the relevant provisions of the Police Regulation Act 1958 were repealed,[2] however transitional provisions in the 2013 Act provide that the relevant provisions of the 1958 Act continue to apply to determinations of the Chief Commissioner’s delegate, and review proceedings before the PRS Board. Accordingly, the relevant provisions of the 1958 Act apply to this proceeding.[3] This is not in dispute.
[2]See Division 1 of Part 16 of the Victoria Police Act 2013.
[3]Section 287 of the Victoria Police Act 2013. See also Schedule 6 of that Act and Item 33 of that schedule.
6.2 Section 80 of the Act provides, relevantly, that if a member of the police force[4] has been charged with an offence punishable by imprisonment and the offence has been found proven the Chief Commissioner has various sanctions available, one of which is to dismiss the member.[5] Section 86AH provides that a member may apply to the PRS Board for a review of a decision of the Chief Commissioner to dismiss the member.
[4]A PSO is a member of the police force for all relevant purposes. Section 118B(2) of the Act; s 118F of the Act.
[5]Section 80(1)(a)
6.3 Section 86 AN only applies to a decision to terminate a members appointment and provides that:
(a)on a review of a decision to dismiss a member, the PRS Board must affirm the decision unless the PRS Board is satisfied that the decision is harsh, unjust or unreasonable;[6] and
(b)if the PRS Board is satisfied that the decision is harsh, unjust or unreasonable, the PRS Board may set aside that decision and:
(i)in substitution for that decision, make every other decision or determination that the person who made the decision could have made; or
(ii)refer the matter for determination by the Chief Commissioner in accordance with any direction or recommendations of the PRS Board.[7]
6.4 Section 86AM(1) obliges the PRS Board in a review to have regard to:
(a) the public interest; and
(b) the interests of the applicant for review.
[6]Section 86AN(2)
[7]Section 86AN(3)(a) and (b)
Section 86AM(3) provides that in section 86 the “public interest” includes the interest of maintaining the integrity of, and community confidence in, the force.[8]
6.5 The PRS Board is bound by the rules of natural justice[9] and all reviews must be conducted with as little formality and technicality and as much speed as is practically permitted by the constraints of the “requirements of (the) Act and the proper consideration of the subject matter”.[10] The PRS Board is not bound by the rules of evidence and may inform itself on any matter as it sees fit.[11]
[8]Section 86AM(3).
[9]Section 86AL.
[10]Section 86AR(1).
[11]Section 86AQ
The parties’ contentions
I have indicated in paragraph [3] that the PRS Board set aside the delegate’s decision and substituted its own. It is clear that the Board considered the original penalty imposed as ‘harsh, unjust or unreasonable.’ The plaintiff’s contention is simply this. The board, in conducting its review, was required to consider the public interest in maintaining the integrity of, and community confidence in, the force. The plaintiff submits that the Court ought infer that the Board failed to take into account this relevant consideration in determining to set aside the delegate’s original decision and substitute its own. The plaintiff argues that I should infer this from the Board’s reasons for decision, which make no overt mention of the public interest and do not otherwise indicate that the Board had regard to it. Should the plaintiff succeed in this contention it is then contended that the decision is affected by jurisdictional error and the remedies sought ought be granted.
The plaintiff submits that the Board’s jurisdiction to review a decision to dismiss a member is enlivened by the determination that the original decision was ‘harsh, unjust or unreasonable’. He contends that the Act therefore critically required that the Board have regard to the public interest in that determination, as well as in any alternate sanction imposed. He seeks that the Court draw the inference that the Board did not consider the public interest at all in that first critical determination.
The first defendant’s response is that I should not infer that the Board failed to give active consideration to the public interest. Aspects of the public interest were the subject of comprehensive submissions and were central to the original decision to dismiss PSO Chen. It is apparent from the Board’s reasons that it weighted up the public interest in assessing the balance between it and the interest of PSO Chen.
Did the Board fail to take account of the public interest?
The hearing
The Board was constituted by its President, Mr L.C. Ross QC, Ms B Masterton, Deputy President, and Mr A Walsh, member. Sergeant S Hose appeared for the Chief Commissioner and Mr Gorissen, Discipline Advocate for the Police Association, appeared on behalf of Mr Chen. Both advocates made written and oral submissions. I will refer to them where relevant.
The Chief Commissioner relied upon the original reasons of his delegate. In those reasons the following was said to have been taken into account:
The impact of your actions having regard to the reputation of the Victoria Police and the broader expectations of the community.
Later in the reasons his delegate said:
You have committed serious criminal offences which have the potential to damage the reputation of the Victoria Police and to diminish public confidence.
As these reasons were the focus of the review they were obviously before the Board at that review.[12]
[12]There is no actual evidence of this although the inference is inescapable.
In her written submissions Sergeant Hose’s submitted:
·The dismissal was protective of the organisation and the community.[13]
·The applicant as a (PSO) holds a significant position in the community and a clear message needs to be sent to the public and the PSO membership that this behaviour is not to be tolerated.[14]
·The harm to the reputation of Victoria Police and damage to the community’s confidence in Victoria Police pose as potential and significant effects of this decision.[15]
In her oral submissions she returned to this theme:
Member of the community and indeed Victoria Police have the expectation that police officer(s) and protective services officers are honest, they possess high levels of integrity and that they obey the law they have sworn to uphold. The conduct of the applicant fails to reflect the organisational values of Victoria Police and the sanction of dismissal upholds the expectation and affords protection of Victoria Police and of the community.[16]
I am satisfied that Sergeant Hose, in the course of her comprehensive written and oral submissions, directed the Board’s attention to the public interest component of s 86AM(1) that I have set out in paragraph [6.2] of these reasons.
[13]Exhibit X, Tab 11, Written submissions prepared by Sergeant Hose, [3].
[14]Ibid, [3].
[15]Ibid, [8].
[16]Exhibit X, Tab 12, Transcript of Proceedings, 3 September 2014, 31.
Mr Gorrisen also made some references to this public interest component of s 86AM(1) although, perhaps understandably, he chose not to dwell on it:
He concedes it reflects poorly not only on him but on the Force as a whole.[17]
[17]Exhibit X, Tab 10, ‘Submission re Mitigation and Sanction’, 1.
In a prepared statement PSO Chen apologised for many things amongst them the “damage that has already been done to the Victoria Police Force’s reputation”.[18]
[18]Exhibit X, Tab 12, Transcript of Proceedings, 3 September 2014, 29.
The PRS Board’s reasons
The Board set out the charge before the Chief Commissioner’s delegate, the background to the criminal offending and the orders made in the Magistrates’ Court. The submissions made at the initial discipline hearing were summarised by the Board. The Board then (correctly in my view) jettisoned an issue that had arisen at the Board hearing concerning PSO Chen’s relationship with his ex-wife.[19] The Board found that the applicant picked up his guns and ammunition after his shift “on the Sunday with the intention of going to the firing range the next day and, but for the intervention of illness that required him to go to hospital on the Sunday, the guns would have been in his physical possession but incorrectly stored at his flat”.[20] The Board referred to Sergeant Hose’s submissions both as to the failure to store the guns and ammunition safely and PSO Chen’s subsequent dishonesty. The Board referred to Mr Gorissen’s submissions as to his client’s unblemished past record as a five-year gun licence holder and to four cases which were said to be factually similar to these proceedings. At page 5 of its reasons, the Board said this:
[19]This was an issue that went well beyond the agreed facts at the critical discipline proceedings and had not been ventilated at all at those proceedings.
[20]No issue is taken with this finding.
The Board acknowledges the force of the arguments raised by Sergeant Hose on the seriousness of the offence of incorrect storage of weapons however his unblemished record over the last five years that the applicant has held a licence provides some support for Mr Gorissen’s argument that the applicant’s lapse on this occasion can be seen as an aberration and this conclusion, in conjunction with the other matters raised in mitigation, persuades the Board that in all the circumstances the sanction of dismissal was harsh.
Earlier (at page 4) in its reasons, and in the context of considering the PSO Chen’s dishonesty, the Board said that it had considered the respective submissions of the parties.
Legal Principles
· A failure to have regard to a matter which a decision-maker is bound or obliged to consider constitutes jurisdictional error.[21]
[21]See, for example, Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 [71]-[73] and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [82].
· The “public interest”, as referred to in s 86AM of the Act, is a relevant consideration. It is a fundamental consideration or element[22] and the Board, in having regard to it, must engage in an active intellectual process[23] both at the point of exercising jurisdiction (i.e. when determining whether the original decision was harsh, unjust or unreasonable – s 86AN(3)) and, if so satisfied, at the point of determining an appropriate sanction.
[22]R v Hunt; ex parte Sean Investments (1979) 180 CLR 322, 324, 329 and 334; R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327, 333; National Retail Association v Fair Work Commission [2014] FCAFC 118, [56].
[23]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGREA 99 [44], see also Tickner v Chapman (1995) 57 FCR 451; Minister for Immigration and Citizenship v Khadji (2010) 190 FCR 248.
· The term ‘public interest’ as used in s 86AM(1) of the Act is non-exhaustively defined in s 86AM(3) to include the integrity of, and community confidence in the force. ‘Public interest’ is a notion that ‘has long informed judicial discretion and evaluative judgements at common law’.[24] In the statutory context the term (absent any definition) derives its content from the subject matter, scope and purpose of the enactment in which it appears.[25] In this case it is not in dispute that the Board was obliged actively to consider at least the public interest in the integrity of Victoria Police and community confidence in that organisation.[26]
[24]Hogan v Hinch (2011) 243 CLR 506 [31] (French CJ).
[25]Ibid. See also ibid [69] and [80] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[26]See also Police Services Board v Morris (1985) 156 CLR 397, 412, where Brennan J said ‘The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force…The purpose of police discipline is the maintenance of public confidence in the police force…’.
· Any conclusion as to whether the Board has had regard to a relevant consideration is necessarily the product of inference. When determining whether the Board in fact took into account the relevant consideration, the matters to which the Court will have regard may include any material the Board had before it at the hearing including the submissions of the parties, transcripts of the hearing before the Board together with the Board’s written reasons. While written reasons may be indicative of whether or not a decision maker has had regard a relevant consideration, they are not necessarily conclusive. A failure to make note of a factor in the written reasons does not necessarily lead to the inference that it has not been considered as required. In the same vein, simply referencing a relevant consideration in written reasons will not satisfy an inference that it has been taken into account if the reference is merely cursory.[27]
· A reviewing court should not construe the reasons for a decision under review minutely and finely with an eye keenly attended to the perception of error:
…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[28]
[27]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGREA 99 [44].
[28]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
· The plaintiff bears the onus of proving that the Board did not take into account the public interest.
Analysis
There is no direct reference to ‘the public interest’ in the Board’s reasons. This, of course, is not determinative. It must be remembered that this appeal concerns neither the adequacy of the Board’s reasons nor the weight afforded to the notion of the public interest. In order to succeed the plaintiff must demonstrate that the Board failed actively to consider or engage with the public interest at all at the relevant times, that is, at the point of exercising jurisdiction and the point of determining the appropriate sanction. In any form of litigation it is notoriously difficult to prove a negative. The Full Court of the Federal Court put it this way:
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point...[29]
[29]Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]
I am not prepared to infer that the Board failed to take into account the public interest when determining PSO Chen’s review. The Board was chaired by a vastly experienced lawyer – a former judge of the County Court and a member of her Majesty’s counsel. The legislation that obliged the Board to consider the public interest is straightforward. The written submissions made on behalf of the Chief Commissioner dealt with ‘the public interest’ comprehensively. Sergeant Hose referred directly to the concept of ‘the public interest’ on four separate occasions. From paragraphs [15] to [18] of her written submissions Sergeant Hose spelt out clearly and correctly the fundamental importance of the Board’s obligation to consider the public interest, and the place of the ‘public interest’ in the balancing exercise to be performed by the Board. Sergeant Hose supplemented these written submissions with oral argument. I have referred to these submissions at paragraph [10] of these reasons. I consider that the public interest was central to Sergeant Hose’s submissions.
The Board also had before it Commander Purton’s reasons for determining that PSO Chen be dismissed from Victoria Police. Amongst other factors that were taken into account the Chief Commissioner’s delegate took into account:
· the impact of PSO Chen’s actions having regard to the reputation of Victoria Police and the broader expectations of the community; and
· That Victoria Police and the community expect members to obey the law and to possess the highest levels of integrity.
At page 4 of its reasons, albeit not in the context of ‘the public interest’, the Board said that it had considered the respective submissions (of the parties). I agree with Mr White that whilst this statement is to do with a factual finding unconnected to the public interest, it is at least some indication that the Board considered the submissions that were before it.
In paragraph [13] of these reasons I have set out a passage in which the Board acknowledged the force of the arguments raised by Sergeant Hose on the seriousness of the offence. It went on to say that the applicant’s unblemished record supports the conclusion that the offence was an aberration, and together with the mitigating matters that “persuades the Board that in all the circumstances the sanction of dismissal was harsh”.
The Act requires a very simple reasoning process. In its review, when determining whether the original decision was harsh, unjust or unreasonable, the Board was required to have regard to a minimum of two factors in a balancing process – the public interest (which includes the interest in maintaining the integrity of, and community confidence in, the force) and the interests of PSO Chen. I consider the passage set out in paragraph [13] and referred to in the preceding paragraph, when considered with Sergeant Hose’s submissions, evidences this balancing process.
I have set out a summary of Sergeant Hose’s submissions at paragraph [11] of these reasons. In my view, a fair reading of Sergeant Hose’s written and oral submissions discloses that the following factors were said to bear upon the seriousness of the offending conduct:
· The public and other PSOs need to understand that this sort of behaviour will not be tolerated;
· The reputation of Victoria Police has suffered and there has been associated damage to community confidence in the Police Force’s integrity;
· The sanction of dismissal was protective of the organisation and the community. It upheld the organisational values which require that officers display high levels of integrity.
As I have noted there is no specific reference to the phrase ‘the public interest’ in the Board’s reasons. I consider that when the Board that it “acknowledged the force of the arguments raised by Sergeant Hose on the seriousness of the offence” this was a shorthand way of the Board acknowledging that it accepted that there was force in the submissions that I have identified above, which are directed to do with ‘the public interest’. If this analysis is correct, the plaintiff’s argument that the Board gave no active consideration to ‘the public interest’ is, in my view, unsustainable. It is not the point to demonstrate that the Board gave the public interest too little weight or too little prominence in its reasons.
I am fortified in this conclusion by the sanction ultimately imposed by the Board. PSO Chen was fined by the Board $2,000 and placed on a 12-month good behaviour bond. This was in addition to the $1,000 fine already imposed by the Magistrates’ Court. The fine of $2,000 is a sanction imposed for a reason. It cannot be said to be ‘in the interests of the applicant for review’. In my view the only sensible purpose for imposing such a fine, given the protective nature of the legislation, is to deter the applicant and other police officers from similar conduct. If this be the case then the fine, in itself, is a reflection of the Board actively considering the public interest in maintaining the integrity of, and community confidence in, the force by endeavouring to deter PSO Chen and others from similar conduct.
For these reasons I am not satisfied that the Board failed to give active consideration to the public interest in its review as required by s 86AM(1). Accordingly, the plaintiff has failed in this application.
1
0
0