Chief Commissioner of Police v Ihf

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04567

CHIEF COMMISSIONER OF POLICE	Plaintiff
v
IHF	First Defendant
and
POLICE REGISTRATION & SERVICES BOARD	Second Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2020
DATE OF JUDGMENT:	21 September 2020
CASE MAY BE CITED AS:	Chief Commissioner of Police v IHF & Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 608

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ADMINISTRATIVE LAW –Victoria Police Act 2013 (Vic) ss 146, 152 – Judicial review – Where a Victorian police officer was found guilty of a charge of ‘disgraceful conduct’ contrary to s 125(1)(j) of the Act brought by the Chief Commissioner of Police and dismissed from Victoria Police – Where upon a review of the dismissal decision pursuant to s 146 the Police Registration and Services Board set aside the dismissal of the police officer and decided he was not guilty of the charge – Where the Board’s power to make a different decision was conditioned on it being satisfied pursuant to s 152(2) that the decision to dismiss was ‘harsh, unjust or unreasonable’ - Whether the Board’s decision was affected by jurisdictional error – Whether the Board constructively failed to reach the requisite state of satisfaction – Whether the Board failed to afford procedural fairness to the Chief Commissioner by declining to permit further evidence on the hearing of the review.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Richard Dalton QC Mr Matthew Minucci	Clayton Utz
For the First Defendant	Mr Eugene White	Tony Hargreaves & Partners
For the Second Defendant	No Appearance	Russell Kennedy

TABLE OF CONTENTS

Introduction and Summary.............................................................................................................. 1

Statutory framework......................................................................................................................... 3

Nature of the Board’s review........................................................................................................... 5

Procedural background..................................................................................................................... 7

Ground 1............................................................................................................................................ 12

Constructive failure to form the required satisfaction.......................................................... 17
Was the Board’s inquiry incapable of founding a rational basis for its satisfaction?....... 18
Did the Board conduct the wrong review?............................................................................. 21
Did the Board fail to reach the required satisfaction because it only considered the evidence before the Inquiry Officer?........................................................................................................... 23

Ground 2............................................................................................................................................ 26

Relevant principles..................................................................................................................... 26
The refusal to admit further evidence...................................................................................... 27
Was the Chief Commissioner denied procedural fairness?.................................................. 31

Conclusion......................................................................................................................................... 33

HIS HONOUR:

Introduction and Summary

On 27 March 2017, the first defendant, IHF,[1] a senior constable of police, attended a day spa and wellness centre for a ‘male wax, Speedo line’. A 23 year old female day spa therapist later complained that IHF had exposed his erect penis to her while she performed the waxing treatment. From that incident, IHF was charged under the Victoria Police Act 2013 (Vic) (‘the Act’) with ‘disgraceful conduct’. After an investigation, he was found guilty of the charge and dismissed from the police force by an Inquiry Officer acting upon the authority of the plaintiff, the Chief Commissioner of Police (‘the Chief Commissioner’). Upon a review of the dismissal decision, the Police Registration and Services Board (‘the Board’), the second defendant, set aside the decision and substituted a decision that the disgraceful conduct charge was not proven.[2]
[1]A pseudonym.
[2]PRSB Decision A23/2019 (interim decision 11 July 2019, addendum and order 7 August 2019) (‘Board’s Reasons’).

The Chief Commissioner has applied for an order in the nature of certiorari, to quash the Board’s decision and an order in the nature of mandamus, remitting IHF’s application to review the Inquiry Officer’s decision to a differently constituted Board to be determined according to law.

In order to exercise its power to set aside the decision, the Board first had to be satisfied that the decision was ‘harsh, unjust or unreasonable’.[3] In its reasons for decision, the Board stated that it was so satisfied. A significant aspect of its reasoning was that the evidence as a whole was capable of supporting an account of events which involved inadvertent and unknowing exposure by IHF of his penis,[4] an account which the Board found the Inquiry Officer had failed to adequately investigate and consider. The Board found that the Chief Commissioner, the person who brought the charge against IHF, had not satisfied the onus cast upon him to prove a version of events which substantiated the charge.[5]
[3]Victoria Police Act 2013 (Vic) s 152(2) (‘the Act’).
[4]Board’s Reasons (n 2) [112].
[5]Board’s Reasons (n 2) [117].

Although the day spa therapist had given evidence at the inquiry held by the Inquiry Officer, the Chief Commissioner applied to have her called to give further evidence at the review hearing before the Board on the question of whether the exposure may have been inadvertent and unknowing. Despite having the power to do so,[6] the Board declined to have the additional evidence adduced.
[6]The Act (n 3) s 159.

The Chief Commissioner relies upon two grounds for the judicial review of the Board’s decision.[7] The first ground may be seen as several grounds rolled into one or, alternatively, one single ground expressed in a variety of ways. Those grounds are:

(a) Ground 1. The Board constructively failed to form the satisfaction necessary for its exercise of power, namely that the Inquiry Decision was harsh, unjust or unreasonable. In particular: by inquiring into an inadvertent exposure hypothesis that was excluded on [IHF’s] evidence at the Inquiry Hearing, and confining that inquiry to the evidence of the incident adduced in the Inquiry, the Board undertook a free-ranging review of whether the Charge was proven, disconnected from the evidence. Such an inquiry was incapable of grounding any rational basis for a satisfaction that the Inquiry Decision was harsh, unjust unreasonable. In so doing, the Board misconceived the nature of its statutory task, conducting a review other than one contemplated by s 152 of the [Act]. Further, the Board exercised the power in a manner that was legally unreasonable and failed to take into account required considerations.

(b) Ground 2. Further and alternatively, the Board denied the [Chief Commissioner] procedural fairness, in that it did not afford the [Chief Commissioner] a reasonable opportunity to be heard and to lead evidence with respect to the inadvertent exposure hypothesis.

[7]By his originating motion filed 7 October 2019, the Chief Commissioner relied upon four grounds of review. At the hearing of the proceeding, the Chief Commissioner was given leave (without objection) to substitute for those four grounds the two grounds set out in paragraph 9 of his written Outline of Submissions filed 12 February 2020.

I am not persuaded that the Chief Commissioner has made out either of its two grounds (whether the first ground is seen as one ground or several) and the proceeding must be dismissed. I state my reasons for that conclusion below.

Statutory framework

The purpose of the Act includes to modernise the law relating to the governance and regulation of Victoria Police.[8] The role of Victoria Police is to serve the Victorian community and uphold the law so as to promote a safe, secure and orderly society.[9] The role of the Chief Commissioner is to be responsible for the management and control of Victoria Police including, in particular, to be responsible for the general conduct, performance and operations of Victoria Police.[10] As provided in Part 7 of the Act, that responsibility encompasses maintaining proper standards of conduct through investigating and sanctioning breaches of discipline by police officers.
[8]The Act (n 3) s 1.
[9]Ibid s 6.
[10]Ibid s 16.

Part 7 of the Act deals with discipline. A police officer commits a breach of discipline if, amongst other things, he or she is guilty of ‘disgraceful or improper conduct’ whether in his or her professional capacity or otherwise.[11] The Chief Commissioner may begin a preliminary investigation if he or she reasonably believes that a police officer may have committed a breach of discipline.[12] After such a preliminary investigation the Chief Commissioner may charge the officer with the commission of that breach of discipline if the Chief Commissioner reasonably believes that the police officer has committed such a breach.[13] The charge must conform to a number of specific requirements.[14]
[11]Ibid s 125 (1)(j).
[12]Ibid s 126.
[13]Ibid s 127 (1).
[14]Ibid s 128.

Having brought the charge, the Chief Commissioner must inquire into and determine that charge.[15] The Chief Commissioner may authorise a police officer, or a person employed under the Public Administration Act 2004 (Vic), to lay the charge against the police officer, or to inquire into and determine the charge, but not both.[16]
[15]The Act (n 3) s 129.
[16]Ibid s 130.

In this case, the Chief Commissioner brought the charge against IHF but authorised the Inquiry Officer to inquire into and determine that charge.

A police officer who is charged with a breach of discipline may appear at the inquiry into the charge or be represented by a person other than a legal practitioner.[17] If the person conducting the inquiry finds the charge has been proven that person may make one or more of a number of determinations, commencing with a reprimand through to dismissal.[18]
[17]Ibid (n 3) s 131.
[18]Ibid s 132 (1).

Part 8 of the Act deals with appeals and reviews from the various forms of decisions which may be made under the Act, including determinations of a charge of breach of discipline.

A police officer may apply to the Board for a review of a decision by a person authorised by the Chief Commissioner to dismiss the officer.[19] The Board is established under Part 12 of the Act. It has a number of divisions one of which is the Review Division.[20] For the purpose of conducting a review of a decision to dismiss a police officer the Board must be constituted by three members of the Review Division at least one of whom must be the President or a Deputy President of the division and another must be a legal practitioner of at least five years standing.[21]
[19]Ibid s 146 (1)(m).
[20]Ibid ss 203(c) and 208.
[21]Ibid s 148(1).

In conducting a review the Board must have regard to the public interest (which includes the interest of maintaining the integrity of, and community confidence in, Victoria Police) and the interests of the applicant for review.[22] In a review of a dismissal the Board must affirm the decision unless it is satisfied that the decision is ‘harsh, unjust or unreasonable’.[23] If so satisfied, in the case of a review of a decision to dismiss a police officer, the Board may set aside the decision and, in substitution for it, make any other decision or determination that the person who made the decision could have made. Alternatively, it may set aside the decision and refer the matter for determination by the Chief Commissioner in accordance with any other directions or recommendations the board may give.[24]
[22]The Act (n 3) s 151.
[23]Ibid s 152(2).
[24]Ibid s 152(3).

The Board is bound by the rules of natural justice in conducting a review.[25] It must conduct the review with as little formality and technicality, and as much speed, as the requirements of the Act and the proper consideration of the subject matter permits.[26] It may regulate its own procedure and is not bound by the rules of evidence, informing itself on any matter as it sees fit.[27] It may also require evidence to be given on oath or affirmation.[28]
[25]Ibid s 155.
[26]Ibid s 156.
[27]Ibid s 159(1).
[28]Ibid s 159(2).

On a review, the applicant and the Chief Commissioner may appear and may be represented by any person other than a legal practitioner.[29] The Board must publish a statement of its reasons for decision unless it is satisfied it would not be in the public interest to do so.[30]
[29]Ibid s 158(2).
[30]Ibid s 154A(1).

The Chief Commissioner must give effect to an order or decision of the Board on a review.[31]
[31]Ibid s 165.

Nature of the Board’s review

It was common ground between the parties that a review by the Board under s 146 of the Act is a review de novo, in the sense that the Board was not required to identify any error in the Inquiry Decision nor required to confine itself to the evidence adduced in the Inquiry Hearing.

Considering that question for myself, I first emphasise that a s 146 review is a review of the Board’s decision — that is, a decision of a kind listed in s 146(1) of the Act — in this case, a decision under s 132 of the Act to dismiss IHF for ‘disgraceful or improper conduct’. It follows that the statutory object of the review is not the findings made on the Charge, or the reasons for those findings, or the reasons for the sanction. Of course, those matters are likely to form part of the material used to review the decision, but it is important to note that they are not directly the object of the review itself.

Significantly, the Act itself does not require the Inquiry Officer to give any reasons for a decision to dismiss an officer (or for any other decision reviewable under s 146). The Act does not condition the Board’s review on any finding of error made by the Inquiry Officer. Instead, s 152(2) provides:

On the review, the PRS Board must affirm the decision unless the PRS Board is satisfied that the decision is harsh, unjust or unreasonable.

As seen, in considering whether a decision is harsh, unjust or unreasonable the Board is able to inform itself as it sees fit, including by way of additional evidence. In Byrne v Australian Airlines Limited,[32] Gummow and McHugh JJ, although ultimately in dissent but not on this point, explained the expression ‘harsh, unjust and unreasonable’ in the following terms:

It may be that termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, maybe unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[33]

[32](1995) 185 CLR 410.

[33]Ibid 465.

So, in considering whether a decision to dismiss an officer is, for example, unjust, it will often be necessary to reconsider, and to form one’s own view about, whether the officer was guilty of the misconduct with which he or she was charged.

If the Board is satisfied the decision was harsh, unjust and unreasonable, it is empowered to make any other decision that the person who made the decision could have made.

Bearing these features in mind, the statutory scheme contemplates and requires the Board to reconsider the decision afresh with the aim of the determining, for itself, whether, on the evidence before the Inquiry Officer (and, possibly, additional evidence), the decision was harsh, unjust or unreasonable. If that satisfaction is attained, the Board may make any decision it thinks appropriate among the range of decisions that could have been made at first instance.

On this analysis, with one qualification, I agree with the position adopted by the parties as to the nature of the Board’s review.[34] The qualification is that a Board’s conceptual enquiry on review is different to that of the Inquiry Officer’s task. Whereas the Inquiry Officer’s task is to investigate and make a determination on whether the charge is proven and, if so, make a decision as to sanction, the Board’s first statutory task is to determine whether it satisfied that the Inquiry Officer’s decision was harsh, unjust or unreasonable. Depending on how the applicant for the review puts his or her case, that task may (but need not always) require the Board to undertake a thorough analysis of whether, on the evidence, the Chief Commissioner had discharged his onus to establish the charge. Given the nature of IHF’s application in this case, the review did require that kind of analysis.
[34]I also note that in Scott v Sinclair; Holden v The Police Appeals Board [2001] VSC 481, [67] Ashley J concluded that under the comparable predecessor scheme in the Police Regulation Act 1958 (Vic) the Board could conduct a rehearing, including a rehearing de novo.

Procedural background

The incident at the day spa occurred on 27 March 2017. A complaint was made to Victoria Police. An investigation into that complaint was conducted pursuant to s 171 of the Act. That investigation involved the obtaining of two written statements from the day spa therapist (5 September 2017 and 17 October 2017), a written statement obtained from the manager of the day spa (27 September 2017) and an interview of IHF on 27 October 2017 conducted by members of the Professional Standards division of Victoria Police.

On 9 August 2018, a delegate of the Chief Commissioner charged IHF with a breach of discipline as defined by s 125 of the Act, characterised as disgraceful conduct contrary to s 125(1)(j) of the Act. The terms of the charge were stated as follows (with ‘Affected Person’ being a reference to the day spa therapist):

1.1 You are a Senior Constable attached to the Melbourne Highway Patrol.
1.2You attended [the Centre] on six separate occasions in 2016 and 2017. You were off duty on these occasions.
1.3On your third attendance at the Centre you were served by [the Affected Person] for the first time. [The Affected Person] was aware you were a serving member of Victoria Police.
1.3.1[The Affected Person] is a 23 year-old female and the youngest employee at the Centre.
1.3.2On all future attendances at the Centre you specifically requested to be served by [the Affected Person].

1.4You made an appointment at the Centre on 27 March 2017 and requested a “male wax, speedo line”.
1.5Prior to the commencement of the waxing service [the Affected Person] told you to keep your underwear on and use a towel for privacy.

1.6While [the Affected Person] was outside the room, allowing you to change, you removed your underwear and placed it over a chair.

1.7      You then covered your genital region with a towel.
1.8      While [the Affected Person] was performing the waxing service you:
1.8.1    Asked if she could go a little further,
1.8.2    Stared directly at her,
1.8.3    Lifted the towel to reveal your erect penis.

1.9 [The Affected Person] told you “no” and turned her back on you.
1.9.1This gave you ample opportunity to reposition the towel to cover your penis but you left it exposed.
1.9.2You placed [the Affected Person] in a position where she was forced to cover your penis with a towel.

1.10Your inappropriate and sexualised conduct had the following effect on [the Affected Person]:
1.10.1 She felt angry and disgusted,
1.10.2 She felt as if you targeted her because of her young age.
1.11As a result of your conduct, the Centre ceased all male waxing after the incident.

The Inquiry Officer was appointed pursuant to s 130(1)(b) of the Act to inquire into and determine the charge. The Inquiry Officer conducted a hearing over five days taking evidence from (among others, who are not presently relevant) the day spa therapist, the manager of the day spa and IHF. Neither the day spa therapist nor the manager gave evidence in the presence of IHF. Nor was IHF’s representative, Mr Elliott from the Police Association, permitted to cross-examine those witnesses. Instead, Mr Elliott was invited to request the Inquiry Officer to put particular questions to either witness. As it happened, only two requests were made for questions and neither was permitted.

On 19 December 2018, the Inquiry Officer orally informed IHF of his finding that the charge was proven, giving oral reasons that day for his finding. Having been requested to do so, on 25 February 2019 he published written reasons for finding the charge of disgraceful conduct proven, together with his decision to dismiss IHF from Victoria Police and his reasons for making that decision (‘the Discipline Inquiry Charge Report’).

In his Discipline Inquiry Charge Report, the Inquiry Officer summarised, as he saw it, the conduct alleged against IHF, and IHF’s response to the allegation:

Summary of alleged conduct
It is alleged the Police Officer attended the Spa for a speedo line wax conducted by the Affected Person, a therapist at the Spa. Contrary to the Affected Person’s request, the Police Officer removed his underwear before the Affected Person entered the room to commence the waxing procedure so that his genitals were covered only by a towel provided in the room. During the procedure the Police Officer asked the Affected Person if she could “go further” and then removed the towel to expose his erect penis to the Affected Person. The Affected Person said “No” and turned away. The Police Officer did not cover himself and remained exposed until the Affected Person turned back to the Police Officer and replaced the towel over his genitals.
Summary of Police Officer’s response
The Police Officer admits that he had a speedo line wax procedure conducted by the Affected Person at the Spa on the date alleged and that he removed his underwear before the Affected Person entered the room to commence the procedure and covered his genitals with the towel provided. He denies the Affected Person requested he leave his underwear on for the procedure. He admits that he asked the Affected Person to “go further”. However, he denies that he had an erection and denies that he removed the towel and exposed his penis to the Affected Person. He says he never had an erection and his penis was never exposed to the Affected Person.

In substance, according to the Inquiry Officer, the day spa therapist alleged that IHF was requested to keep his underwear on, IHF removed the towel and revealed his erect penis to her; IHF denied he was requested to keep his underwear on, denied he removed the towel, denied he had an erect penis and denied that his penis was ever exposed.

According to the Inquiry Officer, IHF’s account did not leave open the possibility of any accidental exposure or anything similar that may have led the day spa therapist to misinterpret events. IHF did not suggest or in any way rely upon the possibility of inadvertent exposure in his account given to the Inquiry Officer. Neither during his inquiry nor in his report, did the Inquiry Officer investigate or give any consideration to the possibility that IHF’s penis (erect or otherwise) may have been inadvertently and unknowingly exposed to the day spa therapist.

Pursuant to s 146 of the Act, IHF sought a review of his dismissal. The Board convened to undertake the review comprised Ms Andrea Lester, President, Mr Chris Enright, Acting Deputy President of the Review Division, and Dr Rhonda Cumberland, a member of the Review Division. The Board conducted a review hearing on 28 May 2019, at which IHF was again represented by Mr Elliott and the Chief Commissioner was represented by a sergeant of police.

Before the Board, the Chief Commissioner accepted that for IHF’s conduct to amount to ‘disgraceful conduct’ any exposure of his penis to the day spa therapist had to be shown to be knowing and intentional (not inadvertent or accidental).[35] For its part, the Board acknowledged that if IHF deliberately exposed his erect penis to the day spa therapist during the waxing treatment, intending her to see it, and she did see it, such conduct would amount to ‘disgraceful conduct’.[36]
[35]Board’s Reasons (n 2) [31].
[36]Ibid [30].

Accordingly, the Board framed the key issue for its determination as being whether intentional and knowing exposure of IHF’s erect penis had been proven.

In substance, the Board made its decision on the basis that there was a potential version of events, not properly investigated by the Inquiry Officer (and thus not the subject of any direct evidence or questioning), which might have reconciled the accounts given by the day spa therapist and IHF and, if accepted, would have fallen short of demonstrating intentional exposure. Despite it not having been explored by the Inquiry Officer, the Board considered that an ’inadvertent exposure’ possibility was left open on all of the evidence (where, below, ‘the Applicant’ is a reference to IHF):[37]
[37]Ibid [112].

We have concluded however that the evidence as a whole is capable of supporting an account of events which involves inadvertent and unknowing exposure, as follows:
• The towel remained in substantial contact with the Applicant’s body;
• A part or side of the towel was lifted up or across (either by his action, by the movement of his body under the towel, or possibly - noting the report given by the Manager, by her action) as he asked her to wax “further in”:
• That she saw a part or all of his penis (“glimpsed the end of his penis, a little bit”) as he did this and that the Affected Person believed it to be erect;
• That the Applicant continued to hold his genitals (scrotum) over the top of the towel; and
• That a part of the Applicant’s penis was exposed to the Affected Person unintentionally, without his knowledge, as he lay on his back.

Although not the conclusion of its reasoning, the following passage from the Board’s reasons is nevertheless a sufficient basis for the Board’s ultimate disposition:[38]

We conclude the lack of clarity and the inaccuracies in the way the allegations have been elicited from [the day spa therapist] and presented in this matter means the evidence is simply not sufficiently strong and exact enough to allow us to reach a state of comfortable and reasonable satisfaction that the charge is proven on the balance of probabilities, in particular, proving intentional (as opposed to inadvertent and unknowing exposure) and sexualised exposure (that is, we are not satisfied that his penis was erect).

[38]Board’s Reasons (n 2) [110].

On 11 July 2019, the Board published an interim decision in which it announced it was satisfied that the decision to dismiss IHF was harsh, unjust and unreasonable on the basis that the charge was not proven to the required standard of proof. In particular, it was not proven that the exposure of IHF’s penis was intentional and known to him. On 7 August 2019, after allowing for submissions on the decision it should make, the Board made the order below, and published its written reasons for its findings and its decision:

Pursuant to section 152(3)(b)(i) of the Victoria Police Act 2013 (the Act) the Police Registration and Services Board sets aside the determination made on 25 February 2019 under section 132(1)(h) of the Act to dismiss the Applicant and, in substitution for it, decides (pursuant to section 132(1)) that the charge of breach of discipline (disgraceful conduct) laid against the Applicant under section 124 of the Act is found not proven.

Ground 1

As already observed, the first ground is either several grounds rolled into one or one single ground expressed a number of ways. The fundamental premise of the Chief Commissioner’s argument is that the Board did not actually achieve any state of satisfaction as to whether the Inquiry Officer’s decision was harsh, unjust or unreasonable. It failed to achieve that satisfaction, so he argued, because the Board enquired into a version of events which was not only not raised before the Inquiry Officer, but excluded, and it did so by confining itself to the evidence before the Inquiry Officer without allowing for additional evidence relevant to the new version of events.

Before addressing this argument it is necessary to explain the Board’s analysis in a little more detail. Bearing in mind that this proceeding is a judicial review of the Board’s decision, any examination of the Board’s analysis must be directed toward the legality of its exercise of decision-making power, not the merits of its decision.[39] What follows is taken from the Board’s reasons.
[39]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [19] (Gummow and Kiefel JJ), quoting Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-6 (Brennan J).

The Board commenced by setting out a succinct statement of the essential allegation and IHF’s response. It said:[40]

The events at the heart of this matter are (in summary) that the Applicant pre-booked and attended a beauty salon (day spa and wellness centre) for the purpose of receiving a ‘Speedo-line’ waxing treatment of his groin area (waxing of his upper leg, bordering the groin line). While the Applicant was lying on his back on a waxing table with one leg bent receiving the ‘Speedo-line’ waxing treatment, it is alleged he caused a bath-sized towel covering his genitals to be moved or re-positioned, while at the same time asking for the waxing treatment to go ‘a little further.’ It is alleged that in moving the towel, the Applicant intentionally exposed his erect penis to a waxing technician (the Affected Person) who responded by taking steps to cover the Applicant’s exposed erect penis with the towel before continuing with and completing the ‘Speedo-line’ waxing treatment.
The Applicant was charged with a breach of discipline, being “improper or disgraceful conduct” (later amended to “disgraceful conduct”) on the basis that he deliberately exposed his erect penis to the Affected Person during the course of receiving a ‘Speedo-line’ waxing treatment of his groin area. The Applicant denies that he engaged in any improper or disgraceful conduct, denies that he experienced an erection and denies exposing his penis to the therapist.

[40]Board’s Reasons (n 2) [2]-[3].

The Board identified its task and the approach it took in carrying out that task, as follows:[41]
[41]Ibid [19].

The Board’s review starts with the question of whether the dismissal was “harsh, unjust or unreasonable”. This includes giving consideration to whether the findings of fact were soundly made and support the finding that the charge (disgraceful conduct) was proven, which then provides the basis for the decision to dismiss. If the Board finds the factual basis for the charge was not proven to the required evidentiary standard, then it would follow that the dismissal was harsh, unreasonable and unjust. The Board indicated that it had identified a range of issues to be explored in relation to assessing the reliability and soundness of the factual findings made by the Inquiry office. These issues included:
a) The clarity and particularity with which the allegations were elicited and then presented to the Applicant for his response. The Board flagged that it was not clear to us what precisely was found proven in relation to the physical movement of the towel which resulted in the alleged exposure of the Applicant’s penis, noting various terms were used (removed, lifted etc.). We indicated this was a significant issue which we intended to explore in detail with the parties.
b) Other factual findings are relevant to the factors going to whose account ought to be preferred (that is, ‘credibility’ or ‘reliability’). These factors include:
o The consistency/inconsistency within and between the Affected Person’s, the Manager’s and the Applicant’s respective accounts of events;
o Whether a person’s account of events is corroborated by other information.
o Whether any account is exaggerated;
o Other factors which make one account or the other inherently more likely or not.

Having referred to the High Court’s decision in Briginshaw v Briginshaw,[42] the Board stated that the relevant standard of proof was on the balance of probabilities but that, given the nature of the allegations, care should be taken to ensure that it reached a state of ‘reasonable and comfortable satisfaction’ or not as to a state of facts.[43] It was accepted by the parties and by the Board that the Chief Commissioner bore the onus of proof.
[42](1938) 60 CLR 336.
[43]Board’s Reasons (n 2) [26].

The Board noted that the parties agreed there were four factual elements of the behaviour alleged which had to be proven in order to sustain the charge. Those four elements were that -

(a) the day spa therapist saw IHF’s uncovered penis during the waxing treatment (exposure);

(b) IHF intended her to see his erect penis (intentional exposure);

(c) the day spa therapist saw his penis when it was erect (sexualised exposure) and

(d) IHF deliberately exposed his erect penis with the motive of causing distress, embarrassment or humiliation to the day spa therapist (motivation).

Ultimately, the Board decided that it was not necessary for motivation to be proved and excluded that element in its analysis.[44]

[44]Board’s Reasons (n 2) [30].

Repeating what I said above, the parties having accepted that inadvertent (accidental) and unknowing exposure (even of an erect penis) could not amount to disgraceful conduct, the Board framed the key issue as being whether intentional and knowing exposure of IHF’s erect penis had been proven.[45]
[45]Ibid [35].

No criticism was levelled in this proceeding about any of these aspects of the Board’s approach.

I pause here to observe that the Chief Commissioner’s contention in this proceeding implied a qualification to the formulation of the key issue for the Board’s determination. That is, on his argument, the key issue was whether, limited to one or the other of the particular accounts of events as recalled by the day spa therapist and IHF, intentional and knowing exposure of IHF’s erect penis has been proven. I return below to a discussion of this implied limitation.[46]
[46]Below, [58] ff, and [72] ff.

The Board then proceeded to analyse in detail three critical factual issues. First, the Board examined the evidence as to the movement of the towel in the varying accounts given by the day spa therapist and the manager, and the way in which its movement had variously been put to IHF. Secondly, it examined the manager’s account of the complaint the day spa therapist had made to her (the following day) and, in particular, details as to the movement of the towel and what the therapist actually saw. Thirdly, the Board examined the evidence about the placement of IHF’s hands on (or under) the towel at various times during the procedure.

From an analysis of the accounts given by the day spa therapist and the manager, and the allegations put to IHF at various times, the Board concluded that there was a significant lack of clarity as to the critical details. Because of that lack of clarity it found there were inaccuracies in the way in which the allegations were put to IHF. It was that lack of clarity that led the Board to draw the conclusion set out above at [37].

Although, as I have mentioned, that conclusion was sufficient for the Board’s ultimate disposition, the Board continued to analyse the evidence concerning a number of other factual issues. It did so in order to consider whether those facts supported or detracted from the conclusion it had already reached. So, it considered how IHF came to remove his underpants, the claim that he had ‘stared’ at the therapist, the findings of the Inquiry Officer that his conduct was of a predatory nature, the findings about the credibility of the day spa therapist and IHF, the post-incident conduct of the two protagonists, the general character of IHF, and the inherent likelihood or otherwise of the incident having occurred in the manner alleged.

Having undertaken that all of that analysis, the Board drew its final conclusions:[47]
[47]Board’s Reasons (n 2) [201]-[203].

The Board is required to consider only the question of whether the Chief Commissioner has discharged the onus of proving the state of facts required to prove the charge, namely that there was intentional and knowing exposure to the Affected Person of the Applicant’s erect penis. As outlined previously, this state of facts needs to be proved on the balance of probabilities (more likely than not), and with the strength and exactness of the evidence required given the serious nature of the allegations, and such that the Inquiry Officer (and on review, the Board) could reach a state of “comfortable and reasonable satisfaction” as to the state of those facts.
Having regard to all of the matters as discussed above, and applying the approach to the evidence outlined previously, the Board concludes (in summary):
•We find that the Affected Person did see at least a part of the Applicant’s penis during the waxing treatment and was distressed by this.
•We find the allegation that his penis was erect has not been proven to the required standard of proof.
•We find that it is not proven to the required standard of proof that the Applicant intended to reveal his penis to the Affected Person, or did so knowingly.

Accordingly, we find that the charge of breach of discipline (disgraceful conduct) under section 125 of the Victoria Police Act2013 has not been proven to the required standard of proof, and that therefore the dismissal of the Applicant was harsh, unjust and unreasonable.

It is important to note that the Chief Commissioner makes no challenge to any of the detailed factual findings of the Board, or of its analysis, other than by his argument that the Board’s inquiry concerned a factual hypothesis which it was precluded from pursuing for the reasons he advanced. I will now turn to those arguments.

Constructive failure to form the required satisfaction

The Chief Commissioner argued that the Board approached the question whether the dismissal decision was harsh, unjust or unreasonable by reference to an underlying case which was not the one dealt with by the Inquiry Officer. Whereas the Inquiry Officer decided a case framed by the two competing accounts he had summarised (above, [30]) ─ a case which did not include or allow for an inadvertent exposure possibility ─ the Board purported to review the Inquiry Officer’s decision as if it emerged from a competition of accounts which did allow for the possibility of inadvertent exposure.

According to the Chief Commissioner, in doing so, the Board:

(a) misconceived the nature of its statutory task because it conducted a review other than the one contemplated by s 152 of the Act;

(b) engaged in an Inquiry which was incapable of founding a rational basis for a state of satisfaction under s 152(2) that the Inquiry Decision was harsh, unjust or unreasonable;

(c) exercised the power to make a different decision, given to it under s 152(3), in a manner that was legally unreasonable; and

(d) thereby ‘constructively failed’ to form the satisfaction under s 152(2) that was the jurisdictional precondition to the exercise of the power, with the result that it was not empowered to make any different decision at all.

In support of its ‘constructive failure’ analysis, the Chief Commissioner referred to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[48] in which Gummow and Hayne JJ said:

Further, s 65 of the Act provides that the Minister is to grant a visa sought by valid application “if satisfied” of various matters. These include that any criteria for the visa prescribed by the Act are satisfied (s 65(1)(a)(ii)). Section 65 imposes upon the Minister an obligation to grant or refuse to grant a visa, rather than a power to be exercised as a discretion. The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s 415).
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error. [Underlining added]

[48](2004) 78 ALJR 992, [38].

I accept the proposition that a decision-maker could constructively fail to reach the required state of satisfaction that constitutes the jurisdictional gateway to the exercise of power, by purporting to reach that state of ‘satisfaction’ irrationally, illogically and without a basis on findings or inference of fact supported by logical grounds.[49] However, acknowledging that proposition that merely begs the question for decision in this case.
[49]See also Minister for Immigration and Citizenship v SZNDS (2010) 240 CLR 611, [130] (Crennan and Bell JJ).

Was the Board’s inquiry incapable of founding a rational basis for its satisfaction?

I will deal first with the contention (contained in ground 1) that, by inquiring into an inadvertent exposure hypothesis, the Board ‘undertook a free ranging review of whether the charge was proven, disconnected from the evidence’ being ‘an inquiry incapable of grounding any rational basis for a satisfaction that the inquiry decision was harsh, unjust or unreasonable’.

Rather than being disconnected from the evidence, in my opinion the review was solidly rooted in the evidence. The Chief Commissioner’s argument appears to align the concept of ‘evidence’ with the different interpretations or perspectives of the events given by the two protagonists. The Board may have gone beyond the two binary positions framed by the Inquiry Officer to another position that it discerned as emerging from the whole of the evidence, but that is not the same thing as the Board’s inquiry being disconnected from the evidence.

The Board explored a version which was not put forward by either of the two protagonists. But that is not an uncommon experience. It is often the case that none of the witnesses to an event give the account that the decision-maker ultimately prefers. Witnesses to an event can give an account that is skewed by their individual perspective on the occasion, perspectives which might be unreliable for a host of reasons. A decision-maker required to adjudicate on these accounts is not bound to accept one or the other, but may rationally and logically find an alternative perspective which accords with the facts as it finds them, but does not completely accord with either view. That is precisely what the Board did in this case.

The Chief Commissioner’s argument appears to limit the possible outcomes of the factual inquiry as if the accounts of the two protagonists were pleadings in a civil case which framed the issue for determination in a particular, limited way. But, as identified by the Board, the key inquiry was whether the whole of the evidence established, on the balance of probabilities, that IHF intentionally and knowingly exposed his erect penis – not which account to accept.

The Chief Commissioner accepted the entirely logical proposition that unintended, inadvertent and unknowing exposure would preclude a finding of intentional exposure. It was thus entirely reasonable and logical for the Board, in determining for itself whether intentional exposure had been proven, to inquire whether, on the whole of the evidence, an inadvertent exposure may have occurred. Moreover, it would have been illogical to refrain from considering whether exposure had been inadvertent merely because the Inquiry Officer had not done so and neither protagonist had put such a version forward.

The Board offered plausible reasons why such binary accounts appeared to have emerged from the two protagonists. It concluded that the day spa therapist had not been properly questioned about the details of the towel movement, the placement of IHF’s hands and what she actually saw in order to explain her belief that IHF’s penis was erect. For example, the manager’s account of what the therapist told her was that she, the therapist, moved the towel, ‘realised he didn’t have jocks on’ and ‘saw the end of his penis a little bit’.[50] This account was markedly different from the therapist’s own account which was that she had realised IHF had no underwear on when she saw his underpants hanging on the chair, that he moved the towel and that he had exposed to her his erect penis. The therapist was not examined about the manager’s version of what she had been told, nor was it put to IHF as a possible account of what occurred. No doubt, the Inquiry Officer had an understandable reluctance to subject the day spa therapist to more humiliation and distress by questioning her on the minutiae of what happened. But, in the Board’s view, the result was an account that might have unintendedly removed some of the common ground between her and IHF.
[50]Board’s Reasons (n 2) [71].

In terms of IHF’s account, the Board thought that he had been forced to deny allegations that may not have accurately represented the day spa therapist’s fully considered account, given the imprecision and lack of clarity surrounding the way in which details had been taken from her. The Inquiry Officer’s view (repeated by the Chief Commissioner in this proceeding) that IHF’s account did not leave open the possibility of inadvertent exposure may be explained because aspects of the allegation that IHF was responding to did not accurately represent what the day spa therapist believed happened or were too imprecise for him to know whether to agree with them or refute them. I would add, a person cannot be expected to advance the unknowable. By definition, IHF could not be expected to have known about having inadvertently and unknowingly exposed himself.

There is no doubt that some versions of events logically exclude a particular alternative. For example, an account given by an accused in a shooting-murder case that he was not present at the time of the shooting logically excludes accidental shooting. But the present case is not analogous to the case of R v Baden-Clay,[51] cited by the Chief Commissioner, where the accused’s evidence actually excluded the alternative version of events which the Court of Appeal nevertheless conjectured may have occurred, with the result that it substituted a manslaughter conviction for a murder conviction. The High Court restored the murder conviction.
[51](2016) 258 CLR 308, 325-327 [53]-[58] (‘Baden-Clay’).

By contrast, IHF’s denial of what was put to him could not exclude something which he could not have known. Moreover, the Board considered that what had been put to him may not have accurately represented what the day spa therapist actually observed. Perhaps for these reasons, the Board concluded that IHF’s evidence, including his denials, could be reconciled with an inadvertent exposure version of events. Additionally, the Board drew upon evidence which did not come from IHF as part of the evidence from which it found that the possibility of inadvertent exposure arose. In that regard, this case is more akin to Knight v The Queen[52] which was distinguished by the High Court in Baden-Clay.[53]
[52]Knight v The Queen (1992) 175 CLR 495.
[53]Baden-Clay (n 50) [56].

Rather than it being inappropriate for the Board to explore an inadvertent exposure hypothesis, it may well have been appropriate for the Board to make the finding that the decision was harsh, unjust and unreasonable simply because the Inquiry Officer failed to properly investigate an exculpatory possibility. However, instead of doing that, the Board went further, analysed the whole of the evidence and came to the conclusions it set out above at [51].

Far from being incapable of founding a rational basis for its satisfaction, in my view the Board’s inquiry provided a perfectly rational basis.

Did the Board conduct the wrong review?

Moving to the next limb of the Chief Commissioner’s argument, it was submitted on his behalf that that the Board misconceived the nature of its statutory task because it conducted a review other than one contemplated by s 152 of the Act.

The Chief Commissioner commenced with the proposition that the Board’s review had to be directed to the ‘specific issue’ in s 152(2) of the Act. Yet, the Chief Commissioner argued, the Board acted ‘of its own motion to inquire into a factual matter not agitated by the parties and contrary to the evidence given in the inquiry on the subject matter’.[54]
[54]Plaintiff’s written submissions filed 12 February 2020, [31].

In making that submission, the Chief Commissioner appeared to be suggesting that the inquiry whether the decision was harsh, unjust or unreasonable only permitted an inquiry into a factual matter (meaning, an account of events) that was agitated by one or other of the parties themselves. In addition, it should have aligned with one or other of the party’s evidence as given in the inquiry on the subject matter. In substance, this is a different way of putting the same argument that I have already addressed.

I repeat, the Board was correct to regard the key factual matter to be whether the Chief Commissioner had established that IHF had intentionally exposed his erect penis to the day spa therapist which, logically, would involve considering, if there was exposure, whether it was intentional -- the obvious contrary position being that it was unintentional (or inadvertent).

Implicit in the Chief Commissioner’s submission is that the inadvertent exposure scenario is ‘contrary to the evidence’ given in the inquiry on the subject matter of exposure. What might be intended by that submission is that the inadvertent exposure scenario was contrary to the particular viewpoint of one protagonist or the other. But, as I have laboured to explain, the Board was not limited by individual viewpoints. Instead, it was required to take into account the whole of the evidence in reviewing the soundness of the factual findings made by the Inquiry Officer. So understood, having regard to the evidence that was examined by the Board, the inadvertent exposure hypothesis was not contrary to the evidence but, rather, was open on the evidence.

Additionally, the Chief Commissioner’s argument appears to misapprehend the ‘specific issue’ to which s 152(2) is directed. The section does not direct an inquiry into any particular factual scenario investigated by the Inquiry Officer.[55] The specific issue which the section directs the Board to examine is whether, in the circumstances, the decision (in this case dismissal) was harsh, unjust and unreasonable. That inquiry is broader than any particular perspective which the Inquiry Officer might have imposed on the evidence to reach his decision, or any of the individual perspectives which the protagonists presented. Further, that inquiry need not be confined to the evidence presented to the Inquiry Officer but, potentially, may be undertaken on any additional evidence the Board considered should be adduced.
[55]See above, [19].

Nevertheless, that said, as a practical matter the Board did have to engage with the issue whether the finding of breach of discipline had been properly established. That finding was the necessary precondition to making the decision to dismiss IHF.[56] In that sense, the Board’s inquiry was the same as that of the Inquiry Officer. Having undertaking that inquiry, the Board took the view, in effect, that the Inquiry Officer had artificially constrained or limited his consideration of the facts by wrongly thinking that the possibility of inadvertent exposure was not left open.
[56]The Board explained these matters clearly, and in my view correctly, in the passage at [42] above.

The Board was entitled to take a different view as long as that different view was available or open on the evidence. The Chief Commissioner did not, in terms, submit that inadvertent exposure was not open on the evidence before the Board. Rather, somewhat differently, he argued that by pursuing such an inquiry the Board inquired into a decision that was different from one that was made by the Inquiry Officer.

I reject that characterisation. The ‘decision’ of the Inquiry Officer was to dismiss. That was the decision that the Board inquired into. Although the necessary precondition to Inquiry Officer’s decision, his finding about the facts was not the specific object of the Board’s task pursuant to s 152(2) of the Act. But it was proper and necessary for the Board to form a view about the Inquiry Officer’s fact finding in order to carry out its task. Considering a factual outcome which the Inquiry Officer failed to consider did not turn the Board’s inquiry into an inquiry about a different decision.

Did the Board fail to reach the required satisfaction because it only considered the evidence before the Inquiry Officer?

I turn finally to the Chief Commissioner’s argument that the Board constructively failed to reach the required state of satisfaction because it inquired into an inadvertent exposure hypothesis on evidence that was confined only to the evidence before the Inquiry Officer.

I recognise that the Chief Commissioner did not put this aspect of his argument as a stand-alone ground. It was the second limb of his argument that the Board travelled beyond its statutory power because it inquired into a hypothesis that was not agitated before the Inquiry officer and did so by confining itself to the evidence that was before the Inquiry Officer. However, without losing sight of their roles in the overall argument, it is convenient to examine each element individually.

By this aspect of the argument, I take the Chief Commissioner to be contending that it was illogical, irrational or unreasonable to undertake such an inquiry without testing the evidence of witnesses about the inadvertent exposure scenario. To the extent that this contention implies, again, that there was no evidence upon which the Board could consider inadvertent exposure, I reject it for the reasons I have already given.

However, this argument is closely related to the Chief Commissioner’s second ground of review, the denial of procedural fairness ground, which concerns the Board’s refusal to have the day spa therapist called for questioning about the possibility of the exposure having been inadvertent. As I explain below,[57] the Board considered that to do otherwise would have required the entire process, commencing with the preliminary investigation and laying the charge, to have been repeated. For good reason, it did not think that could or should occur. For that and other reasons set out below, I have rejected the second ground of review. Because it was not an error to refuse to have the day spa therapist called, the Board had to contend with the evidence as it was.
[57]Below, ‘Ground 2’.

Necessarily therefore, the evidence the Board had to consider was the evidence which the Chief Commissioner had adduced before the Inquiry Officer to attempt to establish that IHF intentionally exposed his erect penis to the day spa therapist. As the Chief Commissioner acknowledged, if he was unable to establish more than inadvertent or unknowing exposure, the charge could not be proven. So, there was nothing intrinsically defective about the Board considering whether the possibility of inadvertent exposure undermined the Chief Commissioner’s case on intentional exposure solely on the evidence put before the Inquiry Officer.

In short, I reject the submission that by ‘confining the inquiry to the evidence of the incident adduced at the Inquiry’ the Board undertook a review of whether the charge was proven ‘disconnected from the evidence’.

In answer to the whole of ground 1 generally and in all of its parts, I agree with the submissions that were advanced by IHF in the proceeding which may be summarised as follows:

(a) The Board was obliged to conduct a merits review of the Inquiry Officer’s decision.

(b) The scope of the Board’s merits review of the ‘decision’ was not to be artificially constrained in the way predicated by the Chief Commissioner, that is by the particular accounts given by the two witnesses.

(c) Plainly, whether or not IHF’s conduct amounted to disgraceful conduct depended upon whether it was intentional. Thus, the Board was obliged to consider for itself whether the evidence showed to the requisite degree of satisfaction that the conduct was intentional.

(d) It was entitled to look at all of the evidence. A thorough review of its reasons for decision demonstrates that it performed a comprehensive review of the evidence and formed its own view on that evidence about whether intentional conduct had been proven to the requisite standard. The Chief Commissioner has failed to grapple with all the evidence preferring to take a ‘high level’ approach of attacking the logic of the process.

(e) The Board found that intentional exposure had not been so proven because the possibility of unintentional, inadvertent exposure had not been properly explored and excluded by the Inquiry Officer. There were gaps and inconsistencies in the day spa therapist’s account which left room for the possibility that her account could be reconciled with IHF’s account, leaving open the possibility of inadvertent exposure.

(f) Because the possibility of inadvertent exposure had not been adequately explored and rejected, the Board could not be satisfied to the requisite standard that IHF had intentionally exposed his penis to the day spa therapist.

(g) That being the case, the Board reasonably and logically concluded that decision to dismiss him was harsh, unjust and unreasonable. The charge not being proven, it was appropriate to set aside the dismissal.

For completion, the Chief Commissioner advanced some arguments to the effect that the Board had failed to take into account certain mandatory considerations. They were ancillary to his principal argument as discussed above and, in my view, did not take it any further.

In conclusion, the Chief Commissioner has not established any jurisdictional error as described in ground 1.

Ground 2

By ground 2, the Chief Commissioner alleged that, at the review hearing on 28 May 2019, the Board denied him a reasonable opportunity to be heard and to lead evidence on the inadvertent exposure hypothesis.

Relevant principles

It is not disputed that the Board was under an express obligation to observe the principles of natural justice,[58] which includes the obligation to afford procedural fairness to the parties. Nor is it in dispute that the obligation to afford procedural fairness includes an obligation to provide an opportunity to a party to meet the case that is put against him or her, including to respond to new material critical to adverse findings against a party.[59] A decision-maker must advise a party of any adverse conclusion which would not obviously be open on the known material. However, the decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making a decision.[60]
[58]The Act (n 3) s 155.
[59]Re Minister for Immigration and Multicultural Affairs; ex parte MIAH (2001) 206 CLR 57 [99] (Gaudron J), [125]-[126] (McHugh J).
[60]Minister for Immigration v SZGUR (2011) 241 CLR 594, 599 [9] (French CJ and Kiefel J).
A decision-maker may breach the obligation to afford natural justice if he or she failed to notify a party that certain facts, seemingly accepted to be true, were important for the decision but were now in question, and then proceed to determine the case on the basis that those facts were not accepted.[61]
[61]See, for example, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 165 [43], [44].
The refusal to admit further evidence
During the Board’s Review hearing on 28 May 2019, the transcript of which occupies 69 single-spaced pages, the Board reminded both parties that it had the statutory power to admit further evidence in a review. It noted that neither party had requested the Board to take any further evidence and explicitly asked each of them whether they sought to do so. Both parties responded that they did not ask that any further witness be called.[62]
[62]Transcript of PRSB Board hearing, 28 May 2019, page 6 (‘Review transcript’).
Immediately before asking that question and receiving those responses, the Board articulated the issues that were of concern to it upon the review. It said this –
… the starting point for the board is whether the findings of fact were soundly made and support the finding that the charge was proven, which in turn provides the foundation for the decision to dismiss. So I think it’s – it just flows that if we were to find the charge wasn’t proven to the required evidentiary standard then the decision would have to follow that the dismissal was unreasonable and unjust.
We’ve identified a range of issues to be explored in relation to assessing the reliability and soundness of the factual findings made by the inquiry officer, and just for the sake of scoping it out, the issues include the clarity and particularly (sic) with which the allegations were elicited and then presented to the applicant for his response. And I just want to flag here, for example, that it’s not entirely clear to the board what precisely was found proven in relation to the physical movements of the towel referred to which resulted in the alleged exposure of the applicant’s penis, and that’s a significant issue in this matter which we will intend to explore in some detail. And then there’s a range of other factual findings relevant to an overall assessment of credibility or liability, and those issues touch on internal consistency of accounts, consistency of accounts between the affected the person (sic), the manager and the applicant, corroborating material and so on.[63]
[63]Review transcript (n 62) page 5, lines 24-41 (underlining added).
After spelling out the general approach which it would take upon the review, including its approach to making findings of fact where there are contested accounts of events, the onus of proof, the standard of proof, and its approach to assessing credibility, the Board turned to the elements which it thought would need to be found proven. The Board enumerated the four elements which later also appeared in its reasons for decision as described above [44]. Specifically in the context of the third element, intentionality, the Board said –
The third is about intentionality, and that’s that the applicant intended the affected person to see his uncovered erect penis, and by that I mean it’s essential to prove that he deliberately exposed himself rather than it happening inadvertently and unknowingly. So in one way, we think when you look at the wording in the charge, it’s “remove the towel to expose his erect penis to the affected person”, and we think for abundance of clarity, we would need to imply the words “removed the towel in order to expose”. So intentionality.[64]
[64]Ibid, page 8, line 43 – page 9, line 2 (underlining added).
After dealing with the remaining element, the Board then emphasised the scope of the review, saying –
So in doing that, we really wanted to be very clear as we work through the competing evidence in the decision of whether each of those elements is made out. So I guess what I would do, first of all, is invite Victoria Police to consider each of those four elements and whether it’s agreed that all four of those elements will need to be found proven to the required standard in order to establish the charge of disgraceful conduct.
SGT KENNEDY: The chief is content with that …[65]
[65]Review transcript (n 62) page 9, lines 7-14 (underlining added).
To this point, it is difficult to persuasively make the case that the Chief Commissioner was not put on notice that the Board was at least considering the possibility of inadvertent, rather than intentional, exposure. The Chief Commissioner might have been blinded to what the Board was saying because he erroneously assumed, as the Inquiry Officer had done, that inadvertent exposure was not open on the evidence because of IHF’s denials. But the Board was clearly at pains to stress that intentionality was at issue, and even used the words ‘rather than it happening inadvertently and unknowingly’.
The Board proceeded to examine in substantial detail the issues it had flagged as being of concern to it. At the end of that process it announced it would allow an adjournment for the Commissioner to consider his response to a number of questions. Those questions were as follows:
(a)Should the Board reject the manager’s evidence where it was inconsistent with that of the day spa therapist?[66]
(b)Was the allegation concerning the movement of the towel ever put to IHF with any more specificity than that he ‘removed the towel’?[67] and
(c)Was there any information about the placement of IHF’s hand that was inconsistent with it having remained on top of the towel over his genitals?[68]
[66]Ibid page 19, line 39.
[67]Ibid page 20, line 20.
[68]Ibid page 20, line 29.
Shortly after the adjournment, and having responded to some of the questions asked by the Board, the Chief Commissioner then made his request to have the day spa therapist called, saying:
It appears clear that the board is finding holes in what was or was not covered by the hearing officer, and it would be the Chief’s position that the only way to remedy that is to ask the person who was there, and that’s [the day spa therapist]. And it’s the Chief’s submission that that should occur, that [the day spa therapist] should be called in order to touch on these points.[69]
[69]Review transcript (n 62) page 21, line 39 – page 22, line 2.
Before adjourning again, this time to consider that request, the Board engaged in some further discussion with the Chief Commissioner on the purpose and utility of calling the day spa therapist. The Board put the proposition that the problems it saw in the way the evidence had been gathered and the allegations presented to IHF ‘infected the entire process in terms of what he has been asked to respond to’. The Chief Commissioner disputed that proposition arguing that the allegations had effectively been put to IHF who had denied having an erection and denied lifting the towel to expose his penis. For that reason, it was submitted, asking IHF multiple questions about those allegations, when he denied them, would not have changed anything.[70]
[70]Ibid page 22, lines 37-41.
Counsel for IHF did not oppose the day spa therapist being called to give evidence given that the Inquiry Officer had refused to put to her certain questions which IHF had wanted to have put.
The Board gave the Chief Commissioner a final opportunity to put any further basis for making the request, reminding him that at the start of the hearing it had specifically canvassed its concerns about the clarity and consistency of the evidence and the accounts of the evidence. In response the Chief Commissioner said –
The Chief didn’t take issue with that. The Chief understood that there was sufficient evidence to find the charge proven.[71]
[71]Ibid page 23, line 43.
Once again, the Chief Commissioner’s answer suggests a fixed but erroneous view about the parameters of the Board’s review. That same view was the foundation for ground 1 which I have dismissed for the reasons explained above.
After adjourning to consider the request, the Board announced that it would refuse the request and gave its reasons as follows –
… we’re not satisfied that calling the affected person to give evidence in the review at this stage would cure what we see as the fundamental defect that has effectively infected the whole process, which is the way that the allegations were originally elicited from her in her witness statement, put to the applicant in the interview for his response, put into the particulars of the charge and which then formed the foundation of the inquiry hearing process. So it wasn’t a matter where we’re dealing with perhaps a minor peripheral factual detail where there could have been a question asked in the hearing that clarified it and tidied up a piece of evidence.
We’re not dealing with that kind of request here, but it’s really a request to “can we go back to square one and elicit with some precision what the actual allegations were”. If we did – if we were to do that, the board would effectively be reformulating the charge that’s put, and the board has got no power to lay a charge or to amend a charge. That’s a matter that sits solely – a power that sits solely with the Chief Commissioner or his delegate. And the other thing we’re concerned about with that it’s an essential part of this process that the accused person has those charges put to him or her in writing and with sufficient particularity to be able to respond to them in a meaningful way. So if we were to go back now and address that lack of sufficient particularity, it might address it in one way, but what it would fail to do is remedy the procedural unfairness, which has been that he hasn’t been able to respond to something that’s clearly put to him in the process.
So the board as a review body isn’t in a proper position to conduct the entire investigation afresh, to elicit the allegations afresh, to particularise them afresh, and I should add with that particularising them in the way that I outlined earlier, which was around his penis was erect, she saw the erect penis uncovered, it was deliberate and not unintentional and it was done with the intention of causing hurt or distress, because none of that was included in the particulars as well in that kind of detail.
There were some elements of it. I do accept that. But the fundamental issues about the evidence of the physical placement of the towel and what was moved and everything else, we’ve reached the view that we just can’t remedy that at this stage in that way, because if we were to do that, too, we would have to recall the manager, we would have to recall the applicant. He has lost his opportunity to respond to that and put an alternative explanation or what might have happened. So we have on that basis decided to decline that request.[72]
[72]Review transcript (n 62) page 24, line 29 – page 25, line 19.
Was the Chief Commissioner denied procedural fairness?
Importantly, the Board did not refuse the Chief Commissioner’s application merely because he had been given a chance earlier in the proceeding to call additional evidence, although that may have been a factor. More fundamentally, the Board considered that it was too late to ‘fill the gaps’ in the evidence without causing significant procedural unfairness to IHF. In its view, the failures it had identified in the eliciting of accurate and detailed allegations from the day spa therapist on what had occurred in the waxing treatment infected the whole process from charging, to inquiry, to decision, and then to the review. Additionally, to fill the gaps would, in its view, have required not merely the calling of the day spa therapist, as the Commissioner sought, but also the manager and IHF. Crucially, curing the defect could not be achieved by filling the gaps at the end of the process; it could only have been cured, being fair to IHF, by restarting the process afresh. Being a review body, the Board considered it was not empowered to recommence the process.
In short, the Board considered that calling the day spa therapist could not cure the defects it had identified and doing so would involve significant procedural unfairness to IHF.
In the circumstances outlined below, the Board’s conclusion was justified.
The Board was empowered, but not generally obliged, to permit further evidence. The hearing was a review of the nature discussed above,[73] not a first instance inquiry. The Board was only obliged to permit further evidence if doing so was necessary, in all the circumstances, to afford procedural fairness to the parties. The Chief Commissioner bore the onus at the disciplinary inquiry to prove a charge that required proof of intentional exposure. He also understood that the review was sought on the basis that the applicant, IHF, maintained that the evidence did not prove the charge to the required standard. The Chief Commissioner attended the review apparently content with the evidence he had already adduced.
[73]Above, [18] – [25].
As already observed above, it is hard to accept that the Chief Commissioner was not fairly put on notice, at an early stage, that the Board was considering the possibility of inadvertent, rather than intentional, exposure. And yet, he declined the opportunity to call any further evidence when first invited to consider requesting further evidence. Any surprise to the Chief Commissioner that a finding of inadvertent exposure could be open was, at least to a significant degree, due to his erroneous assumption that the only conclusions available upon all of the evidence were intentional exposure or none at all. The Chief Commissioner’s application to have the day spa therapist called could not cure the defects the Board had identified in the investigation process and, further, calling the day spa therapist alone would have been insufficient to properly canvass the issue. Most significantly, calling any additional evidence at the review stage, for the purpose sought, would have risked substantial procedural unfairness toward IHF.
What is fair must depend on all the circumstances.[74] As said by Tucker LJ in relation to the definitions of natural justice,[75] and frequently quoted:[76]
…whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.
[74]Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504 (Kitto J).
[75]Russell v Duke of Norfolk [1949] 1 All ER 109, 118.
[76]R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 552-553; see also University of Ceylon v Fernando [1960] 1 All ER 631, 637; Furnell v Whangarei High Schools Board [1973] AC 660, 679; and Wiseman v Borneman [1971] AC 297, 308, 311 and 314-315.
In the circumstances I have described, the Chief Commissioner did have a reasonable opportunity to present his case, and there was no lack of fairness towards him by the Board refusing his application to have the day spa therapist called.
I reject the second ground for the review of the Board’s decision.
Conclusion
Before finally concluding these reasons, it is well to acknowledge some realities that have not already been addressed. First, for those personally involved in the events which are the subject of this proceeding, and those close to them, the events and their aftermath have taken a significant toll. So much is evident from the accounts given to the Inquiry Officer and the Board of the impact of the incident and the disciplinary proceeding on the day spa therapist, the day spa business and IHF and his family. Secondly, the Chief Commissioner has an unenviable task. He is charged with the duty of maintaining the integrity of Victoria Police and the community’s confidence in it. Thirdly, the Board was obliged by the Act to navigate complex and difficult detail concerning a potentially polarising incident while, at the same time, paying regard to the competing public interest and the interests of the applicant for review (IHF). All the while, decisions were to be made on the balance of probabilities.

Almost by definition, this process was bound to be difficult and cause casualties. For some, the outcome may seem unsatisfactory. For others it will be seen as averting an injustice. The merits of the Board’s decision is entirely the domain of the Board. Wherever the merits lay—and I stress that I do not mean to imply any opinion by these remarks – I was not persuaded that the Board exercised its decision-making power illegally or committed jurisdictional error.

For the reasons stated, the Chief Commissioner’s application that the Board’s decision be quashed for jurisdictional error must be refused, and the proceeding dismissed.

[2020] VSC 608

21 September 2020