Clarke v Burns
[2008] SADC 148
•7 November 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application for Stay of Proceedings)
CLARKE v BURNS
[2008] SADC 148
Judgment of His Honour Judge David Smith
7 November 2008
POLICE - OTHER MATTERS
Appeal against punishment imposed on appellant (a serving police officer) by delegate of Commissioner of Police following findings against appellant by the Police Disciplinary Tribunal - Tribunal remitted matter to Commissioner of Police for punishment – Commissioner delegated decision to respondent – appellant was dismissed from South Australia Police - discussion of the nature of the decision to impose punishment – analysis of Wickham v Commissioner of Police (unreported, Supreme Court of SA, Olsson SCJ, 1997, SASC 6497) – examination of principles of apprehension of bias as they relate to the decision of the respondent
Police Complaints and Disciplinary Proceedings Act 1985 (SA) s 46(3); Police Act 1952 s 53; Police Act 1998 s 19; Police Regulations 1982 reg 28; Police Regulations 1988 reg 28, referred to.
Clarke v Commissioner of Police [2006] SADC 109; House v The King (1936) 55 CLR 499; Beare v Slattery (2002) 218 LSJS 346; Wickham v Commissioner of Police (unreported, Supreme Court of SA, Olsson SCJ, 1997, SASC 6497); Livesey v NSW Bar Association (1983) 151 CLR 288; Webb & Hay v The Queen (1994) 181 CLR 41; Johnson v Johnson (2001) 201 CLR 488; IOOF Aust Trustees v Seas Sapfor (1999) 78 SASR 151; Asciak v Samuels (1976) 15 SASR 265; Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215; Brown & Dixon v Police [1999] SASC 322; Vakauta v Kelly (1989) 167 CLR 568; Wickham v Commissioner of Police (unreported, Full Court of SA, Matheson SCJ, Prior SCJ and Debelle SCJ, 1998, SASC 6652); Wickham v Commissioner of Police (unreported, Supreme Court of SA, Olsson SCJ, 1997, SASC 6497 at page 6); Law Society of NSW v Foreman (1994) 34 NSWLR 408; Reyes v Dental Board of South Australia (unreported, Supreme Court of SA, Perry SCJ, 22 January 1998, SASC 6516); Rajagopalan v Medical Board of South Australia (unreported, Supreme Court of SA, Debelle SCJ, 11 September 1997 SASC 6363), considered.
CLARKE v BURNS
[2008] SADC 148Introduction
This is an appeal by Darryl John Clarke (“the appellant”) pursuant to s 46(3) of the Police Complaints and Disciplinary Proceedings Act 1985 (SA), against a decision made by Gary Thomas Burns (“the respondent”), on the 30th October 2003, to dismiss him from the South Australia Police (“SAPOL”). The decision was the culmination of disciplinary proceedings taken against the appellant by the Commissioner of Police. The respondent was delegated by the Commissioner to determine penalty.
The prosecution of this appeal, against the dismissal, awaited the outcome of an appeal against the findings of the Police Disciplinary Tribunal, which was dismissed by me on the 15th September 2006 (see Clarke v Commissioner of Police[1]). The hearing of this appeal took place in February 2007.
[1] [2006] SADC 109
General Background
On the 4th July 2000 the appellant was charged by the Commissioner of Police (“the Commissioner”) with 28 counts of breaches of the Police Regulations 1982 and 1998. These breaches related to offending that occurred between 1995 and 1998. At that time the appellant held the rank of Superintendent within SAPOL. He worked as the Disciplinary Review Officer (“DRO”) and had responsibility for the management of the Disciplinary Review Office. There were complaints about his performance in that office and in December of 1998 he was relived of the position of DRO. An investigation then commenced which lead to the charges being laid.
The hearing of these charges commenced before the Police Disciplinary Tribunal (“the Tribunal”) on the 27th August 2001 and concluded on the 18th April 2002 with the Tribunal reserving its decision. On the 13th February 2003 the Tribunal delivered judgment, finding the appellant guilty of 17 of 28 counts of breaching Police Regulations. Those breaches in respect of which the appellant was found guilty can be characterised as 12 counts of neglect of duty, four counts of falsehood or prevarication and one count of discreditable conduct. Following the finding the Tribunal duly remitted the matter to the Commissioner for the imposition of punishment pursuant to s 39 (3) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA).
Imposition of Punishment
The Commissioner delegated the responsibility of imposing punishment to the respondent, an Assistant Commissioner of SAPOL, pursuant to s 53 of the Police Act 1952 and s 19 of the Police Act 1998 (Exhibit R1-GTB 1). The respondent notified the appellant of this delegation and arranged a time to hear submissions (Exhibit R1-GTB2). Communication followed between the respondent, the appellant and Peter Alexander, President of the Police Association of South Australia, who was acting on the appellant’s behalf (Exhibits R1-GTB 3 to GTB 7).
Written submissions were provided to the respondent in early April of 2003 (Exhibits R1-GTB 8 and A1-DJC 1) and were followed by a meeting on the 15th April 2003. The respondent, appellant, Mr Alexander and Senior Sergeant Bruce Faehramann all attended this meeting. Senior Sergeant Faehramann took notes of the meeting (Exhibit R1-GTB 9) and a portion of the conversation was recorded by tape before it malfunctioned. The appellant also took his own notes of the meeting (Exhibit A1-DJC2). Early into the meeting the appellant submitted that the respondent should disqualify himself from imposing punishment because of an apprehension of bias. The appellant also submitted that the Commissioner had made an “undertaking” that, come what may, the appellant would not be dismissed from SAPOL. The appellant and Mr Alexander also made oral submissions in mitigation of punishment.
Following this meeting the respondent sought the views of the Commissioner and Sergeant Paul Schramm as to any undertaking (Exhibits R1-GTB 11 and GTB 12). The Commissioner provided two memoranda to the respondent on the matter dated the 23rd April 2003 and 24th April 2003 (Exhibits R1-GTB 13 and GTB 14). Schramm provided an unsigned, undated, declaration (Exhibit R1-GTB 15).
The respondent filed a report recommending dismissal on the 24th April 2003. In June, as more material came to light, he decided to review his consideration of the matter.
In early June there was a meeting between the Honourable Minister for Police and Alexander following which letters were sent by Mr Greg Parker of the Crown Solicitors Office to the appellant and the solicitor Mr Peter Hannon, as he was then known, who had undertaken to act for the appellant (R1-GTB 16). Written submissions were provided to the Honourable Minister by Mr Hannon and copies provided to the respondent. These included, amongst other things, a medical report from Dr Tony Davis dated 27th March 2003 and a medical report from Dr Ingrid Nielsen dated 10th June 2003(Exhibit R1-GTB 17). Further communications followed between the respondent and Mr Hannon (Exhibit R1-GTB 18 to 20).
On the 1st August 2003 the respondent presented his determination on penalty in a detailed 36 page document (Exhibit R1-GTB 22).
The appellant was dismissed from SAPOL by virtue of a notice from the respondent dated 30th October 2003 (Exhibit A5-GTB 23). Then on the 5th November 2003 the appellant instituted this appeal (action No.609 of 2003). The appeal was argued over a period of 3 days namely from Monday 26th to Wednesday 28th February 2007. As was the case in the appeal against the Tribunal’s findings the appellant represented himself.
The grounds of appeal
Ground 2.1- The determination to dismiss the appellant from South Australia Police, which was imposed as a consequence of certain findings against the appellant by the Police Disciplinary Tribunal on 13 February 2003 in relation to charges against the appellant for breaches of discipline, was manifestly excessive in the circumstances.
Ground 2.2- The respondent should have disqualified himself from participation in the process of making a decision in relation to the penalty to be imposed upon the appellant on the grounds that he was, or that there were grounds for a reasonable apprehension that he was, biased against the appellant.
Ground 2.3- The findings of the Police Disciplinary Tribunal delivered on 13 February 2003, upon the basis of which the determination to dismiss the appellant was made, are themselves the subject of an appeal by the appellant, and in the circumstances, it was premature of the respondent to make a decision before the appeal proceedings were complete.
Ground 2.4- The respondent was estopped or otherwise prevented from imposing a penalty of dismissal as a consequence of statements made by Commissioner Malcolm Hyde and conveyed to the appellant that he would not be dismissed and the appellant acted upon those statements to his detriment.
Ground 2.5- The punishment was inappropriate given:
(a) the passage of time from the date of the breaches of discipline to the date of dismissal on 13 October 2003.
(b) that for medical reasons the appellant was unable to return to work in SAPOL
Ground 2.6 - The respondent failed to take into account adequately, or at all,
(a) the submissions of the appellant
(b) the representations made on behalf of the appellant by the Police Association
Ground 2.7 - In the alternative to ground 2.6 the respondent’s decision was against the weight of those submissions and representations.
Ground 2.8 - The respondent having been delegated the task of determining and imposing punishment on the appellant failed to do so in accordance with that delegation.
The appellant abandoned ground 2.3 during the course of his submissions.[2] Grounds 2.1, 2.6 and 2.7 were argued together by the appellant and I will deal with them as a group.
[2] Transcript 26th February 2007 Page 68 Line 8
The remaining grounds, that is 2.2, 2.4, 2.5 and 2.8 each stand apart and I will deal with them separately.
I have read and taken into account the material presented in this appeal against punishment as well as the material presented in the course of the appeal against the decision of the Tribunal.
Before proceeding to address the individual grounds of appeal I will deal with some general matters.
Nature of the appeal hearing
The appellant’s right of appeal is pursuant to s 46 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA). Such appeals are regulated by the Administrative Appeals Division of the District Court Act 1991 (SA).
Section 42E of the said Division provides:
42E(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Section 42F provides:
42F—The Court may, on an appeal—
(a) affirm the decision appealed against;
(b) rescind the decision and substitute a decision that the Court considers appropriate;
(c) remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
It can be seen that appeals to the Administrative Division are now in the nature of a rehearing as opposed to an appeal stricto sensu or de novo. That is, the Court on appeal is to determine whether the decision appealed against is correct at the time of the appeal, bearing in mind both the evidence before the original decision maker and any further evidence of what has occurred since the original decision.
Principles guiding this Court on Appeal
Clearly the Statute entitles this Court to exercise its own discretion but only depart from the decision appealed against for “cogent reasons”. In my view, that does not add anything to the well-settled principles which guide appellate courts and to which I will now refer. There may be some presently unforeseeable circumstance which would afford cogent reasons but which would not otherwise provide a basis for interfering with the decision of the primary fact-finder, however, in my view this does not arise for consideration in this case.
So in order to convince me to interfere the appellant would have to:
·Identify evidence which the respondent had overlooked.
·Point to extraneous matters which were wrongly considered.
·Demonstrate that the respondent acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or facts which were glaringly improbable.
(See House v The King[3]; see also Beare v Slattery[4])
[3] (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504, 505.
[4] (2002) 218 LSJS 346 per Gray J at [35].
As can be seen ground 2.2 of the appeal is, properly characterised, an application to set aside a decision on the ground of apprehended bias. It stands separate from the other grounds of appeal. On this ground what is sought is in the nature of “prerogative relief”. I reaffirm my view that this Court has a statutory appellate jurisdiction to grant such relief.[5]
[5] Clarke v Commissioner of Police [2006] SADC 109 at 8-10.
Nature of the Decision of the Respondent
Olsson J considered this issue in the case of Wickham v Commissioner of Police[6] in relation to the dismissal of a non-commissioned officer. As Olsson J observed:
The Commissioner is, in military parlance, the commanding officer of a uniformed, disciplined force having para military characteristics. … [S]ubject to any specific directions of the Governor, [the Commissioner] has the sole control and management of the police force (Section 21, [Police Act 1952])[7]
[6] (unreported, Supreme Court of SA, Olsson SCJ, 1997, SASC 6497).
[7] Ibid at 14.
Pursuant to reg 28(1)(a) of the Police Regulations 1982 and the Police Regulations 1998 the Commissioner required the approval of the Governor to dismiss a commissioned officer. When the legislative scheme was altered in 1999, s 6 of Police Act 1998 gave the Commissioner responsibility for the control and management of the police force.
This situation means that the decision the respondent was delegated is quasi-industrial in nature and that it is effectively a disciplinary proceeding. It differs from other decision of a quasi-industrial nature, though, because the decision maker in proceedings such as these is called upon to “impose punishment”[8].
[8] Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) s 39.
This decision to impose punishment is made, by a delegate, under the assumed mantle of Commanding Officer of the Force. In such a position the decision maker is required to consider the need to protect the public. In exercising the Commissioner’s disciplinary powers in circumstances such as these the respondent is:
Fairly entitled not only to look to the internal maintenance of good order, discipline and efficiency within the police force, but also to the need to ensure that all reasonable steps are taken to ensure the good standing of the force in the eyes of the community.[9]
[9] Wickham v Commissioner of Police (unreported, Supreme Court of SA, Olsson SCJ, 1997, SASC 6497 at page 16).
The Full Court of the Supreme Court of South Australia upheld Olsson J’s original judgment.[10] Matheson J provided the primary judgment of the Full Court in that matter in which he gave his opinion that the decision maker, in the circumstances described above, had:
… the obligation of any sentencing court to make the punishment fit the offence and the circumstances of the offender as nearly as possible.[11]
[10] Wickham v Commissioner of Police (unreported, Full Court of SA, Matheson SCJ, Prior SCJ and Debelle SCJ, 1998, SASC 6652).
[11] Ibid at 10.
It is within this context, taking into account the submissions made by, or on behalf of, the appellant, that the decision of the respondent must be considered.
Police Act and Police Regulations
The appellant was charged on 4th July 2000 with 28 breaches of the Police Regulations. All of these charges, except 7, 11 and 13 were breaches of the Police Regulations 1982 (SA). Counts 7, 11 and 13 were breaches of the Police Regulations 1998 (SA).
The first set of charges (those other than 7, 11 and 13) related to regulations made under the Police Act 1952. This Act operated from 1952 to 1st July 1999. Under this Act, for the relevant period, the Police Regulations 1982 were in operation from 1st January 1982 to 1st September 1998. These were replaced by the Police Regulations 1998, which were in operation from 1st September 1998 to 1st July 1999. These regulations are the applicable regulations relating to counts 7, 11 and 13.
The Police Act 1952 was replaced by the Police Act 1998. This Act came into operation on 1st July 1999. Immediately on this occurring, the Police Regulations 1999 came into operation. I note here that the Police Act 1998 and the Police Regulations 1999 do not apply I this case as they were enacted outside of the time period within which the appellant was charged.
Grounds 2.1, 2.6 and 2.7
As indicated these grounds were argued together. It is convenient to deal with them together. I set them out hereunder.
Ground 2.1
The determination to dismiss the appellant from South Australia Police, which was imposed as a consequence of certain findings against the appellant by the Police Disciplinary Tribunal on 13th February 2003 in relation to charges against the appellant for breaches of discipline, was manifestly excessive in the circumstances.
Ground 2.6
The respondent failed to take into account adequately, or at all:
(a) the submissions of the appellant
(b) the representations made on behalf of the appellant by the Police Association
Ground 2.7
In the alternative to ground 2.6 the respondent’s decision was against the weight of those submissions and representations.
The appellant submitted that there were a number of matters that had not been appropriately dealt with, or considered, by the respondent. He contended that the respondent’s decision was either (1) manifestly excessive, (2) against the weight of submissions in mitigation of punishment or (3) that the respondent had failed to take those submissions into account.
Evidence Considered
·Written Submissions on Penalty by Darryl John Clarke dated 9th April 2003 (Exhibit A1 – DJC 1)
·Affidavit of Darryl John Clarke sworn on 30th November 2006 (Exhibit A1)
·Notes of Penalty Meeting of 15th April 2003 by Darryl John Clarke (Exhibit A1 – DJC2)
·Notes of Meeting 15th April 2003 prepared by Bruce Faehrmann (Exhibit R1 – GTB 9)
·Affidavit of Gary Thomas Burns sworn on 21st December 2006 (Exhibit R1)
·Written Report of Gary Thomas Burns dated 1st August 2003 (Exhibit R1 – GTB 22)
·Letter from Peter Hannon to Minister of Police dated 14th June 2003 with attached reports of Dr Tony Davis and Dr Ingrid Nielsen (Exhibit R1 – GTB 17)
Outline
In support of these three grounds of appeal the appellant identified the follow issues:
1.The long investigation which took approximately a year and a half.
2.The appellant’s attendance while on sick leave throughout this investigation to view documents and participate in interviews.
3.The appellant’s personal circumstances at the time including his family situation, health, inability to return to work at SAPOL and the de facto punishment that flowed.
4.The appellant’s service history with SAPOL, his personal file, previous work history and details of previous postings.
5.The recognised heavy workload that the appellant was under.
6.That the offences had occurred within an environment within which the appellant was continually engaged in some sort of work-related activity.
7.Comparisons to situations were other officers were found to have lied in the course of criminal proceedings but were never the subject of disciplinary proceedings.
8.That the respondent had the same obligation of a sentencing court to make the punishment fit the offence and the circumstances of the offender as near as possible but that appellant had instead been singled out treated differently.
Considerations
The appellant was found guilty of 17 breaches of the Police Regulations. As detailed earlier these were divided as follows: 12 counts of neglect of duty, four counts of falsehood or prevarication and one count of discreditable conduct. The count of discreditable conduct duplicated one of the counts of falsehood or prevarication and was ignored by the respondent for this reason.
Of the offences found proven, it was not disputed by the appellant that the four counts of falsehood or prevarication were the most serious. These related to separate instances where the appellant had deliberately lied to the Police Complaints Authority (‘PCA’). The PCA is charged with overseeing the activities of police and reports directly to Parliament. By lying to the PCA the appellant hindered the Authorities ability to effectively oversee those activities and created a situation where the PCA might, because of the appellant, misinform, and potentially, mislead Parliament.
The appellant was a Superintendent of police and therefore a high-ranking officer within SAPOL. He was also the officer in charge of the Disciplinary Review Office, the office used by SAPOL to deal with disciplinary matters for police officers at that time.
The issues raised by the appellant, which I have identified above, were brought to the respondent’s attention by the oral submissions of the appellant and Mr Alexander at the Meeting on the 15th April 2003, by the appellant’s written submissions, and through the communications from Mr Hannon on the appellant’s behalf.
All except two of the issues, paragraphs 2 and 4, detailed above were raised either by the appellant, Mr Alexander, or Mr Hannon. Prior to this appeal the respondent provided a lengthy and detailed affidavit, sworn on the 21st December 2006 (Exhibit R1). This affidavit mirrors his earlier Written Reasons. It is clear from the detailed Written Reasons of the respondent, dated 1st August 2003, that he carefully considered all of the material before him. In those Written Reasons the respondent spends some time detailing the submissions by or on behalf of the appellant. Putting aside for the moment paragraphs 2 and 4, it is my view that the respondent took adequate account of all of those eight issues.
The appellant contended that the respondent did not give sufficient weight to the matter articulated in point 2 above, namely:
The appellant’s attendance while on sick leave throughout this investigation to view documents and participate in interviews.
While the respondent may not have alerted himself to that matter, in the precise terms articulated above, he effectively took those difficulties into account. He was aware of and referred to the fact that the appellant was on sick leave in the course of the investigation and had been off work since 2000 on workers compensation.[12]
[12] See Written Reasons dated 1st August 2003 at page 29 (Exhibit R1 – GTB 22) and the medical and psychiatric evidence adduced.
The appellant also contended the matters identified in paragraphs 4 were not adequately taken into account, namely:
The appellant’s service history with SAPOL, his personal file, previous work history and details of previous postings.
That is to say that the appellant submitted that the respondent may have taken into account his personal service history, as opposed to his personal file.
The respondent, in the course of his Written Reasons, stated that:
I have also read and taken into account the personal service history of Superintendent Clarke, including his length of service, various postings, commissioner officer appointments, awards, academic studies, etc and in doing so did not have regard to irrelevant material/expunged history.[13]
[13] Written Reasons of the respondent dated 1st August 2003 at page 30 (Exhibit R1 – GTB 22)
The respondent then goes on to refer to the appellant’s Human Resource Management printout. In his affidavit of November 2006 he also identified, and annexed, the appellant’s SAPOL Employee Profile Report. It is not reasonable to extrapolate from the respondents statements that he has not taken into account those matters raised by the appellant in relation to the fourth bullet point above.
Conclusion
The Written Report of the respondent dated 1st August 2003 (Exhibit R1 – GTB 22) and his affidavit sworn on 21st December 2006 (Exhibit R1) provide significant detail as to the process the respondent undertook. It is clear from both of these documents that the respondent adequately took into account the submissions of the appellant and the representations made on behalf of the appellant by the Police Association. Further, it is clear from the correspondence between the respondent and representatives of the appellant at the time that these submissions and representations were very much in the respondent’s mind at the time.
The respondent considered the submissions by, and on behalf of, the appellant in relation to the 17 offences found proved. These offences all occurred while the appellant occupied a high rank within SAPOL and a position of significant responsibility. The respondent had a responsibility to ‘impose punishment’ upon the appellant and in doing so he was entitled to take into account ‘the internal maintenance, good order and discipline of the police force’. His decision also needed ‘to ensure that all reasonable steps are taken to ensure the good standing of the force in the eyes of the community’.
Grounds 2.1, 2.6 and 2.7 have not been made out. The four counts of falsehood or prevarication are particularly serious and when weighed together with the other offences, and given the appellant’s rank as a superintendent of SAPOL and his position as DRO, dismissal was inevitable. So in my view, the decision of the respondent is not manifestly excessive, and it is not against the weight of the submissions made by the appellant or those made on his behalf.
The appellant has not demonstrated that cogent reasons exist for me to depart from the decision of the respondent in relation to Grounds 2.1, 2.6 and 2.7.
Ground 2.2 Apprehension of Bias
The respondent should have disqualified himself from participation in the process of making a decision in relation to the penalty to be imposed upon the appellant on the grounds that he was, or that there were grounds for a reasonable apprehension that he was, biased against the appellant.
Although this ground raises actual bias the appellant’s argument was confined to the topic of apprehended bias. No submissions or evidence were advanced on actual bias.
Evidence Considered
On this ground of the appeal I received both oral evidence and documentary evidence.
The oral evidence before me was from:
·Gary Thomas Burns (“the respondent”)
The documentary evidence before me was:
·Affidavit of Darryl John Clarke sworn on 30th November 2006 (Exhibit A1)
·Notes of Penalty Meeting of 15th April 2003 by Darryl John Clarke (Exhibit A1 – DJC2)
·Further Affidavit of Darryl John Clarke sworn on 26th February 2007 (Exhibit A3)
·Affidavit of Gary Thomas Burns sworn on 21st December 2006 (Exhibit R1)
·Notes of Meeting 15th April 2003 prepared by Bruce Faehrmann (Exhibit R1 GTB 9)
·Letter from Gary Burns to Darryl Clarke dated 16th April 2003 (Exhibit R1 – GTB 10)
Overview
The appellant argued that there was a reasonable apprehension that the respondent was biased against him. He contended that this reasonable apprehension arose from a combination of the following matters: (1) the nature of the relationship between the respondent and two other police officers; (2) the lack of disclosure by the respondent of these relationships and the extent of the relationships, and; (3) the manner in which the respondent had entertained the appellant’s application on bias on the 15th April 2003.
The two officers referred to above were identified as Peter Hoadley and Craig Drogemuller. Each gave evidence before the Tribunal in respect of a number of counts alleged against the appellant.
Messrs Hoadley and Drogemuller each worked for a period as the assistant to the appellant in his position as the DRO. Mr Hoadley worked as his assistant from 12th June 1995 until 11th January 1997 and Mr Drogemuller held the same position from the 18th August 1997 until the appellant left the area.
Mr Hoadley was a key witness in relation to three counts. In its decision, the Tribunal dismissed those three counts. Mr Drogemuller was a key witness in the case against the appellant generally. As the appellant noted in his submissions before me, Mr Drogemuller’s evidence and credibility were subject to challenge.
As part of this appeal the respondent gave evidence. During the course of this cross-examination, and the subsequent re-examination, the respondent provided the following details as to his relationship with Messrs Hoadley and Drogemuller and as to his recollection of the meeting of the 15th April 2003:
Relationship between Burns and Hoadley
The respondent described his relationship with Mr Hoadley as a light social relationship mainly in the professional arena. They both worked at STAR Force as it was then known from the early 1980’s but initially they worked within different teams. They first worked together in the late 1980’s when Mr Hoadley was the respondent’s sergeant, or senior sergeant. They spent most of their time working together before 1991.
The respondent left STAR Group about 1990 but eventually returned as the officer in charge. During this time Mr Hoadley was his operations inspector for period of a few weeks. After the respondent left STAR Group about 1990 there was only a matter of months over the next decade that he and Mr Hoadley worked together.
The respondent indicated that while he had known Mr Hoadley since the early 1980’s they did not have, what he would describe as, a close social relationship. The respondent had been to Mr Hoadley’s house no more than six to ten times, most frequently when he had visited with other people following Mr Hoadley’s gliding accident. He had never had dinner over there. He had picked him up or dropped him home from work but never in a social context.
Mr Hoadley had attended the respondent’s house on a limited number of occasions. These included the respondent’s 50th, and probably 40th birthdays as well as a farewell party for the respondent before he travelled overseas to work with the Royal Canadian Mounted Police. The respondent and Mr Hoadley had also met at card nights, held about twice a year over a three-year period. At least one of these nights was at the respondent’s house, in the early 2000’s.
The respondent described a number of “professional social occasions” he and Mr Hoadley would attend including commissioned officer mess social functions and STAR Force reunions and a committee.
They had been out to dinner together, socially, on a couple of occasions. The only occasion the respondent could recall was about six to eight months ago (ie prior to February 2007), when he and his wife had gone out to a movie and then dinner with Mr Hoadley and his wife. Their wives had, what the respondent called, a light friendship.
The respondent was asked about occasions when he would visit Mr Hoadley at the office of the Internal Investigation Branch. He indicated he would visit Mr Hoadley at his various work locations as he visited other people but not on a regular or ongoing basis and fairly intermittently. He stated it was not an instance of “social chitchat” but that if he dropped into an area it would be for reasons and he would take the opportunity to say “hi” to any people he knew, including Mr Hoadley.
Relationship between Burns and Drogemuller
The respondent explained that he and Mr Drogemuller had attended the same officer’s course and described this relationship as a “professional-friendly” relationship. They each attended reunions for this course that had been going since 1992. The respondent had attended six or seven of these. The respondents, along with other members of the officer’s course had attended Mr Drogemuller’s wedding to his second wife.
The respondent said that he and Mr Drogemuller had never been to each other’s home and that he did not know Mr Drogemuller’s first wife. He could not recall any other social interaction between them other than the five-year STAR Force reunion, or meetings, or at commissioned officers’ events. The respondent could not recall sitting at a table organised by Mr Drogemuller for a Christmas function.
Meeting of 15th April 2003
On the 15th April 2003 a meeting was held between the appellant, the respondent, Messrs Alexander and Faehrmann. In subsequent communication it was commonly referred to as the “penalty meeting”. The appellant and Mr Faehrmann took notes. The meeting was also recorded but the tape recorder malfunctioned early into the meeting. The respondent also gave evidence before me on the 26th February 2006 of his recollection of the meeting of the 15th April 2003.
It is acknowledged that the appellant raised the issue of bias. The appellant contends that at this point the respondent “stated he did not intend to put it (i.e. the penalty meeting and submissions) off and would deal with it today.” This, the appellant submitted, was an attempt to “fob off” the issue bias. The respondent admits he may have said that but denied saying it at that time.[14] The appellant provided details as to the law regarding apprehended bias and pointed out his reasons for raising the issue, namely the respondent’s relationship with Messrs Hoadley and Drogemuller. The appellant asked about the respondent’s level of contact with each, the social side of things, and the respondent replied “it was more so with one than the other.” It was at this point that tape recorder malfunctioned.
[14] Transcript Hearing dated 26 February 2007 pages 14-15
The notes record that the respondent asked Alexander if he wished to make any submissions on this matter, which Alexander declined. The respondent then indicated that he wished to continue on. He considered that it was really a question of perception versus reality, that he could assure the appellant that there would be no bias on his part and that he intended to continue to hear the matter.
The appellant indicated that this was not the test, that it was not a matter of whether the respondent was actually biased but whether somebody, with absolutely no knowledge of the matter, may well think he might be biased. That was the end of any discussion about bias in the penalty meeting and the respondent then invited the appellant and Alexander to move onto submissions.
Under cross-examination the respondent said that he carefully considered the appellants request to have him disqualify himself. He made an assessment in his own mind about actual and perceived bias. He considered what he actually knew in terms of his relationship with the people involved, what a reasonable person would think if they knew the extent of those relationships. He then determined that a reasonable person would believe there was, or accept that there was, no bias or perceived bias. The respondent acknowledged that he did not inform the appellant of this reasoning process.
Legal Principles
The test for apprehended, as opposed to actual, bias is well settled. It is that a judicial officer is disqualified by reason of the appearance of bias if in all the circumstances a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the question to be tried (see Livesey v NSW Bar Association[15]; Webb & Hay v The Queen[16]; Johnson v Johnson[17]; IOOF Aust Trustees v Seas Sapfor[18]).
[15] (1983) 151 CLR 288 at 293-4
[16] (1994) 181 CLR 41 per Gleeson CJ and McHugh J at 53, Brennan J at 67, 68, Deane J at 75
[17] (2001) 201 CLR 488
[18] (1999) 78 SASR 151
Notably, the fair-minded lay observer is imbued with “knowledge of the material objective facts”. In Webb v Hay (supra), Deane J at 73-74 expanded on the attributes of this person in the following terms:
The fair-minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court. The material objective facts include, of course, any published statement, whether prior, contemporaneous or subsequent, of the person concerned. If, in the particular case, the proper conclusion is that a fair-minded lay observer with a broad knowledge of those facts would not entertain a reasonable apprehension of bias, that is the end of the issue of disqualification by reason of an appearance of bias.
In Johnson (supra), Kirby J said on the same topic at [53]:
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer (Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (unreported; Court of Appeal (NSW); 27 November 1990) at 20, cited in Spedley Securities (1992) 26 NSWLR 411 at 419). Yet neither is he or she a person wholly uninformed and uninstructed about the law in general of the issue to be decided (R v George (1987) 9 NSWLR 527 at 536, per Street CJ.). Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers (Galea v Galea (1990) 19 NSWLR 263 at 282).
(See also IOOF Australia Trustees[19])
[19] (supra) at [184-197] per Doyle CJ.
The basic test for reasonable apprehension of bias is the same for administrative and judicial decision makers but its content may often be different.[20] The standard required of a fair-minded lay observer varies according to the function being discharged by the decision maker in question and the particular circumstances.[21]
Conclusion
[20] Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 460 per McHugh J.
[21] Webb v Hay (1994) 181 CLR 41 at 53 per Mason CJ and McHugh J; at 76 per Deane J.
The fair-minded lay observer would have knowledge of the nature and extent of the relationships between the respondent and Messrs Hoadley and Drogemuller. The lay observer would start by acknowledging the working relationships that covered some 20 years. He or she would know they were friendly relationships but limited in terms of out of work social contact.[22] The respondent’s description of them as a “light friendship” seems to “sit quite well”.[23]
[22] Contrast Ex parte Blume; re Osborne [1958] SR(NSW)334 in which more out of work social contact occurred in 3 months than has ever been described as existing in the current appeal.
[23] Contrast Kennedy v Cahill (1995) 118 FLR 60 which considered a “serious close and personal relationship” between a judge and solicitor.
This fair-minded lay observer would also be aware of Messers Hoadley and Drogemuller’s involvement in the Tribunal proceedings and the fact that they gave evidence before the Tribunal but were not witness who gave evidence before the respondent. They would also note that there was no evidence to suggest there was any communication between Hoadley or Drogemuller and the respondent between the time of delegation by the Commissioner and the time the respondent delivered his decision.
The fair-minded lay observer would also possess a general knowledge of the workings of SAPOL. He or she would consider it appropriate that punishment be imposed upon an officer by a person of higher rank within SAPOL and would be aware that there were a limited number of commissioned officers of a higher rank than the appellant available for the task. The lay observer would take into account the nature of working relationships within SAPOL and that a person in a senior position within SAPOL would know a significant number of other officers, to a greater or lesser degree, and that there would be a very good chance that such a person would have had some level of contact with witnesses who appeared before the Tribunal. This does not by itself suggest to the fair-minded lay observer that a senior officer should disqualify himself or herself. Any other conclusion would have a disrupting effect on the ability of SAPOL to effect its obligations under legislation.[24]
[24] See Asciak v Samuels (1976) 15 SASR 265
With all of this in mind the fair-minded lay observer would not reasonably apprehend that the respondent might not bring an impartial and unprejudiced mind to the question of punishment.
At law a decision maker is required to disclose anything that might found or warrant a bona fide application for disqualification[25]. And of course assurances given by the respondent during the course of the penalty meeting are not of themselves sufficient to remove or dispel any appearance of bias[26].
[25] Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215
[26] OOF Australia Trustees (1999) 78 SASR 151 at 167 per Doyle CJ; Brown & Dixon v Police [1999] SASC 322 and Vakauta v Kelly (1989) 167 CLR 568 at 571-572.
Certainly the disclosure of the respondent at the meeting of the 15th April 2003 was limited. The respondent was obviously keen to move on to the penalty submissions but still heard the appellant’s submission in detail and agreed that he had relationships with both Hoadley and Drogemuller but not sufficient to warrant disqualification. He offered Mr Alexander an opportunity to speak which was declined. He then assured the appellant there would be no bias and then asked the appellant and Mr Alexander to move onto submissions on penalty.
The fair-minded lay observer would have regard to the manner in which the respondent dealt with this submission of apprehended bias when it was raised, but even of itself the apparent reticence of the respondent would not cause the fair-minded lay observer reasonably to apprehend bias, and certainly not when all the other matters canvassed above are considered.
Taking all of these matters into consideration a fair-minded lay observer with knowledge of the material facts would find that no reasonable apprehension existed that the respondent was biased against the appellant.
Ground 2.4 Undertaking
The respondent was estopped or otherwise prevented from imposing a penalty of dismissal as a consequence of statements made by Commissioner Malcolm Hyde and conveyed to the appellant that he would not be dismissed and the appellant acted upon those statements to his detriment.
During the meeting on the 15th April 2003 the respondent was asked by the appellant to give some indication as to the range of penalties he was considering giving. The respondent said that he was considering the full range of penalties, including dismissal. The appellant disputed that dismissal was an option stating that the Commissioner had said there would be no dismissal and that further, this undertaking was not conditional or part of a plea bargain. The respondent was encouraged by Mr Alexander to discuss the issue with the Commissioner.
Following the meeting the respondent chose not to speak to the Commissioner directly but sought his views on the matter in writing. The Commissioner provided him with two memoranda dated the 23rd and 24th of April 2003. The respondent also requested information from Superintendent Schramm and was provided with his affidavit.
Evidence Considered
On this ground of the appeal I received only documentary evidence.
The documentary evidence before me was:
·Affidavit of Darryl John Clarke sworn on 30th November 2006 (Exhibit A1)
·Notes of Penalty Meeting of 15th April 2003 by Darryl John Clarke (Exhibit A1 – DJC2)
·Affidavit of Peter Brian Giles sworn on 30th November 2006 (Exhibit A2)
·Affidavit of Gary Thomas Burns sworn on 21st December 2006 (Exhibit R1)
·Notes of Meeting 15th April 2003 prepared by Bruce Faehrmann (Exhibit R1 - GTB9)
·Letter from Gary Burns to Darryl Clarke dated 16th April 2003 (Exhibit R1 – GTB10)
·Letter from Gary Burns to Commissioner of Police dated 23rd April 2003 (Exhibit R1 – GTB 11)
·Letter from Gary Burns to Paul Schramm dated 23rd April 2003 (Exhibit R1 – GTB 12)
·Memo from Commissioner of Police to Gary Burns dated 23rd April 2003 (Exhibit R1 – GTB 13)
·Memo from Commissioner of Police to Gary Burns date 24th April 2004 (Exhibit R1 – GTB 14)
·Statement of Paul Schramm unsworn and undated (Exhibit R1 – GTB 15)
·Letters from Greg Parker to Darryl Clarke and Peter Hannon both dated 4th June 2003 (Exhibit R1 – GTB 16)
·Written Submissions by Peter Hannon to Minister for Police dated 13th June 2003 (Exhibit R1 – GTB 17)
·Letter from Gary Burns to Peter Hannon dated 25th June 2003 (Exhibit R1 – GTB 18)
·Letter from Gary Burns to Peter Hannon dated 26th June 2003 (Exhibit R1 – GTB 19)
·Letter from Peter Hannon to Gary Burns dated 30th June 2003 (Exhibit R1 – GTB 20)
·Transcript of 28th August 2001 Pages 79-80, 97-98 (Exhibit R2)
Overview
In the lead-up to the Tribunal hearing in 2001 Mr Alexander acted on the appellant’s behalf. It is not disputed that in this role he had a number of discussions with the Commissioner and that the Commissioner expected that the content of these discussions would be relayed to the appellant. The appellant submitted that in a meeting on the 17th August 2001 Mr Alexander informed him, with Peter Giles present, that the Commissioner had told Mr Alexander that the appellant’s job was safe and that dismissal was out of the question.
The appellant submitted that there was no indication to him that this position of the Commissioner was conditional upon a guilty plea to some charge or charges or only applied if the matter did not go to trial. He contended, in effect, that the Commissioner undertook, on no account, to dismiss him. Mr Giles, in his affidavit, supports the appellant’s submission insofar as he agrees that this is what they understood to be the Commissioners position, relayed to them through Mr Alexander.
Counsel for the respondent argued that any offer not to dismiss the appellant was made as part of a plea bargaining process and that the appellant was indeed aware that dismissal existed as a potential punishment prior to the Tribunal Hearing starting.
Counsel for the respondent argued that the existence of a new charge sheet was consistent with a plea bargaining process. This new charge sheet is not before me but its existence is alluded to in the affidavit of the appellant dated 30th November 2006 at paragraph 28 (Exhibit A1). The statement of Superintendent Schramm also alludes to a new charge sheet and ongoing negotiations (Exhibit R1 – GTB 15).
Counsel also tendered a portion of transcript in support of the fact that it was made clear to the appellant in preliminary hearings before the Tribunal that dismissal was an option upon a finding or plea of guilt. The transcript is reproduced in paragraph 106 hereunder.
Conclusion
As noted above it is not in contention that there were conversations between Mr Alexander and the Commissioner of Police. No notes exist as to the details of these conversations. There is no evidence from Mr Alexander as to these matters. The Commissioner provided two memoranda to the respondent in April 2003 detailing his recollection of what was discussed.
The only other evidence we have of what was discussed are the affidavits from Mr Giles and the appellant as to their recollection of what was relayed to them by Mr Alexander.
It is difficult for me to give much weight to the evidence provided by Mr Giles through his affidavit on what is a crucial issue. This is notwithstanding the relaxation of the rules of evidence provided for by a hearing of this type. Mr Giles’ affidavit is evidence of the fact of the conversation between him and Mr Alexander in the presence of the appellant about this topic. It does not prove the truth of the contents of that conversation.
Mr Alexander has not provided the Court with an affidavit relating to this matter. This means I am without the details that could have been provided by the person who was the crucial link of communication between the Commissioner and the appellant.
The two memoranda provided by the Commissioner assert that it was his understanding that any indication he would have given, not to dismiss the appellant, would have been conditional upon pleas of guilty. As the Commissioner points out “there was no point in giving any indication of penalty at all if it wasn’t for this purpose.” (Exhibit R1 – GTB 14)
This view, that the undertaking was made in the context of plea bargaining, is supported by the existence of a new charge sheet. This is alluded to in the affidavit of the appellant dated 30th November 2006 at [28] (Exhibit A1) as well as the statement of Superintendent Schramm (Exhibit R1 – GTB 15).
The transcript of the Tribunal dated 28th August 2001 also supports this. On page 79 the appellant’s answer at line 33 suggests he was aware that there was no unconditional undertaking:
… It’s been suggested to me that if I adopt certain courses, there may well be a different result; and that’s been conveyed to me during negotiations that were going on.[27]
[27] Transcript of Tribunal 28/8/2001 page 79 lines 33 to 36 (Exhibit R2)
Further, at pages 80 line 1-3 and in particular at page 97 lines 9-36 it is made clear to the appellant that dismissal is a penalty option:
Mr Nicholas: … I propose to identify the commissioner’s position so that the tribunal and Mr Clarke are left in no doubt as to the commissioner’s position on penalty. These will of course assume that there is a finding of guilt or a plea.
The first is that I confirm that this matter has been identified as a category A matter, and that as matters stand that category is maintained by the commissioner.
Two – that the commissioner will consider the various penalty options within that category that are open to him should the need arise, including the possibility of dismissal.
Three – that dismissal is not an inevitable outcome of a finding of guilty or a plea of guilty.
Four – that the commissioner does not exclude dismissal as a possibility should the commissioner be called on to consider penalty options.[28]
[28] Ibid page 97 lines 9 to 27 emphasis added
In consideration of all of these matters I do not find that any statement was made by the Commissioner not to dismiss the appellant in any other context other than if the appellant were to plead guilty.
As the appellant did not plead guilty he cannot be said to have relied upon the statement to his detriment and so it is unnecessary for me to consider the issue of detriment.
Ground 2.5(a) Punishment Inappropriate due to delay
The punishment was inappropriate given:
(a)the passage of time from the date of the breaches of discipline to the date of dismissal on 13 October 2003.
Overview
The appellant submitted that the punishment was inappropriate given the passage of time. His submissions were made on two bases, the length of time it had taken for the investigation to be completed before he was charged and the length of time from the decision of the Tribunal until the appellant’s dismissal.
The investigation, by way of an audit of the Disciplinary Review Office, commenced in December 1998 and the Commissioner laid charges against the appellant on the 4th July 2000. During this period the Police Association, on behalf of the appellant, initiated a dispute over the delay in the Industrial Relations Commission. I understand that the Industrial Commissioner was critical of the delay.
The length of time it took for the investigation process to be completed is a factor to be taken account in the decision making process the respondent undertook. It should be considered, however, in light of the complicated nature of this matter.
The appellant’s second submission related to the length of time between the decision of the Tribunal and the appellant’s dismissal. The case of Wickham v Commissioner[29] was referred to in support of the appellant’s submission and I turn now to consider that case in more detail.
Wickham v Commissioner of Police
[29] Wickham v Commissioner of Police (unreported, Supreme Court of SA, Olsson SCJ, 1997, SASC 6497)
This case was an appeal against the dismissal of senior constable Wickham heard by Olsson J. The decision of Olsson J to overturn the dismissal was upheld on appeal by the Full Court.[30]
[30] Wickham v Commissioner of Police (unreported, Full Court of SA, Matheson SCJ, Prior SCJ and Debelle SCJ, 1998, SASC 6652).
Senior Constable Wickham lied about her age in order to compete in Masters’ Games. She was charged with a single count of acting in a manner which reflected or was likely to reflect discredit on the force.[31] The facts were freely admitted, Wickham pled guilty to the charge and submissions on punishment were held a week later. Following these submissions there was, as Olsson J has described, “an inexplicable delay of some six months”[32] before the matter was dealt with again and Wickham was consequently dismissed. During this period, although Wickham was transferred to a different police station, she continued to undertake normal police duties. A consideration of these factors led Olsson J to describe the matter as “stale” by the time the Commissioner decided to deal with it.[33]
[31] Police Regulations 1982 (SA) Reg 27(2)(a).
[32] Wickham v Commissioner of Police (unreported, Supreme Court of SA, Olsson SCJ, 1997, SASC 6497 at page 6).
[33] Ibid at page 21.
In the course of his decision Olsson J pointed out that the principle of condonation, while not of direct application to a matter before the Commissioner, nonetheless was important in testing the fairness of a situation. As he described:
It has long been held, in the industrial jurisdiction, that an employer who asserts misconduct by an employee which warrants disciplinary dismissal is bound to exercise the right of dismissal within a reasonable time after the offending conduct comes to notice. If this is not done and the employer continues the offender in employment, then this is viewed as industrial condonation by waiver of the offending conduct[34].
Comparisons with this appeal
[34] Ibid at page 20.
In the appeal before me there are significant differences to those that were considered in Wickham. In this appeal the appellant was initially charged with 28 counts that related to conduct which occurred over a period of three years and which related to the appellants role as Disciplinary Review Officer. There was no plea of guilty. Almost all matters were contested. The Tribunal found the appellant guilty of 17 counts. The circumstances surrounding this matter were considerably more complex and detailed as evidenced by the 3,001 pages of transcript, a filing cabinet full of exhibits, and the 432 page judgment of the Tribunal.
The Tribunal delivered their judgment on the 13th February 2003 and the appellant and Mr Alexander made submissions on penalty in mid-April. The Commissioner provided his memorandum to the respondent in late April.
Throughout June there were communications between the respondent and Mr Hannon who was then acting on behalf of the appellant. Further information was raised during these communications including Mr Hannon’s submissions to the Minister for Police as well as the medical reports of Dr Nielsen dated 10th June 2003 and Dr Davis dated 27th March 2003.
The respondent provided detailed reasons supporting his recommendation of dismissal on 1st August 2003. This recommendation went to the Governor for approval and the appellant was dismissed on 30 October 2003.
Conclusion
In the present case the time between the finding of guilt and the dismissal of the appellant was approximately eight and a half months (8½). There was a considerable amount of material to cover in a complex matter and in the period following initial submissions relevant material continued to be produced. This can not be described as an inexplicable delay as the matter continued to evolve and develop throughout this period up until the eventual dismissal. As a result, at the time of dismissal, the matter cannot be considered as having become “stale”.
There are some further factual differences between this appeal and the case of Wickham that are to be considered in relation to the principle of condonation.
First, in this matter the appellant was not undertaking “normal police duties”, in particular during the period between the decision of the Tribunal and his dismissal. In fact, due to medical reasons, the appellant was not “working” as of June 2000. This does not reflect poorly upon the appellant but it is a distinguishing feature of the two cases.
Secondly, the Commissioner did not suspend the appellant prior to his dismissal. This is a matter I take into account. I note, however, paragraph 104 of the affidavit of the respondent where he states that:
I sought out and read documents clearly demonstrating that the Commissioner seriously considered the suspension of the Appellant. However, Crown Law advice concluded that it was not possible to suspend the Appellant under either the current or former Police Act and Regulations due to the specificity of the new provisions and a lack of transitional provisions covering the situation. This was considered an unsatisfactory outcome, but the Commissioner had no choice but to accept that suspension was not an option at that time.[35]
[35] Affidavit of Gary Burns dated 21st December 2006 at [104] (Exhibit R1).
I find no reason to depart from the decision of the respondent based on this ground of appeal.
Ground 2.5(b) Punishment Inappropriate as appellant unable to return to work
The punishment was inappropriate given:
(b) that for medical reasons the appellant was unable to return to work in SAPOL
Evidence Considered
·Affidavit of Dr Ingrid Nielsen dated 28th November 2006 (Exhibit A4)
·Letter from Peter Hannon to Minister of Police dated 14th June 2003 with attached reports of Dr Tony Davis and Dr Ingrid Nielsen (Exhibit R1 – GTB 17)
Outline
The respondent received a letter from Mr Hannon dated 13th June 2003 attached to which were two medical reports.
The earliest of these reports was prepared by Dr Tony Davis and dated 27th March 2003. As part of the conclusions drawn in his report, Dr Davis stated that he considered that the appellant was not able to return to his former duties and that he was “not able to discharge any other duties within the organization at present or in the foreseeable future”. Dr Davis considered that it would be inappropriate for the appellant to return to work at the organization.[36] SAPOL is the organization referred to.
[36] Report of Dr Davis dated 27th March 2003 at page 6
The second report provided was prepared by Dr Ingrid Nielsen and dated 10th June 2003. The conclusion that Dr Nielsen drew, relevant to this ground of appeal, was that she now considered the appellant to be unfit to return to duties within SAPOL.[37]
[37] Report of Dr Nielsen dated 10th June 2003
The appellant submitted that the respondent’s primary reason for recommending his dismissal was the “protection of the public”. He submitted that this punishment was inappropriate because the medical evidence showed that he would be unable to return to work at SAPOL and that this effectively catered for the protection of the public.
Protection of the Public
Giles A-JA in Law Society of NSW v Foreman[38] considered protection of the public in relation to the misconduct of a legal practitioner. He described it as having a two-fold aspect:
But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.[39]
[38] (1994) 34 NSWLR 408
[39] Ibid at 471 see also Mahoney JA at 441.
This view has been cited by approval in appeals from matters from other professional disciplines.[40] In the current appeal the protection of the public could be described as follows. First, it involves the protection of the public from the police officer in question. Secondly, it involves the protection of the public from other police officers who might be minded to act in a like manner.
[40] See eg. Reyes v Dental Board of South Australia (unreported, Supreme Court of SA, Perry SCJ, 22 January 1998, SASC 6516); Rajagopalan v Medical Board of South Australia (unreported, Supreme Court of SA, Debelle SCJ, 11 September 1997 SASC 6363).
The submissions of the appellant could only go to the first aspect of protection of the public. That is, that the public could be considered protected from the appellant because he will not be returning to work at SAPOL. This fails to take into account the second aspect of protection of the public, that of deterrence.
It is clear from the Written Report dated 1st August 2003 (Exhibit R1 – GTB 22) that the respondent took into account both aspects of protection of the public when reaching his decision.
It is also to be noted that the purpose of the proceedings under the Act in this case includes the notion of punishment of the individual (see s39(3) of the said Police (Complaints and Disciplinary Proceedings) Act whereas the objective of disciplinary proceedings in, for instance, the legal and medical professions is not to inflict punishment but is “entirely protective ...” (see NSW Bar Assoc v Evatt[41]; see also Rajagopolan v Medical Board of SA (supra)). There is no need here to embark upon an examination of this notion of punishment which clearly has application here as discussed above in paragraphs [22] to [27] above because the respondent reached his decision on the basis of the need to protect the public by deterring others from such misconduct and that is clearly sufficient basis to require the appellant’s dismissal.
[41] (1968) 117 CLR 177 at 183-4
This ground of appeal does not provide cogent reasons to depart from the decision of the respondent.
Ground 2.8
The respondent having been delegated the task of determining and imposing punishment on the appellant failed to do so in accordance with that delegation.
On 28th February 2003 the Commissioner of Police delegated the task of determining and imposing punishment on the appellant to the respondent (Exhibit R1 GTB 1). The delegation was pursuant to s 53 of the Police Act 1952 and s 19 of the Police Act 1998.
The powers and functions delegated are contained in s 39(3) and (4) of the Police (Complaints and Disciplinary Proceedings) Act 1985, reg 28 of the Police Regulations 1982 and reg 28 of the Police Regulations 1998.
There is nothing to suggest that this delegation was not properly executed.
The appellant’s submissions, as detailed in his Further and Better Particulars, are as follows:
·That the Commissioner should have had no involvement in that process (the determination and imposition of punishment) after the function had been delegated to the respondent and, importantly, as the Commissioner had done so on account of potential bias.
·The respondent provided two reports to the Commissioner where he makes reference to recommending a punishment and considering what the appropriate penalty is.
·The respondent had not made a final and unequivocal determination as to the penalty nor taken steps to impose it on the appellant.
·The respondent was seeking approval or endorsement from the Commissioner.
·The respondent should have made his decision and imposed the penalty independent of the Commissioner.
In the preface to his Written Report dated 1st August 2003 (Exhibit R1 – GTB 22) the respondent identified that he had previously submitted a report recommending the dismissal of the appellant on 24th April 2003. At the conclusion of that Written Report the respondent stated: “I consider that the appropriate penalty is dismissal from SAPOL forthwith.” (Exhibit R1 – GTB 22 page 36)
It was the appellant’s contention that by “recommending” dismissal and “considering” it to be an appropriate penalty the respondent had, in fact, not make his decision in accordance with the terms of his delegation. That the respondent’s two reports, of April and August 2003, amounted to him keeping in touch with the Commissioner and involving the Commissioner in the decision making process. The appellant submitted that these reports indicated that the respondent was not making the decision delegated to him but, instead, “testing the water” or seeking approval.
The appellant’s submissions on this ground of appeal rely entirely on his interpretation of the terminology used by the respondent in his Written Report (Exhibit R1 – GTB 22). No other evidence has been advanced that the respondent kept in touch with the Commissioner regarding this matter or that the Commissioner provided feedback to the respondent. The respondent explained that, following his report of the 24th April 2003, he decided to review his consideration of the matter because additional information came to his attention in correspondence. The Written Report of 1st August 2003 came as result of this further consideration (Exhibit R1 – GTB 22 page 1). I accept the respondent’s explanation.
The question remains however: would the terminology used by the respondent by itself be enough to demonstrate that he did not make his decision in accordance with the delegation?
Pursuant to reg 28(1)(a) of the Police Regulations 1982 the approval of the Governor is required for the dismissal of a commissioned officer. All but three of the counts found proved against the appellant related to breaches charged under these regulations. These regulations were revoked on 1st September 1998 by first the Police Regulations 1998 and these regulations relate to the remaining three grounds.
The case of Wickham v Commissioner of Police[42] considered the dismissal of a non-commissioned officer, for which the approval of the Minister for Police was required.[43]. To effect the dismissal the Commissioner “recommended” that course of action to the Minister:
I have decided to recommend dismissal of Senior Constable Wickham from the Police Force pursuant to Section 28(1)(a) of the Public Regulations, 1982. I seek your approval for dismissal in accordance with this regulation.[44]
[42] Unreported, Supreme Court of SA, Olsson SCJ, 1997, SASC 6497.
[43] Police Regulations 1982 s28(1)(a)
[44] Wickham v Commissioner of Police Wickham v Commissioner of Police (unreported, Supreme Court of SA, Olsson SCJ, 1997, SASC 6497 at page 6). I note the quote refers to the “Public Regulations” but should correctly refer to the Police Regulations.
I do not consider that the use by the respondent here of the challenged language supports the appellant’s submission that the respondent did not make his decision in accordance with the delegation. The respondent was complying with the relevant regulations of the time in preparing a report that recommended to the Governor that the appellant should be dismissed. The ultimate responsibility for that approval rested with the Governor.
Consequently, in consideration of these circumstances, I find that the respondent made his decision appropriately and in accordance with his delegation. This ground of appeal provides no cogent reason to depart from the original decision of the respondent.
Final Comment
Upon receipt of the delegation the respondent had a difficult task before him. He was required to impose punishment on the appellant in respect of the 17 counts that were found proved by the Tribunal. It was offending which took place over a three year time period. As part of the process, the respondent had to consider the lengthy judgment of the Tribunal. He heard submissions in mitigation from the Police Association and the Appellant and had reference to voluminous written submissions, medical reports and other material.
In exercising responsibilities delegated to him the respondent also had to consider those things relevant to “the control and management of the police force” including; issues of maintaining internal order and discipline within SAPOL and concerns relating to the protection of the public.
As part of the unique nature of the decision he was asked to make he was effectively placed under an obligation similar to that of a sentencing court – he was required to make the punishment fit the offence and the circumstances of the offender as nearly as possible.
Upon considering all of this the respondent provided a detailed report in which he decided that dismissal was the appropriate punishment.
Having considered those same documents and having the benefit of the submissions on the appeal before me I indicate that I would have arrived at the same conclusions as the respondent – that the appellant should be dismissed from SAPOL.
The grounds of appeal and submissions advanced by the appellant have not provided cogent reasons to depart from the original decision of the respondent.
Pursuant to s 42F of the District Court Act 1991 (SA) I affirm the decision of the respondent.
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