Commissioner of Police v A
[2011] SADC 124
•23 August 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMISSIONER OF POLICE v A
[2011] SADC 124
Judgment of His Honour Judge Tilmouth
23 August 2011
POLICE - APPOINTMENT, TENURE AND CONDITIONS OF SERVICE - MISCONDUCT AND DISCIPLINE
The Commissioner of Police appeals against a decision of the Police Disciplinary Tribunal finding the respondent not guilty of three breaches of the Police Code of Conduct. The breaches centred upon a private visit paid by the respondent a senior member of Police, to the home of a female Constable when she was on sick leave, during which they kissed and acts having a sexual implication took place.
HELD:
1. The Tribunal erred in law by importing extraneous considerations into its interpretation and application of the Code.
2. Therefore "cogent reasons" exist to interfere.
3. On reconsidering the matter afresh on the merits, in light of the background of a long standing personal relationship between the two police officers including a sexual one, the Commissioner has failed to prove on balance that the home visit was made for other than a desire to comfort the female police officer.
Police Act 1998 (SA), s39(3), ss40(1)(d)-(o), ss40(8)(a) & (b); Police (Complaints and Disciplinary Proceedings) Act 1985 (SA), s 39(4), s46; Police Regulations 1999 11, 12, 13, and 17; District Court Act 1991 (SA), s 42E(2)(a); s 42G(2); R v Travers (1958) 58 SR (NSW) 85; Sellars v Woods (1982) 45 ALR 113; Gilmour v Bastian (1917) 24 CLR 14; Morgan v Commissioner of Police [2011] NSWCA 134; Hartmann v Commissioner of Police (1997) 91 A Crim R 141; Ramsay v Watson (1961) 108 CLR 642; R v Pangallo (1989) 51 SASR 254; Project Blue Sky Inc v The Australian Broadcasting Authority (1998) 194 CLR 355; Henry v Ryan [1963] Tas SR 90; Fletcher v Nott (1938) 60 CLR 55; Briginshaw v Briginshaw (1938) 60 CLR 336, referred to.
Police Service Board v Morris & Martin (1985) 156 CLR 397; Anderson v Sullivan, Allen & Lawler (1997) 78 FCR 380; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; Warren v Coombes (1979) 142 CLR 531, applied.
Rose v Telstra Corp Ltd (1998) IRComm A 1592; Streeter v Telstra Corporation Ltd [2008] AIRCFB 15, (2008) EOC 93-488; (2008) 170 IR 1, distinguished.
COMMISSIONER OF POLICE v A
[2011] SADC 124Preliminary
This is an appeal by the Commissioner of Police from a decision of the Police Disciplinary Tribunal finding the respondent not guilty of three charges of breaching discipline. The Commissioner seeks orders finding the respondent guilty of those charges and orders for remission to enable him to impose punishment.
The context
The respondent is a senior member of the South Australian Police Force (SAPOL). As of 8 October 2007 he held a senior position at a suburban police station, where he was responsible for supervising a number of staff. During the course of his long service with SAPOL, he was awarded a number of service medals and certificates of merit.
Like all police officers upon becoming members of the Police force, he took an oath or affirmation to “well and truly serve” the Crown and amongst other things to “faithfully discharge all duties imposed on [him] as a member of South Australia Police”.[1] Taking this oath of office is an assent to loyalty and obedience as well as an assumption of the duty to obey orders: R v Travers,[2] Sellars v Woods.[3]
[1] Schedule 1 Police Regulations 1999 (SA) made pursuant to s 76 of the Police Act 1998 (SA)
[2] (1958) 58 SR (NSW) 85 at 104
[3] (1982) 45 ALR 113
Section 37 of the Police Act 1998 (SA) empowers the Governor to make regulations in order to establish a “Code of Conduct for the maintenance of professional standards by members of SA police …”. Section 37(2) states the Code may make provision concerning (amongst other things), the performance of duties; ss 2(a); corrupt, improper or discreditable behaviour; ss 2(b); conduct towards other members of Police: ss 2(c); and standards of personal behaviour: ss (2)(d).
Section 39 thereof enables the Commissioner (or his delegate) to charge any member of the Police with a breach of the Code. This section confers the power to lay charges under the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA), instead of proceeding domestically: Gilmour v Bastian.[4] Once so charged the member of the police force may “admit or deny the charge”: s 39(2). Where the charge is not admitted, it must be heard and determined by the Police Disciplinary Tribunal, established by the Police (Complaints and Disciplinary Proceedings) Act. Should the breach be admitted, or the charged officer found guilty, the Commissioner is then required to take disciplinary action, which may include termination or suspension, as well as lesser forms of punishment: Police Act ss 40(1)(d)-(o).
[4] (1917) 24 CLR 14
In this particular instance the Commissioner laid three charges against the respondent. They allege (to paraphrase) that on 9 October 2007 he:
(1)engaged in behaviour that reflected or is likely to reflect adversely on the Police contrary to R 13(a) of the Police Regulations 1999;
(2)engaged in conduct that was prejudicial to the good order and discipline in the Police, contrary to R 13(b); and
(3)was disrespectful in dealing with another employee of the Police, contrary to R 17(c).
Statutory Context
The Code of Conduct is that contained within Part 5 of the Police Regulations. Regulation 11(1) designates Part 5 to “constitute a Code of Conduct for the maintenance of professional standards by employees”. Such employees include any member of the Police (s 3). Regulations 12, 13 and 17 are these:
12—Honesty and integrity
An employee must at all times act with honesty and integrity, whether in the course of his or her employment or otherwise.
13—Conduct prejudicial to S.A. Police
An employee must not, in the course of his or her employment or otherwise, behave in a manner that—
(a) reflects or is likely to reflect adversely on S.A. Police; or
(b) is prejudicial to good order and discipline in S.A. Police.
…
17—Conduct towards public, employees in the department
An employee, in dealing with members of the public in the course of his or her employment, or in dealing at any time with employees in the department—
(a) must not unlawfully discriminate against any person; and
(b) must not behave in an oppressive, offensive, abusive or insulting manner; and
(c) must be impartial and respectful.
The proceedings before the Tribunal
The respondent entered pleas of not guilty. The Tribunal constituted by a Magistrate appointed by the Governor,[5] heard the charges on 5 November 2010. It delivered judgment on 4 February 2011. The jurisdiction of the Tribunal in respect of breaches of discipline under the Code is conferred by s 39(1)(b) of the Police (Complaints and Disciplinary Proceedings) Act. Section 39(4) thereof provides the Tribunal must be satisfied on the balance of probabilities the charged officer committed the breach of discipline as charged. Once it does, it is then required “to make a finding that the officer is guilty of the breach of discipline” and “remit the proceedings to the Commissioner for the imposition of punishment … in accordance with the Police Act 1998 …”.
[5] Section 37(2) Police (Complaints and Disciplinary Proceedings)Act
The Commissioner is required to indicate to the Tribunal at the commencement of the proceeding, which category of punishment the Commissioner considers “would, on the facts then known to the Commissioner, most likely be appropriate if the Tribunal finds the designated officer guilty of the breach of discipline”. Those categories are set out in s 39(3) of the Police (Complaints and Disciplinary Proceedings) Act:
(3)The Commissioner (or person representing the Commissioner) in proceedings under this section must, at the commencement of the proceedings, indicate to the Tribunal hearing the proceedings which of the following categories of punishment the Commissioner considers would, on the facts then known to the Commissioner, most likely be appropriate if the Tribunal finds the designated officer guilty of the breach of discipline:
(a) category A—termination or suspension of the officer's appointment or reduction in the officer's rank for an indefinite period;
(b) category B—transfer of the officer (without reduction in rank for an indefinite period), reduction of the officer's remuneration, reduction in the officer's seniority or imposition of a fine;
(c) category C—withdrawal of specified rights or privileges, a recorded or unrecorded reprimand, counselling, education or training or action of a kind prescribed by regulation.
In this instance the Commissioner considered category (a) was most appropriate for each one of the three charges, thus giving rise to the spectre of termination or suspension of the respondent’s appointment as a police officer.
Proceedings before the Tribunal are generally heard in private: s 40(6) & (7). The Tribunal is bound by the rules of evidence and is to follow “to the extent as it considers appropriate, the practice and procedures of Courts of Summary Jurisdiction on the hearing of complaints for simple offences”: ss 40(8)(a) & (b).
A right of appeal from decisions of the Tribunal is vested by s 46 of the Police (Complaints and Disciplinary Proceedings) Act, to the Administrative and Disciplinary Division of the District Court of South Australia. Both parties to the appeal accepted this then serves to attract Part 6 sub-division 2 of the District Court Act 1991 (SA). However, this court is not bound by the rules of evidence.[6] This is of no particular consequence, since the parties in both jurisdictions relied upon agreed written materials. The case was conducted substantially on the basis of admissions made by the respondent in an interview of 29 October 2008 with the Internal Investigation section of SAPOL, and to a lesser extent on various tendered statements. Since the Tribunal was bound by the rules of evidence, it might have been open to the respondent to object to the compulsory record of interview, but as he did not, that question need not be pursued any further: Morgan v Commissioner of Police,[7] Hartmann v Commissioner of Police.[8]
[6] Section 42E(2)(a) District Court Act
[7] [2011] NSWCA 134 at [45]
[8] (1997) 91 A Crim R 141
The course of the appeal is governed by s 42E(3) of the District Court Act, which reads:
42E—Conduct of appeal
…
(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.
The powers of disposition are those spelled out in s 42F of the District Court Act, being powers of affirmation, rescission and substitution of a decision “the court considers appropriate”, or “remission to the original decision maker for consideration in accordance with any directions or recommendations of the Court”. As mentioned the Commissioner’s position is that the court should substitute a decision finding the respondent guilty of the offences, whereas the respondent’s position is the court should simply affirm it.
Factual setting
The facts in this matter are unusual. The respondent was at all material times a senior member of SAPOL. The impugned conduct relates to a visit to the home of a woman Police Constable when she was on sick leave consequent upon a work related injury. He knew her before she joined the police force. He acted as a referee in her application to become a police officer in 2002. They developed a friendship of two-three years standing beforehand, characterised by attendances at Christmas functions, birthday and other parties, none of which were police related. There was an age difference between them of around 24 years. During 2005 or thereabouts, they developed an intimate consensual sexual relationship of 3-5 weeks duration. Both were single at the time. There was no suggestion the age or rank disparities were used in any inappropriate way in forming the liaison, although age does appear to have become a reason for their sexual relationship coming to an end. It was afterwards that the respondent met and later married his current wife.
Even so they remained good friends, socialising on occasions. They maintained regular weekly contact by telephone or SMS. However they were never posted to the same operational area and they did not jointly attend any Police functions, work related or otherwise. She was never under his direct command.
It is against this background of an established and long standing friendship that he visited her during a lunch break on Tuesday 9 October 2007.[9] Previously he had “been around there a couple of times just before I’d gone back to work” for the purposes of assisting her to build a pergola.[10] She had also visited the respondent’s household a number of times.[11] Some time beforehand she stayed with the respondent’s family following discharge from the Adelaide Clinic.[12]
[9] Like references hereafter are to numbered answers given during the course of the interview
[10] A.49
[11] A.114
[12] A.30
It is unclear who initiated contact on the day in question. On the morning of this visit she sent a text message causing him to feel concerned for her welfare. He was aware that she was off work for work related injuries, that she had problems and that she had been previously in an institution. There was no evidence that he appreciated the full depth of her problems, whatever they may have been.
After receiving the text he telephoned and inquired whether she wanted to catch up for lunch. She agreed and later telephoned him saying that she would be out until 12.30 pm, but wanted him to come.[13] He drove there in an unmarked police vehicle and he was not in uniform. Upon arrival they greeted as was their custom by kissing and then sat down to discuss her welfare. She expressed concerns about her work and a dispute she was having with her posting. She discussed family problems and other personal issues, as well as issues relating to the respondent himself, including a prospective trip with the respondent and his family to Bali.[14]
[13] A.35
[14] A.94
Following an hour of such exchanges the respondent enquired whether he could kiss her, as he “felt sorry for and … care a lot about her”.[15] She then leant over and they kissed on the lips. The respondent described this as “mutual, consensual and reciprocated”.[16] They kissed several times again before he indicated that he should leave before something “stupid happens … we’ll regret”[17]. During the course of kissing in the kitchen area, there was some hugging and touching to the body, during which she touched him on the penis, outside his clothing.[18] He indicated that he did not want to have sex with her whilst he was still with his wife.[19] He commenced to leave and they kissed again at the front door. They then walked out to the letter box and held another discussion of no consequence in the front garden before he left. He considered “she was as good as he’d ever seen her”.[20] Later that afternoon there was a single unremarkable exchange of text messages.[21]
[15] A.50
[16] A.54
[17] A.56
[18] A.63
[19] A.60
[20] A.90
[21] A.60
A psychiatrist said in a written statement before the Tribunal that he received a telephone call from her at about 3.00 or 4.00pm that very afternoon. The contents thereof were not disclosed. The following morning she sent him “some horrible emails why did you do this …”,[22] to which he replied “I’m sorry if I upset you …”.[23] One of her messages advised “she was in the Adelaide Clinic”.[24] The last and only subsequent “contact” was in December 2007 when he unsuccessfully tried to telephone her.[25]
[22] A.65
[23] A.98
[24] A.99
[25] A.101
The evidence was that she was diagnosed in August 2007 suffering from work related depression and was prescribed anti-depressants. On 16 September 2007 she was admitted to the Adelaide Clinic from which she was discharged on 28 September 2007. It seems to be the case that it was thereafter that she stayed with the respondent’s family for a short time. The psychiatrist who spoke with her in the afternoon of 9 October, advised her to attend the Royal Adelaide Hospital, to which she was voluntarily admitted for three days. There was also evidence she spent between 20 and 24 November 2007 at the Adelaide Clinic. The leave records show that she had several periods of sick leave including a period commencing on 27 September, so that she had been on sick leave for nearly two weeks before the respondent visited her.
No material produced by the Commissioner discloses what the content of the telephone call with the psychiatrist was, or the precise reasons for the admission to the Royal Adelaide Hospital. Even if there was, it is doubtful whether it would have been of testamentary value for the purposes of proving the truth of what was said: Ramsay v Watson.[26] Such proof could only be furnished directly by her, although the Doctor’s account might conceivably have been admissible as “a step in assessing … [her] mental state” at the time: R v Pangallo.[27] She was not called to give evidence before the Tribunal, nor was any statement from her before it. That is an important consideration for reasons to become apparent later.
[26] (1961) 108 CLR 642 at 649
[27] (1989) 51 SASR 254 at 27
The charges
The three disciplinary charges are based on the visit of 9 October and the admissions the respondent made as to what took place. The first charge of behaving in a manner that reflected (or was likely to reflect) adversely on Police, was pursued on the basis of his high rank, undoubted leadership and management responsibilities, his significant responsibilities for the maintenance and performance of professional standards and the health and welfare of subordinate staff. The gravamen of the first charge lies in visiting the officer when she was on sick leave and particularly that he initiated and pursued sexual contact, to the point of kissing, touching her body and allowing her to rub his penis. This took place in the knowledge that she was receiving treatment, had been admitted to an institution for psychiatric care for a mental illness, from which she had only recently been released and that she was therefore a vulnerable employee. In effect the charge alleges that he did not act in the best interests of a vulnerable employee, lacked judgment in his decision making about her needs and was prepared to pursue his own gratification to her detriment.
The allegation of prejudice to the good order and discipline of the Police contained in the second charge and of being disrespectful in dealing with an employee in the third, rely essentially on the same underlying facts, the emphasis on the second being a lack of judgment about the special needs of a vulnerable employee and in the third in not appropriately considering or having regard to her well-being or her best interests whilst recovering from her mental condition.
The reasons of the Tribunal
The Tribunal considered the written materials submitted by the parties and took extensive submissions in both written and oral forms. The critical factual conclusions formed by the Tribunal are these:
[12] (A) did not give evidence. His case was based upon his answers at interview and written submissions.
[13] (A) was cooperative with the investigation and made admissions of his conduct towards … (A) points out that [she] was not working at the suburban police station and that he had no responsibility for her as a member of subordinate staff at the relevant time. Moreover they had never worked together and never been assigned to any investigation or any other matter together. Ms … had never been under (A)’s supervision at any time. The incident was of short duration and that he was the one who disengaged. He attended her house on 9 October 2007 during his lunch break, having signed out for lunch before attending. (A) and Ms … had been friends for about 10 years. Before she had even applied to join SA Police and while (A) was single they had had a sexual relationship which lasted for about five weeks. (A) visited [her] out of concern and compassion for a friend and was not seeking any form of personal gratification. (A) and his wife, who had also become a friend of hers, had socialised regularly with [her] and had provided assistance and support to her during her periods of illness. While he was aware that she had not been well in early October 2007 he was not aware that she was under the care of the psychiatrist at that time. His answers at interview fall short of making such an admission.
Assessment
[14] A number of important facts in this matter are either undisputed or indisputable. They are:
1.That (A) and Ms … had known each other for about 10 years. They had a close friendship. They met through the defendant’s family.
2.For a period prior to trying to join SA Police Ms … had an affair with (A) who was single at the time.
3. They remained close friends after the affair until 2008.
4.(A) and Ms … have never worked together in SA Police. (A) has never been in a position of authority over [her].
5.(A) and his present wife have assisted Ms … and provided her with support with respect to her personal problems in the course of a continuing friendship.
Based on these findings the Tribunal drew its conclusions in this manner:
[15] It is well established that the purpose of police discipline is the maintenance of public confidence in the police force and of self esteem of police officers and of efficiency. A leading authority for the proposition is Police Services Board v Morris (1985) 156 CLR 397 especially the judgment of Brennan J.
…
[17] It is clear from the authorities that there must be a clear and relevant connection between the employee’s out of hours contact and his employment and the conduct must be of such gravity and importance so as to indicate a rejection or repudiation of the employment contract by the employee. An employee is entitled to a private life. Circumstances in which a person’s employment may be terminated because of his other conduct outside work are limited.
[18] In this case (A) has admitted that he went to Ms … house, but during a lunch break on the relevant date. He admitted greeting her with a kiss to the cheek when he arrived. He admitted later initiating a kiss and mutual touching around the back and shoulders, with her consent. He admitted that Ms … touched his penis outside his clothing. The intimate touching ceased when he decided that they should not continue. He was influenced by her mental and emotional state in deciding that the encounter should not continue. It is undisputed that later on 9 October 2007 Ms … admitted herself to hospital, suffering a further bout of depression. The inference from the report of Dr Symon is that the incident between (A) and Ms … was one of a number of contributing factors affecting the relapse. The friendship between them continued into 2008.
[19] Ms … has not given evidence nor has she given a statement.
[20] I am reasonably satisfied and I find that the incident occurred in the context of a long standing personal friendship between the two persons.
[21] I am reasonably satisfied and I find that the incident occurred outside the work environment and has not had any detrimental effect upon the employer, SA Police.
[22] I conclude that the Commissioner has not proved to the reasonable satisfaction of the Tribunal that the conduct of (A) was such as was likely to reflect adversely on SA Police, or was prejudicial to good order and discipline in SA Police. I conclude that the Commissioner has failed to prove to the reasonable satisfaction of the Tribunal that (A) in his dealings with Ms …, either in her capacity as a member of the public or as an employee of SA Police failed to act impartially or respectfully.
[23] For those reasons I find the employee (A) not guilty of any of the charges. Each count is dismissed.
There is no attack against the factual basis on which these conclusions depend, except that it is agreed the relationship ended in December 2007 – rather than “into 2008”. Neither party suggested this slip was of any consequence. The respondent further contends there is no basis for the conclusion that the subject incident “was one of a number of contributing factors affecting the relapse”.
The appeal
The appeal by the Commissioner focussed heavily on the reasoning of the Tribunal at paragraph [17], reproduced above. More particularly the submission was the references to “a clear and relevant connection”, “such gravity and importance” and “circumstances in which a person’s employment may be terminated”, imported criteria quite extraneous to the regulatory framework. The contention was, in sum, that those expressions have their origin in a quite different domain of legal discourse, namely industrial law.
When the Tribunal exercises its statutory functions, the primary obligation is to conform to the jurisdiction invested in it. The first duty of the Tribunal was to “give the words of the statutory provision the meaning that the legislature is taken to have intended them to have”: Project Blue Sky Inc v The Australian Broadcasting Authority.[28] In this instance the Tribunal was adjudicating upon allegations of breach of the Police disciplinary Code of Conduct designed to maintain the professional standards by police officers, contrary to Regulations 13 and 17 of the Police Regulations 1999.
[28] (1998) 194 CLR 355 at [78]
There is nothing in those regulations redolent of the criteria adopted by the Tribunal at [17]. Those standards must be construed in the context of the objectives of the Code at itself. A Police force demands a specific form of authority to discipline, in order to remain effective in implementing its law enforcement, investigative and detection functions. The Code of Conduct also aims to preserve the confidence of Police officers and the community in the integrity of the Police force itself.
Similar objectives were identified by the High Court in Police Service Board v Morris & Martin:[29]
In arguing for the exclusion of the privilege the learned Solicitor-General of Victoria stressed the importance to the community of an efficient and well-disciplined police force. It is an hierarchical institution the efficiency of which depends upon the faithful performance of duty by every member, including obedience to any lawful order (see ss 13 and 14 of the Act, and the form of Oath set out in the Second Schedule).
We think that these matters are of significance in determining the nature of the Act and the Regulations made under it, as well as the purpose which both were designed to achieve. In Pyneboard, at p 241 of ALJR [pp 618–9 of ALR], it was pointed out that the privilege against self-incrimination will impliedly be excluded if the obligation to provide answers is expressed in general terms and it appears from the character and purpose of the provision in question that the obligation was not intended to be subject to any qualification. It is essential to bear in mind that the Act and Regulations here are dealing with a disciplined force, the members of which voluntarily undertake the curtailment of freedoms which they would otherwise enjoy. It is in that context that it may be necessary to draw the implication that the privilege is excluded by a provision designed to further the effectiveness of an organization based upon obedience to command. To admit of exceptions, such as the privilege against self-incrimination, without the possibility of having regard to the circumstances in which they might have to be applied, may be alien to the nature and purposes of the organization which the legislation seeks to regulate.
[29] (1985) 156 CLR 397 at 408- 409 per Wilson and Dawson JJ, see also Chambers v Woolley (1996) 6 TasR 41
Equally important in this respect are the comments of Brennan J:[30]
The Victoria Police, like other police forces in Australia, is a force governed by legislation which Crockett J in the Full Court appropriately described in these terms: “The legislation is designed to regulate and control the activities of what is a disciplined force in such a way as to achieve an effective and efficient organisation in which the members are to perform their duties in conformity with a code so as to afford protection to the community and allow the disciplining of members who breach that code.”
The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means — the primary and usual means — of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.
[30] Above at 411-412
Likewise in Anderson v Sullivan, Allen & Lawler,[31] Finn J spelt out the highly distinctive attributes of police service in the context of the Federal Police Act 1979 (Cth):
Courts in this country have often observed that members of our police forces are both engaged in a very distinctive form of public service and belong to organisations possessing distinctively hierarchical structures. Loyalty and obedience - manifest in oaths of office and statutory and common law duties to obey lawful orders - are characteristics of their service: see Police Service Board v Morris at 404 per Gibbs CJ; (at 408-409) per Wilson and Dawson 11; R v Travers (1958) 58 SR (NSW) 85 at 104; as are hierarchy and discipline: cf Chesterman v Mitchell (1923) 24 SR (NSW) 108 at 113-114, a charitable trusts case, where an operative analogy was drawn between the police and "the military". The discipline expected of, and exacted from, police reflects the particular public character and importance of policing and of police duties: see for example, Pense v Henry [1973] WAR 40 at 42. In this regard it is, perhaps, of more than historical interest to note that the Rules made under one of colonial Australia's first "modern" police statutes - the Police Regulation Act 1862 (NSW) - described "the system of Police [as embracing] in its leading features centralisation of authority and unity of action": r 2; see also rr 7, 12; on the evolution of Australia's police forces see generally K Bryett, A Harrison and J Shaw, An Introduction to Policing; The Role and Functions of Police in Australia, Vol 2, (1994).
[31] (1997) 78 FCR 380 at 395
Important to the present matter is the recognition that as members of disciplined forces, police "voluntarily undertake the curtailment of freedoms which they would otherwise enjoy": Police Service Board v Morris.[32] These attributes of the Police function give rise to powers of discipline that do not necessarily exist merely for employment related purposes. Acknowledgment of this has long since been found in the books. For example in Henry v Ryan,[33] it was held that Police misconduct extends to off duty events so far as they effect fitness to discharge the duties of a Police officer, or which tend to destroy the officer’s authority and his relations with the public: Allan v Commissioner of Australian Federal Police,[34] and Chief Constable of the Lincolnshire Police v Stubbs.[35]
[32] At 409 per Wilson and Dawson 11
[33] [1963] Tas SR 90 and refer Reeves v Dental Board of South Australia (2002) 83 SASR 551 at [33]
[34] (1983) 5 IR 185 at 187
[35] [1999] ICR 547; [1999] IRLR 81
An examination of the authorities demonstrate there are special considerations arising from the “machinery necessary or desirable for the management and discipline of the Police Force”: Fletcher v Nott.[36] This unique situation was expressed in this way by Burt J in Pense v Hemy:[37]
One sees immediately that the power is not to create the duties of the office but to render the Police Force “efficient for the discharge of the several duties thereof”. In other words the power pre-supposes and if exercised the product of its exercise pre-supposes, “a body of law, independently existing concerning the powers, privileges, duties and responsibilities of the constable”: see Windeyer J, in Reedman v Hoare (1959) 102 CLR 177 at p.186.
[36] (1938) 60 CLR 55 at 75
[37] [1973] WAR 40 at 42
These special considerations stand in contrast to other employer/employee relationships, owing to the very nature and sensitivities of the police function itself. There is no doubt from cases cited to the Tribunal that the considerations emerging in paragraph [17] of the judgment are borrowed from an industrial context. The reference to “gravity and importance”, “clear and relevant connections” and “because of other conduct outside work are limited” have there origins in Rose v Telstra Corp Ltd,[38] and Streeter v Telstra Corporation Ltd,[39] unjust dismissal cases, with quite different employment dimensions. These authorities give no credence to any principle requiring a “clear and relevant connection” between a police officer’s out of hours conduct and his or her employment, or that the impugned conduct must be of such “gravity and importance” so as to indicate repudiation of the employment, or to the effect that a police officer can be disciplined only in limited circumstances on account of his or her outside work conduct.
[38] (1998) IRComm A 1592
[39] [2008] AIRCFB 15, (2008) EOC 93-488 and (2008) 170 IR 1
More than that, in material respects these “considerations” conflict with the Code of Conduct itself, in as much as the latter speaks of acts committed “whether in the course of his or her employment or otherwise”: R 12 & 13 and “or in dealing at any time with employees in the Department”: R 17. This is because the very nature of the conduct may be inherently of such a serious nature that it requires disciplinary action, no matter where or when it occurs.
There is accordingly no precedential authority and no warrant from within the Police Regulations for the importation of criteria of discipline such as those employed by the Tribunal. The Tribunal has thereby erred as a matter of law by bringing extraneous principles to bear upon the proper construction and application of the Code of Conduct under the Police Regulations. That is not to say that the nature of the connection between the police officer’s out of hours contact and his employment, or the gravity and importance of the misconduct, or whether or not that conduct might lead to termination, may not otherwise be relevant considerations in judging whether the relevant conduct offends the Code of Conduct, but that is quite another matter. Error of law provides “cogent reason” to interfere. In that event the court must either rescind the decision or remit to the original decision maker. Neither party invited the Court to take the latter course.
Reconsideration of the merits
The Tribunal ultimately addressed the three relevant portions of the Code of Conduct in its concluding paragraph. It seems tolerably clear that it regarded the encounter of 9 October 2007 against the background of a longstanding personal relationship, as relatively benign.
Looking at the visit in isolation, it would have been most untoward, bearing in mind the extensive age and rank disparities. Advancing to the point of personal intimacy with sexual connotations, might well have bought the respondent within a number of breaches of the Code of Conduct, bearing in mind some knowledge of the illness.
However the moments of intimacy stand to be considered against the background of a long standing personal friendship and previous sexual relations between them. They had become friends well before she joined the Police force. After she did, they became consenting lovers for 3-5 weeks, notwithstanding age and rank. The personal friendship continued thereafter until December 2007. The respondent had comforted, visited and harboured her during earlier periods of the illness. There is no indication that she was disarmed or unsettled by any of them. At no time did he impose himself upon her and in the end he desisted in his advances and then disengaged.
The objective facts are perfectly consistent with a desire only to comfort, support and reassure her during a difficult period. It is perhaps regrettable and indicative of a lack of judgment that he admitted initiating and requesting a kiss, but thereafter what took place was consensual. There is no proof on the papers that this adversely affected her at the time.
The Tribunal appears to have inferred the visit was “one of a number of contributing factors”,[40] leading to admission later that day to the Royal Adelaide Hospital by Dr Symon. There is no evidence to support that conclusion other than the coincidence between the two events. The material submitted by Dr Symon does not go into the terms of the discussion on the telephone later that afternoon. He does not purport to relate the visit with the readmission. There is other material suggesting she had a number of troubling issues to contend with, none of them related to her relationship and dealings with the respondent. The Doctor does say that she was discharged well after the subject visit on 24 November 2007 from the Adelaide Clinic “as her condition had improved although she was still vulnerable”, but that is as far as the material takes this aspect of the matter.
[40] Para 18
The evidence proffered by the Commissioner put at its highest, was equivocal as to whether the visit was well intentioned, or alternatively made with an inappropriate motive in mind. The respondent might have been foolish in initiating what became a fairly tame sexual encounter. As far as it went, it was mutual. In that state of the evidence it is simply not possible to infer on balance that the respondent had an ulterior motive to promote his own interests, or to seek sexual gratification.
On a number of occasions counsel for the respondent suggested the Briginshaw standard of proof applied to the facts.[41] With respect to him and with respect to the Tribunal which referred to the decision,[42] the Briginshaw principle has nothing to do with this case. The facts and the adequacy of proof were not in dispute. The case was argued largely upon admissions made by the respondent. The questions for resolution were what inferences properly arose from uncontested facts and whether they contravened the requirements of the Code of Conduct, properly interpreted and applied. The position is as noted by four Judges of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:[43]
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear, or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...".
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.
[41] Briginshaw v Briginshaw (1938) 60 CLR 336
[42] At para [8]
[43] (1992) 67 ALJR 170 at 170, footnotes omitted
The case for the Commissioner largely depends on the unproven premise or unsustainable inference that there was a distinct nexus between the subject visit and the subsequent admission to hospital. There is simply no evidential foundation for that conclusion and the inference to that effect is tenuous and equivocal at best. Given the background to the relationship, it is in fact more likely the respondent was paying an invited, personal and supportive visit to an old friend. Insofar as the Tribunal drew an inference that the visit was “one of a number of contributing factors effecting the relapse”, it was not open to infer even that much on the state of the evidence adduced before the Tribunal. This Court stands in just as good a position as the trial court with respect to that question: Warren v Coombes.[44]
[44] (1979) 142 CLR 531
In this state of affairs there was insufficient evidence to demonstrate on balance that the respondent acted in a way that reflected or was likely to reflect adversely on the Police, was prejudicial to good order and discipline, or that his dealings with the Constable involved were impartial or disrespectful.
Conclusion and orders
In the result, the Tribunal erred in law by too narrowly circumscribing the requirements of the Code of Conduct. Upon reconsidering the merits afresh, the Court comes to the conclusion that the Tribunal reached the correct result on the rather unique facts. The appeal is therefore dismissed. There will be no order as to costs: s 42G(2) District Court Act.
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