Commissioner of Police v Phillip Raymond Duffield No. Scgrg-97-680 Judgment No. 6221 Number of Pages 3 Police

[1997] SASC 6221

IN THE SUPREME COURT OF SOUTH AUSTRALIA

MILLHOUSE, J

Police - appointment, tenure and conditions of service - misconduct and discipline - South Australia - appeal from Police Disciplinary Tribunal - Respondent charged with breaches of Regulation 27 under Police Act 1952 - Tribunal ruled complaint out of time - s40(8) Police (Complaints and Disciplinary Proceedings) Act 1985 has same effect as old Regulation 34 under the Police Act 1952 - s52 Summary procedure Act has same effect as s52 Justices Act - Suter v Farrelly (1984) 35 SASR 535 applies - No time limit for laying of disciplinary charges - Appeal allowed - Matter returned to Tribunal. Police Regulations 1982 Regulation 27; Summary Procedure Act 1921s52; Police Regulations 1982 Regulation 34(1) (now repealed); Police (Complaints and Disciplinary Proceedings) Act 1985 s40(8); Police Act 1952 s52; Police Regulation Act 1952 s52; Justices Act 1921 s52; DPP v Pepicelli (1993) 60 SASR
520, referred to. Suter v Farrelly & Police Inquiry Committee (1984) 35 SASR 535, applied.

ADELAIDE, 11 June 1997 (hearing), 2 July 1997 (decision)

#DATE 2:7:1997

#ADD 9:7:1997

Appearances:

Appellant:

Counsel: Mr M Grant

Solicitors: Crown Solicitor (SA)

Respondent :

Counsel: Mr D Peek

Solicitors: Patsouris & Associates

Order: appeal allowed.

MILLHOUSE J

This is an appeal from a decision, on 16 April 1997, of Miss R F Hayes SM sitting as the Police Disciplinary Tribunal. She dismissed a complaint by the Commissioner of Police alleging 112 breaches of Regulation 27, made pursuant to the Police Regulation Act, (now called the Police Act). The Commissioner has appealed. The nature of the breaches does not matter: the allegation is that the respondent, a police officer, passed confidential information to a person not entitled to have it. The offences were alleged between 7 May 1991 and 21 April 1995. The complaint was laid on 18 December 1996.

Mr Andrew Moffa then appearing for the respondent persuaded the Police Disciplinary Tribunal that there was a six month time limit for the laying of a complaint so this one was well out of time. That time limit (now extended to two years) is provided in s52 of the Summary Procedure Act.

The learned magistrate in a considered judgment came to the conclusion that the complaint was out of time. To do so she had to distinguish the decision of Cox J in Suter v Farrelly (35 SASR 535). She found the distinction in the changes in legislation between 1983 when Suter v Farrelly was decided and this year.

In 1983 the scheme of the legislation which set out how breaches of discipline in the police force were to be dealt with was different from the present. At that time charges for offences were heard by the Police Enquiry Committee. If the Committee found a charge proved then it was for the Commissioner to fix the penalty.

Regulation 27 was in the same form as it is today. There are 13 groups of offences.

In 1983, Regulation 34 (1):-

" On the hearing of a charge the Police Inquiry Committee shall follow as nearly as possible the practice and procedure of a court of summary jurisdiction on the hearing of a complaint for a simple offence, and shall, except as provided in these regulations, observe the laws of evidence."

Regulation 34 has been repealed.

Now things are different. Instead of the Police Enquiry Committee there is the Police Disciplinary Tribunal. The direction to the Tribunal corresponding to the old Regulation 34(1) is now in s40(8) of the Police (Complaints and Disciplinary Proceedings) Act 1985:- "(8) Subject to this Act, the Tribunal shall in its proceedings-

(a) be bound by the rules of evidence; and

(b) follow, to such extent as it considers appropriate, the practice and procedure of courts of summary jurisdiction on the hearing of complaints for simple offences."

Another change, the significance of which was canvassed both by the learned magistrate and on appeal was the change in s52 of the Police Regulation Act. In 1983 it read:-

"52. Proceedings for offences against this act shall be heard and determined summarily." Now s52 of the Police Act reads, "An offence against this Act is a summary offence."

The learned magistrate sought to distinguish Suter v Farrelly because, to use her words, "there has been much legislative change concerning the way in which these offences are handled." Her conclusion:-

"In my view these legislative changes are significant in considering the 'time argument' raised before me in the instant case. Clearly the situation that existed at the time of the decision in Suter, has changed significantly with the amendments I have outlined."

She had earlier acknowledged that, "As far as the actual Regulations (i.e. Regulation 27) are concerned the only major relevant amendment was the deletion of references to the (now defunct) Police Inquiry Committee." In effect the administrative arrangements have been altered but the substantive law has not changed.

The magistrate had to distinguish Suter v Farrelly to come to the conclusion she did for on the face of it Suter v Farrelly is dead against her decision. The same arguments were put in Suter v Farrelly as were put before her and now on appeal. Cox J after canvassing the then legislative scheme, said this (I should mention that the Justices Act is now called the Summary Procedure Act) (@540):-

"It is unnecessary, - to decide whether the words 'practice and procedure' in reg.34, standing alone, would operate to bring the substance of s.52 of the Justices Act into the police disciplinary scheme, because the words do not stand alone. It is only 'the practice and procedure of a court of summary jurisdiction on the hearing of a complaint for a simple offence' that is referred to in reg.34, and such practice and procedure is only to be followed 'on the hearing' of the charge before the Committee. .........the Justices Act procedure is brought into the police disciplinary scheme only 'on the hearing' of the charge. In my opinion, these are words of limitation and make it plain that matters of practice and procedure that are antecedent to the hearing itself are not to be controlled as a matter of course by the practice and procedure prescribed by the Justices Act. The effect of such a construction is to bring in the rules that apply within the four walls of the courtroom - those relating to the examination of witnesses, the order of address, and so on - but not the rules relating to the nature and contents of the charge or the time within which it is to be laid."

Mr David Peek who has appeared for the respondent on the appeal, sought to distinguish Suter v Farrelly. He supported the reasoning of the learned magistrate. He argued that the wording of s40(8) of the Police (Complaints etc) Act is different from the old Regulation 34 under the Police Regulation Act. He pointed to the change of wording in s52 of the Police Act. He argued that a time limit is desirable. He invited me to decide that Cox J was wrong in his decision.

Having read carefully what Cox J had to say in Suter v Farrelly I find his reasoning persuasive. I do not think he was wrong and I am happy to follow it unless it is to be distinguished now in the light of the changes in the legislation.

The difference in wording in s52 now and then I find to be a distinction without a difference. "Proceedings for offences against this Act shall be heard and determined summarily" comes to the same as saying, "An offence against this act is a summary offence". One simply wonders (as one does so often!) why the Parliamentary Draftsman saw fit to change the form of words at all.

I say the same about the old Regulation 34 and s40(8). I notice that the words, "as nearly as possible, the practice and procedure of a court of summary jurisdiction on the hearing of a complaint for a simple offence" have become "to such extent as it considers appropriate, the practice and procedure of courts of summary jurisdiction on the hearing of complaints for simple offences". The effect, though, is the same.

I did pause over the difference in the opening words of the Regulation and the Section - "On the hearing of a charge" in the Regulation and ".. the Tribunal shall in its proceedings". I wondered whether "proceedings" might be a wider term but read in the context of the words which follow I have come to the conclusion that it is not: all that follows concerns the "hearing".

I suggest, with respect to the learned magistrate, that the changes in the legislative scheme do not mean that the reasoning of Cox J in Suter v Farrelly has become irrelevant. There has been a change in the arrangements to deal with police disciplinary matters but there are no changes in the substantive law. I do not think that Suter v Farrelly can be distinguished. Mr Michael Grant's arguments for the appellant are sound.

There is no time limit for the laying of such a complaint as in this case. The appellant is not out of time.

This does not mean, though, that I resile from anything I said in Director Public Prosecutions v Pepicelli (60 SASR 520). Rather, as Mr Grant submitted, whether there has been an abuse of process because of the long lapse between the alleged offences and the complaint will be a matter for the Tribunal.

The appeal is allowed and the matter returned to the Tribunal to be dealt with in accordance with these reasons.