Coutts v Close
[2014] FCA 19
•3 February 2014
FEDERAL COURT OF AUSTRALIA
Coutts v Close [2014] FCA 19
Citation: Coutts v Close [2014] FCA 19 Parties: BRETT COUTTS v LEANNE CLOSE, ASSISTANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE and COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE File number: ACD 72 of 2013 Judge: GRIFFITHS J Date of judgment: 3 February 2014 Catchwords: ADMINISTRATIVE LAW – application by police officer for judicial review of the decision to terminate his employment with the Australian Federal Police (AFP) and of conduct related to that decision – termination decision made by the first respondent as part of a multi-stage process which included the conduct of interviews, production of an investigation report and production of an adjudication report – whether any procedural unfairness in the termination decision or related conduct – whether any apprehended bias on the part of the first respondent or the investigator – whether any claim of bias on the part of the first respondent waived by applicant – whether applicant granted a fair hearing during the multi-stage decision making process including allegation that non-redacted material should have been provided – Minister for Immigration and Citizenship v Maman [2012] FCAFC 13 – whether hearing unfair because the evidence was not capable of supporting the decision – Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 – alleged failure to follow procedures required by law – whether power to terminate employment improperly exercised – whether any relevant considerations not considered in exercise of power – whether any irrelevant matters taken into account in exercise of power – whether power exercised in bad faith – whether decision was so unreasonable that no reasonable person could have made it – Minister for Immigrationand Citizenship v Li (2013) 297 ALR 225 – whether decision was an abuse of power – whether multi-stage decision making process was otherwise conducted contrary to law
Legislation: Administrative Decisions(Judicial Review) Act1977 (Cth) ss 5, 6
Australian Federal Police Act1979 (Cth) Part V, ss 24, 28, 29, 37, 40RF, 40RH, 40RF, 40RL, 40SA, 40SD, 40TA, 40TD, 40TE, 40TF, 40TN, 40TP, 40TQ, 40TU, 40TR, 40TS, 40TV, 40VH, 40VE, 69C
Crime Prevention Powers Act 1998 (ACT) s 4
Judiciary Act 1903 (Cth) s 39BCases cited: Ansell v Wells (1982) 63 FLR 127
ApplicantVEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Applicant WAFT/2002 v Refugee Review Tribunal (2003) 145 FCR 351
Attorney-General of New South Wales v Quin (1990) 170 CLR 1
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Ballantyne v Workcover Authority of NSW [2007] NSWCA 239
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Ebner v Official Trustee (2000) 205 CLR 337
Greyhound Racing NSW v Cessnock &District Agricultural Association [2006] NSWCA 333
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Jones v Australian Competition and Consumer Commission [2002] FCA 1054
Kioa v West (1985) 159 CLR 550
Laws vAustralian Broadcasting Tribunal (1990) 170 CLR 70
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigrationand Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v Maman [2012] FCAFC 13
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Minister for Immigration and MulticulturalAffairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres StraitIslander Affairs (2000) 103 FCR 539
Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 210
Ozepulse Pty Ltd v Minister for Agriculture Fisheries and Forestry (2007) 163 FCR 562
R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Shields v Overland (2009) 26 VR 303
Smits v Roach (2006) 227 CLR 423
South Australia v O’Shea (1987) 163 CLR 378
SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511
Walton v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 342Dates of hearing: 2-5 December 2013, 19 December 2013 Date of last submissions: 23 December 2013 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 191 Counsel for the Applicant: Mr F J Purnell SC and Ms K Katavic Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondents: Mr G McCarthy Solicitor for the Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 72 of 2013
BETWEEN: BRETT COUTTS
ApplicantAND: LEANNE CLOSE, ASSISTANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
First RespondentCOMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
3 FEBRUARY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The third further amended originating application be dismissed.
2.The applicant is to pay the respondents’ costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 72 of 2013
BETWEEN: BRETT COUTTS
ApplicantAND: LEANNE CLOSE, ASSISTANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
First RespondentCOMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Respondent
JUDGE:
GRIFFITHS J
DATE:
3 FEBRUARY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision under s 28 of the Australian Federal Police Act1979 (Cth) (the AFP Act) to terminate his employment as a police officer in the Australian Federal Police (the AFP). The proceedings are brought under both the Administrative Decisions(Judicial Review) Act1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth).
In broad terms, the applicant complains that the decision terminating his employment was made in breach of the rules of procedural fairness (he contends that he was not given a fair hearing and that there was also apprehended bias), breach of other mandatory relevant procedures, failed to take into account relevant considerations, took into account irrelevant considerations, involved the exercise of power in bad faith and was so unreasonable that no reasonable person could have so exercised the power. The applicant also challenges the decision on the basis that it constitutes an abuse of power and is otherwise contrary to law. The applicant further claims that certain conduct leading up to the making of the decision was unlawful and, in support, he relies on some but not all of the heads of review directed to the ultimate decision. As will emerge below, these various heads of review were raised in respect of multiple aspects of the decision-making process, which created an impression that the applicant adopted what could fairly be described as a scattergun attack in calling into question the validity of virtually every aspect of this process. Such an approach carries a grave risk that the challenge is seen to be an impermissible attack on the merits and beyond the legitimate province of judicial review.
Broad outline of the background facts
Prior to the termination of his employment, the applicant was employed as a sergeant (band level 6.3) with the AFP. In the early hours of 26 May 2012, the applicant, together with many other AFP officers, were present outside a nightclub in Manuka called “The Cabinet”. I will return below to deal at greater length with the incident which occurred there which gave rise to the complaint that the applicant had used excessive force. At this introductory level, it is sufficient to describe the incident in the following terms. An allegation was made that a male person (whom I will refer to as “Adam”) had indecently assaulted a woman inside the nightclub. Adam was heavily intoxicated and may also have been affected by drugs. Adam was ejected from the nightclub and was then detained by police on the footpath outside and questioned. The victim ultimately told police that she did not want to press charges. The applicant says that he apprehended that Adam was potentially violent. His concerns were based on such matters as Adam’s level of intoxication, physical stature and overall demeanour, which he perceived to be threatening, particularly towards the applicant himself. After Adam had been detained for several minutes and spoken to by several policemen, Constable Robert Raue issued him with a formal move on direction and indicated the direction which he should take to remove himself from the area. As Adam moved away, he walked close to the applicant, was glaring at him and flinched. The applicant claims that he became concerned that he was about to be assaulted by Adam and he used Oleoresin Capsicum Spray (capsicum spray) from a distance of approximately 30 cms to the right side of Adam’s face, also accidentally spraying a female member of the public who was nearby. The applicant then held Adam’s head in a headlock before taking him into custody and, with the assistance of other police officers, placed him in the back of a caged police vehicle. These events outside the nightclub were captured on CCTV, about which I will say more shortly.
On 6 June 2012, Sgt Scott Walls (who was present during the incident) (the complainant) made a complaint to the AFP in relation to the applicant’s conduct on 26 May 2012. On 7 June 2012, an investigation was commenced by Federal Agent Paul Deller (FA Deller), who was a member of the AFP’s Professional Standards Investigation Unit (the PRSIU). The PRSIU is the unit constituted under s 40RD of the AFP Act to undertake investigations of inter-alia “category 3 conduct issues” (see further below). The subject matter of the investigation was particularised as follows:
On 26 May 2012, Sergeant Brett COUTTS (AFP 11314) seriously breached section 8.10 of the AFP’s Code of Conduct (appointees must behave in a way that upholds the good order, discipline and security of the AFP) by using excessive force on [Adam], contrary to Commissioners’ (sic) Order on Use of Force (CO3) (the complaint).
The following day, the applicant was suspended from duty with pay under reg 5 of the Australian Federal Police Regulations 1979 (Cth) (the Regulations). On 10 July 2012, the applicant participated in a taped record of interview conducted by FA Deller and Federal Agent Matthew See (FA See). At the applicant’s request, the interview took place in the presence of Supt Kylie Flower (who attended as an “interview friend”) and Mr Rogan McMahon-Hogan (who was team leader of the employment and legal office at the Australian Federal Police Association (AFPA)). FA Deller also conducted what are described as “directed interviews” with several other people, including the complainant and other police officers who were present when the incident occurred. The significance of those interviews, which were conducted under compulsion of statute, will emerge below.
On 22 August 2012 FA Deller produced an investigation report (the investigation report) which recommended that it be found that the applicant had breached s 8.10 of the AFP Code of Conduct by using excessive force contrary to CO3. Although FA Deller could have made a recommendation under s 40TR(1) of the AFP Act regarding sanctions, his report contained no such recommendation.
On 29 August 2012, FA Deller provided the applicant with a redacted copy of the investigation report minus all its appendices. The applicant was invited to provide a written response. He did so in a 55 page written submission dated 15 October 2012.
On 26 November 2012, FA Deller’s report, together with all of its appendices and some other material, was forwarded to Mr Peter Whowell under s 40TU of the AFP Act. At that time, Mr Whowell was a member of the AFP Professional Standards Adjudication Panel (the Panel). Mr Whowell had been appointed to the Panel under s 15.2 of the Australian Federal Police Commissioner’s Order on Professional Standards (CO2), which was made under ss 38 and 40RC of the AFP Act. Mr Whowell’s role, in accordance with s 15.2 of CO2, was to consider the recommendations made in a report to the Manager of the Professional Standards Investigations Unit (MPRS) pursuant to s 40TU of the AFP Act and to make findings and determine appropriate action in relation to the relevant issues under s 40TR. Mr Whowell had delegated authority to determine what if any sanction should apply, including the possibility of terminating the employment of an AFP employee if the person occupied any of the four specified positions, which included the applicant’s rank. For the purpose of conducting his adjudication of whether the applicant had engaged in category 3 conduct and any appropriate sanction under s 40TV of the AFP Act, Mr Whowell had before him various materials, which included the applicant’s written natural justice response dated 15 October 2012, a copy of the taped record of interview with the applicant, a taped record of interview with the complainant, and an unredacted copy of FA Deller’s report, including all the appendices. The investigation report forwarded to Mr Whowell also included information to the effect that it had been “quality assured” separately by two other members of the PRSIU, namely Team Leader Matthew Lyddiard in the first instance and then Coordinator Con Coutsolitis. (The applicant was not aware of those matters when he provided his natural justice response and, as will emerge below, he complains that this denied him procedural fairness.)
After reading all the material before him and watching the CCTV footage, Mr Whowell concluded that the description of events in [4.1] of FA Deller’s report was accurate. He also concluded that the salient points of the interviews with different persons at Appendices E-L of the investigation report were accurately summarised in the section headed “Interview of attending members” at pages 16-19 of the report. He concluded that the description of the accounts of what had occurred was consistent with his review of the CCTV footage. After also taking into account the applicant’s description of the incident, as set out in the investigation report, Mr Whowell concluded that the category 3 conduct issue raised against the applicant was established.
Having reached that determination, Mr Whowell then turned his mind to what sanctions should be recommended. He noted from Appendix B to FA Deller’s report that at the time of the incident on 26 May 2012, four separate complaints of category 3 conduct against the applicant for excessive use of force in May and June 2010 had been established. He also noted that seven sanctions had been recommended in response to PRSIU investigations of another 20 complaints against the applicant. Those complaints had been combined into one overall assessment and recommendation for action by the PRSIU. Mr Whowell also took into account that the applicant had been provided with a formal warning notice dated 28 November 2011, which included a warning that were he to be found to have engaged in behaviour that breached the AFP code of conduct and was a serious breach, his suitability to remain employed by the AFP “will be reconsidered”. Mr Whowell was not aware at the time of any remedial action taken in response to the previous recommendations as to sanctions referred to above. Mr Whowell concluded that if none of those previous recommended actions had been taken, then remedial actions of a similar kind should be taken with a view to assisting the applicant to recognise the seriousness of his behaviour and to address it. Alternatively, if some or all of the recommended sanctions or actions had been implemented, yet the applicant used excessive force against Adam, Mr Whowell thought that the applicant’s suitability to remain an AFP employee should be considered.
Mr Whowell’s findings, reasons and recommendations were set out in a report by him entitled “Adjudication of a Category 3 AFP Conduct Issue” dated 4 January 2013 (the Adjudication Report). A copy of the Adjudication Report was sent to the MPRS.
On 22 February 2013, an officer within the PRSIU forwarded a further report and 10 annexed documents to the first respondent for her to consider the applicant’s employment suitability (the Show Cause Brief). The 10 annexures were as follows:
Annexure 1 – the investigation report dated 22 August 2012, together with all appendices less the CCTV footage;
Annexure 2 – the applicant’s response to the investigation report;
Annexure 3 – FA Deller’s review of the applicant’s response;
Annexure 4 – the Adjudication Report;
Annexure 5 – extracts from Part V of the AFP Act;
Annexure 6 – the applicant’s organisational deployment history;
Annexure 7 – the applicant’s antecedents (i.e. his disciplinary history);
Annexure 8 – the applicant’s performance development assessments;
Annexure 9 – a minute from Cmdr Johnson to the applicant dated 28 November 2011 entitled “Formal Warning Notice - Professional Standards”; and
Annexure 10 – a copy of the AFP Practical Guide on the Alpha 8 Role (ACT Policing) (2010).
On 28 February 2013, the first respondent handwrote on the Show Cause Brief that she had read all of the material in the brief. She also handwrote brief reasons why she had determined that she should consider terminating the applicant’s employment. The first respondent signed a letter dated 28 February 2013 entitled “Show Cause Notice: Consideration of Termination of Employment Section 28 - Australian Federal Police Act 1979 (Cth)” (Show Cause Notice).
A copy of the Show Cause Notice was sent to the applicant and he was invited to provide a response within 28 days. The applicant was also provided with various other materials, including a copy of the 10 annexures to the Show Cause Brief, some of which contained redactions. Appendices A-P of FA Deller’s investigation report were not included in the documents which accompanied the Show Cause Notice.
By letter dated 2 April 2013, the applicant provided his written response to the Show Cause Notice.
On 27 May 2013 a minute, entitled “Section 28 Consideration of Employment (Post Show Cause) Brief” (Post Show Cause Brief), Cmdr David McLean (who had replaced Cmdr Johnson as the MPRS), was provided to the first respondent on the subject of the applicant’s employment suitability. The minute was accompanied by the following four annexures:
Annexure 1 – a copy of the Show Cause Brief which had previously been provided to the first respondent;
Annexure 2 – the applicant’s response to the Show Cause Notice;
Annexure 3 – a minute (including annexures) from the ACT Chief Police Officer entitled “Advice of Sanctions Imposed on Sgt Brett Coutts” received by MPRS on 13 January 2012, which recorded the actions taken against the applicant arising from Cmdr Johnson’s report dated 28 November 2011; and
Annexure 4 – extracts from Part V of the AFP Act.
By a minute dated 14 June 2013, the first respondent notified the MPRS that, having reviewed the minute dated 27 May 2013 and the accompanying material, she had determined to terminate the applicant’s employment. She requested the MPRS to draft a notification letter to send to the applicant.
By letter dated 18 June 2013, the first respondent notified the applicant of her decision to terminate his employment effective 15 July 2013 pursuant to s 28 of the AFP Act (the decision). In taking that action, the first respondent was acting in accordance with a delegation set out in an attachment to the Commissioner’s Order on Administration (CO1).
The Court was informed that, at the time of the hearing of the proceeding, as a result of an undertaking given by the second respondent, no action had been taken to implement the decision and he remained suspended on full pay.
Summary of relevant provisions of the AFP Act, regulations and other instruments
AFP Act
The key relevant provisions of the AFP Act may be summarised as follows.
The Commissioner is empowered by s 24 to engage persons as AFP employees. The Commissioner is also empowered by s 28 to terminate the employment of an AFP employee.
Part V deals with national standards and AFP conduct and practice issues. The Commissioner is empowered by s 40RC to issue orders under s 38 determining the professional standards to be complied with by AFP appointees. It was under this provision that various relevant instruments or orders were issued, including CO1.
Subdivision C of Division 1 of Part V imposes an obligation on the Commissioner to establish a unit within the AFP to undertake national standards functions. As noted above, the unit which has been established for this purpose is known as the PRSIU. Under s 40RF the Commissioner may assign a member of the AFP to that unit.
The AFP relevantly defines “an AFP conduct issue” in s 40RH as an issue of whether an AFP appointee has engaged in conduct that contravenes the AFP professional standards. There are 4 categories of AFP conduct issues as set out in s 40RK: in ascending order of seriousness they are category 1, category 2, category 3 and conduct giving rise to a corruption issue. Notably, category 3 is the penultimate category in terms of seriousness. Sub-section 40RL(3) defines a category 3 conduct issue as “an issue of whether an AFP appointee has engaged in category 3 conduct”. The Adjudication Report found that the complaint against the applicant, which involved category 3 conduct, was established.
Division 2 of Part V deals with how an AFP conduct issue may be raised. Under s 40SA any person may give information to the Commissioner or to AFP appointees which raises an AFP conduct issue. The Commissioner has a discretion under s 40SD as to whether or not an AFP conduct issue is to be dealt with under Part V of the AFP Act. The Commissioner also has a discretion under s 40TA to issue orders under s 38 in relation to how AFP conduct issues are to be dealt with by AFP appointees under Part V. Section 40TD deals with some of the different types of remedial action which can be taken in relation to an AFP appointee to remedy unsatisfactory performance. Section 40TE deals with termination action and defines such action in the case of an AFP employee as the Commissioner terminating the AFP employee’s employment under s 28. Section 40TF confers a discretion on the Commissioner to take no further action in relation to an AFP conduct issue if the Commissioner is satisfied of one of the matters there specified.
Subdivision D of Part V deals specifically with category 3 conduct issues (as well as corruption issues). The seriousness with which category 3 conduct issues are viewed is reflected in the fact that, under s 40TM the head of the PRSIU must notify the Ombudsman of any category 3 conduct issue.
The legislative regime for investigating a category 3 conduct issue may be described in broad terms as follows. Under s 40TN (and subject to s 40TO, which is not relevant here), the head of the PRSIU must allocate the issue to be investigated by a person who is a member or special member. Section 40TP provides that a category 3 conduct issue may be allocated to a person under s 40TN if the person has appropriate qualifications or experience to conduct the investigation of the issue.
Section 40TQ deals with how a category 3 conduct issue is to be dealt with. In view of its importance to the proceeding I will set it out in full:
40TQ How category 3 conduct issue or corruption issue is dealt with
(1)This section applies if the issue is allocated to a person under section 40TN or 40TO.
(2)In investigating the issue, the investigator must:
(a) ensure that:
(i) the AFP appointee; and
(ii) the complainant (if any);
have, subject to the requirements of the investigation, an adequate opportunity to be heard in relation to the issue; and
(b) consider whether the information:
(i) given under section 40SA in relation to the issue; or
(ii) obtained in the course of dealing with the issue;
raises an AFP practices issue.
Section 40TR is another relevant provision. It confers a discretion on an investigator to make certain recommendations if the investigator is satisfied, on reasonable grounds, that an AFP appointee has engaged in category 3 conduct. It is in the following terms:
40TRRecommendations that may be made in relation to category 3 conduct or corrupt conduct
(1)If the investigator is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 3 conduct or corrupt conduct, the investigator may recommend that any one or more of the following be taken in relation to the AFP appointee:
(a) termination action;
(b) remedial action;
(c) training and development action;
(d)any other action that the Commissioner can take in relation to the AFP appointee.
Note 1:For termination action, see section 40TE.
Note 2:For remedial action, see section 40TD.
Note 3:For training and development action, see section 40TC.
Note 4:If evidence emerges, at any stage of the investigation, that the AFP appointee may have committed an offence, the investigator could also arrange for the AFP appointee to be charged with the offence. This might be done even before the investigation of the issue is completed. The AFP appointee might be charged with the offence even if the investigator does not recommend that termination, remedial or training and development action to be taken in relation to the AFP appointee.
(2)To avoid doubt, the Commissioner may take termination action in relation to an AFP employee whether or not a recommendation has been made by an investigator that termination action be taken in relation to the employee.
Section 40TS provides that the powers of an investigator investigating a category 3 conduct issue are the powers provided for in Division 5, to which I will return shortly. On completion of the investigation of a category 3 issue, an investigator is obliged by s 40TU to prepare a written report of the results of the investigation and, relevantly, to give the report to the head of the PRSIU. Without limiting that obligation, s 40TU(3) provides that such a report must include any recommendations that the investigator makes under s 40TR. An obligation is imposed on the Commissioner by s 40TV to ensure that any recommendations made in such an investigation report are fully considered and appropriate action is taken.
As noted above, an investigator’s investigative powers are set out in Division 5. They may be summarised as follows:
(a)the investigation is to be conducted, subject to the rest of Division 5, in such manner as the investigator thinks fit;
(b)under s 40VC the investigator may obtain information from such persons, and make such enquiries, as he or she thinks fit; and
(c)the investigator is empowered by s 40VE to give directions to an AFP appointee to give the investigator information, produce a document, answer a question or do anything else that is reasonably necessary for the purpose of obtaining evidence in relation to the investigation or inquiry. Failure to comply with a valid direction is an offence under s 40VH(1).
It was under s 40VE that FA Deller conducted directed interviews with various persons, including the complainant, the applicant and some other AFP officers. Interviews were also conducted with various civilian witnesses. Adam was not interviewed for the purposes of that investigation (a matter which forms part of the applicant’s procedural unfairness case).
The Regulations
Regulation 5 of the AFP regulations deals with suspension from duties and is relevantly in the following terms:
5 Suspension from duties
(1) The Commissioner may suspend an AFP appointee from duties:
(a)if the Commissioner believes on reasonable grounds that the appointee:
(i)has, or may have, engaged in conduct that contravenes the AFP professional standards; or
…
Other relevant instruments
It is also appropriate to summarise the content of various other relevant formal instruments. Those instruments are:
(a)the Commissioner’s order on professional standards (CO2);
(b)the Commissioner’s order on use of force (CO3);
(c)the AFP categories of conduct determination 2006; and
(d)the AFP national guideline on complaint management.
(a) CO2
CO2 was made by the Commissioner pursuant to inter alia ss 37 and 38 of the AFP Act, as well as reg 33 of the Regulations. The stated purpose of CO2 is to give effect to relevant provisions of Part V of the AFP Act by setting out the professional standards of the AFP to maintain the good order and discipline of the organisation and to outline the AFP complaint management methodology and processes, including the roles of AFP appointees and of PRSIU and the Panel. Clause 8 of CO2 is entitled “AFP Code of Conduct”. Under clause 8.1, it is provided that adherence to the AFP code of conduct is fundamental to complying with the professional standards of the AFP. Of particular relevance is cl 8.10, which is in the following terms:
An AFP appointee must behave in a way that upholds the good order, discipline and security of the AFP.
Clause 15 deals with adjudication of category 3 conduct issues. It provides:
15.1Adjudication is the official decision making process to establish outcomes for category 3 misconduct and corruption issues.
15.2The Commissioner may establish and maintain an AFP Professional Standards Panel (the Panel) to:
· consider the recommendations in a report made to MPRS pursuant to s 40TU of the Act
· make findings and determine appropriate action in relation to the issue or issues pursuant to s 40TR of the Act, with the exception of s 40TR(1)(a).
15.3The Panel will comprise MPRS and authorised senior executive AFP employees. The Commissioner can also appoint external appointees with appropriate knowledge and experience as a senior executive. To ensure consistent practice, MPRS will be responsible for managing, directing, and quality assuring the panel’s decision making.
15.4The process for adjudicating category 3 conduct issues and corruption issues is detailed in the AFP National Guideline on Complaint Management.
15.5Attachment 2 to this Order provides a table of authorisations including those for the adjudication of Category 3 AFP conduct issues and corruption issues.
(b) CO3
CO3 is the Commissioner’s order giving effect to AFP policy regarding the use of reasonable force and its implementation. Clause 2 deals with the use of force and relevantly provides:
2.1.1Use of reasonable force underpins all AFP conflict management strategies and the AFP’s use of force model. Reasonable force is the minimum force reasonably necessary in the circumstances of any particular case. The principles of negotiation and conflict de-escalation are always emphasised as alternatives to the use of physical force as the safety of AFP employees and members of the public is of paramount importance.
…
2.1.3Excessive force is force beyond that reasonably necessary in the circumstances of any particular case including:
• any force when none is needed;
• more force than is needed;
•any force or level of force continuing after the necessity for it has ended;
•knowingly wrongful use(s) of force; or
•well-intentioned mistakes that result in undesired use(s) of force.
…
2.1.6An AFP employee…must, at all times, only use the minimum amount of force in the performance of his or her duty and must draw on the range of use of force and negotiation options as well as the decision making skills developed through AFP training.
Clause 6 deals with the use of chemical agents (such as capsicum spray) and is relevantly in the following terms:
6.1 General
1.An AFP employee or special member may only use chemical agents against another person where he or she believes on reasonable grounds that their use is necessary in order to:
a.defend him or herself, or others from physical injury in circumstances where protection cannot be afforded less forcefully;
b.arrest a person whom he or she believes, on reasonable grounds, poses a threat of physical violence and the arrest cannot be affected (sic) less forcefully;
c.resolve an incident where a person is acting in a manner likely to seriously injure him or herself and the incident cannot be resolved less forcefully; or
d. to deter attacking animals.
….
(c) AFP categories of conduct determination 2006
This determination was made under s 40RM(1) of the AFP Act. It contains a table which characterises conduct into different categories. Table 3 describes category 3 conduct issues and includes an entry dealing with “excessive force (on person)” and the example given is:
Includes using force against a person that was not justified by a warrant or the law.
(d) AFP national guideline on complaint management (the Guideline)
This Guideline, which was first published on 29 January 2007 and has since been modified, was issued under s 37(1) of the AFP Act by way of a delegation to the National Manager Human Resources under s 69C of the AFP Act. It describes the roles and functions of AFP appointees in dealing with complaints and determines complaint management methodology and processes to be used in accordance with Part V of the AFP Act. It is stated to be part of the AFP’s professional standards framework and it is further declared that “[i]nappropriate departures from the provisions of this instrument may constitute a breach of AFP professional standards and be dealt with under Part V of the [AFP Act]”.
Clause 14 of the Guideline deals with the management and investigation of category 3 conduct issues.
Clause 15 deals with adjudication of category 3 conduct issues. It refers to CO1 as delegating the authority to ensure appropriate action is taken in relation to category 3 conduct issues. It further provides that MPRS may allocate investigation reports to adjudication panel members to adjudicate. It also provides as follows:
All Adjudication Panel members must determine whether the matter is established or not established based on consideration of all relevant material collated as part of the investigation…
Summary of evidence in the judicial review proceeding
The applicant swore an affidavit in support of his judicial review application and was cross-examined. He described his employment with the AFP after he joined in November 2001. He said that in March 2003, a complaint against him for use of excessive force (category 3 complaint) was established which led to him being counselled. The incident occurred when he was arresting a member of the public for being intoxicated and displaying disorderly behaviour in a public place and the applicant used some force to take the person into custody.
The applicant was transferred to the Territory Investigations Group (TIG) in November 2003. He gave evidence of an incident which occurred in 2004 in which it was alleged that the applicant had falsely sworn an affidavit in support of an application for a search warrant by stating that the information had been received from a registered informant when in fact the informant was unregistered. The applicant said that around that time the first respondent was involved in a meeting with him and others regarding the allegation. He said that he and the first respondent had a loud and assertive conversation in which he disagreed with what she said. He says that the first respondent appeared to be upset with him because he challenged her.
In late 2004 or early 2005, the first respondent was transferred to TIG and became the applicant’s superintendent. He gave evidence of a separate incident which took place in July 2005 in which he says, in the course of a conversation he was having with another police officer, he made a joke in a manner which could be overheard by a receptionist and he wanted to see if she reported him to the first respondent. He also gave evidence of another incident in May 2006 in which he claims that another AFP officer told him that the first respondent had said that he “can get out of TIG”. This evidence was disallowed as hearsay, but the incident was still pressed by the applicant.
In July 2008 the applicant was appointed acting sergeant within ACT police operations and was formally promoted to sergeant on 18 December 2008. In June 2009 he was transferred to the City Beat Team within the City Police Station. That team specialised in dealing with alcohol related crime in the city precinct. The applicant was appointed team leader and managed a team of four other AFP officers. He says that there were no complaints against himself or any member of the team during the first six months of their work.
In July 2010 the applicant learned that PRSIU were conducting investigations into complaints against him of use of excessive force. Although the applicant requested that he be transferred out of the City Beat Team while the complaints were being investigated, his request was declined. His use of force certification was rescinded, which meant that he was denied use of capsicum spray, handcuffs and firearms. He was effectively restricted to doing work of an administrative or office nature. In late August 2010 he was transferred to Belconnen police station to carry out the role of operations support sergeant, which mainly involved administrative tasks.
On 12 October 2010 the applicant was invited by PRSIU to participate in five criminal caution interviews relating to two allegations of assault occasioning actual bodily harm, two allegations of common assault, and one allegation of intentionally making a false statement. The applicant declined to participate in any PRSIU interviews and all the charges were referred for internal disciplinary proceedings. In his affidavit, the applicant gave evidence of his involvement in the four incidents the subject of those internal disciplinary proceedings.
The applicant gave evidence that in December 2010 he approached the then ACT Chief Police Officer (Mr Roman Quaedvlieg) and told him that he was uncomfortable about the first respondent making decisions concerning the complaints against him because there was a history between them and they had disagreed in the past. He says that the Chief Police Officer said that he would speak with the first respondent. I accept that evidence.
He also gave evidence of an incident which took place at Belconnen police station in August 2011 which gave rise to complaints that he had used excessive force in effecting an arrest, which were investigated by PRSIU and found to be not established. In September 2011 the applicant was transferred to Police Operations, shortly before the PRSIU investigation into the four incidents described above were completed. He says that he had a conversation with the ACT Chief Police Officer in December 2011 in which he was told that he would be moved back to criminal investigations where his skills could be used. He also says that the Chief Police Officer told him that the first respondent “wanted to give you a “show cause” to teach you a lesson”.
The Chief Police Officer arranged for the applicant to be assessed by an AFP psychologist in January 2012. The report of his assessment stated that he did not have any anger management problems.
In early 2012, the applicant was re-certified in use of force. He gave evidence as to the duties he performed in the role of “Alpha 8”, which involved him assisting sergeants on patrol at critical incidents. He then gave evidence of an incident which occurred on 25 May 2012 when the police were called to a university college ball. He described how he was involved in arresting a female for intoxication and disorderly conduct and how her complaint against him of excessive use of force was investigated and found to be not established.
The applicant gave detailed evidence of his account of the central incident on 26 May 2012 which is at the heart of the decision to terminate his employment. He says that he was justified in using capsicum spray in arresting Adam because he considered that Adam posed a threat of physical violence in circumstances where:
(a)Adam was a man of significant physical stature;
(b)he had been involved in a violent incident immediately prior to speaking with the police;
(c)he was assessed as being intoxicated by alcohol and other illicit substances;
(d)his behaviour was deteriorating;
(e)there was a biological hazard posed by blood on his hands; and
(f)he was aggressive and threatened aggression towards the applicant which was said to include clenching his fists and flexing his arms and feigning a head-butt.
The applicant also gave detailed evidence of his involvement in the PRSIU investigation into the incident of 26 May 2012. That evidence included the applicant obtaining access to a copy of the CCTV footage of the incident without going through normal procedures. He says he was later investigated by the PRSIU for failing to complete the proper request to view the CCTV footage. He claims that the PRSIU then raised another complaint against him for allegedly using his position to gain a benefit or advantage in accessing the CCTV footage. He claimed further that he understood that the PRSIU had concluded that both complaints were established but that he had never received any adjudicated finding on those two matters.
The applicant also sought to rely on affidavits sworn by his father and his wife. I ruled those affidavits to be inadmissible in a judicial review proceeding. The applicant also relied on affidavits by three other police officers who were present at the relevant incident and were subsequently interviewed by PRSIU (Constables Nathan Nallo, Chris Carter and Troy Lawrence). He also relied on two affidavits by members of the Australian Federal Police Association (the AFPA), one by its chief executive officer (Mr Dennis Gellatly) and another by the team leader of the employment and legal office at the AFPA (Mr Rogan McMahon-Hogan). The applicant also relied on an affidavit by the former ACT Chief Police Officer, Mr Roman Quaedvlieg.
Outline of applicant’s argument
The applicant amended his originating application several times, including during the course of the hearing. Ultimately he relied on the third further amended originating application, which was filed in Court, without opposition from the respondents, at the commencement of closing addresses on 19 December 2013. He also relied upon a reply dated 19 November 2013, which was filed after receipt of the respondents’ amended defence dated 8 November 2013. It is convenient to summarise his case as it was ultimately presented in closing address by reference to the individual heads of review raised in the third further amended originating application and the reply.
As noted above, the applicant’s case as presented could reasonably be described as involving a scattergun attack on the decision and the decision-making process. The termination decision and the conduct leading up to its making was challenged under no less than 13 separate individual heads of judicial review, many of which were extensively particularised in a way which gave rise to multiple challenges to virtually every aspect of the decision-making process. Taking into account some clarification by the applicant’s senior counsel during closing addresses as to whether the particulars of the multiple heads of review were intended to be read collectively or individually, the applicant’s judicial review challenge involved in total more than fifty individual allegations of unlawfulness and invalidity. That number would almost treble if the numerous extracts from the directed interviews the subject of the applicant’s procedural unfairness complaint were counted individually, as intended by the applicant. Although it is theoretically possible that public administrative decision-making might be susceptible to successful judicial review on such multiple bases, that is only likely to occur in a most extreme case. It is far more probable, as is the case here, that such an approach simply serves to highlight the fact that the judicial review challenge is in large measure a thinly veiled attack on the merits of relevant decisions and conduct.
The limits on judicial review are well established. Having regard to the presentation of the applicant’s case here it seems necessary to repeat and emphasise the much quoted observations of Brennan J in Attorney-General of New South Wales v Quin (1990) 170 CLR 1 at 35-36:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
I will now summarise the applicant’s multiple claims of invalidity.
Procedural unfairness
The applicant makes numerous allegations of procedural unfairness under both limbs of that principle. It is convenient to summarise first his complaints of apprehended bias, before outlining his complaints that he was not given a fair hearing.
(a) Apprehended bias
In support of his claim of apprehended bias in respect of the first respondent, the applicant relies on:
(a)the three incidents involving him and the first respondent which occurred in 2004, 2005 and 2006, the broad details of which were further described above;
(b)the fact that he twice raised his apprehensions of bias on the part of the first respondent with the then Chief Police Officer of the ACT;
(c)the fact that there was no allegation made against him prior to 18 June 2013 that he had assaulted and intimidated a member of the public and he was given no prior opportunity to respond to that allegation, rather the only allegation made against him up until that time was that he had used excessive force; and
(d)the investigation report provided to him for the purposes of his natural justice response was redacted and did not include Appendices A-O.
In his penultimate further amended originating application, the applicant also advanced for the first time a case of apprehended bias on the part of the first respondent arising from the conduct of FA Deller. That case was based on the following matters:
(a)FA Deller’s conduct during the taped record of interview with the applicant in refusing to discuss or disclose the evidence of other witnesses and his comments on the CCTV footage when it was shown to the applicant;
(b)alleged deficiencies in the investigation report, being:
(i)inaccurate or insufficient summaries of other witnesses’ evidence when requested to provide the same;
(ii)inaccurate or insufficient summaries of the evidence given by other witnesses set out as “salient points” in Appendices E-K to the investigation report;
(iii) non-disclosure of relevant evidence of other witnesses;
(iv) non-disclosure of the fact that Adam was not a complainant; and
(v)non-disclosure as to whether Adam had given or refused to give a statement or be interviewed by PRSIU;
(c)failure to disclose the substance and/or purpose of additional enquiries made by FA Deller of various persons after the applicant had been provided with the investigation report and was still to provide his first natural justice response;
(d)failure to disclose the substance and/or purpose of further additional enquiries made by FA Deller with those persons after the applicant provided his first natural justice response;
(e)failure to disclose that the salient points were expanded after receipt of the applicant’s first natural justice response; and
(f)comments made by Sgt Whittaker in FA Deller’s presence in June 2012.
The applicant submits that the first respondent’s decision was vitiated by FA Deller’s apprehended bias because he was a “significant subordinate officer ” in the decision-making process in the sense described by Gleeson CJ in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [23]. The applicant accuses FA Deller of prejudgement and having a closed mind which was not open to persuasion. He claims that FA Deller’s approach to the evidence revealed that FA Deller had preconceived views, which he says was reflected in such matters as FA Deller’s selective and inaccurate summaries of the evidence in both the investigation report and in the “salient points” which were contained in various appendices to that report.
(b) Unfair hearing
The applicant separately complains of procedural unfairness by reference to the fair hearing limb of that doctrine. This aspect of his case overlaps with his claims that procedures set out in the AFP Act had not been complied with (see further below). In essence, he says that he was not afforded a fair hearing because:
(a)he was not provided with a taped record of interview of the complainant or a redacted transcript of that interview;
(b)he was not provided with tapes of the directed interviews of any witnesses and/or transcript of interviews with any such witnesses in a redacted or unredacted form;
(c)he was not provided with Appendices A-O of the investigation report, which included appendices setting out the “salient points” of various interviews;
(d)he was not provided with accurate summaries of evidence relied upon by FA Deller and by the adjudicator (revised extracts of the relevant directed interviews were appended to the third further amended originating application). To avoid duplication, I will defer particularising the applicant’s multiple allegations of deficiencies concerning the summaries of the interviews;
(e)the applicant was not given an opportunity to be heard in relation to the alleged finding that he assaulted and intimidated a member of the public;
(f)the version of the investigation report provided to the applicant on or about 29 August 2012 was redacted and did not include Appendices A-O (including Appendices E-K which set out the “salient points” of the directed interviews with numerous witnesses), with the consequence that the applicant claims he was denied an opportunity to ascertain whether the summaries of the evidence of each witness accurately reflected their evidence;
(g)he was not provided with an accurate summary or the totality of Supt Timson’s expert evidence on use of force;
(h)between 23 August 2012 and 15 October 2012, FA Deller made additional enquiries relating to his investigation and did not provide the applicant with the information he thereby obtained before the applicant was required to provide his response to the investigation report;
(i)because of the matters raised above, the applicant was denied the opportunity of properly responding to the complaint made against him and the evidence purportedly relied upon by FA Deller when he provided his natural justice response on 15 October 2012;
(j)between 15 October 2012 and 29 November 2012 FA Deller made further enquiries with various persons and included them in a response to the applicant’s natural justice response and although providing that information to the adjudicator, FA Deller did not disclose it to the applicant;
(k)because of the matters raised above, the applicant was denied the opportunity of properly responding to the Show Cause Notice and the termination decision; and
(l)the applicant contends that the matters at paragraphs (a) to (j) were significant to the proper consideration of whether or not the complaint was established and may have affected the adjudication and decision in a material way.
The applicant relies on Minister for Immigration and Citizenship v Maman [2012] FCAFC 13 in support of his contention that he should have received the totality of the evidence and without any redactions. He complains that he was prejudiced because the redactions prevented him from identifying who were the key witnesses and what they were supposed to be doing and/or witnessing, thereby denying him a proper opportunity of addressing the complaint. He complains that the “key points” in the investigation report were inadequate and that he was prejudiced in not receiving Appendices A-O which contained the “salient points” of each interview. He denies that the redactions were justified for confidentiality reasons. The inaccuracies in the “key points” of which the applicant complains were identified in the applicant’s final further written submissions which were produced prior to closing addresses. They concern alleged inaccuracies in relation to the summaries in the investigation report of the evidence given by Sgt Walls; Constables Lawrence, Raue, Nallo, Carter and Clarke, as well as Supt Timson.
As to the complaint that he was not given an opportunity to address any allegation that he had assaulted or intimidated members of the public, this complaint is based on a contention that an adverse finding to that effect was made against him in terminating his employment.
In his written closing address, the applicant also claims that he was denied procedural fairness or natural justice because the first respondent’s decision to terminate his employment was based on evidence that was not reasonably capable of sustaining such a decision and he cites Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 65 (Pochi) in support. In particular, he complains that the first respondent did not have before her accurate or complete evidence or the totality of the evidence (including the tapes or transcripts of all the records of interviews and the CCTV footage).
Finally, in the third further amended originating application the applicant raised some additional previously unpleaded matters as also constituting procedural unfairness. He complains that the following three “decisions” were not disclosed to him for comment prior to the termination decision being made, namely:
(a)PRSIU Team Leader Lyddiard’s decision that he was satisfied that there was sufficient information in FA Deller’s report to support his recommendations;
(b)PRSIU Coordinator Coutsolitis’ decision that FA Deller had carried out his investigation fairly and without bias; and
(c)PRSIU Coordinator Coutsolitis’ decision that the investigation report substantially addressed the issues raised in the complaint and that the evidence had been appropriately weighed.
Each of these matters arises from internal quality assurance processes taken within PRSIU in respect of FA Deller’s investigation report.
Failure to follow procedures required by law
In support of his claim that the first respondent failed in certain respects to observe procedures that were required by law to be observed in the making of the decision, the applicant argues that there was non-compliance with s 40TQ of the AFP Act as well as with parts of both the Guideline and CO2. The matters relied upon in support of these claims are set out in the applicant’s reply dated 19 November 2013. They are partly duplicated in the matters summarised above, however, some additional matters were also raised.
The applicant submits that s 40TQ of the AFP Act applied to the investigation and imposed a statutory requirement to afford procedural fairness. In particular, he draws attention to s 40TQ(2), the terms of which are set out in [28] above.
The applicant says that this statutory requirement mandated that he be given an opportunity to provide a response to the analysis and findings in the investigation report but that he was denied such an opportunity because of the following matters.
First, he repeats the matters raised above in support of his complaints of procedural unfairness.
Secondly, the applicant submits that the version of the investigation report provided to him on or about 22 August 2012 was redacted and did not include appendices A–O. Consequently, he did not have that material when he provided his response dated 15 October 2012 to the investigation report. He complains that appendices A, B, D, and E-L were essential for him to understand the analysis and foundation for the investigator’s conclusions. For example, he draws attention to the fact that he was unaware of the contents of the “Promis Case Summary” (Appendix A), which described in broad terms the events surrounding Adam being taken into custody and consequently he could not comment on its accuracy; his unawareness of what was contained in the antecedent report (Appendix B) also meant that he could not comment on its accuracy; he had only seen the CCTV footage a few times and was expected to rely on his memory of what could be seen or ascertained from the footage (Appendix D); and since he was unaware as to who had been interviewed by PRSIU or the contents of those interviews (Appendices E-L), he was unable to determine whether the evidence given was accurately reflected in the summaries and salient points. He complains further that he was not given an opportunity to comment on the further investigation which took place after he provided his written response to the investigation report, nor was he informed of the further enquiries which were made by FA Deller after he had submitted his written response.
Thirdly, he contends that, on its proper construction, clause 15.3 of CO2 required the adjudication of the complaint to be conducted by at least 2 people, if not all the members of the Panel, and not by Mr Whowell alone. Clause 15.3 provides:
The Panel will comprise MPRS and authorised senior executive AFP employees. The Commissioner can also appoint external appointees with appropriate knowledge and experience as a senior executive. To ensure consistent practice, MPRS will be responsible for managing, directing, and quality assuring the panel’s decision making.
In support of this contention, the applicant also relies on clause 15 of the Guideline, which provides:
All Adjudication Panel members must determine whether the matter is established or not established based on consideration of all relevant material collated as part of the investigation.
The applicant also relies on numerous other matters in contending that procedures required by law were not observed. He claims that both the first and second respondents failed to follow “accepted guidelines” of PRSIU investigations because:
(a)he was not provided with an adequate copy of the CCTV footage of the incident;
(b)he was not provided with sufficient information in relation to the investigation report;
(c)the first respondent was not provided with all information and material obtained in the investigation;
(d)the investigator inappropriately commented on the applicant’s response to the Show Cause Notice;
(e)the investigation was conducted in such a way that the outcome was predetermined; and
(f)the investigation and adjudication process did not follow the process set out in cl 15.3 of CO2.
Furthermore, in his reply, the applicant complained that procedures required by law had also not been observed because his prior conduct (relating to the four established complaints against him of use of excessive force in May and June 2010) was taken into account in the investigation, adjudication and Show Cause Notice relating to the incident on 26 May 2012.
Improper exercise of power
In support of his claim that the decision constituted an improper exercise of the power under s 28 of the AFP Act, the applicant claims that relevant considerations were not taken into account, various irrelevant considerations were taken into account, the power was exercised in bad faith and was unreasonable, as well as complaining of abuse of power. Finally, the applicant complains that the first respondent’s decision was otherwise contrary to law. Each of those matters was particularised with varying degrees of specificity in the third further amended originating application and the reply. I will now briefly outline the applicant’s arguments concerning each of these heads of review.
(a) Failure to take into account relevant considerations
In the third further amended originating application and reply, the applicant contends that FA Deller and the adjudicator were bound to take into account the following relevant considerations and failed to do so:
(a)Supt Timson’s expert opinion on use of force;
(b)the totality of the relevant evidence of all the police witnesses to the incident;
(c)the totality of the relevant evidence provided by Supt Timson;
(d)an accurate summary of Supt Timson’s evidence;
(e)an accurately prepared “salient points” of Supt Timson’s evidence;
(f)an accurate investigation report because FA Deller failed accurately to summarise or prepare “salient points” in respect of Supt Timson’s evidence; and
(g)an accurate investigation report because FA Deller failed to prepare accurate summaries and “salient points” for any of the other witnesses who participated in directed interviews.
(b) Taking into account irrelevant considerations
The applicant alleges that the following irrelevant considerations were taken into account in the course of the investigation, the adjudication and the making of the termination decision:
(a)the role of Alpha 8;
(b)the applicant’s inability to understand the meaning of the use of move on directions and their treatment by the courts;
(c)the applicant’s failure to support an unknown person and the alcohol targeting team as they worked to investigate the assault allegations;
(d)the applicant’s failure to keep himself sufficiently apprised of key developments, in particular the alleged victim not wishing to make a formal complaint;
(e)the assessment as to the proper use of capsicum spray was an analysis of two competing versions, namely that of the applicant and that of the complainant and the other police present;
(f)the adjudication had regard to the applicant’s prior conduct in considering whether the complaint had been established;
(g)the adjudication made recommendations beyond the scope of its inquiry; and
(h)the alleged impropriety of the first respondent relying upon Mr Whowell’s findings in circumstances where she did make any independent findings as to whether the complaint was established.
(c) Bad faith
In support of his claim of bad faith, the applicant says that the first respondent should have disqualified herself from making the termination decision or, alternatively, have been disqualified by the second respondent. He further alleges that the first respondent was not honest about her prior dealings and incidents involving the applicant. He claims that the first respondent must have known of those prior dealings and incidents because she was involved in them, but even if she had forgotten them, they were brought to her attention and she should not have continued as decision-maker. He contends that the first respondent’s “failure to ameliorate or avoid any issue of bias was not consistent with a statutory duty and constituted the kind of recklessness that might be characterised as being not in good faith”, citing Applicant WAFT/2002 v Refugee Review Tribunal (2003) 145 FCR 351. Finally, in his reply, the applicant also relied upon the matters described in [80(f)] as constituting bad faith.
(d) Unreasonableness
The applicant claims that the exercise of the power under s 28 of the AFP Act to terminate his employment was so unreasonable that no reasonable person could have so exercised the power. In support of that claim, the applicant raises many matters which he says are to be viewed individually and not collectively, namely:
(a)the adjudication had regard to the applicant’s prior conduct in considering whether the complaint had been established;
(b)the adjudicator made recommendations beyond the scope of his enquiry;
(c)the first respondent’s termination decision was based on acceptance of the adjudication;
(d)the adjudication was improperly based on a finding of the division between two competing views, namely the view of the applicant on the one hand and the view of the complainant and other police present on the other hand in relation to the question whether the applicant used excessive force;
(e)the adjudication was improperly based on a finding that the applicant had used excessive force without regard to all the relevant material;
(f)the adjudication and the investigation failed to take into account the totality of the relevant evidence given by all of the witnesses which was significant to the finding whether the complaint was established or not because proper consideration and preparation of the evidence may have materially affected the adjudicator’s decision and consequently may never have enlivened the jurisdiction of the first respondent under s 28 of the AFP Act or, alternatively, may have resulted in the consideration being given to alternatives to terminating the applicant’s employment;
(g)both the investigator and the adjudicator unreasonably relied upon the CCTV footage when it was inconclusive as to assessing matters relevant to the applicant’s decision making process to use capsicum spray;
(h)the investigator and adjudicator made decisions on findings based on the CCTV footage when a proper review of the CCTV footage is not reasonably capable of sustaining those decisions and findings;
(i)the investigation made a finding based on suspicion or speculation that capsicum spray was deployed when Adam was complying with the move on direction in circumstances where it was an erroneous finding of fact that Adam was complying with the move on direction and that finding was unsupported by the evidence provided by witnesses to the incident; and
(j)in his reply, the applicant raised as an additional and separate aspect of unreasonableness the matter described in [81(f))] above.
In support of his claims of unreasonableness, the applicant submits that “a more generous approach to the test for reasonableness has recently been adopted” which is not limited to asking whether a decision is one which is “so unreasonable that no reasonable person could have arrived at it”, citing Minister for Immigrationand Citizenship v Li (2013) 297 ALR 225 (Li). He submits that both the finding that he used excessive force and the decision to terminate his employment were both unreasonable in the sense that they involve states of satisfaction which could not be reached by a person with an understanding of the nature of the statutory function being performed. He adds that for the unreasonableness ground to be established, the Court need not be sure of the precise particular in which the first respondent had gone wrong and that it is sufficient that a failure properly to discharge her function can be seen in some way, citing Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353.
(e) Abuse of power
In support of his separate claim that the power in s 28 of the AFP Act had been exercised in abuse of power, the applicant repeated many of the matters relied upon by him in his claims concerning relevant and irrelevant considerations, as well as bad faith.
(f)Otherwise contrary to law
The applicant’s invitation for the Court to engage in an impermissible review of the merits of the termination decision is perhaps most tellingly revealed in the particulars provided in support of this further pleaded head of judicial review which I will now set out verbatim:
(a) The Decision made an improper finding of serious misconduct.(sic)
(b) The Investigation and Adjudication were not properly conducted;(c)The information before the Investigation and Adjudication was insufficient to make a finding of serious misconduct;
(d)The First Respondent did not independently consider whether the material available to the Investigation and Adjudication support of the finding of serious misconduct;(sic)
(g) Conduct
Finally, under s 6(1) of the ADJR Act the applicant repeats many of the matters raised above in challenging the lawfulness of various conduct leading up to the making of the first respondent’s termination decision. In particular, reliance was placed on the previous claims of procedural unfairness, failure to observe procedures required by law, improper exercise of power and that the decision was otherwise contrary to law.
Outline of respondents’ argument
The respondents resist the applicant’s case on the following broad grounds.
First, as to the complaint of apprehended bias, the respondent says that any claim of bias has been waived because the applicant ought to have raised his objections to the first respondent determining the matter and he failed to do so (citing inter alia Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [126] (Jones v ACCC)). Secondly, if the claim of apprehended bias is considered, the respondents submit that the material relied upon by the applicant falls short of “firmly establishing” that the relevant “might-might” test is satisfied (citing R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553-554 (The Angliss Group) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71]-[72] (Jia)). They say further that the applicant has failed to articulate a logical connection between the minor events he relies upon in 2004, 2005 and 2006 and any well-founded fear that the first respondent might not determine the matter on its merits in 2013.
As to the applicant’s reliance on alleged apprehended bias arising from the conduct of FA Deller which is then said to taint the first respondent, the respondents submit that the matters relied upon by the applicant as underpinning his allegation of apprehended bias are insufficient to lead a fair-minded lay person, properly informed, to believe that FA Deller may not have been impartial. Furthermore, the respondents submit that even if apprehended bias could be made out on the part of FA Deller, it would not taint the termination decision because there was an intermediate step between completion of the investigation report and the making of the termination decision. That intermediate step involved the adjudication conducted by Mr Whowell and no allegation of apprehended bias is made by the applicant against him. Accordingly, the respondents contend that the adjudication constituted an independent review of whether the complaint was established and operated as a “circuit breaker” in terms of any implications flowing from the case of apprehended bias against FA Deller.
As to the applicant’s various complaints that he was not given a fair hearing, the respondents emphasise at the outset that the content of procedural fairness requirements vary depending upon the circumstances and that it is also relevant to ascertain whether any practical injustice has occurred (citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 (Mobil Oil) at 504 and Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 per Gleeson CJ (Lam). The respondents also say that, having regard to the relevant surrounding circumstances, the content of procedural fairness did not require the applicant be provided with verbatim copies of material which was taken into account and that it was sufficient to disclose the substance of the matter (citing Walton v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 342 at 357 (Walton)) and that there was no obligation to disclose the identity of the source of that information (citing ApplicantVEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (Applicant VEAL)).
As to the factual foundation for the claim that there was an insufficient disclosure of information, the respondents contend that the “dot point” summaries in the investigation report disclosed the substance of relevant evidence given by the witnesses interviewed and that there were no factual circumstances recorded in the transcripts of those interviews which the applicant did not already know. During the course of closing addresses, the respondents handed up a detailed aide-memoir which noted alongside each of the extracts from the interviews set out in Appendices A–H of the third further amended originating application references in the “dot point” summaries which they say disclose all information which was adverse to the applicant and was “credible, relevant and significant” to the central issue whether the complaint was established. Accordingly, they submit that there was no denial of procedural fairness in not providing the applicant with the verbatim extracts from the interview transcripts the subject of his complaint.
As to the non-disclosure of Appendices A-O, the respondents contend that there was no practical injustice because the applicant was aware of the substance of those appendices and, in most cases, was aware of their entire contents. As to the specific complaints regarding non-disclosure of all of Supt Timson’s interview, the respondents say that Supt Timson’s views were fairly reflected in [4.37] of the investigation report and that, in any event, his evidence added nothing to what the applicant already knew about the requirements of clause 6.1 of CO3.
The respondents say that it is a misconstruction of the termination letter to view it as turning on a finding that the applicant had assaulted and intimidated a member of the public. Rather, they draw attention to the fact that the description in the termination letter of what was established was in identical terms to the complaint.
All other aspects of the applicant’s complaints of unlawfulness are also denied by the respondents. The complaints relate to the allegations of failing to observe procedures required by law and the various heads of review raised by the applicant under the rubrics of improper exercise of power, abuse of power and that the decision is otherwise contrary to law. The respondents also reject the applicant’s complaints that there was non-compliance with the Guideline and CO2 and that there was reviewable error because FA Deller’s investigation report was subjected to internal quality assurance reviews. To avoid duplication, I will not set out the respondents’ detailed arguments on these matters but will deal with them below.
The respondents also deny that there is any proper foundation for the applicant’s complaint which relates to the first respondent’s conduct in 2004, 2005 and 2006 on the basis that none of that conduct can be viewed as conduct for the purpose of deciding to terminate the applicant’s employment and, therefore, falls the outside the scope of s 6 of the ADJR Act.
Consideration
It is convenient to deal seriatim with the applicant’s multiple challenges to the validity of the termination decision by reference to the various heads of review raised in the third further amended originating application and reply. Although there was substantial agreement between the parties as to the relevant legal principles applying to those heads of review, it is convenient to outline those principles before considering their application to the particular circumstances here.
(a) Denial of procedural fairness
(i) Apprehended bias
The test for apprehended bias in the context of administrative decision-making in Australia is now well-established. That test is reflected in the following passage from the leading decision in Ebner v Official Trustee (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ (Ebner) (omitting citations):
…the governing principle is that, subject to qualifications relating to waiver…or necessity…, a [decision-maker] is disqualified if a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide.
Other relevant principles established by Ebner may be summarised as follows:
(a)if the decision-maker has determined the matter, the test is one which requires no conclusion about what factors actually influenced the outcome and there is no need to enquire into the actual thought processes of the decision-maker;
(b)application of the apprehension of bias principle involves the following two steps. First, the identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits. The second step is the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
It is also now generally accepted that a reasonable apprehension of bias should be firmly established and not lightly concluded: see The Angliss Group at 553-554 and Laws vAustralian Broadcasting Tribunal (1990) 170 CLR 70 at 100. Furthermore, the application of the apprehension of bias principle needs to take into account such matters as the role and functions of the person against whom the allegation is directed, as well as the nature of the power being exercised. Although the apprehended bias rule is expressed in similar terms in cases involving courts or quasi-judicial tribunals, as well as administrative decision-makers, it is well recognised that the application of the relevant principles may require appropriate adaptation in the circumstances of administrative decision-makers exercising statutory powers (see Ebner at [4] and Jia at [61]-[63] and [99] per Gleeson CJ and Gummow J).
It is also settled that the apprehended bias rule can be waived by a party who has adequate knowledge of the key facts but fails to raise an objection of apprehended bias in a timely fashion (see, for example, Smits v Roach (2006) 227 CLR 423 at [45] and Jones v ACCC at [126]). Waiver generally requires that the party be ‘fully aware” or have “full knowledge” of the relevant facts (see the discussion in Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) at [9.360]). I also respectfully agree with the comments of Basten JA (with whom Beazley and Hodgson JJA agreed) in Greyhound Racing NSW v Cessnock &District Agricultural Association [2006] NSWCA 333 at [125] (Greyhound Racing) that “care must be taken in circumstances which involve no formal process not to infer informed waiver too readily”.
Applying those principles to the particular circumstances here, I make the following findings. I reject the respondents’ defence based on waiver. In my view, the applicant took reasonable and appropriate steps in raising his concerns of apprehended bias with the then Chief Police Officer of the ACT who then undertook to raise those concerns with the first respondent. Having regard to the hierarchical structure of the police force and the administrative character of the internal investigation, no objection can be taken to this course, as opposed to the applicant raising his concerns directly with the first respondent. The applicant’s conduct does not preclude him from further objecting in these proceedings to the first respondent’s involvement in the decision-making, but for the following reasons I do not accept that the applicant has established any of his claims of apprehended bias.
Page - Line;
Q and AQuote in Annexure D to Further Amended Originating Application Salient Points in PRS Investigation Report Additional transcript references to salient point Page 5 Line 30-34; Q&A 43 We spoke to him and he had no idea what was going on… Constable Lawrence asked him a few questions and his answers were completely off the planet. He referred to going back inside and getting it when Constable Lawrence was asking him about his injury.
Page 10 (4.7), 7th dot point Page 6 Line 31;
Q&A 43He was quite clearly under the influence of intoxicating liquor and or drugs. Page 10 (4.7), 7th dot point Page 6 Line 23;
Q&A 50He was tense. He was a big guy and he was tense. I was concerned that if he did, he’d probably do a lot of damage to the police, if he did want to become violent.
Page 10 (4.7), 5th and 6th dot points Q&A 43 Page 7 Line 24-26;
Q&A 58There was another male that just kept intervening and saying no no I’ll take care of him, [16:00] I’ll take him back inside and nothing will happen. I’m like no you can't go back inside.
Not pressed by Applicant Page 7 Line 28-31;
Q&A 59He was a bit belligerent, didn’t want to listen to police and he just kept saying no no no don’t worry I’ll take care of him, it’s not a policing thing don’t worry about it. I’ll take him back inside. I don’t think he could understand that we were concerned that if he was to go back inside that
something would happen.Not pressed by Applicant Page 7 Line 33;
Q&A 60At one stage I said look he’s got to get in a taxi and go; why don’t you just take him home or put him in a taxi and get rid of him. He can't stay and then he goes oh I’ll go [16:30] inside to get my friends, but then he just coming back. I’ll just take him inside and look after him.
Not pressed by Applicant Page 14 Line 5-13; Q&A 146; Q&A 147 [32:00] From my experience in dealing with intoxicated people and large people, he looked like he wouldn’t pose any more of a physical threat to me and I was safe in that the role I was taking at that time, I wouldn’t have any primary contact with him or he wasn’t even a -- I don’t think his demeanour gave me the justification to have my OC spray out anymore. He stopped tensing up. He pretty much wasn’t carrying on as much as he was. He was still clearly intoxicated, but I just don’t think -- still don’t think he’d be [32:30] physically aggressive or violent towards me. In my mind I didn’t have anything to actually apprehend him for at that time, so I wasn’t considering actually taking him into custody for anything. So there was no point me having the OC spray out.
Page 10 (4.7), 6th dot point; page 11, para 4.8 Q&A 119 Page 17 Line 5-9; Q&A 174 I was suspicious of the fact he turned. In saying that I don’t know if Sergeant Coutts [42:30] called him or Sergeant Coutts said something to provoke him to turn or the male just turned because he was going to have a final comment toward Sergeant Coutts. I couldn’t see him. I was blocked by the sergeant -- I could see his head. I didn’t really have a clear view of his body.
Page 11 (4.7), 2nd and 5th dot points Page 17 Line 19-23; Q&A 177; Q&A 178; Q&A 179; Q&A 180 [43:30] He probably could have disengaged but he may have collided with other
police. He did have quite a few police around him. In saying that, like if he disengaged
one step there probably would have been enough room. I don’t think he’d have enough room to -- he was pretty close to the guy when he sprayed him. They were in right next to each other, so closer than we are at this table I’d guess.They weren’t talking loudly either, so conversation between them was at normal talking level. I guess if you wanted to de-escalate, you probably had a step or two maximum. I don’t think he could have really taken a few steps back and tried it from there. Yeah, [44:00] they were very very close, too close. I wouldn’t want to be that close to him.
Page 11 (4.7), 1st, 3rd and 12th dot points Page 18 Line 1-6; Q&A 185 I guess if Sergeant Coutts had concerns that he couldn’t take the guy into custody
using other means. I don’t think he would have had an opportunity to take him. If he
wanted to apprehend him and he had in his mind that he’s going to take him into
custody for something, he probably wouldn’t have been able to take him down in an
arm bar, or any of the approved methods.Page 11 (4.7), 12th dot point;
page 11, para 5.8Page 18 Line 8-13; Q&A 186; Q&A 187 [45:30] Would not have been. I mean one, because of his proximity, two because I think he
might have overpowered Sergeant Coutts if he did try and swing him down and he would know where to actually put him down -- takedown, because of the amount of people around him. I probably would have taken the de-escalation technique with that gentleman. If I was going to take him into custody, because of his size and he really [46:00] wasn’t out there to get a lock up, so.Page 11 (4.7), 12th dot point;
page 11, para 5.8ANNEXURE E
Quote from transcript of Constable Chris Carter dated 15 June 2012
Page - Line;
Q and AQuote in Annexure E to Further Amended Originating Application Salient Points in PRS Investigation Report Additional transcript references to salient point Page 5 Line 20-29; Q&A 41 He was -- so he -- this male kept trying to take a step forward. He would after being directed, he tried to take a small step forward and Sergeant Coutts stopped him and said no stand there, don’t move. He continued doing very -- he continued doing very small actions that appeared to be maybe trying to aggravate Sergeant Coutts. First he tried to take a step forward, then he tried to take a very small step forward, then he sort of shuffled on his feet and attempted to move away.
It certainly appeared to me that he was testing the waters and trying to see how far he could get. Each time he made a move Sergeant Coutts told him stay there. At some point he was given a move on direction by Constable Rob Raue I believe it was and then was told to leave the vicinity.
Page 11 (4.9), 6th and 7th dot points Page 5 Line 31-32;
Q&A 42I was standing with Sergeant Coutts in case he became violent. It was someone else’s decision and I’m not even sure why it was made.
Page 12 (4.9), 1st dot point Q&A 52 Page 6 Line 1;
Q&A 43Someone came up to him and gave him the move on direction. He argued and - Page 12 (4.9), 4th and 5th dot points Q&A 53 Page 6 Line 15-21;
Q&A 49Oh yeah. The longer he stood there, he appeared to be eyeballing Sergeant Coutts and he was reasonably -- I thought his demeanour was reasonably aggressive when he came out of the club. However, this continued to heighten and at one point -- at one point during the conversation Brett Coutts said something -- words to the effect of because you’re a maggot or something like that. There was some -- from memory I can't remember the context and what it was said. I believe that he was arguing with Sergeant Coutts about why he had to stand there and from there --
Page 11 (4.9), 4th 5th and 6th dot points Page 6 Line 28-31;
Q&A 52He was very argumentative and waving his arms around and certainly didn’t appear to be wanting to comply with any directions given to him by anyone. I remember when he came out -- at some point he had a conversation with First Constable Troy Lawrence
Page 12 (4.9), 2nd dot point Page 6 Line 31-33; Q&A 52 All I remember is that Troy was trying to explain something to him and he became highly argumentative, waved his arms around and I remember Troy was being quite reasonable with him.
Page 12 (4.9), 1st and 2nd dot points Page 6 Line 34 - Page 7 Line 5;
Q&A 53Once he’s been given that, I really need you to get him out of here because -- otherwise he’ll get locked up. His mate said not a problem; alright look I’ll get him out of here and I’ll take care of him. After the move on direction was given, the male started walking away
Page 12 (4.9), 3rd dot point Page 7 Line 34; Q&A 54
I believe he was pretty angry and I believe that he was showing it as a bit of -- Page 12 (4.9), 1st dot point Page 7 Line 25-26; Q&A 56 to be honest I don’t know which way he was going. Sergeant Coutts was already standing sort of within his vicinity anyway,
Page 7 Line 30-31;
Q&A 57he’s stared at Sergeant Coutts in quite a confrontational manner and appeared to be tensing up
Page 12 (4.9), 7th dot point Page 8 Line 23; Q&A 74 Yes, he was staring at him in quite a confrontational manner. Page 12 (4.9), 7th dot point Page 8 Line 28; Q&A 76 As Mr Hickey was walking past, he continued to eyeball Sergeant Coutts Page 12 (4.9), 7th dot point Page 9 Line 19;
Q&A 82Yes. He was angry, Page 10 Line 8; Q&A 92
He wasn’t angry. I don’t recall him being angry. Page 11 Line 1-3; Q&A 103 Because there were a large amount of police there. The male was talking. He was being [22:00] quite aggressive towards us, however he wasn’t -- he wasn’t making any threats towards us. He just appeared to be puffing his chest out.
Page 12 (4.9), 1st and 6th dot points Page 12 Line 1-2; Q&A 116 I just said look, they’re about to give him the move on direction. Once that is given to him, please by all means get him out of here and keep him out of trouble.
Not pressed by Applicant Page 12 Line 5-6; Q&A 117 Yes, I think if Mr Hickey had become any more aggressive, his friend wouldn’t have been able to stop him,
Page 12 Line 12-16; Q&A 121, Q&A 122 Mr Hickey was quite strong and four or five police got him to the back of a van and Mr Hickey didn’t want to get in. It should be pointed out though -- to be honest I don’t remember whether I put in a use of force on this -- four or five police were trying to get him in the back of the van and they couldn’t do it.
Page 12 (4.9), last dot point Page 12 Line 20-25; Q&A 125; Q&A 126 He was doing everything in his power to avoid getting in there and I can't remember whether he was pushing or kicking against the sides, trying to stop getting in. Yeah, he wouldn’t comply with any police directions to get in. I wasn’t part of that at the time. I stood back and watched part of that and when I realised that the constables weren’t having any success and that he was resisting,
Page 14 Line 8-15; Q&A 146; Q&A 147 Mr Hickey came to my attention when he was standing outside. He was quite fired up and some other police -- I believe it was Constable Troy Lawrence, was trying to speak with him. ... I just remember he seemed quite aggressive outside the club. A lot of the police there that night were reasonably new cops and a lot of them weren’t terribly big. At that point I figured well I’m going stand over there so that if he does fire up with anyone speaking to him, well then there’s a couple of other guys around there that can deal with him.
Page 12 (4.9), 2nd dot point;
page 12, para 4.10Page 14 Line 19-25; Q&A 148 He seemed to have a reaction to every police officer he spoke to. He was spoken to by a couple police there. When he was speaking to them, he appeared disinterested [30:30] wanting to speak with them. He argued with them and tried to walk away and was just general -- … -- I remember one of the people on my team, First Constable Troy Lawrence tried to speak to him and he wouldn’t listen to him. Sergeant Coutts I think just wouldn’t give him an inch, to get under his skin.
Page 11 (4.9), last dot point;
page 12 (4.9), 2nd dot pointPage 14 Line 36 - Page 15 Line 2; Q&A 152 I just remember that Constable Lawrence became increasingly frustrated trying to speak to him. …. The male was argumentative, belligerent, wanted to walk away and Constable Lawrence had said look please stop, I need to talk to you.
Page 12 (4.9), 2nd dot point Q&A 52 Page 15 Line 15; Q&A 157
I just stood next to him in case he fired up. Page 15 Line 27-29; Q&A 163 He didn’t even acknowledge I was there. He was that fired up at Sergeant Coutts. I never spoke to him. I didn’t have any interaction with him. I was just a body there.
Page 12 (4.9), 1st dot point Q&A 164 Page 15 Line 31; Q&A 164
He was generally fired up at police. Page 12 (4.9), 1st dot point Page 16 Line 4-8; Q&A 165 The guy kept trying to take a step forward then a half step forward then kept trying to shuffle away and just appeared to be trying to test ... I think at some point he made a comment about why he had to stand there or had to do something. He was basically being belligerent
Page 11 (4.9), 6th dot point Page 16 Line 25-27; Q&A 173 I remember he was facing the cage. I remember there were constables trying to put arm locks and wrist locks -- whatever, I’m trying to get him to comply from memory. I think I grabbed him by the back of the jeans by the belt, lifted him and sort of heaved him in.
Page 17 Line 20-24; Q&A 184 In the entire incident in this guy’s arrest do you mean? I believe Sergeant Coutts was standing there providing the manpower. I mean I know he’s alpha eight. He’s a former beat sergeant and when he arrived, this male was being quite disruptive. He stood there to make sure the male who was being quite belligerent, was complying with police directions and basically didn’t run over the top of us.
Page 11 (4.9), 2nd dot point Page 18 Line 1-10; Q&A 186 Yeah, look honestly I actually do. I think it was necessary for him to at least stand there. A lot of the constables -- I remember at one point looking at a few of the constables who were on with us that night, thinking to myself that if this really turns bad, we’re in trouble. The guys on my team, we work out a lot. I’ve done a lot of boxing, a lot of martial arts in my younger days. We’ve got Troy Lawrence who’s a former prison guard. We’ve got another guy working with us who was a bouncer. When we get into conflict in the city, we as a team can walk in generally feeling confident that someone has got our back. A lot of these newer guys are a little bit smaller, we don’t know who they are and they don’t have a lot of experience. So, I
think in that situation, I think it was definitely warranted that Sergeant Coutts stood
there.Page 12, para 4.10 Page 18 Line 15-19; Q&A 188, Q&A 189 I do know of alpha eights who have appeared at incidents -- large incidents usually. They’ll very quickly take command. It often depends on the personality of whoever is doing it. There may someone who is quite happy for constables -- to let the constables take care of it, then I hear of alpha eights who conduct forty traffic stops in a night and go to every job.
Page 18 Line 21-22; Q&A 190 No, I’ve seen an alpha eight follow an aggressive male around a corner in town before, but I’ve never seen an alpha eight get involved in a use of force incident, no.
ANNEXURE F
Quote from transcript of Constable Damien Clarke dated 21 June 2012
Page - Line;
Q and AQuote in Annexure F to Further Amended Originating Application Salient Points in PRS Investigation Report Additional transcript references to salient point Page 5 Line 2-7; Q&A 34; Q&A 35 Not really, just every time that they raised their voice, was probably the only time I sort of heard and then when they tried -- he kept trying to walk off and they’d like put a hand on his chest, just stay there, trying to work out what’s going on, sort of thing. Then from that they must have obtained bona fides, I think. It was Constable Raue who was taking his details and from there, the gentleman was allowed to leave. I didn’t think anything more of the situation.
Page 12 (4.11), 6th and 8th dot points Page 5 Line 28; Q&A 47
It was in, sort of in his direction. Page 12 (4.11), last dot point Page 6 Line 11-12; Q&A 54 The male was facing Sergeant Coutts, Sergeant Coutts was obviously facing him and
then distance I would estimate maybe about a metre and a half at most and thenPage 12 (4.11), last dot point Page 7 Line 10; Q&A 62
he was very belligerent
Page 12 (4.11), 6th dot point Page 7 Line 12-14; Q&A 63 Just his body language, he didn’t want to comply with any sort of police directions, he kept trying to walk past when they were trying to talk to him. They were trying to sort out what happened inside.
Page 12 (4.11), 6th dot point Page 8 Line 19-22; Q&A 85, Q&A 86, Q&A 87 Then yeah, I don’t know really how it sort of transpired with Sergeant Coutts. I wasn’t paying attention to the male at that time and then all I remember hearing was Sergeant Coutts going you couldn’t let it go could you mate, or words to that effect. That’s when I smelt the OC spray
Page 13 (4.11), 1st dot point;
page 13, para 4.12Q&A 51, Q&A 53 Page 9 Line 12-14; Q&A 100 He was -- he perceived to be an aggressive kind of person, like he was, he just didn’t care about the three officers in front of him. He was just, his whole demeanour… he came across to me as an aggressive kind of person.
Page 13, para 4.12 Page 10 Line 28-31; Q&A 119 Well he said -- he was pretty arrogant that guy. He was like, just because he told them to fuck off -- you can’t go doing that just because he said fuck off, it’s not against the law to tell a coppa [sic] to fuck off and all that sort of stuff. So he was very belligerent. He was also pretty intoxicated as well.
Page 13 (4.11), 5th and 6th dot points Page 11 Line 10-12; Q&A 122, Q&A 123 Like I said, I didn’t get the full sort of he said she said sort of thing. However, considering the need to go hands on with it, obviously someone that size and due to his demeanour prior, I think OC spray was probably justifiable.
Page 13 (4.11), last dot point ANNEXURE G
Quote from transcript of Constable John Callaghan dated 22 June 2012
Page - Line;
Q and AQuote in Annexure G to Further Amended Originating Application Salient Points in PRS Investigation Report Additional transcript references to salient point Page 4 Line 6-8; Q&A 25 Sergeant Robert Lester approached us and said that he thought there were a number of Rebels present and that about 01:30am - it would have been the 26th May - he wanted as many resources there as possible
Not pressed by Applicant Page 6 Line 19-21; Q&A 47 INTERVIEWER: [13:00] Did you have concerns about this male in any way?
RESPONDENT: Only that he’d attracted so much police attention, which made me think he must have done something, but I didn’t see him do anything.
Page 13 (4.13), 6th dot point ANNEXURE H
Quote from transcript of Superintendent Peter Timson - 24 July 2012
Page - Line;
Q and AQuote in Annexure H to Further Amended Originating Application Salient Points in PRS Investigation Report Additional transcript references to salient point Page 3 Line 24-26; Q&A 23 I was the subject matter expert for the AFP in relation to use of force and was the secretary for the operational safety committee during that time.
Page 23, para 4.37 Page 7 Line 22-27; Q&A 63; Q&A 64; Q&A 65 RESPONDENT: I can't even -- to be perfectly honest, I cannot see --
INTERVIEWER: Yeah.
RESPONDENT: -- unless you can point it out to me, exactly where --
INTERVIEWER: Where the spray is deployed?
RESPONDENT: -- where the spray is deployed by -- it’s not clear to me.
Page 23, para 4.37 Page 8 Line 10-34; Q&A 71 - Q&A 88 Yeah. Okay, so based on seeing him sprayed there, my professional opinion is that if in accordance with CO3 at the time, that person has -- gives some demeanour or reaction that he’s about to assault him, then it’s a defensible action. So, if the officer believes due to his demeanour, his skillset, clenched fists you know... targeted fixation or is about to turn around and hit him and he believes in CO3, then that is justified and it is if you believe that is the case, then that is a justifiable application.
However, if -- and I will say this helicopter view from the CCTV does not give any of the demeanour dimensions to the event -- if however there is no information provided by the officer as to why it has occurred, then it would appear that that would be in breach of CO3, if for the simple fact that he’s just sprayed the person and cannot explain why.
INTERVIEWER: Yeah, okay.
RESPONDENT: That’s my professional opinion. So, if I was in that circumstance or if one of my staff were in that circumstance and that person suddenly clenched a fist was about to strike me, I would have given a queue and due to the fact that if they are and they’ve been given intelligence all night that they are OMCG’s or they are meeting there and the adrenaline is high and you believe that that sort of quick reaction is required, then I believe that would be justified. However, if you cannot explain as to why that occurred, then yes I would say that it would be in a breach of CO3 in relation to the application of OC.
INTERVIEWER: Okay. Yeah can I just say… it is a bit far away --
RESPONDENT: This does not give you what he actually believes at the time -- CCTV can never do that. However, it does show the circumstances step by step. Yes he was there and yes he did use it. However, what he believed at the time -- that’s what he believed.
INTERVIEWER: Yeah that’s right.
Page 23, para 4.37 Page 9 Line 1-19; Q&A 88 - Q&A 99 RESPONDENT: I mean dependent on what he’s told yourselves on the direction; that’s up to you to decide.
INTERVIEWER: Yeah.
RESPONDENT: And obviously MPRS.
INTERVIEWER: Yeah, no that’s fine.
RESPONDENT: That’s my opinion.
INTERVIEWER: Yeah, no worries and that’s what we basically would have wanted, just to show someone else just so you --
RESPONDENT: Yeah.
INTERVIEWER: -- and to ask what the lead up and if there were any --
RESPONDENT: Yeah, yeah.
INTERVIEWER: [27:30] -- extenuating circumstance. As you said [?][00:27:35] queues can be small.
RESPONDENT: Yeah, they can be and if he has provided that as to why he’s used it, then to me if I was the team leader assessing this use of force report, then to me that would be deemed as justified, if someone suddenly clenched a fist or gave a target glance or said something -- made reference to coming back or the shoulder shift and all the things that they do [28:00] that officers as you know learn. Yes, then that would be justified in defending yourself. But, if he hasn’t said any of that and can't explain why he’s done it, I’d say that would be excessive.
Page 23, para 4.37
36
21
4