DC v Commissioner of Police - [2022] SADC 102

District Court of South Australia
(Civil: Application for Review)
DC v COMMISSIONER OF POLICE
[2022] SADC 102
Decision of her Honour Judge Deuter
31 August 2022
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
police - appointment, tenure and conditions of service - misconduct and discipline
Appeal against a sanction imposed on a serving police officer by a delegate of the Commissioner of Police following an admission of allegations relating to the breach of the General Order – Human Resources Management, Diversity and Inclusion. Matter remitted to the Commissioner by the Police Disciplinary Tribunal for him to determine sanction by deciding whether to take action or order the taking of action of the kind set out in s 26(1) of the Police Complaints and Discipline Act 2016 (SA). (The Act).
The decision was delegated to an Assistant Commissioner, who in addition to considering documents provided by the Tribunal, took into account an Impact Statement provided to him by the complainant.
Discussion of the nature of the sanction to be imposed pursuant to s 26(1) of the Act, and the standing and use of the Impact Statement.
Held:
1.The Assistant Commissioner erred in taking into account the complainant’s Impact Statement when considering sanction pursuant to s 26(1) of the Act upon the basis that the Impact Statement:
(i) had no standing within the purpose and processes of the Act;
(ii)contained prejudicial and irrelevant material, and as a result made allegations in relation to the appellant’s conduct that went well beyond the admissions of fact agreed by him before the Tribunal.

2.The Assistant Commissioner erred in that he imposed the sanction on an incorrect factual basis, and for an incorrect purpose, namely for the purpose of punishment rather than for the protection of the public.

3. The sanction was manifestly excessive.
4.As a result of the errors made by the Assistant Commissioner in the exercise of his discretion in imposing sanction, cogent reasons exist pursuant to s 42E of the District Court Act 1991 (SA) to interfere with his orders.
5.That pursuant to s 42F(c) of the District Court Act, the matter be remitted to the Commissioner for further consideration as to what, if any sanctions ought to be imposed according to law, and in accordance with the directions and findings of the court.

6. That the question of costs be reserved.
Police Complaints and Discipline Act 2016 (SA) ss 7,12, 14, 21, 22, 23, 24, 25, 26, 32; Police Complaints and Discipline Regulations clause 4 of Schedule 3, Reg 10, 12(1) & (2), 13(1) & (2); District Court Act 1991 (SA) ss 42E, 42F, referred to.
Clarke v Burns [2008] SADC 148; Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72; Commissioner for Consumer Affairs v McMurray [2017] 128 SASR 1; House v The King (1936) 55 CLR 499; Police Board v Morris (1985) 156 CLR 397; Hardcastle v Commissioner of Police (1984) 53 ALR 593; Re Brown [1996] 2 QdR 8; H v Commissioner of Police [2016] SADC 52; Craig v Medical Board of South Australia (2001) 79 SASR 545; Bhoola v Optometry Board of Australia [2022] SASCA 20; Whickham v Commissioner of Police [1997] SASC 6497; R v Webb [1971] VR 147; R v M, G [2016] SASCFC 116; R v Olbrich [1999] HCA 54; R v Tuala [2015] NSWCCA 8; The Queen v De Simoni (1981) 147 CLR 383; R v H [2005] NSWCCA 282; Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; H v Commissioner of Police [2016] SADC 64; Ve5en v The Queen (no 2) (1988) 164 CLR 465; R v White; ex parte Burns (1963) 109 CLR 665; NSW v Etherton (1985) 1 NSWLR 430; Ryan v The Queen (2001) 206 CLR 267; Alexander v Minister of Home Affairs [2022] HCA 19; Burns v Corbett (2018) 353 ALR 386; A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253, applied.

DC v COMMISSIONER OF POLICE
[2022] SADC 102
Civil
Introduction

This is an Appeal to this Court sitting in its Administrative and Disciplinary Division. D C (the appellant) appeals against a sanction imposed by an Assistant Commissioner (the Assistant Commissioner) on 3 March 2022. In the circumstances of this matter the appellant jurisdiction of this Court is conferred by s 32 of the Police Complaints and Discipline Act 2016 (SA) (the PCD Act), which sets out at s 32(3) that a designated police officer ‘…may appeal to the Court against an Order of the Commissioner imposing a sanction on the designated officer under s 26 of the PCD Act’.
The nature and the character of the Appeal is set out in s 42E of the District Court Act 1991 (SA) (the District Court Act) which states:
42E—Conduct of appeal
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Section 42F of the District Court Act sets out the orders that may be made on an appeal:
42F—Decision on appeal
The Court may, on an appeal—
(a)     affirm the decision appealed against;
(b)     rescind the decision and substitute a decision that the Court considers appropriate;
(c)     remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Background facts
The appellant is a serving member of the South Australian Police (SAPOL) of approximately 40 years. As at September 2020 he held the rank of Sergeant having been promoted to that role approximately 17 years prior thereto. His role was as a general duties supervisor, responsible for managing teams. As a result of an incident on 14 September 2020, involving another police officer holding the rank of constable (the complainant), a formal complaint was made regarding the appellant’s behaviour.[1] On 8 December 2020 he was directed to attend an interview with officers from the Diversity and Inclusion Branch of SAPOL. This interview occurred on 8 December 2020 with two detectives from that branch.
[1] Complaints are made pursuant to s12(1) of the PCD Act.
The Allegations
On 7 October 2021 the appellant was served with a Notice of Allegation (the initial Notice) pursuant to s 22 of the PCD Act alleging that on 14 September 2020, as a designated officer, without good or sufficient cause, he had disobeyed a lawful order or direction namely: ‘General Order ‑ Human Resource Management, Diversity and Inclusion’, contrary to clause 4 of Schedule 3 of the Police Complaints and Discipline Regulations 2017 (the Regulations). The initial Notice set out that whilst the appellant and the complainant were at a weekend social event at a holiday rental property together with members of their patrol team, the appellant pulled the complainant close to him whilst dancing (the first incident), and that he later followed her into a bedroom, pushed her down onto a bed so she was lying on her elbows while he straddled her (the second incident). It was alleged that on both occasions the appellant made the complainant feel very uncomfortable, and that the appellant’s actions did not comply with the provisions of the General Order, and the respectful behaviour guidelines, in that the actions interfered with the emotional well‑being of the complainant.[2]
[2] Exhibit DC-2 to Affidavit of the appellant (FDN 2).
Accompanying the initial Notice was a one-page document described as a Notice of Likely Penalty.[3] This set out the punishment which the Police Commissioner could impose pursuant to s 26(1) of the PCD Act, if the allegations were proved. These sanctions were based upon the facts alleged at 7 October 2021. They were counselling, education and training, with an unrecorded reprimand at the lowest level through to reduction in rank, or suspension for a specified period.[4] Included in that range of penalties is reduction in renumeration by a specified amount for a specified period; or the imposition of a fine not exceeding the amount of the prescribed by the Regulations.[5] The reduction in income or fine is prescribed to be $1,250.00.[6]
[3] This Notice is required by s 22(4) of the PCD Act and is based upon ‘the facts as known to the Commissioner at the time the Notice of Allegation is presented’.
[4] Exhibit SJD-2 to Affidavit of the Assistant Commissioner (FDN 11).
[5] Section 26(1)(h) and (i) of the PCD Act.
[6] Reg 13(1) and (2) of the Regulations.
The Amended Allegation and Admission
The appellant, with the assistance of the Police Association engaged in negotiations with the Ethical and Professional Standards Branch of SAPOL regarding the factual basis of the allegations. An agreement was reached to amend the allegations, by removing the word very before uncomfortable in relation to the second incident and to remove the allegation that the appellant had followed the complainant to a bedroom and had pushed her down onto a bed and then straddled her. The appellant indicated that he would admit the amended allegations. No up-dated Notice of Likely Penalty was served after this agreement to remove several of the factual allegations in relation to the second incident.
Due to the delay in admitting the allegations resulting from the amendment to the agreed facts, the appellant was required to appear before the Police Disciplinary Tribunal (the Tribunal) pursuant to the combined effect of ss 24 and 25 of the PCD Act. A hearing was conducted before Magistrate Smart, sitting as the Tribunal on 4 February 2022. He noted the amended particulars of the allegation as follows:
… you are charged that on 14 September 2020 you, being a designated officer, without good or sufficient cause, disobeyed a lawful order or direction, namely General Order – Human Resource Management, Diversity and Inclusion contrary to s 4, schedule 3 of Police Complaints and Discipline Regulations 2017. In particular it is alleged that on 14 September 2020 you were a designated officer holding a position of Sergeant …. On this date you were on a rostered day off. You attended a social function with your patrol team at a holiday rental property …. Alcohol was being consumed by many who attended. [The complainant] was in attendance. During the evening you danced with [the complainant] during which time you pulled her close to you. During this dancing [the complainant] was trying to push you away but was unable to do so. This incident made her feel very uncomfortable. Later in the evening you followed [the complainant] into a bedroom where she was intended to get changed. [The complainant] was sitting on the bed. You went into the bedroom, approached[ the complainant] and pushed her down onto the bed so she was lying on her elbows. You leaned over [the complainant] and remained on the bed. Your actions were not invited or wanted by [the complainant] and caused her to feel uncomfortable. Another officer entered the room and separated you from [the complainant].
It is alleged that you did not comply with the provisions of the General Order and Respectful Behaviour guidelines in that your actions interfered with the emotional wellbeing of [the complainant].[7]
[7] Page 6 of Exhibit SJD-3 (FDN 11).
The appellant was then asked how he pleaded, guilty or not guilty. The appellant responded ‘guilty’. Magistrate Smart then remitted the proceedings to the Commissioner of Police for imposition of any sanction in accordance with s 25(2) of the PCD Act. I pause to note that it is agreed that Magistrate Smart made an error in reading the charge, and that in relation to the second incident, it was not part of the agreed facts that the appellant had followed the complainant into a bedroom where she intended to get changed. In remitting the proceedings to the Commissioner, Magistrate Smart declined to give any indication regarding the seriousness or otherwise of the breaches of discipline committed.[8]
[8] Page 8 of Exhibit SJD-4 (FDN 11).
I also note that, although the Tribunal is to follow the practice and procedure of courts of summary jurisdiction on hearing complaints for simple offences,[9] the PCD Act does not establish a statutory penal regime, where breaches of discipline are punishable by fines or jail. Breaches of General Orders are instead punished by civil penalties and administrative orders. The Act is drafted in terms of breach of discipline, which is defined as ‘… conduct that breaches the code of conduct and that may be the subject of a notice of allegation …’[10]. The Code of Conduct is defined in s 7(1) of the PCD Act as a code that is ‘… for the maintenance of professional standards by designated officers ...’. The code includes regulation of:
(d)     conduct towards other designated officers; and
(e)     standards of personal behaviour …..
[9]    The PCD Act at s 5.
[10] The PCD Act at s 3.
Section 23 of the PCD Act sets out how a breach of discipline is managed differently than where an officer is charged with a criminal offence. Section 24 of the PCD Act provides that a designated officer can admit or deny the allegations in the Notice served upon them, regarding a breach of discipline. If the allegations are not admitted then the Tribunal must hear the allegations to determine if it is satisfied, on the balance of probabilities, that a breach of discipline has been committed.[11] When a breach of discipline is admitted the Commissioner ‘… may take action, or order the taking of action…’ of the kind set out in s 26(1) of the PCD Act.
[11] The PCD Act at s 25(1) and (2).
Nowhere in the PCD Act is it set out that a designated officer who is alleged to have breached discipline is to plead guilty or not guilty as if in a criminal court. The Act sets up a regime that involves the admission of allegations and/or determination of those allegations and is not concerned with matters of guilt in the criminal law sense. The only place where guilt is mentioned is where a designated office is found guilty of a state or commonwealth criminal offence.[12] This is not the case in this matter.
[12] The PCD Act s 26(1)(a).
Amended Summary of Allegations
On 9 February 2022, five days after the hearing before Magistrate Smart, a ‘Notice of Allegations as Amended’ was served upon the appellant. This Notice confirmed the agreed facts in relation to the second incident as follows (the amended Allegation):
Later in the evening [the complainant] went into a bedroom where she was intending to get changed. [The complainant] was sitting on the bed. You went into the bedroom, approached [the complainant] and pushed her down onto the bed so she was lying on her elbows. You leaned over [the complainant] and remained on the bed. Your actions were not invited or wanted by [the complainant] and caused her to feel uncomfortable. Another officer entered the room and separated you from [the complainant].[13]
[13] Exhibit DC-4 (FDN 2).
An Amended Summary of Allegations was attached to the Notice of amended Allegations (Summary of Allegations). This expanded upon the issues relevant to the complainant stating that the incidents had caused her much distress leading to her subsequently being transferred to another workplace.[14]
[14] Page 82-84 of Exhibit DC-4 (FDN 2).
The Summary of Allegations set out detail of the allegations pursuant to the General Order – Human Resource Management, Diversity and Inclusion:
Managers and supervisors are responsible for (among other things):
·     Providing a safe work environment that enables employees to carry out their work responsibilities free of negative workplace behaviours;
·     ‘Leading the way’ by being good role models of respectful workplace behaviour and conduct;
·     Maintaining a harmonious and respectful workplace;
Every employee will ensure they (amongst other things):
·     Behave professionally and treat other employees with dignity and respect;
·     Comply with the provisions of this General Order and the ‘Respectful Behaviour Guidelines’.
Respectful Behaviour
SAPOL has a responsibility to provide a safe, ethical, inclusive and productive work environment and to set standards of behaviour that supports a workplace culture free of bullying, harassment and discrimination. SAPOL is committed to building a workplace culture where the principles of diversity and inclusion are integrated into employees’ everyday work and conduct, and that commitment to diversity and inclusion goes beyond legal compliance.
Respectful workplace behaviour includes but is not limited to:
·     interacting with others in a professional, courteous and polite manner that does not interfere with the emotional well-being and safety of others:
·     treating others in the way that they wished to be treated;
·     communicating in a clear, calm and professional manner to others;
·     being open to and accepting that others have different experiences, skills and attributes and views on life and work, being approachable, considerate and honest when dealing with others.
The Summary of Allegations concluded with the following:
- The premises at […..] falls within the definition of a workplace as defined in the General Order.
- It is alleged that the actions of [the appellant] have made [the complainant] feel very uncomfortable and have not amounted to respectful behaviour in terms of the obligations set out in the General Order.[15]
(Emphasis added).
[15] Exhibit DC-4 (FDN 2).
This concluding paragraph again contained a relevant error. The amended allegations were that the actions of the appellant made the complainant feel very uncomfortable only in relation to the first incident, and not the second where the adjective ‘very’ was removed by agreement.
Remission for Sanction
On 10 February 2022 the appellant was served with a Notice of Proceedings setting out that as he had ‘pleaded guilty’ in the Tribunal, to one count of breaching clause 4 of schedule 3 of the Regulations (Breach of General Order – Diversity and Inclusion) the matter had been remitted to the Assistant Commissioner to determine whether to take action against him pursuant to s 26 of the PCD Act.[16] A hearing was set for 3 March 2022, and the appellant was advised that the complainant was intending to submit an Impact Statement for the consideration of the Assistant Commissioner, as part of the penalty process. The appellant was advised that he could also make a written submission regarding the issue of penalty and that the Assistant Commissioner had been provided with documents to assist him in determining the matter. These were the amended Allegations as agreed; the Summary of Allegations; the Notice of Likely Penalty; Transcript of the proceedings before Magistrate Smart; the appellant’s Record of Interview of 8 December 2020; copy of an email sent to investigators by the appellant dated 11 December 2020 after his interview; and documents related to the appellant’s employment history with SAPOL. I pause to note that no new Notice of Likely Penalty was served after the allegations were amended to remove the serious allegations that the appellant had followed the complainant into a bedroom, and later straddled her while she was lying on a bed.
[16] Exhibit DC-5 (FDN 2).

Section 26 of the PCD Act does not set out how a Commissioner is to determine what action to take when a breach of discipline is admitted. It does not contain provision for either the appellant or the complainant to provide a statement for the Commissioner’s consideration.
The appellant submitted a written statement to the Assistant Commissioner dated 22 February 2022.[17] This set out in extensive detail the appellant’s background, both as an officer with SAPOL since 1982, and within the Australian Army Reserve for many years. He had been the recipient of six different medals, including for his policing work in East Timor. He had one previous breach of Police Regulations relating to a culturally insensitive email. The appellant also set out the work he had done with the SAPOL teams that he had managed, to develop a supportive and nurturing culture. This included organising events for female officers to enable them to speak frankly about their work experiences. At the last event a female Inspector had attended to discuss promotion for women within SAPOL. The appellant states that this received an excellent response from the female members of his team.
[17] Exhibit DC-6 (FDN 2).
In relation to the events of 14 September 2020, the appellant acknowledged his level of intoxication and the impact of that intoxication upon his behaviour, for which he was embarrassed and disappointed in himself. It had also caused him to have limited memory of what had occurred. He reported that he had largely stopped drinking alcohol since December 2020. He confirmed that the team social event had been arranged to take place at a holiday rental property. This was to improve team bonding and morale. Over the afternoon and evening of 14 September, the attendees wore costumes, played drinking games involving alcohol and attended a local hotel for dinner and drinks. Not all attendees planned to stay overnight, however that was the appellant’s plan.
In relation to the first incident, he explained that later in the evening several people were dancing in the lounge room at the time he danced with the complainant. He did not recall grabbing her hips and pulling her closer to him to dance. He was horrified to think that his dancing style had affected the complainant, as this was not his intention, and he could only suggest that his behaviour was due to his level of intoxication. The appellant expressed regret that his level of intoxication had caused him to not comprehend the complainant’s attempts to move away, thereby making her feel uncomfortable.
The second incident occurred after the appellant had intended to retire for the night. In doing so he has been told that he became verbally sentimental, hugging and patting his team on the back before walking off down the hallway to the darkened end of the house, where the lights were not working. By his account, he did not know that the complainant had gone to the bedroom to change, although at the time he entered she was fully clothed and sitting on the bed. He admitted that in approaching the complainant to say goodnight in a sentimental manner he went too far by pushing her onto her elbows and standing over her. He accepts that he caused the complainant to feel uncomfortable and apologised for his actions. It was of great consolation to him that the complainant in her initial statement, confirmed that while intoxicated the appellant was rambling about work, and that although leaning over the complainant with his hands on either side of her, he did not say anything sexually suggestive. The appellant was again horrified by his behaviour, and disappointed in himself.
In his statement the appellant also set out the comments made by two other officers, who had witnessed what had occurred. One of those officers confirmed that the complainant told him that the appellant did not say anything suggestive. Both officers confirmed that he was talking to the complainant about work matters.
The appellant also set out his disappointment at what occurred after the incidents. He noted that for the first 9 months afterwards he had continued to work at his normal duties, managing both male and female staff with an increased workload due to managing COVID-19 issues. Although there were no complaints during this period, the appellant was transferred on 30 May 2021, on one days-notice, to a different workplace. He was told that he was no longer allowed to be around female officers without there being CCTV available.[18] Despite the appellant feeling demoralised by this move, he continued working, refusing to avail himself of over 260 days of available sick leave. No reason for this reassignment with short notice, nine months after the incidents, or how the reassignment related to the admitted allegations, was ever provided to the court. The only information available comes from the Administrative Order that states that it was a work restriction made for ‘… the effective management of SAPOL, protection of the interests of SAPOL, and its employees and protection of the public’. It directed that the appellant was not to relieve at higher duties during the time for which the order was in place. It was specifically noted at clause 4 that the Administration Order was a work restriction. The Assistant Commissioner’s brief reasons do not indicate if this work restriction between 20 May 2021 and 3 March 2022 was taken into account by him in determining sanction.[19]
[18] This move was pursuant to an Administrative Order and regarded as a ‘work restriction’ to ‘preserve interests’ during the investigation of the complaint. See Exhibit SJD-7 (FDN 11).
[19] Exhibit SJD-7 (FDN 11)
Finally, the appellant asked that any penalty imposed would still see him working within his usual District on a 24/7 shift working pattern, to enable his wife to continue working at her job on his opposite shifts.
The Complainant’s Impact Statement
On 22 February 2022 the complainant provided the Assistant Commissioner with an Impact Statement (the Impact Statement).[20] This was for the consideration of the Assistant Commissioner as part of the penalty process.[21]
[20] Exhibit DC-7 (FDN 2).
[21] Response by Commissioner of Police (FDN 12) at [12].
The impact statement is detailed and five pages long.
Statement in relation to the appellant
The statement in relation to the appellant begins with the complainant incorrectly describing the appellant as ‘the accused’.[22] It then sets out how the appellant’s behaviour and the incident on 14 September 2020 had negatively impacted the complainant. The appellant’s behaviour had affected her physically, psychologically and emotionally. This included the complainant suffering disturbed sleep and nightmares which involved the appellant being over the top of her; and her suffering extreme stress after being moved from her usual posting to another Station. She could not recover from the incident particularly whilst the appellant ‘was being investigated for predatory behaviour’. (Emphasis added).
[22] Page 93 of Exhibit DC-7 (FDN 2).
The complainant says that she ‘felt fear and terror in relation to my supervisor who was in a position of power and had authority over me, taking advantage of me.’ (Emphasis added). She was worried that the SAPOL complaints process would not carry consequences ‘for the perpetrator’. She also described the second incident as involving her ‘being pinned down on a bed’ by the appellant. (Emphasis added).
The complainant explained that she was required to leave her role at her usual police station, not because she had done anything wrong but because someone had done ‘…something wrong by me and betrayed my trust and boundaries…’. When asked by the Senior Sergeant at her new posting why she had been transferred she replied with ‘… something like because I was pinned down by my Sergeant…’. (Emphasis added). The complainant says she was required to take sick leave due to the incident and seek counselling from SAPOL. She also required a mental health plan from her General Practitioner.
Statement in relation to actions of SAPOL
A large part of the Impact Statement deals with what the complainant regarded as the inadequate and, at times, ‘horrific’ way she was treated by SAPOL after the incident, including by those investigating her complaint.[23] Throughout the Impact Statement she complains about her move from her usual station and the way that this was carried out, including without support being provided. This led to her suffering feelings of significant mental stress. Her comment was ‘… the absolute lack of awareness in this situation and the constant stress the organisation has put me through to simply not think that this was a horrific idea is absolutely beyond me …’. (Emphasis added).
[23] Page 94 of Exhibit DC-7 (FDN 2).
When the complainant made contact with SAPOL’s Employee Assistance Scheme (EAS) for the purpose of booking a session with them the counsellor she spoke with appeared to be appalled that the incident involving the appellant had not been referred to them so that the complainant could be contacted for help. The complainant states that she raised concerns regarding the manner in which the investigation into the incident was conducted and the insensitivity of the police officers involved. She was particularly upset by queries as to whether the appellant may have tripped and fallen onto her, stating: ‘… imagine if I asked this question of a victim that I was dealing with while conducting my duties as a Police Officer.’[24] She was also ‘… incredibly upset and disappointed …’ that being advised that she would be updated regarding the tribunal outcome, she had to wait the whole weekend before hearing from SAPOL. In summary, the complainant records that she has ‘… lost motivation to work for this organisation …’; and that she was ‘… incredibly disappointed in the admin side of things and how it has been handled …’.
[24] Page 97 of Exhibit DC-7 (FDN 2).
In reviewing the Impact Statement, just under four of the five pages relate to serious concerns the complainant has with her treatment by SAPOL after the incidents. The complainant records that as a result she lost motivation to work for SAPOL. She summarised her feelings in that regard as follows:
The experience has left me totally devastated with SAPOL, where I am now left questioning my career within this organisation. The way that SAPOL has dealt with me and this incident has shown me that SAPOL operating in this capacity does not align with my own personal values, being care and respect. If I remain in this organisation and another incident like this or similar was to happen to me, I highly doubt that I would report this. The process has been horrific for my mental health and I would not be surprised if many similar incidents go unreported for this reason. With South Australian Police recently changing their slogan to ‘Safter Communities’, - How am I expected to keep the community safe when my organisation/the management in SAPOL can’t even make my workspace a safe place.
Hearing before the Assistant Commissioner
On 3 March 2022 the appellant appeared before the Assistant Commissioner, in what was described as a ‘sentencing hearing’, pursuant to s 26 of the PCD Act.[25] He was not legally represented. He made a detailed submission that included an apology for his excessive drinking, and for his behaviour towards the complainant, acknowledging it would have been frightening for her, particularly in a darkened bedroom. He attributed all of his actions to being intoxicated to a level which was in his words ‘ridiculously inappropriate’. The appellant told the Assistant Commissioner that he was deeply troubled by the incident. He submitted that it was the first time in his career that he had let a team member down. He had always prided himself in putting the team before himself. He went on to say that ‘… the only small sense of solace that I can take from this incident is there has been amongst all statements including hers, no allegation of any sexual actions or comments or inuendo or suggestions on my part throughout this whole terrible incident …’.
[25] Lines 2‑4 of Exhibit SJD-10 (FDN11).
The appellant told the Assistant Commissioner that in the 18 months since the incident he had only consumed alcohol on two or three occasions, and that he completely understands that his behaviour was wrong. An advocate from the Police Association submitted that the appellant had shown great remorse from the outset for his behaviour, particularly given his excessive alcohol consumption meant that he could not remember all of what had occurred. He urged that his rank not be reduced and that the penalty for the behaviour not be too crushing on a police officer in the twilight of his career.
Despite that submission the following penalty order was made by Assistant Commission:
1.Pursuant to s 26(1)(f)(i) of the PCD Act transfer from [his usual] District to [another] District in a General Duties position for a minimum period of 13 months.
2.Pursuant to s 26(1)(f)(ii) of the PCD Act reduction of rank from Sergeant to Senior Constable.
3.Pursuant to s 26(1)(j) of the PCD Act reprimand recorded in conduct and service history.
I note from the transcript of the hearing that this penalty was handed down by the Assistant Commissioner directly after submissions were completed. It was confirmed before me, that there was no pause for consideration between the submissions and penalty.
The brief reasons given by the Assistant Commissioner for the penalty are found in what is described as a record of interview.[26] The Assistant Commissioner set out that the appellant had ‘pleaded guilty’ in the Tribunal to a breach of the Code of Conduct; and stated that the purpose of the hearing was ‘…to consider the circumstances and nature of your conduct to enable me to determine an appropriate punishment.’[27]
[26] Pages 38-42 of Exhibit SJD-10 (FDN 11).
[27] Lines 25-30 of Exhibit SJD-10 (FDN 11).
The Assistant Commissioner outlined the appellant’s breaches of the Code of Conduct. He stated that in
… finding a penalty that assists in achieving the objectives of this process, I have taken into account any previous charges and penalties. And any loss, damage, consequences resulting from your conduct …[28]
[28] Lines 161-164 of Exhibit SJD-10 (FDN 11).
and that he had to find a penalty that:
… assists in maintaining public confidence in SAPOL. Promotes the self-esteem of other police officers and encourages efficiency within the organisation. The penalty must fit the breach and your own circumstance.[29]
[29] Lines 199-203 of Exhibit SJD-10 (FDN 11).
Those factors were stated to include: the seriousness of the appellant’s conduct; the difference in rank between the appellant and the complainant; the appellant’s submissions and the complainant’s impact statement; the appellant’s contrition; and the impact of his level of intoxication.[30]
[30] Lines 203-211 of Exhibit SJD-10 (FDN 11).
The sanction was then imposed with no further reasons provided regarding why that sanction, particularly the reduction in rank, was appropriate in the circumstances. This is in marked contrast to the decision in Clarke v Burns[31] where the judge noted that the reasons of the Commissioner on penalty were detailed and that he had spent time detailing the submissions of the designated officer. This allowed the judge to find that he had taken adequate account of all issues on penalty. This is not the case in this matter as I will discuss further below.
[31] [2008] SADC 148.
Appeal
An appeal against the decision of the Assistant Commissioner was filed on 31 March 2022 (the appeal).[32] Orders are sought that the decision of the Assistant Commissioner be rescinded and that a substitute decision be made by the Court, or the matter be remitted to the original decision maker for reconsideration. At the appeal hearing it was agreed by both counsel that if the decision was to be rescinded the matter should be remitted, with detailed reasons provided for the decision maker.[33]
[32] FDN 1.
[33] Pursuant to s 42F(c) of the District Court Act.
The grounds of the Appeal are that the Assistant Commissioner made an error in exercising his discretion pursuant to s 26 of the PCD Act to impose a sanction reducing the applicant’s rank from Sergeant to Senior Constable on the basis that he:
(a)acted upon a wrong principle in imposing the sanction as punishment for wrongdoing, rather than to deter future behaviour for the primary purpose of protecting the public;
(b)allowed extraneous and/or irrelevant matters guide his decision by taking into account matters raised by the complainant in her Impact Statement;
(c)mistook the facts and imposed the sanction on an incorrect factual basis;
(d)imposed a sanction that was manifestly excessive, oppressive and/or unreasonable and plainly unjust, having regard to the Applicant’s:
i       otherwise lengthy history of exceptional service over his 40‑year career with SAPOL and lack of relevant antecedents;
ii      full and frank cooperation whilst under investigation and early admission of the charge in the Tribunal;
iii     full and frank concessions as to the unacceptable nature of his conduct;
iv     insight demonstrated into his conduct during his submissions on sanction;
v      reduction in base salary, overtime and shift penalties, and long service leave value as a result of the reduction in rank;
vi     planned proximity of retirement and the likely necessary prolongation of his working career in order to return to his financial position prior to the reduction in rank;
vii     personal circumstances including;
(a)familial responsibilities;
(b)likely effect of his changed shift pattern on his wife’s ability to continue her work;
(c)familial financial arrangements including in relation to the mortgage on his family home.
This is supported by an affidavit of the appellant (the Affidavit).[34]
[34] FDN2.
Conduct of the appeal
The manner in which this appeal is to be determined, as set out in s 42E(3) of the District Court Act, means that the decision of the Assistant Commissioner cannot be overturned unless there are cogent reasons to do so.
The Full Court of the Supreme Court in Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) discussed what was meant by ‘cogent’ reasons. Stanley J (Gray J, agreeing) held that: [35]
Section 42E(2) is a mandatory provision requiring the court on appeal to give due weight to the decision being appealed against and the reasons for it, and not to depart from the decision except for cogent reasons. There are two critical features to the operation of s 42E(3). First, the nature of the appeal being conducted by the Court is limited. The Court is not to allow the appeal except for cogent reasons. I consider that the purpose of s 42E(3) is to indicate that the appeal, while it is to be conducted in accordance with the terms of s 42E(2), is not an ordinary merit review of the decision that is the subject of the appeal. The Court on appeal is not to merely substitute its view for that of the original decision maker. It is only to depart from that decision where cogent reasons exist. ‘Cogent’ means ‘compelling, convincing, powerful’. Second, in the context of this appeal, the decision being appealed against is the decision of the Registrar, affirmed by the committee, to cancel the respondent’s licences, and the court is required in conducting the appeal from that decision, to give due weight not only to the decision but to the reasons for it.
[35] [2016] SASCFC 72 at 315.
The Full Court in Commissioner for Consumer Affairs v McMurray[36] set out what was meant by a cogent error. After quoting the above passage, Blue J held.[37]
The difference to be accorded to the underlying decision on an appeal governed by section 42E depends on the nature of the asserted error in the decision and reasons for the decision.
Where the asserted error relates to the exercise of a discretion or the making of an evaluative judgment or policy decision, it will be necessary for the appellant to establish a process or outcome error of the type identified by the High Court in House v The King,[38] and the mere establishment of a process error will not avail the appellant unless the appellant also demonstrates there should have been a different outcome.
[36] [2017] 128 SASR 1.
[37] Ibid [44].
[38] (1936) 55 CLR 499 at 505-506.

The reference to House v The King is a reference to a well known passage in which the High Court sets out the circumstances in which an appellant Court may overturn a decision involving the exercise of discretion. In a joint judgment, Dixon J (as he then was), Evatt J and McTieran J held:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed, and the appellant court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellant court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court in first instance. In such a case although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The above authorities suggest that at least in the present case, the appellant must show either a demonstrable error of law or fact by the Assistant Commissioner, or an error in the exercise of his discretion of the type described in House v The King. In each case, the error must be shown to have led the Assistant Commissioner into making a wrong decision in the sanction imposed upon the appellant.
In summary, before I can interfere with the decision of the Assistant Commissioner, and the sanction imposed, the appellant must either identify:
(a)evidence, or significant matters of fact, that have been overlooked; or
(b)extraneous matters that were wrongly considered; or
(c)that the Assistant Commissioner acted upon evidence that was inconsistent with the agreed facts.[39]
[39] House v The King (1936) 55 CLR 499 at 504-505.
The Appellant’s case
The appellant submits that the sanction imposed by the Assistant Commissioner is excessive, and that there are four errors to be inferred from the decision making process and the outcome, that result in cogent reasons for the sanction to be rescinded. These are the errors set out in the Notice of Appeal.
In relation to the sanction, it is not disputed that the reduction in rank has led to severe financial consequences for the appellant. At September 2020 he had plans to retire in 2023 when he turned 60, due to the impact of a number of minor injuries suffered during his 40 years of policing.[40] The appellant sets out that his reduction in rank will cause a loss of income, including loss of overtime payments, of approximately $20,000.00 per annum.[41] In addition, upon retirement his plan was to have his long service leave balance paid out as a lump sum. The reduction in rank means that his balance, 215 days, would be paid at the lower pay rate of Senior Constable, leading to a loss of approximately $9,000.00.[42] In summary, if the appellant continues with his plans to retire in 2023 he will suffer a loss of salary over 14 months, in addition to the loss on his long service leave payment. This is estimated to be a total loss of approximately $30,000.00. This loss has caused the appellant to re-consider his retirement plans. If the appellant works beyond May 2023, he will continue to suffer a loss of approximately $20,000.00 per annum until retirement.[43]
[40] Affidavit of the appellant (FDN 2) at [35].
[41] Affidavit of the appellant (FDN 2) at [37]-[41].
[42] Affidavit at [42]-[43] (FDN2).
[43] Affidavit at [46]-[50] (FDN2).
The appellant argues that the consequences of the reduction in rank are a ‘…financial impost so grave that it indicates error on the part of the Assistant Commissioner…’ and suggests that the appellant was being punished.[44]
[44] T4-12.
In this regard the appellant sets out detail of the loss he will incur under the sanctions imposed, specifically in relation to accrual of benefits in lump sum payments. In the course of the appeal, I inquired about the affect on the appellant’s pension,[45] which is deposed to be a ‘pension scheme’. The impact of the current reduction in rank of the appellant has a material and negative effect on the benefit the appellant will derive for every year of his retirement by way of the operation of the pension scheme[46] as he will be paid at the level of a Senior Constable. It is apparent that the Assistant Commissioner did not turn his mind to this further effect on the post-retirement situation of the appellant. He did not state reasons for assessing such an impact as a suitable sanction for the admitted allegations when providing his reasons for the sanctions imposed.
[45] T18.3.
[46] Exhibits DC-10 and DC-11, at pp105, 106 [FDN2].
In addition to the loss of salary and retirement benefits, by transferring the appellant to another District for 13 months, he is prevented from automatically returning to the position he held at his usual District at the expiration of the transfer period.[47] Again due to the brevity of his reasons it is not known if the Assistant Commissioner took account of the appellant’s family reasons for remaining in his usual District, or at least being able to return to that District. Given the specific request, and the impact upon the applicant’s wife, it could be considered that the transfer of the appellant, as decided, amounts to punishment.
[47] Section 26(2) of the PCD Act.
Issues on Appeal
(i)The Purpose of the Disciplinary Proceedings (PCD Act)
The long title of the PCD Act describes its purpose to be, to provide for the resolution of complaints made in respect of police officers, and to make provision in relation to disciplinary proceedings. In this matter there is no dispute that the processes that saw the appellant before the Assistant Commissioner for sanction were conducted other than in a proper manner, and as required by the provisions of ss 12, 14, 21, 22, 24 and 25 of the PCD Act. No issue was raised regarding how the matter was brought before, and conducted by, Magistrate Smart sitting as the Tribunal (apart from his error in reading out the agreed amended allegations).
In those circumstances there is no need to consider those steps in more detail than I already have. It is however important to consider the purpose of police disciplinary proceedings, and therefore the extent, and nature of any sanction to be imposed for a breach of the code of conduct.
In Police Board v Morris,[48] Justice Brennan adopted what had been said in the Full Court of Victoria regarding Victorian legislation that provided for discipline of police:[49]
The Legislation is designed to regulate and control the activities of what is a disciplined force in such a way as to achieve an effective organisation in which the members are to perform their duties in conformity with a codes so as to afford protection to the community and allow the disciplining of members who breach that code.
[48] (1985) 156 CLR 397.
[49] Ibid at p412.
Justice Brennan then continued in relation to police disciplinary legislation generally: [50]
The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means – the primary and usual means – of ensuring that individual police officers do not jeopardise public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and efficiency.
[50] Ibid.
This was described by Thomas JA in the Queensland Court of Appeal as follows:[51]
[42] The purpose of misconduct and discipline proceedings within the police force has been identified in a number of decisions including Hardcastle v Commissioner of Police,[52] Police Service Board v Morris[53] and Re Brown.[54] The protection of the public, the maintenance of integrity in the performance of police duties are the primary purposes of such proceedings….
[43]…that is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the Misconduct Tribunal (Appeal Court) in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force.
[51] [2000] QCA 501 at [42]-[43].
[52] (1984) 53 ALR 593.
[53] (1985) 156 CLR 397, 411.
[54] [1996] 2 QdR 8.
In considering the predecessor of the PCD Act,[55] which too had the role to make provision in relation to disciplinary proceedings, Judge Beazley in H v Commissioner of Police,[56] concluded that the purpose of such legislation was ‘… to promote public confidence in the police force...’. He opined that it did so by various processes including the disciplinary provisions in the PCD Act.
[55] Police (Complaints and Disciplinary Proceedings) Act 1985 (SA).
[56] [2016] SADC 52 at [91].
This assessment of the purpose of police disciplinary proceedings is analogous with disciplinary proceedings in relation to other professions. That is, whilst there is some need to sanction the individual for wrongdoing, that sanction is primarily regarded as part of the need to protect the community. In Craig v Medical Board of South Australia. (Craig) [57] Doyle C J (with whom Williams and Martin JJ agreed) said:
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the Criminal Law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practice from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
[57] (2001) 79 SASR 545 at [41].
Chief Justice Doyle continued by noting that at times the protection of the community may require removal of the right of a person to practise their profession; or the imposition of a fine may be required to ensure a person appreciates the seriousness of their breach of discipline. It is in the public interest to demonstrate that the profession does not allow certain conduct. He concluded by stating:
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that might be called for.[58]
[58] Ibid at [46]-[48].
The Full Court’s decision in Craig was considered recently by the Court of Appeal in Bhoola v Optometry Board of Australia (Bhoola) where, when considering the period of disqualification required for an optometrist it was confirmed that the decision was based upon a period ‘… necessary for the protection of the public from the practitioner’s conduct…’.[59]
[59] [2022] SASCA 20 at [20].
Having considered previous decisions the Court stated:[60]
The assessment as to the appropriate period of disqualification can involve a consideration of many factors. However, it must always be borne in mind by the Tribunal or Court imposing sanctions that the purpose of disciplinary proceedings is the protection of the public by making appropriate orders.
[60] Ibid at [21].
In assessing penalty in this matter, the Assistant Commissioner was therefore required to consider foremost the protection of the public. This requires a close review of the extent of the appellant’s breach of discipline, taking account of the nature of the General Order that he admitted breaching. That General Order is set out in the Summary of Allegations.[61] It involves supervising police officers providing a safe work environment, free of negative workplace behaviours, where all police officers are required to treat their co-workers with dignity and respect. Respectful behaviour is set out to include ‘… interacting with others in a professional, courteous and polite manner that does not interfere with the emotional well-being and safety of others…’.
[61] Pages 82-84 of Exhibit DC-4 (FDN 2).
The purpose of the respectful behaviour provisions of the General Order are not in dispute. A police force that effectively protects the community must be made up of officers who are emotionally stable. Those officers should not be subject to harassment and should be able to go about their work without fear of being treated poorly, and without respect from fellow officers. Again, that principle is not controversial. Nor is it that, respectful behaviour policies are an important part of having police officers in the community, who can work together to protect the public. In Whickham v Commissioner of Police,[62] Olsson J. described this as follows:
….the Commissioner, in exercising disciplinary powers, is fairly entitled not only to look at the internal maintenance of good order, discipline and efficiency within the police force, but also to the need to ensure that all reasonable steps are taken to ensure the good standing of the force in the eyes of the community.
[62] [1997] SASC 6497.
In relation to consideration of penalty, the respondent’s counsel at the commencement of the Appeal sought to tender an Executive Summary of a Final Report entitled ‘Change in perceptions, experiences and practices that support gender equality and cultural change in SAPOL’ dated March 2020 (the EO report).[63] I accepted the EO report into evidence against the opposition of the appellant, on a challenge of relevance. The EO report concludes an Independent Review into ‘Sex Discrimination, Sexual Harassment and Predatory Behaviour in SAPOL’ undertaken by the then Commissioner for Equal Opportunity, Dr Niki Vincent. In seeking to tender the EO report, the respondent’s counsel submitted that it shed light on the processes for cultural change that SAPOL has been undertaking since 2016, and therefore why the Commissioner will no longer tolerate the type of behaviours engaged in by the appellant. He also asked me to take judicial notice of the ‘Me Too’ movement and its impact in creating significant change in workplace cultures.
[63] Exhibit R1.
I had at the time, and continue to have, concerns with those submissions and the tender of the EO report. The matter before me is not one of sexual harassment or predatory behaviour. No allegations of such behaviour are part of the admitted facts that form the basis of the appellant’s breach of the code of conduct. It has been agreed that there was no sexual impropriety in relation to the appellant’s behaviour. As I will address later, the only time the word predatory was used was in the complainant’s Impact Statement. This was not an admitted allegation before the Assistant Commissioner. I am of the view that by relying on the EO report the respondent is seeking to justify the sanction imposed by the Assistant Commissioner on an incorrect basis, and on a basis that was not before the Tribunal. The appellant admitted that he had not behaved in a respectful way towards the complainant and that this had interfered with her emotional well-being. This is the extent of the allegations upon which the penalty was to be assessed. The sanction to be imposed was to protect the community relative to the admitted allegations, it could go no higher, and could not be based on matters that had not been admitted. To do otherwise would be fundamentally unfair to the appellant, and an error in the exercise of the Assistant Commissioner’s discretion.
(ii)The Standing of an Impact Statement by a Complainant
There is no specific provision in the PCD Act that provides for the Assistant Commissioner to receive an Impact Statement from a complainant in the process of determining the sanction to be imposed upon a designated officer for a breach of discipline. The appellant argues that the complainant had no standing to make any submission. This was particularly the case in relation to the statement she did make, that could only go to penalty, since the appellant had admitted to the allegations of breach of discipline.
The appellant’s submission is supported by the disciplinary scheme set out in the PCD Act. Once a complaint is made, it must first be assessed by SAPOL’s Internal Investigation Section (IIS). If the complaint is not of the type that can be appropriately dealt with by management resolution, then formal proceedings are commenced, pursuant to Part 4 of the PCD Act[64], by the Commissioner presenting a Notice of Allegation to the Tribunal.[65] It must then be served in person upon the designated officer,[66] who then has 21 days to admit or deny the allegations in the Notice.[67] In this matter, due to negotiations, the appellant did not admit the allegations within that period, and this led to him being required to formally appear before the Tribunal, to acknowledge his admission of the amended allegations. If he had admitted the allegations in the initial Notice, then the step of appearing before the Tribunal would not have been required, and the Registrar of the Tribunal would have sent the complaint directly to the Commissioner of Police for consideration of sanction.[68]
[64] The PCD Act at s 14.
[65] The PCD Act at s 21(1). In this matter this was the initial Notice of 7 October 2021.
[66] The PCD Act at s 22(7) and Reg 10 of the Regulations.
[67] The PCD Act at s 24 and Reg 12(1) of the Regulations.
[68] Reg 12(2) of the Regulations.
In forwarding an admission to the Commissioner, the Registrar of the Tribunal is required to also send the Commissioner any written statement or request made by the designated officer and all other relevant papers.[69] The Commissioner is then required to consider any submissions in mitigation made by the designated officer which can be by written statement attached to the admission or by oral submissions made before the Commissioner, before making a decision as to sanction.[70] The regulations do not provide for the provision of any type of statement or submission to be provided by a complainant, either before, but clearly not after the Tribunal has forwarded an admission and all other papers to the Commissioner for determination of sanction.
[69] Ibid.
[70] Reg 12 of the Regulations.
The appellant argues that the statutory power to sanction a designated officer pursuant to s 26 of the PCD Act is only enlivened after there is an admission of allegations before a Tribunal hearing, or after a hearing that leads to the allegations being proved. In this matter sections 24 and 25 of the Act had a combined effect as a result of the negotiations that led to the appellant’s late admission to amended allegations. The appellant argues that in the absence of any indication by Magistrate Smart as to the seriousness of the breach of discipline, the Assistant Commissioner was bound to consider only the facts admitted in the Amended Notice of Allegations. I agree with this assessment of sections 24, and 25 of the PCD Act. By admitting the allegations the appellant has not called evidence from other officers present at the team event on 14 September 2020, nor required the complainant to present for cross-examination. It would be against all principles of procedural fairness if, having admitted certain agreed allegations, the appellant was to be later required to respond to a statement from the complainant introduced after a decision to admit allegations had been made, and after the opportunity to cross-examine her had passed.

This is particularly so in this case where the Impact Statement, as I have set out above, goes well beyond the events admitted by the appellant and introduces concepts of the appellant acting in a predatory way; pinning her down on the bed; and a large amount of irrelevant, but distressing material as to how she was treated by SAPOL after making the complaint. While the appellant was offered the opportunity to make submissions at the sentencing hearing, no process is set out in the PCD Act or the regulations that allows for the complainant to be tested on her statement by cross-examination or otherwise. This may be one of the reasons there is no provision in the Act or the regulations for a complainant to make an Impact Statement.
The appellant also argues that the complainant is not a party to the proceedings in which he was to be sanctioned pursuant to s 26 of the PCD Act. Once remitted, those proceedings were between the appellant and the respondent. It is submitted that in those circumstances, where there is no statutory right to receive such a statement, the Assistant Commissioner was in error in receiving the Impact Statement. In this regard the appellant argues that the Impact Statement attempts to act as a Victim Impact Statement (VIS) used in criminal proceedings, without the same statutory framework governing its admissibility and use. Briefly, s 14 of the Sentencing Act 2017 sets out that a VIS can be provided by a person who has suffered injury, loss or damage as a result of an indictable offence or a prescribed summary offence. These are serious offences where the maximum penalty is 2 years imprisonment[71] or where serious harm has been caused to another person.[72] The VIS is described in s 14 ‘… as a written personal statement about the impact of that injury, loss or damage on the person or the person’s family.[73]
[71] Criminal Procedure Act 1921 s 5(2) and s 3.
[72] Sentencing Act 2017 s 14(7).
[73] Section 14(1) of the Sentencing Act 2017.
The introduction of the VIS resulted from a Parliamentary Inquiry established in August 1979 into the needs of victims of crime. The inquiry and its aftermath resulted in the South Australian Government promulgating a Declaration of Rights for Victims of Crime, in late 1985. This included a principle that a victim was entitled to have the full effects of a crime upon them made known to the sentencing court, by a VIS. In 1987, the Attorney General, set out that the provision of a VIS was justified upon the basis that it may reduce feelings of retribution; reduce any alienation and dissatisfaction victims feel in their contact with the criminal justice system; and would assist the court in making compensation and restitution orders. The first legislation that allowed for the provision of a VIS was proclaimed in January 1989. Since that time there has been several changes to the way in which a VIS is provided to the court, and in what circumstances. However the SA Government’s Victims of Crime website continues to set out that the VIS gives a victim the opportunity to tell the sentencing court how they have been impacted by a crime including physically, emotionally, financially and socially.[74] It is also noted that the VIS is used to assist the sentencing judge to decide the penalty to give an offender who has committed a crime.
[74] voc.sa.gov.au.
The manner in which VIS were introduced and their purpose at that time, as it continues to be today, is very much related to criminal offending and its many complexities. In my opinion the purpose of a VIS does not translate to an Impact Statement in administrative proceedings, where the purpose of any sanction is protection of the public rather than in assisting a victim to be heard and considered in criminal proceedings.
The appellant accepts that even without the provisions of the Sentencing Act in relation to a VIS, at common law a sentencing court can consider the impact of a commission of a crime upon a victim.[75] However, it must be taken into account again, that sentencing an offender encompasses a number of factors that are quite different to the purpose of police disciplinary processes. The Sentencing Act sets out that the matters to be considered when sentencing include appropriate punishment; personal and general deterrence; the rehabilitation of the offender; and protection of the community together with other factors set out in s 11. The appellant argues that in the criminal law the impact of a crime upon a victim is relevant to the offender’s punishment, and at times an expression of remorse can impact the possibility for rehabilitation.[76]
[75] R v Webb [1971] VR 147, 150-151.
[76] R v M, G [2016] SASCFC 116 at [133].
At common law a judge when sentencing an offender can have regard to any detrimental, prejudicial, or deleterious effect that may have been produced on the victim by the commission of the crime.[77] However, as set out above, this is within the clear boundaries of the purpose of sentencing in criminal law offences.
[77] R v Webb [1971] VR 147, 150-151.
It is still a well established principle of sentencing that facts cannot be taken into account in a way that is adverse to the interests of an offender at sentence, unless those facts have been established beyond reasonable doubt.[78] Any aggravating feature in a VIS must be proved beyond reasonable doubt, and this includes any injury or loss beyond that ordinarily expected of the offence charged.[79] This principle also applies at common law, where it has been stated that a sentencing judge cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[80]
[78] R v Olbrich [1999] HCA 54.
[79] R v Tuala [2015] NSWCCA 8.
[80] The Queen v De Simoni (1981) 147 CLR 383 at 389 per Gibbs J.
These sentencing factors make it clear why in a disciplinary matter, such as those heard pursuant to the scheme established under the PCD Act, a person facing sanction is not provided with procedural fairness when a complainant’s Impact Statement is produced after the decision is made to admit the allegations of fact. This is particularly so where the Impact Statement goes beyond the agreed allegations.
The statutory scheme set out in the PCD Act and the Regulations does not contain any provisions that provide for a complainant to provide an Impact Statement at any stage in proceedings. As its name suggests, the statement in this matter sets out the impact of the appellant’s breach of conduct upon her. However, the appellant had already admitted the allegation that his behaviour, in breaching respectful behaviour guidelines, had interfered with the emotional well being of the complainant. Nowhere in the PCD Act or the Regulations is it suggested that the circumstances of those allegations as admitted, could be expanded upon as part of the penalty process. In my opinion, this is because an Impact Statement does not fit within the processes for the admission, or hearing of allegations contained in sections 24 and 25 of the Act. By those provisions all evidence regarding the breach of conduct is to be before the designated officer before he or she makes the decision to admit or challenge the allegations. That obligation is the clear intention of sections 23, 24, and 25 as read together. By admitting the allegations the designated officer waives any right to challenge the facts by cross-examining the complainant.
In the absence of any statutory provision providing for the complainant to produce evidence as part of the penalty process I find that it is a denial of procedural fairness to allow new material to be introduced by a complainant at a hearing held pursuant to s 26 of the PCD Act. It undermines the negotiation process offered to the designated officer regarding the admission of allegations as provided by s 24 of the Act. In my opinion the respondent is bound by the allegations and facts that form the basis of an admission and/or the finding of the Tribunal pursuant to s 25 of the PCD Act. I agree with the appellant’s submission that in relation to a finding under s 25, the fact that the Tribunal can, when remitting the matter for sanction, indicate to the Commissioner their assessment of the seriousness of the breach of discipline, leads to the conclusion that further material regarding the factual basis of the allegations should not be permitted at the time that imposition of sanction is considered. To do so subverts the Tribunal’s position under s 25(3) of the PCD Act.
I am of the view that there is no basis upon which the complainant’s Impact Statement should have been received by the Assistant Commissioner as part of the process of determining the appellant’s sanction. In my opinion, it appears that the Assistant Commissioner was adopting the procedure for a VIS, in criminal law sentencing. However, that process is a creature of statute enshrined in the Criminal Law. The PCD Act sets up a completely different regime for managing breaches of conduct by police officers and ensuring that they are dealt with pursuant to the overriding purpose of protecting the public. On the basis of the reasons I have set out, I am of the view that the Impact Statement should not have been sought and considered by the Assistant Commissioner. I find that he was in error in taking the Impact Statement into account in determining the appellant’s sanction pursuant to s 26 of the PCD Act.
(iii)The content of the complainant’s Impact Statement
Despite my finding in relation to the standing of the complainant’s Impact Statement I turn to consider the appellant’s challenge that the statement contained many irrelevant and prejudicial facts and assertions that should not have been considered by the Assistant Commissioner in his determination of penalty. It is submitted that the Assistant Commissioner fell into error in taking the material contained in the Impact Statement into account. The material falls into two categories, prejudicial and irrelevant.
(a)Prejudicial Material
I have already outlined much of the content of the Impact Statement however there are a number of statements made by the complainant that go well beyond the agreed allegations, and which I am of the opinion had the capacity to influence the Assistant Commissioner, given the distress the complainant says those matters had caused her. These include that:
·she suffers from ongoing nightmares of the appellant over the top of her and pinning her down so she was unable to move;
·the appellant’s actions had led to him being investigated for predatory behaviour;
·both inside, and out of, work hours the complainant would constantly think of being pinned underneath the appellant;
·she suffered ongoing fear and terror as her supervisor had taken advantage of her;
·the appellant was a perpetrator; and
·she described speaking to her previous supervisor regarding what to do about me being pinned down on a bed by the appellant.
Each of these statements go beyond the amended allegations admitted by the appellant, and his understanding that the complainant had agreed that there was no sexualised behaviour or sexual harassment as part of his actions towards her. Nowhere in the agreed allegations was it stated that the appellant’s behaviour was predatory or involved him pinning the complainant to the bed.
The allegation that the appellant was pinning the complainant down, is not only contrary to the allegations that were admitted, but also contrary to the complainant’s own affidavit evidence sworn on 30 October 2020.[81] The complainant in the same paragraph confirms that the appellant during the second incident was talking about their work issues.
[81] Para 25 of Exhibit DC-3 (FDN 2).
The allegations made by the complainant in the Impact Statement regarding what she described as predatory conduct are very serious. However, again they are not consistent with the admitted allegations nor the complainant’s earlier affidavit. They were prejudicial and should not have been before the Assistant Commissioner. The appellant acknowledges that he was intoxicated and then sentimental towards his staff, including the complainant. He does not admit any sexual misconduct. He denied following her to a bedroom or straddling her on a bed. The allegations were amended by the respondent to remove those allegations.
The Assistant Commissioner has only provided very brief reasons for the sanction he imposed, noting particularly the seriousness of the appellant’s behaviour and the difference in rank between him and the complainant. It is my opinion that by noting that he had received the Impact Statement, it would be difficult for the Assistant Commissioner to exclude the very emotive language used by the complainant and which takes the allegations of misconduct much higher that that admitted by the appellant. In a comparable criminal matter, the New South Wales Court of Criminal Appeal found that if a VIS is received and considered by the court it should refer only to the impact on the victim of the offence before the court.[82] The Court found that although the VIS itself was not objected to, the sentencing judge erred in making findings of fact on some of the supporting material provided by the Crown which went outside the agreed facts.[83] They stated:
… the requirements of procedural fairness commend that when a judge intends to go outside the agreed statement of facts … he or she should inform the parties of that intention in order to give them an opportunity to deal with it.[84]
[82] R v H [2005] NSWCCA 282.
[83] Ibid at [57].
[84] Ibid at [59].
This is my understanding of how a VIS is used by sentencing judges in this state. They cannot be used to expand the agreed facts for sentencing purposes. The prejudicial material in the complainant’s Impact Statement causes her version of what occurred to go well outside the agreed allegations. The Impact Statement pitches the appellant’s poor behaviour at much higher level than was admitted. In my opinion, having acknowledged the Impact Statement, the Assistant Commissioner must have had regard to the expanded factual basis of the appellant’s offending contained therein.
(b)Irrelevant Material
The same applies to the over four pages of concerns the complainant raises in relation to her treatment by SAPOL after lodging the complaint. I have already set out some of those concerns. Again, the complainant uses emotive language as she describes her treatment over the 17 months since the incident. She uses the descriptor ‘horrific’ on several occasions. She describes being totally devastated by SAPOL’s actions towards her. The complainant outlines the failures of SAPOL’s officers in relation to being:
·put under pressure to move from her usual Station to avoid any dealings with the appellant;
·advised to keep her report of the complaint confidential meaning she could not seek support from fellow police officers who were her closest friends;
·unable to properly farewell her colleagues and friends at her usual Station when being moved to another Police Station;
·transferred to another Police Station with no staff there, including her supervisor, having knowledge of her arrival, leading to her feeling alienated;
·upset with the Senior Sergeant at the station she was transferred to, and crying when finally telling him the reasons for her move;
·the lack of communication from her new District Managers and Senior Officers regarding her situation, and what was happening to her, and was still continuing to happen in May 2021;
·the lack of notification from SAPOL that the appellant was being moved from his position at his usual Police Station to another, she learning of this from a former colleague;
·the lack of understanding from SAPOL that the fact that the appellant remained on the same roster line as her while at his new posting would cause her stress if she had to attend at that station with someone she had arrested. This was described by the complainant as follows:
The absolute lack of awareness in this situation and the constant stress the organisation has put me through, to simply not think that this was a horrific idea is absolutely beyond me.[85]
·the failure of SAPOL to refer the incident to the EAS when it first occurred so that she could be contacted and assisted. Contact with EAS did not occur until October 2021 and only upon the complainant instigating it;
·questioned by an investigating officer where an insensitive suggestion was made that the complainant may have misinterpreted the appellant’s actions;
·SAPOL’s failure to advise the complainant of the Tribunal outcome on 4 February 2022 for several days causing her to be ‘incredibly upset and disappointed’ with the way SAPOL had conducted themselves;
·put under unnecessary pressure to complete the Impact Statement in a short time frame;
·the lack of checks on her welfare during the whole process;
·left totally devastated by the ‘horrific process’ she has been put through by SAPOL which impacted the complainant’s mental health and wellbeing.
[85] Page 96 of Exhibit DC-7 (FDN 2).
These statements in the Impact Statement are directed fairly and squarely at SAPOL and the complainant’s significant concerns with how her complaint was managed. Those concerns cannot be sheeted home to the appellant. The respondent’s poor management of the complaint process, and in particular the complainant herself, are far removed from the two incidents that make up the breach of the Code of Conduct. The respondent’s manner in handling the complaint is not a natural or probable consequence of that breach. That is something the respondent is responsible for.
I accept that it would be a natural consequence of the appellant’s breach of the code of conduct, and the complaint, that the appellant’s conduct would be investigated by the respondent. Similarly, I accept it would be a natural consequence of the breach for the complainant to be interviewed and provide detail of what had occurred, and even tested on her allegations. However, in my opinion SAPOL’s alleged horrific conduct in the way it conducted the investigation and the complainant’s transfer, including the lack of pastoral care, are not causally related to the admitted allegations. They are irrelevant to the consideration of the appellant’s sanction for breach of the Code of Conduct.
In my opinion none of these matters raised in the impact statement, should have been considered by the Assistant Commissioner in determining an appropriate sanction. Again however, without detailed reasons from the Assistant Commissioner it is impossible to know whether he considered all or only parts of the Impact Statement. He indicated that he had been provided with it, and as he made his decision immediately after submissions finished one can only infer that he had read the Impact Statement and already made up his mind in relation to the material contained therein.
The Assistant Commissioner’s manner in delivering his reasons for sanction, supports the principle that providing detailed reasons for a decision is an incident of natural justice and a fundamental of good administration. The failure to provide any, or any sufficient reasons, may also amount to an error of law.[86] As in this matter, for the appellant process to work satisfactorily the reasons have to allow the appeal court to understand why a decision has been reached at first instance. Each factor that was taken into account should be identified and explained. This should be done in a way to enable the appeal court to readily analyse the Tribunal’s reasoning for a decision, in this matter, on sanction.
[86] See Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37 at [127].

In this case this was not done. The Impact Statement, which contained prejudicial and irrelevant material was before the Assistant Commissioner. An Impact Statement that not only contained allegations that were a departure from the agreed amended allegations, in particular in relation to the sexual nature of the appellant’s behaviour, but also made very serious criticisms of SAPOL’s response to the complaint. The Assistant Commissioner should have set out the extent to which he took account of the Impact Statement and any parts that he rejected. In not doing so, the inference can only be that in sanctioning the appellant he took account of all matters raised by the complainant. In my opinion that would be a serious error, and provided no judicial fairness to the appellant. The clear risk is that the appellant was sanctioned for sexually motivated actions that were never agreed or proved; and for the actions of SAPOL that took place after the complaint, including the lack of pastoral care provided to the complainant.
In my view the Assistant Commissioner was in error and did not provide procedural fairness to the appellant firstly in accepting the Impact Statement and then giving consideration to it in the sanction process. I find that for the reasons I have set out, these errors are cogent reason to rescind the decision of the Assistant Commissioner.
(iv)Decision based on Incorrect Factual basis
I have already dealt with the incorrect factual issues in considering the detail contained in the Impact Statement that was before the Assistant Commissioner. There were also several other incorrect facts before him, these were:
(a)the incorrect factual basis of the second incident as set out by Magistrate Smart sitting as the Tribunal, on 4 February 2022, namely that the appellant had followed the complainant into a bedroom. This was contained in the transcript of the Tribunal hearing forwarded to the Assistant Commissioner.
(b)the use of the word guilty by Magistrate Smart in relation to the appellant’s admission of the allegations before him, in what are administrative proceedings.
(c)that the actions of the appellant had made the complainant feel very uncomfortable as set out in the concluding paragraphs of the Summary of Allegations, when it had only been admitted by the appellant that it was the first incident that made the complainant feel very uncomfortable.
·that a Notice of Likely Penalty served with the original Notice and was not amended or provided again after the admission of the amended allegations, those being the allegations the sanction was to be applied to.
I have already dealt with the difficulty of determining the basis upon which the Assistant Commissioner decided upon the sanction in this matter. These factual errors were before him, and in combination with the irrelevant and prejudicial material contained in the Impact Statement I find that if they were taken into account that this was an error, and that the appellant was sanctioned on a wrong factual basis. As all of the documents containing these errors were forwarded to the Assistant Commissioner,[87] it can be inferred that he considered them in coming to his decision on sanction. He did not indicate in his brief reasons that he had disregarded the factual errors.
[87] As set out in the Notice of Proceeding, Exhibit DC-4 (FDN 2).
I find that the Assistant Commissioner based his decision on an incorrect factual basis, both in relation to the Impact Statement and the other facts, and in doing so he committed an error in the exercise of his discretion and this is a cogent reason why the decision of the Assistant Commissioner should be rescinded.
(v)Sanction was imposed for purposes of punishment
The lack of detailed reasons again means that there is nothing before the court to assist in determining the basis upon which the Assistant Commissioner determined the sanction that he imposed. It is not clear whether he had taken into account the fact that the appellant had already been transferred on 30 May 2021 from the position he had held as a Supervising Sergeant at his usual Station and that since that date, for over nine months, he was subject to a work restriction that prevented him working at higher duties.[88] That is, that from 30 May 2021 he had already been the subject of a work sanction.
[88] This was pursuant to the Administrative Order dated 28 May 2021, Exhibit SJD-7 (FDN 11).
The Assistant Commissioner began what was described as a sentencing hearing by stating:
… the reason we are here D is because you have pleaded guilty in the Police Disciplinary Tribunal to a breach of the Code of Conduct. The purpose of this hearing is to consider the circumstances and nature of your conduct to enable me to determine an appropriate punishment …[89]
[89] Lines 25-30 of Exhibit SJD-10 (FDN 11).
He later expanded by stating:
… the purpose in fixing a punishment is threefold. The reasons are to maintain public confidence in the Police, to maintain the self-esteem of Police Officers generally and to promote efficiency within SAPOL. So in fixing a punishment I will have regard to those factors and determine a punishment that will contribute towards achieving these goals.[90]
[90] Lines 53-58 of Exhibit SJD-10 (FDN 11).
The Assistant Commissioner then noted the basis of the appellant’s plea of guilty,[91] and described his conduct as ‘very serious’.[92] However, he also acknowledged that the penalty had to fit the breach and the appellant’s circumstances.
[91] Lines 76-96 of Exhibit SJD-10 (FDN 11).
[92] Line 102 of Exhibit SJD-10 (FDN 11).
Having made those comments, and those about the difference in rank between the complainant and the appellant, the Assistant Commissioner proceeded to deliver his ruling on sanction. This only noted the reduction in rank, without any mention of the significant financial consequence of that. I note a reduction in rank is regarded of itself as being a significant penalty and more significant than a suspension.[93]
[93] H v Commissioner of Police [2016] SADC 64 at [23].
The appellant accepts that his behaviour was completely unacceptable and he acknowledged that at an early stage when first interviewed,[94] despite having limited memory of events due to his significant level of intoxication.[95] During his interview with the Diversity and Inclusion Branch officers, the appellant did not attempt to deny the behaviour despite his limited memory, and was keen to know exactly what had occurred, without challenging the complainant’s version of events. He was clearly relieved that the two incidents were of a ‘nonsexual nature’. They were not sexually motivated.
[94] Lines 1889-1915 of Exhibit DC-1 (FDN2).
[95] See Exhibit DC-1 (FDN2).
Having not challenged that the two incidents had occurred, and admitting them at an early stage, the appellant argues that the sanction imposed went beyond what was required to meet the purpose of police disciplinary proceedings. He argues that the sanction imposed by the Assistant Commissioner was too harsh and disproportionate for what was required to meet the purposes of the PCD Act. In the circumstances he argues that the sanction imposed was for the purpose of punishing him. This is particularly the case given the level of financial loss he will suffer, (at least $30,000) is well in excess of fines seen in the criminal courts for serious criminal offending. It is also well in excess of the prescribed fine or prescribed total reduction in salary allowed under the regulations of $1,250.00.[96]
[96] Reg 13 of the Regulations. Although it is to be noted that s 26(1)(f)(ii) of the PCD Act provides for a reduction in rank ‘whether or not the loss of income resulting from the reduction exceeds the amount prescribed for the purposes of paragraph (h)’ (being reduction in remuneration for a specified amount).
I have already considered the purpose of the PCD Act and that the focus is on protection of the community rather than necessarily punishing for a breach of the Code of Conduct. This was considered by the Court of Appeal in Bhoola where it was stated:[97]
….the purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise form practising or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
[97] [2022] SASCA 20 at [17].
The respondent, while not taking issue with the purpose of disciplinary proceedings argues that the Assistant Commissioner viewed the appellant’s conduct as very serious particularly given the disparity between his rank as a Sergeant and that of the complainant as a Constable. In the circumstances, he imposed a sanction that was measured and reasonable and one that the appellant was aware could be a possibility. He also argues that the Assistant Commissioner was best placed to determine what was the most appropriate sanction to:
·   promote the maintenance of public confidence in SAPOL;
·   promote the self-esteem of other police officers; and
·   encourage efficiency within SAPOL.
It is submitted that the sanction is targeted to meet those aims, and that any reduction in salary or other financial consequence is simply a result of the sanction and underpins deterrence and therefore protection of the public.
While that may be the case, it is clear from the words of the Assistant Commissioner that he saw his role was to punish the appellant. The hearing before him was described as a ‘sentencing hearing’ pursuant to s 26 of the PCD Act.[98] The word ‘sentence’ however, does not appear in s 26. The section says no more than that ‘the Commissioner may take action, or order the taking of action’ where a designated officer has admitted a breach of discipline. In s 25 of the PCD Act it is set out that after there is a finding of a breach of discipline the Tribunal is to remit the proceedings to the Commissioner for ‘the imposition of sanctions in accordance with section 26’.
[98] Lines 2-3 of Exhibit SJD-10 (FDN11).
The term ‘sentencing’ is primarily used in the criminal context. In Veen v The Queen (no 2), Mason CJ, Brennan, Dawson and Toohey JJ said:[99]
….sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment.
The purposes of criminal punishment are various; protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
[99] (1988) 164 CLR 465 at 476.
In R v White; ex parte Burns[100] the High Court held that administrative tribunals charged with the responsibility of hearing and determining breaches of discipline do not sit as a court of law and that disciplinary offences are not criminal offences. In Public Service Board of NSW v Etherton[101] it was set out that the object of discipline proceedings is not to punish or extract retribution, but to protect the public, maintain proper standards of conduct by members and protect the reputation of the organisation.
[100] (1963) 109 CLR 665.
[101] (1985) 1 NSWLR 430 at 432.
It is not in dispute that the Commissioner has the power to take action against a designated officer and impose sanctions, but this is for the purposes of the PCD Act and not to punish the officer.[102] Concepts of retribution and other aspects of sentencing do not fall within the purpose of the PCD Act. They are matters solely considered in sentencing for criminal offending.[103] As McHugh J stated in Ryan v The Queen,[104] not only must the community be satisfied that the offender is given his just desserts, it is important that a victim also feels that justice has been done. This again is not the purpose of the PCD Act. There is no place for a sentencing hearing, in the criminal law sense.
[102] That purpose being ‘to provide for the resolution of complaints and make provision in relation to disciplinary proceedings.’ Long Title PCD Act
[103] As set out in Division 2 of the Sentencing Act 2017.
[104] (2001) 206 CLR 267 at [46].
The Assistant Commissioner used the term ‘punishment’ on five separate occasions during the hearing on 3 March 2022 in describing the purpose of that hearing.[105] At other times he referred to the penalty to be imposed. Although this is a stronger word than ‘take action’ or ‘impose sanction’ used in the PCD Act and regulations, the appellant accepts by his submissions that for a purely protective purpose a sanction could be imposed for his breach of discipline. However, he argues that the imposition of punishment is an exclusively judicial power, relying upon the recent High Court decision in Alexander v Minister of Home Affairs.[106] This case concerned a challenge to s 36B of the Australian Citizenship Act 2007 (as amended in 2020) (the Citizenship Act) which purported to empower the Minister to revoke citizenship from an Australian dual national who ‘by their conduct demonstrates that the person has repudiated their allegiance to Australia’, where the Minister is satisfied ‘that it would be contrary to the public interest for the person to remain an Australian citizen’. The Court held that revocation of citizenship was a punitive sanction, and that as punishment for unlawful conduct is a judicial function of the Federal Courts pursuant to Chapter III of the Constitution, s 36B was invalid. Punishment for misconduct could not be conferred on the executive, on citizenship matters.[107]
[105] Lines 30, 54, 57, 58, 167 of Exhibit SJD-10 (FDN11).
[106] [2022] HCA 19.
[107] The court had previously found that the exhaustive nature of Chapter III was a sufficiently strong reason to support the fact that State administrative tribunals could not have judicial power with respect to Federal matters conferred on them: Burns v Corbett (2018) 353 ALR 386.
While the Court’s decision related to the grave importance attached to citizenship, the Court considered the nature of punishment. Justice Edelman set out five elements of punishment that he said was at its core:[108]
(i) the imposition of harsh consequences;
(ii)for an offence against legal rules or, put more generally, for a purpose of sanctioning proscribed conduct;
(iii)to an actual or supposed offender for that offence;
(iv) intentionally administered by other human beings on the offender; and
(v)imposed and administered by an authority constituted by a legal system against which the offence is committed.
[108] [2022] HCA 19 at [238].
He went on to state:
This court has emphasised the ‘purposes of punishment’ as important to characterising a law as punitive or not. The imposition of a harsh consequence for the purpose of sanctioning conduct usually involves primary consideration of what is thought to be deserved for the conduct and secondary consideration of specific and general deterrence and rehabilitation. All of these matters are for the purpose of punishment.
As I have noted the Assistant Commissioner’s reasons for penalty in this matter were very brief. He noted that he would have regard to the threefold purpose of the ‘punishment’, being to:
1.     maintain public confidence in the police;
2.     maintain the self-esteem of police officers generally; and
3.     promote efficiency within SAPOL.
The Assistant Commissioner described the appellant’s conduct as very serious, and stated that he would take into account any loss, damage, or consequences that it had caused. I pause to note that no such consequences were ever outlined by the Assistant Commissioner, although he acknowledged having received the Impact Statement of the complainant. He continued by stating that there was absolutely no excuse for what had occurred, and then the penalty was handed down.[109]
[109] Exhibit SJD-10 (FDN11).
The Assistant Commissioner therefore set out the purpose of the penalty and the factors he had to consider. It is not disputed by the appellant that he was correct in the manner in which he stated those factors, however it is argued that the orders actually made were more in the nature of punishment for criminal offending. As a result of the brevity of the reasons that can only be determined by considering if the penalty imposed was too harsh to achieve the purpose of a sanction pursuant to s 26 of the PCD Act, and as such that it was in fact punishment.
This is an area where I raise again the respondent’s tender of the EO report and the submissions regarding the ‘Me Too’ movement. Although not mentioned by the Assistant Commissioner in his reasons, the EO report was mentioned by the complainant in her Impact Statement and in relation to the lack of support previously provided to SAPOL victims of sexual discrimination or sexual harassment.[110] The respondent’s counsel argued that the EO report indicated the significant changes SAPOL had undertaken, and highlighted ‘that the behaviour in which the appellant engaged in is not something that will be tolerated by the Commissioner’[111].
[110] Page 98 of Exhibit DC-7 (FDN2).
[111] T3.17-38.
The behaviour of the appellant was not however ever categorised as sexual discrimination or sexual harassment. It was agreed there was no sexual component at all. I accept the behaviour was not respectful and crossed the complainant’s personal boundaries making her feel uncomfortable. However, unlike most other behavioural matters considered by tribunals, it did not occur in the context of actual work duties or whilst any party was on duty; did not involve non-SAPOL persons (i.e. members of the public, persons arrested etc); did not involve dishonesty or abuse of position; and took place in a context where all parties were drinking alcohol, dressing up in costume, dancing etc. The conduct was isolated to the circumstances of a weekend away with colleagues (although it is agreed that as a work event the holiday rental was regarded as a workplace). There is no allegation of bullying, coercion, or sustained poor behaviour over a period of time. In fact, the appellant’s evidence before the Assistant Commissioner was that he rarely attended such social events and rarely consumed much alcohol.[112] There were no submissions made that the appellant had ever previously engaged in such conduct, and particularly since being promoted to Sergeant in 2005.
[112] Lines 1813-1935 of Exhibit DC-1 (FDN2).
The appellant argues that in all the circumstances deterrence was not a significant factor in determining sanction, and having read the appellant’s affidavit,[113] I agree the appellant was clearly mortified by the impact of his behaviour, and immediately concerned for the complainant. He was frank in his responses and displayed significant remorse for his alcohol consumption and actions.
[113] Exhibit DC-1 (FDN2).
The sanction imposed was severe. The loss of rank, together with the substantial financial penalty, given the nature of the behaviour admitted was well in excess of any fines applicable to similar criminal offending. This is particularly so, as the financial penalty is ongoing, with the reduction in rank being for an undefined period. This in itself, as I have noted is a significant, if not crushing, penalty for a police officer of the appellant’s age and previous good record.
I find that the penalty imposed by the Assistant Commissioner was so harsh and unreasonable that, in all the circumstances it went beyond the protection of the public, and was intended to punish the appellant. I strongly suspect that the penalty was imposed on a wrong view of the facts that extended beyond the agreed admissions. In this regard if the Assistant Commissioner was influenced by the complainant’s Impact Statement, the EO Report and outside factors such as the Me Too movement then not only was he in error, but he may have been looking to make an example of the appellant by punishing him for particularly poor and sexually motivated behaviour, which is not the agreed admissions. The severity of the penalty imposed leads me to find that this is what he did. He was looking to punish the appellant.

Unfortunately, the Assistant Commissioner did not explain in his reasons why he imposed the penalty that he did, beyond stating that it had to fit the breach and the appellant’s own circumstances. This was an issue for the Court in both Craig and Bhoola. In Bhoola the Court said:[114]
The correct approach on the facts of this case was for the Tribunal to: identify the nature of the appellant’s professional departure from the standards of practice; articulate the nature and extent of the harm and risk of harm to the public and the profession arising out of the appellant’s conduct; address the extent to which there was a risk of a repetition of conduct (and therefore harm); and then, identify a sanction that addressed the particular risk posed by the appellant which allowed for the maintenance of professional standards and protection of the public.
[114] [2022] SASCA 20 at [29].
In failing to provide full reasons for the penalty imposed, I can only infer that the Assistant Commissioner erred in not applying that penalty only to the agreed facts, including the facts set out by the appellant in his submissions on penalty. I also infer that he did not fully consider the appellant’s excellent record and the context of the behaviour (i.e. a weekend social event as opposed to performing police duties). He did not set out how and to what degree the penalty would remove any risk to, and protect, the public. The Assistant Commissioner did not articulate whatsoever how the appellant’s behaviour impacted the public. He also did not set out if he had taken into account, and if so how, the fact that the appellant had already been subject to a job transfer and the consequential humiliation, and then a work restriction for over nine months. The Administrative Order clearly connected transfer and restrictions to the incidents on 14 September 2020. It was a sanction imposed after the complaint was made but before the allegations were admitted. In all the circumstances, including the severe financial consequences of the reduction in rank, I find that the Assistant Commissioner imposed a penalty for the purpose of punishing the appellant. In coming to this conclusion, I also take into account that the Assistant Commissioner did not indicate that he had considered the impact on the appellant’s wife of the proposed penalty, including the transfer to another district.
In my opinion, the reason the sanction was imposed by the Assistant Commissioner was an error and a cogent reason to rescind his decision. For the same reasons I also find that the sanction imposed, as a punishment was excessive and oppressive.
(vi)The Sanction manifestly excessive?
The indirect consequences of the order to reduce a designated officer’s rank must be taken into account in making that order. This is particularly so in relation to a senior officer. The financial consequence of the reduction in rank in this matter is 24 times greater than the prescribed fine contained in the regulations of $1,250.00, or for a once off reduction in salary. The respondent argues that he is not responsible for the financial penalty as a result of the reduction in rank and it can be ignored.[115] I disagree.
[115] The respondent relies upon s 26(1)(f)(ii) of the PCD Act.
This is not a criminal sentence. It is a sanction within a workplace. The Assistant Commissioner would be well aware, as a serving police officer, of the indirect consequence of reduction in rank, not only in relation to the duties the officer can perform but also the financial consequence. The reduction in rank is a demotion and has always in itself been regarded as punishment in not only the police force, but also in the armed forces. It is humiliating and demoralising for a long‑serving police officer. In this case, the financial consequences were personally significant. A sanction of indeterminate reduction in rank is far more serious than suspension, which is for a limited and defined period.[116]
[116] See A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253 at [15].
In considering the extent of the sanction in the context of the appellant’s behaviour (on the facts admitted), it is my view that the Assistant Commissioner did not give sufficient weight to the matters in mitigation contained in the appellant’s written and oral submissions, including:
·     that his behaviour and actions were totally out of character;
·     the extent of the appellant’s remorse, and in fact absolute horror at his conduct;
·     his very good police service record;
·     the punishment he had already endured by his very public transfer to another Station under a work restriction;
·     the excellent way he had responded to that transfer, as referred to in submissions made to the Assistant Commissioner, by the Chief Inspector of the District he was transferred to;[117]
·     his co-operation and frankness with investigators from the time the complaint was first made;
·     the fact that he was close to retirement age;
·     the impact of any transfer upon his wife’s work situation and therefore her ability to keep working;
·     the expectation that after negotiating and agreeing the admissions and not contesting the allegations the penalty would not be crushing; and
·     The fact that the appellant had continued to work as a Sergeant for 15 months after he was first interviewed with no concern regarding his conduct or capacity to work in that role.
[117] Lines 181‑197 of Exhibit SJD-10 (FDN11).
Taking all matters into account, I find that the indirect financial consequence of the sanction to reduce the appellant’s rank leads to that sanction being excessive in all the circumstances and disproportionate to the conduct as admitted. I therefore consider that the Assistant Commissioner has made a further error in the exercise of his discretion, and this error provides a further cogent reason for setting aside the penalty imposed.
In coming to this conclusion, I do not intend to make light of the appellant’s behaviour. He rightly acknowledges that although team building events can be valuable workplace tools, they should not descend into uncontrolled behaviours, especially excessive consumption of alcohol, that put work colleagues at risk. Although it appears that most who attended behaved in the same manner, as a supervising Sergeant, a senior police officer, he was responsible for keeping some control, and should have ensured that he did not drink alcohol to the extent that he had limited memory of what had occurred.
In my view the appellant’s conduct was not minor or trivial, and should attract sanction. However, any sanction must reflect only the agreed allegations, and not the extent of the matters outlined in detail by the complainant in the Impact Statement, many of which are addressed to the actions of SAPOL generally, and not the appellant. Detailed reasons for any sanction should also be provided setting out how that particular sanction meets the purpose of protecting the public and why such conduct (only to the extent of the admitted allegations) will not be tolerated.
Conclusions
Taking account of the errors in reasoning I have set out, I find that there are compelling and cogent reasons for the Assistant Commissioner’s penalty decision of 3 March 2022, including his Administration Order, to be rescinded.
The parties have agreed that if that was my conclusion, then I should not substitute my own decision but should remit the matter to the Assistant Commissioner for further consideration. In this regard I accept that the regulatory and disciplinary processes in relation to police officers and policing generally are better dealt with by the respondent with his specialised knowledge of those matters. I therefore order that the matter be remitted to the respondent for a further hearing on sanction pursuant to s 26 of the PCD Act.
I reserve the question of costs.
Order
1.I order that the issue of the sanction to be imposed be remitted to the respondent pursuant to s 42F(c) of the District Court Act, in accordance with the principles and directions referred to herein.
2. I reserve the question of the costs of the appeal.