Hartley v O'Loughlin
[1999] VSC 138
•30 April 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 5531 of 1998
| JOHN MARK HARTLEY | Plaintiff |
| v. | |
| NEIL GRAHAME O'LOUGHLIN, DEPUTY COMMISSIONER, VICTORIA POLICE AND M. NEIL COMRIE, CHIEF COMMISSIONER OF POLICE, VICTORIA POLICE | Defendants |
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JUDGE: | TEAGUE, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 AUGUST 1998 | |
DATE OF JUDGMENT: | 7 MAY 1999 | |
CASE MAY BE CITED AS: | HARTLEY v. O'LOUGHLIN AND COMRIE | |
MEDIA NEUTRAL CITATION: | [1999] VSC 138 | |
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CATCHWORDS: Certiorari - Public disciplinary proceedings - Police Regulation Act 1958, s.91G(2) - "Vary" - meaning - Procedural fairness - Right to oral hearing.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. D. Grace Q.C. Mr. L. Johns | Holding Redlich |
| For the Defendants | Mr. G. Garde Q.C. Mr. L. Kaufman | Victorian Government Solicitor |
HIS HONOUR:
I have before me three applications pursuant to Order 56 of the Supreme Court Rules; the first for an order in the nature of certiorari, the second for an order in the nature of mandamus, the third for a declaration. A fourth application for an extension of time was granted by me on the first day of the hearing, leaving three applications to be decided. The parties to the applications are the same in each case. The Plaintiff is John Mark Hartley. The Firstnamed Defendant is Neil Grahame O’Loughlin, Deputy Commissioner, Victoria Police. I refer to him after this as "the Deputy Commissioner". The Secondnamed Defendant is M. Neil Comrie, the Chief Commissioner of Police, Victoria Police. I refer to him after this as "he Chief Commissioner". The Plaintiff seeks review of disciplinary proceedings initiated against him pursuant to the provisions of the Police Regulation Act 1958 ("the Act"). All three applications relate to the decision of the Deputy Commissioner to dismiss the Plaintiff from the Police Force, and the decision of Chief Commissioner Comrie to confirm that decision rather than follow a recommendation of a lesser penalty by the Police Review Commission. In essence the Plaintiff seeks to overturn the decisions so that he remains a member of the Police Force. The submissions by counsel were, and my decision is, focused on the application for certiorari, as if that fails so must the other applications.
The Act was subject to major amendment by the Police Regulation (Discipline) Act 1993. The primary function of the amendments, as stated in the Explanatory Memorandum to the bill, was "to streamline the police disciplinary system and to provide the Chief Commissioner of Police with greater disciplinary powers over police, including the power to dismiss." The earlier legislation and procedures, described in detail in O’Rourke v. Miller [1984] V.R. 277, were seen to limit the Chief Commissioner’s direct responsibility for disciplinary action over his workforce. The Police Discipline Board and the Police Service Board, both agencies external to Victoria Police, which previously considered charges and applied appropriate sanctions, were abolished by the amending legislation. Under the new system the Chief Commissioner (or his/her delegate) was to hear charges concerning disciplinary matters with a right of review to the Police Review Commission. The disciplinary charges brought against the Plaintiff and the subsequent decisions to direct his dismissal were made under the Act as amended.
The Plaintiff was born on 21 January 1971. He joined the Victoria Police Force in 1989. He was confirmed as a Constable on 10 February 1992. The majority of his police service has been in various locations in the Latrobe Valley. On 1 August 1995 he was promoted to a Senior Constable position at Morwell. A probationary period had to be served for that promotion to be confirmed. At the time of the termination of his employment on 7 October 1997, he was a General Duties Senior Constable at Morwell.
On Monday 6 May 1996, prior to the expiration of the period of his probation for promotion to Senior Constable, the Plaintiff was involved in multi-vehicle car collisions. On Sunday 5 May, the Plaintiff and a number of his fellow members completed their shift at 11.00 p.m. They then met socially at the Plaintiff’s residence. At about 4.00 a.m. two on-duty members called in at the Plaintiff’s residence. At just after 4.00 a.m. the Plaintiff went to bed. At approximately 5.30 a.m. the Plaintiff received a phone call from his girlfriend. She asked him to come over to her place in Traralgon. He agreed to go. On the way to her house, while travelling north in Kosciusko Street Traralgon, the Plaintiff was at the wheel of his car when it collided with the rear of a car parked on the western side of the street, causing the parked car to collide with the car in front of it, which caused a further collision. Four cars, including the Plaintiff’s, were damaged. The owners of the parked cars came out and spoke to the Plaintiff who admitted that he was the driver of the car at the rear. At the time the Plaintiff was wearing his Police Force uniform shirt. Two members of the Force attended the accident scene. The members in question contacted their Sergeant and asked him to attend to deal with the Plaintiff.
While the two members were waiting, the Plaintiff left the scene of the collision. One policeman tried to follow him, but lost sight of him when the Plaintiff walked through a residential property and climbed over a fence. He walked to the nearby home of a friend. There was no-one home but he let himself in with a spare key. He telephoned his mother and his girlfriend from this address. The Plaintiff was not interviewed by investigating police until some time later. The Plaintiff consistently stated that he had fallen asleep at the wheel of his car shortly before the collisions and that, while he had consumed some alcohol, he was not under the influence of alcohol at the time of the collisions. He claimed that in the course of the collisions he suffered a head injury and felt shocked, dazed, and disoriented as a result.
An internal police investigation was commenced. On 9 May 1996 the Plaintiff was cautioned and interviewed about the incident by internal investigators. The Plaintiff provided various information about the collisions and the period preceding and proceeding the collisions. He was informed that the matter would be reported. On 25 June 1996, the probationary period for the Plaintiff’s promotion was extended for a further 12 months, until 1 August 1997.
The Plaintiff was subsequently charged on summons with careless driving and failing to exchange names and addresses with the owners of the vehicles with which he had collided. He appeared at the Moe Magistrates’ Court on 10 December 1996. He pleaded guilty to both charges. On the first charge he was fined $350 without conviction. On the second charge he was convicted and discharged.
On 22 May 1997 the Plaintiff was served with a Preliminary Discipline Procedure Notice under s.71(2) of the Act. The notice was signed by Assistant Commissioner Nancarrow of the Ethical Standards Department, which is responsible for investigating the activities of members of the Victoria Police Force and bringing either criminal or disciplinary proceedings or both. The notice alleged that the Plaintiff may be guilty of three breaches of discipline under sections 69(1)(c); 69(1)(i) and 69(1)(i) of the Act, first in that he engaged in conduct likely to diminish public confidence in the force; secondly in that he was charged with an offence - careless driving - and the offence was found proven; and thirdly in that he was charged with an offence - failing to exchange name and address - and the offence was found proven. The notice sought his written explanation within 14 days to be considered alongside the allegations in the making of a decision as to whether he would be charged with an offence under s. 69(1) of the Act. On 1 June 1997, the Plaintiff submitted a report in reply to the notice. In his report he admitted charges 2 and 3 but denied charge 1 in the notice. He also requested that a copy of the brief of evidence be provided to his representative, Mr B. Elliott, the Discipline Advocate at the Police Association Victoria.
The expiration of the Plaintiff’s extended probationary period and the confirmation of his promotion to Senior Constable rank was due to be considered by the Plaintiff’s District Commander prior to the hearing of the disciplinary charges arising from the collisions. After perusing reports from his Divisional and Station Commander, the District Commander was satisfied that the Plaintiff’s performance was below the required standard. Accordingly, on 31 July 1997, the Plaintiff’s promotion to Senior Constable was disallowed, effective from 1 August 1997. He reverted to the rank of Constable and remained at Morwell.
On 8 August 1997 a Discipline Charge Notice was issued against the Plaintiff alleging three discipline charges against him. The Deputy Commissioner was appointed by the Chief Commissioner to inquire into the charges. The Hearing was set down for 18 September 1997. A copy of the Discipline Charge Notice and the Discipline Brief was served on the Plaintiff’s representative. The Brief contained all documents relating to the investigation of the charges, such as the collision report, records of interview, witness statements, photographs of the accident scene and the written submissions of the Plaintiff made on 1 June 1997. An adjournment was sought and granted until 7 October 1997.
On 7 October 1997 the Plaintiff, represented by Mr B. Elliott, appeared before the Deputy Commissioner. At the hearing, the Deputy Commissioner outlined the procedure to be followed. The Plaintiff admitted all three charges with all of the supporting particulars. The Deputy Commissioner questioned the Plaintiff at some length. He heard submissions from the Plaintiff and his representative. He heard evidence given by Senior Sergeant Brookes and Inspector Major for the Plaintiff. He had before him written references regarding the Plaintiff’s good work performance.
The Deputy Commissioner found all the charges proven. He dismissed the Plaintiff from the Force on each of the three charges, effective immediately. He delivered reasons orally for his decision. Transcribed, the oral reasons were set out in 17 paragraphs. The transcript contains grammatical, spelling and punctuation errors. They were so extensive that I would infer that it was not revised by the Deputy Commissioner.
Included in what he said were these passages, unrevised by me, with the paragraph numbers noted:
"#2 I do however place significant weight on the following:
#3 The fact that your actions of being involved in a multiple car accident, your conduct at the scene, the fact you left the scene and therefore were not subjected to the normal procedures that a member of the public must lawfully endure, together with the evidence of having consumed a considerable amount of intoxicating alcohol just prior to the accident which was well known to your colleagues and perhaps even suspected by others. This all strongly leads me to believe that your conduct was likely to diminish public confidence in the Force, and it did, in fact, do exactly that directly or indirectly.
#4 I am satisfied on the evidence before me that you did consume an excessive amount of intoxicating alcohol at your home address on the evening of the 5th May and the early hours of the 6th May, 1996. The evidence of Sgt. Howland and Const. Buckeridge as to your state of sobriety at approximately 4:15 a.m. is most damming.
#5 There is no doubt in my mind at all that at the time you drove your car from the house, for whatever reason, and up until you had the accident, that your driving was impaired by alcohol. I believe that it would be more likely than not you would have been driving in excess of .05% blood alcohol content, and together with your alleged lack of sleep were a danger to yourself and the community at large.
#6 From the evidence available, it is open to me to consider why you chose to leave the accident scene and whether in doing so you did it with the intent to avoid the repercussions of drinking and driving or that you did so in some involuntary sense or in other words you were dazed and confused as a result of the accident. I do not accept the latter. There is no evidence before me to indicate you were suffering from any serious head injury or other injuries resulting from the accident. Whilst I have considered the fact that you may have suffered from some form of mild shock as a result of the impact, the evidence of your subsequent behaviour in my opinion negates that as any legitimate reason for you leaving the scene. I refer specifically to you climbing over gates and fences in an effort to leave the scene, the fact that you went to a mates place in the near vicinity that very few people would be aware of, that you remembered where the key was to get into the house, that you rang your girlfriend and mother, that you chose not to be taken to the police or hospital, that you knew Sgt. Howland was looking for you for a breath test. All of these matters together with the evidence of your drinking prior to the accident the answers you gave in explanation during your interview all lead me to believe on the balance of probabilities that you left the scene of the accident so you would not be tested for blood alcohol and drink driving. I do not accept any other explanation that I have considered or been suggested to me.
#10 I have read your personnel file and taken due notice of it’s contents. I am conscious of the fact that you remained at work and maintained or improved your work performance and I have given that significant weight in my deliberation.
#11 As you are well aware, this is a level 3 Hearing, and, by virtue of my rank, I have all the sanctions available to me. My previous comments would clearly show I consider all of these charges to be serious, and the circumstances leading up to them being laid and inexcusable and intolerable in a discipline work force. The Police force has worked exceptionally hard in recent times to increase public confidence and to show that we are professional in our approach by implementing policy and procedures of best practise. You chose to ignore all of those issues and only have yourself to blame. Whilst I have considered all of your issues I need also to consider the bigger picture on behalf of the force and community."
The Plaintiff then applied for review by the Police Review Commission ("the Commission") pursuant to s.91F(e) of the Act. The application was heard before the Commission on 10 February 1998. The Commission made its written recommendation on 12 February 1998. The Commission had before it all the material that had been before the Deputy Commissioner, and additional material including audio tape of the disciplinary hearing, written submissions made by the Plaintiff, and a report by the Deputy Commissioner which was 9 paragraphs long in which he provided a summary of his conduct of the disciplinary hearing.
Pursuant to Section 91G of the Act, the Commission recommended to the Chief Commissioner of Police that the sanction of dismissal be set aside and a sanction of a fine of $2000 and transfer be substituted.
The Commission published a report 54 paragraphs long supporting its recommendation. In that report, it said:
"#27 In carrying out its statutory review function in an application such as this the Commission considers whether the decision or decisions under review were lawful, whether the procedures employed in the matter were fair and reasonable, whether the decisions which were arrived at were decisions which could have reasonably been reached on the material before the Hearing Officer and will form a view as to whether the sanctions which were imposed were within the range of sanctions which could reasonably have been imposed in all of the circumstances.
#35 ... The Commission is satisfied that the decisions made by Deputy Commissioner O’LOUGHLIN which are the subject of the review were lawful.
#37 ... The Commission has concluded that the procedures which were employed in this case were fair and reasonable.
#38 ... The Commission is satisfied that, as Constable HARTLEY admitted the truth of the charges as detailed above, it was reasonable for Deputy Commissioner O’LOUGHLIN to find the charges proven.
#40 ... The submission made by Constable HARTLEY to the Commission claimed that the sanction of dismissal was unreasonable because:
1.The Deputy Commissioner arrived at conclusions which were not supported by the evidence, and those conclusions could not be, and were not, proved on a standard just below that of beyond reasonable doubt.
2.The Deputy Commissioner failed to take account of relevant evidence which was available to him at the disciplinary hearing.
3.The Deputy Commissioner failed to take account of relevant decisions of other Disciplinary Hearings, and decisions of the Commission in cases involving similar facts; and failed to take into account the views of the community in determining sanction.
#44 (after reciting passages from the Deputy Commissioner’s reasons) ... In the Commission’s view it was open to Deputy Commissioner O’LOUGHLIN to arrive at these conclusions on the material before him and at a high level of the balance of probabilities. In doing so he said that he took all of the statements and other material into account. Constable HARTLEY and his representative did not seek to call oral evidence at the hearing in order to test the opinions expressed by both police and civilians.
#48 Having carefully considered all of the circumstances the Commission has formed the view that the sanction of dismissal in this case is so harsh as to be unreasonable. In reaching this view the Commission is conscious of the seriousness of Constable HARTLEY’s behaviour and is not critical of Deputy Commissioner O’LOUGHLIN’s conclusions. However, a number of other cases reported by E.S.D. would appear to be of a similar degree of seriousness and none of these have resulted in dismissal.
#49 The fact that the zero blood alcohol policy had been announced just a few weeks before the incident does add to the seriousness of the matter and should result in a more severe sanction.
#50 ... Constable HARTLEY has already had his promotion to Senior Constable disallowed. This should be taken into account in determining sanction.
#51 In the Commission’s view a fine of $2000 and transfer of Constable HARTLEY to a suitable available position would be an appropriate sanction. The compulsory transfer would ensure that he is not eligible for promotion for two years. This should be seen as a severe sanction and make it clear that the matter is regarded seriously."
The Chief Commissioner by letter dated 24 February 1998 to the Plaintiff stated that he had decided to confirm the decision of Deputy Commissioner that the Plaintiff be dismissed from Victoria Police and gave his reasons for his decision.
In that letter of 9 paragraphs, what the Chief Commissioner said included:
"#2 I have carefully considered the Commission’s findings (He then set out parts of paragraphs 35, 37 and 38)
#3 I agree with these findings.
#4 In relation to the sanction imposed, I note that it was the Commission’s view that: '...the sanction of dismissal in this case is so harsh as to be unreasonable ...'
#5 I have taken due regard of, but will not be acting upon the Commission’s recommendation that the sanction of your dismissal be set aside.
#6 I have a high expectation of members of the Force on and off duty concerning alcohol consumption and driving, and I am satisfied that your actions in avoiding a breath test after the motor car collision was a conscious decision to avoid the probable consequences and not due to injuries or fatigue. I agree with the Commission when it stated:
'The fact that the zero blood alcohol policy had been announced just a few weeks before this incident does add to the seriousness of the matter and should result in a more severe sanction.'
#7 The community expects each and every member of the Force to uphold the law and to set a good example as a responsible person within the community. I regard your excessive alcohol consumption prior to driving and prematurely leaving the scene of an accident with the utmost gravity and deserving of the most severe sanction available.
#8 The Force’s mission is to provide a safe, secure and orderly society by serving the community and the law. To be effective and efficient in serving the community, Victoria Police must maintain the support and the confidence of the community. Any sanction less than dismissal would have the potential of eroding public confidence in Victoria Police.
#9 Therefore pursuant to Section 91G of the Police Regulation Act 1958, I wish to advise you that I do not accept the Commission’s recommendations and confirm Deputy Commissioner O’Loughlin’s decision to dismiss you."
On 23 April 1998, the originating motion was filed. The Plaintiff sought an order in the nature of certiorari quashing the decisions of the Deputy Commissioner made on 7 October 1997 that the Plaintiff be dismissed from Victoria Police, of the Chief Commissioner made on 24 February 1998 that the Plaintiff be dismissed from Victoria Police and that he would not accept the recommendation of the Commission made pursuant to Section 91G(1) of the Act. He sought an order in the nature of mandamus to compel the Chief Commissioner to have due regard to the recommendation of the Commission in respect of each of the charges the subject of review of the Commission. He sought a declaration that the decisions of the Commissioners relating to the dismissal of the Plaintiff from the Victoria Police were invalid, unlawful and/or void ab initio and that the Plaintiff is a member of Victoria Police under the Act and entitled to the benefits and emoluments of his position as if the decisions had never been made.
The Plaintiff sought the order upon the basis of nine grounds set out in the originating motion, which were:
"#1 The findings by each of the Defendants that the Plaintiff had engaged in excessive alcohol consumption prior to driving was not open on the evidentiary material before each of the Defendants;
#2 The said findings evidence a fundamental misconception by the Defendants of the evidentiary material before them and the standard and burden of proof required as a matter of law and jurisdiction to support any such findings;
#3 In the process of reaching their decisions, the Defendants did not take into account relevant evidentiary material and thereby did not afford the Plaintiff natural justice;
#4 The findings of the Chief Commissioner that any sanctions less than the dismissal of the Plaintiff from Victoria Police would have the potential of eroding public confidence in Victoria Police was not open on the evidentiary material before the Chief Commissioner, in any event was an irrelevant consideration and further was so unreasonable so as to amount to an abuse of discretion;
#5 The penalties imposed by the Deputy Commissioner and confirmed (in respect of the first charge) by the Chief Commissioner were out of all proportion to such findings as were made and that lawfully could have been made;
#6 The Secondnamed Defendant did not deal with the recommendation of the Commission relating to the second and third charges laid against the Plaintiff;
#7 The decision of the Deputy Commissioner to dismiss the Plaintiff from Victoria Police in respect of each charge and the decision of the Chief Commissioner to confirm that decision (in respect of the first charge) are so unreasonable so as to amount to an abuse of discretion in each case;
#8 The decision of the Deputy Commissioner to dismiss the Plaintiff from Victoria Police in respect of each charge and the decision of the Chief Commissioner to confirm that decision (in respect of the first charge) are, in each case, so unreasonable that no reasonable decision maker could have made such a decision;
#9 The Chief Commissioner had no jurisdiction to make the second decision because Section 91G(2) of the Act does not confer upon the Chief Commissioner the power to reject the recommendation of the Commission made pursuant to Section 91G(1) of the Act."
On 20 August 1998 I gave leave to the Plaintiff to add another ground:
"#10 The Chief Commissioner failed to provide the Plaintiff with an opportunity to be heard."
In support of the Plaintiff’s application, the Plaintiff relied on an affidavit of Paul Mullett, filed on 23 April 1998. To that affidavit there were nine exhibits. No affidavit was filed on behalf of the Commissioners. To say that the materials formally before me were incomplete and unsatisfactory would be an understatement. At different times during the hearing before me, copies of documents or of pages missing from documents were passed up to me, whether on behalf of the plaintiff or the Commissioners, and apparently with the consent of the other. In the end, I believe that no party was disadvantaged by the unsatisfactory process.
The argument on the grounds can be divided into six main areas:
"1Whether, and if so in what way, the court should exercise the discretionary power of certiorari;
2Whether the Chief Commissioner erred in misconstruing Section 91G(2) of the Act.
3Whether there had been a breach of the rules of natural justice on the part of the Chief Commissioner, in failing to afford the Plaintiff an opportunity to have a hearing.
4Whether there had been a breach of the rules of natural justice on the part of the Deputy Commissioner, in failing to afford the Plaintiff an opportunity to introduce witnesses.
5Whether there had been errors on the record on the part of either or both of the defendants in particular aspects of their decisions.
6Whether either or both of the first and third decision makers erred in proceeding as they did to the conclusion that dismissal was the appropriate penalty."
There were preliminary points taken before me as to the availability of the remedy of certiorari. The position in Australia as to many questions arising concerning the remedy of certiorari was reviewed in Craig v South Australia [1994-95] 184 C.L.R. 163. The High Court at 175 said:
"Where available, certiorari is a process by which a superior court, in the exercise of its original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record."
Before me, Mr Grace for the Plaintiff sought to establish that there was all three of jurisdictional error, a failure of procedural fairness, and error on the face of the record. Mr Garde, who appeared for the Commissioners, submitted that the Plaintiff was attempting to treat the application as a form of appellate procedure, seeking either a general review of the decision of the tribunal, or a substitution of the order or decision for one which the superior court thinks ought to have been made. He said that, while it was proper to address the issues raised as to the Chief Commissioner’s powers under Section 91G and as to the claims of failure of procedural fairness, there was no basis for a claim of error of law on the face of the record. Any error made, he submitted, even if there was one, which he did not concede, was an error of fact only and not of a nature to found certiorari.
In Craig there was an analysis of the law in relation to jurisdictional error and error of law on the face of the record, and the significance of the distinction between the two as it applies to tribunals. This was said at 176 and following:
"Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."
The Court in Craig highlighted the difference between an inferior court and a tribunal and the significance of this in relation to what constitutes "jurisdictional error", and said this at 179:
"At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law....If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material or rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." (The italics are mine)
In a recent decision in the Victorian Court of Appeal, RSL v Liquor Licencing Commission & Carlton Cricket & Football Social Club, unreported 15 April 1999, Phillips, JA focused on the phrase "and the tribunal’s exercise or purported exercise of power is thereby effected" in this extract, pointing out that it is not all errors of the type listed that amount to jurisdictional error. He also noted that the extent of the jurisdiction to be examined did not depend on classifying the body either as a court or a tribunal, but on examining the statute that created the body, of whatever nature it may be. The crucial task was to determine what jurisdiction the statute had given to the body to enable it to perform its intended function. This approach is one I have taken in this case. I will return to particular issues affecting the Plaintiff’s claims that there were errors of law on the face of the record. I will deal first with the three areas which were treated as appropriately raising issues of jurisdictional error or procedural fairness.
I turn to the question of whether the Chief Commissioner fell into jurisdictional error in dealing as he did with the recommendation of the commission. That question involves a matter of the construction of Section 91G of the Act. Section 91G provides:
"(1)At a review under this Part, the Commission may recommend to the Chief Commissioner that he or she take the action set out in the recommendation.
(2)The Chief Commissioner must have due regard to a recommendation of the Commission and may take the action set out in the recommendation or vary it.
(3)The Chief Commissioner must notify the Commission and the member concerned of his or her decision under sub-section (2) within 14 days of receiving notice of the outcome of the review."
Put shortly, what is at issue is whether the words "or vary it" in sub-s. (2) entitle the Chief Commissioner to reject the recommendation from the Commission and substitute his own decision which was fundamentally different.
Mr Grace submitted that "vary" in s. 91G(2) does not allow the course of action of the Chief Commissioner in this case and that it is to be restricted in its interpretation to changing or altering the form of that which is recommended, but not to effect a change of such substance that the whole gravamen of the recommendation of the Commission is made nugatory. He argued that if it was the intention of Parliament to give the Chief Commissioner the power to reverse a recommendation of the Commission they would have expressly said so.
Mr Grace put to me that while the focus must be on the word "vary" in its immediate context, assistance as to its meaning could be gained from looking at other cases where the word had to be ascribed a meaning, to other provisions in legislation containing the word. and to dictionary definitions.
Mr Grace took me to s. 26 of the Sentencing Act 1991. That section was discussed by Smith J in this court in Aitken v. Moten-Connor, unreported, 9 February 1995; [1994] MC 289. The section is concerned with what a court could do relative to an earlier sentencing order, and provided that the court may vary the order, confirm it or exercise other options. Smith J concluded that the court below had erred in treating the power to vary as giving power to impose a different sentence. As a specific instance, it was supportive of the position taken by Mr Grace. But Smith J was at pains to construe the relevant provisions in their context. Mr Grace also took me to s. 51 of the Victorian Civil and Administrative Tribunal Act 1998, where "vary" is used, in relation to what can be done on review of a decision, in conjunction with "confirm" and "set aside" as options available to the decision maker. If "vary" already included the other options, it was argued, the drafter would not use three separate words or expressions. Mr Grace took me to The King (Conway and Others) v The Justices of the County Tyrone [1906] KB 164. There, the court, in relation to whether a statute which provided that the court below could "confirm, vary or reverse" the order appealed against, said that "vary" meant alter in part as distinguished from discharging the entire order appealed against and making a wholly different one. Mr Grace also sought to support giving a restrictive interpretation of the meaning of "vary" by the Oxford English Dictionary, but my assessment was that reference to the dictionary definitions did not take the matter far at all.
The authority that I found of most assistance, and for more than one reasons, was R. v. Tonkin; ex parte Federated Shop Painters’ and Dockers’ Union of Australia (1954) 92 CLR 526. In Tonkin, Dixon CJ made clear the importance, in determining the meaning of a particular occurrence of "vary", of examining it in the context of the legislation and the history behind the provision in which it appears. Also, in the context of construing a provision which permitted a conciliation commissioner "to vary the terms of an award" the court said that that could mean change by substitution. I also found of assistance Douglass V Gillman (1990) 19 NSWLR 570 where, in relation to a provision which stated that "... the court may vary an order on such terms as it thinks fit", Needham J., after referring to Tonkin, concluded that there was power to discharge an order and substitute a different order for it.
Section 91G(2) must be construed in the full context of the disciplinary provisions in the Act. The Act, and in particular Part 4, provides a clear and detailed statutory scheme for dealing with disciplinary matters. I need not repeat what I have noted at the start of the judgment as to the history of the legislation in its present form, in the light of what was said in O’Rourke, the explanatory memorandum to the Bill and the parliamentary debates. It is appropriate to refer to a number of provisions other than s.91G. Sections 4, 5, 6 and 6A provide for matters such as the appointment, authority and power of delegation of the Chief Commissioner, and the powers of a Deputy Commissioner. Section 69 sets out what can amount to breaches of discipline. Section 70 provides for the option of carrying out a preliminary investigation. Sections 71 and 72 are detailed provisions dealing with the charging of a member with the commission of a breach of discipline. Section 73, introduced in 1993, provides that the Chief Commissioner or an officer authorised by him must inquire into and determine a charge. Section 75 lays down the procedure to be followed on such an inquiry. Sub-section 75 (3) (d) provides that the person conducting the inquiry is bound by the rules of natural justice. Section 76 provides for the determination options open to the person conducting the inquiry, including under sub-s. (g) that that person may dismiss the member. Section 77 provides for the enforcement of the determination of the person conducting the inquiry. Section 87 provides for the establishment of the Police Review Commission. Section 91E provides for a form of appeal to that Commission by way of re-hearing on matters not relevant here, but the terms of the provision are relevant because they stipulate that the Chief Commissioner must give effect to a decision of the Commission on a re-hearing. Section 91F provides the option for a member to apply to the Commission for a review of a decision under Section 76 (g). Finally, Section 91H provides for the procedure to be followed on such a review. Sub-section 91H (3) (d) provides that the Commission is bound by the rules of natural justice.
As to disciplinary matters, the Chief Commissioner has been given by Parliament the authority to make the final decision. The Commission’s decision is only as to what recommendation to make to the Chief Commissioner. At the time when the Chief Commissioner was called upon to make a decision under s.91G, the operative decision was that of the Deputy Commissioner.
The word vary is preceded by the word "may", which is to be read in the light of Section 45(1) of the Interpretation of Legislation Act 1984 , which provides that, where the word "may" is used in conferring a power, that word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion. The Chief Commissioner can, in the exercise of his discretion, take the action set out in the recommendation, decline to take the recommendation and thus leave the initial decision intact, or vary the recommendation set out in the recommendation. That the decision is ultimately one for the Chief Commissioner is confirmed in s.91G(3). In light of the above, it is not necessary for the term "vary" to be defined in s.91G. Yet, I am satisfied that "vary" has to be given a wide meaning having regard to the intent and purpose of the legislation and the role of s.91G. What the Chief Commissioner did was to refrain from exercising his power to take the action set out in the recommendation. The effect of his making that choice was that the decision of the Deputy Commissioner remained intact. I am of the opinion that the Chief Commissioner was entitled to do that in the exercise of his discretion. The use of the word "recommendation" with respect to the Commission itself confirms that the final decision was one for the Chief Commissioner to take. If the Chief Commissioner does not have the power to dismiss the recommendation, the ultimate power would lie with the Commission. That result would be inconsistent with the entire thrust of the Act. The decision of the Chief Commissioner not to take the recommendation of the Commission was within the scope of the power conferred upon him by s.91G. He therefore did not err in law in taking that particular course, and did not make a jurisdictional error in doing so.
I turn to the first of the complaints made by the Plaintiff that there had been a failure of procedural fairness. It was submitted that the Chief Commissioner failed to provide procedural fairness in that he had not given the Plaintiff any form of oral hearing before making his decision. Mr Grace submitted that although the Act is silent as to whether the Chief Commissioner is bound to provide such a hearing, that silence does not give the Chief Commissioner the imprimatur to not observe the rules of natural justice. He submitted that the fact that there have been two previous hearings and two previous decisions did not exclude the operation of the principles of natural justice. In this case, Mr Grace submitted, the consequences were the most serious that could be contemplated under the legislation, namely, dismissal.
I cannot accept that the legislature contemplated that there would have to be an oral hearing provided by the Chief Commissioner when he came to consider the recommendation of the Commission, as he is required to do under Section 91. I have come to that conclusion after a careful review of the legislative scheme. The approach that I have adopted in coming to that conclusion has been determined by what has been said in a number of cases. Three cases were cited before me, and they refer to many other cases. The three were: Mietta’s Melbourne Hotels Pty Ltd v Roper 1988 AAT 354, Zhang v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384, and Oates v Attorney-General (Cth) (1998) 156 ALR 1.
A number of propositions can be distilled from those cases:
*The application of all or some of the requirements of procedural fairness to the exercise of a statutory power depends upon the proper construction of the statute.
*A statute is to be construed against the common law background notions of justice and fairness.
*The requirements of procedural fairness will be recognised as applying in the absence of a clear contrary legislative intent.
*The content of those requirements is variable and will depend upon matters which will include the legislation under which the decision maker is acting, the nature of the inquiry, the subject matter that is to be dealt with, the seriousness of the consequences of the decision to the party effected, and whether that person has at one stage or another the opportunity to put his or her case to an appropriate decision maker.
*The full requirements of procedural fairness need not always be given if at some point in the decision making an appropriate opportunity is available for a party to present his or her case.
*Factors such as the administrative burden of an oral hearing may make impractical a right to such a hearing at more than one stage.
*Such practical considerations may have been allowed for in the legislation by the delegation of the oral hearing.
*If the legislature has addressed the matter of the provision of natural justice and has provided a solution, the court should not vary the legislative scheme.
*If the legislature has not addressed the provision of natural justice, the court must decide on the requirements that are appropriate in the particular case.
Mr Grace sought to rely substantially upon what was said in Oates, but that was a case in which the applicant was seriously affected by a decision, with no opportunity at all to make a submission, orally or in writing to the decision-maker. That is a very different situation from that before me.
The disciplinary scheme provided for in the Act is a comprehensive one. In the 1993 amending legislation, the parliament specifically provided for the requirements of natural justice to be observed at the Inquiry and Commission levels. In my opinion, it is clear that Parliament did not intend that another full hearing be provided at the s. 91G(2) stage. It would be contrary to the legislative scheme to seek to import into s. 91G(2) an obligation on the Chief Commissioner to undertake a formal hearing process. Within the scheme, natural justice is clearly provided for at the level of the first and second decision makers, but not the third. In my opinion, this was the result of a deliberate policy. It is clear from the Explanatory Memorandum and the Second Reading Speech that the legislation was intended to strengthen the position of the Chief Commissioner. Practical considerations would make it difficult for him to observe on disciplinary matters all of the requirements of procedural fairness, unless he opted, as he had the power to opt, to conduct the Disciplinary Inquiry rather than delegate the conduct as he also had the power to do. He has a high number of personnel under his command. He has an extensive range of responsibilities. The legislature contemplated that balance was required. Regard has been shown to provide for the protection of the rights of individual members of the force at more than a basic level. That is why there is provision for the disciplinary processes to be conducted in more than one stage. That is also why at both of the Inquiry and review stages, there is express provision that the rules of natural justice must be observed. In my opinion, the fact that there is express provision in the legislation of these two opportunities for hearings leaves no room for the implication of some further hearing process. I place only a little weight on the contention that, if the legislature intended that the Chief Commissioner should not be required to have an oral hearing, it should have expressly provided that the rules of natural justice should not apply. I would be surprised if the legislature often provided in express terms in legislation to that effect. As a member of the Parole Board, I am aware that Section 69(2) of the Corrections Act provides that the Board is not bound by the rules of natural justice. I have little doubt that that provision was inserted because of practical considerations, rather than the seriousness of the consequences of the decisions. In specifically providing that the rules of natural justice do apply at the Inquiry and Commission stages, I believe that the legislature has clearly addressed the question.
The comprehensiveness and fairness of the protections built into the scheme were evident from the way in which the disciplinary process proceeded as against the Plaintiff. During the disciplinary process the Plaintiff had notice of everything that was put against him. He was aware from the terms of the papers served on him before the Inquiry, and from what was said at the start of the Inquiry, of the matters being raised against him and that he was at risk of dismissal. He had two oral hearings at which he was represented, and at which oral submissions could be and were made. He had the opportunity prior to those hearings to present written submissions to both the Deputy Commissioner and the Commission. He had availed himself of that opportunity. He had exercised his right to seek review. There is no substance in this ground.
I turn to the second of the procedural fairness issues. Mr Grace put to me that there had been a failure of procedural fairness in that the Deputy Commissioner had failed to call witnesses at the inquiry before him. It was put that, in failing to call witnesses, the Deputy Commissioner had denied the Plaintiff’s representative the opportunity to challenge in cross-examination what those witnesses said. The matter of the non-calling of witnesses was commented upon in the report of the Commission. It did so after setting out all or part of paragraphs 2, 3, 4, 5, 6, 10 and 11 of the oral reasons of the Deputy Commissioner, and commenting that it was open to him to arrive at the conclusions stated. It noted at paragraph 44 of its report that the Plaintiff did not seek to call oral evidence at the hearing in order to test the opinions expressed by both police and civilians. I do not accept that there was any failure of procedural fairness. The Plaintiff and his representative were aware of the issues which were the subject of the conclusions of the Deputy Commissioner from the Disciplinary Brief. They were within the range of conclusions that the Deputy Commissioner could reasonably have been expected to make. Many if not all of the issues were the subject of submissions made in writing by the Plaintiff. The Plaintiff addressed the subject of the level of his drinking. It is true that the particulars of the charges did not include a particular directly addressed to the amount of alcohol that he had consumed. However, in the particulars, there was a reference to it being a consequence of his having left the scene that a preliminary breath test could not be conducted. The Disciplinary Brief contained copies of statements by police who had seen the Plaintiff drinking and that included references to his being seen around 4.15 a.m. to be "fairly intoxicated" and "quite intoxicated", with other observations including that his speech was slurred, that he wobbled when standing and that he smiled constantly. In the conduct of the inquiry, the Deputy Commissioner was observing the procedure provided for by the Act. At the start of the inquiry, he specifically adverted to the position as to the calling of witnesses. That would have been an appropriate time for a request to be made that witnesses be called as to what might be potentially contentious matters. That procedure which the Deputy Commissioner adopted was later scrutinised by the Commission and found to be fair. There was no request made to the Deputy Commissioner by the Plaintiff to call witnesses at any time. Such a request could easily have been made in the period prior to the hearing or at the hearing itself. The plaintiff did not apply for an order of certiorari on this or any other basis after Deputy Commissioner arrived at his decision. He chose instead to seek a review by the Commission. The Plaintiff complained to the Commission about aspects of the procedure before the Deputy Commissioner. He did not complain about any rejected request to call witnesses, or of any unfairness resulting from witnesses not having been called. In the light of the above, it is far from self-evident that the calling of witnesses at the inquiry before the Deputy Commissioner would have made any difference to the findings regarding the Plaintiff.
I turn to submissions going to preliminary questions bearing upon the Plaintiff’s claims that there were errors of law on the face of the record. Mr Grace argued that there were a number of errors disclosed in the reasons given by each of the Commissioners for their decisions. He submitted in the alternative that they were jurisdictional errors, or errors of law on the face of the record. Mr Garde raised a number of preliminary issues, that is preliminary to consideration of whether there were errors, as to their materiality and as to matters going to the exercise of discretion. One of those issues was as to what constituted "the record". There were others, as to as to the characterisation of alleged errors, and as to the appropriateness of attributing to the Chief Commissioner responsibility for alleged errors on the part of the Deputy Commissioner.
In Craig, the High Court at 182 said:
"The determination of the precise documents which constitute 'the record' of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application."
Although said relative to a court, the same must apply relative to a tribunal. That comment must apply to the more detailed assistance on the issue to be found at pages 181-2, where the Court discussed the weight of authority as well as policy considerations and concluded that:
"... in the absence of some statutory provision to the contrary, the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for the decision. ... The fact that the transcript of proceedings and reasons for decision do not, of themselves, constitute part of 'the record' does not preclude incorporation of them by reference. ... As so accepted, however, it should not be understood as having the effect that a merely introductory or incidental reference to the reasons for decision produces the consequences that the whole or part of the reasons somehow become part of both the formal order and 'the record' of the particular court. ... The qualification should be understood as referring only to so much of the reasons or transcript of proceedings as is referred to in the formal order in a way which brings about its incorporation as an integral part of that order and 'the record'. ... The determination of the precise documents which constitute 'the record' of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application."
In Victoria, by virtue of s. 10 of the Administrative Law Act 1978, the reasons for a decision of a tribunal or inferior court shall be part of the record. Section 10 provides:
"Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record."
In Hansford v Neesham (1994) 7 VAR 172, affirmed at [1995] 2 VR 233, J D Phillips J held (at 12-14) that the effect of s 10 of the Administrative Law Act 1978 (Vic) was that the record, for the purposes of certiorari, included any statement by an inferior court, whether made orally or in writing, of its reasons for decision. In Flynn v DPP (1998) 1 V.R. 322, McDonald J in this court accepted as correct the reasoning of J D Phillips J in Hansford. In Thompson v Byrne (1997) 93 A Crim R 69 reference was made by Charles JA to the view taken in Hansford that a consequence of s 10 may be that the availability of certiorari is substantially increased, arguably giving the writ a more general appellate operation that Parliament may have intended. In Thompson it was not necessary for the Court of Appeal to decide if s 10 did indeed have this consequence. In RSL v Liquor Licencing Commission , unreported 15 April 1999, J D Phillips JA in the Court of Appeal again considered the nature of the "record" for the purposes of the consideration of errors of law on the face of the record. Before the Court of Appeal was a case involving appeals against a decision of a single Commissioner, Commissioner Horsfall, of the Liquor Licencing Commission, first to the full Commission, and then to this court, where it came before O’Bryan J. In the course of the hearing O’Bryan J accepted the reasons for decision of the Full Commission as part of the "record", but declined both to have regard to the reasons of Commissioner Horsfall, and to receive (at least in the first instance) the transcript of evidence of the hearing before the Commissioner and the numerous exhibits that were then put in evidence. The Court of Appeal was asked to rule that O’Bryan J was in error in declining to refer to this material. J D Phillips JA first made the point that it was not clear that there had been a final rejection by O’Bryan J of the transcript and exhibits, noting that it may have been that, after consideration, O’Bryan J had reached a view which did not depend on closer scrutiny of those materials. The Court of Appeal made no finding as to whether or not O’Bryan J had been in error, and hence whether or not the reasons of Commissioner Horsfall, or the transcript and exhibits from that hearing, should have been accepted as part of the ‘record’. A broader approach was adopted. That approach was reflected in the remark that "we allowed counsel to range over all of the materials that were available before the trial judge, so that if appellants were wrongly disadvantaged in argument before his Honour, that disadvantage has now been remedied." A like approach to the "record" was also adopted in Frugtniet v Victoria Legal Aid, unreported, 11 September 1997. In that case a submission was put, relying on Craig, that only the reasons of the trial judge could be looked at as the record. Hedigan J said that it was appropriate to look at some of the background material that had been before the trial judge in order to make the record, that is the reasons, reasonably accessible and meaningful in considering whether there was any error on the face of the record.
I have opted to take the broader approach and to treat all of the material which was before the Commissioners and the Commission as part of the record, essentially for the reasons advanced by Hedigan J in Frugtniet.
I turn to the arguments as to alleged errors (not patently going to jurisdiction or to procedural fairness) made by one or both of the Commissioners.
Before noting the particular respects in which it was contended that there were errors, it is appropriate to note that there were threshold issues raised by Mr Garde. One was that, save perhaps as to the first matter of burden and standard of proof, the alleged errors went only to matters of fact which could not be said to go to jurisdiction. Another was that the alleged errors were as to findings made not by the Chief Commissioner but by the Deputy Commissioner. That was important because the operative decision was that of the Chief Commissioner, and there is a significant leap in trying to impute the findings of fact of the Deputy Commissioner as the initial decision maker to the Chief Commissioner. Rightly or wrongly, I have elected to treat both matters, not as threshold issues, but as matters going to the exercise of my discretion in the granting of relief by way of certiorari. However, I would make certain observations. I have noted what Phillips JA had to say relative to the difficulty of reviewing a decision made at one level which is itself a review of a decision at another level in RSL v Liquor Licencing Commission. The intermediate role played by the Commission creates more than one special additional difficulty in attempting to treat the later decision as adopting findings made in the earlier decision. One such difficulty is that the Commission has determined, after a hearing conducted as required according to the rules of natural justice, that it was open to the Deputy Commissioner to arrive at the conclusions he did, that his decisions were lawful, and that the procedures he employed were fair and reasonable. Another is that the Chief Commissioner’s reasons are couched in terms of a response to the findings of the Commission rather than of the Deputy Commissioner. A more robust approach than the one which I have adopted would have been to dispose of these grounds on the threshold issues, rather than by reference to the substance of the arguments as to the alleged errors.
Mr Grace argued that the Deputy Commissioner had made errors in certain findings applying an inappropriate burden and standard of proof, those findings including: that the Plaintiff had consumed an excessive amount of alcohol; that the amount of alcohol consumed by the Plaintiff had affected his driving; that the Plaintiff had avoided a breath test after the motor vehicle collision; that avoiding a breath test was a conscious decision to avoid the probable adverse consequences and not due to injuries or fatigue; that the Plaintiff had climbed over "gates and fences". I will come back to the specifics later.
Mr Grace submitted that these findings ought to have been made pursuant to the Briginshaw standard of proof, but were not. He took me to the judgment of Dixon J at p361-362 of Briginshaw and the joint judgement of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd & Ors 1992 110 ALR 449, which I need not set out here. Put shortly, Mr Grace argued that what was said by the Commissioners should be seen to reflect that there had been a reversal of the burden of proof and a departure from the correct standard required which was the balance of probabilities at its highest level. Mr Grace pointed particularly to the Deputy Commissioner having said:
"All of these matters together with the evidence of your drinking prior to the accident, the answers you gave in explanation during your interview, all lead me to believe on the balance of probabilities that you left the scene of the accident so you would not be tested for blood alcohol and drink driving."
Mr Grace argued that the matter of the Deputy Commissioner’s belief was irrelevant, the issue being whether there was sufficient evidence to make the finding to the requisite standard of proof. In saying what he said, the Deputy Commissioner had misdirected himself as to the process.
It was put to Mr Grace that because the Plaintiff had admitted the charges there could be no criticism of the findings going to whether the charges were proven. Mr Grace argued that in pleading guilty to charges, including to the charge of conduct likely to diminish public confidence, the Plaintiff could be treated as having done so only on the basis of the particulars attached to the charge, and so that could not be treated as extending to an admission of matters not in the particulars such as that he had consumed excessive alcohol or that he left the scene to avoid responsibility under the drink driving legislation.
The Deputy Commissioner was clearly aware of his obligation to apply the Briginshaw standard of proof. That is clear from page 2 of the transcript of the Inquiry before the Deputy Commissioner at p.2 of the transcript and the Deputy Commissioner’s reasons for his decision at p. 30 in which he says: "I am entitled to believe on the evidence that you left the scene of the accident for those very reasons, and I do so at the highest level on the balance of probabilities." Having reviewed the passages which are said to reflect what would have to amount to either gross hypocrisy or incompetence of stating that one approach is adopted, yet adopting another, I am unable to accept that the conclusion that there was an incorrect principle adopted is warranted.
The Deputy Commissioner made findings about the Plaintiff’s consumption of alcohol and the consequences of same. Mr Grace focused in particular on the finding that the Plaintiff had consumed an "excessive" amount of alcohol, but reference was also made to findings that the amount of alcohol consumed had affected his driving, and that the Plaintiff had avoided a breath test after the motor vehicle collision. Mr Grace argued that there was not sufficient foundation for the finding that the Plaintiff drove with a blood alcohol in excess of .05.
The Deputy Commissioner found that avoiding a breath test was a conscious decision to avoid the probable adverse consequences and not due to injuries or fatigue, and there was no evidence before him to indicate that the Plaintiff was suffering from any serious head injury or other injuries resulting from the accident. Mr Grace pointed to the presence of evidence that the Plaintiff was suffering from injuries resulting from the accident, including as to shock and a bruise or lump on his head, and argued that the finding that the Plaintiff’s behaviour after the collision negated mild shock as a legitimate reason for leaving the scene did not follow.
The Deputy Commissioner found that there was the Plaintiff had climbed over "gates and fences". Mr Grace pointed out that there was direct evidence about one gate and one fence being scaled. I think I need say no more than "de minimis", and treat this error in much the same way as the sort of error commonly made (or not made but transcribed as if made, and reflected therein in punctuation, spelling and grammatical errors) particularly orally even by articulate people who choose their words carefully. I do not accept, as was put, that "gates and fences" was to be treated as an exaggeration indicative of the type of attitude held by the Commissioners.
The relevance of assessments of matter including of what the level of alcohol consumed was, of what the level of the Plaintiff’s injuries from the collisions were, of whether one or more fences were scaled, and of like matters, was that they were factual findings bearing upon the matter of penalty. They could not relate to any finding about guilt in the charges because they were all admitted. The Plaintiff was seeking to challenge the reasonableness of inferences drawn from the evidence as to matters relevant to penalty. More particularly they were matters going to the seriousness of the conduct in the context in which that conduct occurred. Both counsel took me through various aspects of the evidence that bore upon the findings of the Deputy Commissioner. This included evidence of the various police members who saw the Plaintiff at his home and at the scene of the collisions, material in the record of interview and the evidence of roadside observers. Focused attention was also given to various aspects of Mr Hartley’s post accident conduct as bearing upon the potential concussive impact of the collision. In my assessment, the inferences drawn by the Deputy Commissioner in the matter of the consumption of alcohol and the consequences of the collisions were reasonably open to him on the evidence.
To the extent that there were errors as in referring to "gates and fences", they were factual errors on matters which fell to be decided either way on the evidence. They were not errors of law on the face of the record. They were errors of fact. The errors were not as to findings that could not be characterised as of a jurisdictional nature. The issue of errors amounting or not amounting to jurisdictional error was touched on in RSL v Liquor Licencing Commission at page 9 where Phillips JA said:
"Administrative tribunals are commonly charged with determination of the facts (as of course are courts) and error in making a decision in that regard is less likely to attract certiorari for jurisdictional error. That is not to say that error of fact may not in certain circumstances amount to jurisdictional error; it may."
Phillips JA then gave examples. The point being made, however, was that any error, be it error of fact or error of law, will not be jurisdictional error if the body in question, be it administrative tribunal or court of law, is authorised to decide that question.
None of the findings made in the course of what amounts to the equivalent of sentencing remarks, can be seen to amount to the decision maker falling into an error by identifying the wrong issue or asking himself a wrong question. I do not see that either decision maker ignored relevant material or relied in any significant way on irrelevant material, such that any error made involved the decision maker in going outside jurisdiction. Furthermore, none of the errors could be seen to be fundamental to the decision. In Flynn v DPP [1998] 1 V.R. 322 McDonald J said that not every error of the law which may be identified in the reasons for decision shall entitle a party affected by the decision to relief in the nature of certiorari. In relation to an order of the County Court, McDonald J held that what must be demonstrated was that the error was so fundamental to the decision of the court as to strike at the very roots of its order and invalidate it.
I turn to the submissions directed to the sanction of dismissal decided upon by the Deputy Commissioner and confirmed by the Chief Commissioner. It was a sanction that was characterised by the Commission as "so harsh so as to be unreasonable". The Commission did so, even after concluding that it accepted all of the Deputy Commissioner findings of fact. Mr Grace submitted not only that the Commission’s characterisation was correct, but that there were specific respects in which the Chief Commissioner could be seen to have erred in deciding otherwise.
Two of those specific respects arise out of the phrasing of the penultimate paragraph of the letter of the Chief Commissioner.
"The Force’s mission is to provide a safe, secure and orderly society by serving the community and the law. To be effective and efficient in serving the community, Victoria Police must maintain the support and the confidence of the community. Any sanction less than dismissal would have the potential of eroding public confidence in Victoria Police."
It was put that from that paragraph certain conclusions should be drawn. The first was that the Chief Commissioner, although obliged to consider the recommendation of the Commission regarding all three charges, had done so only regarding the first charge. The second was that he erred in a way that amounted to an abuse of discretion in stating any sanction less than the dismissal of the Plaintiff from Victoria Police would have the potential of eroding public confidence in Victoria Police. As to the first, it is my opinion that it would be wrong to conclude from the absence of specific reference to all three charges, that the Chief Commissioner was ignoring two. It seems to me that the first offence was the one that was most serious and that it was therefore the one to which the Chief Commissioner gave principal consideration. As to the second, Mr Grace argued that the Chief Commissioner should be taken as saying that for anyone pleading or found guilty of engaging in conduct likely to diminish public confidence in the force, the only appropriate sanction was dismissal. I am unable to accept that the Chief Commissioner is to be treated as stating as a general proposition that all people engaging in any particular conduct will necessarily be dismissed. On the contrary, I treat him as saying no more that in these particular circumstances any sanction less than dismissal would erode public confidence in the force. It was also put to me that the Chief Commissioner should be treated as having failed to take account of factors, some of which the Commission had expressly referred to in reaching its decision as to sanction including: comparable cases reported by the Ethics Standard Department, in which none of a similar degree of seriousness resulted in dismissal; the Plaintiff’s plea of guilty; his admission of the relevant facts; his performance since that date; and the fact that he lost his promotion prior to which he had been on probation for over a year. I am unable to accept that that was so given that the Chief Commissioner has not only expressly said that he had considered the Commission’s findings carefully, but that he also quoted from its report. Mr Grace also argued that the Commissioners had taken into account a matter that they were not entitled to take into account, namely the announcement of the force’s zero blood alcohol policy. Each of the Commissioners and the Commission did refer to the policy, which as to the zero element, applied only to members on duty, which the Plaintiff was not at the time of the collisions. The references to the policy by each was very limited. It seemed to me from the context in which each reference was made that it was only by way of background, and as a matter going to the seriousness with which drinking and driving by a member of the force at any time should be seen. In other words, it was a form of reflection of the importance of members of the force having to maintain high standards at all times.
As to the subject of the harshness or reasonableness of the penalty, I am of the opinion that it was plainly open for the Chief Commissioner to accept the view as to penalty taken by the Deputy Commissioner. I am unable to accept that the penalty ultimately determined was so harsh so as to be unreasonable or was so unreasonable that no reasonable decision maker could have arrived at that conclusion. The reasons put forward by the Commission to support its contrary conclusion as to penalty seem to me to be far from compelling. In that regard, the Commission at least in express terms, referred only to a number of other cases which it assessed as being as appearing to be of a similar degree of seriousness in none of which a dismissal resulted, and to the fact that the Plaintiff had already had his promotion to Senior Constable disallowed. Certainly those are relevant matters, but they are questionably of such magnitude as to warrant the conclusion expressed by the Commission.
I am unable to accept that there has been no misdirection of the discretionary power such as to amount to an error of law. The determination of an appropriate penalty is a statutory discretion given to the decision makers, and ultimately to the Chief Commissioner. Of statutory discretions Philips JA said in RSL v Liquor Licencing:
"statutory discretions are not properly confined or constrained by rules governing their exercise; if the discretion is untrammelled by the statute, then it must remain untrammelled save, perhaps, for guidelines of the sort described by the High Court in Norbis v Norbis (1986) 161 C.L.R. 513."
In Norbis, the High Court said within the exercise of a discretionary power there is room for differences of opinion, with neither opinion being uniquely wrong or right. The fact that the Commission held a different opinion does not make the opinion of the Commissioners wrong in a manner which would warrant a reviewing judge setting aside their decision. For that to be justified, the discretion must have miscarried in some way.
The decision maker exercising a discretion as to penalty must first consider the gravity of the offence and then determine the appropriate sentence. In the exercise of the discretion a degree of subjectivity must enter into the assessment in much the same way as in the appellate court required to assess whether a sentence was manifestly excessive. In the course of reaching the appropriate sentence the decision maker is entitled, if not obliged, to take into account and make appropriate comments on matters such as the seriousness of the offence, and matters of public perception.
Under the Act, the Chief Commissioner has the responsibility for the standards of the entire Police Force. Police are required to observe the same if not higher standards as other members of the community. In my opinion, looking at the charges against the Plaintiff, it was no one of his actions taken alone that was the gravamen of the disciplinary breach, but the combination of a number of actions. On the evidence before the Defendants, it was possible to conclude that the Plaintiff, within a period of less that two hours after having been given an implicit warning about drinking, has first, driven a car a distance of about ten kilometres until it struck a parked car, left the scene of the collision without leaving his name and address, left the scene by entering a private property and scaling a fence, moved through the streets to a location which was unlikely to be established promptly, and then failed to make himself available to the police after he had been informed they were looking for him. All of those actions were taken at a time when a reasonable inference was that he knew, first, that he would be subject to a routine preliminary breath test if he stayed at the scene, and second, that there was in force a directive as to the likely consequences to a member being found to have driven with a blood alcohol content in excess of the prescribed limit. His actions were consistent with the applicant acting so as to minimise the prospect of evidence being gathered which could be used against him on the more serious charge. I do not think it unreasonable to regard the applicant’s actions as indicative of the taking of an inappropriate attitude to his duty as a member of the police force.
There was other evidence, both favourable and unfavourable to the applicant, before the decision makers. As a sentencing decision is based on an assessment of all the surrounding circumstances and the weight given to a variety of factors, it is not surprising that there can be differences in opinion from one body to another. I see no error of law in the determination of the penalty. It appears to me that it was well within their discretionary power for the Commissioners to conclude that dismissal was the appropriate penalty.
None of the Plaintiff’s ground having been made out, I refuse all three applications.
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