MJW v The Commissioner of Police

[2023] SADC 124

DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative and Disciplinary Division)

MJW v THE COMMISSIONER OF POLICE

[2023] SADC 124

Judgment of her Honour Judge Thomas  

7 September 2023

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS

POLICE - INTERNAL ADMINISTRATION - DISCIPLINE AND DISMISSAL FOR MISCONDUCT

This is an appeal by a former serving police officer against an order of the Commissioner of Police imposing the sanction of termination of employment under s 26 of the Police Complaints and Discipline Act 2016 for breaches of discipline that were admitted before the Police Disciplinary Tribunal in the form an amended notice of allegation. The admitted breaches of discipline concerned five instances of sexual comments made by the male appellant to a new female probationary constable over a period of approximately six months in circumstances where there was a significant disparity in rank and experience between them.

The decision on sanction was delegated to the Deputy Commissioner of Police.  Her decision and reasons were closely informed by consideration of an ‘organisational impact statement’ authored by the complainant after the admissions were made before the Tribunal and stated to have assisted the Deputy Commissioner in detailing the actual effect and harm caused by the appellant’s conduct.  Further particulars of the first admitted allegation that were noted as agreed were also considered. 

The appellant contends the Deputy Commissioner erred on various grounds including principally by taking into consideration the impact statement and further particulars as well as failing to give due consideration to the Tribunal’s assessment of the seriousness of the appellant’s breaches as required by s 25(3) of the Police Complaints and Discipline Act 2016 and by imposing sanction on a wrong principle that was manifestly excessive in the circumstances.

Held: 

1.   The appeal should be allowed on the first, second and fifth grounds of appeal.  The asserted errors the subject of these grounds resulted in the Deputy Commissioner imposing sanction on the wrong legal and factual basis and allowing extraneous, prejudicial and/or irrelevant matters to guide her decision. 

1.1 The impact statement contained prejudicial material that went well beyond the admitted factual basis for sanction.

1.2 The Deputy Commissioner’s reasons for decision show she did not make limited use of only appropriate material in the impact statement and thereby erred by using it in her consideration of the actual effect and harm caused by the appellant’s admitted conduct.

1.3 The further particulars were not agreed.  It was an error to include them as part of the agreed factual basis for sanction.

1.4 It was an error to characterise all of the appellant’s conduct as sexual harassment contrary to the limited admissions as to the nature of the breaches of discipline committed in the form of the amended notice of allegation.

2. These errors are serious departures from the proper basis for taking action and imposing sanction and are, separately and together, cogent reason to depart from the Deputy Commissioner’s decision under s 42E of the District Court Act 1991.

3. The third and fourth grounds of appeal should be dismissed. As to the third ground, s 25(3) of the Police Complaints and Discipline Act 2016 does not apply to breaches of discipline proven by admission under s 24. In any event, due regard was given to the Tribunal’s assessment of the seriousness of the admitted breaches of discipline. As to the fourth, there is no basis for inferring sanction was imposed as punishment and for the wrong purpose.

4.   It is unnecessary to consider the sixth ground of appeal that complains about the manifestly excessive, oppressive and/or unreasonable or unjust result given the error in characterising the nature of the appellant’s admitted breaches of discipline.  

District Court Act 1991 (SA) s 42, s 42B, s 42E, s 42F, s 42G, Part 6 Division 2; Police Complaints and Discipline Act 2016 (SA) s 3, s 7, s 21, s 22, s 23, s 24, s 25, s 26, s 32; Police Complaints and Discipline Regulations 2017 (SA) reg 10, reg 12; Code of Conduct (as found in Schedule 3 of the Police Complaints and Discipline Regulations) cl 4, cl 7, referred to.

Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1, applied.
DC v Commissioner of Police [2022] SADC 102, distinguished.

Aldrich v Ross [2001] 2 Qld R 235; Chiropractors Association of Australia (South Australia) Ltd v WorkCover Corporation of South Australia [1999] SASC 120; City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; Craig v Medical Board of South Australia (2001) 79 SASR 545; Griggs v Noris Group of Companies (2006) 94 SASR 126; H v Commissioner of Police [2016] SADC 64; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; House v The King (1936) 55 CLR 499; Maritime Services Board (NSW) v Liquor Administration Board (1990) 21 NSWLR 180; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Police Service Board v Morris (1985) 156 CLR 397; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72, considered.

MJW v THE COMMISSIONER OF POLICE
[2023] SADC 124

Civil

Overview

Grounds of Appeal

Conclusion

Issues in this Appeal

Nature of this Appeal

The Need for Cogent Reasons

Disciplinary Proceedings under the PCD Act and Regulations

Relevant Code of Conduct Provisions

Factual and Procedural Background

The Decision and Reasons for Decision

Consideration - Grounds of Appeal

Grounds (a), (b) and (e): ‘Taking into account the Impact Statement was an error”

Ground (c):  ‘Due regard not given to the Tribunal’s assessment’

Ground (d):  ‘Acted upon a wrong principle by imposing the sanction as a punishment for wrong doing rather than for the primary purpose of protecting the public’

Ground (f): ‘The sanction imposed is manifestly excessive, oppressive and/or unreasonable and plainly unjust’

Remission and Costs

Overview

1. This is an appeal against an order of the Commissioner of Police[1] imposing a sanction for breach of discipline on MJW, a designated officer[2] (the Appellant), in formal proceedings conducted under Part 4 of the Police Complaints and Discipline Act 2016.[3]

   [1]    Referred to below as the Commissioner.

   [2]    A “designated officer” means a member of SA Police: s 3 of the PCD Act.

   [3]    Referred to below as the PCD Act.

2. The Deputy Commissioner of Police, as the duly appointed delegate of the Commissioner, gave notice of the sanction imposed (the Decision) and her reasons for doing so by way of letter sent on 8 August 2022 (the Decision Letter),[4] following submissions made by the Appellant in mitigation,[5] in writing[6] and as supplemented orally at a hearing held on 6 July 2022 (the Sanction  Hearing).[7]

   [4]    Exhibit MJW-13 comprising part of Exhibit A1. The letter was incorrectly dated 8 August 2021.

   [5]    In accordance with reg 12(3) of the Police Complaints and Discipline Regulations 2017 (referred to below as the PCD Regulations).

   [6]    Exhibit MJW-11 is part of Exhibit A1 (the Written Submissions on Penalty) dated 18 May 2022.

   [7]    The transcript of the sanction hearing (the Sanction Hearing Transcript) is Exhibit LW-5 to the First Affidavit of Linda Williams sworn on 6 October 2022 (FDN 9), which affidavit is Exhibit R3 in this appeal.

3. The basis of sanction were admissions of breaches of discipline made by the Appellant in the following circumstances. 

4. On 1 April 2022, he had formally admitted five alleged breaches of discipline in the course of the formal disciplinary proceedings prior to a trial.  The alleged breaches concerned five instances of sexual comments made by the Appellant to the complainant over a six-month period between 27 June 2018 and 11 January 2019 whilst they worked together.

5. The conduct ultimately admitted by the Appellant was as follows.[8]

   [8] Exhibit A1 [30].

6. First, on a number of occasions between 27 June 2018 and 6 August 2018 when working with the Probationary Constable, the Appellant asked her inappropriate questions about her relationship, asked her if she cheated on her partner and talked about his own sex life.  The Appellant offered the Probationary Constable money to help her out.

7. Secondly, on 7 August 2018, the Appellant sent the Probationary Constable a message: “Heard your single again.  Free for a catch up…wink wink.”

8. Thirdly, between 8 August and 15 December 2018, the Appellant was walking behind the Probationary Constable in the stairwell at the Grenfell Street Police Station, looked at her bottom and said: “I don’t know where to look”.

9. Fourthly, at 3:18pm on Sunday, 16 December 2018, the Appellant sent a message to the Probationary Constable referring to her breasts that read: “Can you pack those things away.  They are a distraction.”

10. Fifthly, on 11 January 2019, the Appellant made inappropriate comments to the Probationary Constable whilst on Nomad patrol duties.  He stated to her if they were both involved in a bushfire, they would be found in the footwell of the car fused together and it would look like they were rooting.

11. The allegations admitted were made in an amended s 22 notice of allegation (the Amended Notice of Allegation)[9] that was presented before the Police Disciplinary Tribunal (the Tribunal) [10] some 22 months after the proceedings were commenced by an initial notice of allegation dated 25 May 2020 (the Initial Notice of Allegation).[11]  

    [9]    The Amended Notice of Allegation dated 31 March 2022 is Exhibit MJW-7 to the Affidavit of MJW sworn on 7 September 2022, which affidavit is Exhibit A1 in this appeal.

    [10] The Tribunal is constituted by a Magistrate appointed by the Governor under s 33 of the PCD Act.

    [11] Exhibit MJW-2 to Exhibit A1.

12. There were material differences between the two notices of allegation: first, in the particulars of the fifth alleged instance and, secondly, as to the characterisation of all the alleged breaches of discipline arising from the conduct the subject of complaint.  Notably, in the second notice, the allegation in the first notice that all the Appellant’s conduct constituted sexual harassment[12] was withdrawn.  Only the first allegation remained charged as sexual harassment in breach of a lawful order and direction and cl 4 of the Code of Conduct established under the PCD Act for the maintenance of professional standards by designated officers.[13]  The balance of the conduct was charged as “oppressive, offensive, abusive or insulting manner” in breach of cl 7 of the Code of Conduct.

    [12] That is count 6.

    [13] See below “Relevant Code of Conduct Provisions” at [108]-[114].

13. The complainant was a new female probationary constable (the Probationary Constable) in her first posting. At the time, the Appellant was a serving member of SA Police with some 14 years’ experience in various roles in Adelaide and greater South Australia.  He then held the rank of Senior Constable First Class and was one of two field tutors who supervised the Probationary Constable when she joined his team in an Adelaide police station upon graduation.

14. It is uncontentious that there was an obvious and significant disparity in rank and experience between the Appellant and the Probationary Constable. As her field tutor, the Appellant supervised and signed off on her work and directly supervised her, as well as spending significant time alone with her on patrol, which he did until about mid-January 2019. 

15. That changed in January 2019 after the Probationary Constable made her first complaint about the Appellant’s behaviour towards her when she asked the sergeant leading their team in confidence if she could work with people other than the Appellant and told him why.[14] They did not work together again in a direct pairing.  In May 2019, the Appellant left their police station for another posting.

    [14] According to the affidavit of Philip Clague sworn on 3 December 2019 at [5] and [20] comprising Exhibit MJW-4 to Exhibit A1.

16. The sanction imposed was the termination of the Appellant’s appointment as a member of SA Police. The Deputy Commissioner stated in her reasons this was the only appropriate sanction because the Appellant’s continued employment posed too great a risk to the public and the health and safety of other members, including female members of SAPOL, the integrity of the police force and public confidence in the police.[15]

    [15] Decision Letter, pages 8 and 9.

17. It is evident from the Deputy Commissioner’s reasons that her decision was closely informed by her consideration of an “Organisational Impact Statement” (the Impact Statement)[16] authored by the Probationary Constable, which she said had assisted her in detailing the actual effect and harm caused by the Appellant’s conduct towards the Probationary Constable. She also considered further particulars of the first allegation (the Further Particulars)[17] that were noted to have been agreed.  The use made of the Impact Statement is the central issue in this appeal.

    [16] As referred to and defined below at [166].

    [17] As referred to and defined below at [148].

    Grounds of Appeal

18. The Appellant appeals the Decision on six grounds as set out in his Notice of Appeal Against Administrative Decision (Notice of Appeal)[18] and in his accompanying affidavit sworn on 7 September 2022.[19]  The Appellant summarised those grounds as follows:[20]

    ·the erroneous consideration of extraneous, prejudicial and/or irrelevant matters by taking into consideration the Impact Statement, when a ‘victim impact statement’ has no standing within the purpose and process of the PCD Act;[21]

    ·the failure to give due consideration to a relevant matter, that is the Tribunal’s assessment of the seriousness or otherwise of the breaches as required by s 25(3) of the PCD Act;[22]

    ·the imposition of a sanction on a wrong principle (for the purposes of punishment rather than the protection of the public)[23] and on a mistaken factual basis;[24]

    ·the imposition of a manifestly excessive sanction having regard to the various matters identified in the sixth ground of appeal.[25]

    [18] FDN 1.

    [19] Exhibit A1 (FDN 2).

    [20] Written Submissions of the Appellant (FDN 17) [6].

    [21] That is, the second and first grounds in the Notice of Appeal.            

    [22] That is, the third ground in the Notice of Appeal.

    [23] That is, the fourth ground in the Notice of Appeal.

    [24] That is, the fifth ground in the Notice of Appeal.

    [25] That is, the sixth ground in the Notice of Appeal.

19. The Appellant seeks orders that the Decision be rescinded, this Court substitute a decision the Court considers appropriate or, in the alternative, remit the matter to the Deputy Commissioner as the original decision-maker for reconsideration with directions and recommendations, and claims costs.

20. The Commissioner contends the appeal should be dismissed on the ground that the Appellant has failed to demonstrate any compelling, convincing or powerful reason to depart from the Decision. As to costs, it is submitted there is no basis for any award, whether in favour of the Appellant or the Respondent, having regard to the terms of s 42G of the District Court Act 1991.[26]

    [26] Summary of Argument of the Respondent (FDN 20).

    Conclusion

21. The Appellant’s appeal should be allowed on the first, second and fifth grounds of appeal.  The asserted errors the subject of these grounds of appeal are serious departures from the proper basis for taking action and imposing sanction and are separately and together cogent reasons to depart from the Deputy Commissioner’s decision.

22. More specifically, I have found that the Impact Statement contains prejudicial material that goes well beyond the admitted factual basis for sanction. The Deputy Commissioner’s reasons for decision show that she did not make limited use of only the appropriate material in it and thereby erred by using it in her consideration of the actual effect and harm caused by the Appellant’s conduct on the Probationary Constable in assessing the risk of the Appellant’s continued employment on the maintenance of the self-esteem of police officers generally, and particularly of junior female officers subordinate to senior direct reports. 

23. It was a further error to include the Further Particulars as part of the agreed factual basis for sanction. I have found they were not agreed as asserted by the Commissioner. 

24. The Deputy Commissioner further erred by characterising all of the Appellant’s conduct as sexual harassment, contrary to the admissions he made as to the nature of the breaches of discipline committed in the form of the Amended Notice of Allegation. 

25. These errors resulted in the Deputy Commissioner imposing sanction on the wrong legal and factual basis and allowing extraneous, prejudicial and/or irrelevant matters to guide her decision. 

26. The Deputy Commissioner’s error in the characterisation of the admitted breaches of discipline was an error of law determinative of the outcome on sanction. No issue of deference to the Deputy Commissioner’s decision arises and the appeal should be allowed on this ground alone.  It is therefore unnecessary to consider the sixth ground of appeal that complains about the manifestly excessive, oppressive and/or unreasonable or unjust result.

27. By her improper  use  of the Impact Statement and the Further Particulars, the Deputy Commissioner imposed sanction on the wrong factual basis and allowed extraneous, prejudicial and/or irrelevant matters to guide her decision. The use she made of the Impact Statement was foundational to her conclusion that termination was the only appropriate sanction in circumstances where the Appellant had engaged in an escalating and continuing course of sexual harassment of the Probationary Constable.  This finding was not open on the material properly before her and her reasoning shows these errors led her into making the wrong decision.

28. The third and fourth grounds of appeal should be dismissed. 

29. The remaining question is whether I should substitute my decision as the appeal judge in lieu of the Deputy Commissioner’s decision to terminate the Appellant’s employment or remit the matter to the original decision-maker for reconsideration under s 42F of the District Court Act 1991.[27]

    [27] Referred to below as the District Court Act.

30. I am mindful of the Deputy Commissioner’s “particular expertise in the managerial requirements of the police force”[28] and her responsibilities for discipline and the maintenance of professional standards within SA Police so as to ensure the self-esteem of its officers generally and of junior members particularly, and the confidence of the public in the police force and policing.  I consider she is better placed to impose sanction for the Appellant’s admitted breaches of discipline than this appeal court. 

    [28] Aldrich v Ross [2001] 2 Qld R 235 at 257 per Thomas JA.

31. Subject to hearing further from the parties after they have had an opportunity to consider my decision and reasons, I would propose to remit the Appellant’s admitted breaches of discipline to the Deputy Commissioner for reconsideration of the appropriate sanction, with the following proposed directions and recommendations.

32. First, in determining what action may be taken for the Appellant’s breaches of discipline under s 26 of the PCD Act, sanction must only be imposed for the conduct and breaches of discipline admitted in the form of the Amended Notice of Allegation. In doing so, the Impact Statement and the Further Particulars must be disregarded.  The only proper use that might be made of the Probationary Constable’s Sworn Statement would be to understand the effect on the Probationary Constable and the organisation of only those breaches of discipline admitted by the Appellant.

1. The reconsideration of sanction must be procedurally fair. The material to be relied on should be clearly identified and, where adverse to the Appellant, the substance should be notified and the Appellant should be given a reasonable opportunity to address such material, as is appropriate in the circumstances.  In this regard, what the Deputy Commissioner was referring to by the “organisational information” available to her that was not before the Tribunal[29] should be clarified so as to ensure the Appellant has proper notice of it and the substance of any matter adverse to him arising from that information, if there is anything additional.

   [29] See the first paragraph of page 5 of the Decision Letter.

2. In this case, due regard is not required to be given to the Tribunal’s assessment of the seriousness or otherwise of the breaches of discipline the Appellant admits he committed. This is because in my view s 25(3) of the PCD Act does not apply to breaches of discipline proven by admission under s 24 of the PCD Act.  This does not mean it may be given no regard.  Rather, it means it is not mandatory for it to be given due regard. Whatever regard may be given to the Tribunal’s assessment in reconsidering sanction of the Appellant’s admitted breaches of discipline, should nevertheless be stated and reasons given for any such regard.

3. I will hear the parties on costs given the terms of s 42G of the District Court Act and the form of the orders to be made.

4. My detailed reasons follow.

   Issues in this Appeal

   Matters of General Principle

5. The parties’ submissions as to the use made by the Deputy Commissioner of the Impact Statement invite consideration of two questions. First, whether as a matter of general principle a ‘victim impact statement’ cannot be received by the Commissioner when imposing sanction in a disciplinary proceeding brought under s 26 of the PCD Act and, secondly, whether in the specific circumstances of this case, the Deputy Commissioner was entitled to receive and consider the Impact Statement as she did and by doing so vitiated her decision on sanction.

6. In support of their opposing arguments on the first question, the parties made extensive submissions about the scheme of the PCD Act, the nature of police disciplinary proceedings and whether findings about the impact of a breach of discipline might properly be made at the stage of sanction proceedings.  I have been assisted by their detailed arguments and address matters of general principle at length later in my reasons,[30] accepting the Commissioner’s submission that the approach in their consideration should be the proper construction of the relevant provisions of the PCD Act, that is Part 4, having regard to their text, context and statutory purpose.[31]  

   [30] See [58]-[100] below.

   [31] Summary of Argument of the Respondent [11].

7. It should be emphasised that care should be taken in drawing analogies and comparisons between disciplinary proceedings under the PCD Act and criminal proceedings.  The precise nature of police disciplinary proceedings is determined by the PCD Act.  Its provisions must be construed with regard to the text, context and purpose of this Act and applied accordingly.

8. It is also unhelpful in my view to approach the issues in this appeal by analogies to the use of victim impact statements in criminal proceedings. The provision of a personal statement to the court in the criminal sentencing process is a specific right conferred on a person who has suffered injury, loss or damage as a result of the commission of an indictable or prescribed summary offence under s 14 of the Sentencing Act 2017. The purpose of considering a complainant’s statement of the effect or harm caused by a designated officer’s breach of discipline in disciplinary proceedings under the PCD Act is an entirely different matter, relevant to the imposition of a sanction protective of the public.

9. Bearing in mind these matters of general principle as I have found them, I have concluded that whether a ‘victim impact statement’ can be received in sanction proceedings must always depend on its contents and its relevance to sanction and the critical question is whether by some means the designated officer was properly on notice of matters adverse to him or her. This depends on the circumstances of the case.  

10. Disposal of this appeal does not in my view involve a question of the complainant’s standing in disciplinary proceedings or right to make submissions.  The issue is how in any case the Commissioner is to be informed of the (actual or potential) impact of found or admitted breaches of discipline in a procedurally fair way, accepting that such impact is clearly relevant to determining the sanction that best maintains professional standards and the health, safety and well-being of all members of SA Police and thereby public confidence in the integrity of SA Police and policing.

11. Accordingly, I have approached this appeal on its own facts and considered the use of the Impact Statement in the circumstances of this case having regard to the relevant general principles as I have found them. 

    DC v Commissioner of Police

12. The Appellant relies on certain passages from the decision of Judge Deuter of this Court in DC v Commissioner of Police (DC) [32] as establishing as a matter of general principle that a ‘victim impact statement’ cannot be received at all in s 26 sanction proceedings in “almost identical circumstances” where an impact statement had been received and relied on at the stage of sanction after admissions were made.  The Commissioner submits the decision is plainly wrong. 

    [32] [2022] SADC 102 at [84]-[86].

13. It is not necessary or of any material assistance to traverse the parties’ detailed submissions on the decision and reasoning in DC[33] and its application here.As the Commissioner submits, the facts in DC are readily distinguishable and do not involve “almost identical circumstances” at any other than at the most general level. 

    [33] Op cit.

14. This appeal concerns a course of conduct that occurred over six months when the Appellant and the new Probationary Constable were working together, mostly alone, involving five instances of sexual comments made by a senior supervisor to a new, significantly more junior female officer, that were uninvited and unwelcome.  There was a distinct power imbalance because the Appellant was not only considerably more experienced, but he supervised and signed off on the Probationary Constable’s duties as her field tutor.  His conduct occurred against the background of a recent history of behaviour that was found by a superior officer to be offensive and embarrassing to other staff.  In imposing the sanction of termination, the Deputy Commissioner concluded the Appellant had engaged in sexual harassment, relying on the Impact Statement and the Further Particulars.

15. By comparison, the allegations in DC concerned two incidents that occurred at a weekend social event at a holiday rental house between designated officers in the company of other members of their patrol team.  Alcohol was consumed by many. The first incident involved the male designated officer concerned pulling the other female officer close to him while dancing.  The second incident occurred when he later followed her into a bedroom, pushed her from sitting on the bed to lying on her elbows and leaned over and stayed there until another officer separated them.[34]  

    [34] Ibid at [8].

16. It was admitted that this conduct had made the complainant in DC feel uncomfortable and did not comply with the provisions of the General Order and the Respectful Behaviour Guidelines in that his conduct interfered with the complainant’s emotional well-being. The matter did not concern sexual harassment and it was agreed that there was no sexual impropriety in relation to the behaviour of the designated officer concerned.[35]

    [35] Ibid at [71].

17. Accordingly, it is necessary to first focus on the circumstances of this matter and closely examine the factual and procedural background to the allegations the Appellant admitted in the context of formal disciplinary proceedings as they progressed here.  The next step is to examine the Impact Statement and Deputy Commissioner’s decision and her reasons and consider whether she made any of the errors asserted by the Appellant.

    Nature of this Appeal

18. This appeal lies to the Court sitting in its Administrative and Disciplinary Division under s 32(3) of the PCD Act.  The relevant “decision” is the order of the Commissioner imposing the sanction of termination of the appointment of the Appellant as a member of SA Police under s 26(1)(d).[36]  

    [36] Defined in s 42B of the District Court Act as including “an act (such as the giving or making of a notice, direction, determination, requirement or order) and a failure or refusal to make a decision or act.”  Emphasis added.

19. Other than the time for institution of an appeal,[37] the provisions governing the nature and conduct of this appeal are found in Part 6 Division 2[38] of the District Court Act. 

    [37] Section 32(5) of the PCD Act.

    [38] Whilst s 42B provides that Subdivision 2 applies subject to the provisions of a special Act, there are no relevant provisions that would otherwise apply in the case of the PCD Act .

20. The mandatory task of the Court is to examine the “decision” of the original decision-maker on the evidence or material before the original decision-maker, although the Court may allow further evidence or material as it thinks fit.[39]  In doing so the Court is not bound by the rules of evidence but may inform itself as it thinks fit[40] and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.[41] 

    [39] Section 42E(1).

    [40] Section 42E(2)(a).

    [41] Section 42E(2)(b).

21. The latter requirement is a further mandatory direction to the Court to conduct the appeal according to good sense and fairness, eschewing legal technicality, whilst having regard to the nature of the decision-maker and the decision under appeal.[42] This follows because it is incumbent on the Court to construe the provisions in Part 6 Division 2 of the District Court Act in their statutory context, including by reference to the special Act conferring jurisdiction on this Court, that is the PCD Act.

    [42] Griggs v Noris Group of Companies (2006) 94 SASR 126 per White J at 137-138 (Perry J agreeing).

22. On appeal, s 42F of the District Court Act permits the affirmation, rescission and substitution of a decision as considered appropriate or remission to the original decision-maker with directions or recommendations. These alternatives do not permit the Court to simply substitute the decision it considers appropriate. 

23. In this way, the appeal is limited and to be conducted by way of a rehearing[43] with special powers to hear fresh evidence.[44] It is not an ordinary merits review of the original decision,[45]  nor an appeal in the strict sense or an appeal de novo.[46] 

    [43] Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1 (McMurray) at [80] per Hinton J.

    [44] Section 42E (1).

    [45] Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72 at [315] per Stanley J (Gray J agreeing).

    [46] McMurray at [80].

    The Need for Cogent Reasons

24. Deference must be given to the original decision and the reasons for it by the express proscription in s 42E(3) of the District Court Act that they are to be given “due weight”.  Importantly, the Court must not depart from the original decision unless there are cogent reason for doing so.[47] “Cogent” should be understood as meaning “compelling, convincing or powerful”.[48]  

    [47] Section 42(3).

    [48] Registrar of Firearms at [315] per Stanley J (Gray J agreeing).

25. The Full Court in Commissioner for Consumer Affairs v McMurray considered the degree of deference to be given to the original decision by reference to the nature of the asserted error in the decision and reasons for decision,[49] concluding that the deference required is different where the asserted error relates to an ultimate legal issue determinative of the result.  The relevant principles are as follows.

    ·Where the asserted error relates to the exercise of a discretion, the making of an evaluative judgment or a policy decision, it is necessary for the appellant to establish there are errors of the type described in House v The King[50] and, depending on their nature, that such errors would have led to a different outcome.[51]  

    ·Where the asserted error relates to a finding on an ultimate factual issue determinative of the result, ordinarily the appellant must demonstrate that the finding made was not open on the material properly before the decision-maker. Where the asserted error relates to a finding of a primary or intermediate (but not an ultimate) factual issue, the appellant must also demonstrate that the correct factual finding would have led to a different outcome.[52]

    ·Where the asserted error relates to a finding on an ultimate legal issue determinative of the result, the appeal judge should determine the legal issue and should allow the appeal where the appeal judge concludes that the decision-maker wrongly decided the legal issue and it was determinative of the result. No question of deference to the decision of the original decision-maker arises.[53] 

    ·Where the asserted error relates to a finding on a primary or intermediate legal (but not an ultimate) issue, the appellant must also demonstrate that the correct legal finding would have led to a different outcome.[54]

    Disciplinary Proceedings under the PCD Act and Regulations

    [49] McMurray at [44]-[47] per Blue J and [82-[84]] per Hinton J, Parker J agreeing at [73].

    [50] (1936) 55 CLR 499.

    [51] McMurray at [46] per Blue J.

    [52] Ibid at [46] per Blue J.

    [53] Ibid at [47] per Blue J.

    [54] Ibid at [47] per Blue J.

    The Scheme of the Act

26. The PCD Act relevantly provides for the resolution of complaints about police officers and police disciplinary proceedings. Part 2 addresses the making of complaints and reports and their assessment by a separate Internal Investigation Section within SA Police (the IIS). Certain matters may be resolved by management under Part 3 of the PCD Act, whereas formal proceedings for breach of discipline (such as this appeal) are governed by Part 4 of the PCD Act.

27. Disciplinary proceedings progress through distinct stages, starting with the investigation of a complaint or report by the IIS under s 21.  Formal disciplinary proceedings are commenced by the Commissioner presenting a ‘notice of allegation’ to the Tribunal under s 22(1). It must be served in person on the designated officer concerned.[55]  

    [55] Section 22(7) of the PCD Act and reg 10(1) of the PCD Regulations.

28. Allegations presented before the Tribunal are proven in one of two ways: either by the designated officer making admissions under s 24 of the PCD Act[56] or where there are denials, disputed allegations being heard and determined by the Tribunal and a finding being made that a breach of discipline was committed.

    [56] And within the period and manner prescribed by the regulations. That is, an admission or denial must be made within 21 days from service and made to the registrar of the Tribunal: reg 12(1).

29. Admitted or found breaches of discipline are then remitted by the Tribunal to the Commissioner, who may take action by imposing sanction on the designated officer of the kinds specified in s 26. It should be emphasised that in imposing sanction, the Commissioner is bound by the admitted or found breaches of discipline and cannot impose sanction on a different basis. What is a different basis and the limit on the matters the Commissioner is entitled to take into account in determining sanction are key issues that were closely examined in this appeal.

30. Self-evidently, the Tribunal and the Commissioner have separate roles and discharge their functions regarding disciplinary proceedings independently and by reference to different considerations as relevantly provided for in Part 4 of the PCD Act. 

    Determination of Disputed Allegations

31. Part 7 of the PCD Act provides for the constitution and powers of the Tribunal and, in s 35, its procedures in proceedings to be heard by it for the determination of disputed allegations. 

32. The Tribunal must afford the Commissioner and the designated officer reasonable notice of the time and place at which the disciplinary proceedings are to be heard and a reasonable opportunity to call or give evidence, examine or cross-examine witnesses and to make submissions before the Tribunal.[57]  Subject to the PCD Act, the Tribunal in its proceedings is bound by the rules of evidence and is to follow the practice and procedure of courts of summary jurisdiction on the hearings of complaints for simple offences, to the extent it considers appropriate.[58]

    [57] Section 35(1).

    [58] Section 35(9).

33. Care should be taken in drawing any close analogies with the criminal law because of the Tribunal’s practice and procedure. Notably, the standard of proof is not beyond reasonable doubt, it is the civil one: the balance of probabilities.

34. Sections 25(2) and (3) of the PCD Act relevantly provide:

    (2) If the Tribunal is satisfied, on the balance of probabilities, that a designated officer committed a breach of discipline, the Tribunal must-

    (a)     make a finding that the designated officer committed the breach of discipline; and

    (b) remit the proceedings to the Commissioner for the imposition of sanctions in accordance with section 26; and

    …

    (3)When remitting proceedings to the Commissioner, the Tribunal may indicate to the Commissioner the Tribunal’s assessment of the seriousness or otherwise of the breach of discipline committed by the designated officer and, in that event, the Commissioner must, when making his or her determination as to the imposition of sanctions, have due regard to the Tribunal’s assessment.[59]

    [59] Emphasis added.

35. The Appellant submitted the Tribunal remitted the proceedings in this case to the Commissioner pursuant to s 25(2)(b) of the PCD Act, having found the breaches of discipline proven on the balance of probabilities on the basis of agreed facts.[60]  This was said to follow for two reasons.  First, because the Appellant did not admit the facts under s 24 of the PCD Act and subsequently made admissions to the Tribunal following protracted negotiations which were accepted in substitution for the Initial Notice of Allegation and the affidavits ‘filed’ in support.[61]  Secondly, because the Tribunal must under s 25(2) satisfy itself on the balance of probabilities of any admitted breach of discipline if no admission is made within the requisite 21-day period. 

    [60] Reply Submissions of the Appellant [1]; T12.23-.27; T20.20-.22; T126.23-.30. In fact, no sworn statements were filed as such or laid before the Tribunal.

    [61] Reply Submissions of the Appellant [2]-[5].

36. When asked in oral argument how the Tribunal would satisfy itself as to the requisite standard of proof in the absence of hearing any evidence at a trial, the Appellant’s counsel submitted the Tribunal had in this case ‘satisfied’ itself on the basis that the facts were agreed[62] and proceeded by ‘finding’ the allegations proven.[63]

    [62] T10.1-.27.

    [63] Reply Submissions of the Appellant [5].

37. I accept that the allegations were ‘proven’ before the Tribunal by admission.  However, I do not otherwise accept the Appellant’s submissions as correct having regard to the text, context and purpose of the PCD Act, properly read and applied to the circumstances of this case.  

38. A convenient starting point in testing this proposition is s 26. It contemplates two pathways to sanction from Tribunal proceedings: via s 26(1)(b), the admission of an alleged breach of discipline in accordance with s 24, or via s 26(1)(c), a finding that a designated officer committed an alleged breach of discipline in proceedings before the Tribunal.[64] It is implicit in the text of s 26(1)(c) that such a finding would only be made by the Tribunal after a hearing where the Commissioner and the designated officer concerned have been afforded reasonable opportunity to call or give evidence and examine and cross-examine witnesses and make submissions as provided in s 35(1)(a).

    [64] Putting aside s 26(1)(a), where a designated officer is found guilty of an offence under a law.

1. Where a notice of allegation is admitted under s 24, the PCD Regulations provide that the registrar of the Tribunal must forward the admission to the Commissioner, together with any written statement or request made by the designated officer and all other relevant papers.[65]  It is therefore not necessary or essential for the Tribunal to make an order remitting admitted breaches of discipline to the Commissioner for sanction. This does not mean that the designated officer may not make admissions before the Tribunal when sitting, as occurred in this case when the parties attended on the application to vacate the scheduled trial date.

   [65] Reg 12(2).

2. It is important to recognise that a notice of allegation is both the initiating process in disciplinary proceedings before the Tribunal and gives notice of the alleged breaches of discipline to be admitted or denied.  In the context of procedurally fair proceedings, a notice of allegation should convey the substance of the allegations made against the designated officer in terms of the alleged breach of discipline and the conduct allegedly giving rise to the alleged breach.  It is not in the nature of an information or a pleading and should not ordinarily include all the surrounding circumstances relevant to the issue of breach nor, of course, the evidence that might be relied on at trial in determining breach. 

3. The 21-day period required for any admission does not preclude the making of later admissions. Whilst the PCD Act and Regulations do not expressly contemplate the presentation of an amended notice of allegation before the Tribunal (or for that matter service of an amended notice of penalty after commencement of the formal disciplinary proceedings), it is implicit from the Tribunal’s power and procedures under the PCD Act that admissions of an amended notice of allegation inside or outside the 21-day period would be unexceptional in the context of  procedurally fair proceedings.  The parties do not contend otherwise.

4. Section 25 addresses the second pathway to sanction from disciplinary proceedings where the allegations in a notice of allegation are denied.  If denied, the alleged breaches of discipline in the notice of allegation are disputed and must therefore be heard and determined: s 25(1). This is the exclusive role and function of the Tribunal: to conduct a hearing and determine whether a designated officer committed a breach of discipline or not.  A finding that a breach of discipline was committed must be made where the Tribunal is so satisfied on the balance of probabilities: s 25(2)(a). 

5. If a breach of discipline is found, the Tribunal must then remit the proceedings to the Commissioner for sanction under s 26: s 25(2)(b). When remitting the proceedings the Tribunal may indicate to the Commissioner its assessment of the seriousness or otherwise of the breach of discipline committed by the designated officer, to which assessment the Commissioner must have due regard in imposing sanction: s 25(3).

6. Contrary to the Appellant’s submissions, there is nothing in the text, context or purpose of s 25 or the PCD Act as a whole to indicate that the legislature intended s 25 to apply to admitted breaches of discipline.  The section heading and subject  of s 25, both expressly and contextually, confine its application to disputed allegations that are to be heard and determined by the Tribunal. The language of  “findings” that must be made if the Tribunal is “satisfied on the balance of probabilities” indicates the weighing of evidence about disputed allegations made after hearing a trial.  

7. There is similarly no basis for reading s 25(3) differently from the rest of s 25. Therefore, the requirement in s 25(3) that the Commissioner in imposing sanction must have due regard to the Tribunal’s assessment of the seriousness or otherwise of the breach of discipline committed by the designated officer, should only apply where a disputed allegation has been heard and determined (by a trial) and a finding is made by the Tribunal having been satisfied on the balance of probabilities that a breach of discipline was committed.

8. In my view, this construction sits quite comfortably with the policy intent of s 25(3). Where a finding of breach of discipline is made following a trial of a disputed allegation, there has been reasonable opportunity to call evidence and examine and cross-examine witnesses about the conduct the subject of the alleged breach of discipline and the surrounding circumstances relevant to the issue of breach. The Tribunal is then well placed to assist the Commissioner to decide sanction by providing an informed assessment of the seriousness or otherwise of the breach of discipline found because the Tribunal would likely have made findings on matters beyond the bare allegations in the notice of allegation that initiated the Tribunal proceedings.

9. If I am wrong and s 25(3) should properly be read as applying to the remission of proceedings to the Commissioner whether determined by admission or findings made after a trial, the weight to be accorded to the Tribunal’s assessment of the seriousness of admitted breaches of discipline should be expected to be less in the case of admissions, particularly where the admitted allegations were bare and the Tribunal less than fully informed.

   Sanction Proceedings

10. Section 26(1) provides as follows:

    (1)If a designated officer—

    (a)is found guilty of an offence under a law of this State, the Commonwealth or another State or Territory; or

    (b)admits an alleged breach of discipline in accordance with section 24; or

    (c)is found to have committed a breach of discipline in proceedings before the Tribunal,

    the Commissioner may take action, or order the taking of action, of 1 or more of the following kinds in relation to the designated officer:

    (d)termination of his or her appointment;

    (e)suspension of his or her appointment for a specified period;

    (f)if he or she is a member of SA Police—

    (i)transfer of the member to another position in SA Police for a specified period; or

    (ii)reduction in the member's rank (whether or not the loss of income resulting from the reduction exceeds the amount prescribed for the purposes of paragraph (h)); or

    (iii)reduction in the member's seniority;

    (g)if he or she is a police cadet—withdrawal of specified rights or privileges for a specified period;

    (ga)if the designated officer is a police security officer—

    (i)transfer of the officer to another position; or

    (ii)reduction in the officer's rank (whether or not the loss of income resulting from the reduction exceeds the amount prescribed for the purposes of paragraph (h)); or

    (iii)reduction in the officer's seniority;

    (h)reduction of his or her remuneration by a specified amount for a specified period (but not so that the total amount forfeited exceeds the amount prescribed by regulation for the purposes of this paragraph);

    (i)imposition of a fine not exceeding the amount prescribed by regulation;

    (j)a reprimand recorded in his or her conduct and service history kept under the regulations;

    (k)an unrecorded reprimand;

    (l)counselling;

    (m)education or training;

    (n)action of any other kind prescribed by regulation.

11. It is fundamental that the Commissioner must only impose sanction under s 26 on the admitted or found breach of discipline on which he may take action. In doing so, the Commissioner is confined to the admitted or found facts and the legal characterisation of those facts constituting the relevant breach of discipline. To impose sanction on any other basis than the breach of discipline in the form admitted would be an error of law determinative of the ultimate result and vitiate the sanction imposed.

12. The Commissioner’s discretion in imposing sanction is broad, in keeping with the Commissioner’s role as the administrative decision-maker with overall responsibility for the management and control of SA Police.  It is unexceptional that the PCD Act (and Regulations) do not specify the practice and procedure to be followed in sanction proceedings in the same way as they do for the Tribunal.

13. The legislature having conferred on the Commissioner as an administrative decision-maker a discretion on sanction in unconfined terms, the Commissioner may take into account similar unconfined matters save for those limits found in the subject-matter, scope and purpose of the PCD Act.[66]The only express confinement is found in s 25(3), that provides the Commissioner must have due regard to the Tribunal’s assessment of the seriousness or otherwise of the breaches of discipline committed by the designated office when determining the imposition of sanction.

    [66] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J.

14. There are two provisions in the PCD Regulations of relevance. The first is found in reg 12(2) requiring the registrar of the Tribunal to forward the admission and any written statement or request made by the designated officer and “all other relevant papers” to the Commissioner.  In imposing sanction, the Commissioner is not confined to only the notice of allegation admitted by a designated officer because other relevant papers are to be considered.

15. The second is found in reg 12(3). That is, where a breach of discipline is admitted, before making a decision on sanction, the Commissioner must consider any submissions in mitigation made by written statement attached to the admission or by personal representation if the designated officer indicates a desire to appear before the Commissioner.[67] 

    [67] Reg 12(3).

16. It is uncontentious that the Commissioner must also afford the designated officer procedural fairness in determining sanction. This is a necessary incident of the conferral of his power under s 26 affecting the rights and interests of the designated officer to be sanctioned. Other than reg 12(3), the steps that the Commissioner should take to ensure procedural fairness are not specifically identified. Nor should they be. It is not appropriate to attempt to state universal rules about how the Commissioner as an administrative decision-maker should ensure procedurally fair sanction proceedings. As always, what is procedurally fair should always be moulded to the specific circumstances of the case.[68]

    [68] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ; at [48] per McHugh and Gummow JJ.

17. Next, it is useful to make some general observations about the nature of sanction proceedings as relevant to this appeal. Given the administrative nature of the Commissioner’s decision on sanction, it follows that a sanction proceeding should not proceed in an adversarial manner like a trial. There is no general joinder between the designated officer and the Commissioner or of issues like in a civil trial.

18. As reg 12(3) expressly contemplates, submissions in mitigation are to be made by or on behalf of the designated officer. It would be unexceptional for the Commissioner to either accept at face value submissions made or reject others considered inherently implausible or clearly contradicted by available inferences from relevant material. 

19. A process for making submissions in mitigation does not, in my view, preclude fact finding relevant to sanction. 

20. The process of determining sanction necessarily requires the consideration of relevant matters, the drawing of inferences from that material and the making of findings relevant to sanction. Where there are disputed facts in determining sanction under s 26, the Commissioner undeniably has the power to permit examination and cross-examination of witnesses, albeit this would likely be a rare case and involve considerations as to what was procedurally fair. I accept the Commissioner’s submissions in this regard.[69]  

    [69] Summary of Argument of the Respondent [24].

21. I therefore see no reason to theoretically constrain what might be a relevant consideration in sanction proceedings. Again, there should be no inflexible rules limiting the matters relevant to sanction in any given case because what is relevant will depend on the facts of the case. It would be unexceptional for evidence of the ‘impact’ of impugned conduct on a complainant to be considered in assessing the harm caused by professional misconduct in determining action that best protects the public. The Commissioner’s submission should therefore be accepted that evidence contained within a statement from a victim is clearly capable of bearing on matters relevant to the protection of the public,[70] and is not “wholly inadmissible” as a matter of principle.[71]

    [70] Ibid [34.3].

    [71] Appellant’s Submissions in Reply [13].

22. In challenging the basis of the Deputy Commissioner’s decision on sanction, the Appellant submitted that the Tribunal is “the exclusive finder of fact in respect to all circumstances” of an alleged breach of discipline.[72]  With respect, I consider the position is more subtle than this.  Rather, consistent with its role and function as the exclusive finder of ‘a breach of discipline’, it should be accepted that the Tribunal is the exclusive finder of facts relevant to determining whether a designated officer committed a breach of discipline or not.  In the case of disputed allegations, this would include findings about the nature of the breach of discipline arising and the conduct giving rise to the alleged breach. Such findings may or may not concern the surrounding circumstances or context of the alleged conduct.

    [72] Appellant’s Submissions in Reply [6]; T14.8-.9.

23. Accepting the Commissioner is confined to the admitted facts and legal characterisation of those facts as the basis of sanction, it follows that the Commissioner has no power to make any further or alternate findings on the issue of ‘breach of discipline’.  This would include findings that ‘fill in the detail’ of the conduct the subject of the breach of discipline.[73] This is because the issue of breach is required to be proven before the Tribunal. 

    [73] Contrary to the submission in the Summary of Argument of the Respondent [61].

24. The Commissioner’s power to make findings relevant to sanction on the basis of a found or admitted breach of discipline is an entirely different matter.

25. Plainly, the issues before the Tribunal and sanction proceedings, although interdependent, are conceptually quite different and matters relevant to sanction may well have no relevance to breach.  Other matters may touch on both issues, and it is in this grey area that difficulties may arise in practice.  That said, it would be odd for the Commissioner to be precluded from making findings of fact relevant to sanction on contentious or new facts in the context of a procedurally fair proceeding, bearing in mind the nature of the two proceedings is different and they serve different purposes. 

26. That said, I emphasise again two matters.  First, the Commissioner should take care not to intrude where the issue of breach has already been determined and forms the basis of sanction.  Secondly, it can be seen that the critical question is whether the designated officer has been afforded procedural fairness in all the circumstances. Generally, any material to be relied upon in sanction proceedings should be clearly identified and, where adverse to the designated officer, the substance should be notified and the designated officer should be given a reasonable opportunity to address such material, whether by submissions or otherwise.  What might be fair will depend on the circumstances of the case.

27. Contrary to the Appellant’s submissions[74] relying on the decision in DC,[75] it should not in my view be accepted as a universally correct proposition that all material considered at the sanction stage should have been disclosed to the designated officer at the Tribunal stage and before any admission is made.  

    [74]  Written Submissions of the Appellant [35]-[38].

    [75] Op cit.

28. This follows because different issues arise for consideration before the Tribunal in determining breach and before the Commissioner for sanction, so what is relevant to breach may well be irrelevant to sanction and vice versa. Further, the legislature has expressly identified what is required for procedural fairness before the Tribunal as regards sanction in s 22(4):

    The Commissioner must, on commencing proceedings for a breach of discipline, provide to the designated officer concerned a written notice indicating the “punishment” that the Commissioner would be likely to impose if the breach of discipline were proved on the basis of the facts as known to the Commissioner at the time the notice of allegation is presented.[76]

    [76] Emphasis added.

29. It should also be borne in mind that a designated officer has only 21 days from the commencement of Tribunal proceedings within which to admit or deny the allegations in a s 22 notice of allegation.  And a notice of likely penalty must not be provided to the Tribunal.[77] This is because it is not relevant to the issue of breach before the Tribunal.

    [77] Section 22(5).

30. These provisions are therefore an important indication that the legislature considered it was not necessary to require full disclosure of all material relevant to breach and sanction before a designated officer made admissions.  If this was not the case, the PCD Act could easily have provided so.  It does not because it would be impractical, untimely and inefficient to do so.  It would also defeat the clear policy intent of early admissions so as to avoid protracted proceedings before the Tribunal.

    The Nature of the Decision-Maker on Sanction

31. The separation of responsibility for liability and sanction between the Tribunal and the Commissioner under the PCD Act is a deliberate policy decision by the legislature to ensure that the decision-maker best placed to determine the action to be taken for offences and breaches of discipline is the person with the highest authority responsible for management and control of SA Police.  Plainly, the Commissioner is best placed to make decisions that best maintain professional standards, public confidence in the integrity of SA Police and the health, safety and well-being of all members of SA Police. 

32. The Deputy Commissioner as the delegate of the Commissioner of Police for the purposes of the Police Act 1998 and the PCD Act,[78] has the authority to preside over disciplinary matters and exercise delegated functions and powers under the PCD Act  and impose sanctions for breaches of discipline admitted by a designated officer such as the breaches admitted by the Appellant in this case.

    [78] Exhibit R3 [3].

33. It follows that the Deputy Commissioner is equally best placed to sanction breaches of discipline having regard to her overall control and responsibility for the management of SA Police, subject only to the direction of the Commissioner, having regard to her obligations to ensure that workplace and personnel management practices and policies are followed within SA Police to ensure the health, safety and well-being of all members of SA Police and that all are treated fairly and consistently, there is no unlawful discrimination and there is equal opportunity for promotion and advancement. The relevant practices and policies fall within her oversight of the Code of Conduct, General Order 8420 and the Respectful Workplace Guidelines that are the subject of the admitted allegations in the Amended Notice of Allegation and form the basis of sanction under s 26 of the PCD Act in this case.

34. Finally, it should be accepted, as the Commissioner submits,[79] that the purposes of the PCD Act in facilitating the timely and effective investigation and prosecution of complaints against designated officers, promoting public confidence in the police force[80] and ensuring the police force operates effectively and with integrity[81] are best served by the Commissioner, in the context of a procedurally fair process, being able to consider all factual matters he or she regards as relevant, taking into account his or her “particular expertise in the managerial requirements of the police force.”[82]

    [79] Summary of Respondent’s Arguments [31]-[32].

    [80] H v Commissioner of Police [2016] SADC 64 at [91] per Beazley DCJ.

    [81] Police Service Board v Morris (1985) 156 CLR 397 at 412 per Brennan J.

    [82] Aldrich v Ross [2001] 2 QD R 235 at 257 per Thomas JA.

    The Protective Purpose of Disciplinary Proceedings

1. It is well established that the purpose of professional disciplinary proceedings is to maintain professional standards and is protective of the public, not punitive.  As explained in the oft-cited authority on point, Craig v Medical Board of South Australia:[83]

   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 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.

   [83] (2001) 79 SASR 545 at [41].

2. Sometimes the protection of the public will require an order cancelling the registration or appointment of a professional, even when considerations of mercy would lead to a less severe sanction if punishment of the practitioner were the only concern.[84] The protection of the public may in other circumstances justify a sanction intended to bring home to a professional the seriousness of their departure from accepted professional standards and be intended to deter further departure.[85]  This purpose may also justify a sanction that makes it clear that certain conduct is not acceptable.[86]  The effect on the professional concerned does not make the sanction punitive.

   [84] Ibid at [43].

   [85] Ibid at [47].

   [86] Ibid at [48].

3. In the context of the PCD Act, whilst disciplinary action taken may result in the loss of privileges or has an apparently penal or punitive effect on a designated officer, the purpose of sanction is not grounded in principles of punishment for wrongdoing.

   Relevant Code of Conduct Provisions

4. For the purpose of the maintenance of professional standards by designated officers as provided for in s 7(1)(a) of the PCD Act, a code of conduct (the Code of Conduct) has been established by regulation as found in Schedule 3 of the PCD Regulations.

5. The alleged breaches of discipline in this case concern two provisions of the Code of Conduct.

6. First, cl 4 of the Code of Conduct (cl 4 of the Code of Conduct) that provides as follows:

   4 – Performance of orders and duties

   A designated officer must not, without good and sufficient cause, disobey a lawful order or direction or fail to carry out a lawful order, direction or duty promptly and diligently.

7. The relevant order is General Order 8420, “Human Resource Management - Diversity and Inclusion” (General Order 8420), that sets out the roles and responsibilities of managers and supervisors and all employees for maintaining a safe and respectful workplace as follows: [87]

   [87] The text of the relevant sections of General Order 8420 as provided to the Appellant is set out in the Summary of Allegations and is part of Exhibit MJW-2 to Exhibit A1.

   4.     ROLES AND RESPONSIBILITIES
   Managers and Supervisors

   are responsible for:

   ·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:

   ·Behave professionally and treat other employees with dignity and respect.

   ·Comply with the provisions of this General Order and the Respectful Behaviour Guidelines.

8. General Order 8420 later defines and forbids any form of sexual harassment, provides examples of sexually harassing behaviours and sets out extracts from the relevant Equal Opportunity legislation. 

9. There is no dispute that it is a lawful order that applied to the Appellant or that he was required to comply with it or that he knew about its provisions.

10. Secondly, cl 7 of the Code of Conduct (cl 7 of the Code of Conduct) that relevantly provides as follows:

    7 - Conduct towards public, designated officers in the department

    A designated officer… in dealing at any time with designated officers…

    (a)     must not unlawfully discriminate against any person; and

    (b)     must not behave in an oppressive, offensive, abusive or insulting manner; and

    (c)     must be impartial and respectful.

    Factual and Procedural Background

    Relevant Evidence and Material

11. In this appeal the Appellant relied on two affidavits that were received in evidence without objection.  The first was sworn by the Appellant[88] and addresses his background and good service as a police officer, the allegations made against him, the sanction hearing and how the decision and sanction affect him.  His affidavit exhibits some, but not all, of the evidence and materials before the Deputy Commissioner.  The second affidavit[89] was affirmed by the solicitor with conduct of the formal disciplinary proceedings for the Appellant and exhibits correspondence between her firm and the Professional Conduct Section of SA Police regarding negotiations to resolve the matter that led to him formally admitting the Amended Notice of Allegation.

    [88] Exhibit A1.

    [89] Exhibit A2 comprising the affidavit of Hanna Katherine Rogers made on 27 March 2023 (FDN 12).

12. The Commissioner relied on three affidavits sworn by the Deputy Commissioner that were also received in evidence without objection.[90] These affidavits address the Deputy Commissioner’s role and responsibilities for management of discipline, people and culture within SA Police and identify further materials and evidence that was before her to which she had regard in determining sanction, as referenced in her Decision.

    [90] Exhibit R3,  Exhibit R4 comprising the second affidavit of Linda Williams sworn on 14 February 2023 (FDN 11) and Exhibit R5 comprising the third affidavit of Linda Williams sworn on 8 March 2023 (FDN 13).

13. The Court was assisted in identifying the materials before the Deputy Commissioner at the sanction hearing by an aide-memoire.  It was helpfully cross-referenced to the evidence in this appeal.[91]

    [91] Prepared by the Crown Solicitor’s Office for the Commissioner with the consent of the Appellant and provided by email sent on 14 June 2023 at 10:51 am.

    The Formal Complaint

14. On 26 September 2019, the Probationary Constable gave a statement to the Diversity and Inclusion branch of SA Police complaining about sexual comments allegedly made to her by the Appellant during the six months they worked together.  Her statement was sworn on 20 November 2019 (the Sworn Statement).[92]  In addition to addressing the Appellant’s allegedly inappropriate behaviour towards her, she made observations about the impact of his alleged conduct on her and criticisms about the SA Police workplace culture that she felt was unsupportive and accepting of inappropriate behaviour, all of which she said contributed to her deciding to leave SA Police in September 2019.  Although she had submitted her resignation, the Probationary Constable did not resign and instead took a position away from patrols.  She said SA Police then offered her this opportunity and the support she needed, so she stayed longer.  The Probationary Constable left her employment with SA Police in February 2021.

    [92] Exhibit MJW-3 to Exhibit A1.

    Recorded Interview

15. In about February 2020, as a result of the Probationary Constable’s formal complaint about his behaviour towards her, the Appellant attended a recorded interview with two officers from the ISS.[93] The interview lasted approximately two hours and the transcript (the Record of Interview)[94] was put before the Sanction Hearing. 

    [93] The interview was conducted under s 21(5) of the PCD Act.

    [94] Exhibit MJW-1 to Exhibit A1.

16. From the Record of Interview it is evident that the Appellant was told at the outset that he was being investigated for his behaviour towards the Probationary Constable. His alleged behaviour was not only disrespectful and offensive but alleged to be sexual harassing and predatory behaviour in contravention of General Order 8420. The Appellant was told he allegedly had made repeated sexual comments towards the Probationary Constable, both in person and via messages, including references to her buttocks and breasts.[95]

    [95] Exhibit MJW-1 to Exhibit A at lines 104-114.

17. The Appellant was then read each of the allegations made against him in the Sworn Statement and directed to respond as each was read to him, which he did.

    The Conduct the Subject of Complaint

18. The conduct the subject of complaint before the Tribunal concerned five instances of sexual comments made by the Appellant to the Probationary Constable during the six-month period they worked together. 

19. Whilst the substance of the alleged conduct remained largely the same throughout the Tribunal proceedings, the allegations in the Initial and Amended Notices of Allegation were materially different in two important respects. 

20. First, key particulars of the fifth instance were amended in favour of the Appellant’s version as to what was said. Secondly, and most notably, the characterisation of the alleged breaches of discipline arising from the alleged conduct was substantially amended.  In the Initial Notice of Allegation, all five instances of sexual comments were alleged (both directly[96] and indirectly[97]) to constitute sexual harassment in breach of General Order 8420,[98] whereas in the Amended Notice of Allegation only the first instance was alleged to be sexual harassment.

    [96] That is, by count 6.

    [97] That is, by alleging the conduct fell within the definition of sexual harassment:  Particulars 2.2, 3.2, 4.3 and 5.2 of the Initial Notice of Allegation.

    [98] Incorrectly alleged as a breach of cl 1 (and not cl 4) of the Code of Conduct.

21. The Appellant through his legal representatives took objection to the drafting of the Initial Notice of Allegation on a number of grounds, including that it was incompetent to invoke the Tribunal’s jurisdiction and gave rise to issues of duplicity (that is, it charged the same conduct twice).  Further, apart from the sixth allegation (that relied on all five alleged instances as a course of conduct constituting sexual harassment), the first five allegations  were alleged as breaches of cl 7 of the Code of Conduct (i.e. oppressive, offensive, abusive or insulting  or disrespectful behaviour) despite also being alleged to fall “within the definition of sexual harassment.”

22. Apart from the detail of what precisely was said on the fifth instance, it was properly conceded by the Appellant before the Tribunal that the issue for trial would not have been what was said, but the context in which each comment was said and the proper characterisation of such conduct as breaches of the Code of Conduct. Throughout, the Appellant consistently denied any intention to offend or disrespect the Probationary Constable, ever discussing with her his affairs (because he denied having any) or having any sexual interest in her.  He explained his behaviour as humour and workplace ‘banter’.

    Formal Disciplinary Proceedings

23. On 25 May 2020, the Commissioner commenced formal proceedings for breaches of discipline by presenting the Initial Notice of Allegation[99] to the Tribunal in accordance with s 22(1) of the PCD Act.

    [99] Exhibit MJW-2 to Exhibit A1.

24. Six breaches of discipline were “charged” for the five instances of sexual comments allegedly made to the Probationary Constable between 27 June 2018 and 11 January 2019. 

25. The language of “charge” and “count” used in the Initial Notice of Allegation would appear to be adopted in accordance with the practice and procedure of courts of summary jurisdiction in hearing complaints for simple offences as provide for in s 35 of the PCD Act.  However, it is strictly not in accordance with the scheme of Part 4 of the PCD Act concerning formal proceedings that clearly distinguishes between “offences charged” under a law and “breaches of discipline” defined to mean :

    …conduct that contravenes this Act or breaches the code of conduct and that may be the subject of a notice of allegation under this Act.[100]

    [100] Section 3(1) of the PCD Act.

26. All five instances were alleged to constitute breaches of cl 7 of the Code of Conduct for allegedly behaving in an offensive, insulting and disrespectful manner towards another designated officer, the Probationary Constable.  It was also alleged that the conduct the subject of counts 2 to 5 “falls within the definition of sexual harassment”.[101]

    [101] Using the language of the Initial Notice of Allegation.  For convenience, I will refer to the language used in the relevant documents and the Tribunal proceedings.

27. The sixth charge further alleged that the conduct the subject of the other five charges constituted sexual harassment contrary to General Order 8420 Human Resource Management, Diversity and Inclusion and the Respectful Workplace Behaviour, in breach of “Schedule 3, Clause 1” of the PCD Regulations”.[102]

    [102] Presumably the reference to cl 1 was a typographical error and was intended to refer to cl 4.

28. The Initial Notice of Allegation was accompanied by a Summary of Allegations.[103]  The introductory paragraphs referred to ‘a clear power imbalance’ between the Appellant and the Probationary Constable, stating:

    Managers and Supervisors are responsible for providing a safe work environment that enables employees to carry out their work responsibilities free of negative workplace behaviours.

    [103] Part of Exhibit MJW-2 to Exhibit A1.

29. It then gave notice as to how it was alleged each of the sexual comments fell within the definition of sexual harassment as well as setting out relevant extracts from General Order 8420, including s 87 of the Equal Opportunity Act 1984 that defines and prohibits sexual harassment at work.

30. This Initial Notice of Allegation was not before the Deputy Commissioner in the sanction proceedings.[104]  It was superseded, after negotiations between the parties, by the allegations made in the Amended Notice of Allegation issued nearly two years later, on 31 March 2022, that the Appellant admitted before the Tribunal.

    [104] Exhibit R4 [6].

    Notice of Likely Penalty

31. In early June 2020, in accordance with the Commissioner’s obligation under s 22(4) of the PCD Act on commencing proceedings for a breach of discipline, the Appellant was provided with a Notice of Likely Penalty dated 25 May 2020 (the Notice of Likely Penalty).[105]

    [105] Exhibit LW-2 to Exhibit R3.

32. The highest indicated sanction was suspension, as well as other sanctions such as transfer or reduction in rank or seniority, reduction in remuneration, the imposition of a fine, a recorded or unrecorded reprimand, counselling, education or training and action of any other kind prescribed by regulation.[106] 

    [106] That is, the actions provided in s 26(1)(e) to (f) and (h) to (n) but not (d) of the PCD Act.

33. Ultimately, the Notice of Likely Penalty was superseded by a further notice of likely penalty dated 18 January 2021 (the Further Notice of Likely Penalty).[107]  It was uncontroversial in this appeal and should be accepted that the notice of likely penalty does not bind the Commissioner to a final position on sanction. This is made clear in the PCD Act by the express reference to the facts known by the Commissioner at the time the notice is given.

    [107] Exhibit LW-3 to Exhibit R3.

34. It was not before the Deputy Commissioner in the sanction proceedings.

    Disclosure

35. By letter dated 18 June 2020, initial disclosure of evidentiary material was made to the Appellant, including the Probationary Constable’s Sworn Statement as well as two sworn statements of the sergeant who was the relevant team leader responsible for the Appellant and the Probationary Constable.  The first[108] of these set out his account of the Probationary Constable’s first complaint about the Appellant’s conduct in January 2019 (as mentioned earlier), how he dealt with it informally as a management matter and between them as team members and her initial resignation in September 2019.  The second,[109] sworn on 18 May 2020, clarified the interactions the Sergeant had observed between them.

    [108] Exhibit MJW-4 to Exhibit A1.

    [109] Exhibit MJW-5 to Exhibit A1.

36. Two further sworn statements were disclosed to the Appellant during the course of the Tribunal proceedings: affidavits of the detective sergeant attached to the Diversity and Inclusion branch of SA Police made on 7 April 2021 and 11 March 2022.[110]  Her statements exhibited the Appellant’s activities and training records and General Order 8420 and the Respectful Workplace Behaviours Guidelines.

    [110] Exhibit LW-7 to Exhibit R3.

37. None of this evidentiary material was laid before the Tribunal.

38. The Probationary Constable’s Sworn Statement, the statements of the sergeant and an abridged statement of the detective sergeant were before the Deputy Commissioner in the sanction proceedings.

    Suspension

39. The Appellant was informed by notice dated 29 June 2020[111] that his appointment as a member of SA Police was suspended forthwith under s 23 of the PCD Act by reason of the charges laid in the Tribunal by the Initial Notice of Allegation.  The Appellant remained on suspension until the termination of his appointment on 8 August 2022. 

    [111] Exhibit MJW-6 to Exhibit A1.

    Commencement of Negotiations

40. In December 2020, the Appellant commenced negotiations with the Ethical and Professional Standards Branch of SA Police to resolve the disciplinary proceedings before the Tribunal. Negotiations continued and ultimately resulted in the Amended Notice of Allegation being presented to the Tribunal 15 months later, in March 2022.

41. The Appellant’s unchallenged sworn evidence was that the negotiations commenced concerned “several factual matters” in the Initial Notice of Allegation.[112] The transcripts of the Tribunal proceedings and solicitors’ correspondence in evidence in this appeal show that the more substantive dispute concerned the legal competency of the Initial Notice of Allegation based on its drafting.  However, the Appellant maintained his denial of certain factual matters throughout.

    [112] Exhibit A1 [25].

    Further Notice of Likely Penalty

42. In about late January 2021, some eight months after the proceedings in the Tribunal commenced, the Further Notice of Likely Penalty was provided to the Appellant indicating termination of his appointment as the likely highest sanction.

    The Further Particulars

43. On 21 December 2021, an email was sent by the Professional Conduct Section of SA Police to the Appellant’s solicitors providing in effect further and better particulars of the first allegation (that is count 1) in the Initial Notice of Allegation in response to earlier requests made by the Appellant’s solicitors for them.

44. The email referred to the particulars as being in two paragraphs of the Probationary Constable’s Sworn Statement and then listed 11 further particulars (the Further Particulars) as clarified and advised by her that day. 

45. The status of the Further Particulars was raised by counsel for the Appellant before the Tribunal on 23 December 2021. Counsel invited the incorporation of the Further Particulars into an amended notice of allegation so that the Appellant could not be met with an argument at trial that they were just a summary and not in fact particulars of the alleged breach of discipline.  In discussion with his Honour, the matter was left on the basis that the email gave sufficient particulars of the alleged conduct and clear notice of the basis upon which the “Crown’s case was pitched” for the relevant allegation.[113]

    [113] Exhibit LW-17 to Exhibit R4 at T2.27-.29 and T6.15-7.18.

46. Neither this correspondence between the parties nor what transpired before the Tribunal is capable of being construed as the Appellant by his counsel adopting the Further Particulars or agreeing to them in any way.  At their highest, the Further Particulars were further allegations of what he said about his sex life and affairs, general allegations made against the Appellant about which he was on notice.

    Amended Notice of Allegation

1. The Commissioner therefore submits the parts of the Impact Statement relied upon were relevant and not misused by the Deputy Commissioner. 

2. The Commissioner’s submissions in this regard should be rejected. The above passage highlighted by both parties is telling and discloses fundamental errors in the Deputy Commissioner’s use of the Impact Statement in reaching her decision on sanction.

3. The first error is the Deputy Commissioner’s statement that she gave no weight to the particulars of the fifth allegation because “it was not particularised in her statement.”  This should not have been the reason for disregarding the Probationary Constable’s particularisation of the fifth allegation.  Those particulars were irrelevant because they were not admitted and therefore not the factual basis of sanction.  The Probationary Constable’s Sworn Statement was not the factual basis of sanction, the Amended Notice of Allegation was.

4. The second error concerns the Deputy Commissioner’s otherwise unqualified acceptance of the detail in the Impact Statement of the actual effect and harm caused to the Probationary Constable by the Appellant’s conduct.  She could not have properly used just limited parts of the Impact Statement to understand the impact of the Appellant’s admitted conduct on the Probationary Constable because of its generality and the way in which it impermissibly rolled up relevant and irrelevant allegations of conduct, effect and harm, bearing in mind the Impact Statement goes well beyond the facts admitted by the Appellant.  As I have found above,[160] it details a collation of conduct, effect and harm so lacking in specificity that it is impossible to excise the effect and harm arising only from the conduct admitted by the Appellant that forms the proper and only factual basis of sanction.

   [160] See [166]-183] above.

5. The Deputy Commissioner made no discernible attempt to disclaim or disentangle the actual effect and harm caused to the Probationary Constable from the Appellant’s admitted conduct as distinct from the general allegations made against him (or against other members of SA Police and its management) as detailed in the Impact Statement.  She should have expressly acknowledged that any effect or harm resulting from his conduct generally (or that of others) was extraneous and irrelevant to sanction for his admitted breaches of discipline.  It should not be accepted that the Deputy Commissioner could be expected to disregard and not draw impermissible inferences from irrelevant matters that were inextricably tangled.

6. Further and contrary to the Commissioner’s submissions, it is not evident that the  Deputy Commissioner disregarded all inconsistencies between the Impact Statement and the sworn statements.  Aside from the fifth allegation, the Deputy Commissioner does not identify or refer to any of the significant and more serious differences between the allegations made in the Sworn Statement and the Impact Statement that are identified above.[161]

   [161] See [170]-[179] above.

7. The third, and perhaps most serious, error concerns the Deputy Commissioner’s adoption of the same characterisation of the Appellant’s conduct as ‘sexual harassment’ in her reasons as was made throughout the Impact Statement.[162] This error demonstrates the significant influence the Impact Statement had on her decision.[163]

   [162] See [177]-[179] above.

   [163] See [204]-[207] above.

8. Notably, the Deputy Commissioner refers in her reasons to a “zero tolerance attitude to sexual harassment” necessitating the sanction of termination because the risk for potential harm from the Appellant’s continued employment was too great.  Given four of the five admitted breaches of discipline did not concern sexual harassment, any lack of tolerance of the Appellant’s conduct should have reflected his admitted breaches of discipline and not the characterisation alleged in the Impact Statement adopted by the Deputy Commissioner.

9. I have reflected on whether the references in the Deputy Commissioner’s reasons to ‘sexual harassment’ were no more than loose references to the Appellant’s conduct in making inappropriate ‘sexual’ comments and jokes and not intended as a characterisation of his breaches of discipline contrary to his admissions.  Ultimately, I have concluded this was not the case because I have found no support in the text or context of the Deputy Commissioner’s reasons for thinking she was not impermissibly influenced by the Impact Statement.  Indeed, the Commissioner’s written submissions repeat the same error.[164]

   [164] Summary of Argument of the Respondent [71].

10. Having concluded that the Deputy Commissioner’s references to ‘sexual harassment’ must be read as referring to the nature of the breach of discipline, it is obvious that the relevant breach of discipline involves cl 4 of the Code of Conduct requiring the Appellant as a designated officer to obey General Order 8420 that defines and forbids any form of sexual harassment. Such conduct is quite distinct from ‘oppressive, offensive, abusive or insulting’ conduct in breach of cl 7 of the Code of Conduct, mention of which is completely absent from her reasons for decision.

11. It should be emphasised again that in imposing sanction, the Deputy Commissioner was confined by the admissions made by the Appellant before the Tribunal in the form of the Amended Notice of Allegation.  She was therefore confined to both the facts and the legal characterisation of those facts as breaches of discipline to the extent they were admitted. 

12. The inevitable conclusion is that the Deputy Commissioner’s reasons show that by relying on the Impact Statement to impose sanction, she allowed extraneous, prejudicial and/or irrelevant matters to guide her decision and she imposed sanction on the wrong legal and factual basis by characterising all of the Appellant’s admitted conduct as sexual harassment in breach of cl 4 of the Code of Conduct when that was only the case for the first allegation and imposing sanction on a basis that was inconsistent with the Amended Notice of Allegation. 

    The Further Particulars

13. For completeness, I now turn to consider the issue of the Further Particulars, the subject of the fifth ground of appeal.  The Appellant submits the Deputy Commissioner was mistaken in her understanding that the Further Particulars were agreed and, by relying on them, imposed sanction on an incorrect factual basis.

14. The Further Particulars were set out in the Decision Letter in numbered paragraph [1.8] as further particulars of the breach of the first admitted allegation.[165]  They follow the text of the first allegation made in the Amended Notice of Allegation, as the Appellant’s admission of the first breach of discipline “As confirmed by you before the Tribunal” and a paragraph in which the Deputy Commissioner notes her  understanding and conclusion to the effect that the Further Particulars were agreed and adopted by the Appellant’s counsel.[166]  

    [165] Decision Letter, page 3.

    [166] Decision Letter, last paragraph on page 2.

15. For the reasons stated above,[167] the Deputy Commissioner’s understanding as to their status was incorrect, as the Appellant correctly submits.  Nothing was said or done by the Appellant or his counsel to adopt or agree the Further Particulars. 

    [167] See [147]-[150] above.

16. By comparison to the first admitted allegation, the final four dot points go well beyond a general admission that the Appellant had ‘talked to the Probationary Constable about his own sex life’.  The allegation that he had ‘affairs’ and talked about them in the way later alleged was ‘uncharged’ and controversial and had been since the Appellant vehemently denied in his recorded interview that he ever had ‘affairs’ or told the Probationary Constable he had, let alone the details of any.[168]  The final two dot points of the Further Particulars involved new and more serious allegations compared to the Probationary Constable’s Sworn Statement that unfavourably colour his admitted conduct.   

    [168] Exhibit MJW-1 to Exhibit A1.

17. Accordingly, it should be accepted that consideration of the Further Particulars in imposing sanction was an error and involved irrelevant matters that painted a more serious picture of the Appellant’s conduct than he had admitted. 

18. The Commissioner’s further submission that this involved “minor contextual detail” that was open on the evidence and the first admitted allegation was the least significant breach in an escalating pattern of sexual harassment should be rejected.  Similarly, I do not accept that their exclusion alone would not have made any difference to the Deputy Commissioner’s decision on sanction.[169] 

    [169] Ibid.

19. First, the Deputy Commissioner’s discretion to impose sanction is enlivened by the breaches of discipline found or admitted before the Tribunal.  She did not have the power to fill in the detail and make further findings about the admitted conduct and/or the nature of the breaches arising.  Her discretion in imposing sanction is confined to the admissions in the Amended Notice of Allegation. 

20. Secondly, the first admitted allegation was the only admitted allegation involving a breach of General Order 8420 forbidding sexual harassment. The rest concerned admissions that the Appellant had behaved in an oppressive, offensive, abusive or insulting manner. It is an error of law to characterise the Appellant’s admitted conduct as sexual harassment in circumstances where that is not the admitted breach of discipline.

21. Thirdly (and contrary to the Commissioner’s submission), the Deputy Commissioner did not say she regarded the Further Particulars to be of “minor” significance.  She said in the Decision Letter that her “omission” to refer to the Further Particulars at the Sanction Hearing in reciting the conduct and breaches of discipline upon which she was taking action and imposing sanction was “minor”.[170]  Indeed, her express and careful explanation for including the Further Particulars as part of the first admitted allegation despite her omission indicates she considered they were significant.

    [170] Decision Letter, middle paragraph page 4.

22. In any event, the omission of the Further Particulars from the Sanction Hearing and inclusion in her reasons was a procedurally unfair basis for sanctioning the Appellant when they were not admitted and were not included in her recitation of the alleged conduct and breaches that she asked the Appellant to confirm as correct at the start of the Sanction Hearing. That was the basis upon which the Deputy Commissioner said she would impose sanction and the process she followed, and she departed from it without giving the Appellant any opportunity to object to the inclusion of the Further Particulars as the basis of sanction of the first admitted allegation.

23. This error also vitiated the Deputy Commissioner’s decision on sanction and is another basis for allowing the appeal. 

    Conclusion

24. The Appellant is entitled to have sanction imposed only for the alleged breaches of discipline admitted in the form of the Amended Notice of Allegation and none other. In basic terms, in imposing sanction, the Deputy Commissioner was confined to both the facts of the alleged conduct and its legal characterisation as breaches of the Code of Conduct as admitted by the Appellant.

25. This follows because the Commissioner’s power to take action and impose sanction under s 26 of the PCD Act is only enlivened by breaches of discipline as found or, as in this case, as alleged in a notice of allegation and admitted by the Appellant as the relevant designated officer.  Plainly, action must not be taken for other alleged conduct or other breaches of discipline arising from the admitted conduct where those breaches are not found by the Tribunal or admitted by the designated officer. 

26. Similarly, it should not be accepted, as the Commissioner submits,[171] that where there was agreement as to the particulars of the breach of the Code of Conduct, capturing the essence of the conduct, the Deputy Commissioner can fill in the detail by making findings about breach to the extent necessary that are consistent with the particulars. The separation of role and function between the Tribunal and the Commissioner does not permit any findings to be made at the stage of sanction as to the breach of discipline, whether factual findings as to the conduct giving rise to a breach of discipline or findings as to the nature of the breach of discipline arising from any such conduct. Such findings are to be distinguished from findings as to the impact or seriousness of the conduct or breaches found or admitted, matters clearly within the Commissioner’s remit under s 26.

    [171] Summary of Argument of the Respondent at [61].

27. Bearing these matters in mind, I have concluded that the Decision Letter on its face refers to conduct and breaches of discipline that go “well beyond the admitted facts” as to the relevant conduct and breaches of discipline.  It does so in two significant regards. The first departure is the Deputy Commissioner’s reliance on the Impact Statement. The second concerns the Further Particulars.  Both involve fundamental errors as to the correct basis for the imposition of sanction and the consideration of irrelevant matters.  Consideration of the Further Particulars also involves a denial of procedural fairness in the specific circumstances of this case.

28. These errors involve such serious departures from the proper basis for taking action and imposing sanction that they are cogent reasons to depart from the Deputy Commissioner’s decision.  Separately and together, they are compelling reasons for rescinding the decision of the Deputy Commissioner.

    Ground (c):  ‘Due regard not given to the Tribunal’s assessment’

    The Parties’ Contentions

29. The Deputy Commissioner’s consideration of the Tribunal’s assessment is set out on pages 4 and 5 of the Letter of Decision, citing in full the key passage from the transcript of the proceedings from 1 April 2022 where his Honour’s assessment was made. The Deputy Commissioner expressly referred to her obligation under s 25(3) of the PCD Act to have due regard to the Tribunal’s assessment in imposing sanction and confirmed she has given it due regard.  She then stated:

    …noting that the Tribunal does not have before it the organisational information that I have available to me as the Deputy Commissioner nor the same statutory obligations placed upon me by the Police Act 1988 (SA) for the proper management and operation of the South Australia Police.  I consider the assessment as a piece of information I must give due regard to.

    Whilst your legal representatives submit that the Tribunal’s recommendation that “the conducts seems to me to reflect a poor understanding by the employee of appropriate workplace conduct towards members of the opposite sex which could be accommodated by specific directed counselling, education or training”, I determine it was outside of the Tribunal’s role as defined in the Act that this recommendation was made and I repeat my reasoning above that the Tribunal does not have the same information and statutory obligations as I do as the administrative decision [maker] in this matter.  I will address your submissions as to the appropriateness of training as a sanction further in these reasons.[172]

    [172] Transcript references omitted.

30. The Appellant contends the Deputy Commissioner erred by not giving due consideration to the Tribunal’s assessment of the seriousness or otherwise of the breaches, [173] as required by s 25(3) of the PCD Act.

    [173] See [154] above, noting that the Appellant does not press in this appeal the submission made at the Sanction hearing that additional comments made by his Honour deserve great respect. Exhibit MJW‑11 to Exhibit A1 at [136].

31. Both here and before the Sanction Hearing, the Appellant emphasised his Honour’s statement that the breaches of discipline occupied “not the upper end of seriousness” but “are mid to lower end range” as well as his concluding remark to the effect that this conduct seemed to reflect a poor understanding of appropriate workplace conduct that could be accommodated by specific directed counselling, education or training.[174]  

    [174] Exhibit MJW-11 to Exhibit A1 at [133]. Written Submissions of the Appellant at [51].

32. The Appellant submits that the Deputy Commissioner’s mandatory consideration of the Tribunal’s assessment was cursory, and she dismissed it in preference to her own view informed by irrelevant and prejudicial material.[175]

    [175] Written Submissions of the Appellant at [53] and [55].

33. In support of this submission, the Appellant points to the qualified consideration given to the Tribunal’s assessment in the Letter of Decision, based on unidentified organisational information before her that was not before the Tribunal and their different statutory obligations.[176]  If the “organisational information” is the Impact Statement that was not disclosed until the Notice of Proceedings was issued on 2 May 2022, the Appellant submits the Deputy Commissioner denied him procedural fairness by not affording him a proper opportunity to respond and allowed irrelevant and prejudicial matters to prevail over the mandatory consideration of the Tribunal’s assessment of seriousness.  If the “organisational information” is something else, then the Appellant was denied procedural fairness by not being afforded an opportunity to respond to that unidentified information.

    [176] Written Submissions of the Appellant at [52]-[55].

34. Furthermore, the Appellant submits the Deputy Commissioner’s characterisation of the Tribunal’s comment about accommodation of the breaches of discipline as a “recommendation” was incorrect and was simply an explanation of what the Tribunal meant by categorising the seriousness of his conduct in the low to mid-range and served to identify the seriousness by reference to how the risk posed by that conduct might be addressed.[177]

    [177] Ibid at [56].

35. The Commissioner submits that the Deputy Commissioner gave due regard to the Tribunal’s assessment,[178] and it was open for her to give less weight to the Tribunal’s assessment in circumstances where it only had the admitted allegations before it.[179]  The Tribunal did not have any witness statements before it, nor had it had heard any evidence about the admitted conduct or any other matter relevant to the objective seriousness of the admitted conduct nor any information about the Appellant’s previous conduct.  Further, the Tribunal’s reasons were far from compelling and erroneous.[180] The complaint about the Deputy Commissioner’s reference to “organisational information” is also without foundation.[181]

    [178] Summary of Argument of the Respondent at [52].

    [179] Ibid at [44]-45].

    [180] Ibid at [48].

    [181] Ibid at [49].

    Conclusion

36. This ground of appeal is not established and should be dismissed. In the first place, I do not consider s 25(3) of the PCD Act applies to breaches of discipline proven by admission.[182]

    [182] See paragraphs [76]-[78] above.

37. However, if I am wrong,  for the following reasons I am not persuaded the Deputy Commissioner failed to give due regard to the Tribunal’s assessment of the seriousness or otherwise of the Appellant’s admitted breaches of discipline.  There is in my view no basis to infer that she gave the assessment “cursory consideration” or paid it “little regard” as submitted by the Appellant.[183]  

    [183] Written Submissions of the Appellant at [53] and [54].

38. In context, as the Commissioner properly submits, “due regard” means to give the Tribunal’s assessment “proper, genuine and realistic”[184] consideration as is “adequate” in the circumstances.[185]  It does not mean the Tribunal’s assessment is determinative or the Deputy Commissioner is bound to accept it or her decision on sanction must reflect the Tribunal’s assessment. Rather, the Deputy Commissioner is required by the PCD Act to form her own view on the sanction to be imposed, having due regard to the Tribunal’s assessment of the seriousness or otherwise of the proven breaches in the relevant circumstances. 

    [184] City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 at [42]-[46] per Martino J.

    [185] Maritime Services Board (NSW) v Liquor Administration Board (1990) 21 NSWLR 180 at 195 per Campbell J.

1. In this case, it was open on those circumstances to give less weight to the Tribunal’s assessment than might otherwise be the case after a trial where the Tribunal has satisfied itself on the balance of probabilities that a  designated officer has committed a breach of discipline.  Here, his Honour had not heard any evidence nor made any findings that the Appellant had committed the alleged breaches.  Instead, the assessment of seriousness was made solely on the basis of the allegations made in the Amended Notice of Allegations admitted before the Tribunal on the occasion when the trial was vacated.  The Tribunal did not have before it, nor consider, any witness statements or other relevant evidence bearing on the objective seriousness of the admitted breaches of discipline or hear submissions.

2. The Tribunal’s assessment of the seriousness or otherwise of the admitted breaches of discipline was necessarily confined to the allegations (and particulars) made in the Amended Notice of Allegations and should be viewed as narrowly informed.  Relevantly, his Honour quite properly did not have regard to the Appellant’s service history (good and bad) that would have put the objective seriousness of his breaches in a different light, because in particular his Honour did not know about the prior allegations that led to the Appellant’s demotion or his promise to consider the effect of his words and humour on others in the future.  Nor did his Honour have before him any information about the Appellant’s knowledge of or training about what appropriate workplace conduct was required in light of the culture of the SA Police and its workplace policies. 

3. The Tribunal’s assessment was, in the circumstances of this case, poorly informed and should properly be regarded as such.

4. The Tribunal’s assessment also warrants specific criticism in two regards.  First, his Honour concluded the Appellant’s conduct could have been worse because there was no physical contact involved in the admitted allegations.  The Commissioner submitted that by focusing on the lack of physical contact, his Honour fell into the error of assessing the gravity of professional misconduct by reference to the worst case and not to the extent the impugned conduct departed from the proper standard.[186]  The Commissioner’s submission in this regard should be accepted.

   [186] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.

5. Secondly, his Honour went too far in commenting on how the Appellant’s  breaches could be accommodated by specific directed counselling, education or training.  In doing so, his Honour trespassed on the imposition of sanction, a matter clearly outside his function and the powers conferred on him under the PCD Act. Whilst the first part of his Honour’s concluding remark (that it seemed that the Appellant’s conduct reflected a “poor understanding of appropriate workplace conduct towards members of the opposite sex”) might be considered as pertaining to his assessment of the seriousness or otherwise of the relevant breach of discipline, it was not in substance an assessment of the risk posed, as the Appellant submitted.  Nor was it a permissible indication of the seriousness of the breaches by reference to how the risk those breaches presented might be addressed.[187]

   Ground (d):  ‘Acted upon a wrong principle by imposing the sanction as a punishment for wrong doing rather than for the primary purpose of protecting the public’

   [187] Written Submissions of the Appellant at [51].

6. It is uncontentious that the purpose of the PCD Act in maintaining police discipline is protection of the public.

7. The Appellant properly acknowledged that the Deputy Commissioner used the correct verbal formula and language for disciplinary proceedings.[188]  

   [188] Written Submissions of the Appellant at [61].

8. It should be accepted that there are no textual or contextual indications that the Deputy Commissioner erred by imposing sanction for a forbidden purpose. Putting aside her erroneous foundation, she expressly explained how and why she regarded termination as the only available sanction to mitigate the risk to the public, the health and safety of other members and the integrity of the police force as a whole.

9. Contrary to the Appellant’s submission,[189] there is no basis to infer she had taken a view about ‘what she thought [the Appellant] deserved’ in the circumstances of the impact of his conduct on the Probationary Constable. As the Commissioner correctly submits, specific and general deterrence are highly relevant in the disciplinary context and do not suggest error.  It bears repeating what was said by the Full Court in Craig v Medical Board of South Australia:[190]

   …the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner’s departure from professional standards, and intended to deter the practitioner from any further departure… making it clear that certain conduct is not acceptable.

   [189] Ibid at [62].

   [190] Ibid at [47]-[48].

10. The Appellant took specific issue with the Deputy Commissioner’s observations about the extent of his remorse and insight into his conduct as indicating the imposition of punishment. However, they do not indicate a forbidden purpose.  Remorse and insight are also highly relevant to sanction and whether the protection of the public can be achieved by rehabilitation through training.  I do not accept it follows that any of the criticisms made of the Deputy Commissioner by the Appellant demonstrate her “ very clear punitive purpose”.[191]

    [191] Written Submissions of the Applicant at [64].

11. Nor should the Appellant’s submissions be accepted that the severity of the penalty imposed or her failure to address why any other sanction was inappropriate indicate a punitive purpose.[192] Rather, the Deputy Commissioner’s reasoning demonstrates she simply considered the Appellant presented too great a risk to continue his employment because of the nature of his conduct and his demonstrated lack of understanding of its impact in the context of previous conduct and the EOC Review, an important review into the police force of which the Appellant was well aware and participated in by delivering the findings to his own team.

    [192] Ibid at [65]-[69].

12. This ground is not established and should be dismissed. 

    Ground (f): ‘The sanction imposed is manifestly excessive, oppressive and/or unreasonable and plainly unjust’

13. The Appellant presses this ground of appeal on the basis of a range of factors set out in his notice of appeal, including the Tribunal’s assessment of the seriousness or otherwise of his admitted breaches of discipline.

14. Since I have found the Deputy Commissioner imposed sanction on the wrong basis and allowed extraneous, prejudicial and/or irrelevant matters to guide her decision, the appeal should be allowed.  It is therefore unnecessary to consider the sixth ground of appeal that complains about the manifestly excessive, oppressive and/or unreasonable or unjust result.

    Remission and Costs

15. I will hear the parties as to remission and costs.