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Patton v Mareangareu

Patton v Mareangareu

Case [2021] VSCA 295 3 November 2021

Judicial Review

Appeal

Statutory Construction

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0025

SHANE PATTON (IN HIS CAPACITY AS CHIEF COMMISSIONER OF POLICE)	Applicant
v
SIMON MAREANGAREU	Respondent

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JUDGES:	PRIEST, McLEISH and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2021
DATE OF JUDGMENT:	3 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 295
JUDGMENT APPEALED FROM:	[2021] VSC 15 (Ierodiaconou AsJ)

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ADMINISTRATIVE LAW – Judicial Review – Appeal – Chief Commissioner of Police declined to reappoint police officer pursuant to Victoria Police Act 2013 s 136(3) – Officer dismissed on basis of convictions – Convictions quashed on appeal – Whether Chief Commissioner erred by considering subject matter of convictions in declining to reappoint – No error shown – Character and reputation of officer seeking reappointment relevant to exercise of power – Public Service Board v Morris (1985) 156 CLR 397, considered – Victoria Police Act 2013 ss 8, 16, 27, 28, 30, 135, 136, 137 – Victoria Police Regulations2014 r 5.

STATUTORY CONSTRUCTION – Whether Victoria Police Act 2013 s 136(3) provides right to reappointment on conviction being set aside – No right to reappointment – Provision confers discretionary power on Chief Commissioner – Whether s 136(3) a distinct power of reappointment or informs general power of appointment – Distinct power conferred – Saraswati v The Queen (1991) 172 CLR 1, explained – Whether s 136(3) requires Chief Commissioner to disregard subject matter of conviction set aside – No such requirement – Characterising provision as beneficial unhelpful to interpretative task – NSW Aboriginal Land Council v Minister Administering the Crown Land (2016) 260 CLR 232, applied – Presumption that statutory consequences of conviction cease when conviction set aside inapplicable – Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, Rimanic v Business Licensing Authority (2002) 129 A Crim R 356, distinguished – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr A Palmer QC with Mr D Porteous	Clayton Utz
For the Respondent:	Mr E P White	Tony Hargreaves & Partners

PRIEST JA
McLEISH JA
KENNEDY JA:

Introduction

By December 2014, the respondent, Simon Mareangareu, had been a police officer for about nine years, holding the rank of senior constable.

On Christmas Day 2014, the respondent was on duty with another officer, Dennis Gundrill, when he encountered two youths, Stuart Laird, aged 16, and Kyan Foster, aged 17, in the vicinity of a 7-Eleven store in Canterbury Road, Vermont. As a result of what then transpired, the respondent was subsequently charged on indictment with: intentionally causing injury to Foster (charge 1) and falsely imprisoning him (charge 2); attempting to pervert the course of justice (charges 3 and 4); and perjury (charges 5, 6 and 7). Gundrill was charged on the same indictment with: falsely imprisoning Laird (charge 8); attempting to pervert the course of justice (charges 9 and 10); and perjury (charge 11).

Following a trial conducted in the County Court throughout May and June 2018, on 21 June 2018 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Patton v Mareangareu

Details

AGLC: Patton v Mareangareu [2021] VSCA 295
Case: [2021] VSCA 295
Decision Date: 3 November 2021

CaseChat Overview and Summary

In the matter of Patton v Mareangareu, the dispute before the court involved the decision of the Chief Commissioner of Police under the Victoria Police Act 2013, section 136(3), not to reappoint a police officer who had previously been dismissed due to certain convictions. The appellant, Mr. Patton, sought judicial review of the Chief Commissioner's decision, arguing that the officer's convictions had been quashed on appeal, and thus, the Chief Commissioner should not have considered the subject matter of those convictions in declining to reappoint him. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the Chief Commissioner erred in considering the subject matter of the quashed convictions in making the decision not to reappoint the police officer. The court had to determine if the Chief Commissioner had the discretion to consider the character and reputation of the officer seeking reappointment, and whether the relevant statutory provisions imposed any constraints on the exercise of that discretion. Additionally, the court examined whether the quashing of the convictions triggered an automatic right to reappointment, or if the Chief Commissioner retained a discretionary power in this regard.

The court held that the Chief Commissioner did not err in considering the subject matter of the quashed convictions. The court found that the character and reputation of the officer were relevant to the exercise of the power under the statute. The court distinguished the statutory power to reappoint under section 136(3) as a distinct power from the general power of appointment, and held that the quashing of convictions did not automatically confer a right to reappointment. The court concluded that there was no error in the Chief Commissioner's decision, and dismissed the appeal.

As a result of the court's decision, the appeal was dismissed, and the decision of the Chief Commissioner not to reappoint the police officer stood. The court's judgment clarified the scope of the Chief Commissioner's discretion in considering the character and reputation of officers seeking reappointment under the relevant statutory provisions.

Orders