Rainbird v Bonde
[2016] TASSC 10
•8 March 2016
[2016] TASSC 10
COURT: SUPREME COURT OF TASMANIA
CITATION: Rainbird v Bonde [2016] TASSC 10
PARTIES: RAINBIRD, Benjamin John
v
BONDE, Robert
FILE NO: 2198/2015
DELIVERED ON: 8 March 2016
DELIVERED AT: Hobart
HEARING DATE: 26 February 2016
JUDGMENT OF: Blow CJ
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Bias – Apprehension of bias – Appearance of possible prejudgment – Delegate of Commissioner of Police exercising disciplinary powers.
Ebner v Official Trustee (2000) 205 CLR 337; Antoun v The Queen (2006) 80 ALJR 497; Attorney-General v Cameron (2007) 152 LGERA 45, referred to.
Aust Dig Administrative Law [1071]
REPRESENTATION:
Counsel:
Applicant: B R McTaggart SC
Respondent: P Turner
Solicitors:
Applicant: Wallace Wilkinson & Webster
Respondent: Solicitor-General
Judgment Number: [2016] TASSC 10
Number of paragraphs: 57
Serial No 10/2016
File No 2198/2015
BENJAMIN JOHN RAINBIRD v ROBERT BONDE
REASONS FOR JUDGMENT BLOW CJ
8 March 2016
This is an application by a police officer, Constable Rainbird, pursuant to the Judicial Review Act 2000 for the review of a determination in relation to a complaint made against him by a member of the public. On the night of 7 December 2013, the applicant and another officer twice went to a house in West Moonah to deal with noise complaints. A man named Clark subsequently made a formal complaint pursuant to the Police Service Act 2003, saying that the applicant assaulted him during the second visit. The respondent, Commander Bonde, subsequently made a determination that the applicant had breached the Police Service Act's code of conduct by using excessive force in dealing with Mr Clark, and directed that counselling be provided to the applicant. Apparently he did so as a delegate of the Commissioner of Police. The applicant is aggrieved by the respondent's decision, and has applied for judicial review on a number of grounds.
The application has been made out of time. The decision under review was made on 1 June 2015. The applicant was given notice of it by a letter which he received on or about 3 June 2015. Section 23(1)(a) of the Judicial Review Act permits an application for judicial review to be made within 28 days after the "relevant day", which in this case was the day that the applicant received the letter. That time limit expired on or about 1 July 2015. However the originating application in this matter was not filed until 6 November 2015. The reason for the delay is that the applicant initially responded to the decision under review by invoking a grievance procedure pursuant to a provision in the Police Manual. He was notified by letter dated 13 August 2015 that his invocation of the grievance procedure had been unsuccessful.
The applicant is seeking an extension of time for the making of his application for judicial review, pursuant to s 23(1)(b) of the Judicial Review Act. With the consent of both parties, I heard that application and the substantive application together.
Provisions in the Police Service Act 2003 and the Police Manual
Section 93(1) of the Police Service Act requires the Commissioner of Police to cause a document known as the Police Manual to be published. Section 93(2)(a) requires that manual to contain orders, directions, procedures and instructions, issued by the Commissioner.
An order in Pt 10.1 of the manual reads:
"Members shall not use excessive force in the performance of their duty."
In Pt 10.1(5) of the manual, "excessive force" is defined as including the following:
"· any force when none is needed;
· more force than is needed;
· any force or level of force continuing after the necessity for it has ended;
· knowingly wrongful uses of force; or
· well-intentioned mistakes that result in undesired uses of force."
Section 42 of the Police Service Act is entitled "Code of conduct". Section 42(3)(a) requires a police officer to comply with all orders in the Police Manual.
Section 43 of that Act is concerned with breaches of the "Code of conduct". It is implicit in s 42 that failing to obey an order in the Police Manual amounts to a breach of the code of conduct. The provisions in s 43 that are relevant to this case read as follows:
"(1) The Commissioner must establish procedures for the investigation into any alleged breach of a provision of the code of conduct by a police officer.
(2) After considering the results of an investigation, the Commissioner must determine whether or not the police officer has breached a provision of the code of conduct.
(3) If the Commissioner determines that a police officer has breached a provision of the code of conduct, the Commissioner may take one or more of the following actions in relation to the police officer:
(a)direct that appropriate counselling be provided to the police officer;
(b)reprimand the police officer;
…".
The Police Service Act also contains provisions relating to the making and investigation of complaints. The relevant provisions can be summarised as follows:
· Under s 44(1)(a), any person may make a complaint about the conduct, on or off duty, of a police officer.
· Section 46(1) requires the Commissioner, as soon as practicable after receiving a complaint, to determine whether to investigate that complaint or to dismiss it without an investigation.
· Section 46(3)(a)(i) empowers the Commissioner to direct any police officer to assist in the investigation of a complaint.
· Section 46(3)(a)(ii) empowers the Commissioner to direct any police officer to answer any question for the purpose of the investigation.
· Section 47(2) permits the Commissioner, on the completion of an investigation of a complaint, to determine to take any action listed under s 43(3) if satisfied that a breach of a provision of the code of conduct had occurred. Possible actions include a reprimand or a direction that appropriate counselling be provided to the police officer concerned. See s 43(3)(a) and (b), quoted above.
Section 8 of the Police Service Act empowers the Commissioner to delegate his powers, duties and responsibilities, subject to certain exceptions that are not relevant to this case.
Investigation and determination of Mr Clark's complaint
Mr Clark complained that the applicant assaulted him by grabbing him by the throat, forcing him backwards against the wall of a shed, and holding him there. The complaint was investigated by Senior Sergeant M J Smith. He interviewed four civilians, the applicant, and Constable Anna Page, who was with the applicant on the night in question. He recommended that the merits of a prosecution for assault contrary to s 35(1) of the Police Offences Act 1935 be assessed within the Office of the Director of Public Prosecutions, and expressed the view that the evidence was sufficient to establish that the applicant had failed to comply with an order in the Police Manual by using excessive force.
As a result of advice from the Office of the Director of Public Prosecutions, a decision was made not to prosecute the applicant for assault.
On 27 January 2015, the respondent wrote a long letter to the applicant in which he summarised and analysed the information available to him relating to the applicant's encounter with Mr Clark. In the latter parts of that letter, the respondent expressed some conclusions, some of which were described by him as "findings and preliminary determinations". Those conclusions, or tentative conclusions, were as follows:
· At the bottom of page 7 of the letter, the respondent referred to "Constable Page's evidence that she did not observe you hold Mr Clark by the throat after the initial overhand push to Clark's chest". The respondent went on to say, "I believe she was mistaken in her perception."
· On page 8 of the letter, the respondent wrote, "While Mr Clark may have moved towards you, I am not persuaded that he presented a significant threat to you or anyone else at that time. I find that Mr Clark's behaviour and actions were not sufficient to form a belief that his actions may escalate to an assault against you or Constable Page, either by a direct assault or pushing through you." He went on to give reasons for that finding.
· On pages 8 and 9 of the letter, the respondent wrote, "On the information available, I am unable to determine whether you intentionally held Mr Clark by the throat and squeezed your thumb into his throat as alleged. I find you made contact with Mr Clark's chest high in the middle of the chest and below the base of the throat with the palm of your hand and thereby as a consequence the fingers of your hand were positioned in the immediate vicinity of, or against, Mr Clark's throat; or your hand inadvertently slipped upwards on to the throat."
· In the next two paragraphs the respondent made another finding, saying:
"I find that you applied a level of force sufficient to stop Mr Clark running forwards and propel him backwards on to a bar stool, following which you held Mr Clark with your hand high on his chest, fingers in the immediate vicinity of, or against, his throat, and remained in that position for at least 10 seconds until you were satisfied the situation had defused.
I hold the view that you are entitled to block a person who intrudes within your safety zone in a dynamic situation, however, in this instance the extent of force you presented was not commensurate with the situation at hand."
· In the next paragraph, the respondent considered the applicant's decision not to arrest Mr Clark. He wrote, "I also find it difficult to accept that, based on your account of the circumstances and a situation which you deemed sufficiently threatening to warrant self-defence in the manner you did, you determined not to take further prosecutorial action regarding the alleged abusive language and attempted assault. If that was the case, your judgement is flawed." He went on to give reasons for those views.
· In the next paragraph, the respondent considered an allegation that the applicant had said to one of Mr Clark's companions, "Don't fucking gob off to me or you'll be next." The respondent concluded, "I find that there is insufficient evidence to prove or disprove the allegation."
The letter concluded as follows:
"In summary, I find that you are entitled to block a person from intruding into your safety one in a dynamic situation, but your application of the 'blocking' manoeuvre against Mr Clark in the manner you did, to the extent he was propelled backwards until he was up against a bar stool, was excessive and not commensurate with the situation. The continuation of force in holding Mr Clark in the manner you did was also unnecessary and excessive to the situation at hand. I am unable to determine whether you squeezed your thumb against Mr Clark's throat, however I find that your fingers were in the immediate vicinity of his throat and contact may have occurred. Additionally, excluding the element of attempted assault, I find that you should have taken action to prosecute Mr Clark for abusive language and did not.
I have formed the following preliminary determinations regarding breaches of the provisions of section 42 of the Police Service Act 2003:
1Breach of section 35(1) of the Police Offences Act 1935, (Assault) by grabbing Mr Clark by the throat and squeezing your thumb into Mr Clark's throat. Legal advice established there was no reasonable prospect of conviction.
The complaint disposition is Not Sustained (Insufficient evidence to prove or disprove the allegation).
2Breach of section 42(3)(a) of Police Service Act 2003, (Code of Conduct) – Failing to comply with an order in the manual – excessive force – by applying a blocking manoeuvre with the palm of your hand against Mr Clark, propelling him backwards and holding him in such a manner that your fingers were either in the immediate vicinity of, or against, his throat for at least ten seconds and that level of force was unwarranted and not commensurate with the circumstances.
The disposition is Sustained (sufficient evidence exists to prove the allegation).
3Breach of section 42(11)(b) of the Police Service Act 2003, (Code of Conduct) – fail to act with care and diligence in the course of your duties – by failing to take prosecutorial action against Mr Clark for the offences of abusive language to a police officer.
The disposition is Not Sustained (insufficient evidence to prove or disprove the allegation).
4Breach of section 42(2) of the Police Service Act 2003, (Code of Conduct) – fail to act with care and diligence in the course of your duties – by failing to take prosecutorial action against Mr Clark for the offences of abusive language to a police officer.
This disposition is Sustained (sufficient evidence exists to prove the allegation).
This gives rise to consequential considerations as to whether you provided an honest account when interviewed by officers from Internal Investigations, in particular your account regarding the allegation you held Mr Clark by the throat and applied pressure with your thumb. A distinct possibility exists that the witnesses' evidence has been influenced by repeated discussion over the events of the night and doubts exist as to how much, and what parts, of the Incident they actually observed. As a constant, though, is their evidence that you made contact with Mr Clark's throat. A key consideration is the positioning of your palm when making contact, the consequence of which is that your fingers would be in the immediate vicinity of, or against, Mr Clark's throat, and your acknowledgement that contact with his throat could have occurred. In that regard, it is possible to reconcile the evidence of yourself and the witnesses. I find that there is insufficient evidence to prove or disprove that you were dishonest in your responses to investigators.
5Breach of section 42(2) of the Police Service Act 2003, (Code of Conduct) – fail to behave honestly and with integrity in the course of your duties – by misleading investigators in your responses to questioning during the internal investigation.
The disposition is Not Sustained (Insufficient evidence to prove or disprove the allegation).
In Consideration of all the circumstances and your relevant prior history, I have formed a preliminary view that, pursuant to section 43(3)(b) of the Act you should be:
·Reprimanded by your District Commander for the sustained (2) breach of section 42(3)(a) of Police Service Act 2003 – Fail to comply with an order in the manual [Excessive force].
Further, you are to be provided with professional development in the form of verbal advice and guidance administered by your District Commander in respect to the sustained (4) matter of fail to act with care and diligence.
Additionally, arrangements will be made for Operational Skills Unit personnel to review the investigation file and discuss with you alternative resolution strategies for similar situations in the future.
Should you wish to make any submissions as to my findings and preliminary determinations that you have breached the provisions of the relevant sections of the Police Service Act 2003, and/or why the proposed sanctions should not be administered, they should be provided in writing and delivered to my office within 15 days from the date of your receipt of this report. Should you not wish to make any submissions, I require written advice to that effect within the same period." [Original emphasis.]
The applicant responded to that letter in a memorandum dated 22 May 2015.
Ultimately the respondent made determinations that differed in two respects from those that he originally proposed. He determined that the applicant was exonerated in relation to the allegation that he had breached the code of conduct by failing to take prosecutorial action against Mr Clark. He did determine that the applicant had used excessive force against Mr Clark but, instead of determining that the applicant was to be reprimanded, he took a more lenient course and determined that the applicant was to be counselled by his district commander. Those determinations constitute the decision that is now under review. They are set out in the letter dated 1 June 2015, to which I have referred.
Grounds of review
The applicant is relying on five grounds of review. They are numbered 1, 2, 2, 3, and 4. For convenience, I will refer to the second ground 2 as ground 2A. Essentially his contentions are as follows:
· That the respondent failed to take into account a relevant consideration, namely the conduct of Mr Clark: grounds 1, 2(b) and (c).
· That the respondent reversed the onus of proof: ground 2(a).
· That the respondent prejudged the allegations against the applicant before affording him an opportunity to respond to them: ground 2A.
· That the respondent's conduct in writing the letter of 1 June 2015 gave rise to a reasonable apprehension of bias: ground 3.
· That the respondent denied the applicant procedural fairness by failing to conduct an oral hearing: ground 4.
Grounds 1, 2(b) and 2(c) – Failing to take into account a relevant consideration
Ground 1 makes the following assertion:
"That the making of the determination was an improper exercise of the power conferred by s 43 of the Police Service Act 2003, in that the respondent failed to take a relevant consideration into account namely the conduct of Mr Clark towards the applicant immediately prior to the applicant applying force to him."
This ground must fail. For one thing, it is clear from the respondent's letters of 27 January 2015 and 1 June 2015 that he did take into account the information available to him as to the conduct of Mr Clark when considering whether the applicant had used excessive force.
One needs to draw a distinction between the respondent's fact-finding and his exercise of the statutory discretion conferred by s 43. By virtue of ss 20(b) and 17(2)(e) of the Judicial Review Act, "failing to take a relevant consideration into account in the exercise of a power" will result in the making of a decision being "an improper exercise of the power conferred by the enactment under which it was purported to be made". Those provisions relate to the exercise of a statutory power, and have nothing to do with the overlooking or ignoring of relevant evidence during antecedent fact-finding. However it is clear from the respondent's letters of 27 January 2015 and 1 June 2015 that he took into account his view of the conduct of Mr Clark when he concluded that there had been an excessive use of force, and when he decided to direct that counselling be provided to the applicant.
Ground 2(b) asserts that the respondent's decision was contrary to law in that he:
"Gave no consideration to the basis upon which the applicant put his defence to the allegations namely that he was acting in defence of himself or other persons at the time he applied force to Mr Clark and that the force he used was appropriate to the situation."
This contention must also fail. It is clear that the respondent took into account what the applicant had said during Sen Sgt Smith's investigation and in his memorandum of 22 May 2015, but had rejected the applicant's "defence". Further, this ground appears to relate only to the respondent's fact-finding, and not to his exercise of statutory power.
Ground 2(c) asserts that the respondent's decision was contrary to law in that he:
"Misconceived the factual issues that he needed to determine namely:
(i) whether he was satisfied that the applicant was not acting in defence of himself or other persons at the time he applied force to Mr Clark; and
(ii) whether he was satisfied that the force used by the applicant was unreasonable in the circumstances as the applicant believed them to be.
And as a result he failed to determine these issues."
Subparagraph (ii) appears to be a reference to s 46 of the Criminal Code, which provides:
"A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use."
That section includes a subjective test as to the circumstances existing when force is used. The lawfulness or otherwise of the use of force has to be determined according to the perception of the circumstances by the person using force, or "the circumstances as he believes them to be". However there is no such subjective test in the definition of "excessive force" in Pt 10.1(5) of the Police Manual. That provision, which I have set out at [6] above, is in absolute terms. In effect, the Commissioner's order in Pt 10.1 of the manual requires police officers not to use "any force when none is needed" or "more force than is needed" or "any force … after the necessity for it has ended", regardless of their subjective beliefs. And his order also requires them not to be responsible for "undesired uses of force" as the result of "well-intentioned mistakes". In effect, the Commissioner has ordered officers not to use force in certain circumstances when its use would be lawful by virtue of s 46 of the Criminal Code. It follows that ground 2(c)(ii) is misconceived and must fail.
As for ground 2(c)(i), there is nothing in the respondent's letters to indicate that he did not accept that the applicant used force defensively, rather than aggressively. And, again, this ground appears to relate to fact-finding, as distinct from the exercise of statutory power. Ground 2(c) must fail.
Ground 2(a) – Onus of proof
Ground 2(a) asserts that the respondent's decision was contrary to law in that he:
"Reversed the onus of proof by determining that he was not persuaded Mr Clark presented a significant threat to the applicant or anyone else at the time that the applicant applied force to him."
When a police officer investigates a complaint and the Commissioner of Police or one of his delegates subsequently makes a determination pursuant to s 43(3), the relevant proceedings are inquisitorial, not adversarial. In such a situation, there is no onus of proof: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425; Shields v Chief Commissioner of Police (2008) 19 VR 33 at [66]-[70]. Ground 2(a) must therefore fail.
Grounds 2A and 3 – Prejudgment and apprehension of bias
These grounds concern the respondent's letter to the applicant dated 27 January 2015, details of which are set out above. The applicant contends that the respondent made up his mind about the facts, and made up his mind about the applicant having used excessive force, without first giving him an opportunity to make submissions about those matters. Counsel for the respondent made a submission to the effect that the respondent was acting fairly, in that he had not finally made up his mind about anything, but was telling the applicant of the findings and determinations that he was thinking of making, and inviting the applicant's comments as to such proposed findings and proposed determinations. He submitted that there might have been "some infelicity of expression".
"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment": Annetts v McCann (1990) 170 CLR 596 at 598. There is nothing in the relevant provisions of the Police Service Act to suggest that the rules of natural justice are not to apply to determinations under s 43(3). Counsel for the respondent accepts that those rules apply, but argued that they had been complied with.
In relation to ground 3, the applicable principle is that a decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that that decision-maker might not bring an impartial mind to the resolution of the question that he or she is required to decide: Ebner v Official Trustee (2000) 205 CLR 337 at [6].
In Antoun v The Queen (2006) 80 ALJR 497, the High Court held that a judge should have disqualified himself because of apparent prejudgment. That case concerned a criminal trial, during which the judge stated emphatically that he would not accept a submission of no case to answer, and then allowed defence counsel to present the submission. It was held unanimously that the judge should have disqualified himself. At [29], Kirby J said:
"A line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings."
At [83], Callinan J commented:
"It should be noted that the test … emphasises that a possibility, that is relevantly to say, the appearance of a possibility of an absence of an impartial mind on the part of the judge, may lead to disqualification."
There is nothing impermissible in a decision-maker, before making a finding of fact, or before making a final decision as to the exercise of a statutory power, giving a preliminary indication of a finding that he or she is thinking of making, or of a decision that he or she is thinking of making. Taking such a course can be very fair to an individual whose interests are potentially affected. See Vakauta v Kelly (1989) 167 CLR 568 at 571. However a decision-maker who takes such a course should be very careful to make it clear that his or her mind remains open, and that he or she has not reached a concluded view in relation to fact-finding or the exercise of any statutory power. Any failure to make that clear may result in an appearance of possible prejudgment, a reasonable apprehension of bias, and a duty for the decision-maker to disqualify himself or herself. Justice must be seen to be done.
When a court reviews the reasons of an administrative decision-maker, particularly one who is not a lawyer, the court should not be concerned with looseness in the language of the decision-maker, or unhappy phrasing of the decision-maker's thoughts, nor should the reasons "be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Attorney-General v Cameron (2007) 152 LGERA 45 at [9], [55]-[56]. Counsel for the respondent submitted that, when the letter of 27 January 2015 is read as a whole, it is apparent that the respondent had not made any final or conclusive findings of fact, nor any final decision as to whether the use of excessive force had been established, nor any final decision as to the exercise of any of the powers conferred by s 43(3).
Counsel for the respondent relied on the following as indications that the respondent had made no final decisions as at 27 January 2015:
· In his letter of that date, he referred to "preliminary determinations", not determinations.
· Although he made a preliminary determination that the applicant had failed to act with care and diligence in the course of his duties by failing to take prosecutorial action against Mr Clark, he ultimately decided on 1 June 2015 that the applicant had not breached the code of conduct in that respect.
· Although he wrote on 27 January 2015 that he had "formed a preliminary view" that the applicant should be reprimanded for using excessive force, his final decision was for the applicant to be counselled by his district commander, not reprimanded.
However, in his letter of 27 January, the respondent did not say anything to indicate that his findings of fact, as distinct from his proposed determinations were "preliminary", tentative, or other than final. Those findings included one that what the applicant did "was excessive and not commensurate with the situation". See [14] above.
The respondent wrote a number of other letters about Mr Clark's complaint on or about 27 January 2015. Details of those letters, and my comments in relation to them, are as follows:
· On 27 January he wrote to an officer of the Integrity Commission summarising the outcome of the investigation, summarising his views as to the applicant's use of force, and giving details of his "preliminary determinations". There is nothing in that letter to suggest that he was still keeping an open mind as to whether the applicant had used excessive force. The language used could only be interpreted as indicating a concluded view.
· On 28 January he wrote to Mr Clark, giving a short summary of the investigation and details of his "preliminary determinations". There is nothing in that letter to indicate that his conclusion that excessive force had been used was anything other that a "preliminary" conclusion.
· On 28 January he also wrote to the Deputy Commissioner. He said he held the view that "the extent of force … was not commensurate with the situation at hand". Although he gave short details of his "preliminary determinations", he said nothing to indicate that his conclusion as to the use of excessive force was anything but final.
· On 28 January he wrote to the Commander, Southern District, in terms practically identical with his letter to the Integrity Commission officer.
The wording of the respondent's letters of 27 and 28 January, other than the letter to Mr Clark, strongly indicates that there was nothing preliminary, tentative or provisional in the respondent's conclusions as to the applicant having used excessive force. By contrast, those letters indicate that he had gone only as far as forming preliminary views as to what his determinations under s 43(3) would be. And the fact that his final determinations were different in some respects from those preliminary views confirms that, at least to some extent, his conclusions as to determinations were preliminary in nature. Having regard to the contents of the letters however, I do not think it can be said that they indicated an open mind as to one issue that was the subject of a determination, namely whether the applicant had failed to comply with an order in the Police Manual by using excessive force.
I do not need to make a finding of fact as to whether the respondent did have a closed mind in relation to that issue when he wrote to the applicant on 27 January 2015. I am satisfied that that letter, and others written by the respondent at about that time, are likely to give the impression that he was likely to have a closed mind, and that, as a result, any fair-minded lay observer would have had a reasonable apprehension that he might have prejudged the issue, and might not bring an open mind to the determination of that issue after reading the applicant's response to that letter. It follows that ground 3 must succeed.
Ground 4 – Failure to conduct an oral hearing
This ground reads as follows:
"The respondent breached the rules of natural justice by failing to afford the applicant procedural fairness in the course of the investigations leading to the determination by holding an oral hearing to determine whether he was satisfied that the applicant had used excessive force."
The Police Service Act makes provision for merits review hearings by the Police Review Board when the Commissioner or a delegate has imposed certain penalties pursuant to s 43(3). That right of review does not apply in relation to each type of penalty that may be imposed under s 43(3). It does not apply when an officer has been reprimanded, or when there has been a direction that counselling be provided to an officer. However it does apply in relation to demotions, reductions in remuneration, termination of employment, fines, forfeiture of remuneration, any suspension of remuneration and/or allowances, and any order requiring a payment in respect of loss or damage: ss 60(1), 87(2). The Police Review Board has powers to summon witnesses, and to issue summonses for the production of documents or records: s 70. If the board is satisfied that it is necessary to do so, witnesses may be examined or cross-examined: s 75A(1). A review by the board is a merits review, akin to a hearing de novo, and not an appeal by way of rehearing in which error needs to be shown: Gadon v Police Review Board [2014] TASSC 23.
However, when a police officer assists the Commissioner by investigating a complaint pursuant to s 46(3)(a)(i), there is no power to compel the attendance of witnesses, nor is there any power to require witnesses to answer questions from a cross-examiner or anyone else. A police officer may be directed to answer questions for the purpose of the investigation, pursuant to s 46(3)(a)(ii), but there are no other powers that would facilitate the conducting of an oral hearing at the investigatory stage. Similarly, s 43 does not confer any powers on the Commissioner or a delegate of the Commissioner that would facilitate the conducting of an oral hearing.
Counsel for the applicant referred me to Robb v Nixon [2005] VSC 310, in which a former police officer sought certiorari to quash a decision to dismiss him from the Victoria Police. At [83], Smith J considered whether the Chief Commissioner's duty of procedural fairness required her to conduct an oral hearing. His Honour said:
"It may be that, in exceptional cases, before the Chief Commissioner can form a bona fide view as to whether there are reasonable doubts about a member's integrity, she will have to determine a critical issue of fact which turns solely on the assessment of the credibility of the member and a complainant and their credibility can only be fairly assessed in such a hearing. In such exceptional cases, procedural fairness may require a limited oral hearing before any final decision is reached by the Chief Commissioner as to whether reasonable doubts existed about, for example, the member's integrity."
His Honour went on to say that he had concluded that he should not express any final views on these issues.
There is no general right to an oral hearing in administrative proceedings: Local Government Board v Arlidge [1915] AC 120 at 134, 141; NAHF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 at 365. Whilst the Police Service Act does not prohibit the conducting of an oral hearing for the purposes of a s 43(3) determination, the scheme of the Act suggests that oral hearings are ordinarily to be conducted by the Police Review Board, and only in cases that it considers appropriate. As a general rule, there would have to be something exceptional about a case to warrant the Commissioner or a delegate inviting individuals to attend and participate in an oral hearing for the purposes of a s 43(3) determination. In this case the respondent was not contemplating anything more serious than a reprimand, and the applicant had made submissions in a memorandum that indicated that he was quite able to make forceful submissions in writing. In the circumstances, I am not persuaded that the respondent's duty of procedural fairness required him to conduct, or attempt to conduct, an oral hearing.
Discretionary matters
Ground 3 alone has succeeded. Because the respondent's letter in January 2015 gave the appearance of him having prejudged the question whether the applicant used excessive force, the respondent should have disqualified himself, and should not have made any determination adverse to the applicant in relation to that issue. However counsel for the respondent submitted that there were three bases upon which this application should be dismissed:
· He submitted that I should dismiss it pursuant to s 12(b) of the Judicial Review Act, on the basis that adequate provision was made by a law under which the applicant was entitled to seek a review, namely the Police Manual grievance procedure that I referred to above at [2].
· He submitted that I should dismiss the application pursuant to s 38(1)(a)(ii) of the Judicial Review Act, on the basis that it would be inappropriate to grant the application.
· He submitted that I should refuse to grant an extension of time pursuant to s 23(1)(b) of the Judicial Review Act.
Section 12(b)
Under s 12(b) of the Judicial Review Act, the Court may dismiss an application because "adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the Court or another court or a tribunal, an authority or a person".
Part 1.6 of the Police Manual deals with grievances. The relevant provisions of that Part read as follows:
"ORDER
Members shall not protest openly against a decision, determination, order or recommendation of a senior officer, or comment publicly concerning any work matter about which they are aggrieved.
1.6.1 REPORTING
(1)Members who consider they have a justified grievance may lodge a report to the immediate supervisor of the senior officer whose decision is the subject of the grievance.
(2)A copy of the report should be supplied to the senior officer who is the subject of the grievance.
(3)Complaints or representations concerning matters of discipline are to be individually made by personnel and no correspondence on such matters is to be signed by two (2) or more persons.
1.6.2 DETERMINATION
(1)A member to whom a grievance is submitted or referred for determination should:
(a) promptly investigate the complaint and take appropriate action;
(b) if the matter is considered one that should be dealt with by a higher authority, refer it for attention to such person; and
(c) advise the member concerned of the outcome of the investigation.
(2)The complaining member may continue to submit grievance reports through each level of the chain of command if they remain dissatisfied with the resolution of the grievance.
…"
However, when a delegate of the Commissioner makes a determination pursuant to s 43(3), there is nothing in the Police Service Act that empowers that officer's immediate supervisor to revoke or vary that determination. Whilst s 93(2)(a) empowers the Commissioner to publish orders, directions, procedures and instructions in the Police Manual, it would be inappropriate to interpret that provision as authorising the Commissioner to legislate to confer review rights in relation to s 43(3) determinations. The Act has covered that field by providing limited rights of review by the Police Review Board: s 60(1). It follows that Pt 1.6 of the Police Manual does not authorise the immediate supervisor of a senior officer to revoke or vary a s 43(3) determination.
It follows that Pt 1.6 does not fall within the scope of s 12(b) of the Judicial Review Act. It did not entitle the applicant to seek a review of the respondent's determination by another person. And, in my view, Pt 1.6 is administrative in character, not a law.
Section 38(1)(a)(ii)
This provision empowers the Court to dismiss an application if the Court considers that "it would be inappropriate … to grant the application".
Counsel for the respondent did not suggest that it would be inappropriate to grant the applicant's application for any reason other than the availability of a review under Pt 1.6 of the Police Manual. Because such a review could not result in the revocation or variation of the respondent's determination, the submission has no merit.
Section 23(1)(b) – Extension of time
The applicant initially invoked the grievance procedure under Pt 1.6 of the Police Manual, rather than applying for judicial review, because he was advised by a legal practitioner to take that course. That was bad advice, because invoking the grievance procedure could not possibly have resulted in the unwelcome determination being revoked or varied. The Police Service Act provided no mechanism for appeal or review. The only appropriate way for the applicant to challenge the respondent's determination was to apply for review under the Judicial Review Act.
Counsel for the respondent argued that an extension of time should be refused because the Deputy Commissioner had expended considerable time and effort in reviewing the respondent's determination in accordance with the Pt 1.6 grievance process, and came to a considered decision that the applicant had used more force than was necessary and that counselling was an action appropriate to the nature of the breach of the code of conduct. I accept that the Deputy Commissioner spent considerable time and effort reviewing the respondent's determination, but the fact that he did so must carry little weight because, if he had concluded that the respondent's determination was in any way inappropriate, there was nothing he could have done. The fact that a second decision-maker, apparently acting in good faith but without power, reached the same conclusion as the first does not carry much weight either. If this application is granted, and a third decision-maker considers the available material, I cannot rule out the possibility of a different conclusion.
The Deputy Commissioner's decision in relation to the grievance procedure was notified to the applicant by a letter dated 13 August 2015, as I have said. The applicant did not become aware of that letter until he returned to work, after some leave, on 9 September 2015. On 17 September the applicant's solicitors were asked by the Police Association to seek counsel's advice as to what the applicant should do. Counsel was briefed on or about 30 September, and provided advice on or about 21 October. The originating application and the application for extension of time were filed on 6 November, as I have said. The tempo of the events in the two months leading up to the filing of the application was not ideal. However I am satisfied that the applicant has a reasonable explanation for the delay in filing the application. It was reasonable for him to leave the matter in the hands of the Police Association, his solicitors, and counsel. There is no suggestion that the respondent or the Commissioner has suffered any prejudice as a result of the delay.
Having regard to all those factors, and to the fact that ground 3 of the application has merit, I consider that it would be just and equitable to grant the extension of time.
Conclusion
For the reasons stated, I make the following orders:
· That the time for the filing of the applicant's originating application be extended until 6 November 2015.
· That the determination made by the respondent on 1 June 2015, determining that the applicant had breached s 42(3)(a) of the Police Service Act 2003, and directing that counselling be provided to him pursuant to s 43(3)(a) of that Act, be set aside.
I need not make any order as to whether the Commissioner or one of his delegates should take any further action in relation to Mr Clark's complaint. It remains open to the Commissioner, or one of his delegates, to re-determine the issue of whether the applicant breached s 42(3)(a) and, if so, what action, if any, should be taken. It is equally open to the Commissioner to do nothing further about the matter.
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