Re Matthews - [2001] WASCA 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE MATTHEWS; EX PARTE MacKENZIE [2001] WASCA 358

CORAM: ANDERSON J
SCOTT J
PIDGEON AUJ

HEARD: 7 MAY 2001

DELIVERED : 7 MAY 2001

PUBLISHED : 14 NOVEMBER 2001

FILE NO/S: CIV 2039 of 1999

MATTER :Application for a Writ of Certiorari against BARRY ELDON MATTHEWS, COMMISSIONER OF POLICE
and
Application for a Writ of Prohibition against ANTONY KEVIN PRINCE, THE MINISTER FOR POLICE AND EMERGENCY SERVICES
EX PARTE
RONALD GEORGE MacKENZIE
Applicant
AND
BARRY ELDON MATTHEWS, COMMISSIONER OF POLICE
First Respondent
ANTONY KEVIN PRINCE, MINISTER FOR POLICE AND EMERGENCY SERVICES
Second Respondent

Catchwords:

Administrative law - Police - Tenure - Dismissal from office - Procedural fairness - Right to respond to allegations of unfitness

Criminal law - Police - Listening devices - Limits on use of information obtained under interception warrant - Whether may be used to dismiss police officer

Legislation:

Acts (Interpretation) Act 1901 (Cth), s 15 AB

Police Act 1892, s 8

Telecommunications (Interception) Act 1979 (Cth), s 5, s 7(1), s 7(2), s 57(1), s 63, s 67

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Applicant:     Mr A J N Aristei
First Respondent           :     Ms C F Jenkins
Second Respondent      :     Ms C F Jenkins

Solicitors:

Applicant:     Mark Andrews & Assoc
First Respondent           :     State Crown Solicitor
Second Respondent      :     State Crown Solicitor

Case(s) referred to in judgment(s):

Menner v Commissioner of Police (1997) 74 IR 472
R v Commissioner of Police; Ex parte Parker & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998

Case(s) also cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bropho v State of Western Australia (1990) 171 CLR 1
Burch v SA (1998) 71 SASR 12
Kingston v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404
Kioa v West (1985) 159 CLR 550
Marshall v Watson (1972) 124 CLR 640
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
R v Fowler; Ex parte McArthur [1958] Qd R 41
Re Minister for Mines; Ex parte Roberts (1997) 18 WAR 408
Ridge v Baldwin [1964] AC 40
Taciak v Commissioner of Australian Federal Police (1995) 131 ALR 319
Thompson v His Honour Judge Byrne (1999) 196 CLR 141
Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492

JUDGMENT OF THE COURT: At the conclusion of argument in this matter, the court dismissed the application and announced that it would give written reasons in due course. These are the court's reasons for dismissing the application.
On 8 June 2000, the applicant First Class Constable MacKenzie obtained an order nisi calling upon the Commissioner of Police to show cause before this Court why:
(a)"A writ of Certiorari should not be issued against him to remove into this Court for the purpose of being quashed the notice of intention to remove the Applicant from his office as a constable with the West Australia Police Service, dated 21 January 1999, pursuant to s 8 of the Police Act, 1892 as amended ('the first notice') on the grounds set out in paragraphs (A) to (C) hereunder," and
(b)"a writ of Certiorari should not be issued against him to remove into this Court for the purpose of being quashed the notice of recommendation to the Second Respondent to remove the Applicant from his office as a constable with the West Australia Police Service, dated 27 August 1999, pursuant to s 8 of the Police Act, 1892 as amended ('the second notice') on the ground stated in paragraphs (A) to (D) hereunder."
Section 8 of the Police Act provides that:
"The Governor may, from time to time as he shall see fit, remove any commissioned officer of police … and the Commissioner of Police may, from time to time, as he shall think fit … subject to the approval of the Minister, remove any non‑commissioned officer or constable … "
The notice of 21 January 1999 was in the following terms:
"I HEREBY give you notice that in the absence of being persuaded otherwise, I intend to recommend to the Minister for Police that he approve your removal from the Western Australia Police Service due to my loss of confidence in your ability to maintain the standards of professional conduct and integrity required of a police officer.
Details of the particular conduct upon which my loss of confidence is based are as follows -
1.You acted in a manner likely to bring discredit upon the Western Australia Police Service whilst appointed as the treasurer of the Swan Districts Teeball Association Inc.
2.Between 25 August 1998 and 25 September 1998, you acted in abuse of your office in attempting to have Detective Senior Constable Derek Burling arrested for a minor traffic breach.
3.On 27 August 1998, you attempted to impede police from investigating evidence to be presented at a bail application to be held in the Supreme Court on Tuesday, 1 September 1998.
4.On 24 August 1998, you acted in a manner likely to bring discredit on the WA Police Service by making a wilfully misleading statement to a police officer.
5.At Perth, on 8 September 1998, you wilfully and knowingly made a false complaint against a police officer by accusing that police officer of using insulting words towards your daughter.
6.Between 30 July 1998 and 8 September 1998, you levelled a series of complaints against serving police officers with an intent to impede those officers' investigations into a homicide over which your daughter was charged and to discredit the police officers investigating the crime.
7.Between 21 August 1998 and 27 August 1998, you knowingly associated with convicted criminal, Lindsay Gordon Roddan, such association being liable to bring the Police Service into disrepute.
Comprehensive details of the foregoing particulars are contained in the Summary of Investigation, dated January 8, 1999, given to me by the Assistant Commissioner (Professional Standards), a copy of which 1 have directed be served on you.
Please advise me within twenty-one (21) days from the service of this Notice why I should not recommend your removal from the Western Australia Police Service. Your previous suspension from duty is herewith rescinded and during the 21‑day period you will stood down from all duties, on full pay.
Previous instructions regarding your access to police buildings and the Police Computer System remain in force."
A copy of a document headed "Summary of Investigation" was served on Constable MacKenzie at the same time as he received this notice. The Summary of Investigation was a report prepared by the Assistant Commissioner (Professional Standards) concerning Constable MacKenzie's activities and contained an evaluation of the conduct alleged to comprise the particular conduct set out in the notice. It was stated in the Summary of Investigation that much of the information against Constable MacKenzie was obtained from wire taps of Constable MacKenzie's home telephone. The background to that is that the police were investigating the stabbing murder on 4 July 1998 of a man named Furina. Two suspects were acquaintances of Constable MacKenzie's daughter, Chantal MacKenzie. One of the suspects, a young man named Wood, was her boyfriend. It was he who was suspected by the police of having stabbed Furina whilst in company with the other suspect, one Willis. The police had information that Chantal MacKenzie may have been an accessory after the fact by assisting Wood and Willis to conceal evidence. The police decided to conduct a telephone intercept operation with respect to the home telephone at the MacKenzie house in the hope of picking up conversations between Wood and Chantal MacKenzie which might assist them in their inquiries. A warrant was obtained under the Telecommunications (Interception) Act 1979 (Cth) ("Interception Act") on the basis that it was Wood who was likely to make the telephone contact. That is, it was conversations between Chantal MacKenzie and Wood which were the stated object of the telephone intercept and which were the basis upon which the warrant was obtained.
It appears from the affidavit evidence that telephone conversations between Chantal MacKenzie and Wood were intercepted and the content of them did assist the police in their inquiries. One consequence was that on 29 July 1998, Chantal MacKenzie was arrested and charged with being an accessory. Wood was, at this time, in prison. Chantal MacKenzie was released to bail and the telephone intercept was maintained in the belief that she and Wood would discuss the murder and their movements at the time of, and soon after, the murder. In fact, Wood and Chantal MacKenzie did not speak to each other on that telephone, although there was evidence that Wood was communicating with Chantal MacKenzie by having a mutual friend telephone Chantal MacKenzie using the service. On 12 August 1998, Chantal MacKenzie's bail was revoked for breach of the condition that she not contact Wood. Apparently, she had done so by telephone from a friend's home. From 12 August 1998 onwards, both Chantal MacKenzie and Wood were in custody. Nevertheless, the telephone intercept was maintained on the basis that Chantal MacKenzie might succeed in obtaining bail again and return home. Even if she did not, the police considered it possible that Wood might try to communicate with Chantal MacKenzie by using the service to ask a member of the MacKenzie family to pass a message to Chantal MacKenzie.
To complete the history, Chantal MacKenzie pleaded guilty on 3 March 2000 to a charge of conspiracy to pervert the course of justice by obstructing the police investigation into the murder of Furina. On 30 March 2000, Wood and Willis were found guilty by a jury of the murder of Furina.
As appears from the above account of the circumstances relating to the telephone intercept operation and the object of it, Constable MacKenzie was at no time under suspicion or investigation. However, intercepted conversations between Constable MacKenzie and others gave rise to concerns which were conveyed to the internal investigations unit of the police service by the detectives investigating Furina's death. A major concern related to conversations which were interpreted as threats by Constable MacKenzie towards one of the principal investigators into the homicide of Furina, one Detective Senior Constable Derek Burling. He is the officer referred to in the second item in the s 8 notice.
On 27 August 1998, a task force was established under the auspices of the internal affairs unit of the police service. It was the work of this task force which was summarised in the Summary of Investigation - a detailed document comprising 74 pages and containing excerpts of the recorded telephone conversations between Constable MacKenzie and others which provide the support for a number of the allegations against him.
On 29 June 1999, Constable MacKenzie delivered to the Commissioner a detailed response to each of the seven matters raised in the s 8 notice. His response was referred to the Assistant Commissioner (Professional Standards) for comment. That officer prepared a commentary and this document, dated 2 August 1999, was provided to the Commissioner. A copy was not provided to Constable MacKenzie. In substance, it rejected as inadequate and unmeritorious Constable MacKenzie's response to the matters numbered 2 to 7 in the s 8 notice. As to the first matter, which referred to Constable MacKenzie's conduct as treasurer of the Swan Districts Teeball Association Inc, arising out of which four charges of stealing were laid against him, it was reported that Constable MacKenzie had been acquitted in the District Court of all of the charges.
On 27 August 1999, the Commissioner notified Constable MacKenzie that he had "examined the material provided to me, and your submission" and had "determined that I can no longer retain confidence in your capacity to conduct yourself within the required standards of ethical conduct and integrity which are necessary for a police officer to effectively discharge the functions of his or her office". The notice notified Constable MacKenzie that the Commissioner had recommended to the Minister that he "be removed from the police service".
On the same date, the Commissioner wrote to the Minister seeking approval to remove Constable MacKenzie from the police service. This request set out the matters 2 to 7 in the s 8 notice as grounds upon which the request for approval was based. No reliance was placed on the first ground in respect of which District Court acquittals had been obtained by Constable MacKenzie. A copy of the Commissioner's request to the Minister was forwarded to Constable MacKenzie. It was in the following terms:
"NOTICE OF COMMSSIONER'S RECOMMENDATION
- FIRST CLASS CONSTABLE R G MacKENZIE 8931
In accordance with the provisions of Section 8 of the Police Act 1892, I seek your approval to remove First Class Constable MacKenzie (MacKenzie) from the Western Australia Police Service (WAPS).
MacKenzie is the subject of a Notice of Intention (to remove him from the WAPS) served on him on 21 January 1999. The Notice of Intention resulted from facts contained in the Summary of Investigation (Summary), dated 8 January 1999.
In response to the material contained in the Summary, MacKenzie submitted a submission arguing against his removal. An analysis of MacKenzie's submission was provided by the Assistant Commissioner (Professional Standards). Having regard to the material provided to me, including McKenzie's submission, I have concluded that I can no longer retain confidence in MacKenzie's capacity to conduct himself within the required standards of ethical conduct and integrity which are necessary for a police officer to effectively discharge the function of his/her office.
My grounds for recommending MacKenzie's removal are that -
·Between 25 August 1998 and 25 September 1998, First Class Constable MacKenzie acted in abuse of his office in attempting to have Detective Senior Constable Derek Burling arrested for a minor traffic breach;
and further
Between 25 August and 25 September 1998, whilst attempting to gain evidence of this alleged breach by Detective Senior Constable Burling, First Class Constable MacKenzie attempted to influence a witness by instructing her not to mention an identical breach committed by MacKenzie several days earlier;
and further
On 29 August 1998, First Class Constable MacKenzie attempted to procure a serving police officer to breach the Police Force Regulations 1979, and possibly the Criminal Code, by having him falsify documents to enable MacKenzie to obtain the personal details of Burling from the WAPS computer system.
·On 27 August 1998, First Class Constable MacKenzie attempted to impede police investigating evidence to be presented at a bail application to be held in the Supreme Court on Tuesday 1 September 1998.
·On 24 August 1998, First Class Constable MacKenzie acted in a manner likely to bring discredit on the WA Police Service by making a wilfully misleading statement to a police officer.
·At Perth on 8 September 1998, First Class Constable MacKenzie made a false complaint against a police officer by accusing that police officer of using insulting words towards his daughter;
and further
wilfully lied to investigators when making this complaint.
·Between 30 July 1998 and 8 September 1998, First Class Constable MacKenzie levelled a series of complaints against serving police officers with an intent to impede those officers' investigations into a homicide over which his daughter was charged and further to discredit the police officers investigating the crime.
·Between 21 August 1998 and 27 August 1998, First Class Constable MacKenzie knowingly associated with convicted criminal, Lindsay Gordon RODDAN, such association being liable to bring the Police Service into disrepute.
As you are aware, on receipt of a copy of my recommendation to you, MacKenzie is entitled to seek an appeal of my recommendation through the Industrial Relations Commission. If he exercises this right to appeal he must lodge an application with your office within 14 days of receipt of my recommendation to you.
Until such time as the process is finalised MacKenzie will remain stood down from all duties, on full pay.
Finally, in accordance with the Telecommunications Interception Act, all files pertaining to MacKenzie have been sealed for security reasons until required by the Commissioners of the Industrial Relations Commission."
There are three main grounds upon which the application for prerogative relief is based and the first two grounds depend on a proper construction of the Interception Act.
By s 7(1) of the Interception Act, it is provided that "a person shall not intercept … a communication passing over a telecommunications system". By s 7(2), it is provided that this prohibition does not "apply to or in relation to … (b) the interception of a communication under a warrant". That is, a warrant issued under the Interception Act. It is not disputed that the warrant in this case was a warrant issued under the Interception Act. However, it is said that the information obtained under the warrant was not "lawfully obtained information" because the warrant should have been revoked by the time the information was obtained, and, secondly, even if the information was lawfully obtained, the uses to which the Interception Act permitted the information to be put did not include the use to which it was put, namely, removing Constable MacKenzie from office.
It is convenient to deal first with the question whether the use to which the information could be lawfully put, assuming it to be "lawfully obtained information" included removing Constable MacKenzie from office.
Section 63 of the Interception Act contains a blanket prohibition against the use of information obtained by interception of a communication passing over a telecommunications system. However, by s 67, it is provided that "an officer … of an agency may, for a permitted purpose … in relation to the agency … make use of … (a) lawfully obtained information … "
The definition of "permitted purpose" in s 5 of the Act includes:
"(c)in the case of the Police Force of a State:
(iia)the making by a person of a decision in relation to the appointment, re‑appointment, term of appointment or retirement of an officer or member of staff of that Police Force."
On behalf of the applicant, it was argued that the making of a decision to remove Constable MacKenzie from office was not the making of a decision "in relation to the appointment [or] term of appointment … " of Constable MacKenzie.
We are unable to accept this submission. There is no reason not to give the words of the definition their ordinary meaning and, in our opinion, as a matter of ordinary language a decision to terminate the appointment of a police constable is a decision "in relation to the appointment" and "in relation to the term of appointment" of that officer. There is no need to resort to extrinsic aids pursuant to s 15AB of the Acts (Interpretation) Act 1901 (Cth), but if resort is had to extrinsic aids, it can be seen from the explanatory memorandum to the Telecommunications (Interception) and Listening Device Amendment Bill 1997 that the purpose of the introduction of subpar (c)(iia) into the definition of "permitted purpose" was to make clear that a police agency could use lawfully obtained information to dismiss one of its members. The purpose of the amendment was stated at pp 1 to 2 and 4 to 5 of the explanatory memorandum to be to "permit intercepted information to be used in making a decision whether to appoint, reappoint, dismiss or retire a member … of a police service" and "to assist police commissioners to deal with serious police misconduct".

The interpretation contended for by counsel for the applicant would mean that whilst lawfully obtained information proving a person to be not fit for office as a policeman could be used in the making by the Commissioner of a decision not to appoint or reappoint that person, the information could not be used by the Commissioner in making a decision to terminate the appointment of that person. We can think of no sensible reason why the legislature would wish to create that dichotomy.
As to the contention that the information obtained under the warrant was not "lawfully obtained", this depends upon the proposition that all of the intercept information relating to Constable MacKenzie was obtained after the grounds for the subsistence of the warrant had ceased to exist. The factual basis for this submission is that all of the information was obtained after 12 August 1998, by which time Chantal MacKenzie had been returned to custody for breach of her bail conditions. It is said that the intercept warrant ought to have been revoked as soon as she was returned to custody, because from then on she could not use the telephone in question, that is, the MacKenzie home telephone, to communicate with Wood, nor could Wood communicate with her by the use of that telephone.
The obligation to revoke a warrant when the relevant officer is satisfied that the grounds on which the warrant was issued have ceased to exist is contained in s 57(1) of the Interception Act. That provision requires the warrant to be revoked in such circumstances.
In this case, the relevant officer was Detective Sergeant Bowen. He was the case officer in relation to the investigation of the murder of Furina. By an affidavit sworn on 10 August 2000, he gave the reasons why he decided to maintain the intercept after Chantal MacKenzie had been returned to custody. These were that it was quite possible that Chantal MacKenzie would be bailed again, in view of her young age and good antecedents. Furthermore, an offer of indemnity had been made to her and if she had accepted that offer, she would have been immediately released. Detective Sergeant Bowen also deposed to the belief that, even if she was not bailed again, Wood might use the telephone in question to get messages to Chantal MacKenzie through her family.
On the face of it, these appear to be good reasons not to revoke the warrant. They provide good reason why Detective Sergeant Bowen should not be "satisfied that the grounds on which the warrant was issued have ceased to exist … " within the meaning of s 57(1) of the Interception Act.
It is for these reasons that we considered that these grounds of appeal were not made out.
The remaining ground of appeal raises an allegation of a denial of natural justice or "procedural fairness". On behalf of the applicant, it was contended that he was denied procedural fairness in that he was not provided with the commentary of the Assistant Commissioner (Professional Standards) on Constable MacKenzie's response to the s 8 notice. The commentary in question is a short document, the purpose of which, in the main, appears to be to draw attention to the main features of Constable MacKenzie's response and to evaluate them in the light of the information in the Summary of Investigation. So, for example, concerning Constable MacKenzie's denial of having acted in abuse of his office by attempting to have Detective Senior Constable Burling arrested for a traffic breach, the following comment is made:
"Although he denies having acted in abuse of his office by attempting to have Detective Senior Constable Burling (Burling) arrested for a minor traffic breach or to acting with malice towards the detective, the unsolicited conversations recorded through telephone intercept cannot be ignored as they show an entirely opposing course of conduct over a protracted period."
There are also some comments upon the inadequacy of Constable MacKenzie's response. For example, there is the following statement with respect to Constable MacKenzie's response to item 3 in the s 8 notice alleging that he attempted to impede police investigating evidence to be presented at a bail application:
"As documented in the analysis of this issue [in the Summary of Investigation], MacKenzie simply discarded his oath of office in an effort to achieve his aims. His conduct then is reflected now in his response to this issue as he has failed to address the incriminating product of telephone intercept between himself and Noye where they plan to subvert the investigation."
It was not contended by Ms Jenkins, who appeared as counsel for the respondent, that the Commissioner was not obliged to invite Constable MacKenzie to respond to the s 8 notice before exercising the discretion to dismiss which is conferred by s 8. There is authority for the proposition that he was not so obliged. Menner v Commissioner of Police (1997) 74 IR 472 and R v Commissioner of Police; Ex parte Parker & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998, per Franklyn J at pp 10 to 15. However, as this point was not argued, we will approach this ground of appeal on the basis upon which it was argued, namely, that the rules of natural justice with respect to procedural fairness did apply to the proposed exercise of discretion by the Commissioner to dismiss Constable MacKenzie. That, of course, still leaves open the question as to the precise content of the rules as they apply to that exercise of discretion.
As has been observed, the Summary of Investigation on which the s 8 notice was based was copied to Constable MacKenzie with the s 8 notice. He was invited to respond. This gave him full opportunity to deal with every allegation against him. He took that opportunity. His response was detailed and ran to 13 pages. The commentary to which we have referred is a commentary on some parts of Constable MacKenzie's response. It does no more than join issue with the response in certain respects and comment on the quality of it in other respects. It contains no additional factual material, nor any new allegation. Assuming that Constable MacKenzie was entitled to procedural fairness, he had no reasonable or legitimate expectation that he would be given an opportunity to respond to the commentary.
There is only one other matter that should be mentioned. In his response to item 7 in the s 8 notice, namely, that he had knowingly associated with a convicted criminal by the name of Roddan, he pleaded that this was only to have some legal documents drafted. He stated or implied that he could not afford to engage solicitors to draft documents relating to his daughter's defence of the criminal charge against her, including bail documents. He said he had been told that Roddan "had experience" in drafting such documents. He said this is why he met Roddan briefly. He denied that this meeting constituted an "association".
As to this aspect of the response, the Assistant Commissioner (Professional Standards) commented:
"His association with Roddan is detailed in 13 telephone calls and through three meetings. MacKenzie has shown throughout this investigation that he is prepared to engage any tactics, or use any person, to protect his daughter and that this has been paramount to him. He allowed Roddan to prepare documents for the bail application hearing. This is indicative that the relationship was more than a fleeting one.
With respect to MacKenzie's claim of being destitute, it is known that he retired from the Australian Regular Army on 4 June 1992, and has been in receipt of a Defence Force pension from that date."
On behalf of Constable MacKenzie, it was submitted that the Assistant Commissioner (Professional Standards) misstated Constable MacKenzie's response in that Constable MacKenzie had not made the claim that he was "destitute". All that he had said in justifying his engagement of Roddan to advise him concerning the preparation of the legal papers was:
"During that period I did not have any reserves of funds or assets of value other than my family home. I was being defended in my matter with funds provided by Legal Aid."
It was submitted on his behalf that he should have been given an opportunity to point out to the Commissioner that, on a proper reading of his response, he had not claimed to be destitute.
We are not persuaded that the rules of procedural fairness go so far as to give rise to a reasonable or legitimate expectation that Constable MacKenzie would be given the opportunity to respond to such an insubstantial matter. The failure to give him that opportunity did not vitiate the Commissioner's exercise of discretion.
It was for all of these reasons that we decided to dismiss the application and discharge the order nisi.