Re Mr Karl O'Callaghan, Police Commissioner of Western Australia;

[2012] WASC 249

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE MR KARL O'CALLAGHAN, POLICE COMMISSIONER OF WESTERN AUSTRALIA; EX PARTE CRISTOVAO [2012] WASC 249

CORAM:   McKECHNIE J

HEARD:   4 JULY 2012

DELIVERED          :   4 JULY 2012

FILE NO/S:   CIV 3138 of 2011

MATTER                :Application for Writ of Mandamus and Orders Nisi, pursuant to the Supreme Court Act 1935 (WA) re Mr Karl O'Callaghan as Police Commissioner of Western Australia

EX PARTE

ROGERIO MARTINS CRISTOVAO
Plaintiff

AND

WA POLICE
First Defendant

THE LEGAL PROFESSION COMPLAINTS COMMITTEE
Second Defendant

POLICE COMMISSIONER KARL O'CALLAGHAN
Third Defendant

POLICE DETECTIVE SUPERINTENDENT MALCOLM SCOTT
Fourth Defendant

POLICE DETECTIVE SUPERINTENDENT ASSISTANT BELL
Fifth Defendant

POLICE DETECTIVE SERGEANT KEN FOSTER
Sixth Defendant

Catchwords:

Prerogative writ - Application to sack Commissioner of Police - Matter already litigated - No factual basis for order

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

First Defendant            :     No appearance

Second Defendant        :     No appearance

Third Defendant           :     No appearance

Fourth Defendant         :     No appearance

Fifth Defendant            :     No appearance

Sixth Defendant           :     No appearance

Solicitors:

Plaintiff:     In person

First Defendant            :     No appearance

Second Defendant        :     No appearance

Third Defendant           :     No appearance

Fourth Defendant         :     No appearance

Fifth Defendant            :     No appearance

Sixth Defendant           :     No appearance

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

Nil

1. McKECHNIE J:  The applicant applies for a writ of mandamus compelling the Minister for Police to replace the Commissioner of Police.  He names as defendants The Legal Profession Complaints Committee, the Police Commissioner, two detective superintendents and one detective sergeant. 

2. At the heart of his application, and indeed at the heart, it would appear, of all his applications, Mr Cristovao seems to think that an affidavit filed in Family Court proceedings was a forgery.  However, apart from his belief in this fact there is no clear evidence to support it.  I say that having read in detail his affidavit and the various annexures attached to it.

3. The applicant's actions against the solicitors have been dismissed.  There is no expert evidence to support the applicant's opinion.  There is no evidence to suggest that any of the defendants have refused to act in such a way that would attract a writ of mandamus.

4. Judging by the letter by Detective Sergeant Foster, in response to the applicant's letter of 14 June 2011, it appears that the police did thoroughly investigate the allegations made by Mr Cristovao before concluding that 'there is insufficient evidence to support the allegation made and the investigation of your complaint has now been finalised'.  The applicant's constant repetition of allegations of serious misconduct by all who have a view different from his does not convert his assertions into evidence.

5. There are many reasons why a court would be extremely cautious in making absolute a mandamus in the terms sought by the applicant but it is unnecessary to explore them as there is no factual basis for the making of an order.

6. The application is dismissed.