Robb v Chief Commissioner of Police

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8484 of 2004

GEORGE EDWARD ROBB	Plaintiff
V
CHRISTINE NIXON, CHIEF COMMISSIONER OF POLICE	Defendant
No. 9240 of 2004
PAUL NOEL DALE	Plaintiff
V
CHRISTINE NIXON, CHIEF COMMISSIONER OF POLICE	Defendant

JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 2 and 3 June, 2005
DATE OF JUDGMENT:	11 August 2005
CASE MAY BE CITED AS:	Robb and Dale v Chief Commissioner of Police
MEDIUM NEUTRAL CITATION:	[2005] VSC 310

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Administrative Law – judicial review – decision by Chief Commissioner of Police to dismiss officers – ultra vires – procedural fairness – apprehension of bias – relevant considerations.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A Cavanough QC and Mr A Strahan	Tony Hargreaves and Partners
For the Defendant	Dr C Jessup QC and Ms R Orr	Freehills

HIS HONOUR:

The Applications

George Edward Robb has brought proceedings seeking an order in the nature of certiorari quashing the decision of the defendant, Christine Nixon, Chief Commissioner of Police, under s.68 of the Police Regulation Act 1958 (the Act), dismissing him from the Victoria Police. This decision was contained in and conveyed by Dismissal Order dated 14 August 2004.

Mr Robb relies on the following four grounds:

(a)the decision was ultra vires because the defendant failed to comply with s.68(2) of the Act;
(b)the defendant failed to accord Mr Robb procedural fairness in making the decision;
(c)in making the decision and in statements to the media, the defendant conducted herself in such a way as to give rise to a reasonable apprehension of bias;
(d)the defendant, in treating as irrelevant the absence of prior internal disciplinary charges or findings against Mr Robb, failed to take into account a relevant consideration in making the decision.

Paul Noel Dale has also brought proceedings against the Chief Commissioner seeking orders quashing a decision by the Chief Commissioner under s.68 of the Act to dismiss him from the Victoria Police. This decision was contained in and conveyed by Dismissal Order dated 30 September 2004. Mr Dale challenges this decision relying on three grounds.

(a)that the decision was ultra vires in that the defendant failed to comply with s.68(2) of the Act;
(b)that in making the decision the defendant failed to accord Mr Dale procedural fairness;
(c)that by her public statements and in making the decision the defendant conducted herself in such a way as to give rise to a reasonable apprehension of bias.

Thus, both applications are directed to a review of the decision and not the correctness of the decisions.

I propose, after referring to the principal statutory provisions, to consider first the grounds (other than the apprehended bias grounds) which are relied upon by Mr Robb and then the similar grounds relied upon by Mr Dale. I will then address the apprehended bias ground and the issue of the exercise of the Court’s discretion.

The relevant legislative provisions

The relevant dismissal power and procedures are set out in s.68 Police Regulation Act 1958 (the Act) which provides:

“68. Chief Commissioner may dismiss unsuitable members
(1)The Chief Commissioner, by written order, may dismiss a member of the force (other than a Deputy Commissioner or an Assistant Commissioner) if the Chief Commissioner is satisfied that the member is unsuitable to continue as a member of the force, having regard to-
(a)the member's integrity; and
(b)the potential loss of community confidence in the force were the member to continue as a member of the force.

(2)Before dismissing a member under this section, the Chief Commissioner-
(a)must give the member a notice setting out the grounds on which the Chief Commissioner considers the member is unsuitable to continue as a member of the force; and
(b)must give the member at least 21 days in which to make written submissions in relation to the proposed dismissal; and
(c)must take into account any submissions made by the member during that period.

(3)The order must set out the reasons why the Chief Commissioner is satisfied that the member is unsuitable to continue as a member of the force.”

Reference should also be made to the procedure for the review of dismissal orders provided in s.68B to s.68F. They provide:

“68B. Application for review of dismissal order
(1)A member of the force who is dismissed from the force by an order under section 68(1) may apply to the Appeals Board for a review of the Chief Commissioner's decision to make the order on the ground that the decision was not sound, defensible or well-founded.
(2)An application for review must be made within 14 days after the member is notified of the making of the order to which the application relates.
(3)An application for review does not stay the operation of the order to which it relates.”

“68C. Procedure on review
(1)In conducting a review under this Division, the Appeals Board must proceed as follows -
(a)first, it must consider the Chief Commissioner's reasons for the decision to dismiss the applicant from the force;
(b)secondly, it must consider the case presented by the applicant as to why the decision was not sound, defensible or well-founded;
(c)thirdly, it must consider the case presented by the Chief Commissioner in answer to the applicant's case;
(3)The applicant has at all times the burden of establishing that the decision to dismiss the applicant from the force was not sound, defensible or well-founded.”

“68D. What may the Appeals Board order?
(1)If the Appeals Board is satisfied that the decision to dismiss the applicant from the force was not sound, defensible or well-founded, the Appeals Board may-
(a)order the Chief Commissioner to re-instate the applicant as a member of the force on terms not less favourable to the applicant than those that would have been applicable if he or she had not been dismissed; or
(b)if the Appeals Board considers that it would be impracticable to re-instate the applicant, order the Chief Commissioner to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 12 months immediately before being dismissed; or
(c)refer the matter back to the Chief Commissioner for re-consideration in accordance with any directions or recommendations that the Appeals Board considers appropriate.

(2)If the Appeals Board makes an order under sub-section (1)(a), it may also-
(a)order the Chief Commissioner to pay the applicant an amount stated in the order that does not exceed the amount that the applicant would, but for being dismissed, have received before being re-instated; and
(b)order that the period of service of the applicant as a member of the force is taken not to have been broken by the dismissal.

(3)If the applicant was on leave without full pay during any part of the period of 12 months immediately before being dismissed, the maximum amount of compensation that may be ordered under sub-section (1)(b) to be paid is to be determined as if the applicant had received full pay while on leave.
(4)When assessing any compensation payable, the Appeals Board must take into account-
(a)whether the applicant made a reasonable attempt to find alternative employment; and
(b)the remuneration received in any alternative employment or that would have been payable if the applicant had succeeded in obtaining alternative employment.

(5)If the Appeals Board is not satisfied that the decision to dismiss the applicant from the force was not sound, defensible or well-founded, the Appeals Board must confirm the order of the Chief Commissioner.”

“68E. Evidence
(3) Subject to sub-section (4), evidence is not to be adduced before the Appeals Board in a review under this Division unless-
(a)notice of intention to do so, and of the substance of the evidence, has been given to the Appeals Board before the commencement of the hearing of the review; and

(b) the Appeals Board gives leave.

(4) Sub-section (3) does not apply to the following-
(a) the Chief Commissioner's order;
(b) the notice given under section 68(2)(a);
(c)any information before the Chief Commissioner at the time of making the order, including any submissions made under section 68(2)(c).

(5) The Appeals Board-
(a)may give leave under sub-section (3)(b) in such circumstances as it thinks fit and having regard to the nature of the review; and
(b)without limiting paragraph (a), must give leave under sub-section (3)(b) if it is satisfied-
(i)that there is a real probability that the applicant may be able to show that the Chief Commissioner has acted on wrong or mistaken information; or
(ii)that there is cogent evidence to suggest that the information before the Chief Commissioner was unreliable, having been placed before the Chief Commissioner maliciously, fraudulently or vexatiously; or
(iii)that the evidence sought to be adduced might materially have affected the Chief Commissioner's decision.”

“68F. Witnesses
(1)None of the following is a compellable witness in a review under this Division unless the Appeals Board gives leave-
(a) the Chief Commissioner;
(b) a member of the force;
(c)a person employed in the office of the Chief Commissioner.

(2)The Appeals Board may give leave only if it considers that extraordinary grounds exist that warrant leave being given.”

The Appeals Board consists of a chairperson and two or more deputy chairpersons appointed by the Governor-in-Council, one of whom must be a legal practitioner of at least five years’ standing.[1] It is bound by the rules of natural justice in all proceedings before it.[2] It is also provided that the Appeals Board must have regard to the interests of the applicant for review and the public interest which includes, for the purpose of a review of a dismissal order, the fact that the Chief Commissioner made an order under s68(1).
[1]S.89(1)(2)
[2]S.91J

The Appeals Board is directed to conduct all proceedings with as little formality and technicality and as much speed as the requirements of the Act and the proper consideration of the subject matter of the case permit. It is given power to regulate its own procedure subject to the Act.[3] It is also given the power to require that evidence be given on oath. It is not bound by the rules of evidence or any court of record practice or procedure and may inform itself as it thinks fit subject to s.68E.[4] The Act also authorises the chairperson of the Appeals Board, subject to s.68E and s.68F, to issue witness summonses. The appeal provisions are discussed in more detail below.
[3]S.91L
[4]S.91O

The Robb application ‑ background

The dismissal proceedings against Mr Robb were initiated by a Notice of Proposed Dismissal dated 31 May 2004. This is a lengthy document which concluded with an invitation to Mr Robb to make written submissions to the Chief Commissioner in relation to the proposed dismissal by 24 June 2004. On 11 June 2004, Mr Robb’s solicitor wrote to the Chief Commissioner alleging deficiencies in the Notice of Proposed Dismissal. Access was sought to reports and files regarding the allegations under consideration. Confirmation was expressly sought that the defendant intended to rely only on substantiated allegations identified in the Notice and would not take into account matters for which he stood trial and was acquitted. The letter also noted that Mr Robb was medically unfit and requested an extension of time for a reasonable period.

The Chief Commissioner replied by letter dated 16 June 2004. She stated that she had already had regard to all the matters identified in the Notice and that Mr Robb would need to respond to that material. The Chief Commissioner rejected the request for access to documentary material. The request for additional time was also refused.

On 24 June 2004 Mr Robb provided a response to the Notice of Proposed Dismissal and did so under protest. The response, among other things, argued that inadequate time and inadequate access to information and documents had been given. Issues were also raised about whether the Chief Commissioner had complied with the statutory requirements of the Act and whether procedural fairness had been provided. It was also argued that the Chief Commissioner had disqualified herself from lawfully exercising the power of dismissal by public statements she had made condemnatory of Mr Robb. The response also raised issues as to the age of matters relied upon and alleged lack of substantiation, vagueness, triviality and unreliability of complainants. As to the criminal conduct alleged in the Notice of Proposed Dismissal, M Robb relied on the fact that he had been acquitted by a jury. The response also included material and testimonials as to his good character. It included a statement of retired Chief Inspector Allen. It was argued that this material, amongst other things, supported a case that the allegations which were treated by the Chief Commissioner as substantiated were falsely made.

On or about 10 August 2004, the Chief Commissioner served Mr Robb with a Dismissal Order. Apart from the Dismissal Order, it contained detailed reasons, structured according to the particulars contained in the original Notice of Proposed Dismissal, and other information considered, both adverse and positive. It concluded with the following statement:

Determination
“I, Christine Nixon, Chief Commissioner of Police, having regard to:
·    your integrity; and
·    the potential loss of community confidence in the force if you were to continue as a member of the force; and
· having supplied you with a written notice pursuant to s.68(2) of the Police Regulation Act 1958; and
·    having taken into account all the submissions made by you;

am satisfied that your propensity for violence, your poor treatment of people in vulnerable situations, your general duty failure combined with your failure to take advantage of the opportunities to change, leads me to conclude that you are unsuitable to continue as a member of the force.”

The dismissal was stated to be effective from 10 August 2004.
Robb application ‑ ultra vires ground; submissions

Counsel for Mr Robb submitted that compliance with s.68(2) is a condition precedent to the exercise of the Chief Commissioner’s power to dismiss a member of the police force under s.68(1). It was argued, in particular, that the Notice of Proposed Dismissal must set out the grounds on which the Chief Commissioner considers the member is unsuitable to continue as a member of the Force. Counsel argued that the Notice did not meet this requirement. Counsel submitted that what s.68(2) contemplated was that the document would enable the police member to understand exactly what was said against him. It was argued that this was consistent with the principles of fairness. It was also argued that this was consistent with the possibility of the member receiving only 21 days notice and with the authorities concerned with disciplinary proceedings which emphasised the need to identify the case made against the person the subject of the proceedings. A number of cases were cited for the latter proposition.[5] Counsel submitted, as stated in the grounds pleaded in the Originating Motion, that the Notice failed to set out the grounds relied upon by the defendant in several respects:

(a)it referred to the detail of the service record of Mr Robb but did not identify which particular matters of detail were relied upon and it referred to a number of matters that could not reasonably bear upon the plaintiff’s current suitability to continue as a member of the Force; and
(b)it failed to refer to a number of matters which the defendant in fact took into account in making the ultimate decision.

[5]Etherton v Public Service Board of NSW [1983] 3 NSWLR 297 especially at 303; Public Service Board of NSW v Etherton [1985] 1 NSWLR 430 at 432; R v Solicitors’ Disciplinary Tribunal; ex parte L a solicitor [1988] VR 757 at 763 to 765; R v Little; ex parte Fong [1983] VR 237; Smith v NSW Bar Association (1992) 176 CLR 256 at 270; Ridge v Baldwin 19640 AC 40; Hardcastle v Commissioner of Police (1984) 53 ALR 593; O’Rourke v Miller (1985) 156 CLR 342; Bigg v NSW Police Service (1998) 80 IR 434.

The argument on ultra vires ultimately turned on the latter allegation, the other allegation raising issues of procedural fairness. As to the latter allegation, some 21 matters were listed in the schedule to the Originating Motion. Counsel for Mr Robb however, ultimately drew attention in argument to the following matters in developing the argument of ultra vires:

(a)Particular 2.10 of the Notice of Proposed Dismissal (the Notice). This related to a complaint made on 12 February 1989 by a Ms Peters alleging inappropriate behaviour on Mr Robb’s part.
·    The Notice
The Notice detailed the complaints made by Ms Peters and concluded by stating that the truth or otherwise of the allegation could not be determined at the time due to the absence of corroboration of either version of events and that as a consequence Mr Robb was counselled in respect to the way in which he dealt with the situation.
·    The Dismissal Order
Counsel for Mr Robb referred to the detail in the Dismissal Order relating to this incident. Attention was drawn to the fact that the Chief Commissioner noted that, assessing the file in light of subsequent events, she concluded that Ms Peters’ account of the events was the preferable one. In stating that conclusion she said she bore in mind that the process was a management process not a disciplinary one. She then referred to the fact that Mr Robb had denied any impropriety in the matter and commented that in other matters that had been found to be substantiated he had denied any impropriety and went on to say that in her view “on a number of occasions you have been less than truthful.” She stated that she believed that this was one of them.
She also concluded that this incident added to the strength of material going towards a propensity for poor behaviour towards women but said that the incident was not a determining issue in her decision.
·    Grounds allegedly not stated in Notice
Counsel submitted that these reasons revealed that the defendant had in fact relied upon grounds that had not been referred to in the original Notice. The first was that reliance was to be placed upon subsequent events in considering whether to accept material such as complaints by Ms Peters. The other was the view expressed that this incident and a number of other occasions showed him to have been less than truthful and, in particular, concern was expressed about his denial of impropriety in relation to matters which were found to have been substantiated.
I note that the Chief Commissioner expressly stated that the incident was not a determining issue in her decision. That does not mean that it was not relied upon and new matters were mentioned namely, consideration of other matters in deciding whether to accept particular allegations and Mr Robb’s denial of matters which were found to be substantiated and the view that he had been less than truthful in dealing with complaints.
(b)Particular 2.31 of the Notice. This concerned a complaint lodged in 1993 by a Mr Maurice.

·    The Notice
The Notice listed a number of matters of complaint including Mr Maurice’s treatment in the divisional van, racial slurs, the ignoring of his request for attention when in the cells and in pain and being locked in the cells without first being interviewed. The Notice did not allege any physical aggression on Mr Robb’s part. The Notice referred to the fact that Mr Robb had subsequently conceded that he had directed racial insults towards Mr Maurice and had received counselling in respect of that issue and that the remaining allegations were withdrawn.
·    The Dismissal Order
In the Dismissal Order the Chief Commissioner said she had considered his response and the material in the matter. She commented that what was important was that the counselling also included reference to his aggression. She said that that issue was important, especially in light of subsequent complaints where his aggression had been seen to inflame situations. It was noted that this was the view held by a number of colleagues as revealed in their statements and indicated that he had not responded to the opportunities to change that he had been given. The Chief Commissioner stated that it was a matter that assisted her in forming a view of him and was important in that regard. She stated that although the issue was slightly over ten years old it remained an element indicative of a course of conduct.
·    Grounds allegedly not stated in Notice
Counsel submitted that none of the above matters were mentioned in the Notice of Proposed Dismissal, that they constituted grounds and should have been stated.
(c)Particular 2.34 of the Notice. The Notice referred to a complaint lodged by a Mr David Crook in 1995 in respect of Mr Robb and another member.
·    The Notice
It recorded that Mr Crook had alleged that he was taken to an area known as the “Pines”, bashed up and threatened that he would be shot. Mr Crook alleged that the police had no reason to pick him up in the first place. The Notice recorded that the investigation was unable to determine whether the incident referred to at the “Pines” had occurred but that the detaining of Mr Crook was considered reasonable in the circumstances and so a complaint in that area was not substantiated.
·    Dismissal Order
In the Dismissal Order the Chief Commissioner stated that she had considered the material underpinning the matter. She referred to the fact that Mr Robb’s response to the Notice was to rely upon the decision made by the Ethical Standards Department and not to address the incident. The defendant went on to say that she had assessed the material relating to the incident including his statement. His statement included the proposition that Mr Crook ran into Safeway Liquor and, inter alia, without provocation, threw himself backward onto the bottle racks. This statement was compared to that of Mr Crook and an independent witness. The defendant indicated that having regard to the independence of the Safeway staff member and the high degree of similarity between her statement and that of Mr Crook, their versions were preferable and were a clear indication of Mr Robb’s aggression as well as his propensity to deny impropriety.
·    Grounds allegedly not stated in Notice
Counsel for Mr Robb submitted that the Safeway portion of the incident was not identified as a ground in the original Notice or as an aspect to be relied upon.
(d)Particular 2.43 of the Notice. This referred to a complaint by a Ms Ralph alleging inappropriate behaviour in an incident that occurred on 13 July 1996.
·    The Notice
It referred to an investigation that was conducted and the fact that he was charged with improper conduct. It also noted that he appeared before Assistant Commissioner Boucher on 23 April 1997 who, after a hearing, dismissed the charge on the basis of the absence of corroboration of the allegation.
·    Dismissal Order
In the material set out in the Dismissal Order, a number of points are made. The first is that in his response, Mr Robb had submitted that the majority of the claims were unfounded or unsubstantiated. The Chief Commissioner rejected this argument saying that the matters were substantiated by investigators but that the charges were dismissed. She went on to say that she had considered the material in the light of that process and then set out a number of findings leading to the conclusion that she was reasonably satisfied on the balance of probabilities that the substantiated claim was in fact true and she stated that she found it to be a significant element in her decision.
·    Grounds allegedly not stated in Notice
It is argued that the defendant failed to give the plaintiff notice that she proposed to go behind Assistant Commissioner Boucher’s dismissal of the charge and to consider the matter herself. The issue raised is an issue relevant to the procedural fairness argument, not the ultra vires argument.
(e)Particular 2.55 of the Notice. This concerned an incident that occurred in 2001 involving a Mr Stewart and a Ms Williams who lodged complaints of violent treatment by police including the plaintiff.
·    The Notice
It stated that, after a thorough investigation, all the Stewart allegations, except for one[6] were deemed to be substantiated. All the Williams’ allegations were also deemed to be substantiated. These matters led to Mr Robb being charged with criminal offences in the County Court sitting at Shepparton. At the trial, the jury returned a verdict of not guilty.
[6]That of Mr Stewart that he had been sprayed with a capsicum spray in the exercise yard at the Benalla Police Station.
·    Dismissal Order
In her reasons in the Dismissal Order document, the Chief Commissioner referred to the submissions of Mr Robb and stated that the matters were substantiated and that it was proper for her to consider the issues on the standard of proof required in the s.68 process. She stated that she did not agree with his submission in his response that there had been a successful attack on the credit of the two complainants. Her assessment was that the jury was not convinced on the question of lawful arrest to the standard of beyond reasonable doubt. She also noted that the statement by Constable Cummins was more supportive of the complainants’ version and she was satisfied on the balance of probabilities that he acted excessively and aggressively and with unwarranted physical force. She stated that the fact that no disciplinary charges had been brought was irrelevant. She stated that this matter carried significant weight both on the issue of integrity and the issue of community confidence should he remain a member of Victoria Police.
·    Grounds allegedly not stated in the Notice
It is put that the Chief Commissioner failed to give the plaintiff notice of an intention to go behind the jury verdict and make her own findings on the material. This, however, is a matter relevant to procedural fairness. It is also put that the Chief Commissioner failed to give notice that she proposed to find that the plaintiff acted excessively and aggressively and with unwarranted physical force.
(f)Particular 2.62 of the Notice. This concerned a complaint referred to the Ethical Standards Department made by a Senior Constable at the Benalla Police Station.
·    The Notice
The Notice summarised the complaint which concerned events that occurred on a tour of duty performed by Mr Robb and a colleague on 15 December 2001. Matters noted in the Notice of particular relevance to this application are allegations that Mr Robb attended at the Farmer’s Arms hotel on three occasions during the course of a shift and also attended a work function of his wife remaining there for a period of one hour. The Notice records that an investigation was commenced but was not yet finalised.
·    Dismissal Order
In her reasons, the Chief Commissioner noted that the allegations had been put to Mr Robb in an interview and that he had denied the allegations and indicated that he regarded those who reported concerns about his behaviour as being “cowardly” and lacking in “testosterone”. The Dismissal Order also noted that in that interview he had suggested that other members at Benalla were lazy and not hard working. The Dismissal Order then went on to state:
“An analysis of your work performance demonstrates that you are below average for both Benalla and a for a combination of Benalla, Seymour and Wangaratta in work performance across a range of areas on a statistically significant sample. This material is important in that it assists me in forming a view of your attitudes to policing and to determine whether the erroneous view that hard working police attract complaints applies to you. It does not. Your performance is below average and your complaints are significantly above what might reasonably be expected. Although assisting in confirming a view, it is not a major factor in my decision.”

· Grounds allegedly not stated in the Notice
Counsel for Mr Robb submitted that the Dismissal Order raised as a ground below average work performance coupled with above average complaint history. Counsel submitted that the Chief Commissioner acknowledged again later in the Dismissal Order a reliance upon these matters.[7] I note that the issue of work performance was identified in both the Notice and the Dismissal Order as a ground.[8] The critical issue for the purpose of the ultra vires argument is the reference to the complaint history.

[7]Section headed “Other Information Considered.”

[8]General duty failure.

Counsel for the Chief Commissioner submitted that what s.68(2) required was a statement by the defendant of the grounds that she was considering at the time of the Notice. Counsel argued that the Notice was not in the nature of a pleading of serious allegations to be put before a Tribunal and was not required to be. Counsel also submitted that the ultimate judgment required was a very broad one and one involving the balancing of the good with the bad and the trivial with the serious. Counsel for the Chief Commissioner submitted that the matters alleged as grounds that were not included in the Notice are matters which on the evidence, the Chief Commissioner mentioned in the Dismissal Order after a consideration of Mr Robb’s submission and further consideration of the relevant materials in the light of those submissions. Counsel submitted that inevitably in the course of considering the submissions of Mr Robb together with the material before her, the defendant’s thinking would change and develop. The ultra vires point, however, depended upon what must be set out in the Notice of Proposed Dismissal and there was nothing to suggest that any of the new matters identified above on behalf of Mr Robb were matters in the mind of the Chief Commissioner at the time the Notice was given.

Robb application – ultra vires; analysis

In considering the ultra vires issue, a critical issue is the meaning of the term “grounds” in s.68(2) of the Act.

Counsel for Mr Robb relied upon the ordinary dictionary meaning of the word “ground” and the discussion of that term in the case of Smith; ex parte Director of Public Prosecutions for Western Australia No.1[9]. In that case reference was made to the Macquarie Dictionary (Second Revised Edition), which defined “ground” as “the foundation or basis on which a theory or action rests; motive; reason” and the point made that the word was to be construed in the context of the particular provisions and the statute as a whole having regard to its purpose and object. Counsel for Mr Robb submitted that, in the context of the legislation, the statutory requirement of a statement of grounds for the Notice of Proposed Dismissal required a detailed statement of all reasons clearly revealing the process of reasoning.
[9][2004] WASC 145 (30 June 2004).

Views may differ as to what needs to be stated as the grounds for giving the Notice of Proposed Dismissal. In my view, s68(2) sets out the minimum requirements to be satisfied by the Chief Commissioner. What the Act requires in the Notice is a statement of the conclusions reached by the Chief Commissioner on the basis of which her decision to issue the Notice was made. The issues considered and the reasons leading to those conclusions are not the “grounds” of that decision. They need to be identified in the Notice, however, to ensure that the officer is given an adequate opportunity to be heard.

It is necessary next to identify the grounds relied upon in the Notice of Proposed Dismissal.

The Notice began with a preamble referring to the power of dismissal and then stated the following:

“1.I have examined material concerning you and on the basis of that material I consider you to be unsuitable to continue as a member of the Force having regard to your integrity and the potential loss of community confidence.
2.The grounds upon which I consider you to be unsuitable to continue as a member of the Force is based upon the following circumstances.”

The Notice then set out approximately 64 “Particulars” which referred to reports and incidents and similar matters starting from 4 August 1988 and proceeding chronologically to 7 June 2002. The early particulars related to incident reports during Mr Robb’s training. The Notice included favourable as well as unfavourable material. The document concluded with the following:
“2.65From 11 February 1989 until 7 June 2002 you have attracted (twenty five) complaints comprising (sixty) allegations. Of these allegations, (fifteen) pertain to allegations of assault of which (eight) were substantiated, (six) allegations pertained to predatory behaviour involving females of which (five) were substantiated. A further (twelve) allegations related to duty failure of which (three) were substantiated and a further (twenty seven) allegations of malfeasance, of which (three) were substantiated.
2.66.Some members from the Benalla Police Station have been canvassed with respect to the issue of whether or not they would be prepared to work with you again. While some members have expressed a reluctance to work with you again, others would be happy to do so. Some supervisors have expressed the concern about you working with junior members and others have concerns regarding the negative impact your presence would have on local police community relations should you return to the work place.
3.Your history and current practice indicate a propensity for violence, for the poor treatment of females and for general duty failure. These matters lead to the preliminary conclusion that your integrity is so damaged that I can no longer have confidence in it and the reputation of the Victoria Police in the community is likely to suffer should you continue as a member.”

The Notice then went on to invite a written submission from Mr Robb.

A fair reading of the quoted passages from paragraphs 2.65 to 3, reveals the grounds relied upon as being a propensity for violence, for the poor treatment of females and for general duty failure.

Turning to the Dismissal Order, the following was stated in relation to the latter paragraphs of the Notice:

“Particular 2.65 is a simple analysis of the number of files you have attracted over your time with Victoria Police. As indicated within these reasons not all of these matters have been taken into account in my decisions, some have been ascribed more weight than others. However, the analysis is not a defining feature of my decision.
Particular 2.66. I note your response and that you have supplied a copy of a statement prepared by Ex Chief Inspector Allan that formed part of your appeal brief regarding non-selection for a Sergeant’s position at Seymour in January 2002 and is very supportive of you. Also attached to your submission are statements of Senior Sergeant Walker, Sergeant Coughlan and Detective Sergeant Smith in support of you from the same appeal brief. I have also considered statements from two others Sergeants, a leading Senior Constable, a Senior Constable and an unsworn member, all supportive of you, save that one of the Sergeants expresses concerns over you working with junior members.
Other information considered
I have also considered statements from two Senior Sergeants, an Acting Sergeant, a Senior Constable, two Constables and two unsworn staff that indicate concern over your behaviour and expressing a desire to not work with you again. Without additional material these statements raise a serious management concern regarding you. They are important in determining issues of integrity and community confidence because they add to the material already considered and strengthen the level of concern held regarding you. However, they merely add to the other material regarding you. They are not a defining feature of my decision.
I have taken account of the letters from the community praising your work, together with other good work reports in your personal file that you have not referred to, including the good work report surrounding your dealings with Paul Mills. I have considered the content of a further profile completed subsequent to your acquittal at trial on the Morgan matters. I have considered a table comparing your complaint history with that of your peers. I have considered a table comparing your work performance with that of all other members at Benalla as well as a comparison with all members at Benalla, Seymour and Wangaratta combined.’’

I have referred above[10] to the passage in the Dismissal Order where the “final determination” is recorded. Critically, it stated that the defendant had concluded that Mr Robb was unsuitable to continue in the force because of his propensity for violence, poor treatment of people in vulnerable situations and general duty failure. It also referred to his failure to take advantage of opportunities to change.
[10]Para 13.

The specific complaints made for Mr Robb are that the last mentioned ground (failure to take advantage of opportunities to change) and the new matters identified above[11]in the particulars of the Dismissal Order were grounds that should have been stated in the original Notice.
[11]Para 15.

In my view the analysis of the obligation of the Chief Commissioner in respect of the Notice put forward by counsel for the Chief Commissioner is the correct analysis. Section 68(2) (a) is mandatory in requiring that the notice set out the grounds on which the Chief Commissioner considers the member unsuitable to continue as a member. It cannot be, however, that the Chief Commissioner is required to do any more than set out the grounds then in the Chief Commissioner’s mind.

I am also satisfied that the new matters identified in the particulars contained in the Dismissal Order document by counsel for Mr Robb were matters that arose in the course of the Chief Commissioner’s consideration of Mr Robb’s response to the Notice of Proposed Dismissal. He cannot demonstrate that they were relied upon by the Chief Commissioner at the time the Notice was given. I have also concluded that, with one exception, the matters identified in the particulars were not “grounds.” They were statements identifying material and reasons on which the grounds were based. The one exception is the conclusion that Mr Robb had failed to respond to opportunities to change. This was one of the grounds on which the Dismissal Order was based. It cannot be demonstrated, however, that it was a ground relied upon by the Chief Commissioner at the time the Notice was given.

I note that Counsel for Mr Robb also submitted that if further grounds occur to the Chief Commissioner then a new notice must be given setting out those grounds along with the other grounds. The Act, however, does not require that and to require it in all cases would impose an unreasonable an unnecessary complication to an otherwise reasonably simple procedure. The issue raised would need to be considered and addressed, should it arise, in a different context, namely, procedural fairness.

Robb application – procedural fairness; positions of the parties

Both parties accepted that the content of the requirement of procedural fairness will depend in each case on the circumstances of the case and vary in accordance with the character and function of the tribunal or person in relation to whose decisions and deliberations they are invoked. It was also common ground that to a large extent requirements of procedural fairness in a particular case will depend upon the construction of the statute and, inter alia, on a consideration of the following:

·the existence of any express statutory procedural requirements;
·the availability and nature and extent of any statutory right of appeal or review from the exercise of the statutory power and what effect that has on the content of the rules of procedural fairness to be applied by the initial decision maker in a particular situation[12];
·the subject matter of the power;
·the nature of the order that the repository of the powers is empowered to make; and
·the degree of urgency which may attend the execution of the order. [13] They differed in their views as to the consequences of applying these principles.

[12]For example Twist v Randwick Municipal Council (1976) 136 CLR 106 at 111 and 118 where different conclusions were reached.

[13]Cases cited by both counsel included Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; O’Rourke v Miller (1985) 156 CLR 432; and Kioa v West (1985) 159 CLR 550 especially 584, 614 and 616.

Counsel for Mr Robb submitted that in exercising the power conferred by s.68(1) the Chief Commissioner was obliged to afford procedural fairness to the member concerned.[14] Counsel submitted that procedural fairness required adequate notice of the issues, access to relevant material, sufficient time to respond and an oral hearing in respect of issues where the credibility of Mr Robb was in issue.
[14]Ridge v Baldwin [1964] AC 40; O’Rourke v Miller (1985) 156 CLR 342 at 352, 361, 363; Kioa v West (1985) 159 CLR 550 at 584; Annetts v McCann (990) 170 CLR 596 at 598; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 489-494 (per Gleeson CJ).

Counsel submitted that:

(a)there had been a failure to give fair notice of the matters the Chief Commissioner proposed to take into account, whether in the Notice of Proposed Dismissal or otherwise. In this context, complaint was made that the Notice of Proposed Dismissal failed to identify with sufficient clarity the matters which the Chief Commissioner was then relying upon and the approach she was proposing to take in respect of allegations or charges in respect to which the plaintiff was acquitted and allegations or charges which were not substantiated or unfounded or withdrawn;[15]
(b)the Chief Commissioner had failed and refused to make available to the plaintiff documents in her possession relevant to the matters alleged in the Notice;[16]
(c)in all the circumstances, including the number and complexity of the allegations in the Notice, the plaintiff was given insufficient time or opportunity to deal with the issues raised in the Notice;
(d)the Chief Commissioner failed to notify the plaintiff that his credibility would be an issue and having regard to the significance and weight placed by the defendant on the issue of the plaintiff’s credibility and that of third parties, he should have been afforded the opportunity of an oral hearing and the opportunity to confront the witnesses making allegations against him. [17]

[15]Citing Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49FCR 576, 590-592; Minister for Immigration and Multicultural Affairs; ex parte Mia (2001) 206 CLR 57, 117 [193] – [194].

[16]Counsel for the plaintiff referred to Kioa v West (1995) 159 CLR 550, 628 – 629; Kanda v Government of Malaya [1962] AC 322, 337 – 338.

[17]Counsel for the plaintiff referred to Zhang De Yong v Minister for Immigration, Local Government and Ethnic Affairs (1993) 55 SER 384, 408; Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 597; Heatley v Tasmanian Racing and Gaming Commissioner (1997) 137 CLR 487, 516.

The Chief Commissioner did not dispute that there was an obligation to accord procedural fairness but, first, took the position that the Act spells out the procedural requirements and does so with the intention of stating them exhaustively. Counsel relied upon the propositions advanced by Barwick CJ in Twist v Randwick Municipal Council[18] that:

“If the legislature has addressed itself to the question whether an opportunity should be afforded a citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has by its legislation, decided what opportunity should be afforded, the Court, being bound by the legislation as much as is the citizen, has no warrant to vary that legislative scheme.”

[18](1976) 136 CLR 106 at 110.

I have difficulty with this argument. Section 68 sets out a three stage procedure. Section 68(2) prescribes the Chief Commissioner’s obligations as mandatory obligations to be discharged in all cases before the Chief Commissioner can dismiss a member. It does not, however, state that they are the only obligations. It does not refer to them in any way as an exhaustive statement of the member’s entitlements. Rather, it appears to prescribe the minimum that the Chief Commissioner must do before she can dismiss the member. A stronger indication of statutory intention would be required before the construction sought by the Chief Commissioner should be accepted.[19]
[19]Kioa v West (above) 585; Re Minister for Immigration & Multicultural Affairs & Anor, ex parte Miah [2001] 206 CLR57.

The Chief Commissioner advanced an alternative position that, having regard to the nature of the power and the statutory context in which it was provided, it could not be demonstrated that the plaintiff had not received the procedural fairness required. Counsel submitted that the content of the requirement was to be determined by consideration of the express procedural requirements in s.68, the availability of a statutory right to review the exercise of the power and the subject matter of the power. Counsel submitted that the Chief Commissioner was not required to disclose details of all material adverse to the plaintiff, advise the plaintiff of matters on which the decision was likely to turn, advise the plaintiff of the fact that his credibility was in question or hold an oral hearing.

Robb application – procedural fairness; plaintiff’s submission

Counsel for Mr Robb submitted that the above principles, when considered, led inevitably to the conclusion that there had been a denial of procedural fairness in the areas identified.

He relied upon the fact that there was a requirement of notice only from the Chief Commissioner, and that the available statutory right of appeal was extremely limited and especially so, in the light of the Police Regulations 2003 dealing with this appeal process. Counsel submitted that the Regulations require the application for review to be in writing and to state the grounds of the application for a review.[20] As soon as practicable after the application has been lodged, the Appeals Board must notify the Chief Commissioner of the application and the name of the applicant. It must also advise the applicant and the Chief Commissioner of the time and location of the hearing of the review and give at least seven days’ notice of the hearing.[21] “As soon as practicable” after receiving the notice of the hearing from the Appeals Board, the Chief Commissioner is required to lodge with the Appeals Board within the time specified in the notice, a written statement setting out the details of the decision, including the reasons for the decision and “any files, records, documents or information specified in the Notice” by the Appeals Board. The regulations also provide that the applicant must cause to be lodged with the Appeals Board as soon as practicable after receiving a notice of the hearing “a written statement setting out the grounds for the application” and any “files, records, documents or information specified in the Notice”[22] by the Appeals Board.
[20]Regulation 34.
[21]Regulation 35.
[22]Regulation 36.

Counsel also submitted that the subject matter of the power was serious being the career and reputation of an individual. Counsel submitted that it gave a power to tear a life apart.

As to the nature of the order, counsel for Mr Robb submitted that it was a final and fundamental order and counsel compared this with the other dismissal procedures which had a considerable range of sanctions. In the case of the present procedure, there was only one sanction, namely, dismissal which Counsel submitted was the most serious. I note that this proposition may be questioned in that other procedures may result in both criminal sanctions and dismissal.

As to the final matter, issues of urgency, counsel for Mr Robb submitted there was no urgency in the sense that pursuant to s.68A a police officer can be suspended from duty while the matter is dealt with.

Robb application – procedural fairness; defendant’s submissions

In elaborating on the Chief Commissioner’s position, counsel drew attention to the fact that under the Act, there are in fact four different mechanisms for the dismissal of police officers. In addition to the power in question in these proceedings, there are three other divisions of Part 4 of the Act which give the power to dismiss a member of the force where:

·a member is found to have committed a breach of discipline;
·a member is charged with a criminal offence punishable by imprisonment and that offence is found proven;
·a member is found to be incapable of performing his or her duties or inefficient in performing his or her duties.[23]

[23]They are Divisions 2, 3 and 4 respectively.

Each of these other three powers may be exercised by persons other than the Chief Commissioner. The Chief Commissioner alone is empowered to exercise the s.68 power. Counsel submitted that it differs from the other powers of dismissal in that:

· it is a managerial power rather than a disciplinary power;

· the section does not require the Chief Commissioner or any other person to conduct any form of enquiry or investigation before exercising the power; and

· it is subject to a review process that differs from that applicable to the other powers.

Counsel referred to the second reading speech of the Minister for Police and Emergency Services. The Minister stated[24] that the then disciplinary regime was inadequate to enable the Chief Commissioner to adequately enforce the managerial responsibilities of the office to ensure that only trustworthy and adequately behaved members exercised police powers.
[24]Hansard, (Legislative Assembly, 22 April 1999, 587 at 588).

The Minister quoted the following passage from the second Interim Report of the Royal Commission into the New South Wales Police Service:

“Absolutely integral to proper management is the existence of a power in the Police Commissioner to remove from the service those officers in whom he has lost confidence. This is to the advantage of the community and of those members of the service who are performing properly …..Such a procedure needs to be understood as a managerial and not a disciplinary procedure …. It does not involve a finding of guilt concerning an offence or disciplinary transgression, and it does not involve any adverse consequences other than termination of employment …. The Police Commissioner can hardly be held accountable for …. lack of integrity within the service, if it is acknowledged that there are unethical police and he cannot rid the service of them.”

The Minister expressed the view that:

“The Chief Commissioner does need an effective mechanism for dealing, in a timely and efficient manner, with officers whose lack of integrity, if known to the community, would damage community confidence in the Victoria Police. The proposed amendments will provide the Chief Commissioner with that power.
The Government recognises that this gives a significant power to the Chief Commissioner. It expects that it will be exercised very sparingly and only in circumstances where the existing processes in the Police Regulation Act 1958 relating to disciplinary and criminal charges cannot be used to deal with the matter appropriately.”

Counsel submitted that it was particularly significant that the s.68 power did not require, unlike the other dismissal powers, that any person conduct an enquiry or investigation before exercising the power and did not require a making of a particular finding such as that a charge alleging a breach of discipline had been proved. The other dismissal powers require a finding to be made at the conclusion of an investigation or an enquiry. The s.68 power, however, it was argued, required the Chief Commissioner to give a notice setting out the grounds on which she considered the member unsuitable to continue as a member of the Force, give the member twenty-one days to respond in writing, take account of any submissions lodged and to be satisfied at the end of that process that, having regard to the member’s integrity and potential loss of community confidence in the Force were the member to continue in the Force, the member was unsuitable to continue as a member. Where the Chief Commissioner is so satisfied, she must by written order set out the reasons why she is so satisfied.

Counsel for the Chief Commissioner also argued that it was significant that the review of the s.68 power was different from the review set out for the other dismissal powers. Counsel submitted that an application for review of an exercise of the s.68 power can only be made on the ground that the decision was not “sound, defensible or well-founded.”[25] Further, the Act states that in conducting the review of the exercise of the power, the Appeals Board is to follow a three step process which requires it to consider the Chief Commissioner’s reasons, the case presented by the member as to why the decision was not sound, defensible or well-founded, and the Chief Commissioner’s answer to the member’s case. Counsel noted that the burden of establishing the ground that the decision was not sound, defensible or well-founded rests upon the member concerned.[26]
[25]Section 68B(1) of the Act.
[26]Section 68C(3).

Counsel submitted that the Act also provides that evidence is not to be adduced before the Appeals Board unless notice of intention to do so and of the substance of the evidence has been given to the Appeals Board before the commencement of the hearing of the review and it gives leave to adduce the evidence.[27] This regime does not apply to the Chief Commissioner’s order, the Notice of Proposed Dismissal or any information that was before the Chief Commissioner at the time of the making of the order including the member’s submissions.[28] The Act goes on to provide that leave may be given by the Appeals Board in such circumstances as it thinks fit and having regard to the nature of the review. It provides, without limiting that power that the Board “must give leave” if it is satisfied:

“i.That there is a real probability that the applicant may be able to show that the Chief Commissioner has acted on wrong or mistaken information; or
iiThat there is cogent evidence to suggest the information before the Chief Commissioner was unreliable, having been placed before the Chief Commissioner maliciously, fraudulently or vexatiously; or
iii.That the evidence sought to be adduced might materially have affected the Chief Commissioner’s decision.”[29]

[27]Section 68E(3)

[28]Section 68E(3) and (4).

[29]Section 68E(5).

Counsel also submitted that the Act also provides that the Chief Commissioner, a member of the Force, and a person employed in the office of the Chief Commissioner, is not a compellable witness unless leave is given by the Appeals Board and that the Appeals Board may only give leave if it considers that “extraordinary grounds exist that warrant leave being given.”[30]
[30]Section 68F.

Counsel also referred to the provisions later in the Act dealing with the general procedures of the Appeals Board. It is bound by the rules of natural justice in all proceedings. [31] It is directed, without limiting the matters which it should consider, to have regard to the public interest and the interest of the applicant for review. Public interest is defined to include the following:

“(a)the interest of maintaining the integrity of, and community confidence in, the Force; and
(b)in the case of a review under Division 1 of Part 4, the fact that the Chief Commissioner made an order under s.68(1).”[32]

[31]Section 91J.

[32]Section 91K.

Reference was also made to the provisions that the Appeals Board is to conduct all proceedings with as little formality and technicality and as much speed as the requirements of the Act and the proper consideration of the subject matter permit.[33] It is provided that the hearing should be held in public, but the Appeals Board is given a discretion to direct otherwise.[34] It is also provided that the Appeals Board is not bound by the rules of evidence or any practices or procedures applicable to Courts of record and can inform itself as it sees fit subject to s.68E.[35] The Appeals Board chairperson is also given the power to issue summonses to persons to attend to give evidence and produce documents.[36]
[33]Section 91L.
[34]Section 91MA.
[35]Section 91 and see above re S.68E
[36]Section 91P.

Counsel for the Chief Commissioner submitted that these provisions are to be contrasted with the procedures laid down for the other dismissal processes which are also reviewed by the Appeals Board. Counsel submitted that in such cases, for example, the review is not confined to consideration of whether the dismissal was “sound, defensible or well-founded,” no burden is placed on the member, there are no restrictions on the evidence that can be adduced or the categories of witness who can be compelled to give evidence. Finally, in considering the issue of public interest, the Appeals Board in the other forms of dismissal is not directed to consider the fact that the Chief Commissioner made an order under s.68(1).

Counsel for the Chief Commissioner also submitted that it was significant that the Appeals Board had the power to reinstate the member on terms no less favourable than if the member had not been dismissed. Further, it was argued that while the Act limits the grounds upon which review can be sought, and the evidence that can be led and the compellability of witnesses, the review process itself provided an opportunity to address any procedural defects that may have occurred in the processing of the matter before the Chief Commissioner. Counsel submitted that in effect the nature of the statutory right of review confirmed that the requirements in s.68 in fact spelt out the obligation of the Chief Commissioner to accord procedural fairness.

Finally, counsel for the Chief Commissioner submitted that the managerial power given to the Chief Commissioner under s.68 to remove members of the Force where their continued membership had the potential to damage community confidence reflected what had been recognised in the High Court as of great importance to the public, namely that persons whose conduct or character is doubtful should be kept out of the Force and that the Chief Commissioner has both the power and the responsibility to remove such persons where she entertains any reasonable doubts about them. Reliance was placed on comments in O’Rourke v Miller (1985) 156 CLR 343.[37]
[37]At 353-354.

In that case, the High Court considered the entitlement to procedural fairness of a probationary police officer in the consideration of allegations made by two members of the public that he had engaged in disorderly and drunken conduct and misused his police badge. The Commissioner put the allegations to him in an interview, he having been previously interviewed by an officer about the incident. He denied the allegations. It was not argued that he had inadequate notice of the issues or of the material adverse to him. Rather, the issue raised was whether he should have been permitted to confront the complainants and cross-examine them. The Chief Commissioner terminated his appointment without allowing him to do that. In dealing with the entitlement to natural justice in such a case, Gibbs CJ said:

“…. he must be informed of what is alleged against him and given a fair opportunity to answer those allegations. However, in the present case the appellant was told quite fully what was alleged against him and he was given a full and fair opportunity to state his defence or explanation.”

On the question of whether the Chief Commissioner was required to hold a formal hearing, Gibbs CJ commented:
“In the present case, the Chief Commissioner was not required to hold a formal hearing or to be satisfied beyond reasonable doubt that the appellant had been guilty of the misconduct alleged before he reached a decision to terminate the appellant’s provisional appointment. It would be enough if the Chief Commissioner, having given the appellant a fair opportunity to be heard, considered in good faith that the appellant was not fit to occupy the office of Constable or that there was a real doubt about his suitability. If in fact the appellant had been charged before the Police Discipline Board and that Board had given him the benefit of the doubt because it was faced with a conflict of testimony between the two girls and the two policemen, it would have still been open to the Chief Commissioner to terminate the appellant’s appointment. It is of great importance to the public that persons whose conduct or character is doubtful should be kept out of the Police Force and the system of probationary appointments is one means of achieving that end. The Chief Commissioner, in exercising his power under Regulation 212 to terminate the appointment of a probationary Constable, has, to use the words of Murphy J, in the Full Court of the Supreme Court ‘not only the power, but also the responsibility to weed out persons concerning whom he entertains any reasonable doubts.”’

Mason and Dawson JJ agreed with the decision and reasons of Gibb CJ.

Wilson J came to a similar conclusion. He addressed the issues in the following manner:[38]

“The relevant question was not whether he was guilty of an offence, but whether on all the information available to the Deputy Commissioner he possessed the qualifications which rendered him suitable for appointment…….nor did the mandates of procedural fairness oblige the Deputy Commissioner to subject the civilian complainants to the embarrassment and stress of an enquiry in which they would confront the appellant and submit to cross-examination on his behalf. The argument proceeds on a misconception of the position of a probationary Constable. He has no right to confirmation merely because he passes the retention examination and receives a favourable report from his superiors. He has no right beyond the right to expect a bona fide decision by the Chief Commissioner on his suitability to continue as a member of the police force, with a proviso that if any material on which that decision might be based is adverse to him then the substance of that material will be made known to him and an opportunity given to him to make this response.[39]

[38]At 360.

[39]Citing Chief Constable of North Wales v Evans [1982] 1 WLR 1155.

Counsel submitted that applying the above, Mr Robb was entitled to a statement of the substance of the allegations him but no access to the material on which they were based.[40] Counsel further submitted that the power was intended to provide the Chief Commissioner with an effective mechanism for dealing with persons in a timely and efficient manner. There will be cases, it was argued, where it will be vital that the Chief Commissioner act speedily and s.68 was designed to achieve that result. Counsel submitted that it was inappropriate therefore to equate any procedural fairness requirements with those that would apply in a forensic setting and that any procedural fairness requirement that would create delay would be inconsistent with Parliament’s intention that the Chief Commissioner act promptly.
[40]Note that the O’Rourke case concerned a recent, relatively straight-forward incident and the officer had been interviewed and fully informed.

Robb application – procedural fairness; analysis

The nature of the decision to be made by the Chief Commissioner has particular significance for the issues raised by both plaintiffs as to procedural fairness.

Section 68 requires that before the Chief Commissioner may dismiss a member of the force, the Chief Commissioner must be satisfied that the member is unsuitable to continue as a member. In considering that issue, the Chief Commissioner must have regard to the integrity of the member and the potential for loss of community[41] confidence, not actual loss, should the person continue as a member of the force.
[41]“Community” is not defined. It presumably refers to the Victorian community and part of it, particularly within which the particular officer has been working - for example, a regional community.

The test and the relevant matters are broadly expressed. In considering the integrity of the person, the Chief Commissioner would presumably consider issues such as honesty, sincerity and moral principles. The issue of the potential loss of community confidence could cover a range of situations and potential causes including the continued employment of a member lacking integrity. In cases like the present, the issue will require consideration of the conduct of a member and an assessment to be made about the possible impact upon community confidence if the community had knowledge of that conduct. At the same time, it must be borne in mind that a community could properly lose confidence in the force where a member is allowed to continue in the force in circumstances where serious allegations are made against that member and, although they are not proved beyond reasonable doubt, reasonable doubts about the member remain. Thus the section may be seen as reflecting the view expressed by Gibbs CJ.

“It is of great importance to the public that persons whose conduct or character is doubtful should be kept out of the Police Force….”[42]

[42]O' Rourke v Miller (1985)156 CLR 342, at 353 --354

Accepting that analysis, the section does not require the Chief Commissioner to make specific findings about allegations of misconduct before she can be satisfied that the member is not suitable to continue in the force.[43] In cases like the present, it will be necessary, however, for the Chief Commissioner to examine the allegations made against the member and the evidence that is relevant to them, assess the number and seriousness of the matters raised and the strength of the evidence. It may assist her in reaching her conclusions on the ultimate questions to consider what conclusions might properly be drawn from the material before her. At the same time, because it is not necessary that allegations of misconduct be proved before a person is dismissed, there is a need to take care in following correct procedure.[44] Further, the comment of Kitto J in R v Anderson; ex parte Ipec-Air Pty Ltd[45] should be borne in mind:

“A discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself………..”[46]

[43]CF cases dealing with the power of the New South Wales Commissioner of Police to dismiss on loss of confidence; Bigg v New South Wales Police Service (1998) 80 IR 434, 458; Van Huisstede v Commissioner of Police (2000) 98 IR 57, [213], [214]; Little v Commissioner of Police( No. 2) (20020 112 IR 212 at 239.

[44]Bigg v New South Wales Police Service, above; Little v Commissioner of Police( No. 2, above,; Van Huistedde v Commissioner of Police, above, [193].

[45](1965) 113 CLR 177.

[46]At 189.

As to urgency, obviously issues such as these should be resolved as quickly as possible in the interests of the individual police member, the force and the community. While the power of suspension should enable enough time to give a member the procedural fairness as required, I accept that it was Parliament’s intention that the issues be resolved quickly. In addition to the procedures set out in s.68, I refer to the fact that a suspension will last at the most for 60 days after Notice of Proposed Dismissal is given.[47] Further, while the Chief Commissioner can apply to the chairperson of the Appeals Board for an extension of that time and can do so more than once, [48] the power of the chairperson to give extensions of time is limited to the circumstance that the chairperson “reasonably believes it necessary for proper consideration of the matter by the Chief Commissioner.” A degree of urgency is also revealed in the provision limiting the time in which a member can seek a review to 14 days after notification of the order.[49]
[47]Section 68A(2).
[48]Section 68A(3), (4), (5).
[49]Section 68B.

The statutory review process is also particularly relevant in determining the content of the obligation to accord procedural fairness. In my view, the limited nature of that process and its procedures do not assist the Chief Commissioner. Rather they assist Mr Robb.

The hearing before the Appeals Board is not a re-hearing but an appeal in which the member has the difficult task of challenging the Chief Commissioner’s decision and demonstrating that it is not “sound, defensible or well-founded.” In addition, the Act requires that due weight be given to the fact that the Chief Commissioner made an order under s.68(1).[50]
[50]Section 91K.

The ability to place evidence before the Appeals Board challenging the information on which the Chief Commissioner relied is circumscribed significantly. Notice and leave are required before evidence additional to information before the Chief Commissioner can be given.[51] It is true that these restrictions do not apply to any information that was “before the Chief Commissioner at the time” the order was made.[52] If, however, the officer was not given access to the information that was “before the Commissioner” at the time the order was made, he or she will not have a complete knowledge of what it was and will not:

· be in a position to place it before the Appeals Board; or

· know whether the Chief Commissioner requires leave before she can place particular information before the Appeals Board.

[51]Section 68E.

[52]Section 68E(3) and (4).

Under the relevant Regulations, the officer seeking the review is required to set out the grounds on which the review is sought. The notice of hearing from the Appeals Board may include a requirement that the Chief Commissioner provide documents and information specified in the notice of hearing – presumably, however, identified on the basis of the issues raised in the application lodged by the officer seeking the review.

Finally, the Chief Commissioner, a member of the force and persons employed in the office of the Chief Commissioner, are not compellable witnesses unless the Appeals Board gives leave.

The result of the above appeal regime is that the member will be placed at a significant disadvantage before the Appeals Board unless he or she has been accorded procedural fairness before the Chief Commissioner by being given, at least, adequate notice of the issues identified for consideration by the Chief Commissioner and access to the information that was before the Chief Commissioner. The review by the Appeals Board is in fact likely to be a charade unless the member has been given adequate notice of the issues and access to relevant material by the Chief Commissioner.

Turning to the matters complained of by the plaintiff, I am not persuaded that it was inappropriate or a denial of procedural fairness for the Chief Commissioner to set out all the detail contained in the Notice of Proposed Dismissal which included details of the entire work history of the plaintiff and did not directly differentiate and relate the particular incidents to the stated grounds. More precision and structure would have been helpful but its absence did not constitute a denial of procedural fairness. Mr Robb raised the issue in his response to the Notice but he was in fact able to identify the issues and adverse matters on which he needed to respond. The amount of material and lack of differentiation, however, is relevant to the issue raised as to whether the plaintiff had sufficient time in the time given to respond, On balance, I am not persuaded that he was given insufficient time to respond to the Notice. It is the other matters, in my view, that are of more concern.

In particular, it seems to me that the plaintiff was denied procedural fairness in that incomplete information was given as to the grounds being considered by the Chief Commissioner. In addition, he was denied access to any of the material considered by her. As to the latter, the details of the Notice may well have been intended to be a substitute for such access but the reasons contained in the Dismissal Order demonstrate that the information considered by the Chief Commissioner went beyond that which was summarised in the Notice.

It is a fundamental principle that where the rules of procedural fairness apply, the right to be heard ordinarily requires that the party affected have the opportunity to ascertain the relevant issues and the nature and content of any adverse material.[53] It is reasonably clear, however, that the decision maker is not obliged to invite comment on the evaluation of the case and his or her mental processes or reasoning.[54] As Lord Diplock commented:

“Even in judicial proceedings in a Court of Law, once a fair hearing has been given to the rival cases presented by the parties, the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice, only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”[55]

[53]Dixon v Commonwealth (1982) 55 FLR 34, 41; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591.

[54]Commissioner for ACT Revenue v Alphaone Pty Ltd, above, at 591 and the cases there cited.

[55]Hoffman-La Roche and Co v AG v Secretary of State Trade and Industry [1975] AC 295 at 369.

It also appears to be established that the proposition that the person involved is not entitled to the opportunity to comment on the evaluation of the subject case is subject to the qualification that the person will normally be entitled to that opportunity where the adverse conclusion to be drawn by the decision maker on material known to the subject is “not an obvious and natural evaluation of that material.”[56] Thus, determining the scope of any continuing obligation to ensure that the subject has notice of the critical issues in the matter is often a difficult question.[57]
[56]Commissioner for ACT Revenue v Alphaone Pty Ltd, above at 591 and the cases there cited.
[57]See discussion Aronson Dyer and Groves, Judicial Review of Administrative Action, 3^rd Edition, 515 and following.

In the present case, I am satisfied that the plaintiff was not given a reasonable opportunity to address the issue identified in the further ground stated by the Chief Commissioner in the Dismissal Order, namely, the “failure to take advantage of the opportunities to change.” This was a significant matter and is identified in the Dismissal Order as one of the matters leading to the conclusion that Mr Robb was unsuitable to continue as a member of the force. The Chief Commissioner identified it as a matter which “combined with” the other matters, led to that conclusion. It was an adverse conclusion open on the material before the Chief Commissioner. Assuming that the relevant material was also known to Mr Robb, the issue identified in the further ground was not one that was so obvious that he should have been expected to appreciate its existence.

As to the other matters raised on the issue of adequate notice of the issues, the alleged new issues referred to by counsel,[58] I do not consider that procedural fairness required that an opportunity be given to Mr Robb to comment on them by giving him express notice of them. In each case, it seems to me that the complaint concerns what was in fact the Chief Commissioner’s evaluation of the material in light of Mr Robb’s response, one which was an obvious and natural evaluation flowing from material considered by the Chief Commissioner.
[58]Particulars 2.10, 2.31, 2.34, 2.43, 2.55, 2.62.

I refer to the matters raised in the Dismissal Order.

·    Particular 2.10. The Chief Commissioner commented in the Dismissal Order that Mr Robb’s denial of impropriety in relation to that matter and other matters that had been found to be substantiated led her to conclude that on a number of occasions he had been less than truthful. In making that comment, the Chief Commissioner was expressing a view reached after further consideration of the material and in light of Mr Robb’s response. It was a matter that had not been aired before, but it was a legitimate conclusion reached in reasoning towards the final decision and obvious or natural to a person with knowledge of the material before the Chief Commissioner. Another matter raised in this application was that the Chief Commissioner indicated that in determining whether to accept material, regard was had to subsequent events and the plaintiff should have been given the opportunity to address that reasoning. I would have thought, however, that it was reasonably clear from the Notice of Proposed Dismissal that no particular allegation would be considered in isolation.
·    Particular 2.31. The highlighted comments of the Chief Commissioner, concerning counselling and aggression and the views of colleagues, again form part of the reasoning process in respect of which the plaintiff did not generally have an entitlement to be heard. It was particularly in relation to this matter, however, that reference was made to the plaintiff not responding to opportunities to change. Because this was stated as a ground for the final decision and was not an obvious and natural evaluation of the material received by Mr Robb, it was something about which the plaintiff was entitled to have notice before a decision was made by the Chief Commissioner.
·    Particular 2.34. Again the matters referred to simply reflect the further consideration of the issues raised and the response of Mr Robb and an elaboration of reasons which supported the prima facie conclusions originally reached and maintained. The plaintiff was likely to have been placed at a disadvantage, however, because of lack of access to relevant files and material, which presumably would have contained the statement by the plaintiff that Mr Crook had thrown himself backwards into the bottle racks.

The Notice of Proposed Dismissal then noted that on 5 December 2003, Mr Dale was interviewed by investigators from the Ethical Standards Department and charged with four conspiracy offences; conspiracies to commit burglary, theft, trafficking a drug of dependence (amphetamines) and trafficking a drug of dependence (ecstasy). The Notice stated that on 16 May 2004, Mr Hodson and his wife were found dead at their home, having sustained gunshot wounds to the back of their heads.

The Notice then referred to the question of the value of Mr Hodson as an informer and his reliability as an informer. It stated that an examination of the relevant Division files indicated that he was regarded as a very valuable informer. The Notice then referred to statements by Mr Dale in January and in December 2003 in which Mr Dale had reported, amongst other things, that Mr Hodson’s “integrity” could not be questioned. During an interview conducted by investigators attached to the Ethical Standards Department which took place on 5 December 2003, he was reported as stating that they had become “good friends” and that he was a “very good source of information” and “was in, you know, incredibly high level.” He was recorded as also stating that it was “friendship in the end that motivated him to assist. As far as I – I could tell.”

After referring to records which praised Mr Dale’s work and performance, the Notice of Proposed Dismissal stated:

“3.Despite your apparent good work performance, the nature of your association with known criminals leads me to the preliminary conclusion that your integrity is so damaged that I can no longer have confidence in it and that the reputation of the Victoria Police in the community is likely to suffer should you continue as a member.”

The Notice did not elaborate on what it was about the nature of his association with the two known criminals. In relation to X, however, the material in the Notice relevant to the nature of the relationship, points to issues being raised about a friendship existing between them and an alleged failure on the part of Mr Dale to appropriately record his details, inform him that he was a registered informer and to appropriately pass on information about an alleged threat to the life of X. Another aspect of the relationship with X was the issue of whether it prompted him to state improperly to the officer in charge of the drug investigation that it would not be possible to prove the case against X to try to ensure charges were not brought against him. In relation to Mr Hodson, the material supports the conclusion that there was a friendship between them and that that friendship had involved them in criminal activity.

Mr Dale, through his solicitors, wrote to the Chief Commissioner on 11 June 2004, seeking copies of a number of listed and identified statements and reports. By letter dated 16 June 2004, the Chief Commissioner declined to provide the material, again relying upon the view that s.68 did not require it.[64] By letter dated 30 June 2004, Mr Dale responded to the Notice of Proposed Dismissal with a detailed submission, together with supporting material.
[64]He did receive a copy of his personnel file but it contained no adverse material.

The response was considered by the Chief Commissioner who subsequently published a Dismissal Order dated 30 September 2004. In this document, the Chief Commissioner re-visited the issues raised in the Notice of Proposed Dismissal in light of the response of Mr Dale. In the preamble to the Dismissal Order, the Chief Commissioner stated –

“The Notice of Proposed Dismissal raised two particular issues. They are:
·your association with [X]; and
·your association with Terence Hodson;

The behaviours connected with these issues have raised the concerns that were expressed in the particulars which were given in the Notice of Proposed Dismissal.”

The document concluded with the following passage:
“Determination
I, Christine Nixon, Chief Commissioner of Police, having regard to:
·your integrity;
·the potential loss of community confidence in the force if you were to continue as a member of the force;
·having supplied you with a written notice pursuant to s.68(2) of the Police Regulation Act 1958; and
·having taken into account all submissions made by you;

am reasonably satisfied that certain aspects of your relationship with known criminals [X] and Terry Hodson, make you unsuitable to continue as a member of the force. I believe that the findings I have made significantly undermine your integrity. I also believe that there is potential for loss of public confidence in the force were you to continue as a member.
I reach this conclusion having regard to your relationship with both [X] and Hodson. However, I am also reasonably satisfied that you are unsuitable to continue as a member of the force when considering your relationship with Hodson viewed alone. Accordingly, I dismiss you pursuant to the powers vested in me by s.68(1) of the Police Regulation Act 1958.
Your dismissal is effective from this 30^th day of September 2004.”

It should be noted that unlike the Dismissal Order relating to Mr Robb, the Notice of Proposed Dismissal directed to Mr Dale did not conclude by articulating a series of grounds. It is clear, however, that the ground relied upon by the Chief Commissioner was the nature of the relationships Mr Dale had with X and Mr Hodson.

Dale application – ultra vires issue

The argument presented for Mr Dale on the ultra vires point focussed initially on details contained in the Dismissal Order. It was argued that that detail revealed that additional grounds had been relied upon which should have been referred to in the Notice of Proposed Dismissal and thus that Notice did not comply with s.68 and was ultra vires.

The Dismissal Order considered in detail the responses of Mr Dale to the issues raised in the Notice of Proposed Dismissal and set out the Chief Commissioner’s analysis of those matters and her conclusions about them.

The responses of Mr Dale were accepted in respect of some of the issues raised. One issue, as to which he was not successful was the question of his role in the decision not to authorise a brief against X in respect of certain alleged drug offences. In respect of this issue, counsel submitted that the Notice did not state the grounds.

In the original Notice it had been alleged that he had recommended to the relevant officer in charge that any prosecution arising out of the matters would fail because it was difficult to establish his knowledge of the presence of ecstasy tablets. The following appears in the Dismissal Order:

“You state that the decision to not authorise the brief against [X] was made by the Officer in Charge at the Brunswick Police Station (Senior Sergeant Barnes). While that is true, it is also clear that Senior Sergeant Barnes did so based on your recommendation. I believe that your recommendation contained false and misleading information. In addition it was said in your report you made claims about statements that you attributed to [X] during the interview that were not made. Further, you did not address the other matters for which he had been interviewed. It is apparent that the report you submitted in support of this action contained significant misrepresentations of the truth and did not address other significant issues.
In your submission in response to the Notice of Proposed Dismissal, you state, amongst other things, that the report dated 9 April 2002 to the Officer in Charge at Brunswick Police Station said: “Mr [X] denied knowledge of the presence of the tablets and stated that the room was normally occupied by his brother” and further stated: “there was no evidence available to demonstrate that Mr [X] had knowledge of the drug or that he was the sole and exclusive occupant of the bedroom where the coat was found.”
These statements are not supported by the evidence. The record of interview was a “no comment” interview. Nevertheless, it clearly shows that other conversations relating to this and other offences committed by [X] took place, during which [X] indicated he was aware of the presence of the ecstasy tablets, and during which he admitted occupancy of the room in which the tablets were found. It also indicates your knowledge of [X’s] involvement in other ... offences previously referred to.
Having regard to the clear inconsistency between the record of interview and your report, I am satisfied that your report was intentionally incorrect. I believe that you took positive action to ensure that [X] was not charged with any offences arising from your contact with him on 5 September 2001. I consider this to be a serious breach of your responsibilities to Victoria Police and to your superior and subordinate. I believe that it significantly affects your integrity and has potential to cause a loss of community confidence.”

Counsel for Mr Dale submitted that, in essence, the Chief Commissioner was stating that the recommendation made by Mr Dale to the Senior Sergeant contained false and misleading information and that an analysis of Mr Dale’s response to the Chief Commissioner’s Notice of Proposed Dismissal revealed a clear inconsistency between the record of interview of X and his report and that the conclusion followed that Dale’s original report was intentionally incorrect. It is also alleged that the Chief Commissioner was now alleging that he took positive action to ensure that X was not charged. As to the latter issue, it would appear to me to have been flagged in paragraph 2.3 of the original Notice of Proposed Dismissal. It may be said, however, that the other details had not been raised before and the issue to be resolved is whether they should have been stated as grounds in the original Notice of Proposed Dismissal.

So far as this ultra vires argument is concerned, the initial issue is whether the matters not mentioned in the Notice were matters that the Chief Commissioner had in mind at the time of the serving of the Notice of Proposed Dismissal. There is no evidence to suggest that this was so. Rather, the discussion of the matters in the Dismissal Order points to the Commissioner having formed the views in considering the responses received from Mr Dale in reply to that Notice.

The next matter relied upon concerns matters alleged in paragraphs 2.6 to 2.11 of the original Notice – again concerning his relationship with X. A number of matters are referred to in those paragraphs. What is significance for present purposes, however, is that the Notice of Proposed Dismissal recorded that Mr Dale had made a statement about his relationship with X in the course of which he said that he was aware of a veiled threat made with respect to X when, he Mr Dale was off duty and socialising at a hotel in Brunswick. Mr Dale had said that an unknown male had spoken to him saying that X was a “dead man walking.” The Notice recorded that Mr Dale made no enquiries about the identity of this person and although he could not state exactly when the incident occurred, he was of the opinion that it occurred before X was arrested for murder. The Notice recorded that the issue of the veiled threat was not the subject of an Information Report to the Broadmeadows District Intelligence Unit.

In his response, Mr Dale dealt with a number of the issues raised in the Notice. Of particular relevance to the Chief Commissioner’s decision was his response on the question of his failure to inform other members of Victoria Police of the threat incident. In his response, he referred to the shooting and the arrest of X for murder. He stated in his response that he spoke to two officers of the Homicide Squad to obtain details of the shooting and was informed, inter alia, that it was a road rage incident and that there had been no prior association between X and the deceased. He then stated that as a result of the information given to him he believed that the threat incident at the hotel was completely irrelevant to the murder charge and that this proved to be correct. He repeated the latter statement asserting that it was not considered to be of any relevance to the murder charge and was not of any relevance during the court hearing.

In the Dismissal Order, the following is stated:

“I believe that there is no reasonable explanation for your failure to inform other members of Victoria Police of the incident that allegedly occurred at the Union Hotel. In your statement dated 8 January 2003 you alleged that a few days prior to the shooting of……. , an unknown person approached you and told you that [X] was a “dead man walking.” However on 9 January 2002, the day after [the shooting]……. when questioned by an officer from the Homicide Squad, you stated that there were no express or implied threats against X of which you were aware. I do not accept your claim in your submission in response to the Notice of Proposed Dismissal that you did not convey the veiled threat against X to the Homicide Squad investigators due to your belief of that statement’s irrelevance. Your further assertion in the submission that your belief proved to be correct does not take account of the attention that veiled threat attracted during X’s trial.”

The argument advanced in these proceedings for Mr Dale is that the above reasons contained in the Dismissal Order revealed that the Chief Commissioner acted on grounds that had not been disclosed to him in the original Notice of Proposed Dismissal and that accordingly there had been a failure to comply with s.68(2)(a). It is put that the following were new matters and should have been stated in the Notice of Proposed Dismissal:

·    the allegation that there was no reasonable explanation for his failure to inform other members of the Force of the threat incident;
·    the inconsistency between the two statements, and
·    rejection of his claim that he did not mention the threats because he considered them irrelevant

In my view, these issues were not expressly raised in the Notice. It cannot be demonstrated, however, that they were grounds relied upon by the Chief Commissioner when the Notice was given. Rather the comment that there was no reasonable explanation for his failure to tell other police officers arises from a consideration of the issues raised in the original Notice and his response. The same analysis, in my view, applies to the complaint about the Chief Commissioner’s indication that she did not accept his justification contained in the response for not passing on the veiled threat information to other officers. As to the issue of inconsistency alleged between Mr Dale’s statement of 8 January 2003 and his interview with an officer of the Homicide Squad on 9 January 2002, this issue could have been expressly canvassed in the original Notice of Proposed Dismissal. But the issue of the inconsistency was there to be identified by anyone reading the Notice. Alternatively, it cannot be demonstrated that reliance was placed by the Chief Commissioner at the time of that Notice on the inconsistency. Rather, that conclusion appears to have been reached after consideration of the issues in light of Mr Dale’s response.

It should be noted that it is clear from the Dismissal Order that the Chief Commissioner relied upon these matters and not other matters that had been raised in the original Notice which the Chief Commissioner indicated she had not considered ultimately in making her decision to dismiss him. To the extent that the issue of the threat, and the failure to report it, reflected on the relationship, they were canvassed. It would appear from the Dismissal Order, however, that in the end the ground upon which the Chief Commissioner acted did not change in that as stated by the Chief Commissioner, it was the nature of the relationship that was of concern to the Chief Commissioner The other matters referred to simply explain why the Chief Commissioner did not accept the accounts given by Mr Dale.

The other alleged ultra vires aspect concerned allegations made by the late Terry Hodson, a police informer, which implicated him and Mr Dale in a friendship that involved illegal and questionable activity. As noted above, incidents mentioned included the handing of $1,000 cash to him by Mr Hodson, the borrowing of a pistol from Mr Hodson with six bullets and a box containing 25 bullets and the subsequent return of the firearm with no ammunition in the magazine, the discussion with Mr Hodson and another officer, Miechel, about organising a break-in into premises and the removal of cash, the conveying of information to Mr Hodson about surveillance of the premises in question, a request to Mr Hodson for a few ecstasy tablets that he wanted to try out with his girlfriend and his acquiescence in the break-in that subsequently occurred at the premises. Another matter was the relationship between Mr Miechel and the daughter of Mr Hodson and whether Mr Dale was aware of that relationship.

In his response to the Notice, Mr Dale challenged the veracity of Mr Hodson’s statements pointing to inducements that were offered to him to make his statement and arguing that Mr Hodson had initially lied to the police. Mr Dale then submitted in his response that there was no other evidence against him to implicate him in the commission of such offences other than that induced statement which was “completely uncorroborated and made by a person who had serious credibility issues because of his prior convictions and lifestyle, and he was at that stage a co-accused rather than a witness.” It was then put that the strength of the case against Mr Dale was very weak and upon the death of Mr Hodson, the Office of Public Prosecutions listed the matter for mention and withdrew the charges against Mr Dale.

Plainly, the question of corroboration was of considerable importance and in the Dismissal Order, the Chief Commissioner indicated that she had, in assessing the allegations in Mr Hodson’s statements, looked at the extent to which the statements he made can be corroborated. She came to the conclusion that there was significant corroboration of a great many matters raised by Mr Hodson in his statement that led her to “have reasonable satisfaction of those issues.” She stated that she had formed the same view as he had that Mr Hodson was a generally truthful informer and that she was of the view that the statement he made was generally truthful. She then stated a series of specific findings. What is particularly relevant is that the Chief Commissioner considered an obviously large amount of material in coming to the conclusion that there was significant corroboration. The final conclusion expressed in relation to the Hodson material was:

“In summary I find that your relationship with Hodson was improper for the reasons outlined above. You abused your position as a member of the Force. Your conduct seriously undermines your integrity. I believe there is potential for serious loss of public confidence were you to continue as a member of the force.”

While the Chief Commissioner’s analysis of the material was new, particularly the reliance on corroboration, its content cannot be regarded as constituting grounds which should have been stated even if they were matters that the Chief Commissioner had taken into account in forming the prima facie view set out in the Notice of Proposed Dismissal. Further, it cannot be demonstrated that they were taken into account at that time. Rather, the investigation of the corroborative material arose in response to Mr Dale’s own response to that Notice.

Thus, the matters relied upon by Mr Dale as grounds that should have been stated in the original Notice do not constitute grounds in the relevant sense. To the extent that they did, it cannot be demonstrated that they were grounds which formed the basis of the prima facie view at the time the Notice of Dismissal was served.

Dale application - procedural fairness

Mr Dale relies upon three aspects of procedural fairness which he argues were required and not given.[65] The first concerned the disclosure of adverse material. The second concerned an alleged failure to give proper notice of the matters on which the decision was likely to turn. Finally, it was argued that the defendant’s decision involved findings of dishonesty and other matters that were adverse to Mr Dale and extremely serious. Counsel for Mr Dale referred to the statements by the Chief Commissioner that the allegations made by Mr Hodson were “generally truthful.” Counsel submitted that before reaching such a conclusion adverse to Mr Dale, the defendant was obliged to give him the opportunity of an adequate hearing and that where serious findings as to honesty and credibility are involved, the party in question is entitled to an oral hearing. It was further submitted that, it not being possible to cross-examine Mr Hodson, Mr Dale should at least have been given the opportunity to make submissions and challenge corroborating evidence.
[65]Citing Kioa v West (1995) 159 CLR 550 at 628; Kanda v Government of Malaya [1962] AC 322 at 337-338; Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 at 590-592; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CL 57 at 117 [193] – [194]; Zhang De Yong v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 384 at 408; Chen Zhen Zi v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 591 at 597; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 516.

In relation to the issue of access to adverse material, through his solicitors Mr Dale requested copies of seven statements and a number of the reports referred to in the Notice of Proposed Dismissal. The Chief Commissioner responded, again relying upon the view taken of s.68 that it set out the matters to which Mr Dale was entitled, and declined to provide the material requested. An exception was made, however, for Mr Dale’s personal file. In my view, procedural fairness required that he be given access to the material before the Chief Commissioner. I refer to my discussion of these issues in relation to the application of Mr Robb.

The next issue is whether there was a denial of procedural fairness. As in the Robb application, counsel submitted that the Notice lacked sufficient specificity. Again more precision would have been helpful, but any lack of precision did not deny him procedural fairness. Counsel also submitted that Mr Dale did not have an opportunity to respond to issues not expressly mentioned in the Notice but in respect to which the Chief Commissioner expressed opinions in the Dismissal Order. They, however, were part of the reasoning arrived at after considering the response of Mr Dale. He was not entitled to an opportunity to address the reasoning of the Chief Commissioner engaged in by her after considering his response. I refer to the above discussion of the matters raised in the context of the ultra vires argument and refer to my discussion of the issue generally in relation to Mr Robb’s application.

In relation to the Mr X issues, it was also put that the Chief Commissioner failed to give Mr Dale adequate notice of the issue as to whether he had taken positive action to ensure that Mr X was not charged with any offences. In my view sufficient attention was drawn to that question in the original notice. Another issue raised in argument was whether sufficient notice had been given that the Chief Commissioner had formed a prima facie view that the relationship between Mr X and the plaintiff went beyond the professional level. This may not have been spelt out in such terms but it is clear to anyone reading the Notice that the nature of the relationship was the concern.

In relation to the Hodson issues, there was a further matter mentioned in the Dismissal Order, namely the reliance upon corroboration of Mr Hodson’s statement from other material. But again, these matters were stated by the Chief Commissioner to explain her reasoning for her decision and Mr Dale was not denied procedural fairness because he was not alerted to that issue. He was in fact alive to that issue[66] having asserted there was no corroboration. His assertion, however, highlights the relevance of that material. He was denied procedural fairness to the extent that he was denied access to the corroborating material.
[66]See Response, para 38.8.

The remaining issue concerns whether an oral hearing should have been given by the Chief Commissioner before the making of the Dismissal Order. I refer to my analysis of this issue in relation to the application of Mr Robb. Similar issues arise. After consideration of the evidence and the submissions put to me, I have come to the conclusion that it would also be desirable in this application to give the parties the opportunity to make further submissions. I have also come to the conclusion that it is unnecessary and undesirable to take that issue further, the conclusions having been reached that the matter should be returned to the Chief Commissioner for reconsideration because Mr Dale was not given access to the material before the Chief Commissioner.

Apprehended bias – Robb and Dale applications

Counsel for Mr Robb and Mr Dale submitted that the public statements of the defendant and her refusal of their request for statements and other material referred to in the Notice and the refusal to accord natural justice give rise to a reasonable apprehension of bias. It is submitted that these matters in combination create a situation where a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the Chief Commissioner might not bring an impartial and unprejudiced mind to the resolution of the question of the dismissal of the officers from the force.[67]
[67]See Webb & Hay v R (1994) 181 CLR 41 at 67; Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-294; Bohills v Friedman (2001) 110 FCR 338 at 347; cf Minister for Immigration and Multicultural Affairs v Jia Legen (2001) 205 CLR 507.

In relation to the public statements of the Chief Commissioner, reliance is placed on the contents of a press release and her reference in a media conference to both plaintiffs in the context of comments about her determination to address the problem of police corruption. Counsel submitted that they would have given rise to such a reasonable apprehension.

The press release referred initially to the exercise of powers under s.68 against two members of the Force requiring them to show cause by the end of June why they should not be dismissed and briefly indicated the test to be applied. The press release then stated:

“The Chief Commissioner will then consider their responses before deciding whether to order their dismissal.”

The particular passage of concern then followed.
“I am determined to rid Victoria Police of those members who act corruptly or inappropriately. I want – and the community demands – full confidence in the officers representing Victoria Police. I will not tolerate unethical or corrupt behaviour.”

The Chief Commissioner went on to refer to the fact that the actions of a minority have the capacity to damage the integrity of Victoria Police and she would not let that happen. She then referred to internal investigations which had resulted in a number of serving police members being charged with criminal offences. The names of those members and the charges and dates of hearings were set out in a schedule attached to the media release. There were twenty three additional officers named.

In my view, there was nothing in the media release itself that might cause a fair-minded lay observer to entertain a reasonable apprehension that the Chief Commissioner might not bring an impartial and unprejudiced mind to the resolution of the question.

In my view, a fair-minded lay observer would not take a different view with the additional knowledge of the handling of the matter by the Chief Commissioner, including the Notice, and the response to Mr Robb and Mr Dale’s requests for statements and other material and the consideration of matters to which they say they did not have the opportunity to respond referred to in support of their arguments about a denial of procedural fairness. This conduct needs to be considered in the context of the Notice of Proposed Dismissal and its detail and the material contained in the Dismissal Order. They reveal a conscientious attempt to consider all matters with care. While I am satisfied that there was a denial of procedural fairness in not giving access to the material sought, that resulted from an arguable interpretation of s.68 as to which I take a different view.

The plaintiffs also rely on a video tape of the Chief Commissioner’s media conference which was called at the time of the publication of the press release. It is not easy to understand. While it confirmed the Chief Commissioner’s determination to rid the Victoria Police of members who act corruptly or inappropriately, the presentation by the Chief Commissioner was that of someone who was proceeding with caution and determined to handle the matters appropriately and fairly and in accordance with proper procedures. There was nothing said or done in the media conference which would raise a reasonable apprehension of bias.

In dealing with this issue, I have proceeded on the basis that the principles relating to actual and apprehended bias apply to a person in the position of the Chief Commissioner exercising power under s.68. I note that counsel for the Chief Commissioner submitted that the bias rule could require no more than that the Chief Commissioner give genuine consideration to the issues raised by the statute and that she bring to bear on those issues a mind that was open to persuasion.[68] It is, however, unnecessary in all the circumstances to reach a conclusion on that argument. I note also, that counsel for the Chief Commissioner submitted that the Chief Commissioner would be entitled, in any event, to call to her aid the “necessity” exception to the bias rule because the power under s.68 can only be exercised by the Chief Commissioner. Again, having regard to the conclusion I have reached, it is not necessary to rule on that question.[69]
[68]Relying upon Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 538 – 540, 565, 566.
[69]Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 88 – 89.

Discretionary matters

Counsel for the Chief Commissioner submitted that even if any of the grounds for review were made out, the relief sought by Mr Robb and Mr Dale was discretionary.[70] Counsel submitted that the discretion should be exercised against granting the relief because an adequate alternative statutory remedy was available, namely the review of the decision by the Appeals Board.[71] Counsel referred to the fact that the plaintiffs had in fact lodged applications for review with the Board and that they had been adjourned pending the outcome of these proceedings.
[70]Victoria Legal Aid v County Court of Victoria (2004) VSCA 113 at [9].
[71]Tooth & Co Ltd v Council of the City of Parramatta (1955) 97 CLR 492 at 498, Lloyd v Veterinary Surgeons Investigating Committee and Anor [1999] NSW CA 68 at 24, Dranich Nikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, 395 – 396.

I have referred above to the applicable statutory provisions and what I see as the limitations on the review process. I refer to my analysis. If the review involved a true re-hearing, there might be some force in this argument. The review, however, is limited. The question to be considered by the Appeals Board is confined to whether the decision was sound, defensible or well founded and the member of the force who has been dismissed and is appealing has the onus of proof. I refer in particular to s.68E(3) to (5) of the Act 1958 and the Regulations. If those provisions are to result in a bona fide review, the member of the force appealing to the Appeals Board would need to have knowledge of the information before the Chief Commissioner.[72]
[72]See also Police Regulations 2003 and Regulations 35 and 36.

It should be assumed that Parliament intended that the appeal process have substance. The according of procedural fairness by the Chief Commissioner is critical to the satisfactory operation of the subsequent appeal procedure. The appeal procedure, far from providing a discretionary basis for declining relief, reinforces the need to be able to obtain an order in the nature of certiorari in appropriate cases to ensure that procedural fairness has been given during the initial process.

Conclusion

For the foregoing reasons, the plaintiffs have established one of the grounds of their applications - that they were not accorded procedural fairness in the making of dismissal decisions. For that reason only the applications by Mr Robb and Mr Dale should be granted quashing the decisions made by the Chief Commissioner dismissing them from the Victoria Police. It will be necessary to refer the matter back to the Chief Commissioner for hearing and determination according to law.

[2005] VSC 310

11 August 2005