Scott v Sinclair and Anor; Holden v Police Appeals Board
[2001] VSC 481
•12 December 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4475 of 2001
| MASON SCOTT | Plaintiff |
| v | |
| GRAHAM SINCLAIR | First Defendant |
| THE POLICE APPEALS BOARD | Second Defendant |
No. 4303 of 2001
| LARS HOLDEN | Plaintiff |
| v | |
| THE POLICE APPEALS BOARD | Defendant |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2001 | |
DATE OF JUDGMENT: | 12 December 2001 | |
CASE MAY BE CITED AS: | Scott v Sinclair and Anor; Holden v The Police Appeals Board | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 481 | |
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Administrative law – administrative decisions – whether jurisdictional error – whether denial of natural justice – police officers – disciplinary charges – whether requirement in the circumstances that evidence be taken orally at disciplinary hearing or upon review by Police Appeals Board – whether requirement in the circumstances that review be conducted by way of re-hearing de novo – no error demonstrated.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr D. Grace QC | Holding Redlich |
| For Sinclair | Mr R. Taylor | Victorian Government Solicitor |
| For the Police Appels Board | Mr P. J. Cosgrave | Carroll & Dillon |
HIS HONOUR:
The circumstances of the proceedings generally described
Mason Scott (“Scott”) and Larry Holden (“Holden”) were members of the Victoria Police Force (“the Force”). They were charged under s. 71 of the Police Regulation Act 1958 (“the Act”) with breaches of discipline contrary to s. 69 of the Act.
The charges, which arose out of unconnected incidents, were in each instance the subject of inquiry and determination by Graham Sinclair (“Sinclair”) then a Deputy Commissioner of the Force. He was the officer authorised by the Chief Commissioner under s. 73 of the Act. Hearings were held at which Scott and Holden were represented by a disciplinary advocate employed by the Police Association. In each instance Sinclair found charges proved. He made determinations dismissing the members. They made applications for review of the decision. The review was conducted in each instance by the Police Appeals Board (“the Board”) established by s. 87 of the Act as substituted by the Police Regulation (Amendment) Act No. 61/1999 (“the Amending Act”)[1]. In each case the Board in substance affirmed the decision under review: see s. 91G(1)(a) of the Act as amended[2].
[1]The Board came to entertain Holden’s application by operation of a transitional provision, s. 131(3), which was inserted into the Act by the Amending Act. Nothing turns on this.
[2]In Holden’s case the Board affirmed Sinclair's decision so far as it involved a determination that the two charges laid against the member were proved; but in respect of a charge of lesser gravity it imposed no sanction. This was cold comfort to Holden. For the sanction of dismissal with respect to the other charge was affirmed.
Scott and Holden now bring proceedings by originating motion in this Court. As refined in argument each of them seeks an order in the nature of certiorari quashing decisions made against them – in Scott’s case, the decisions of both Sinclair and the Board; in Holden’s case, the decision of the Board.[3]
[3]In each case the Board was identically constituted: by Mr J.F. Giuliano, Mr Justice N. O’Bryan, and Ms R. Hunt. I was told from the bar table that these three persons are presently the only members of the Board, although there has been amendment of s. 89(1) so as to permit an enlarged membership. It would seem desirable for more than one reason that the Board could be differently constituted from time to time.
Each proceeding is brought by way of the procedure established by Order 56 of Chapter 1 of the Rules. In Scott’s case it is clear that the proceeding was commenced, so far as Sinclair’s decision was concerned, long after the period specified by R. 56.02(1). In Glasgow v Church & Ors[4]. Beach J relevantly held, in cases involving very similar circumstances, that special circumstances existed for granting extension of time under R. 56.02(3). His Honour said:
“I consider it would have been quite inappropriate for the plaintiffs to have filed originating motions in this Court seeking to quash the decisions made to dismiss them from the force until such time as they had exercised all their rights of review pursuant to the provisions of the Police Regulations Act.”
He cited formidable authority in support of that conclusion, which in my respectful opinion was evidently correct. I add that counsel for Sinclair, who quite rightly referred me to Church, did not suggest that I should not follow it; rather the contrary.
[4]Judgment 15/9/97, unreported.
Beach J further decided in Church that the court had power to grant an application to extend time nunc pro tunc, not requiring that there be a successful application to extend time before an originating motion was filed. It was not suggested in this case that his Honour’s conclusion in that connection was wrong. I will make an order of the kind mentioned.
I said that Scott and Holden seek orders quashing decisions made by Mr Sinclair and/or the Board. They do so on the footing, in substance, that the decision-makers failed to comply with the rules of natural justice, adherence to which statute binds them[5]. At the heart of the plaintiff’s contentions is the proposition that, in the particular circumstances, Sinclair (in Scott’s case) and the Board (in both cases) were obliged to give them a hearing which had as a feature the calling of witnesses to give viva voce evidence – that involving, in the case of the Board, a re-hearing de novo. A further proposition advanced for the plaintiffs is that the Board misapprehended its jurisdiction, not understanding that it had the power to conduct a re-hearing de novo. Its decisions not to conduct the review proceedings in such a way were, it was said, thus infected by jurisdictional error. The plaintiffs complain of other error also. I need not elaborate upon it now.
[5]In Sinclair’s case, by s. 75(3)(e) of the Act, in the Board’s case by s. 91J as inserted by the Amending Act.
The circumstances of Scott’s case further described
Scott was charged with three disciplinary breaches arising out of an incident which allegedly occurred on 28 March 1999: that he was guilty of disgraceful conduct contrary to s. 69(1)(e) of the Act; that he was negligent in the discharge of his duty contrary to s. 69(1)(f); and that he engaged in conduct likely to diminish public confidence in the Force contrary to s. 69(1)(e).
The circumstances attending the charges laid against Scott were allegedly as follows: that on the evening of Saturday 27 March 1999 he and three other police officers, all of them being off duty, attended a Moonee Ponds night club – The Cactus Club. He and a David Ramm got into dispute. He was directed to leave the premises, and did so with his colleagues. When Ramm and another man, Forrest, left the nightclub and took a taxi to the Grand Hotel, Essendon, he and his colleagues followed them. When Ramm and Forrest disembarked at Essendon, Bray, one of Scott’s colleagues, took hold of Forrest, whilst another officer, Cattermole, took hold of Ramm. The latter was led to a secluded alleyway or alcove where he was assaulted by Cattermole, together with Scott. Forrest was kept away from the scene of the assault by Bray.
The disgraceful conduct alleged against Scott was, shortly put, that he had been involved in the assault on Ramm. The negligent conduct alleged was his failure to take reasonable steps to restrain Cattermole from assaulting, or from continuing an assault on Ramm. The conduct likely to diminish public confidence in the Force alleged against him was his involvement, as a person known to be a police officer, in the assault on Ramm and the treatment of Forrest.
The Sinclair hearing took place on 28 March, 3 April and 10 April 2000, the charges having been laid on 26 November 1999. Determinations adverse to Scott on the first and third charges were made on 10 April 2000. The second charge was struck out. Sinclair gave reasons for his determination by statement dated 20 April 2000.
The material upon which Sinclair acted, as disclosed by his reasons, consisted of a brief of evidence, a videotape of activity outside the Grand Hotel on the night of 28 March 1999, a slightly enhanced version of that videotape, still photos taken from the videotape and oral evidence of Scott describing the events which led on to the incident, and in which Scott denied any impropriety. It appears that in substance Scott told Sinclair that he was not in company with Cattermole and Ramm at the critical time, but was then in the vicinity of Forrest, preventing that man from becoming involved.
Sinclair’s reasons show also that at the hearing an extensive submission regarding all circumstances was made by Mr Watt, Scott’s advocate. The detail of Mr Watt's submission is not disclosed by the material before me. But in light of a written submission dated 8 June 2000 made by Mr Watt to the Secretary of the Police Appeals Board,[6] his letter to Sinclair dated 28 January 2000[7] a written response to charges dated 2 February 2000[8] which he sent to Sinclair, and analyses of Ramm’s and Forrest’s statements,[9] the content of the submissions can readily be gleaned. I do not doubt that they concentrated upon alleged inconsistencies in the statements of particular witnesses, upon the unreliability of statements made by Ramm and Forrest in light of their intoxication, upon the unreliability of the evidence of other witnesses; [10] and as well what could be gleaned from videotapes of activities at both the Cactus Club and in the vicinity of the Grand Hotel.[11]
[6]Exhibit 1 D5 to the affidavit of Ian Dosser, sworn 15 February 2001.
[7]Attachment 2 to Exhibit 1 D5.
[8]Attachment 1 to Exhibit 1 D5.
[9]Attachments 4 and 5 to the letter of 8 June 2000, then said by Mr Watt to have been sent to Sinclair.
[10]For example, Mr Chidlow
[11]I should add that the letter of 28 January 2000 shows that Mr Watt provided Sinclair with statements of three crowd controllers at the Cactus Club, these confirming, it appears, that an incident involving Ramm and Scott occurred at that premises – something not mentioned by either of Ramm or Forrest in their statements.
Sinclair’s reasons do not disclose, but it was the fact, that he was provided with a statement made by Cattermole dated 3 February 2000. In that statement Cattermole, who by then had resigned from the Force, said:
“…I am the only person who was involved in the actual altercation with the complainant in this matter, Ramm.”
I have noted that Sinclair was provided with a brief of evidence. Compiled by an officer of the Ethical Standards Department of the Force, and some 230 pages in all, it included a synopsis of the alleged offence(s), synopses of videotape footage from the Cactus Club and the Grand Hotel, 20 witness statements, medical evidence, an extensive interview with Scott[12] and a photograph of Ramm.
[12]It consisted of 918 questions and answers. The statements of nearly all the witnesses were put to Scott as a foundation for questions then asked of him.
I should set out the import of some of the material in the police brief; and the import of some of the other material provided to Sinclair for his consideration.
The police brief disclosed Scott’s assertion that it was mere coincidence that the two groups had travelled to the Grand Hotel; and his denial that he had been one of two men who had taken Ramm down the road. It was his account that Ramm had gone down the street with Cattermole and Bray; and that he had followed, but had only become involved to the point of restraining Forrest from intervening in whatever then occurred. What had occurred he could not say. He had seen nothing.
The arrival of Scott and his colleagues at the Grand Hotel, and the initial conduct of those persons at that place was described in statements provided by two crowd controllers at the hotel, Messrs Clare and Graziani. On the face of it, the conduct was not that of patrons intending to enjoy the hotel’s hospitality.
James Chidlow was loading band equipment into a truck outside the Grand Hotel in the early morning of 28 March 2000. His statement to the police referred to his seeing “two big guys… virtually carrying a small and younger guy down the road, and another big guy pushing a second small guy in the same direction…” A little later, according to his statement, he saw one of the young men run onto Mt Alexander Road, and a police van pull up.
Shortly after the alleged assault, Forrest hailed down a police car. The senior officer in the vehicle was Sergeant Carroll. His statement discloses that he found a fairly chaotic situation. Forrest and Ramm were intoxicated, the latter more so. All of Cattermole, Scott and Bray had been drinking. Forrest alleged that Ramm was fighting with or being bashed by three men. Ramm was observed to be bleeding from a cut above his left eye. He pointed to the three police members and shouted that he was going to “get” them. But he said that his injury had resulted from a fall. Cattermole was difficult to deal with, but in the end the three policemen identified themselves. Scott said that they had just been going to the Grand Hotel. But Sergeant Carroll said they were travelling in the wrong direction for that to be so. Cattermole said that Ramm was drunk. He thus explained why Ramm had been yelling at them. Cattermole and Scott said they had nothing to do with the injury above Ramm’s eye. None of the policemen appeared to be injured, or had blood on him. Two days later Ramm reported the assault. He, Sergeant Carroll, took statements from Ramm and Carroll.
On 30 March 1999 at Dr Maurice Odell, a forensic Physician, examined Ramm. He found a 3 cm laceration above the left eye, bruising on the upper left eyelid, swelling beneath the left eye, bruising and abrasion of the right ear, bruising and superficial abrasion under the left jaw, a bruise on the left upper arm, tenderness over the eighth and ninth left ribs, a five centimetre diameter bruise on the left chest, a scratch abrasion on the back of the left shoulder blade, and a superficial scratch on the lower right back.
After reviewing the Ethical Standards Department file, and in light also of the history provided by Ramm, Dr Odell opined that it was unlikely that the extensive injuries which he noted could have resulted from a single episode of one man falling on another.[13] The injuries were consistent with blunt impacts to various areas of the body, and thus with Ramm's account of being assaulted by punching and kicking.
[13]This was Scott’s account of what Cattermole had told him had occurred.
The Police Association, acting for Scott, took the opinion of Dr Byron Collins, a consultant forensic pathologist. In short, Dr Collins agreed that most of the injuries noted by Dr Odell would have been recent. He agreed also that the constellation of injuries were unlikely to have been caused by a person falling on Ramm. But there was the possibility that some of the injuries had been caused when Ramm was forcibly ejected from the Cactus Club, or subsequent to 28 March. It followed that it could not be said that some of the injuries might not have occurred other than by a person falling on Ramm.
Dr Collins’ report dated 16 February 2000 was provided to Mr Sinclair. His supplementary report dated 10 April 2000 was not so provided. The second report was really an unnecessary clarification of something already made apparent by the first report.
I have said that the brief of evidence contained statements by Ramm and Forrest. Ramm’s first statement was silent as to the incident at the Cactus Club – in which, according to Scott and a lady friend, Ramm had indecently assaulted the lady, this leading on to a confrontation between the two men. Ramm's statement identified two men as having assaulted him; and provided some account of their dress and appearance.
Forrest’s statement referred to an incident which had occurred in the toilet of the Cactus Club. Initially one, later two of the men involved in that incident were the persons who had taken Ramm away after he and Ramm got out of the taxi near the Grand Hotel. A third man held him back from an alley or doorway where Ramm was assaulted.
In a supplementary statement Forrest identified Cattermole and Scott as the persons who walked Ramm up the road and dragged him into the alleyway where the assault took place. He also identified Bray as the man who had restrained him. Those identifications were made from the videotape taken in the vicinity of the Cactus Club, and from the videotape taken in the vicinity of the Grand Hotel.
The videotape taken in the vicinity of the Grand Hotel, according to Mr Watt’s letter of submission to the Secretary of the Board dated 8 June 2000, showed Bray in company with Forrest, Cattermole in company with Ramm, and Scott following on as the others walked south along Mt Alexander Road. It did not show, as I understand it, Scott in company with Ramm and Cattermole.
It might be thought, out of all of this, that there were really two questions to be determined. Did Scott join up with Ramm and Cattermole? Did he participate, either physically or by acting in concert with his colleagues, in assaulting Ramm? On his account it was he who restrained Forrest, not knowing what was going to occur between Ramm and Cattermole. But on his account Cattermole was alone with Ramm at the critical time; or was perhaps then in company with Bray. Forrest’s account put him in company with Bray. That is what the videotape, so far as it went, showed to be the case. Chidlow’s account was consistent with Scott being in company with Ramm and Cattermole at some point before the alleyway was reached.
Were any and what requests made for the taking of oral evidence?
Scott’s advocate communicated at least twice with Sinclair before the disciplinary hearing commenced. He drew attention to areas of disputed fact. In the course of the hearing he provided Sinclair with detailed analyses and criticisms of statements made by Ramm and Forrest. Those analyses referred, inter alia, to the video footage. He put into evidence a statement by his client, Cattermole’s short statement, and statements by persons controverting the second-hand evidence of a Mr Cull that one or more of the police members had made admissions in the early hours of 28 March 1999. He drew attention to the fact that neither Ramm nor Chidlow had been asked to make identification by recourse to the videotapes. What he did not do, either before or at the hearing, was request that evidence be taken orally from any witness. All that he did, by the letter of 28 January 2000, was to write: “An inquiry is made as to your intention to call witnesses at the discipline hearing…”
Following formal application for a review being made, the first communication between Mr Watt and the Secretary of the Board was Mr Watt’s submission letter dated 8 June 2000. It exhaustively reviewed the material, and pointed up problems in the case brought against Scott. It annexed, inter alia, copies of letters sent to Sinclair, copies of the statements made by Cattermole and Scott, and the analyses of the statements made by Ramm and Forrest. No request was made that there be a re-hearing de novo, or that witnesses be called to give oral evidence.
There was a preliminary hearing by the Board on 18 August 2000. Scott’s advocate on that occasion, Mr Dosser, then requested a partial re-hearing. He proposed that Ramm, Forrest, Chidlow, Sergeant Carroll and Dr Collins be called “to clarify anomalies and inconsistencies that appear in their written statements provided in the original discipline brief”.
The Board refused the application. It said:
“The Board has decided that witnesses will not be called for this review. The applicant had the opportunity to ask for the witnesses to be called at the discipline hearing and did not do so.
The Board will review this matter in the usual way by reading all of the material and hearing from the parties at the hearing.”
Mr Dosser has deposed[14] that in his experience it is not the practice for hearing officers to conduct hearings as adversarial proceedings; and that members who are charged do not have the capacity to determine which witnesses give evidence on their behalf. An affidavit sworn 15 June 2001 by James Garrett, a Chief Inspector of Police, and staff officer to Sinclair at the pertinent time, indicates that discipline advocates may and do communicate with hearing officers requesting that certain witnesses be called. Such requests are granted in some cases; that is “if the reason for the request is such that the matter cannot be determined by reference to the discipline brief or other documents supplied by or on behalf of the (charged) member.” On occasions, also, hearing officers decide to call witnesses prior to any request being made. If in doubt, hearing officers “will err in favour of calling the witnesses in order to demonstrate fairness in the process”.
[14]See his affidavit sworn 15 February 2001.
There is really no conflict in the affidavits[15]. A member or his representative may request the taking of oral evidence. The hearing officer decides the fate of any such request. Additionally, a hearing officer may decide, independently of any request, that a witness or witnesses should be called. There is apparently a rule of thumb which guides decisions whether to call or not to call witnesses.
[15]See also Mr Dosser’s second affidavit, sworn 17 October 2001.
Mr Dosser’s affidavits obscure matters of some potential importance. They cast no light at all upon the question why no request was made that witnesses be called at the Sinclair inquiry. Nor do they cast any light upon the question why no request was made by the submission letter of 8 June 2000 that any witness be called; or as to the reason for the apparent change of heart between 8 June 2000 and 18 August 2000.
The decisions made in Scott’s case; the Reasons for Decisions
Sinclair in his reasons described, though incompletely, the material with which he had been provided and which he said he had read and viewed. He set out some detail of an oral statement made by Scott and answers given by Scott to questions which he asked. He referred to an extensive submission made by Mr Watt. He provided no detail concerning it. Having earlier referred to the charges laid against Scott he said simply:
“The level of proof I considered necessary was on a high scale of balance of probabilities. I was satisfied to that level.”
As to penalty, for it must be assumed that in these two sentences he found charges 1 and 3 proved, he concluded that any sanction less than dismissal would be inappropriate. About this conclusion, so far as the charge of disgraceful conduct is concerned, there has never been any controversy.
Sinclair’s reasons were, I must say, inappropriately shoddy. Scott was a young man who was being deprived of his career. Dismissal from the Force, moreover, would be likely to carry a stigma. It might be the case that extended reasons would have been still less to Scott’s advantage than the conclusions briefly expressed. But I do not think such an assumption should be made. Moreover, for a hearing officer to so confine his reasons would be likely to make the review task of the Board more difficult.
I turn to the decision of the Board on review. The Board apparently had before it the material which had been provided to Sinclair; and as well a transcript or tape recording of what had transpired at the disciplinary hearing. Its reasons show that in affirming Sinclair’s decision it considered the material closely. It concluded that Ramm was assaulted, that the assault involved some premeditation by Cattermole and Scott, that Cattermole had been the leader in the incident but Scott had acted “in concert in an assault against a smaller and intoxicated person”. Having given meaning to the phrase “disgraceful conduct” it concluded that the conduct established against Scott fitted that description.
The circumstances of Holden’s case further described
Holden was charged with two disciplinary breaches arising out of an incident which allegedly occurred on 13 October 1997: that he was guilty of disgraceful conduct contrary to s. 69(1)(c) of the Act; and that he was negligent in the discharge of his duties contrary to s. 69(1)(f).
The substance of the allegations raised against him was that on 13 September 1997 he had seriously assaulted one Jason Smith after the man had been arrested and was at the Prahran Police Station; and that he had then failed to take steps to arrange for Smith to be medically treated. The incident, it was said, had occurred in the presence of quite a large number of police officers.
Holden maintained, at the outset and continuously thereafter, that he acted
justifiably and in good faith; restraining a man who was intoxicated,
aggressive, and resisting police.
Following investigation of the incident, Holden was charged with the criminal offence of recklessly causing Smith serious injury. He was committed for trial. At trial in March 1999 he was acquitted. Then he was charged with the disciplinary breaches to which I referred a few moments ago. Those breaches, and the subject matter of the criminal charge, obviously enough addressed the same subject-matter.
The disciplinary hearing; Evidence taken on oath
A disciplinary inquiry was conducted by Sinclair in September 1999. It extended over three days. Sinclair was provided with a brief which included witness statements, a transcript of the committal proceeding, and a transcript of the trial. He took evidence on oath from Smith and from nine police officers. With the exception of one police officer, the remaining police officers gave evidence against Holden.
Sinclair was also, it seems, provided with a typewritten 21 page submission dated 12 June 1999. It accused elements of the Force, especially some members of the Ethical Standards Department, of “flagrant abuse of process, of discrimination, victimisation, hypocrisy, political chicanery and unethical behaviour”; and it accused certain members of “Statement manipulation, the duress/intimidation of inexperienced police witnesses all in an attempt to pervert the course of justice in a disgusting attempt to secure some sort of bogus conviction” against Holden. Certainly Holden prepared such a submission. Evidently it was seen, later on, by the Board.
Sinclair, finally, heard certain evidence from Holden. The evidence was unsworn, by contrast with the evidence adduced from the other witnesses. But apparently Holden was not asked to give evidence on oath. Nothing was said by Sinclair to turn on the difference in the way in which evidence was adduced.
Sinclair, whilst acknowledging that there were some inconsistencies in the evidence placed before him, expressed himself “very satisfied” that the substance of the charges had been made out.
He imposed the sanction of dismissal in each instance.
Application for review. Request for a re-hearing of the evidence
Holden applied for a review of Sinclair’s decision. The application was made to the then Police Review Commission.
Subsequent to the application being initiated, but before it was heard, the amending Act pertinently came into operation – on 2 April 2000. A little more than three months later Holden’s advocate wrote to the Board requesting that the review be by way of re-hearing the evidence, all witnesses save Smith to be called. The letter referred to certain observations which I made in Stewart v Shuey and Ors[16] as to circumstances in which a re-hearing de novo might be considered appropriate on a review. The letter contended that issues of credibility and reliability of witnesses were crucial to the proper resolution of the review.
[16][1999] VSC 114.
The Board considered Holden’s request for a re-hearing on 18 August 2000. It decided that witnesses would not be called. It agreed with the view advanced by Senior Sergeant Stapleton, who appeared for the Chief Commissioner, “that such a course would be unreasonable”. Mr Stapleton had referred to the circumstance that all of the witnesses had already given evidence at the committal, the trial and the disciplinary hearing; and that on each occasion they had been subject to questioning by the person then appearing for Mr Holden. He had also made other statements the significance of which may be doubted.
The review and the Board’s determination
The Board was evidently supplied with all the material provided to Sinclair, a transcript or recording of evidence given at the inquiry conducted by Sinclair, and Holden’s written submission dated 12 June 1999.
The Board in its Reasons noted that the evidence of the witnesses at the Sinclair hearing did not produce major inconsistencies with statements and evidence of those witnesses given at committal or trial; and that many of the key witnesses had been had been cross-examined on three occasions. It indicated that it had been impressed by the evidence of four particular witnesses. Having given both Holden and his advocate an opportunity of advancing Holden’s case, it concluded that it was quite satisfied that the charge of disgraceful conduct was proved beyond reasonable doubt. It was also satisfied that the second charge was made out. But on that charge it concluded that no sanction should be imposed. In arriving at its conclusions it made the point that it did not hear the case de novo, but rather reviewed the discipline hearing decision.
Before reaching its conclusions the Board, as I noted a moment ago, heard directly from Holden. He was given an opportunity to develop his conspiracy theory. It was apparent to the Board, its Reasons disclose, that Holden “passionately believed he had been the victim of a conspiracy”. He had “demonstrated deep emotional feelings”. I think it quite clear that the Board, whatever scepticism it may have had about the objective truth of Holden's conspiracy theory, did not use what he said in that connection to discredit his critical denials.
The legislative framework
Charges were laid against the plaintiffs under s. 71(1) of the Act. By s. 73 Sinclair was obliged to inquire into and determine the charges. Section 75 sets out the procedure on an inquiry. Note particularly sub-s. (3). In the event, as here occurred, that Sinclair found charges proved he was empowered by s. 76(1)(g) to determine that the member be dismissed from the Force.
The consequence of s. 75(3)(d) is that Sinclair was bound to give each of the plaintiffs a hearing. I considered the content of the right to be heard, in the particular statutory context, and in connection with a particular factual situation, in Stewart.[17] I considered the content of that right in the context of an allegation of apprehended bias on the part of the decision-makers. That context does not bear on the substance of what I said. I adhere to my conclusions, so far as they are presently relevant.
[17]At paragraphs 53-62.
I add this: In my opinion “the apparent seriousness of at least some of the disciplinary charges that were laid”, and “the sanctions that might follow if a charge was found proven” are matters which in a particular case could mean that the rules of natural justice require that a hearing be conducted at which viva voce evidence is taken – whether on oath or otherwise, and whether or not with right of cross-examination conferred upon the member charged.[18] I would not read s. 75 (3)(c) to permit the adoption of a procedure which derogated from the requirements of the rules of natural justice; though it would be right to recognise the existence of that subsection when determining the content of those requirements, and likewise the existence of sub-s. (3)(a) – expressed to operate “subject to this section” – and sub-s. (3)(b).
[18]Sinclair’s power to require the attendance of persons and to administer an oath was conferred by s. 75(4) of the Act, it making applicable, inter alia, ss. 14 and 15 of the Evidence Act 1958.
I turn to the Board. It has jurisdiction both to “hear and determine appeals” and “to conduct reviews of decisions”.[19] It’s jurisdiction may be compared with the jurisdiction of the former Police Review Commission. The Commission’s functions involved hearing appeals and reviews. See s. 88 in its old form.
[19]See s. 88(a)(b) and (c).
By s. 91F(1)(e) a member may apply to the Board for a review of a determination to dismiss.
The Board’s powers on a review are specified by s. 91G in its amended form. Powers include affirming the decision under review,[20] setting aside the decision under review and making in its stead any other determination that the original decision-maker could have made[21] and ordering the Chief Commissioner to reinstate a terminated or dismissed applicant[22]. By contrast with the old s. 91G, the Board is invested with powers not subject to veto by the Chief Commissioner. See, in this connection, s. 91Q.
[20]Subsection (1)(a).
[21]Subsection (1)(b).
[22]Subsection (2)(a).
The procedure on review is set out by ss. 91H-91S. Some of those sections were substituted, some were amended and some were inserted by the Amending Act. Some have subsequently been amended.[23] It is possible in this case simply to refer to those sections in their present form.
[23]By Act 2000 No.9.
It is necessary to notice that s. 91H(3) of the Act in its old form, which applied in the case of an appeal or review, and which paraphrased s. 75(3), has been supplanted by a raft of sections dealing with procedures of the Board.
The provision by the old s. 91H(3)(d) that the Commission was bound by the rules of natural justice is now replicated in s. 91J.
The provision by the old s. 91H(3)(b) that the Commission act with as little formality and technicality as the requirements of the Act and proper consideration of the matter permitted is now replicated by s. 91L(1), save only that there is now an exhortation to act speedily.
The provision by the old s. 91H(3)(a) that, “subject to this section” the procedure of the appeal or review was at the discretion of the Commission has been replaced by s. 91L(2). It shortly provides that “Subject to this Act, the Appeals Board may regulate its own procedure”.
I should next refer to s. 91N. It is a replica of the old s. 91H(1).
I turn to s. 91O. Subsection (1) is an expanded version of the old s. 91H(3)(c). It provides that the Board is not bound by the rules of evidence; and, generally speaking, that it may inform itself as it sees fit. It adds to the old s. 91H(3)(c) by providing that the Board is not bound by “any practices or procedures applicable to courts of record”. It builds upon the new s. 91L(2).
Section 91O(2) is new. It provides that the Board may require evidence to be given on oath; and for the administration of an oath. This provision is important, for it is now clear that on a review the Board may conduct a re-hearing, including a re-hearing de novo. I expressed the opinion in Stewart that this was possible under the old legislation[24]. Vincent J expressed a contrary opinion in Anthony v Sinclair and Ors; Tomlin v Sinclair[25]. That difference of opinion has been overtaken by the amending legislation, which by s. 91O(2) not only specifically contemplates a re-hearing – whether on appeal or review - but sets up machinery for securing the attendance of witnesses as well as providing for related matters.[26] Note also that, by operation of s. 91Q, decisions on appeal and on review bind the Chief Commissioner. The distinction referred to by Vincent J in Anthony[27] no longer exists.
[24]See at paragraphs 83 – 109.
[25][1999] VSC 343; see at paragraphs 53 – 64.
[26]See ss. 91P, 91R and 91S.
[27]At paragraphs 54 – 55.
I need only refer to one other provision of the current regime. Section 91K is new. It obliges the Board to have regard on a review to the public interest (which is inclusively defined) and the interests of the applicant.
A review by re-hearing under the current regime might take the form of a re-hearing de novo or it might take the form of a simple re-hearing. The difference between those concepts is described in the cases cited at paragraph 107 in Stewart.
Under the current regime a review might also take the form which I discussed in Stewart at paragraphs 111 – 115.
I adhere to the opinion which I expressed in Stewart that a decision to conduct a particular review in a particular way should not be unexaminable by the Court. But substantial discretions are confided to the Board as to the procedures which it may adopt. The exercise of those discretions will not readily be subject to successful challenge.
I said in Stewart that “The Commission might well consider a re-hearing de novo to be appropriate where it is apparent that a question arises as to the credibility and reliability of witnesses heard by the primary decision-maker”. I said also that “…the Commission might well consider a re-hearing of either form to be appropriate in cases of particular gravity – where, for example, the penalty imposed by the decision-maker… is dismissal from the Force”.[28] I remain of those opinions. But two interrelated matters need to be made clear. First, it does not follow from what I said that the failure of the Board to grant a re-hearing, of whatever form, in cases of the type described will necessarily result in successful challenge upon a proceeding brought in this Court. Second, the circumstances of each case must be individually scrutinised. There may be reasons why, although a case nominally falls into one of the categories which I described, a decision not to conduct review by re-hearing will be quite unexceptional.
[28]See at paragraphs 109 – 115.
Resolution of Scott’s Case
There is no doubt that Sinclair was able to conduct a viva voce hearing. There is nothing to suggest that he did not understand he could do so.[29] The question is whether in the particular circumstances Sinclair denied Scott natural justice by not doing so. As I observed when discussing the relevant legislative framework, in a particular case the apparent seriousness of disciplinary charges and the sanctions that might follow if a charge was found proved might mean that natural justice requires the taking of viva voce evidence. But it does not follow in every case where a serious charge has been laid and a serious sanction may be imposed that evidence must be taken viva voce in order to accord the police member natural justice. The particular circumstances will determine the matter.
[29]Indeed, he did so in Holden’s case, though what occurred in that matter was not part of the material before me in Scott’s case.
In the present case I think it significant that Scott’s advocate at no stage requested Sinclair to take oral evidence. Still less did he identify the persons who should give their evidence in such a way, or say why it was necessary that their evidence should be taken viva voce. Nor again, so far as it appears, did the advocate make any complaint during the hearing itself about failure to call witnesses or inability to conduct oral cross-examination. All he did was to ask whether Mr Sinclair intended to take evidence orally. That enquiry was made well before the hearing; and there is nothing to suggest that it was followed up.
Let it be assumed that Scott’s advocate believed that he could not require Sinclair to take oral evidence. It does not follow that he believed that he could not request the taking of oral evidence from a particular witness or witnesses.
Mr Grace of Queen’s Counsel, who appeared for Scott before me, sought to meet the circumstance that no application had been made for the taking of viva voce evidence at the Sinclair inquiry by submitting that a person cannot waive his right to be accorded natural justice. Let that be assumed. It does not follow that a person’s conduct may nonetheless not be relevant to determining the content of the requirements of natural justice in the circumstances of that person’s case.
I add this: although as I have said the content of the requirements of natural justice must be considered in the circumstances of the individual case, this Court has recognised in the past that failure by a person charged to request the calling of witnesses may be relevant to what natural justice demands in the particular case. See Hartley v O’Loughlin and Ors[30] and Anthony v Sinclair and Ors; Tomlin v Sinclair.[31]
[30][1999] VSC 138 at paragraph 43.
[31][1999] VSC 343 at paragraph 40.
Next consider the way in which Scott’s case was presented at the hearing. I have described it earlier. I think the sound inference is that the course adopted by Sinclair was thought to be compatible with Scott’s best interests. That course facilitated dissection of the statements of key witnesses in a manner which, it might well have been thought, was not likely to have been bettered, as to impact, had those persons given evidence orally. Moreover, it might have been thought to eliminate the risk of an adverse answer in cross-examination – had that been permitted. Again, it meant there was no risk that witnesses favourable to Scott – Cattermole, for example – might be called to give evidence and in doing so not assist Scott.
It is next noteworthy that Scott’s advocate must have been aware, from Ramm's second statement,[32] that Ramm would be overseas at the time when the disciplinary hearing was to proceed. An application might have been made to have Ramm called to give oral evidence. Had such an application been made and granted, a question of adjournment was likely to have arisen. It has not been said for Scott that he was deterred from applying to have Ramm called because he did not wish there to be any delay in the disciplinary hearing. Had such application been made and refused, on the other hand, there would have been material potentially supporting an application of the kind now before me.
[32]Dated 10 May 1999.
I draw attention, further, to the way in which the review application was launched. Nothing was said at the outset about taking evidence viva voce. I have earlier described in some detail Mr Watt’s submission letter of 8 June 2000. I need not repeat that description. Not for another two and a half months was the question of the Board taking evidence raised. The reason for the apparent change of heart remains unexplained. The amending provisions of the Act, which made clear the power of the Board to take oral evidence, commenced in April 2000.
So far I have looked at the Sinclair hearing from the standpoint of what Scott and his advocate did and did not do. It is relevant also to consider the matter from Sinclair’s position. I have already described the wealth of material and submissions with which he was provided. I see no reason why he should have concluded, particularly in the absence of any request on Scott’s behalf, that some witnesses should give evidence viva voce. There is no reason to conclude that, armed with all the material to which I have referred, he should have been of opinion that uncertainties existed which could only be satisfactorily resolved by the taking of viva voce evidence – either with or without right of cross-examination being given to Scott. I do not accept the proposition advanced by Mr Grace that in the circumstances the rules of natural justice compelled Sinclair to identify certain witnesses from whom viva voce evidence should be taken, and to ensure that such persons gave evidence in that way.
Looking at the circumstances by reference to the conduct of Scott, through his advocate, up to and even after the Sinclair hearing, and by reference to the material with which Sinclair was provided in order to carry out his function, I am not at all persuaded that Scott was denied natural justice by the form that the Sinclair hearing took.
I turn to Scott’s complaints concerning the Board. I first consider that there was nothing to counsel's submission that the Board misapprehended its jurisdiction, not understanding that it had the power to conduct a re-hearing do novo.[33] The submission turned on the Board’s reference, in its ruling given on 18 August 2000, to its intention to “review this matter in the usual way”. Counsel pointed out that the amending Act had only then been in operation for a few months. Before that there had been uncertainty whether review could take the form of a re-hearing de novo. The Board’s reference to review in “the usual way”, it was contended, should be understood to refer to its practice under the old, uncertain legislation; and thus to reveal ignorance of its undoubted power under the amended legislation to conduct a re-hearing do novo.
[33]What it was actually asked to do, in fact, was to hear viva voce a few witnesses selected by Scott or his advocate.
I will assume, in the plaintiff’s favour that the ruling forms part of the record of the Board.[34] Given that assumption, I am not prepared to draw the inference. The new legislation had been some months in operation at the time. Reference to “the usual way” could readily refer to a rule of thumb developed in that period. There was no evidence before me that there had not been a sufficient number of Board hearings in that period to develop a rule of practice. If it be said there was no evidence to the contrary, and that be accepted, where does it lead? Nowhere, in circumstances where the plaintiff must make good the facts from which the desired inference could arise.
[34]Whether it was a statement of its reasons for a “decision” within s. 10 of the Administrative Law Act 1978 may in fact be doubted. Whether for other reasons it should be accounted part of the Board’s record need not be considered.
I next refer to the submission made by Mr Grace which began with his noting that the Ruling made no reference to the Board's statutory obligation – see s. 91K – to have regard to the interests of the applicant for review. He contended, as I understood it, that the Board should be taken, wrongly, not to have brought that matter into its consideration, thereby falling into jurisdictional error and/or breaching the rules of natural justice.
In my opinion there was nothing to that submission. It is not the case that failure to mention a particular matter entitles a conclusion that the matter was not brought to account. In the present case, moreover, the ruling, understood in context, by no means suggests any failure to have regard to the plaintiff’s interests.
What, then, of the Board’s refusal to hear witnesses viva voce, communicated by its Ruling of 18 August 2000? I am not at all persuaded that it discloses a failure to accord the plaintiff natural justice. I consider that the reason the Board assigned why it would not hear oral evidence was sound. It would be rare indeed, I think, that oral evidence should be considered necessary on a review hearing where that had not been requested at the initial hearing – whether before or during the hearing; and where no complaint had been made to the hearing officer about failure to call oral evidence, or inability to cross-examine. One would at the very least expect an explanation of the change of heart – in this case a change of heart occurring a considerable time after the initiation of the review proceeding. There is nothing to suggest that any explanation was given in this case.
Apart from the reason given by the Board, I consider that the objective circumstances do not support a conclusion that the plaintiff was denied natural justice by reason that the five persons identified by his advocate on 18 August 2000 were not called. The Board was supplied with all the material which had been provided to Sinclair, a tape or transcript of the Sinclair hearing, and Mr Watt’s submission letter of 8 June 2000. I do not consider that the plaintiff has been shown to have been disadvantaged by a review conducted in the “usual way”. The mere fact that the Sinclair decision was affirmed by the Board could lead the plaintiff nowhere. The identification issue was clearly raised, and weaknesses in Forrest’s second statement, so far as it concerned identification, were patent without his being called. The possible difficulty in Ramm identifying his attacker(s), in light of his well-described intoxication, was also patent without his being called. The identification evidence was important. On Scott’s account he could not have been involved in assaulting Ramm, because he was then restraining Forrest. That was contrary to Forrest's second statement -–a statement which did not lack some indirect support. Other alleged gaps and inconsistencies in the statements of Ramm, Forrest, Chidlow and Carroll were apt to be disclosed by dissection of their statements. Why Dr Collins should have been called is a mystery. It was scarcely a subject of medical expertise to observe that Ramm’s recent injuries could have been attributable both to his being ejected from the Cactus Club, and assaulted, rather than to his simply being assaulted.
What I have said is enough to dispose of the proceeding brought by Scott. I add one matter. Mr R. Taylor of Counsel, who appeared for Sinclair, submitted that if the plaintiff was to succeed he must show that the alleged failure by his client to accord the plaintiff natural justice deprived the plaintiff of the possibility of a successful outcome, either in relation to conviction or penalty. He cited Henderson v Beltracchi and Ors[35]. The same submission could equally apply in the case of the Board.
[35][1999] VSC 135 at paragraph 31.
There is no doubt that in Henderson Mandie J expressed a proposition in the terms to which counsel referred; and that he considered its application in the particular circumstances. But here the plaintiff’s case falls at an earlier hurdle; and neither the proposition nor its possible application need be considered, in connection either with the Sinclair or the Board hearings.
Resolution of Holden’s Proceeding
The application that there be a “thorough re-hearing of the evidence” by the Board in order to examine questions “as to credibility and reliability of witnesses” raised for consideration matters which, in conjunction with the charges laid against Holden and the sanction imposed upon him at the discipline hearing, in some cases would militate in favour of the need to hear witnesses orally on a Board review.
The Board’s Ruling[36] referred to various submissions made on the application by Senior Sergeant Stapleton on behalf of the Chief Commissioner. Some of them were not in point. But those particular submissions seem merely to have been set out as a matter of narrative.
[36]Which as in Scott’s case I will assume that I can examine.
The important submissions made by Mr Stapleton were that all of the witnesses had already given evidence at the committal, the trial and the disciplinary hearing. It would be “unreasonable and unnecessary” for them to be required to give evidence on oath for a fourth time.
The Board said, as I noted earlier, that it agreed with the view put by Mr Stapleton “that such a course would be unreasonable”.
According to a submission made by Mr Grace, the Board confined itself, wrongly, to what would be convenient for the accusers. Hence use of the word “unreasonable”. The Board did not adopt the description “unnecessary”. If the course followed by the Board could be supported, it would be on the latter, not the former, basis.
Let it be assumed for the moment that a distinction should be drawn between Mr Stapleton’s language and the language used by the Board in its Ruling. If the Board had regard to a plainly irrelevant consideration in determining not to conduct its review by way of a re-hearing at which oral evidence was taken, there would be error of law on the face of the record. But I do not accept, in the assumed circumstances, the contention that the Board’s Ruling discloses that it took an irrelevant consideration into account. It was the fact, as the Board was told, that all of the witnesses had given evidence on oath three times; and as well made statements. The Board would have well known, in accordance with established procedures, that it would be provided for review purposes with all the material which had been considered by Sinclair. That material, inevitably, would include the sworn evidence given by the witnesses at the committal, the trial, and the disciplinary hearing; and as well their statements. It could not be supposed that questions as to the credibility and reliability of witnesses had not been relentlessly pursued, albeit not always in the same form, by repeated cross-examination. In saying that it would be unreasonable to have witnesses called it should not be concluded that the Board was simply putting the convenience of witnesses ahead of the importance of the review to Holden.
In the context of a review procedure, the Board being invested with a very substantial freedom to determine its own practice and procedures, I do not think it can be said to be irrelevant for the Board to conclude that there is a point at which it becomes unreasonable to require a person to once more give oral evidence about a particular matter; or, conversely, for the Board to conclude that there is a point at which insistence by a person charged that witnesses again give oral evidence ceases to be reasonable. The Board’s determination whether such a point has been reached could reasonably be influenced by the circumstances in which evidence has in the past been given and the opportunities that there have been for cross-examination. In the present case the Board knew that witnesses had already been tested in the fierce heat of criminal proceedings as well as at the disciplinary hearing; and it had every reason to believe that it would be supplied with the evidence given on those past occasions.
I noted a little earlier that counsel’s argument drew on a distinction between Mr Stapleton’s use of the words “unreasonable and unnecessary” and the Board’s use only of the word “unreasonable”. I have thus far assumed that such a distinction should be drawn. In fact I do not consider that it should. It may fairly be said that it would be unreasonable to call a person to give oral evidence if it is unnecessary that the person be called. I consider it very likely that the Board approached this matter in such a way.
Mr Grace submitted that the Board failed to give proper consideration to Holden’s request that evidence be taken orally. In the main he relied upon the brief Ruling given by the Board against the background of a substantial written submission made by Holden’s advocate why oral evidence should be taken.
I reject that submission. Assuming that it alleged a defect which could be complained of in a proceeding of the kind now before the Court, within the Board’s brief Ruling lay multiple considerations. It could not be concluded, particularly in light of the oral and written submissions made for Holden, that the Board failed to consider, for example, the gravity of the case or the alleged inconsistencies in the evidence of witnesses.
In a related submission Mr Grace argued that the Board must have failed to consider the interests of the applicant on review. See s. 91K. As in Scott’s case, and for the same reason, I cannot accept that submission.
The broad submission made by Mr Grace was, of course, that the Board failed to accord Holden natural justice because it did not call witnesses to give evidence and conduct the review as a re-hearing de novo.
This was a case in which Holden faced serious charges and the sanction of dismissal. It was also a case in which the evidence of the police members who had given evidence at the committal, trial and disciplinary hearing did not in every respect coincide. The fact was highlighted by Holden having been acquitted at trial. Further according to Holden, the evidence of police witnesses did not coincide because some of them had been talked into the accounts which they gave – a matter not put to them at trial, but presumably the subject of questioning at the disciplinary hearing. So, it was said, issues of both reliability and credibility of witnesses arose.
The circumstances which I have just set out provide a reason why the Board might have decided to conduct a re-hearing de novo, and in doing so take evidence on oath. It would not have been wrong for the Board to adopt such an approach. But that is not the question. It is rather whether by not conducting the review in such a way the Board failed to accord Holden natural justice.
I do not consider that there was such a failure. I have already explained why the Board's refusal of Holden's request did not address an irrelevant consideration. Beyond that, faced by Holden’s request the Board had to weigh up the matters running in favour of conducting its review by way of re-hearing de novo and circumstances running counter to conducting the review in such a way. Some of the matters pertinent in the latter connection were in substance addressed by the Board's Ruling: The witnesses had given evidence and been subject to cross-examination on multiple occasions. The Board had transcripts or tapes of those occasions available to it; and statements made by the witnesses. It is further pertinent that such material permitted the Board, as its final decision shows, to closely examine the evidence; and be satisfied for itself of the import and weight of that evidence. It is pertinent, again, that the Board could – as in fact it did – offer Holden and his advocate substantial opportunity to respond orally to the evidence standing against Holden.
All in all, the Board was entitled to be of opinion, before the hearing of the review commenced, that it should not hear evidence viva voce. It was entitled to be of opinion that the plethora of material which would inevitably be supplied to it would provide a sound basis for reviewing Sinclair's decision. It was entitled to be of opinion that the plaintiff and his advocate well understood the case made against Holden and the material supporting that case; and were in a position to respond to that material. It was entitled to be of opinion that it was improbable that a fourth occasion on which oral evidence was taken was likely to provide some new insight into the circumstances of the alleged offence. It was entitled, in all the circumstances, to conclude that it would be unreasonable to have the witnesses called again to give viva voce evidence; unreasonable in part because it would be unnecessary.
I must refer to one further submission advanced by Mr Grace. He argued that the Board’s failure to conduct a re-hearing de novo, in the circumstances of the case, revealed a “fundamental misconception of the approach which must be taken in a review of a decision to terminate a member’s employment”. I understood him to be saying that the Board must be taken not to have understood that it could conduct a review in a number of ways, including by way of re-hearing de novo.
The submission was without foundation. The Board said that it had not conducted a hearing de novo. It does not follow that it did not know that it could do so. What was said rather suggests the contrary. Further, in saying that it had decided that witnesses should not be called the Board implicitly said that it had the power to call witnesses, but that it would not exercise that power in this case.
It follows from what I have said that Holden’s proceeding fails. I add this: A reading of the Board’s substantive decision shows that it gave careful consideration to the written material; and as well gave Holden and his advocate ample opportunity to be heard. It seems to me that Holden was given a conspicuously fair hearing.
Orders
Scott v Sinclair and Anor
(1)Extend the time fixed by R. 56.02(1) of Chapter 1 of the Rules to 15 February 2001.
(2) Judgment for the Defendants.
Holden v The Police Appeals Board
(1) Judgment for the Defendant.
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