Wickham v Commissioner of Police No. Scgrg-97-1499 Judgment No. S6497
[1997] SASC 6497
•23 December 1997
WICKHAM v COMMISSIONER OF POLICE
Miscellaneous Appeals
Olsson J
The appellant, a senior constable of police, appeals against a determination of the Commissioner of Police, dated 24 October 1997, that she be dismissed from the South Australian Police Force.
That determination was the ultimate outcome of a disciplinary charge preferred against her in these terms:
“CHARGE
I, Darryl John Clarke, Superintendent of Police of Adelaide, hereby charge you for that between 13 May 1996 and 27 October 1996 at Whyalla and other places, being an employee of the Force, you acted in a manner which reflected or was likely to reflect discredit on the Force.
Regulation 27(2)(a) of The Police Regulations, 1982.
PARTICULARS OF THE CHARGE
It is alleged that:
1...... On 13 May 1996 you signed an entry form to the Masters Games at Alice Springs indicating your date of birth as 25/4/66 and that you were 30 years of age.
2...... On 29 July 1996 you signed an entry form to the Masters Games at Alice Springs indicating your date of birth as 25/4/66 and that you were 30 years of age.
3...... Between 19 October 1996 and 27 October 1996 you competed in a number of events for persons aged 30 years and over.
4...... As a result of your participation in these events you won 6 gold medals and 2 silver medals.
5...... Your achievements were reported in the local press at Whyalla and Port Augusta.
6...... It was subsequently reported in the press that you had won the medals in events in which you were not entitled to participate because you were too young.
7...... Your actions reflected or were likely to reflect discredit upon the Force.”
The relevant narrative facts giving rise to the charge have never been in dispute.
The appellant was born on 25 April 1969. She was thus 27 years of age as at 25 April 1997. At all material times she was an enthusiastic participant in various sporting activities.
The appellant joined the South Australian Police Force in 1990 and has served in it continuously ever since, except whilst on maternity leave.
So far as I can determine she has had an excellent record of service, which has led to her promotion to the rank of senior constable.
After graduation she served in the Adelaide metropolitan area, performing station duties, general patrol duties and certain community liaison functions.
On 17 December 1995 she and her defacto husband (who is an officer of the CIB) were transferred to Whyalla. Several months later she was selected, over other candidates, for the post of Community Liaison Officer. The material before me suggests that she was successful in that role and well regarded by the local community.
Whilst in Whyalla the appellant was highly involved in netball competitions. She played for the Nomtiki Netball Club, based at Whyalla.
It is clear that, in about April 1996, the appellant was approached by the captain of the Club to play as a member of the netball team to compete in the Honda Masters Games to be held in Alice Springs from 20-26 October of that year. It is equally obvious that, when so approached, the appellant specifically pointed out to the captain that she was less than what she understood to be the minimum age of 30, applicable to participants.
The captain responded to the effect that the Club would be unable to field a full team without her and another under age police officer named Mardi Foweraker.
In her record of interview the appellant told Chief Inspector Phillips (the officer in charge of police at Whyalla) that the captain informed her:
“... that she’d rung the Northern Territory Organisers... in charge of the Masters Games ... and been given some type of permission for us to attend. Basically she said that if you have to do that to get a team together up here, then do it.”
It is of significance that the minutes of the Nomtiki Netball Club Committee Meeting held in March 1996 contain the following entry:
“New People: It was decided that we ask Penny [the appellant] and Mardi to come to Alice with us that would make our A grade team a lot stronger, although they are both not old enough, the group that was there agreed to take them regardless of age. Also Penny’s bloke is coming to play golf.” [The emphasis is mine.]
Although, in speaking to Chief Inspector Phillips, the team captain later sought to distance herself from any suggestion that she spoke to the Games organisers, the Committee minute speaks for itself.
On 13 May 1996 the appellant completed the requisite Games entry form in which she showed her date of birth as 25 April 1966. As the Games extended over a seven day period, she also decided to nominate, in the same entry form, for various athletics track and field events. The appellant told the Commissioner that this was, in fact, a late entry to facilitate participation by the team. A similar form was signed on 29 July 1996, which seems to have superseded the first form. The reason for completion of the second form is not clear to me. It appears to have been something of a formality.
I note that, in her affidavit, the appellant deposed that, as at the time at which she completed the entry form, Chief Inspector Phillips also played netball for the Nomtiki Club and, on several occasions at about that time, the appellant told Phillips of the fact that she was proposing to compete in the Games, although she was under age. Two of those occasions related to seeking approval for leave for the purpose. This assertion has never been denied. The plain inference arising from the content of the unrefuted affidavit is that Phillips well knew of the situation and approved the leave without demur as to what was proposed. He certainly did not counsel her against what she proposed. His later official indignation rings somewhat hollow against that background. The obvious conclusion to be drawn is that he saw no harm or discredit to the police force in the appellant assisting the Nomtiki Club in the manner proposed.
The appellant duly participated in the Games, primarily as a participant in indoor mixed netball, but also in a number of athletic events. The Nomtiki Club won a silver medal in the indoor mixed competition. Somewhat to her surprise the appellant won five gold medals and one silver medal in various athletic events, although, in some cases, she proved to be the only competitor and won automatically. Her success attracted some regional media publicity.
I pause at this juncture to comment that no very specific information was given to me concerning the nature and status of the Honda Masters Games. Copy correspondence in the so-called “Police Brief” indicates that they were organised in Alice Springs by the Northern Territory Department of Sport and Recreation. They appear to have been some regional amateur sporting meeting. As Mr Rau, of counsel for the appellant, submitted, they were certainly not of the status of some nationally organised event, where participants represent Australia. He suggested that they were more of a social type activity. Whether this is fair comment is impossible to say on the evidence. However, without in any sense intending to denigrate the organisers of the event, it seems scarcely possible to conclude that they were of major national importance or significance.
A few days after her return from Alice Springs the appellant was telephoned by Chief Inspector Phillips. He said that a complaint had been received concerning her participation in the Games and that an investigation had been initiated. Some nine days later she was also questioned by him concerning two somewhat trivial matters, one of which related to the use by her de facto husband of a Police four wheel drive vehicle in July 1996, with unauthorised persons on board. No disciplinary steps were ever taken against her on that score, although her defacto husband received some form of administrative caution.
As of 4 November 1996, when Phillips spoke to her, the appellant was restricted to office duties. On 19 November 1996 she was questioned at length by Inspector Perry of the Police Internal Investigation Branch, in relation to her participation in the Masters Games. On 8 January 1997, she was transferred to Para Hills. Her defacto husband was transferred to Adelaide CIB. She was not, at any stage, permitted to resume duty as the Community Liaison Officer at Whyalla.
When questioned by Perry the appellant was frank with him and expressed her contrition at what had occurred. She told him that she was in the process of writing a letter of apology to the Games organisers and proposed to return her medals.
Documentation placed before me by the Crown indicates that the above train of events had been triggered off by an anonymous external telephone complaint received by Chief Inspector Phillips, which asserted that the appellant’s stated Masters Games age and date of birth were false. He therefore referred the matter to Inspector Perry. A memorandum signed by Perry indicates that his Branch “assumed responsibility” for the investigation on 1 November 1996. By memorandum dated 29 November 1996, Perry formally recommended that the appellant be charged with a breach of Regulation 27(2)(a) under the Police Act 1952. On 6 December 1996 the Deputy Commissioner approved that recommendation and gave a direction to charge pursuant to Regulation 31(1)(a).
On 30 December 1996 the appellant was formally charged with a breach of regulation 27(2)(a) of the Police Regulations 1982, in the form which I have already recited. The documentation was served on her on 7 January 1997. By then, or shortly thereafter, the appellant actually returned the medals which had been awarded to her and tendered a written apology to the relevant Masters Games officials.
She later pleaded guilty to the charge against her and detailed submissions in mitigation of penalty were tendered to the Commissioner on her behalf.
(Her plea of guilty followed certain dialogue which had been conducted between an officer of the Police Association of South Australia and then acting Deputy Commissioner John Murray who, it is asserted on oath, indicated, without giving any undertaking, that if such a plea was entered, he did not view the breach as one requiring dismissal from the Force. That assertion has not been refuted on oath.)
It is also to be observed that, in an official memorandum dated 21 January 1997, sent to the appellant by the acting officer in charge of the Human Resource Management Branch, it was, inter alia, indicated that:-
“As a result of these factors, other matters currently before Internal Investigation Branch, and the need to decisively resolve the complexities arising from the current circumstances Acting Deputy Commissioner Murray has:
......... sought to have IIB expedite the matters pertaining to you and Senior Constable Niblett as soon as practicable
......... indicated that any disciplinary action ultimately taken be considered having regard to your personal circumstances.”)
.................. Notwithstanding the submissions made to him the Commissioner ultimately opted for dismissal. In his recommendation to the Minister for adoption of that course he made these points:
“Senior Constable Wickham has pleaded guilty to acting in a manner which reflected, or was likely to reflect, discredit on the Force when she won eight medals in the Masters Games at Alice Springs by giving a false date of birth which entitled her to compete in an age group older than what she was. This was clearly a dishonest act and severely affects the integrity of the member concerned. Her behaviour reflects badly upon herself and, if she is retained as a member, also reflects adversely on the integrity of the South Australian Police. This matter is of such a serious nature that I consider she should be dismissed. Without dismissal the public’s confidence in the South Australia Police and the legal process will be seriously undermined. In addition, Senior Constable Wickham’s retention as a member would be quite inconsistent with the view of the New South Wales Royal Commission that members should not be retained where the Commissioner has lost confidence in them to such an extent that they are unable to carry out their function as a police officer. In particular, Wickham could not give evidence in court proceedings where the case relied upon her credibility.
Accordingly, I have decided to recommend dismissal of Senior Constable Wickham from the Police Force pursuant to Section 28(1)(a) of the Public Regulations, 1982. I seek your approval for dismissal in accordance with this regulation.”
The file record of the Police Disciplinary Tribunal reveals that it received the charge against the appellant on 3 January 1997. It was scheduled for mention before the Tribunal on 7 February.
On 13 March 1997 the Tribunal recorded notification of a plea of guilty and remitted the matter to the Commissioner for consideration of penalty. The Police Association submitted a detailed letter of submissions as to penalty to the Commissioner. This was dated 19 March 1997.
An inexplicable delay of some six months then occurred. The appellant was continued on normal duties and no action was taken by the Commissioner. No reason for that delay has ever been forthcoming. In practical terms it no doubt reinforced the appellant’s understanding that possible dismissal was not under consideration. Eventually, on 12 September 1997, the appellant was summoned to appear before the Commissioner on 10 October 1997. The matter was thereafter dealt with with reasonable dispatch.
The stance of the Commissioner falls to be examined in light both of the facts already summarised by me and some additional material.
The Commissioner had before him a comprehensive report from her present station sergeant. This is expressed in almost glowing terms and indicates virtual exemplary performance of her current duties.
It is to be borne in mind that, at all stages, the appellant was quite open in divulging the issue of her age both with her Club and Phillips. The initiative to do what she did was, in essence, not hers, but that of the Club; and, as I have said, Phillips did not see it necessary to counsel her against what was proposed. He, obviously, did not consider what was proposed to be a matter of grave concern to the police force. The incident was entirely related to her sporting activities and the misstatement was never intended to result in personal gain or advantage to her. Even the possibility of winning medals had not been contemplated by her. Her conduct had no direct nexus with her employment and, with all due respect to the Commissioner, did not reflect dishonesty in the generally accepted sense of seeking to gain an illicit benefit for herself. That never entered her mind. It is fair to infer that nothing would have been made of the occurrence had it not been for the subsequent media coverage of the situation. Certainly, as the Commissioner himself noted, the appellant had no intention of acting dishonestly, although he seeks to criticize her for not recognizing at the time, that a form of dishonesty was involved.
Against that background the appellant now appeals against her dismissal pursuant to the provisions of Section 46 of the Police (Complaints and Disciplinary Proceedings) Act 1985, (“the Act”). These read as under:
“Appeal against decision of Tribunal or punishment for breach of discipline:
46. (1) A party to proceedings before the Tribunal may appeal to the Supreme Court against a decision made by the Tribunal in those proceedings.
(2) A member of the Police Force may appeal to the Supreme Court against an order of the Commissioner imposing punishment on him or her for a breach of discipline.
(3) Subsection (2) applies -
(a) whether the charge for the breach of discipline was laid in consequence of the investigation of a matter to which this Act applies or otherwise; and
(b).. whether the order imposing the punishment was made on the member being found guilty of the breach of discipline by the Tribunal or on the member making an admission of guilt to the Commissioner.
(4) An appeal under this section must be instituted within one month of the making of the decision or order appealed against, but the Supreme Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal be instituted within that period.
(5) Where the Commissioner has made an order imposing punishment on a member of the police force and the Commissioner or the Supreme Court is satisfied that an appeal against the order has been instituted, the Commissioner or the Supreme Court may suspend the operation of the order until the determination of the appeal.
(6) Where the Commissioner has suspended the operation of an order under subsection (5), the Commissioner may terminate the suspension, and where the Supreme Court has suspended the operation of an order under subsection (5), the Supreme Court may terminate the suspension.
(7) The Supreme Court may on the hearing of the appeal, exercise one or more of the following powers, according to the nature of the case:
(a).... affirm, vary or quash the decision or order appealed against or substitute, or make in addition, any decision or order that should have been made in the first instance;
(b).... remit the subject matter of the appeal to the Tribunal or the Commissioner, as the case may be, for further hearing or consideration or for rehearing or reconsideration;
(c).... make any further or other order as to costs or any other matter that the case requires.
........................... The specific grounds of appeal relied on are couched in these terms:
“(1).. That in all the circumstances the punishment was manifestly excessive.
(2).... That the Commissioner of Police erred in imposing any punishment at all or in failing to take into account:
(2.1).......... That the appellant had already been punished for this breach of regulations by Deputy Commissioner Hurley who on the 6th day of December 1996 transferred the appellant from Whyalla to Adelaide.
(2.2).......... That the appellant had already been punished for this breach of regulation by her then Officer in Charge, Chief Inspector Phillips who on the 6th November 1996 reduced the appellant’s duties, and who on the 23rd December 1996 demoted the appellant from her position as Community Liaison Officer.
(2.3).......... That the Appellant had already been punished for this breach of regulation by the humiliating media coverage she received.
(2.4).......... That the punishment imposed was inappropriate given that the appellant had informed her then Officer in Charge of her involvement in the Masters Games despite her age, prior to attending, and no objection had been raised.
(3).... That the Commissioner of Police erred in failing to take into account adequately or at all:
(3.1).......... The appellant’s prior record with the Police Force and in particular no previous breaches of regulations in 8 years of service.
(3.2).......... The appellant’s plea of guilty.
(3.3).......... The appellant’s contrition including her apology to the organizers of the Masters Games.
(3.4).......... That this breach of regulation occurred whilst the appellant was not on duty.
(3.5).......... The Appellant’s full and frank admissions made during the record of interview conducted by Inspector Perry of the Internal Investigations Branch on the 19th November 1997.
(3.6).......... The Appellant’s early plea of guilty.
4.That the punishment imposed was against the weight of submissions of:
(4.1)The Police Association
(4.2)The appellant
(4.3).......... The appellant’s current Officer in Charge, Sergeant Stephen Maurice Reid.
5That the Commissioner of Police erred in taking into account matters unrelated and irrelevant to the breach of regulations, in particular:
(5.1).......... The alleged breach of regulations by the appellant’s defacto husband for which neither the appellant nor her defacto husband were charged.
(5.2).......... Newspaper articles in relation to the appellant.
(6)That the punishment was inappropriate given the passage of time from the date of dismissal on the 24th October 1997 to:
(6.1).......... the commission of the offence between the 20th and 26th October 1996,
(6.2)the conclusion of the investigation in December 1996,
(6.3).......... the 21st January 1997 when the appellant had been informed by Inspector Truman that Acting Deputy Commissioner Murray has sought to have the matter expedited,
(6.4)the 19th March 1997, the date of the Appellant’s first formal notification of her plea of guilty.
(7)The Commissioner has erred in law in his failure to provide reasons for his decision to the appellant.
(8)Given the definition of the word ‘conduct’ in section 3 of the Police (Complaints and Disciplinary Proceedings) Act 1985 there has at no time been jurisdiction to receive, consider, investigate, charge, convict or impose penalty in the circumstances of the case pursuant to the provisions of the Act.”
I propose, before addressing the issues arising on the appeal, to give some initial consideration to the broad scheme of the Act. I am unaware of any previous appeal to this court pursuant to its provisions.
As its title implies, the Act primarily directs its attention to the mode by which externally generated complaints and disciplinary proceedings against police officers are to be processed. When a police officer detects a disciplinary breach on the part of another member of the Police Force a quite separate process is provided by the Regulations under the Police Act 1952.
The Act recognises or creates four separate entities, namely the Commissioner of Police (“the Commissioner”), The Police Internal Investigation Branch (“IIB”), the Police Complaints Authority (“the Authority”), and the Police Disciplinary Tribunal (“the Tribunal”).
It establishes a regime for the investigation of externally generated complaints made about “the conduct of a member of the Police Force”. The respective roles of the IIB and the Authority and the necessary interaction between the two are specifically spelt out.
I note that section 3 of the statute defines the word “conduct” , for the purposes of the Act, as meaning:
“(a) an act or decision of a member of the police force; or
(b).... failure or refusal by a member of the police force to act or make a decision,
in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside the State, of a power, function or duty that he or she has as, or by virtue of being, a member of the police force;”.
The section further defines the phrase ‘breach of discipline’ as being a breach that may be the subject of a charge by the Commissioner under the Police Act 1952.
.................. It is at once apparent that the relevant conduct of the appellant could not have been the subject of a proper external complaint, or an investigation of such a complaint, pursuant to the Act because it had nothing whatsoever to do with the exercise, performance or discharge, or purported exercise, performance or discharge of any power, function or duty as a member of the Police Force. To the extent that it could fairly be argued that the matter was apparently processed as a complaint, such procedure had no warrant under the Act.
.................. Be that as it may, section 39 of the Act stipulates that where, in accordance with the Police Act, 1952, the Commissioner charges a member of the Police Force with a breach of discipline and the member does not make an admission of guilt to the Commissioner, the proceedings on the charge are to be heard and determined by the Tribunal. This is so whether a charge is laid in consequence of the investigation of a matter to which the Act applies, or otherwise.
.................. However, the Act contemplates that, if and when guilt is established (either by plea or finding) the matter is to be remitted to the Commissioner for imposition of punishment. That is what was done in the instant case.
.................. Section 22 of the Police Act 1952 confers power on the Governor to make regulations prescribing matters (inter alia) with respect to the maintenance of good order, discipline and efficiency in the Police Force. That section also authorises the making of regulations:
“(h)empowering the Commissioner to make an order punishing a member of the police force guilty of a breach of the regulations (whether guilt is established by an admission made to the Commissioner or by a finding of the Police Disciplinary Tribunal) -
(i)..... by dismissal with, in the case of a commissioned officer, the approval of the Governor or, in the case of any other Member of the Police Force, the approval of the Minister; or
(ii) by suspension without pay; or
(iii).. by transfer to a position that attracts a lower rank, or by reduction in seniority (or both); or
(iv) by temporary reduction in pay, but so that the total amount forfeited does not exceed $150; or
(v).... by reprimand;”.
Regulation 30 establishes a specific process, different from that under the Act, for dealing with situations in which an employee of the Force becomes aware of circumstances where it is reasonable to suspect the commission of a breach of the Regulations by another officer.
That regulation is expressed as under:-
“30.(1) An employee of the Force who is aware of circumstances where it is reasonable to suspect the commission of a breach of these regulations shall promptly report those circumstances to a commissioned officer.
(2) The Commissioner shall cause every report indicating that any such breach has been or may have been committed to be investigated by a commissioned officer.
(3) The investigating officer shall obtain or cause to be obtained information from persons knowing the relevant facts and forward such information with any comments to the Commissioner, who, if he deems proper, may cause a charge to be laid against an employee of the force.
(4) ...
(5) ... “
There is an interface between this regulation and section 13 of the Police (Complaints and Disciplinary Proceedings) Act 1985. As I have earlier pointed out, the primary pre-occupation of the Act is with externally generated complaints concerning the conduct of police officers in the exercise, or purported exercise, of their official functions. However, section 13(2) stipulates that, in addition to carrying out investigations under the Act, the IIB may carry out such investigations in relation to the conduct of members of the police force as may be required by the Commissioner.
I do not agree with Ms Lee-Justine, of counsel for the respondent, that an investigation of an alleged offence being processed necessarily has “to be registered” with the Authority under sections 16 or 18 of the Act. They specifically advert to complaints to which the Act applies.
On the other hand I do agree that all disputed charges against a police officer, however generated, must be heard and determined by the Police Disciplinary Tribunal (section 39).
In an affidavit sworn by him for the purposes of this appeal the Commissioner deposes that, in accordance with established practices of his predecessor, all complaints about the conduct of police officers are investigated by the IIB, regardless of whether the conduct complained of occurred whilst on or off duty.
Ms Lee-Justine asserted that it was obvious that this matter was processed under the Police Regulations, and not under the Act, because it was never reported to the Authority.
With all due respect to her that is far from obvious. As with some other aspects, I have no more than a statement from the bar table that such was the situation. As against that there is the positive evidence that the initiating complaint was made by some person external to the police force.
Whilst I am prepared to deal with this matter on the footing that, on all of the information now available to me, the investigation probably did go forward on a Regulation 30 basis, it seems to me that the situation is most untidy. It is obvious that future arguments as to the jurisdictional validity of police complaints processes will re-occur unless, at the outset, the investigation file is annotated as to the basis on which it is opened.
Another issue which must be addressed in limine is as to the type of the proceeding before me. The Act merely establishes a right of appeal, without spelling out the nature of that process. It invests me with wide powers, as above recited.
The first point to be made is that the “appeal” arises in a relatively unique setting. The Commissioner is, in military parlance, the commanding officer of a uniformed, disciplined force having para military characteristics. However, in the case of non-commissioned officers, he is also their employer (section 11, Police Act 1952) and, subject to any specific directions of the Governor, has the sole control and management of the police force (section 21). If, for disciplinary reasons, he desires to dismiss a non-commissioned police officer, he must first seek the approval of the Minister.
It may fairly be said that Regulation 30 does not erect the Commissioner into some form of Tribunal. It merely mandates a form of natural justice process. (Cf Koh v State of South Australia and Fricker (1989) 154 LSJS 38 at 43 (“Koh”)). In the event of a plea of not guilty to a charge, guilt or innocence is determined by the independent Tribunal established under the Act for that purpose (section 39). If guilt is established, either by plea or a determination of the Tribunal, the matter is then remitted to the Commissioner for the imposition of punishment.
At that point the Commissioner proceeds to determine punishment in his capacity as the commanding officer of the force and employer of the officer.
So it is that the “appeal” provided for by section 46 is not an appeal, in the traditional sense, from a decision of a judicial or quasi judicial tribunal, but is a direct review, by way of appeal, of the action of an employer. It thus has overtones which are as much industrial in nature as they are legal. Moreover, this situation renders the reasoning in authorities such as Builders Licensing Board v Sperway Constructions Pty Ltd and Anor (1976) 135 CLR 616 (“Sperway”), T v The Medical Board of South Australia (1992) 58 SASR 382, Chan v The Medical Board of South Australia (1986) 41 SASR 434, Wigg v Architects Board of South Australia (1984) 36 SASR 111 (“Wigg”) of limited relevance and assistance.
Of those authorities perhaps that which is of most assistance for present purposes is Sperway. Whilst the Act does not speak of the appeal as being by way of rehearing, SCR 97.17 stipulates (in effect) that all miscellaneous appeals shall be by way of rehearing. However, whilst this connotes that the appeal is to go forward not as an appeal stricto sensu and extends to fact as well as law, such a provision does not automatically mean that the court is required to undertake a rehearing de novo.
In this regard some assistance is to be gleaned from Sperway at 621-2, where Mason J, as he then was, said:-
“Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. Despite some suggestion in argument to the contrary, I do not read Ex parte Australian Sporting Club Ltd.; Re Dash (1947) 47 SR (NSW) 283 as enunciating such an absolute rule. There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo ... The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.
On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.
But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which is the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.”
In the instant case there is a plethora of indicia which tend to point to the first category.
It has never been suggested that I am confined to the materials before the Commission - in fact, a certain information has been placed before me, not all of which was before him.
There is no statutory provision for a hearing before the Commissioner, no right to legal representation and no requirement for a record to be made of any proceedings before him. Regulation 32 does no more than require the Commissioner to consider “any matters submitted by the member by way of mitigation”. His determination is of a summary, administrative nature.
Certainly the Commissioner is not bound to apply the rules of evidence and no formal inter partes process is necessarily involved. There is no legal requirement for him to furnish reasons for decision to the officer.
In such circumstances it seems to me that there are irresistible arguments in favour of the proposition that, almost inevitably, the appeal must be by way of rehearing de novo. (See also the comment of King CJ in Bell Pty Ltd v Motor Fuel Licensing Board (1988) 146 LSJS 71 at 77.9 and his reasoning in Koh at 43-44.) As Cox J pointed out in Wigg at 113 the consequence of a conclusion that an appeal is by way of rehearing de novo is that, technically, the judge who hears the appeal will determine the question for himself upon the material before him, and will not be limited in any way by the decision appealed against.
Whilst that is the legal situation the appellate court does not and cannot deal with the matter in a vacuum. Furthermore, as was pointed out in In re Flinders Trading Co Pty Ltd (1977) 20 SASR 14, in such a context, the court ought to consider and give appropriate weight to the views of the Commissioner. In so doing it is necessary to bear firmly in mind that the Commissioner, in exercising disciplinary powers, is fairly entitled not only to look to the internal maintenance of good order, discipline and efficiency within the police force, but also to the need to ensure that all reasonable steps are taken to ensure the good standing of the force in the eyes of the community. No doubt he is entitled, in wake of the recent Royal Commission in New South Wales, to be particularly sensitive in ensuring that police officers so conduct themselves that the force is not brought into public disrepute. Indeed, this clearly loomed large in his mind as a consideration, when one reads his minute dated 17 October 1997 addressed to the Minister for Police. He there asserted:-
“Senior Constable Wickham has pleaded guilty to acting in a manner which reflected, or was likely to reflect, discredit on the Force when she won eight medals in the Masters Games at Alice Springs by giving a false date of birth which entitled her to compete in an age group older than what she was. This was clearly a dishonest act and severely affects the integrity of the member concerned. Her behaviour reflects badly upon herself and, if she is retained as a member, also reflects adversely on the integrity of the South Australian Police. This matter is of such a serious nature that I consider she should be dismissed. Without dismissal the public’s confidence in the South Australian Police and the legal process will be seriously undermined. In addition, Senior Constable Wickham’s retention as a member would be quite inconsistent with the view of the New South Wales Royal Commission that members should not be retained where the Commissioner has lost confidence in them to such an extent that they are unable to carry out their function as a police officer. In particular, Wickham could not give evidence in court proceedings where the case relied upon her credibility.”
In a file note more recently made by the Commissioner, he also expressed himself in these terms:-
“In fixing an appropriate penalty, I took into account the transfer of Senior Constable Wickham from Whyalla and the effect of this on both her and her family, her personal family situation, her plea of guilty, the fact that she had apologised, and her work performance, both before and after the discipline offence was committed.
I consider that the offence was one of dishonesty, an offence which strikes at the heart of policing, particularly if property or other advantage is obtained. It is an offence which affects integrity and credibility, not only of those involved, but also of SAPOL overall. The knowledge by the community that SAPOL has or accepts dishonest members could only reduce the confidence the community would have in the services provided by SAPOL. On an individual basis, it significantly reduces the ability of a police officer to operate effectively, for example, in exercising authority, giving evidence in court, or interacting with the community.
I took into account all matters in Senior Constable Wickham’s favour, but was not able to find that the basic proposition referred to above was sufficiently mitigated to warrant the continued retention of her service.
I considered the appropriate penalty was dismissal from SAPOL.”
It seems to me that the practical question to be posed and answered on this appeal is whether, on objectively viewing the offending conduct in its proper perspective, it could fairly be said that such conduct mandated the extreme sanction of dismissal from the police force. In answering that question it is important to remember that, as in any sentencing environment, it is quite inappropriate to single out an individual and make an example of them, if the inherent seriousness of the conduct complained of does not independently justify the course taken. I am frankly left with the impression, on studying the material before me, that, in the wake of the New South Wales Royal Commission, some element of that type has crept into the decision making process in this case. It is a fundamental proposition that any punishment imposed must have been proportionate to the offence, given due regard to those special considerations applicable to service in the police force.
At the end of the day a number of considerations loom large in a consideration of this matter. Salient amongst them are:-
The conduct complained of related to the private activities of the appellant and not to any shortcoming in the discharge of her official duties. Her past and recent standard of performance of duty has been of a high order.
If conduct of a private nature is to be relied upon as a warrant for dismissal from the force then, as a matter of logic, it must be of such a heinous type as, manifestly, to render it untenable that the perpetrator of it be retained in the force. Normally that will involve conduct amounting to serious immorality, dishonesty or irresponsibility patently inconsistent with the desirable character of a police officer - which would be perceived as such by a fair minded member of the public aware of the relevant facts.
In the instant case the relevant conduct was not initiated by the appellant. When she was asked to assist she did not perceive that it involved any significant dishonesty, in the generally accepted sense of that expression. She at all times disclosed her situation and raised the question of eligibility. She understood that no objection would be taken, despite the formal rules. Her participation in individual events was merely prompted by the view that it would be fun to participate, as she was attending the games in any event. Her second entry form appears to have been no more than a confirmation of the first. In reality it was not a separate, new representation.
The appellant’s conduct was never motivated by considerations of obtaining any benefit (either tangible or intangible) for herself. It was not a case of falsity for the sake of personal gain. On the contrary, her participation in the games was simply a response to a community request for assistance. That it was ill advised is another issue.
Her perception was obviously shared by Chief Inspector Phillips, her officer in charge. In full knowledge of what was proposed he actually granted her leave to participate. [Contrary to what was said by Ms Lee‑Justine, I did not put it to her arguendo that this amounted to formal condonation by the force of what took place. What I did suggest is that it indicates that no-one thought at the time that what was in contemplation was the heinous “crime” now suggested by the Commissioner. If the proposed conduct was so serious as to be inconsistent with continued service in the force then one wonders why the Chief Inspector did not counsel against it and why he actually facilitated the offence by granting leave to the appellant. She was fully entitled, in those circumstances, to believe that her proposed conduct was not profoundly offensive to her status as a police officer.]
When the matter became the subject of the anonymous complaint, the appellant readily co-operated with her superior officers, displayed immediate contrition, apologised to the Games organisers and returned her medals.
There is no evidence of substance of the occasioning of irreparable harm to the force. Indeed the only relevant material before me suggests that the appellant continued to enjoy local public support.
At the end of the day it appears to me to be a substantial over-statement to say that, absent the dismissal of the appellant, the confidence of the public in the force “will be seriously undermined”. I venture to suggest that the average fair minded of the public would regard the whole situation which has developed as somewhat of a storm in a teacup. To argue that the appellant could never, hereafter, give evidence in court proceedings where the case relied upon her credibility carries with it a note of considerable unreality. Moreover, her performance report since transfer to Para Hills portrays her as an excellent police officer, who is an asset to the station.
Equally, I am left with the clear assessment that, contrary to what he now avers, the Commissioner did not give adequate weight to proper matters of mitigation. These included:-
. her excellent service record;
. the fact that the offending conduct was totally out of character;
.the de facto “punishment” occasioned both by her compulsory transfer from Whyalla to Adelaide and the substantial, embarrassing and (I am constrained to say) somewhat undue and unfair media attention which this case has attracted. [This has continued even during the present appeal proceedings.];
.her personal family situation and the effect of stress on her;
.her frankness, co-operation and obvious contrition, evidenced in the manner earlier referred to;
.the almost implicit sanction by her Chief Inspector of what she proposed and the failure to counsel her against it;
.the reasonable expectation generated by the interchange between the Association and acting Deputy Commissioner Murray and the totally inexplicable delay of some six months in imposing any penalty on her following her plea of guilty and presentation of cogent submissions in mitigation.
In the lastmentioned regard I do not consider the Commissioner’s delay in dealing with the matter as being other than inconsistent with the approach expected of a fair and just employer.
Ms Lee-Justine submitted that the industrial principle of condonation adverted to by Cook J in In re Clarke and Metropolitan Meat Industry Board (1967) AR 16 (“Clarke”) has no application to a situation such as that now before me, because this was not a summary dismissal case.
The point made by Cook J in Clarke was that, as a matter of logic, the industrial concept of condonation could scarcely be relevant to a situation in which an employer, on becoming aware of some level of misconduct on the part of an employer opted for a common law termination on due notice to an employee, rather than purport to exercise a claimed right of summary dismissal.
So far as the Commissioner is concerned, summary dismissal, in the common law sense, is not a true option, because of the statutory procedures imposed on him.
However, that is not to say that the well entrenched common law principle of condonation has no relevance in relation to a proper industrial assessment of the fairness and appropriateness of the Commissioner’s conduct in this case.
It has long been held, in the industrial jurisdiction, that an employer who asserts misconduct by an employee which warrants disciplinary dismissal is bound to exercise the right of dismissal within a reasonable time after the offending conduct comes to notice. If this is not done and the employer continues the offender in employment, then this is viewed as industrial condonation by waiver of the offending conduct, i.e. the continuance in employment for a significant period of time is considered inconsistent with a situation in which the offending conduct continues to constitute an operative basis for asserting that the offending conduct is inconsistent with continued employment. (See the discussion as to the conceptual basis warranting disciplinary dismissal in Martin v The State of South Australia (1982) 49 SAIR Pt 2 269 at 281-2.)
I emphasize that I am not indicating that the industrial principle can have direct application to a matter before the Commissioner. What I am suggesting that it is a long established concept which can usefully be resorted to in testing the appropriateness of what has been done in a particular case.
In the case at bar one important consideration must also surely be that, given the background of the interchange with acting Deputy Commissioner Murray, the transfer of the appellant to Para Hills, and the otherwise inexplicable failure of the Commissioner to pursue the matter for six months whilst she continued normal police duties is utterly inconsistent with the view that he now expresses that her conduct so attacked the integrity of the police force that it is untenable to retain her as a member of it. Effectively, the offending conduct was, to employ the expression used in Re Hollingsworth (Connor C, Industrial Relations Commission of New South Wales, 3 October 1997, Matter IRC 2827 of 1995, unreported), “stale” by the time at which he decided to deal with it.
Whilst no thinking person would seek to deny the validity of the Commissioner’s obvious desire to maintain the highest possible profile of rectitude for the police force, I cannot escape the ultimate conclusion that what was done in this case was both unfair to the appellant and significantly disproportionate to the level of her offending conduct. It paid scant regard to the substantial factors of mitigation identified on her behalf and the “staleness” of the offence and, in my assessment, constituted a serious over reaction to what she did, when her actions are objectively viewed in context. Although that is not the test applicable in this case it must be said that, in the general industrial jurisdiction, the dismissal would, in the circumstances, undoubtedly be characterised as harsh, unjust and unreasonable, given the matters which I have identified.
Even making due allowance for the unique nature of the police force and the high standards which ought to pertain to service in it, the Commissioner, as an employer, ought, in my opinion, to observe the basic canons of general industrial approach, which are considered appropriate in all areas of employment. They are, of course, a reflection of current community standards of fairness and decency in employer/employee relations.
In this case I have no hesitation in allowing the appellant’s appeal and setting aside the dismissal complained of. It was simply too draconian in the circumstances and failed to recognise the practical punishment already endured by Senior Constable Wickham, as above outlined.
On the other hand, I by no means unduly minimize the fact that what the appellant did was, as she obviously now recognises, wrong and inappropriate - particularly having regard to her status as a police officer. However innocent her intentions may have been, her conduct has attracted adverse publicity for the police force, as well as herself. It was more than a trivial lapse on her part and must attract a formal punishment which indicates positive censure and disapproval of her conduct and renders it apparent to other police officers that such conduct will not be tolerated.
Despite the de facto punishment already endured I consider that it is incumbent on me to substitute for the penalty originally imposed one which adequately recognises the culpability of the offending conduct. In my opinion that conduct mandates a penalty of suspension without pay for a period of three calendar months, effective forthwith. There will be an order to that effect.
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