Wickham v Commissioner of Police No. Scgrg-97-1499 Judgment No. S6652
[1998] SASC 6652
•6 May 1998
WICKHAM v COMMISSIONER OF POLICE
Full Court
Coram: Matheson, Prior and Debelle JJ
Matheson J
On 24 October 1997 the respondent, a senior constable of police, was dismissed from the South Australian Police Force by the Commissioner of Police ("the appellant"). She had pleaded guilty to a charge that "between 13 May 1996 and 27 October 1996 at Whyalla and other places, being an employee of the Force, [she] acted in a manner which reflected or was likely to reflect discredit on the Force", contrary to Regulation 27(2)(a) of The Police Regulations 1982. Particulars of the charge against the respondent stated:
"PARTICULARS OF THE CHARGE
It is alleged that:
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.
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.
Between 19 October 1996 and 27 October 1996 you competed in a number of events for persons aged 30 years and over.
As a result of your participation in these events you won 6 gold medals and 2 silver medals.
Your achievements were reported in the local press at Whyalla and Port Augusta.
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.
Your actions reflected or were likely to reflect discredit upon the Force."
The respondent was born on 25 April 1969, and was thus aged only 27 on the dates referred to in the particulars. During the dates charged, she was stationed in Whyalla and was Community Liaison Officer. On the dates that she actually competed she was on leave. At Whyalla she was highly involved in netball competitions. The learned judge at first instance said:
"It is clear that, in about April 1996, the [respondent] 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 [respondent] 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 [respondent] 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 respondent] 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. ... [His Honour then referred to the respondent’s completion of the two entry forms referred to in the particulars, and continued]
I note that, in her affidavit, the [respondent] 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 [respondent] 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 [respondent] assisting the Nomtiki Club in the manner proposed.
The [respondent] 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 [respondent] 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 [respondent], 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."
The respondent successfully appealed from the order of dismissal to the Supreme Court. The learned judge set aside the order of dismissal and substituted an order that she be suspended without pay for three months. He ordered the appellant to pay the respondent’s costs which he fixed at $150. The appellant now appeals against the learned judge’s order setting aside the order of dismissal. The respondent cross appeals against the order as to costs.
The Alternative Contention
By notice of alternative contention, the respondent contends that the judgment should be upheld on the following additional ground:
"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."
The respondent had included such a ground in her first appeal to a single judge.
It is convenient to deal with the alternative contention first, and for that purpose it is necessary to look at certain provisions in two statutes that bear on police discipline. They complement each other, but in a manner that is not, I regret to say, as clear as it might be.
I propose to start by quoting the relevant provisions of the Police (Complaints and Disciplinary Proceedings) Act 1985 ("the PC and DP Act"). Section 3 thereof contains the following definitions:
"‘breach of discipline’ means a breach that may be the subject of a charge by the Commissioner under the Police Act 1952;
‘conduct’ of a member of the police force means -
(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; ..."
Section 4 provides:
The provisions of this Act are in addition to and do not derogate from the provisions of any other law."
Section 5 provides for the appointment of a person to be the Police Complaints Authority, and the Authority’s role in relation to complaints and investigations is set out in Part 4 of the Act.
Section 13 provides:
(1) The Commissioner must constitute within the police force a separate branch to carry out investigations under this Act in relation to the conduct of members of the police force.
(2) In addition to carrying out investigations under this Act, the internal investigation branch may carry out such other investigations in relation to the conduct of members of the police force as may be required by the Commissioner."
Section 37 provides for a Police Disciplinary Tribunal to be constituted by a Magistrate, and s39 provides as follows:
(1) 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.
(2) Subsection (1) applies whether the charge is laid by the Commissioner in consequence of the investigation of a matter to which the Act applies or otherwise.
(3) Where the Tribunal is satisfied beyond reasonable doubt that the member committed the breach of discipline with which he or she is charged, the Tribunal must make a finding that the member is guilty of the breach of discipline and remit the proceedings to the Commissioner for the imposition of punishment on the member in accordance with the Police Act 1952.
(4) The Tribunal may, when remitting proceedings to the Commissioner under subsection (3), indicate to the Commissioner the Tribunal’s assessment of the seriousness or otherwise of the breach of discipline of which the member has been found guilty and, in that event, the Commissioner must, when making his or her determination as to punishment, have due regard to the Tribunal’s assessment."
The other statute is the Police Act 1952. Section 21 provides that subject to that Act and the directions of the Governor, the Commissioner of Police has the control and management of the police force. Section 22 provides, so far as it is material:
The Governor may make regulations prescribing any matters necessary or convenient for the administration of this Act and for the regulation, control and management of the police force and in particular and without limiting the general powers under this section, regulations with respect to all or any of the following matters:
(a) to (c) ...
(d) the maintenance of good order, good conduct, discipline, and efficiency in the police force;
(e) empowering the Commissioner to institute proceedings for breaches of the regulations by laying charges against members of the police force;
(f) the procedures for laying such charges against members of the police force and for requiring members so charged to make an admission or denial of guilt to the Commissioner;
(g) empowering the Commissioner to suspend with or without pay any member of the police force or police cadet charged with any offence against this or any other Act or with any breach of the 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) -
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
by suspension without pay; or
by transfer to a position that attracts a lower rank, or by reduction in seniority (or both); or
by temporary reduction in pay, but so that the total amount forfeited does not exceed $150; or
by reprimand;
(i) - (q) ..."
The respondent was charged under Regulation 27 of the Police Regulations. That regulation covers misbehaviour not in the course of duties. The relevant part of the regulation reads:
An employee of the Force shall be guilty of a breach of these regulations if the employee commits any of the offences set out below:
(1) ...
Discreditable Conduct which offence is committed where such employee -
(a) acts in any manner, whether by word, conduct or omission which is prejudicial to good order and discipline in the Force, or which reflects or is likely to reflect discredit on the force, or
(b) and (c) ...
Regulation 28 deals with penalty. It states:
(1) If a member is guilty of an offence against the Act or any other Act or a breach of these regulations the Commissioner may punish that member by:
(a) dismissal, provided that in the case of a commissioned officer he has the approval of the Governor or, in the case of any other member of the Police Force, the approval of the Chief Secretary;
(b) suspension without pay for a specified period;
(c) reducing the member in rank or seniority or both, or order that the member upon being eligible for promotion within the meaning of Regulations 43 or 45, that the promotion of that member be deferred for a specified period. Provided that in the case of reduction in rank or seniority or both -
the Commissioner shall nominate a specified position in the seniority list; and
such reduction shall be absolute and not for a determined period; and
such member’s future promotion shall be considered in accordance with these regulations and the position nominated in accordance with paragraph (i) of the sub-regulation.
(d) temporary reduction in pay, but so that the total amount forfeited in the case of a member does not exceed one hundred and fifty dollars;
or
(e) by reprimand.
(2), (3) and (4) ..."
It is also necessary to quote Regulation 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.
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.
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) and (5) ..."
There does not appear to be any real dispute that a person outside the police force lodged a complaint about the respondent’s behaviour with Chief Inspector Phillips, and that it was investigated by Inspector Perry of the Internal Investigation Branch (see s13(2) of the PC and DP Act). The charge against the respondent, supra, was dated 30 December 1996. It was received by the Police Disciplinary Tribunal on 3 January 1997. It was scheduled for mention before the Tribunal on 7 February. On 13 March the Tribunal recorded the notification of a plea of guilty, and remitted the matter to the appellant. It is convenient to mention here that on 5 May the respondent was transferred to the Para Hills Police Station. It was not until the 24 October that she was dismissed.
It is agreed by both parties that the "behaviour" in relation to which the respondent was charged, and to which she pleaded guilty, was not "conduct" as defined in s3 of the PC and DP Act. It follows, in my view, that it was appropriate that the Police Complaints Authority was not involved, and that Part 4 of the PC and DP Act had no application. In my view, she was charged with, and pleaded guilty to a "breach of discipline" as defined in s3, and was sentenced therefor. It appears to me that the alleged breach of the Regulations should have been "committed to be investigated by a commissioned officer" pursuant to Regulation 30(3) rather than investigated by the Internal Investigation Branch (s13 of the PC and DP Act, supra). Mr Rau argued that s13 created in effect a code that limited the role of the Internal Investigation Branch to "conduct" as defined in s3. I do not agree with that submission, and uphold the argument of the Solicitor General that there is no logical reason why the Commissioner should have different officers involved for the investigation of off-duty and on-duty offences. The alleged breach was investigated by a commissioned officer, namely Inspector Perry. I do not accept that the fact that he was a member of the Internal Investigation Branch should have the results Mr Rau contended for.
In an affidavit sworn on 12 December 1996 and admitted by consent before his Honour, the appellant deposed as follows:
"In accordance with established practices of the previous Police Commissioner all complaints about the conduct of members of the Police Force whether the conduct occurs when the member is on duty or off duty are investigated by the [Internal Investigation] Branch or overseen by a member of the Branch ... The Branch is responsible for the investigation of all complaints concerning the conduct of members of the Police Force or public servant employees attached to SAPOL regardless of the manner in which they arose."
Be such considerations as they may, I do not accept that the procedure that was adopted raised an issue with respect to jurisdiction or power which requires the court to quash the penalty imposed. I am bound to say, however, that I have much sympathy for the following passage in his Honour’s judgment:
"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."
I would reject the alternative contention.
Nature of the Appeal to the Supreme Court
Section 46 of the PC and DP Act, so far as is material, provides:
(1) A party to proceedings before the Tribunal may appeal to the Supreme Court against a decision made by the Tribunal in those proceedings.
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.
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), (5) and (6) ...
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." [my emphasis].
As I understand it, counsel for the respondent conceded that R97 of the Supreme Court Rules applies to this appeal. R 97.17 provides that an appeal under R 97 is to be "by way of rehearing". R 97.18 provides:
"On the hearing of an appeal governed by Rule 97 the Court:
(a) is to have all the powers and duties as to amendment and otherwise as the Court or tribunal appealed from had;
(b) may in its discretion receive further evidence upon any question of fact;
(c) may draw inferences of fact;
(d) may amend, set aside or discharge any judgment appealed from;
(e) may give any judgment, assessment or award or make any order which might have been made by the Court or tribunal appealed from and make such further or other order as the justice of the case may require;
(f) may direct that the proceedings be remitted for a new trial or further consideration with or without special direction, provided that where it appears to the Court that a wrong decision or miscarriage of justice affects part only of the matter in controversy, or some, or only one of the parties, the Court may give final judgment as to part thereof, for some or one only of the parties, and direct a new trial as to the other part only or as to the other party or parties;
(f) make such order as to the costs of the trial or appeal as it deems fit;
(h) may exercise its powers notwithstanding that:
any party to the proceedings in the Court or tribunal below has not appealed;
any ground for allowing or dismissing the appeal or varying the decision is not stated in any notice of appeal, notice of cross appeal or notice of contention;
that there has been no appeal from some part of a decision;
may reverse or vary any interlocutory orders on the appeal."
It is to be noted that R 97.18 is similar to R 95.15 which deals with all appeals to the Full Court, whether from judges or from masters of the Supreme Court or from lower courts and tribunals, except where those appeals are governed by RR 96-96(D)
It is of course clear that the fact that the Rules of the Supreme Court state that the appeal is by way of re-hearing does not necessarily determine the nature of an appeal. The judge below referred to the oft quoted observations of Mason J (as he then was) in Builders’ Licensing Board v Sperway Constructions Pty Ltd and Anor (1976) 135 CLR 616. At 621-2, his Honour 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."
The learned judge preferred the view that the appeal from the Commissioner to the Supreme Court was an appeal de novo. In reaching that view, he said that the appeal was "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". Later he said:
" It has never been suggested that I am confined to the materials before the Commissioner - in fact, ... 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."
It is to be noted that s46 of the PC and DP Act provides both for an appeal against a decision made by the Tribunal and for an appeal by a member of the police force against an order of the Commissioner imposing punishment.
Sub-s 7 deals with the powers of the Supreme Court on the hearing of the appeal which are very similar to the powers of this court in respect of an ordinary appeal from a magistrate. No distinction is drawn in respect of those powers between an appeal from the Tribunal and an appeal from the Commissioner.
I regard the question as borderline, but in the end prefer the view that the appeal is an appeal by way of re-hearing on the documents with a special power to receive further evidence on the appeal. (See Wigg v Architects’ Board (1984) 36 SASR 111 at 113). Be that as it may, I do not think the precise nature of the appeal really matters here, as I will endeavour to show.
The Affidavit Evidence
Four affidavits were filed in the Supreme Court and admitted by the consent of both counsel then appearing before his Honour. The first was an affidavit of the respondent sworn on 26 November 1997 in which she deposed to the background to the charges and their investigation, and exhibited a number of documents. In paragraph 5, she referred to the completing of the entry forms referred to in the charge (supra) and said, "I informed my officer-in-charge at Whyalla, Chief Inspector Phillips, ....... on at least four separate occasions that I would be attending the Honda Masters Games and that I was not old enough. No comment was made to me in relation to this by Chief Inspector Phillips. Two of these occasions occurred in the office of Phillips in the context of my reason for requesting authorisation for annual leave from 20 October to 26 October 1997 and at least two occurred at the Whyalla Indoor Sports Complex."
The next affidavit was sworn on 28 November 1996 by Craig Stevens, an Industrial Officer with the Police Association of South Australia. He deposed inter alia:
‘At about 2.55 p.m.on Tuesday the 11th day of March 1997 I received a telephone call from Ms Wickham requesting that I inquire with the acting Deputy Commissioner of Police, Mr John Murray, as to her likely punishment for the breach of Police Regulations Ms Wickham is charged with in this matter. The note of the conversation with Ms Wickham, recorded in a book in which all work-related telephone calls are noted states - "2.55 Penny Wickham 08 86458264, Re her breach of regs matter. Could we feel out J.M. re penalty.'
At about 12.57 p.m. on the same day I telephoned Acting Deputy Commissioner Murray. I spoke to his secretary who informed me he was not available. I left a message requesting that he return my call.
At about 4.40 pm the same day Acting Deputy Commissioner Murray telephoned me. I can recollect the gist of this conversation without the assistance of my notes. I recall that I had a general conversation with Acting Deputy Commissioner Murray regarding Ms Wickham, particularly in relation to the matter of a likely penalty, were she to plead guilty to the present charges. During the conversation I proposed, in essence, that Ms Wickham would suffer a significant penalty by way of her transfer from Whyalla to Adelaide and that any further penalty would, in the circumstances, be harsh. I submitted that an appropriate response would be along the lines of counselling. I recall that Acting Deputy Commissioner Murray seemed receptive to my suggestions and indicated that he did not view the matter as one that warranted dismissal. He also indicated that he could not give any undertaking as to penalty despite the views he expressed. I made the following note of conversation in my record book at the time it occurred - '4.40 J Murray 42905/6, Re Penny Wickham. Discussion re possible penalty (possibly re counselling). No undertaking!'"
Both those affidavits were filed by the respondent.
The appellant swore an affidavit on 12 December 1997 in which he referred to the role of the Internal Investigation Branch. I have already quoted from his affidavit (supra). He also exhibited an interview he had with the respondent on 10 October 1997, and some file notes relating to his involvement.
The fourth affidavit was sworn by Superintendent D J Clarke on 12 December 1997. He deposed that he had held the position of "Disciplinary Review Officer". He referred to procedures concerning complaints and to a number of other cases where the Deputy Commissioner had discussed the question of penalty with him.
A second affidavit of the respondent sworn on 18 December 1997 was filed after his Honour had reserved judgment and I think it should be ignored.
The appeal first came on for hearing before the learned judge on 4 December 1997. The point was made on behalf of the counsel for the respondent that the appellant had ample time to file an affidavit from Chief Inspector Phillips at least by the time the matter came on again on 12 December denying the statement of the respondent that she had told him she was under age before going to Alice Springs, if that was his recollection. He did not do so. Moreover, counsel then appearing for the appellant did not seek to cross-examine the respondent on that or any other aspect. I do not think the judge can be criticised for what he said on this aspect in his reasons.
The Penalty
The learned trial judge commented on the respondent’s breach of discipline thus:
The conduct complained of related to the private activities of the [respondent] 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 respondent. 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 [respondent'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," (she appeared as counsel for the Commissioner before his Honour) "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 [respondent] 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 [respondent] continued to enjoy local public support."
His Honour also noted that the officer in charge of the police station at Para Hills reported that she was an excellent police officer, and an asset to the station after her transfer there from Whyalla.
His Honour quoted from the Commissioner’s minute addressed to the Minister for Police dated 17 October 1997 which read:
"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 made subsequently the Commissioner said:
"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."
The learned judge concluded that the order of dismissal was disproportionate to the respondent's breach of discipline and "simply too draconian in the circumstances." He added:
" On the other hand, I by no means unduly minimize the fact that what the [respondent] 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."
I entirely agree with his Honour’s view about the penalty imposed by the Commissioner. The Commissioner's task was a difficult one. I readily acknowledge that he is charged by s21 of the Police Act with "the control and management of the police force", which is an important factor, but in my opinion he had nevertheless the obligation of any sentencing court to make the punishment fit the offence and the circumstances of the offender as nearly as possible. I do not think dismissal was justified. I would not disturb the penalty substituted by His Honour. I would reach this result whatever the precise nature of the appeal. I would dismiss the appeal.
I would allow the cross appeal on costs. The respondent's future was greatly affected by the Commissioner's order. Her appeal succeeded, and I can think of no good reason why she should not have her costs on a party and party basis. In fairness to his Honour, there was no argument before him as to the content of his order as to costs. For example, the decision in Tonkin v Stanton (No.2) (1986) 130 LSJS 385 was not cited. Johnston J there had to consider what costs order he should make on dismissing a Local Court appeal. After referring to the practice regarding costs in the case of appeals pursuant to the provisions of the Justices Act, his Honour said at 387:
" However, the Miscellaneous appeals raise different questions. In some, such as for example the appeal jurisdiction from various boards, it may well seem, at least in the generality of cases, that there is no reason for departing from ordinary principles as far as costs are concerned; and this seems to me to be the appropriate general rule as far as Local Court matters are concerned."
I would dismiss the appeal and allow the cross-appeal. In lieu of the order for costs in the sum of $150, I would substitute an order that the appellant pay the respondent's costs of her appeal on a party and party basis. I would hear the parties as to the costs of the appeal to the Full Court.
Prior J
I am in substantial agreement with the reasons published by Matheson J. In my view, the appeal to this Court is not an appeal de novo. I agree with the submission put by the Solicitor-General that it is most unlikely that Parliament would have conferred jurisdiction on this Court to stand in the shoes of the Commissioner of Police and discipline officers de novo . The powers given to this Court by s46 of the Police (Complaints and Disciplinary Proceedings) Act 1985 are in similar terms to those in s42(5) of the Magistrates Court Act 1991. This suggests that the appeal is similar in nature to a magistrates appeal. Such an appeal is not a hearing de novo. Equally, it seems to me inappropriate to have an appeal from the Tribunal constituted by a magistrate a re-hearing but that against an order of the Commissioner, pursuant to subs(2) of s46, a hearing de novo. In my view, this appeal is one on the documents with special and limited powers to receive further evidence.
I agree with Matheson J that the material received in this Court on the hearing of the first appeal was properly considered and criticised by the single judge. It could be said that the Commissioner should be given a further opportunity to respond to issues raised in the course of the appeal. I think that the opportunity for that arose and should have been dealt with then. In all the circumstances, I do not think it appropriate to have the matter further pursued in this Court.
In any appeal of this kind, a judge should be slow to interfere with the penalty imposed by the person charged with the control and management of the Police Force. However, on the material as it was allowed to be left in this Court, the dismissal order was inconsistent with the circumstances of the offender and her offending. I agree with the course proposed by Matheson J. The Commissioner’s appeal should be dismissed so that the penalty substituted by the first judge stands.
As to the cross-appeal on costs, in the special and peculiar circumstances of this case, I agree that costs on a party and party basis is an appropriate order.
Debelle J
I have had the advantage of reading the draft reasons of Matheson and Prior JJ. I agree with the substance of the reasons published by them. I agree with the orders they propose.
CITATIONS IN ORDER OF APPEARANCE
see Gawler Private Community Hospital Inc v SAHC (1991) 56 SASR 335 at 337
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