Pye v Commissioner of Police HC Wellington CP 20/01 - [2001] NZHC 737

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP 20/01

BETWEEN T R PYE
Plaintiff

AND THE COMMISSIONER OF POLICE
First Defendant

AND A POLICE TRIBUNAL
Second Defendant

Hearing: 3-4 and 9 April 2001

Counsel: T G Stapleton for the Plaintiff
P J Dymond and C K Treadwell for the First Defendant
G A J Stannish (to abide) for the Second Defendant

Judgment: 10 August 2001

JUDGMENT OF GODDARD J

Solicitors: Sygrove Law Office, Wellington, for the Plaintiff
Crown Law Office, Wellington, for the First and Second Defendant

[1] The plaintiff is a Sergeant of Police stationed at Lower Hutt. On 20 July 2000 he was served with notice of three charges alleging offences against the Police Regulations 1992 (“the Regulations”). The charges arose from an alleged assault or use of excessive force on an arrested person on 2 April 2000. The nature of the act constituting the alleged offences was set out in the notice as follows:

“While the complainant who was handcuffed was walked to a police van by a member of police, you took hold of him by the hair.

While holding him by the hair you struck the complainant’s head against the side of a police van at least twice.

Pushed the complainant into the police van not allowing him the opportunity to walk in, resulting in him falling onto the metal floor of the van.”

[2] Following notification of the charges the plaintiff, through his counsel, Mr Stapleton, requested the Commissioner to give him an indication as to penalty in respect of each charge pursuant to r 14 of the Regulations. The decision-making exercise under r 14 is a discretionary exercise. The relevant parts of r 14 are as follows:

“14. Particulars of charge -

. . .

(3) Within 7 days after receiving [a copy of the charges and summary of facts] the member may request the Commissioner to give an indication as to penalty under subclause (5)(a) of this regulation.

(4) Where a member makes a request under subclause (3) of this regulation, the file in respect of the charge shall be forwarded to the Commissioner without any recommendation.

(5) The Commissioner shall, in the case of a request under subclause (3) of this regulation, either -

(a) Indicate to the member that a penalty not greater than a fine will be imposed if the member admits the charge; or

(b) Decline to give such an indication.

(6) The Commissioner shall, in each case, record in a memorandum his or her decision under subclause (5) of this regulation, and a copy of that memorandum shall be served on the member.

(7) An indication given under subclause (5)(a) of this regulation shall be binding on the Commissioner if the member admits the charge.

(8) Where the member does not admit the charge, no evidence of any request made by the member under subclause (3) of this regulation shall be adduced before the Commissioner or the Tribunal hearing the charge.”

[3] Assistant Commissioner Fitzharris, acting on delegated authority from the Commissioner, declined to give such an indication.

[4] A second request for an indication as to penalty was made to Assistant Commissioner Fitzharris on 24 August 2000 and also declined.

[5] On 19 September 2000 the plaintiff signed formal pleas of denial to each charge and returned them to Assistant Commissioner Fitzharris with the advice that he intended to apply to the Disciplinary Tribunal for dismissal of the charges on the grounds of abuse of process.

[6] On 26 September 2000 Assistant Commissioner Fitzharris appointed a disciplinary Tribunal pursuant to s 12(1) and s 55A(1)(a) of the Police Act 1958 (“Police Act’), to inquire into and report to him on the allegations of misconduct against the plaintiff.

[7] On 13 October 2000 the plaintiff made a further request for an indication as to penalty in respect of each charge and Assistant Commissioner Fitzharris again declined to give such an indication.

[8] On 5 December 2000 the Tribunal issued directions including a direction that any application for dismissal of the charges on the grounds of abuse of process was to be made in writing before the hearing date, set for 14 December 2000. Any such application to dismiss the charges would be dealt with at the commencement of the hearing. Both Sergeant Pye and the Police were directed to be prepared to proceed with the case in the event the charges were not dismissed.

[9] At the commencement of the hearing on 14 December Mr Stapleton made oral application to the Tribunal seeking that she disqualify herself from enquiring into and reporting on the charges. His application alleged three grounds of bias. The application was dismissed and the Tribunal proceeded to hear the plaintiffs application to dismiss the charges for abuse of process.

[10] At the conclusion of the hearing the Tribunal reserved her decision which she subsequently delivered on 11 January 2001, dismissing the plaintiff’s application to dismiss the charges against him for abuse of process.

The Judicial Review Proceeding

[11] The plaintiff now seeks judicial review of three aspects of decision-making in the course of the events outlined above. First, he seeks a review of the three refusals by Assistant Commissioner Fitzharris to give an indication as to penalty in respect of each charge. Secondly, he seeks a review of the Tribunal’s decision not to disqualify herself from inquiring into the charges. Thirdly, he seeks a review of the reserved decision of the Tribunal refusing his application for dismissal of the charges against him on the grounds of abuse of process.

[12] The grounds upon which review of each decision is sought are that each decision is flawed in that it resulted from error of law; procedural and substantive unfairness; and Wednesbury unreasonableness.

[13] At a late stage Mr Stapleton sought leave to amend the plaintiff’s claim by adding a further ground of review, this time arising from alleged jurisdictional error. This further ground concerns the interpretation and application of ss 20, 28 and 29 of the Police Complaints Authority Act 1988 (“the Act”). Leave was granted to amend the statement of claim as sought. As determination of this newly added issue could determine the proceeding as a whole, it is convenient that it be dealt with first.

Were the provisions of ss 20, 28 and 29 of the Police Complaints Authority Act complied with?

[14] The procedure for the investigation of complaints alleging misconduct or neglect of duty by members of the Police, as in the plaintiff’s case, is prescribed by provisions in the Act, the Police General Instructions, and the Regulations.

[15] It is common ground between the plaintiff and the Commissioner that the provisions of ss 15 and 17 of the Act were complied with in the plaintiff’s case by both the Commissioner and the Police Complaints Authority (“the Authority”).

[16] It is also common ground that the Commissioner and the Authority did not take any steps pursuant to ss 20, 28, and 29 of the Act at any time before notification of the charges preferred against the plaintiff pursuant to rr 9(5), 9(12) and 9(39) of the Regulations was served on him on 20 July 2000. The plaintiff contends that the Police investigation into the complaint against him was complete before the charges were served on him on 20 July 2000 and that, accordingly, the Commissioner and the Authority were required to comply with the provisions of ss 20, 28 and 29 of the Act before 20 July 2000. This is disputed by the Commissioner, who argues that the Police investigation into the complaint against the plaintiff is not yet complete. The investigation continues via the Tribunal hearing and, in the event that the charges are proven, will continue until investigation of the suitability of the plaintiff to remain a member of the Police is complete. That is, the investigation continues until such time as the appointed Tribunal has reported its findings to the Commissioner under r 26, and the Commissioner has made a decision as to penalty of the charges, if found proved. The Commissioner says it is only at the conclusion of that process that he is required to report to the Authority pursuant to s 20 of the Act, and only then does the issue of compliance with the provisions of ss 28 and 29 of the Act arise.

The Legislative Scheme

[17] The Act creates an independent Authority to receive and review complaints against Police members which, if the Authority did not exist, would be the subject of internal investigation by the Police. The Authority’s role is as an independent watchdog ensuring that complaints against Police members are properly investigated and actioned, and guarding against any semblance of favourable treatment to Police members by their employer. Its purpose is clear from the stated purpose of the Act:

“. . . to make better provision for the investigation and resolution of complaints against the Police by establishing an independent Police Complaints Authority.”

[18] Section 12 of the Act authorises the Authority:

“(a) To receive complaints -

(i) Alleging any misconduct or neglect of duty by any member of the Police; or

(ii) Concerning any practice, policy, or procedure of the Police affecting the person or body of persons making the complaint in a personal capacity:

. . .

[19] However the power of the Commissioner to investigate any complaint continues and is preserved in s 22 of the Act. His power to inquire into alleged misconduct derives from s 12 of the Police Act. Disciplinary actions available upon investigation are set out in General Instruction IA 122. These are Formal Charge: Criminal; Formal Charge: Disciplinary; Reprimand; Adverse Report; and Counselling. The Commissioner can appoint a tribunal to inquire into any charges of alleged misconduct and report to him. Such a tribunal has the powers of inquiry and authority of a Commission of Inquiry under the Commissions of Inquiry Act 1908, and may receive any relevant information, whether or not admissible in a court of law.

[20] Section 15 of the Act requires the Commissioner to notify the Authority as soon as practicable of every complaint received by the Police.

[21] Upon being notified of a complaint, s 17 of the Act provides that the Authority may do all or any of the following:

“(a) Investigate the complaint itself, whether or not the Police have commenced a Police investigation:

(b) Defer action until the receipt of a report from the Commissioner on a Police investigation of the complaint:

(d) Decide, . . . to take no action on the complaint.

[22] The powers of the Authority in relation to complaints are found in s 19. These powers are comprehensive and encompass the power to:

(a) Review a Police investigation of a complaint:

(b) Decide to investigate a complaint itself:

(c) Where it oversees a Police investigation, give such directions to the Police concerning the investigation as it thinks fit:

(d) Direct the Police to re-open an investigation, and thereafter oversee the investigation:

(e) Direct the Police to reconsider their proposals for action on a complaint:

(f) Decide, . . . to take no further action on the complaint:

(g) Decide that no action by the Authority is required on the ground that it considers that the outcome of a Police investigation is satisfactory.”

[23] If the Commissioner embarks upon a criminal or disciplinary investigation into a complaint, he is required by s 20 of the Act to report to the Authority at the conclusion of that investigation whether the complaint has been upheld and, if so, what action has been taken or is proposed to be taken to rectify the matter. The Commissioner is also required to supply sufficient material to enable the Authority to assess the adequacy of the Police investigation. The interpretation of what constitutes “completion of Police investigation of a complaint” in s 20 is the issue under this head of appeal. The section in its entirety reads:

“20 Duty of Commissioner to report to Authority on Police investigation of complaint

(1) The Commissioner shall as soon as practicable, and in no case later than 2 months, after the completion of a Police investigation of a complaint, report to the Authority -

(a) Whether the complaint has been upheld and, if so, what action has been taken or is proposed to be taken to rectify the matter:

(b) Whether the complaint has been settled by conciliation.

(2) When reporting to the Authority under this section, the Commissioner shall supply to the Authority accompanying material sufficient to enable the Authority to assess the adequacy of the Police investigation.

(3) The Commissioner may consult the Authority on any Police proposals for action on a complaint before reporting to the Authority under this section.”

[24] Section 28 is also relevant to the interpretation of s 20. It imposes obligations on the Authority following a Police investigation of a complaint, and sets out the procedure to be followed:

“28 Procedure after investigation by Police

(1) Where the Commissioner reports to the Authority, pursuant to section 20 of this Act, on a Police investigation of a complaint, the Authority shall form an opinion on whether or not any decision, recommendation, act, omission, conduct, policy, practice, or procedure which was the subject-matter of the investigation was contrary to law, unreasonable, unjustified, unfair, or undesirable.

(2) After considering the Commissioner’s report and forming it opinion, the Authority -

(a) Shall indicate to the Commissioner whether or not it agrees with the Commissioner’s decision or proposed decision in respect of the complaint:

(b) May, where it disagrees with the Commissioner’s decision or proposed decision, make such recommendations, supported by reasons, as it thinks fit, including a recommendation that disciplinary or criminal proceedings be considered or instituted against any member of the Police.”

[25] Section 31 of the Act prohibits the Authority (inter alia) from making any adverse comment in any opinion or recommendation given under s 28 of the Act, unless the member has been given a reasonable opportunity to be heard.

The Competing Arguments

[26] Mr Stapleton submitted that at the hearing before the Tribunal on 14 December 2000 it was accepted that the Police investigation of the complaint against the plaintiff was essentially completed by or about 16 June 2000. Furthermore, that the Tribunal, in her reserved decision declining to dismiss the charges preferred against the plaintiff, had found that the Police investigation was completed after an independent legal review of the plaintiff’s case by the Police Legal Services dated 7 July 2000 was received by the Police and considered.

[27] On that basis Mr Stapleton argued that by 11 July, at the latest, and before any further action was taken, the investigation was complete and the Commissioner required to report to the Authority pursuant to s 20. He sought to draw a distinction between the obligation to report “after the completion of a Police investigation of a complaint” - and an obligation to report after a hearing into a charge or implementation of penalty in relation to a charge. He submitted that a complaint is “upheld” once a decision is taken that any one of the five available disciplinary actions in General Instruction IA 122 is warranted.

[28] Mr Stapleton further submitted that the objective of the Authority’s independence in the Act was achieved through its ability to agree or disagree with the Commissioner after a consideration of his s 20 report. He argued that the provisions of s 28(2) would effectively be rendered inoperative if the reporting obligations of s 20 did not arise until an inquiry had been completed, the tribunal had reported its findings to the Commissioner, and the Commissioner had made a decision as to penalty. Similarly, the provisions would be inoperative in respect of a criminal charge eventuating, if the s 20 obligation did not arise until any criminal charge had been disposed of by the courts.

[29] Mr Dymond, for the Crown, submitted that “completion of a Police investigation of a complaint” in s 20 means the completion of an investigation in accordance with long-standing and conventional Police practice. In support he relied upon an affidavit sworn by Superintendent Nickalls, the National Manager of Police Internal Affairs. In his affidavit, Superintendent Nickalls deposes, inter alia, that:

“. . . it is the invariable practice in every case that the Police investigation into a criminal or disciplinary matter continues until the end of any judicial or tribunal process relating to the subject matter of the investigation. The file remains open and the investigation is always regarded as being still active until that time. Although the progress of an investigation can reach a point where it is decided that sufficient evidence exists to enable charges to be laid, that does not mean the investigation is over. Until the charge has been proved or not proved as the case may be in a court or tribunal, the subject matter of the investigation is still at large, and nothing is concluded.

In line with this, as far as I am aware it has always been the practice of Police on a complaint against a member that the Authority is notified of the complaint under s 15 of the Act, as occurred on 5 May 2000. Where Police then commence a criminal and/or disciplinary investigation as occurred in this case it is invariably the case that the Authority is kept informed of progress on the investigation, but the report to the Authority under s 20 does not take place until disposition of the case by the courts in a criminal case, or until the Tribunal has reported its findings to the Commissioner and the Commissioner has made a decision as to penalty to an internal disciplinary case. It has never, to my knowledge, been the practice to report to the Authority under s 20 of the Act before the outcome of the case is known following the judicial or tribunal process.

To the best of my knowledge, it has always been the practice of the Authority to consider any matter and make recommendations after any other judicial/tribunal process has been completed in relation to any investigation. There can be a number of proceedings in any one case, including the courts, the tribunal and coroner’s inquest. The Authority waits for all of those other processes to be completed before making a recommendation.

It is seen as inappropriate for the Authority to be expressing a view as to the merits of an investigation before the judicial process has been completed. Under s 28 the Authority looks at the papers only, and does not conduct a trial, with cross-examination and the like. In addition, any adverse comment would involve giving the person opportunity to be heard under s 31, which would cause difficulties before a charge had been heard in the courts.

. . .

The practice outlined earlier in this affidavit is and has been followed in all similar cases to Sergeant Pye’s case. Under the Act, the Authority is in regular communication with the Commissioner, through Internal Affairs. I am not aware of any objection to this practice by the Authority, or of any suggestion by the Authority that a s 20 report should be made prior to the conclusion of any court/tribunal process. On the contrary, Internal Affairs and the Authority cooperate in ensuring the Authority’s function under the Act is carried out in a practical and sensible way. It is fair to say that this cooperation extends to the practice on investigations as outlined in this affidavit. As far as I am aware, the Authority supports this practice.”

[30] In an affidavit responding to Superintendent Nickalls’ affidavit, Mr Stuart, an Industrial Officer of the New Zealand Police Association, referred to the case of a constable at Lower Hutt Police who has also been the subject of a recent Police disciplinary investigation in which Mr Stapleton was also briefed as counsel. Mr Stuart has outlined material developments in that officer’s case and advises that the culmination of the investigation has been an expressed intention on the part of the superior officer investigating to recommend that the constable receive a Commissioner’s Reprimand and for the file to be forwarded to the Authority for review before any decision on the superior officer’s recommendation is made. Citing this case as an example, Mr Stuart deposes that he is unable to agree with Superintendent Nickalls’ deposition that the practice outlined in his affidavit is and has been followed in all similar cases to the plaintiffs. However I am unable to discern any material difference in the example cited by Mr Stuart and the other cases, in terms of the application of s 20.

[31] The essence of Mr Stapleton’s argument in relation to this other allegedly relevant example cited by Mr Stuart and Superintendent Nickalls’ evidence, is encapsulated in his following submission:

“If Superintendent Nickalls’ contentions are correct and the reporting obligations of s.20 do not arise in respect of a disciplinary charge until the Tribunal has reported its findings to the Commissioner and he has made a decision as to penalty and in respect of a criminal charge until it has been disposed of by the Courts, there is no room in which the provisions of s.28(2) can sensibly or properly operate. If Superintendent Nickalls is correct, disciplinary and criminal charges have been heard, determined and disposed of by the time of the Commissioner’s s.20 report and, necessarily, the Authority’s s.28 consideration. In those circumstances, how can the Authority then recommend “that disciplinary or criminal proceedings be considered or instituted against any member of the Police”?”

[32] In the case of the Lower Hutt constable, the reporting to the Authority under s 20 occurred after a recommendation as to the disposition of his case was proposed. For the reasons I give under Discussion below, I have no difficulty in finding that this is consistent with the present case where the investigation into the complaint against the plaintiff was not reported until such time as a proposal as to disposition of his case was made or implemented.

Discussion

[33] The sequence of events is clear and not in dispute. The only question is whether the investigation by the Police pursuant to s 17(1)(b) of the Act into the complaint against the plaintiff was completed before the charges were served on him on 20 July 2000. As stated, the answer to that question depends upon the interpretation of the phrase “investigation of a complaint” in s 20(1) of the Act.

[34] In my view the answer is not difficult and is clear from the wording of s 20 itself and from the purpose and context of the Act as a whole. It is also clear from the nature of the Authority’s functions, as set out in s 12 and from the other relevant sections of the Act reproduced above.

[35] The interpretative key to the intended meaning, nature and scope of the “investigation” envisaged in s 20, is evident in other wording in s 20, such as that contained in s 20(1)(a) and (b):

“(a) Whether the complaint has been upheld and, if so, what action has been taken or is proposed to be taken to rectify the matter:

(b) Whether the complaint has been settled by conciliation.”

[36] I accept Mr Dymond’s submission that a complaint can only have been upheld when its subject matter has been proved to the satisfaction of a court or tribunal (it not being the Commissioner’s role to conduct hearings and uphold (or otherwise) complaints). A decision to prefer charges in the course of an investigation cannot constitute the upholding of a complaint. Nor can the preferment of charges amount to rectification of a complaint under investigation. The word rectify is clearly intended to cover any disciplinary decision the Commissioner may ultimately take in respect of a Police member complained about, or any other steps he may decide to take where a Police practice or policy has been found to be wrong. I therefore accept Mr Dymond’s submission that it is simply not open to suggest that the preferment of a charge should be construed as an action rectifying a complaint. There is absolutely nothing to rectify until such time as a complaint has been upheld or charges proved - either in a court or by a tribunal.

[37] Section 20 requires the Commissioner to report to the Authority following a Police investigation of a complaint at the point at which the Commissioner has determined (or is proposing to determine) the final outcome of the complaint. The purpose of this is to enable the Authority to review the adequacy of the investigative process through to and including the outcome. Prior to this point being reached, s 20(3) enables the Commissioner, if necessary, to consult the Authority as to any provisional decision he is contemplating in relation to a complaint, before formally reporting under this section. The whole purpose is to enable independent monitoring by the Authority right through the process, until and including outcome.

[38] But even where the Authority decides not to exercise its powers under ss 19(b) and (c) to investigate a complaint itself or to oversee a Police investigation, the Authority nevertheless retains a residual power to assess adequacy of process and review the outcome any Police investigation of a complaint conducted without its oversight. This view finds support in s 17(1)(b) and s 19(a), (d), (e) and (g) of the Act.

[39] It is not the role of the Authority to review decisions by the courts but, in the event of charges being proved in a court or a complaint being upheld by a tribunal, it is the role of the Authority to review any decision of the Commissioner consequent upon charges being proved or a complaint upheld. This supervisory responsibility is reflected in Superintendent Nickalls’ statement that in every case the Police investigation into a criminal or disciplinary matter continues until the end of any judicial or tribunal process is completed. Given the disciplinary and employment considerations that potentially arise from misconduct by a Police member, it is obvious that a file will remain open and an investigation active until such time as the Commissioner is required to determine final outcome from the Police point of view, even in the event of conviction and sentence in the criminal courts.

[40] Section 28 also supports this interpretation. Where the Commissioner reports to the Authority pursuant to s 20, the Authority must indicate to him whether or not it agrees with his decision or proposed decision in respect of the complaint, or if disagreeing with his decision or proposed decision, may make such recommendations as it thinks fit, including a recommendation that disciplinary or criminal proceedings be considered or instituted. This contemplates the situation both where a complaint has been upheld or settled under s 20(1)(a) and (b), or a decision not to lay charges. An investigation is also complete for the latter reason and inferentially at least, the Commissioner is required to report to the Authority under s 20 in that situation as well.

[41] Although it is common to think of a Police investigation as complete at the time the decision to charge is made, that is not in fact the reality. A Police file remains open and an investigation may continue after charges are laid and right up until the point of trial or conviction. Likewise, as I have found, the situation clearly contemplated in s 20 of the Act is that an investigation into a complaint continues right up until the matter is concluded by the complaint being proved/upheld, settled by conciliation or (inferentially) by a decision not to proceed any further. The steps open to the Authority consequent upon its assessment of the adequacy of the Police investigation (s 20(2)) are set out in paragraphs 19 and 28 of the Act. It follows from my findings above that this ground of review must fail.

Assistant Commissioner Fitzharris’ Refusal to Give an Indication as to Penalty

[42] This ground of appeal seeks review of the three refusals by Assistant Commissioner Fitzharris to give an indication as to penalty in respect of each charge.

Illegality and Unfairness

[43] Pursuant to r 14(4) of the Regulations (set out above) and the Police General Instructions IA127(7), where an indication as to penalty is sought, the file relating to the charges is required to be forwarded to the Commissioner without recommendation. The plaintiff alleges that in breach of that requirement the file was forwarded to Assistant Commissioner Fitzharris with a memorandum containing the following expression of view:

“Should the allegations be proven in either forum, the seriousness of the matter is such that the Commissioner will need to examine whether the Sergeant should remain a member of Police.”

[44] The sequence of events is important. The file had already been forwarded to Internal Affairs in June 2000, well prior to the first occasion on which an indication as to penalty was sought. This is evidenced by the date of the memorandum, which was 29 June 2000. The advice in the memorandum was not therefore forwarded as a recommendation under r 14(4) and IA 127(7), nor was the view contained therein directed to the issue of penalty under those provisions.

[45] The evidence at the hearing established that Assistant Commissioner Fitzharris considered the letter containing the above expression of view on the same day as he received the plaintiff’s request for an indication as to penalty. Mr Stapleton argued that this amounted to a breach of r 14(4) and IA 127(7) because the request for an indication as to penalty was not considered without reference to the memorandum already before him and, therefore, it was not “without any recommendation” in terms of those provisions. Thus, in this manner, Assistant Commissioner Fitzharris had wrongly allowed other members of the Police to be involved in his decisions to decline to give an indication as to penalty.

[46] In response, Assistant Commissioner Fitzharris deposed in his affidavit before the Tribunal that he:

“. . . would not have read the [memorandum] as a recommendation written in respect of a yet to be made application for indication as to penalty, but in its context as a view as to the appropriateness of suspension.”

Error of Law

[47] An error of law is alleged to have arisen from Assistant Commissioner Fitzharris’ interpretation of r 14(4) based on passages in two affidavits he swore in this proceeding. In the first affidavit, sworn on 12 December 2000, in opposition to the application to dismiss the charges for abuse of process he states:

“That I had occasion more than once to consider on behalf of the Commissioner whether an indication of penalty in the event of a finding of guilty or change of plea should be given to Sergeant Pye.”

[48] And in a subsequent affidavit, sworn on 15 March 2001 in this proceeding, he said further:

“The purpose of giving an indication as to penalty is to enable a member to confront the potential penalty on a plea of guilty without a Tribunal hearing. Accordingly, there is no need to determine whether an indication as to penalty should be given in the event of a finding of not guilty.”

[49] In the above passages there is room for concluding that Assistant Commissioner Fitzharris misunderstood the time and purpose for which an indication as to penalty is given. Clearly any indication as to penalty is to be given before any plea is entered, to enable the member charged to consider his or her options in relation to r 14(7) and (8). In terms of timing the indication must be given after charge but before plea. The purpose of an indication is clearly to enable the member charged to consider the option of pleading guilty at that stage without the necessity for a hearing. If that option is taken the Commissioner is bound by the indication as to penalty he has given. Where no request for an indication as to penalty is made and thus no discretionary decision made under r 14(5), a plea must be entered to the charge within 7 days of service. Where a request for an indication as to penalty is made, a plea must be entered within 7 days after the advice of the Commissioner’s decision under r 14(5) is notified.

[50] This is also clear from the provisions of r 15 and 16, which provide:

“15. Member to plead to charge - (1) Where a member does not make a request under regulation 14(3) of these regulations for an indication as to penalty, the member shall, within a reasonable time after being served with a copy of each of the documents specified in regulation 14(2) of these regulations and in any case not later than 7 days after being served with those copies, state whether he or she admits or denies the charge and sign his or her plea.

(2) Where a member makes a request under regulation 14(3) of these regulations for an indication as to penalty, the member shall, within a reasonable time after being served with a copy of the Commissioner’s memorandum under regulation 14(6) of those regulations and in any case not later than 7 days after being served with that copy, state whether he or she admits or denies the charge and sign his or her plea.

(3) If the member does not sign the plea within that time, the member shall be deemed to have denied the charge.

16. Member may elect to plead guilty and not appear before Tribunal - Where a member pleads guilty to a charge and elects to have the charge dealt with without a Tribunal hearing, the charge shall be dealt with without a Tribunal hearing.”

[51] The question that arises is whether any exercise of the discretion under r 14 could properly be undertaken by Assistant Commissioner Fitzharris if he did not clearly understand the timing and purpose for which indications as to penalty are given.

[52] Determination of this issue will be dealt with definitively under the heading of Discussion. At this point it is relevant to note that the introductory sentence of the second passage quoted above (Assistant Commissioner Fitzharris’ affidavit of 15 March 2001) correctly states the interpretative position, both in relation to the timing and the purpose for which an indication as to penalty is given.

Irrelevant Factors

[53] The factors which Assistant Commissioner Fitzharris considered relevant to reaching a decision under r 14(5) were described by him in his affidavit evidence as follows:

“. . .my practice has been always to take great care in any such deliberations. I would have had available to me at the outset the criminal investigation file containing the statements from witnesses and Sergeant Pye. The document location system used by Internal Affairs Section of Police records that the criminal investigation file was within the Office of the Commissioner at the time I was considering whether to advise a penalty. I annex hereto marked with the letter “A” a copy of the relevant printout. I would also have read carefully any letter or communication from Sergeant Pye’s solicitor, especially if it were lengthy.

. . .

I have been dealing with requests for indications as to penalty for just under one year. In that time I have sometimes given indications and sometimes not. The factors that I took into account in declining to indicate penalty in this case included that the facts of the incident were disputed, that the incident involved alleged violence and that Sergeant Pye was a noncommissioned officer. It was possible that I would want to consider demotion or reduction in salary as well as dismissal or a fine in the event of a charge being proved against Sergeant Pye.

The case as alleged is a serious one in my view and I did not wish to make a decision which would fetter my discretion until the Tribunal had had the opportunity to fully investigate the disputed facts and report back.”

[54] Mr Stapleton sought from the Police information relating to similar cases in recent years, in which other members of the Police had been charged with like offences and indications as to penalty given. The details of six such cases were made available to him. Mr Stapleton then conducted an analysis of those cases, comparing their essential features with the factors identified by Assistant Commissioner Fitzharris as the considerations relevant to his exercise of discretion in Sergeant Pye’s case. In each of the six cases analysed an indication as to penalty had been given. One of the cases concerned a non-commissioned officer. All were disputed on their facts and all involved alleged violence and charges under the same regulations. The alleged apparent inconsistency between the approach taken in those other cases and in Sergeant Pye’s case was put to Assistant Commissioner Fitzharris by Mr Stapleton in cross-examination at the hearing. In response he said that he relied on his institutional memory as a guide and, in his subsequent affidavit sworn 15 March 2001, emphasised that each case required to be determined on its own facts, saying:

“I believe my role under Rule 14 of the Regulations is to ensure fairness and a consistency in approach. I have never requested the files of similar cases when considering a request for an indication as to penalty because I believe every case is different and needs, therefore, to be considered on its own facts. I believe it would have been inconsistent, to make such a request in the case of Sergeant Pye.”

[55] Assistant Commissioner Fitzharris then went on in his affidavit to discuss some of the other cases, refuting Mr Stapleton’s submission that all six were analogous to Sergeant Pye’s case. He said:

“As already deposed, there are no two identical cases on their facts.”

[56] The Assistant Commissioner also advised that a manual check of a selection of files between 1997 and 2000 had revealed eight cases involving disciplinary charges of either assault or unnecessary force or violence. In each case an indication of penalty had been sought, two of which were declined. In terms of penalty, six cases had resulted in fines following a guilty plea, one member had resigned and the last case had not, at that date, been heard by the Tribunal. The Assistant Commissioner also referred to a particular case, concerning Constable G which, in my view, provides a useful comparison. Of this case he said:

“In relation to Constable G, it is correct that there had not been a request for an indication as to penalty. However, counsel for Constable G had requested an indication as to whether the Constable would be removed from Police if the charges were established. In response he was advised that in that event, based on the facts then known, there was a likelihood that he would be removed from Police, subject of course to the report from the Tribunal. In the event, at the Tribunal hearing before Judge Dame Augusta Wallace, the charges were not established and the Constable has since resumed his duties in the New Zealand Police.”

Relevant Factors Not Taken Into Account

[57] Relevant factors allegedly not taken into account by Assistant Commissioner Fitzharris in declining to give the plaintiff an indication as to penalty include: the other recent cases referred to above in which other members of the Police had been charged with like offences and given indications as to penalty; the plaintiff’s service record, testimonials and personal circumstances; and the submissions made by Mr Stapleton on his behalf.

Discussion

[58] Whether or not there are similarities between the plaintiff’s case and other disciplinary cases, each case requires to be dealt with individually, albeit within the bounds of overall consistency. This fundamental approach was endorsed by Assistant Commissioner Fitzharris in his affidavit evidence. Thus it follows that the plaintiff’s case was also to be determined on its merits and Assistant Commissioner Fitzharris was not bound to indicate a fine simply because that is what appears to have happened in similar cases. It is clear from the memorandum forwarded with the file, and from Assistant Commissioner Fitzharris’ affidavit evidence, that should the charges be proved against the plaintiff, the Commissioner would want to consider demotion, salary reduction, or even dismissal as a member of the Police.

[59] Under r 14(5)(a) the Commissioner can either:

“Indicate that a penalty not greater than a fine will be imposed if the member admits that allegation; or

Decline to give an indication.”

[60] The indication is binding on the Commissioner if the member admits the charge (r 14(7)). If the member does not admit the charge, no evidence of any request shall be adduced before the Commissioner or the Tribunal.

[61] The Commissioner has a discretion in deciding whether to give such an indication. In exercising his discretion, he is clearly required to consider relevant factors and exclude irrelevant factors: Wellington City Council v Woolworths (No 2) [1996] 2 NZLR 537, 545. He must also act fairly.

[62] The Commissioner’s power to impose penalties for misconduct or neglect of duty arises under s 5(7) of the Police Act, which provides:

“Without limiting subsection (4) of this section, where the Commissioner is satisfied that any sworn member of the Police is guilty of any misconduct or neglect of duty, the Commissioner may impose all or any of the following penalties:

(a) Reduction in rank, whether commissioned or otherwise:

(b) Reduction in seniority by any specified number of years;

(d) A fine not exceeding $500.”

[63] As is clear, all of the penalties set out in paragraphs (a) to (c) are greater than a fine. In addition, the Commissioner has a power of removal. If a member admits a charge and an indication under r 14(5) is given, the Commissioner cannot impose any of the other penalties set out under s 5(7) of the Police Act. Accordingly, he is only able to give an indication as to penalty (that is, a fine) under r 14(5)(a), where he is certain that the penalty eventually imposed on the member charged will be none of those provided by (a), (b), or (c) of s 5(7) of the Police Act.

[64] I am satisfied that Assistant Commissioner Fitzharris was entitled to exercise his discretion to decline to give an indication that a penalty no greater than a fine would be imposed in the plaintiff’s case. The case was not clear cut, it had serious aspects, and at such a preliminary stage could not be said to fall unequivocally into the fine only category. The Assistant Commissioner said he relied on his institutional memory of broadly similar cases in the approach he took to the plaintiff’s case, rather than slavishly adhering to any decision previously taken. That approach was appropriate to the exercise of discretion. Simply because another unrelated case involving an alleged assault by another non-commissioned officer should be seen to merit a penalty no greater than a fine is no reason to fix the disciplinary approach to be taken to other non-commissioned officers accused of similar misconduct. If that were to be the case, any exercise of discretion would be illusory and an indication of penalty would become mandatory on request. I therefore find it was reasonable for the Assistant Commissioner to have exercised his discretion to decline to give an indication as to penalty at the preliminary stage of investigation into the complaint against the plaintiff. The Assistant Commissioner was not obliged to regard any of the other cases referred to by Mr Stapleton as on all terms with the plaintiff’s case.

[65] I turn to the issue of whether the Assistant Commissioner’s decision can be assailed because he had before him the memorandum addressing the issue of possible suspension at the time he first declined to give an indication as to penalty. As I have already noted, from the sequence of events, this memorandum was sent to Internal Affairs with the file well prior to the plaintiff’s first request for an indication as to penalty. It was not therefore forwarded as a recommendation as to penalty under r14(4) of the Regulations and IA 127 of the General Instructions, nor was it intended to constitute such a recommendation in breach of those provisions. From its timing and its wording, it is clear that the author did not envisage or contemplate an indication as to penalty of no more than a fine. Rather, the author was contemplating due process taking its course. The view expressed in the memorandum is, as Assistant Commissioner Fitzharris deposed, a view as to the appropriateness of suspension, should the charges be proven. In this respect the view is provisional only and ultimately subject to any recommendation by the Tribunal. The fact that a view was expressed does not mean the author of the memorandum joined with Assistant Commissioner Fitzharris in his later decision to decline to give an indication as to penalty, or that Assistant Commissioner Fitzharris abdicated his decision making responsibility on that issue.

[66] Constable G’s case (referred to earlier in paragraph [56]) is of some interest on this issue. As stated earlier, counsel for Constable G did not request an indication as to penalty under r 14(5)(a) as such, but rather requested an indication as to whether Constable G would be removed from the Police in the event the charges against him were established. On the basis of the facts as alleged, counsel was advised there was a likelihood that Constable G would be dismissed from the Police in the event the charges against him were established at the tribunal hearing. As it happens they were not, but that is by the way. In the present case, had the plaintiff asked for a similar indication, namely, as to whether he might be suspended in the event the charges against him were proved, as opposed to a r 14 indication, he would undoubtedly have been advised of the likelihood that he would be suspended if the charges were proved. For this reason, the view expressed in the memorandum of 29 June is not irrelevant to the r 14 exercise of discretion. That does not, however, transform it into a recommendation as to penalty under that regulation, nor nullify the Assistant Commissioner’s subsequent exercise of discretion under r 14(5).

[67] I turn then to the issue of whether Assistant Commissioner Fitzharris erred in his interpretation of the Commissioner’s duties under r 14(5), and therefore misunderstood his discretionary task. I am untroubled by this issue. It is clear that the Assistant Commissioner understood the essential nature of the Commissioner’s duties under r 14(5) and responded accordingly. As I have already found, he exercised his discretion properly in declining to give any indication as to penalty and therefore any ostensible interpretation by him in relation to the time at which an indication as to penalty is given is not reflected in his clear understanding of the purpose for which an indication as to penalty is given. I am satisfied that the Assistant Commissioner clearly understood the purpose of the discretionary exercise he was required to undertake and appreciated the factors relevant to that exercise. Furthermore, although there may be some confusion in thinking on the part of the Assistant Commissioner, as reflected in the two passages from his affidavits quoted earlier, the introductory sentence of the second passage correctly states the interpretative position.

[68] This ground of appeal must, therefore, also fail.

The Tribunal’s Decision Not to Disqualify Herself From Enquiring into the Charges

[69] Several grounds alleging apparent bias were advanced under this head of review. The first was the fact that the Tribunal had issued proceedings directions without enquiring of or hearing from Mr Stapleton first, and without referring to any right of judicial review that might be exercised if the plaintiff’s application to have the charges against him dismissed for abuse of process was declined.

The second ground related to the role of Assistant Commissioner Fitzharris. Acting on his delegated authority from the Commissioner he had signed the Tribunal’s warrant of appointment on 26 September 2000, which required her to inquire into and report to him on the charges against the plaintiff. Consequent upon the plaintiff filing his interlocutory application for dismissal of the charges before the hearing, the Assistant Commissioner swore the affidavit in relation to the exercise of his discretion under r 14. This led to Mr Stapleton making the following submission to the Tribunal on alleged conflict in the role of Assistant Commissioner Fitzharris:

“. . . the point is that he is clearly a material witness. Matters of credibility, of reliability of that sort, will need to be determined by you in determining the application, and put shortly I submit that it is entirely inappropriate that you as Tribunal, having been appointed by him, and being required to report to him in terms of your warrant of appointment, should be called upon to exercise those function and make those judgments in this case, and that on this ground Marm, the appropriate course is simply for the Commissioner himself to appoint another Tribunal.”

[71] The third ground of alleged bias arose from the fact that the member of Police responsible for liasing with the Tribunal over arrangements for co-ordinating the hearing was an Inspector of Police who had been involved in the investigation and thus was not “. . . an officer totally independent of the inquiry . . .” as per Assistant Commissioner Fitzharris’ 26 September letter appointing the Tribunal.

[72] After hearing argument from Mr Stapleton on the issue of her alleged apparent bias, the Tribunal gave an oral ruling in which she declined to disqualify herself on any of the grounds advanced.

[73] The test for apparent bias is found in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142, 149 (CA). In that case, the Court of Appeal adopted the approach of the House of Lords in R v Gough [1993] AC 646. The test is whether in all the circumstances of the case there is a real danger or a real likelihood, in the sense of a real possibility, of bias.

[74] The test is also aptly stated in the following definition of bias by GDS Taylor in his text Judicial Review (1991) at 286:

““Bias” is a predisposition to decide a cause or an issue in a certain way which does not leave one’s mind properly open to persuasion. It results in an inability to exercise one’s functions impartially in a particular case. The predisposition may stem from financial interest, personal relationship, ideology and inclination, the manner in which powers are exercised, or from the composition or nature of authority concerned.”

[75] Dealing with the first alleged ground of bias, I am unable to find a scintilla of evidence of predisposition on the part of the Tribunal to determine the plaintiff’s interlocutory application in anything less than an impartial manner. No appearance of any bias as alleged arises, either in the tenor of the proceedings directions issued or from the fact that the Tribunal issued such directions. The directions were issued in the interests of expediting the hearing, as considerable delay had already accrued as acknowledged by Mr Stapleton. Further, the directions in themselves were not determinative of the plaintiffs rights, nor did the absence of reference to the possibility that he might seek to judicially review a refusal to grant his interlocutory application abrogate the right. As Mr Dymond submitted, if the interlocutory judgment were amenable to review, then mention or otherwise of the fact that a right of review existed did not expunge that right. It is not for a court or tribunal routinely to assume and expressly provide for a review period to be timetabled into proceedings directions, to allow for the possibility of review of steps in proceedings, interlocutory or otherwise. In the normal course of events, timetabling is not settled on such a contingent basis.

[76] Mr Dymond submitted that the plaintiff’s interlocutory application was also questionable in nature, having regard to r 14(8) which provides that no evidence of any request for an indication as to penalty shall be adduced before the Tribunal if the member has not admitted the charge. For that reason, Mr Dymond questioned the very jurisdiction of the Tribunal to consider the plaintiff’s interlocutory application.

[77] This issue does indeed raise the question of whether the Tribunal has jurisdiction to dismiss charges for abuse of process. Mr Dymond’s submission was that the Tribunal could not decline to hear charges referred to it for enquiry, on grounds such as abuse of process at the investigation stage, citing Faris v Medical Practitioners’ Disciplinary Committee [1993] 1 NZLR 60 in support. In Faris, Gallen J considered, although without deciding the point, whether the Medical Practitioners’ Disciplinary Committee was obliged to hear charges referred to it by the Preliminary Proceedings Committee under provisions of the then Medical Practitioners Act 1968. Section 56(5) of that Act provided that every reference to the disciplinary body concerned “shall” be prosecuted at the hearing by the Preliminary Proceedings Committee. In relation to this mandatory direction to prosecute, Gallen J expressed the following view (at 72):

“In my view, therefore, it follows that the first respondent is required to inquire into charges laid by the second respondent and has no discretion not to do so. That of course does not impinge upon such discretion as is open to it in respect of its conclusions.”

[78] In the present case, the Commissioner may appoint a tribunal under s 12(1) of the Police Act to inquire into alleged misconduct and report to him on that matter. When such appointment is made by the Commissioner, the direction to the tribunal is unequivocal and can easily be construed as mandatory. The direction is as reflected in the wording of Assistant Commissioner Fitzharris’ 26 September 2000 letter of appointment to the Tribunal in the present case. In that letter she is clearly directed “. . . to enquire into and report to [Assistant Commissioner Fitzharris] on the following allegations of misconduct . . .”. The direction does not contemplate or envisage authorisation to enquire into the investigation process or to dismiss the charges before inquiry on an interlocutory basis. To permit this would be to question the very decision to charge - and also the r 14 exercise of discretion to allow the charges to proceed without indication as to penalty. That is not to say that the Tribunal is unable to regulate or control the conduct of its hearings so as to protect those from abuse. That is a different issue. Nor does it mean that the supervisory jurisdiction of the High Court is prevented from protecting this or any tribunal from abuses.

[79] On this issue I therefore concur with the view expressed by Gallen J in Faris and find force in Mr Dymond’s submission.

[80] There is one further matter. The introduction of the evidence of the plaintiff’s three requests for an indication as to penalty in evidence before the Tribunal via the interlocutory application caused a difficult situation in terms of r 14(8). Regulation 14(8) precludes evidence of any request for an indication as to penalty being adduced before the Tribunal hearing the charge(s). The reason for this is obvious, as an indication as to penalty is only requested where an acknowledgement of guilt is contemplated. For this reason the plaintiff, through his own interlocutory application, has created a situation where the present Tribunal may have to disqualify herself from hearing his substantive disciplinary proceeding. Although Assistant Commissioner Fitzharris’ will not be a witness at the substantive disciplinary hearing, that fact does not ameliorate the disqualification situation now created by the plaintiff’s interlocutory application.

[81] I turn lastly to the third ground of alleged bias; the fact that an Inspector of Police, who had been involved in the investigation into the complaint against the plaintiff replaced the liaison officer originally appointed to co-ordinate the hearing. The reference to “an officer totally independent of the inquiry” came from Assistant Commissioner Fitzharris in his covering letter to the Tribunal enclosing her notice of appointment. Specifically, he said:

“It has been requested that the O/C file does not take on the role as Clerk, instead that duty will be allocated to an Officer totally independent of the enquiry.”

[82] In his affidavit of 15 March, the Assistant Commissioner explained that the Inspector who subsequently took over the role of liaison officer did not at any time act as the Clerk of the Tribunal, nor was this ever contemplated. Nor did the Inspector act as Court Registrar; rather this role was fulfilled by a registrar from the Department for Courts. The Inspector’s role was simply confined to administrative arrangements. The Inspector swore an affidavit attesting to this in which he has stated categorically that he “was not the Clerk of the Tribunal at any time, nor was this ever contemplated. Nor did I adopt the role of the Court Registrar’”.

[83] In all the circumstances I have no hesitation in accepting the Tribunal’s decision not to disqualify herself on this ground either.

[84] In accepting the Tribunal’s decision not to disqualify herself on this third ground of review, it is axiomatic that I reject Mr Stapleton’s submission that the relationship between the Inspector and the Tribunal is similar on its facts to the situation which pertained in re Sutherland (deceased) [1994] 2 NZLR 242. Unlike the Coroner in re Sutherland, the Tribunal in this case has no personal acquaintance with the Inspector, or with Assistant Commissioner Fitzharris, or with anyone else involved in the inquiry. Nor has she had any involvement in their business affairs or in their terms of employment. Nor is there any basis upon which she can be said to have any discernible interest in the outcome of the inquiry. Of further relevance is the fact that her role is not to determine the final outcome of the plaintiff’s case. Her role is confined to inquiring into and reporting her findings to the Commissioner with a recommendation as to penalty. The final disposition of the matter remains for the Commissioner.

[85] On this issue of alleged judicial bias, it is helpful to note the factors that may or may not give rise to a real danger of bias in a judicial officer. These were comprehensively traversed in the judgment in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, 480, which has been quoted and relied upon in the judgment of the New Zealand Court of Appeal in Man O’War Station Ltd v Auckland City Council [2001] 1 NZLR 552, 556-557.

[86] As has been emphasised by the English Court of Appeal in Locabail and echoed in Man O’War Station Ltd, every case in which bias is alleged is to be decided on its own facts. As already stated, I am unable to find any evidence of apparent bias in this case arising from any of the three grounds of review advanced, although as I have observed, the plaintiff’s introduction of evidence before the Tribunal which is precluded by r 14(8) may necessitate the Tribunal from disqualifying herself from the substantive inquiry into the complaint against the plaintiff.

The Tribunal’s Decision to Dismiss the Plaintiff’s Interlocutory Application was Flawed

[87] This ground of review again calls into question the very jurisdiction of the Tribunal to dismiss the charges for abuse of process at the investigative stage. As noted, I favour the view expressed by Gallen J in Faris and am therefore inclined to regard the Tribunal as having jurisdiction only to enquire into the charges and report to the Commissioner on findings relation to those. In essence I regard review of the Police investigation into the complaint and the exercise of the Commissioner’s discretion under r 14(5) ultra vires the Tribunal.

[88] What is undisputed is that the Tribunal has the power to dismiss a charge under r 12(3), if the member charged appears to have been “unfairly prejudiced” through not being informed, as soon as practicable, that he or she was to be reported to his or her commanding officer for an alleged offence. I interpret this provision as aimed at the prejudice which might arise at the Tribunal’s hearing, if the member charged has been given insufficient time or detail to properly prepare an answer to the charge(s).

[89] In the plaintiff’s case the sequence of events was as follows. The preliminary part of the investigation into the charges was concluded by 16 June 2000. The file was sent to the Police Senior Legal Advisor on 19 June 2000. The legal opinion from Police Legal Services was received on 7 July 2000. The file was then sent to the Commissioner on 11 July 2000. Authorisation to charge the plaintiff was received from Assistant Commissioner Fitzharris on 17 July 2000 and on 19 July a notice pursuant to r 12 was served on Mr Stapleton as his counsel. On the basis of this sequence of events, Mr Dymond pointed out that a lapse of only two days had occurred between the decision to report the plaintiff on 17 July and the plaintiff being informed of that decision on 19 July. Mr Dymond’s submission was, therefore, that the plaintiff could not have been “unfairly prejudiced”, and the Tribunal’s decision not to dismiss the charges against him on that ground should be upheld.

[90] Mr Stapleton’s submission in response was that, despite repeated requests by him to make submissions at the stage at which a decision was taken to report the plaintiff to his commanding officer under r 12(1). no opportunity was provided to him. Furthermore, Mr Stapleton’s view was that the initial decision to charge the plaintiff was made much earlier than 17 July (in June or by 4 July at latest) although the decision as to the specific charges to be preferred was not taken until 17 July. Whatever date is correct. the situation is that the plaintiff was not served with a r 12 notice on either 4 or 17 July, nor was he informed as soon as practicable after either of those dates, of the proposal to report him to his District Commander. Mr Stapleton conceded that there was nothing new he could have put forward on the plaintiff’s behalf by way of a submission at that stage - other than rectification of an erroneous statement in a report prepared by an investigating sergeant that the plaintiff had been charged with assault twice previously although not convicted on either occasion. However, Mr Stapleton submitted that the lost opportunity to correct that inaccuracy, at least, equated to “unfair prejudice” under r 12(3). Further, that not only was the plaintiff prejudiced by this failure to notify him as soon as practicable after the initial decision to report him, but the bare two days between eventual service of the r 12 notice and service of the charges effectively precluded any practical opportunity for Mr Stapleton to make submissions at that stage.

[91] The Tribunal’s findings on this issue were as follows:

“The pleadings raise a matter for which I can find no authority in the Act, the Rules, or General Instructions but which rely on custom or general practice. Counsel for [the plaintiff] submits that the shortness of time between service of the Rule 12 notice and service of the Rule 14 charges prevented the making of submissions by [the plaintiff] on the course of action proposed in the Rule 12 notice before that action was taken and the charges served. [The plaintiff] was unfairly prejudiced thereby because the making of those submissions could have had an effect upon the subsequent action to be taken. By letter dated 20th July 2000 to Counsel, [the Wellington District Complaints Manager] stated “I also advise that you may make submissions on the [plaintiff’s] behalf should you wish to do so and these will be considered even though charges have been served”. By letter dated 26th July 2000 in response thereto, Mr Stapleton advised “The contents of the final paragraph of your letter cannot cure the procedural defects which exist in this matter and, in particular, alter the fact that the decision to charge [the plaintiff] with three alleged offences against the Police Regulations 1992 was made without giving [the plaintiff’] the opportunity to make submissions through me his counsel in respect o[f] the investigation and Mr Rasmussen’s complaint”.

I accept that as a matter of practice such submissions are often made and received and, at times, have had an effect upon the action taken. There is no provision for the making of such submissions in any of the regulatory authorities. It is simply a matter of practice. Therefore, I find it difficult to accept that failure to allow sufficient time for the making of such submissions, should constitute a procedural defect. [The Wellington District Complaints Manager] advised that such submissions would be received and considered even though the charges had been served. [The plaintiff] on advice of his Counsel elected not to make such submissions.”

[92] In addition the Tribunal noted that not only did the Complaints Manager offer to receive and consider any submissions Mr Stapleton wished to make and notwithstanding that charges had been preferred, but the three requests for an indication as to penalty actually followed. On each occasion, Mr Stapleton made fulsome submissions, canvassing every aspect of the plaintiff’s case that could possibly have been canvassed at the time the decision was taken to report the plaintiff. It cannot therefore be said that any unfair prejudice has arisen from the situation or that any lost opportunity has not been fully remedied since. In any event, the effect of r 12(3) is, on my interpretation of the regulation, to prevent unfair prejudice arising at the hearing before the Tribunal, as the result of delay in advising that a matter was to be reported.

[93] This ground of appeal must also fail.

Final Note

[94] As is clear from my findings above, the plaintiff’s application for review must be dismissed. I regret that the pressure of work has prevented me from issuing this judgment earlier, as the progress of the plaintiff’s case has already been delayed far too long. Up until the hearing of this review that delay has been occasioned by the unduly complicated nature of these disciplinary proceedings. As Mr Dymond remarked:

“For what should be a relatively straightforward process of investigating, charging, and setting up an independent inquiry into misconduct by a member of Police, the proceedings are remarkably complex. The charges have yet to be heard. The guilt or innocence of the plaintiff has yet to be established. Notwithstanding this, virtually every step taken by the Police in investigating the matter is challenged. It is submitted that it is undesirable for review proceedings to be disturbing the disciplinary process part way through the process: C v Wellington District Court [1996] 1 NZLR 668, 674: Melentyev v Beatson [1990] 1 NZLR 416. Although those cases concerned District Court criminal procedure, the principle remains. In particular, there has been no finding by the Tribunal on the charges. The plaintiff’s “rights” have yet to be ruled on.”

[95] Mr Dymond’s remarks necessarily find some favour with me, and it is appropriate to emphasise the fact that no step yet taken in these disciplinary proceedings has been finally determinative of the plaintiff’s rights. For that reason, although judicial review may be available in relation to interlocutory decisions, its unwieldy nature can result in undesirable complexity and delay in a simple process such as this. The most important matter for the plaintiff is to have the charges against him inquired into and a determination made as to whether or not they are established on the evidence.

Judgment

[96] The three decisions of Assistant Commissioner Fitzharris pursuant to r 14 are valid decisions; the oral decision of the Tribunal not to disqualify herself from hearing the plaintiff’s interlocutory application to dismiss the charges against him contained no errors of law, was procedurally and substantively fair, and was reasonable; the reserved decision of the Tribunal declining to dismiss the plaintiff’s interlocutory application contained no error of law, was procedurally and substantively fair, and was reasonable. The plaintiff’s application for review of each of the foregoing decisions is, therefore, dismissed.

Costs

[97] If costs are sought by the successful defendants then these are appropriately awarded in accordance with category 2B of the Third Schedule to the High Court Amendment Rules 1999.