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[2009] WAIRComm 1285
appellant. The Commission declared the Commissioner's decision to take removal action against AM to have been harsh, oppressive or unfair and ordered (pursuant to s 33U(2)) that the removal be taken to have...
AM was removed from the WA Police after a District Court conviction for historic sexual offending. After AM's conviction was quashed on appeal and the DPP later discontinued proceedings, the WA Industrial Relations Commission reviewed the Commissioner's removal decision. The Commission held the formal removal notice failed to state reasons but that defect was cured by later reformulated reasons. Critically, the Commission found the Commissioner had relied on trial credibility findings that were undermined by the Court of Appeal's decision quashing the conviction. Given AM's presumption of innocence after the quashing and his otherwise unblemished service, the Commission found the removal harsh, oppressive or unfair and ordered it to be treated as never having taken effect (subject to practical adjustment for the imprisonment period).
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AM, a police officer who had previously served in Victoria and for about 12 months in Western Australia, became the subject of a Commissioner of Police Notice of Intention to Remove dated 17 May 2006 on the basis of statements alleging that he had sexually penetrated a person aged over 13 and under 16 between September and October 2001. AM denied the allegation, was charged, and the Commissioner initially deferred removal pending the criminal proceedings (Background [1]–[3]). After a District Court judge convicted AM on 12 February 2008 and he was imprisoned, the Commissioner caused a Notice of Removal to be issued on 12–13 February 2008 and AM was removed (Background [4]). AM appealed his conviction; on 26 September 2008 the WA Court of Appeal allowed the appeal and ordered a retrial. The Director of Public Prosecutions subsequently discontinued proceedings (Background [5]). AM then pursued his statutory appeal under s 33P of the Police Act 1892 (WA) to the Western Australian Industrial Relations Commission (WAIRC) challenging the removal as harsh, oppressive or unfair. The WAIRC (Beech CC, Harrison C, Mayman C) heard fresh evidence (the Court of Appeal judgment and DPP discontinuance) and the Commissioner filed reformulated reasons. The Commission concluded that, on the material then available, the Commissioner’s decision to remove AM was harsh, oppressive or unfair and declared the removal to have been of no effect (Result; Orders to be made).
The Commission’s decision turned on three interlocking legal and factual themes.
Statutory requirement to give reasons: s 33L(5)(a) requires that a Notice of Removal advise the member of the reasons for the decision to take removal action. The original Notice of Removal issued on 12 February 2008 referred back to the Notice of Intention to Remove but did not expressly state the reasons for the final decision. The Chief Commissioner held that the statutory requirement is substantive: a member should not have to assume the reasons for removal, because the reasons for an eventual removal may not coincide precisely with those in the initial notice (Consideration – Ground 1 [1]–[3]). That said, the later filing of reformulated reasons under s 33R(10)(b) meant the reformulated reasons were to be treated as though given under s 33L(5)(a), and any initial absence of prejudice to AM negated the need to quash on purely procedural grounds (Consideration – Ground 1 [5]–[6]).
The effect of a quashed conviction: the Commissioner had relied upon AM’s District Court conviction and aspects of the trial judge’s credibility findings when deciding to remove him. The Court of Appeal, however, quashed the conviction and ordered a retrial because the trial judge had not given an adequate Longman direction and had erred in the order and evaluation of the complainant’s credibility, producing a substantial miscarriage of justice (Consideration – Ground 3 [4]–[12]). Beech CC concluded that the Court of Appeal’s quashing meant that the credibility findings from the trial were infected by the error and could not furnish a reasonable foundation for permanent removal: the conviction had been set aside and, absent a retrial, AM remained presumptively innocent (Consideration – Ground 3 [6], [11], Conclusion [2]–[7]).
Balancing interests under s 33Q(4): the statutory test whether removal was "harsh, oppressive or unfair" involves assessing whether the discretionary removal power was exercised so as to amount to an abuse of that right, which requires balancing AM’s interests (including presumption of innocence and long unblemished service) and the public interest in maintaining public confidence in police integrity. The Commission found that, on the new evidence, the Commissioner’s reliance on the quashed trial findings and on untested investigatory material failed that balancing exercise and rendered the removal unfair (Conclusion [1]–[8]; Orders).
Collectively these findings produced the result: the removal was harsh, oppressive or unfair and is to be treated as having always been of no effect, with a qualification excluding the period while AM was imprisoned from any practical restoration of duties (Orders to be made).
Before this decision, the statutory framework under Division 2 of the Police Act (notably ss 33L, 33P, 33Q, 33R, 33U, 33W, 33X) was accepted as governing removal and appeal. The Commission applied established principles: that the statutory test under s 33P looks to whether the removal was harsh, oppressive or unfair; statutory provisions permit the Commissioner to act notwithstanding charging/acquittal (s 33W); and s 33R permits tender of new evidence and reformulation of reasons.
What this decision clarifies (within the Commission’s jurisdiction) is:
The requirement in s 33L(5)(a) to give reasons in a Notice of Removal is substantive, not merely procedural. A cross-reference to the Notice of Intention is not an automatic compliance with s 33L(5)(a) because the final reasons could differ from earlier stated grounds (Consideration – Ground 1 [1]–[3]).
Reformulated reasons under s 33R(10)(b) can operate to cure a prior omission by being treated as the reasons given under s 33L(5)(a), provided that tendering those reasons and the procedural sequence does not occasion prejudice (Consideration – Ground 1 [6]).
A conviction that is quashed for a substantial miscarriage of justice cannot be used as a dependable basis for disciplinary removal, especially where the trial judge’s credibility findings were integral to the error; the presumption of innocence reasserts itself and must be weighed under s 33Q(4) (Consideration – Ground 3; Conclusion).
These principles do not displace the Commissioner’s power to remove where conviction stands: the decision accepts the Commissioner may act upon a conviction and need not invariably await appeal expiry (Consideration – Ground 2). But where the conviction is set aside, different conclusions may follow.
"Section 33L(5) requires the Notice of Removal to advise the reasons for the decision to take removal action..." (Consideration – Ground 1 [1]). Plain English: the law says the final notice telling an officer they are being removed must say why, not merely refer to an earlier notice.
"AM is still presumed to be innocent; the observations of the District Court Judge regarding the credibility... came from a trial process where... it is impossible to assess the impact of the irregularity on the fairness of the trial..." (Conclusion [2], [5], [7]). Plain English: because the appeal court found the trial was unfair in a way that could have affected the outcome, the trial judge’s statements about who was believable cannot be relied on now; legally AM is to be treated as innocent unless a proper trial proves otherwise.
"When the respective judgments are read as a whole, they do not form a reasonable basis for [the Commissioner] to be satisfied that there is a sufficient doubt about AM's suitability..." (Consideration – Ground 3 [2]–[3]). Plain English: looking at the full appeal judgments, they do not give a sound reason for removing AM from the police.
Reformulated reasons / cure via s 33R(10)(b): Beech CC accepted that reformulated reasons could be treated as the formal reasons for removal, effectively curing the original absence of stated reasons, so long as prejudice was not shown (Consideration – Ground 1 [6]). Plain English: the Commissioner can file a corrected explanation later, and that can fix the original paperwork problem if the officer wasn't harmed by the delay.
Practitioners should watch for cases with these features:
An officer is the subject of a Notice of Intention to Remove based on an allegation that later leads to criminal charges, conviction, appeal and quashing of the conviction (Background).
The Commissioner initially defers removal pending criminal outcome but later removes when a conviction is recorded; the conviction is subsequently quashed or a retrial ordered due to trial irregularity impacting credibility findings (Grounds 2–3).
The final removal notice either fails to state reasons expressly or relies heavily on conviction/credibility findings that are later undermined (Consideration – Ground 1 & 3).
Where these facts appear, the WAIRC will scrutinise whether the Commissioner’s reliance on quashed convictions or untested investigatory material was reasonable in the statutory balancing exercise and whether any defective notice was cured by reformulated reasons without prejudice.
As this decision is of the WAIRC, its status in the hierarchy is limited: it is authoritative in the commission's domain but not binding on superior courts. The judgment expressly cited and relied upon higher and contemporaneous authorities (McKay v Commissioner of Police, Carlyon v Commissioner of Police, and The Undercliffe Nursing Home principles) to apply the 'harsh, oppressive or unfair' test. The decision demonstrates the Commission’s willingness to give substantive effect to procedural protections in the Police Act while recognising the Commissioner’s pragmatic powers under s 33W. Subsequent tribunals and courts would look to this decision for how the WAIRC balances presumption of innocence and public interest where convictions are quashed and how s 33R reformulated reasons can operate to cure an initial defect.
(Users should consult subsequent authority to see whether higher courts have adopted or distinguished these points in subsequent appeals or related litigation. This deep dive does not invent such later treatments.)
Scope of 'prejudice' when s 33R reformulates reasons: Beech CC accepted that AM suffered no direct prejudice from the initial omission because the reformulated reasons were later provided and AM amended his grounds (Consideration – Ground 1 [5]–[6]). But what precise facts will satisfy a finding of prejudice sufficient to render an original defective Notice of Removal substantially invalid remains fact-specific and somewhat open.
Quantifying the public interest in cases where allegations do not relate to service: Beech CC placed weight on the fact the alleged conduct occurred when AM was not a police officer and that the allegation did not concern his service (Conclusion [6]–[7]). Whether different factual matrices (eg, allegations of dishonesty while on duty) would produce a different balancing outcome remains context-dependent.
Practical scope of orders under s 33U: the Commission declared the removal of no effect but excluded the imprisonment period. The technique and limits of restorative orders under s 33U (for pay, seniority, benefits) where practical difficulties exist were not fully ventilated and were left to the parties to draft, leaving procedural and remedial questions open.
Reliance on appellate comments that partially support conviction: Beech CC concluded that isolated appellate remarks that the verdict could be supported on certain grounds cannot be divorced from the overarching appellate decision to quash (Consideration – Ground 3 [2]–[3]). The boundary between permissible selective reliance on appellate observations and impermissible cherry-picking requires care, and future cases will need to delineate when appellate comments survive the impact of a quashing.
Interplay between s 33W and the duty of fairness: while s 33W permits action despite charges or acquittal, the decision recognises an earlier discretion to defer (Ground 2). The precise circumstances in which the Commission will regard removal immediately after conviction as reasonable remain fact-driven and somewhat indeterminate.
Conclusion: AM v Commissioner of Police [2009] WAIRComm 1285 is a detailed application of the Police Act’s disciplinary and appeal regime demonstrating the WAIRC’s care in safeguarding procedural rights, the presumption of innocence after appellate quashing, and the need for a real evidentiary foundation before depriving a police officer of office. Practitioners should carefully assess both procedural compliance with s 33L and the substantive evidential basis for removal, especially where criminal convictions are later set aside.
APPEAL AGAINST A DECISION OF THE COMMISSIONER OF POLICE TO TAKE REMOVAL ACTION
CHIEF COMMISSIONER A R BEECH COMMISSIONER J L HARRISON COMMISSIONER S M MAYMAN
HEARD MONDAY, 4 MAY 2009, WEDNESDAY, 12 AUGUST 2009, THURSDAY, 8 OCTOBER 2009, THURSDAY, 12 NOVEMBER 2009
CITATION NO. 2009 WAIRC 01285
CatchWords Removal of Police Officer - Loss of confidence by Commissioner of Police - Officer convicted of criminal offence - Conviction overturned on appeal - Whether removal harsh, oppressive or unfair - Police Act 1892 (WA) s 33L(1), (5)(a), s 33P, s 33Q(4), s 33R, s 33R(8), s 33R(10)(b), s 33Us, s 33W, s 33XU
Result Removal was harsh, oppressive or unfair and removal from office is and is to be taken to have always been of no effect
On 15 May 2006, the Commissioner of Police issued a Notice of Intention to Remove AM from the Police Force. The Notice stated that the Commissioner of Police had lost confidence in AM's suitability having regard to the matter set out in an attached Summary of Investigation, as well as statements obtained, which suggested that between 1 September 2001 and 31 October 2001 at Kalgoorlie, he sexually penetrated a person without her consent in a circumstance of aggravation in that at the time she was over the age of 13 years and under the age of 16 years (Tab 6 of Commissioner of Police's Documents). AM had been a member of the Police Force for a period of approximately 12 months prior to being served with the Notice of Intention to Remove and at the time of the alleged incident giving rise to the loss of confidence nomination he was not a member of the Police Force.
AM's Response to the Commissioner's Loss of Confidence notice is dated 7 June 2006 (Tab 5). He emphatically denied the allegation and noted that he had been charged with a criminal offence arising from the alleged incident, that he had entered a plea of not guilty and continued to maintain his innocence. His submission was that the allegation had no substance or foundation and would be defended before a jury which would assess the evidence which is an advantage that the Commissioner of Police did not have. Further, the Commissioner of Police's loss of confidence was based upon untested statements of individuals. AM submitted (at [23]) that bearing in mind the presumption of innocence and the fact that it is equally in the public interest that the Police Force be seen to uphold such fundamental principles, public confidence is best served by the loss of confidence process being held in abeyance pending the disposition of the criminal charge.
On 31 July 2006, the Acting Commissioner of Police advised AM that he was prepared not to take removal action pending the outcome of the criminal trial in relation to the charges preferred against him under s 326 of the Criminal Code (Tab 2). AM was then stood down on full pay pending the outcome.
On 12 February 2008, following a trial in the District Court of Western Australia before a Judge alone, AM was convicted of the charge of sexual penetration without consent of a child over the age of 13 years and under the age of 16 years ([2008] WADC 20) and was imprisoned. On that same day, the Commissioner of Police informed AM that, further to the Notice of Intention to Remove of 17 May 2006, the Minister for Police approved his removal from the Police Force on 12 February 2008 (Tab 1).
AM appealed against his conviction and on 6 March 2008, AM also appealed to the WAIRC against his removal. As he had appealed against his conviction, and pursuant to s 33T of the Police Act, his appeal to the WAIRC was adjourned pending the outcome of the appeal against his conviction ((2008) 88 WAIG 203; 2299 and (2009) 89 WAIG 380). On 26 September 2008, the Court of Appeal (WA) allowed the appeal and ordered a retrial ([2008] WASCA 196). Subsequently the Director of Public Prosecutions ("DPP") discontinued the proceedings against AM with the result that there was not, and will not be, a retrial.
For the purposes of his appeal to the WAIRC, leave was granted at a hearing on 12 August 2009 to AM to tender as new evidence pursuant to s 33R of the Police Act a copy of the judgment of the Court of Appeal and a copy of the DPP's notice of the discontinuance of proceedings against AM. As a consequence of the tendering of new evidence, and pursuant to s 33R(8) of the Police Act, on 11 September 2009 the Commissioner of Police filed reformulated reasons for the removal of AM from the Police Force and also tendered as new evidence a copy of the decision of the District Court of Western Australia.
The Case Presented by the Commissioner of Police
The Commissioner of Police's reformulated reasons for removing AM note (at [5]) that he had been prepared to accede to AM's request to defer a final decision in his case principally because the allegation was of an extremely serious nature and all of the evidence was at that time untested. As AM had been convicted, he removed him from the Police Force and the mere fact that he had been convicted, together with the fact of his imprisonment, made this necessary and he saw no need to revisit his reasons for requiring AM to show cause prior to removing him from office (at [7]).
The Commissioner of Police stated that as AM's conviction has now been quashed it is no longer appropriate to rely solely on the fact of the conviction as providing a sufficient basis for his removal and he considered whether on the material available to him he had cause to lose confidence in AM's suitability to remain as a Police Officer. The Commissioner referred to the District Court trial noting that the District Court Judge accepted the complainant's evidence (i.e. the person allegedly sexually penetrated) as truthful and reliable, and did not consider AM's evidence to be persuasive and that "it did not have a ring of truth about it". The Commissioner of Police referred to what he described as the long standing principle of a trial judge enjoying the advantage of hearing and observing the demeanour of witnesses in assessing their credibility.
The Commissioner of Police noted that AM's appeal to the Court of Appeal was on four grounds. The first challenged the admissibility of TL's evidence; the second challenged the weight accorded to TL's evidence by the District Court Judge; the third challenged the sufficiency of the Longman direction (Longman v. The Queen [1989] HCA 60; (1989) 168 CLR 79) given by the judge while the fourth ground of appeal contended that the verdict was not reasonably open and was unsafe and unsatisfactory. The Commissioner noted that AM had been successful on the third ground of appeal only. The Commissioner of Police considered that, having regard to the nature of the power afforded to him to remove a Police Officer in whom he has lost confidence, even if the District Court Judge had given herself the appropriate Longman direction and had been unable to satisfy herself as to AM's guilt, it would still be open to the Commissioner of Police to have regard to the Judge's observations about AM's evidence and that of the complainant. Given the advantage the trial judge had in hearing and observing the demeanour of witnesses and assessing their credibility, the Commissioner of Police believed that the District Court Judge's observations regarding the truthfulness of the complainant's evidence, in contrast to the unpersuasive nature of AM's evidence was sufficiently compelling to give rise to a significant doubt in the mind of the Commissioner of Police as to the suitability of AM to be a Police Officer having regard to his conduct, honesty and integrity (at [21]).
The Commissioner of Police stated that the fact that all three Judges of the Court of Appeal dismissed the fourth ground of appeal which related to the verdict of guilty not being reasonably open to the trial judge, and instead considered that there was ample evidence to support the verdict of guilty, thus fortifying his doubts about the suitability of AM to remain as a Police Officer. The Commissioner of Police set out (at [22]) each of the comments of the trial judges to which he was there referring.
The Commissioner of Police maintains that it is enough that in good faith he considers that the officer is not fit to occupy the office of constable or that there was real doubt about the officer's suitability to be a member of the Police Force (at [23]). He concluded that having regard to the observations of the District Court Judge and the decision of the Court of Appeal on the fourth ground of appeal, he was satisfied that there was sufficient doubt about AM's suitability to be a Police Officer having regard to his honesty, integrity and conduct.
The reformulated reasons (at [25]) states that the Commissioner of Police relies upon the Summary of Facts and Issues of Law, and the matters set out in reply, which are in his response of 30 June 2009. For completeness, that response refers to s 33W of the Police Act which provides:
33W. Effect of charge for an offence or an acquittal
(a) has been charged with committing an offence; or
that charge, the existence of proceedings relating to that charge or the acquittal does not preclude the Commissioner of Police from taking any action under this Part in relation to any matter, act or omission relating to or being an element of the offence.
"1. The Notice of Removal dated 12 February 2008 and served on 13 February 2008 provides no detail of why removal action was effected, however it is assumed the only reason was the Appellant's conviction for the offence of sexual penetration without consent in the District Court of Western Australia on 12 February 2008.
(a.) the notice under subsection (3)(b) shall advise the member of the reasons for the decision;
In relation to Ground 1 of the Appeal, in my view the Notice of Removal given to AM on 12 February 2008 (Tab 1) does not comply with s 33L(5) of the Police Act. Section 33L(5) requires the Notice of Removal to advise the reasons for the decision to take removal action. The Notice given to AM commences with the words "Further to the Notice of Intention to Remove from the Police Force of Western Australia dated 17 May 2006, ..." but provides no reasons for the decision to take removal action. In the absence of words such as "For the reasons set out in the Notice of Intention to Remove...", the reasons for the Commissioner's removal need to be assumed to be the same as the reasons set out in the Notice of Intention to Remove, even if it be an assumption made with confidence.
The significant point is that a member of the Police Force who has been removed should not have to assume what the reasons are for his or her removal. They may not be the same as the reasons set out in the Notice of Intention to Remove. The Notice of Intention to Remove may, depending on the circumstances, contain a number of reasons why the Commissioner has lost confidence in an officer's suitability to remain a member of the Police Force. Pursuant to s 33L(2) of the Police Act, the officer may within 21 days make a written submission to the Commissioner of Police in respect of those reasons. Pursuant to s 33L(3) the Commissioner of Police is then to decide whether or not to take removal action and in so doing take into account any written submissions received from the officer. Therefore the reasons for the Commissioner of Police deciding to remove an officer may be all or only some of the reasons set out in the Notice of Intention to Remove.
It is for that reason, I suspect, that the Police Act requires separately in s 33L(1) that the Commissioner of Police's written Notice of Intention to Remove set out the grounds upon which the Commissioner of Police does not have confidence in the member's suitability to continue as a member, and in s 33L(5)(a) that the Commissioner advise the member of the reasons for the decision to take removal action. This recognises that the eventual reasons for deciding to remove a member may differ from the grounds for intending to remove the member. Therefore, a mere reference in the Notice of Removal to the earlier Notice of Intention to Remove does not satisfy the requirement to give reasons for the decision to remove the member.
The failure of the Commissioner of Police to comply with the procedure described under Division 2, which includes s 33L of the Police Act, shall not be invalid or called into question if the failure is not substantive (s 33X of the Police Act). Ordinarily, a failure to provide reasons for decision where an officer is removed from office might materially affect the right of the officer to appeal his or her removal under s 33P of the Police Act. This is because the officer would not know the basis upon which the decision to remove had been made. Therefore, the requirement on the Commissioner of Police in s 33L(5)(a) to provide reasons for the decision to remove an officer is a substantive, and not procedural, requirement.
In the context of this matter, it is pertinent to consider whether any prejudice was occasioned to AM by the failure of the Notice of Removal to contain the reasons for the decision to remove him. It was not submitted on behalf of AM that he had suffered any prejudice directly from the failure of the notice to contain the reasons (transcript page 20). I do not think AM has suffered any prejudice. The Notice of Intention to Remove (Tab 6) contains only one reason why the Commissioner of Police lost confidence in AM's suitability to continue as a member of the Police Force, that is, statements obtained by the Commissioner of Police suggesting that AM sexually penetrated a person without her consent in circumstances of aggravation. Where only one reason, albeit a most serious accusation, forms the basis for the Commissioner's loss of confidence in AM, it is not unreasonable to argue, as Mr Andretich submitted, that the reference in the Notice of Removal to the Notice of Intention to Remove makes it plain that the reasons for the Commissioner's decision to remove AM are the reasons set out in the Notice of Intention to Remove.
Further, I consider the failure to provide the reasons for removing AM is overtaken by the subsequent granting of leave to AM to tender new evidence and, as a consequence, the Commissioner of Police reformulating his reasons for not having confidence in AM's suitability to continue as a member. Section 33R(10)(b) obliges us to consider the reformulated reasons as if they had been reasons given to AM under s 33L(5)(a) of the Police Act. In effect, the reformulated reasons replace the original Notice of Removal. Importantly, AM amended his grounds of appeal subsequent to the reformulated reasons and I consider that by the time of the hearing of his appeal, any prejudice to AM from the original Notice would have been overcome by these later events. Therefore, despite the Notice of Removal not containing the reasons for the Commissioner's decision to remove AM, I would not uphold the appeal on this ground.
In Ground 3, AM argues that the quashing of his conviction and the ordering of a retrial, and the DPP's subsequent discontinuance of the proceedings against him, means that the reason for his removal on the basis of the criminal conviction alone became invalid. As Ms Vernon in these proceedings emphasises, the three Judges of the Court of Appeal upheld the appeal against the decision of the District Court Judge on the basis that there had been a substantial miscarriage of justice.
In my view, this ground requires a consideration of the Commissioner of Police's reformulated reasons because the Commissioner of Police states in them at [8] that as AM's conviction has now been quashed it is no longer appropriate to rely solely on the fact of the conviction as providing a sufficient basis for his removal and he considered whether on the material available to him he had cause to lose confidence in AM's suitability to remain a Police Officer.
As I have set out earlier, the Commissioner of Police relies upon the District Court Judge's decision where Her Honour found the complainant's evidence truthful and reliable ([2008] WADC 20 at [33]) and did not consider AM's evidence to be persuasive, and that all three judges of the Court of Appeal dismissed the fourth ground of appeal that the verdict was not reasonably open to the trial judge. The Commissioner of Police was therefore satisfied that there was sufficient doubt about AM's suitability to be a Police Officer.
This reliance requires a careful examination of the judgments of the Court of Appeal. When assessing the impact of the District Court Judge's failure to correctly apply the appropriate Longman direction, Steytler P held at [17] that a substantial delay in making a complaint will ordinarily have a number of consequences including that "[t]he evidence of the complainant cannot be adequately tested, making it dangerous to convict on that evidence alone, although the trier of fact can convict on that evidence alone if satisfied of its truth and accuracy". He noted that in the present case the District Court Judge had concluded that any prejudice to AM from the delay was minimal and there were no real dangers arising from the delay. Steytler P stated at [20] that there were material shortcomings from this analysis in that there had been real prejudice to AM and, at [21], the acceptance of TL's evidence did not overcome the dangers arising from the delay. These errors were central to the decision of the District Court Judge that it was safe to convict essentially on the strength of the complainant's evidence.
In other words, in my view, His Honour is saying that it was not safe to convict AM essentially on the strength of the complainant's evidence because there had been real prejudice to AM arising from the delay, and the acceptance of TL's evidence did not overcome those dangers. This must call into question the weight which now can be attached to the District Court Judge's observation that the complainant's evidence was truthful and reliable, because as Steytler P has said "[t]he evidence of the complainant cannot be adequately tested, making it dangerous to convict on that evidence alone...". The balance of his Honour's sentence, "although the trier of fact can convict on that evidence alone if satisfied of its truth and accuracy", did not change this finding; it led to the conclusion that there should be a retrial.
The conclusion that there should be a retrial is most important: although Steytler P states at [23] that this is a case in which it would be open to a trier of fact to convict and like Miller JA held that nothing raised in Ground 4 would inevitably make it unreasonable, insupportable or dangerous to convict AM, a retrial necessarily carries with it the presumption that AM is innocent of the charge laid against him. It will be up to the prosecution in another trial to prove AM's guilt beyond reasonable doubt and unless and until that occurs, AM remains innocent of the charge. If the charge against AM remains unproven, the issue for the WAIRC becomes whether his removal in these circumstances is harsh, oppressive or unfair. I shall return to this issue subsequently.
Miller JA dismissed the fourth ground of appeal. His Honour at [187] found that there was ample evidence to support the verdict of guilty and that once the evidence of the complainant was accepted as credible and persuasive and the evidence of AM was rejected, it was necessary only for the trial judge to carefully scrutinise the evidence of the complainant before acting upon it. It could not be said that a verdict of guilty was unreasonable, incapable of being supported having regard to the evidence or in any way unsafe or unsatisfactory. However, Miller JA held earlier at [146] that an error had been made by the District Court Judge in that what was missing from the Longman direction given by her was a direction that the delay had in fact made it difficult to test the complainant's evidence; the delay had caused actual prejudice to AM, rather than possible prejudice. A second error (see [147] - [149]) was that the District Court Judge had elevated the evidence of TL to that of a confession such that any prejudice to AM occasioned by the delay in being charged was minimal.
At [150] and following, Miller JA then noted that that under s 30(4) of the Criminal Appeals Act 2004 (WA) even if a ground of appeal might be decided in favour of AM, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. He did not dismiss the appeal, holding that the District Court Judge's failure to properly direct herself in accordance with the Longman direction (that is, as he had earlier stated, that the delay had in fact made it difficult to test the complainant's evidence and the evidence of TL did not make minimal any prejudice to AM occasioned by the delay in being charged) constituted "a serious breach of the presuppositions of the trial process" which denied the application of s 30(4). His Honour concluded that it is impossible to assess the impact of the irregularity on the fairness of the trial.
Murray AJA at [190] agreed with both Steytler P and Miller JA that the appeal should be allowed and a new trial ordered. In relation to the fourth ground, at [196] he agreed with them both that the proposition that the verdict and decision of the District Court Judge was unreasonable or cannot be supported, having regard to the evidence, is not made good.
It is Murray AJA's consideration of the applicability of the Longman direction to which I draw particular attention. His Honour stated at [202] that the need for the Longman direction arises "where, for any reason, the reliability of a witness, upon the acceptance of whose evidence the prosecution case solely or substantially relies, comes into question...". His Honour at [204] agreed with both Steytler P and Miller JA that the lapse of time between the alleged commission of the offence and AM being charged and the trial, meant that there was an incapacity for either side to gather evidence which might enable the credibility of the complainant to be thoroughly examined in the context of a body of evidence concerned with the events of the night in question.
Murray AJA noted at [205] that the District Court Judge spoke approvingly of the complainant as witness and then referred to matters arising from the Longman direction. At [206] his Honour stated: 1. Her Honour then referred to matters under the heading 'Longman warning'. In other words, it seems to me that her Honour reversed the appropriate order of consideration of the issues. Before considering the extent to which she needed to carefully scrutinise the evidence of the complainant, having regard to the various challenges made to its reliability, her Honour had already expressed the view that she accepted the complainant's evidence as being truthful and reliable. In my view, her Honour was in error in that regard.
His Honour found at [207] that the District Court Judge thereby reversed the appropriate order of consideration of the issues and was thereby in error. I set out his Honour's conclusions (omitting references): 1. The evidence of TL was certainly important in the case. If accepted, as it was, the appellant had made statements contradicting his evidence and that of his mother that he had no opportunity to commit the offence. But that evidence, relevant only in that way and having no probative value to support the complainant's evidence that the appellant did commit the offence in the circumstances she alleged, was not material to the process of carefully scrutinising the complainant's evidence, having regard to the matters of forensic disadvantage which the case raised, before the complainant was accepted as a truthful witness. 2. Rather, what the trial judge did in this case, it seems to me, was that, having already accepted the complainant as a truthful witness, her Honour did not adequately and appropriately evaluate the reliability of her evidence, having regard to the obvious elements of forensic disadvantage which the case threw up. 3. That error having been made, there has been a substantial miscarriage of justice because the appellant has been deprived of a trial in which the complainant's evidence, upon which the case against him so substantially depended, was appropriately and thoroughly tested for its reliability before it was accepted as evidence of truth. 4. For those reasons, I concur in the view that it would be appropriate in this case to allow the appeal, quash the conviction and order a retrial.
In the reformulated reasons at [19] the Commissioner of Police states:
As I understand the point of the Court of Appeal's decision, while it may be unsafe to convict the appellant in the absence of an appropriate warning as to the disadvantage caused by the delay, it does not mean Her Honour was not entitled to find that the complainant was a credible witness or that the appellant was unpersuasive.
As I have set out above, the judgment of Murray AJA makes it clear that the District Court Judge's acceptance of the complainant as a truthful witness was an error because it was made before adequately and appropriately evaluating the reliability of her evidence, having regard to the obvious elements of forensic disadvantage which the case threw up. It led to a substantial miscarriage of justice. In my view this is the same conclusion reached by Steytler P at [22], that the errors were central to the decision of the District Court Judge that it was safe to convict essentially on the strength of the complainant's evidence, and by Miller JA at [146] that an error had been made by the District Court Judge in that what was missing from the Longman direction given by her was a direction that the delay had in fact made it difficult to test the complainant's evidence.
It follows that the comments of Steytler P at [23] (that this is a case in which it would be open to a trier of fact to convict AM); Miller JA at [187] (that there was ample evidence to support the verdict of guilty) and Murray AJA at [196] (that the proposition that the verdict and decision of the District Court Judge was unreasonable or cannot be supported, having regard to the evidence, is not made good) upon which the Commissioner of Police relies in the reformulated reasons at [22] are comments which are to be read in the context of the judgments as a whole. It is correct that the fourth ground of appeal was dismissed and that Steytler P and Miller JA respectively held that it would be open to a trier of fact to convict and there was ample evidence to support the verdict of guilty. However, the observations of the District Court Judge regarding both the complainant's truthfulness and AM's unpersuasiveness were found to be part of an error which resulted in a substantial miscarriage of justice. Their decision means that in order to decide those issues and whether there will finally be a verdict of guilty there will need to be a retrial. In the absence of a retrial, those issues of credibility are and remain undecided.
I therefore conclude that the reliance by the Commissioner of Police on the observations of the District Court Judge and the respective judgments of the Court of Appeal as to the fourth ground of AM's appeal is, with respect, not reasonably open to him. When the respective judgments are read as a whole, they do not form a reasonable basis for him to be satisfied that there is a sufficient doubt about AM's suitability to be a Police Officer. To hold otherwise is to say AM's removal is fair on the basis of observations regarding credibility made by the District Court Judge in proceedings which were subsequently overturned or on the basis of certain comments made by the three Judges of the Court of Appeal which when read in context were themselves not sufficient to lead them to dismiss AM's appeal.
As Mr Andretich submitted, the Commissioner of Police did also have before him the material contained in the Summary of Investigation. However, there are two difficulties with the material contained in the Summary of Investigation. First, it is not clear that the Commissioner of Police relied upon this material in the reformulation of his reasons. The reformulated reasons show at [7] that AM's conviction and imprisonment alone were the deciding factors in the Commissioner of Police's decision to remove AM because he "saw no need to revisit [his] reasons for requiring the appellant to show cause prior to removing him from office" and the fact of conviction and imprisonment made his removal necessary.
The Commissioner of Police may not have relied upon this material due to the second difficulty which is that prior to AM's conviction, the Commissioner of Police recognised that the material contained in the Summary of Investigation was untested. It was, as Mr Andretich stated, a suspicion and therefore, properly in my view, the Commissioner of Police decided not to take removal action pending the outcome of the criminal trial in relation to the charges preferred against AM under s 326 of the Criminal Code (Tab 2). The fact is that the material contained in the Summary of Investigation remains untested. The reformulated reasons at [25] states that the Commissioner of Police relies upon the Summary of Facts in his response of 30 June 2009, however to the extent that the Summary of Facts states as fact the allegation made against AM (particularly [3] to [6]), the Commissioner of Police is not able to fairly rely upon the Summary at all: the allegation still remains an allegation and it has not been established as a fact. Therefore the earlier decision of the Commissioner of Police not to take removal action pending the outcome of the criminal trial in relation to the charges remains. I find Ground 3 is made out.
The essential question before us is whether the decision of the Commissioner of Police to remove AM was harsh, oppressive or unfair (McKay .v Commissioner of Police [2006] WASC 189 at [25]; [2006] WASC 189; (2006) 155 IR 336). The test whether the decision of the Commissioner of Police to remove AM was harsh, oppressive or unfair is whether the legal right of the Commissioner of Police to remove AM has been exercised so harshly or oppressively against him as to amount to an abuse of that right (Carlyon v. Commissioner of Police [2004] WAIRComm 11966; (2004) 85 WAIG 708 at 724; [2004] WAIRC 11966 at [181], applying The Undercliffe Nursing Home v. The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch (1985) 65 WAIG 385 per Brinsden J at 386). That test necessarily involves a consideration of all of the circumstances including those set out in s 33Q(4) of the Police Act.
Having regard to the interests of AM (which we are required to do under s 33Q(4)(a) of the Police Act), I consider there is much force in the submission of Ms Vernon that in the circumstances where a retrial was ordered, AM is entitled to the presumption of innocence. If that was not the case, the Court of Appeal would not have upheld the appeal and ordered a retrial. The fact that there will not be a retrial does not remove that presumption and it remains.
The interests of AM include the material contained in the background to his Response to the Commissioner's Loss of Confidence Notice (Tab 5, page 4) which refers to a seemingly unblemished service of 11½ years as a member of the Victoria Police, including having been awarded the Police Service Medal for Diligent and Ethical Service, and a number of written commendations and references attesting both to his ability as a Police Officer and to his character.
We are also to have regard to the public interest which is taken to include the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force, and the special nature of the relationship between the Commissioner of Police and members of the Force. Maintaining public confidence in the Police Force is a matter of fundamental importance. The allegation against AM in the material in the Summary of Investigation is very serious; the fact remains, however, that after a trial before a Judge of the District Court and the subsequent appeal, the allegation (in the form of the criminal charge) ultimately has not been proven.
AM was convicted and imprisoned. If this appeal was to be decided on those two circumstances alone I would dismiss the appeal. However, as Mr Andretich observed in relation to Ground 1, correctly in my respectful observation, circumstances have moved beyond the removal of 12 February 2008 with the reformulated reasons of 11 September 2009. The new evidence before us demonstrates that the conviction resulted from a trial process where, per Miller JA, it is impossible to assess the impact of the irregularity on the fairness of the trial and the conviction was quashed and AM was released.
Further, although the conduct alleged is very serious, it does not refer to AM's conduct or performance as a Police Officer although I add that if the allegation had been proven, the fact that AM was not a Police Officer at the time it occurred would not prevent a finding that that the Commissioner of Police had lost confidence in his suitability to be a Police Officer on the basis of a lack of integrity or honesty. In these circumstances, I do not consider that public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force is compromised.
In relation to the special nature of the relationship between the Commissioner of Police and members of the Police Force, the position of the Commissioner of Police in relation to AM cannot reasonably be significantly different today from the position in July 2006 when he was not prepared to take removal action pending the outcome of the criminal trial. Whilst I accord considerable respect to the perceptions of the Commissioner of Police regarding that relationship and its special nature, in this case the outcome of the criminal trial will not be known, the State having discontinued its proceedings against AM. AM is still presumed to be innocent; the observations of the District Court Judge regarding the credibility of both the complainant and AM respectively came from a trial process where, per Miller JA, it is impossible to assess the impact of the irregularity on the fairness of the trial and which warranted a retrial; and the comments of the Judges of the Court of Appeal referred to and relied upon at [22] of the reformulated reasons are to be read in the context of the judgments as a whole which held the errors made by the District Court Judge required the appeal to be upheld and a retrial ordered.
In this case, the above analysis of the judgments of the Court of Appeal shows that the reformulated reasons for removing AM do not rest upon a strong foundation. The allegation against AM which led to the loss of confidence is the same as the offence for which AM was charged and for which he is still presumed to be innocent. In this circumstance, the fact that the allegation does not relate to AM's service as a Police Officer becomes important: AM's record of service as a Police Officer both in Victoria and for the relatively short time in WA is not questioned. Taking into account his interest and the public interest in s 33Q(4)(b), I conclude on the basis of the new evidence before us that it was unfair to remove AM from the Police Force. It was unfair because notwithstanding s 33W, the Commissioner of Police had decided not to take removal action pending the outcome of the criminal trial and that outcome has left the allegation against AM unproven and, in respect of the reformulated reasons, the observations made by the District Court Judge and the selected comments of the Judges of the Court of Appeal relied upon do not take into account the reasons why AM's appeal was upheld. I find Ground 3 is made out and that AM has discharged the onus upon him of showing the Commissioner of Police's decision to take removal action relating to him was harsh, oppressive or unfair.
(1989) 168 CLR 79
(2006) 155 IR 336
The Commission declared the Commissioner's decision to take removal action against AM to have been harsh, oppressive or unfair and ordered (pursuant to s 33U(2)) that the removal be taken to have always been of no effect; the Commission excluded from that declaration the period of AM's imprisonment and directed parties to agree a draft order.