POLICE - Appeal - compellability of Commissioner's Advisory Panel - 'extraordinary grounds' required'extraordinary grounds' not made out
Judgment (2 paragraphs)
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Judgment
The Appellant, Mr Aaron Beck, moves the Commission by a Notice of Motion filed on 26 October 2015 for certain orders, and seeks the grant of leave to issue certain subpoenae, in relation to proceedings which are set down to commence before the Commission on 16 November 2015.
Given the proximity of the proceedings I have elected to consider and determine the Motion in chambers. I do so in order to give certainty to the parties. I have no hearing days at all on which the matter can be listed before the hearing, and to set down the Motion to be heard on the first day of the proceedings is obviously unsatisfactory, leaving the parties in doubt as to the evidence to be brought and obviously putting the dates for the hearing at risk.
The Appellant seeks three specific orders.
The first is that the Commission give leave for the members of the relevant Commissioner's Advisory Panel to be compelled to attend and give evidence in the proceedings.
That is a power vested in the Commission under s.181H of the Police Act 1990 ('the Act').
The prima facie position under that statutory provision is that the members of the panel are not compellable to give evidence before the Commission: s.181H(1). The Commission may give leave that they be compelled, but only if the Commission considers that 'extraordinary grounds' exist that warrant leave being given.
As the moving party, the onus is on the Appellant to demonstrate that those 'extraordinary grounds' exist.
'Extraordinary' means what it says and I do not see that any gloss need be placed on the word. Evidence must therefore exist persuading the Commission that extraordinary conduct or circumstances have occurred that warrant a departure from the prima facie evidentiary position. Further, it must be that these extraordinary circumstances will be relevantly addressed by the evidence likely to be brought by the members of the Panel if compelled to give evidence.
The Appellant advances a range of grounds said to support a finding that extraordinary grounds exist warranting compelling the Panel to attend. I have read over them all carefully but do not repeat them all here.
The matters raised by the Appellant are allegations of a serous nature. I understand that the Appellant would welcome the opportunity to cross-examine members of the Panel. However, it is not at all apparent that such cross-examination (if it were permitted of persons summoned by the Appellant) would cast light on the matters which the Commission has to consider in the context of what is, essentially, an unfair dismissal case conducted within the boundaries of the provisions of the Industrial Relations Act as modified to a degree by the provisions of the Act: see Hosemans v Commissioner of Police (2004) 138 IR 159.
The Commission is not the Supreme Court. It does not relevantly possess declaratory powers and that is not the nature of its function. The Commission is essentially bound under statute to consider whether a dismissal, here of a police officer, was unfair.
I am not able to see that extraordinary grounds relevant to the appeal before the Commission exist. I am therefore unable to give leave that the members of the Commissioner's Advisory panel be compelled to give evidence and I do not do so.
The second element of the Motion is to seek that court transcripts in related Supreme Court proceedings be admitted in the Commission proceedings. I apprehend from the Appellant's affidavit that what is actually sought is that the transcript of the evidence of witnesses Shillitoe, McHenry and Saba (which includes cross-examination by counsel presently appearing for the Respondent) be admitted.
Section 181I(2) of the Act makes it clear that there is no bar to transcripts of proceedings in other courts being admitted in proceedings in the Commission. That is not to say that they must be. The transcript material must, for example, be relevant. Nor does the Act determine the weight to be given to the content of the transcript of the other proceedings. Many factors may render the material unhelpful, if evidence was being given in the context of addressing a different suit, for example.
There is no doubt that transcript material may as a general rule be admitted. In this case the transcript so far as it addresses the evidence of the three named witnesses comes as no surprise to the Respondent and has on its face the appearance of being relevant. I am disposed to admit the transcript. I form that view essentially on the basis that it may save time and resources to have regard to that evidence in transcript form rather than requiring the witnesses to be brought and examined, by the same counsel over the same material facts, once again. That approach is in my view consistent with the obligations placed on the Commission - and indeed the parties - both under the Industrial Relations Act and the Civil Procedure Act 2005 to act expeditiously.
Thirdly, the Appellant seeks that he be given leave to issue summonses to produce documents and attend to give evidence to four persons.
This is an application to bring further evidence and accordingly must be addressed in the context of the statutory regime provided for that purpose by s.181G of the Act.
The prima facie position is that fresh evidence is not to be admitted: s.181G(1)(f).
A discretion is given to the Commission to admit fresh evidence: subs.181G(f)(ii), but only if there has been a notice of an intention to bring that evidence and the substance of it: s.181G(1)(f)(i). The sub-section refers to a form prescribed by the Regulations, but there is no form so prescribed. That is not a bar to an application being made: Hosemans loc cit. Nevertheless there must be notice and a statement of the expected content of the fresh evidence.
Here the Appellant seeks leave to bring fresh evidence from four persons: former Commissioner Ken Moroney; Assistant Commissioner Mark Murdoch; Constable Hugh Kimber; and Senior constable Matthew Rispen.
In the case of the first two persons named there is no statement of the evidence it is expected they might give. The Appellant's purpose seems rather to be that he wishes to compel those persons to attend to be subject to examination by him. That is not available within the statutory scheme provided by Part 9 of the Act. As the statutory prerequisites for fresh evidence being called from those persons have not been met I am unable to give leave that evidence be brought from them and I decline to grant that leave.
The situation with Messrs Kimber and Rispen is somewhat different. In his affidavit of 23 October 2015 the Appellant provides, at paragraph 233, a summary of the evidence that he seeks to bring from Senior Constable Rispen; that is, that Superintendent Candell did not in fact hand a warning notice to the Appellant as Superintendent Candell asserts in his affidavit. That paragraph in the Appellant's affidavit is both notice of the intention to bring the evidence and sufficient specificity about its content. I will grant leave for a subpoena to be issued to Senior Constable Rispen to give evidence and the evidence will be admitted provided that that evidence is broadly consistent with outline at paragraph 233 of the Appellant's affidavit of 23 October 2015.
As to Constable Kimber, the Appellant identifies at paragraph 259 of his affidavit the evidence that he proposes to bring from that officer, that is, that he supplied the Appellant with a baton. Again, that paragraph in the Appellant's affidavit is both notice of the intention to bring the evidence and sufficient specificity about its content.
I will grant leave for a subpoena to give evidence to be issued to Constable Kimber and will admit his evidence provided that it is broadly consistent with the indication of the evidence given by the Appellant in his affidavit at the paragraph indicated.
The Orders that I therefore make are as follows:
1. Leave to compel the members, or any of them, of the Commissioners' Advisory Panel to give evidence as sought in the Appellant's motion at B 1 is refused.
2. Leave to submit transcript of evidence in the Supreme Court proceedings so far as it embraces the evidence of witnesses Shillitoe, McHenry and Saba is granted.
3. Leave is granted to have a subpoena issued to Senior Constable Matthew Rispen and Constable Hugh Kimber to attend and give evidence in the proceedings. Their evidence will be admitted if it is generally consistent with the outline of the evidence expected from them advanced by the Appellant in his affidavit of 23 October 2015.
4. Leave to issue subpoenae is otherwise not granted.
PETER NEWALL
Commissioner
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Decision last updated: 28 October 2015