Bolton v Commissioner of Police [2021] NSWIRComm 1055 | Case summary

The Appeal

The Appeal contained the following: "F. The questions raised by the appeal are: 1. Whether, Part 9, Division 1C of the Police Act 1990 operates so as to give the Respondent's statement of reasons prima facie status or to be considered presumptively correct. 2. Whether the jurisdiction of the Industrial Relations Commission is properly exercised when limited to considering whether the Respondent's fact finding is affected by error, or rather, it requires de novo review. 3. Whether the Commissioner correctly understood and applied the decisions in: a. Tredinnick v Commissioner of Police [2016] NSWIRComm 14, b. Tredinnick v Commissioner of Police [2016] NSWIRComm 1026, and c. Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073. 4. Whether the Commissioner failed to exercise his jurisdiction by not resolving the disputed questions of fact in the proceedings. 5. Whether the Commissioner properly confirmed the disputed allegations made against the Applicant in circumstances where there was no evidence adduced by the Respondent to support them. G. Reasons why leave to appeal should be granted: The matter is of such importance that, in the public interest, leave should be granted as: 1. The appeal raises issues regarding the proper administration of, and access to, justice for a class of public sector employees, being sworn police officers. 2. The appeal has broad implications for the jurisdiction exercised by the Industrial Relations Commission. 3. The appeal has general implications for the jurisprudence developed by the Industrial Relations Commission. 4. The determination of the appeal will affect all police officers engaged in the process established by s 181D of the Police Act 1990. 5. The appeal concerns the correct procedure for conducting a review under ss 181E and 181F of the Police Act 1990. H. Grounds of the appeal are: 1. The Commissioner erred in finding that the Applicant had not provided an account and/or sufficient evidence in answer to the disputed allegations (1, 2, 3 and 7) which the Respondent made against him. 2. The Commissioner erred in finding that no forensic significance attached to the failure by the Respondent to cross examine the Applicant and challenge his account given in answer to the disputed allegations. 3. The Commissioner erred in finding that no forensic significance attached to the failure of the Respondent to call the sole witness responsible for making the disputed allegations (1, 2, 3 and 7) against the Applicant. 4. The Commissioner erred in holding that the evidence of the Applicant was to be attributed no weight in the assessment of the disputed allegations (1, 2, 3 and 7). 5. The Commissioner erred in finding that the disputed allegations (1, 2, 3, 7, 8, 9, 10 and 11) were established by the evidence adduced by the parties in the course of the review. 6. The Commissioner erred in failing to give sufficient reasons in support of his finding that the disputed allegations (8, 9, 10 and 11) were established. 7. The Commissioner constructively failed to exercise the jurisdiction of the Industrial Relations Commission. 8. The Commissioner erred in dismissing the application."
In his Written Submissions on Leave to Appeal ("Leave Submissions") filed in support of his application for leave to appeal, Mr Bolton submitted: "Leave to Appeal 2. On the question of leave to appeal, the Appellant submits that it is in the public interest for the Full Bench to hear this case as it raises questions of principle and will permit substantial wrongs or errors to corrected which should not be left to stand. 3. The public interest considerations include: (a) the appeal raises important questions of principle as to the nature of the merits review jurisdiction that the Commission exercises under ss 181E and 181F of the Police Act; (b) the appeal provides an opportunity for the Full Bench to address the implications of the outcome in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; (c) the appeal raises serious and important questions in relation to the universal application of the decision in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 to cases which are distinguishable on their facts; (d) the appeal provides an opportunity for the Full Bench to pronounce the approach adopted in Morris v Commissioner of Police [2020] NSWIRComm 1041 as having been correctly adjudicated; (e) the appeal raises serious and important questions in relation to [the] threshold for shifting the evidentiary burden from an applicant to the respondent in cases which do not involve drug detection; (f) the outcome of the appeal will affect the right of police officers to exercise their privilege against self-incrimination during criminal investigations conducted by their employer and accordingly have broad ramifications for how police officers are advised by legal practitioners to respond; (g) the decision below contains errors in the approach adopted and it is in the public interest that the errors are corrected; (h) the decision below amounts to jurisdictional and legal error and cannot be allowed to stand. 4. Further, the approach adopted by the Commission below, in being critical of the Appellant's responses to the allegations, do not distinguish between the criminal investigation and the disciplinary investigation conducted by the Appellant's employer. This is an important matter because the New South Wales Police Force is a special category of employer. It is tasked with conducting criminal investigations during which it must observe the rights of suspects to exercise their civil right to remain silent, as well as internal disciplinary investigations in which police officers (including those who might have been the focus of the criminal investigation) are obliged to provide an account." (Footnotes omitted)

Determination

We have determined not to grant leave to appeal. Our reasons for this determination follow.
On 28 September 2020, three days after the Appeal was filed, the Court of Appeal handed down Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 ("Zisopoulos"). In dismissing the appeal in that matter (Bell P, Macfarlan JA agreeing; Wright J dissenting) the Court considered the Commission's jurisdiction under Pt 9 Div 1C of the Police Act, and in particular the question of who bears the onus in proceedings brought under s 181E of the Police Act, having regard to s 181F(2).
Bell P observed at [4], [40], [45] and [48] that Murphy C in the decision at first instance in Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011, and the Full Bench on appeal in Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073, had placed reliance on an earlier decision of the Full Bench in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 ("Tredinnick"). Nothing in his Honour's judgment suggests that there was any error in the approach taken in Tredinnick, or in the manner in which Murphy C and the Full Bench had relied on and applied it; rather, at [87] his Honour suggests otherwise.
Bell P further observed: "84. Depending upon the basis of the Police Commissioner's decision, as the Full Bench said at [27] citing Starr, the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust may be satisfied in a given case by casting sufficient doubt on the Police Commissioner's reasoning process so as to justify the IRC's intervention. But it is important always to remember that 'sufficient doubt' is not 'any doubt', and the raising of a doubt, sufficient or otherwise, does not in any way alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. So also, the mere 'going into evidence' by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that a removal was harsh, unreasonable or unjust nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner's original decision and of the strength of the evidence led by the removed officer and or the credibility of the alternative hypothesis. 85. If what the Full Bench in the present case referred to as 'sufficient doubt' is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust."
In the Decision, on the question of onus, Murphy C again relied on Tredinnick. He noted the approach he had taken at first instance in Zisopoulos v Commissioner of Police and that of the Full Bench in Commissioner of Police v Zisopoulos. There is nothing in the approach taken by Murphy C in the Decision, and in particular in passages reproduced at [5] above, which is inconsistent with the reasoning of the Court of Appeal in Zisopoulos.
We consider that the Commission's jurisdiction under Pt 9 Div 1C of the Police Act is well settled, particularly as a consequence of Zisopoulos. Nothing arises on the Appeal that "raises questions of principle as to the nature of the [Commission's] merits review function" as submitted in par 3(a) of the Leave Submissions.
Mr Bolton did not articulate the "implications" he said arise from Zisopoulos, as referred to at par 3(b) of the Leave Submissions. In any event, the Court of Appeal largely confirmed the approach which the Commission had historically adopted in such matters. As we consider that the Decision was consistent with Zisopoulos, it has no implications as to the jurisdiction of the Commission.
There appears to be an overlap between submissions 3(c) and 3(e) in the Leave Submissions. In his Written Outline of Submissions Mr Bolton submitted: "37. In the Appellant's submission, the Commission below fell into error by accepting the Respondent's submissions with respect to the effect of Tredinnick in the present case. The ratio of that decision must be understood in the context of cases involving certificates evidencing that a police officer tested positive for prohibited drugs. In such circumstances it is common sense that a mere denial cannot overcome the probative effect of a statutory certificate recording the scientific results of blood and/or urine analysis. The current case must be distinguished from such circumstances."
On the Appeal Mr Bolton submitted, in essence, that Murphy C had mechanically applied Tredinnick by adopting a "one size fits all approach" in the sense that "a bare denial will never do" (Tcpt, p 4(27-28)). For the reasons which follow, we do not accept this submission.
Although Tredinnick and Zisopoulos involved alleged drug use by police officers, the principles established by those authorities are not confined in their application to those factual circumstances. The attempt by Mr Bolton to distinguish those authorities on their facts is, as the Police Commissioner submitted, artificial. As Bell P made clear in Zisopoulos at [84]-[85] (reproduced at [16] above), whether an applicant casts sufficient doubt on the Police Commissioner's reasoning process to warrant the intervention of the Commission will be a function of the basis of the Police Commissioner's decision, the strength of the evidence led by the applicant and/or the credibility of any alternative hypothesis advanced. These considerations are not confined to particular scenarios, although the allegations against the applicant may have a bearing on the evidence that must be led by an applicant to raise "sufficient doubt" and inform a determination as to whether the applicant has done so.
At the heart of Mr Bolton's contentions on this ground is the assertion that Murphy C erred in finding that Mr Bolton had failed to produce sufficient evidence to cast doubt on the findings made by the Police Commissioner. That is, that while a "flat denial" may be insufficient in the face of scientific evidence, the evidence led by Mr Bolton should have been regarded by Murphy C as adequate in the circumstances of this case.
The Commissioner had before him documents setting out in detail Ms Skellet's description of the events of 9 May 2016 and 1 and 7 October 2016. Against this, he had statements from Mr Bolton that the incidents alleged by Ms Skellet did not happen and that she was, in any event, not a credible witness.
Mr Bolton placed particular reliance on the fact that in the proceedings below there was a statement of Sergeant ("Sgt") Maree Kiem, in which she recounted a conversation she had with Mr Bolton on 9 May 2016. Sgt Kiem stated: "7. …About 8.35am I contacted Sergeant BOLTON on his mobile. I advised him I had attended his partners [sic] address after she made a phone call to 000. BOLTON was not happy she had called the Police and told me that he had simply been trying to retrieve some Xanax that was prescribed to him for back pain. He insisted that he left when she asked him to and that it was a verbal argument only. …"
In submissions filed by Mr Bolton in the proceedings below, approximately one month after the hearing, Sgt Kiem's statement was referred to in a footnote to support the following submission: "He denied the allegations in the course of the investigation and gave an explanation that, although he had an argument with Ms Skellet (about disposing of his prescribed medication), there was no actual or threatened violence."
Mr Bolton submitted on the Appeal that Sgt Kiem's statement provided evidence of the events of 9 May 2016 beyond a "flat denial".
At [37]-[38] of the Decision, Murphy C made express reference to and reproduced in part the evidence which Mr Bolton asserted contained an explanation of the events of 9 May 2016, which included the passage from Sgt Kiem's statement reproduced at [25] above. His conclusion at [62] that Mr Bolton's case "really boiled down to a flat denial" suggests that he had undertaken an analysis and distillation of the evidence before him. Mr Bolton submitted that the Commissioner did not give that evidence the attention and importance he should have. We do not agree with this submission but consider, in any event, that it does not demonstrate appellable error.
Further, as the Police Commissioner submitted, there is nothing to suggest that Mr Bolton accepted that he had the conversation described by Sgt Kiem or that he adopted her statement. It appears first to have been relied on by Mr Bolton in his closing submissions.
Even taking Sgt Kiem's statement into account, and to paraphrase the observations made by the Commissioner at [57] and [59] of the Decision, Mr Bolton did not put an alternative hypothesis to him for consideration. In failing to provide his account of what had occurred, Mr Bolton was unable to meet the onus imposed on him by s 181F(2) of the Police Act.
Further, the approach for which Mr Bolton contends is difficult to reconcile with the statutory scheme established by Pt 9 Div 1C of the Police Act. In his Written Outline of Submission the Police Commissioner submitted, correctly in our view: "22. In response to the Appellant's contention that, his mere denial and his attack on Ms Skellet's credibility was sufficient to shift the evidentiary burden onto the Respondent, this submission is contrary to Tredinnick and Zisopoulos and, if correct, undermines the statutory scheme. If an applicant could just deny the misconduct, the practical effect would be to render [a] s 181E review no different to any unfair dismissal case involving misconduct, where an employee could just deny the conduct and then have the employer prove the misconduct occurred. If that were true, it would nullify the operation of the statutory sequence and onus provisions under s 181F of the Police Act." (Footnote omitted)
For these reasons, the approach adopted and conclusion reached by Murphy C reveal no error of the kind asserted in pars 3(c) and (e) of the Leave Submissions.
Paragraph 3(d) of the Leave Submissions contends that the Appeal provides an opportunity to "pronounce the approach adopted in Morris v Commissioner of Police [2020] NSWIRComm 1041 as having been correctly adjudicated". This is a curious submission, which misapprehends the role of the Full Bench in appeal proceedings.
In any event, in Morris the applicant did not merely deny the allegations, but advanced an alternative factual description of events. The approach adopted by the Chief Commissioner in that case must be seen in that context, noting also the subsequent decision in Zisopoulos.
The submission at par 3(f) of the Leave Submissions, that the appeal will affect the right of police officers to exercise their privilege against self-incrimination during criminal investigations conducted by their employer, is also without substance. We make two observations. First, as submitted by the Police Commissioner, the right of police officers to claim the privilege against self-incrimination in criminal and disciplinary investigations was recognised in Baff v Commissioner of Police [2013] NSWSC 1205.
Second, nothing in the Decision calls into question Mr Bolton's rights to claim the privilege against self-incrimination. The Commissioner drew no adverse inferences against Mr Bolton as a consequence of doing so. This is made apparent in the following passages of the Decision: "39. In addition, the applicant cited the record of interview between himself and Acting Inspector Guy Magee of 4 November 2016 where the applicant responded to the specific allegations of domestic violence against Ms Skellet with: I did not assault Susan SKELLET. I've sought legal advice. I do not wish to answer any more questions in regards to that allegation. At no time have I ever assaulted Susan SKELLET and: I want to remain silent in regards to that on legal advice … 56. The applicant was interviewed about Allegations 1, 2, 3 and 7 by Acting Inspector Guy Magee on 4 November 2016. His responses are set out above at [39]. These responses are unsurprising given the possibility/likelihood that he would be charged with criminal offences, which is what happened."
As it transpired, the criminal charges against Mr Bolton were withdrawn on 24 March 2017. The disciplinary process culminating in the Order effectively commenced on 1 August 2018, with the service on Mr Bolton of an Investigator's Report. As identified at [57]-[59] of the Decision, he had several opportunities to respond to the allegations against him. There is no evidence that at any time he sought to exercise any right against self-incrimination.
For the same reasons, the contention in par 4 of the Leave Submissions that the approach taken by Murphy C does not "distinguish between the criminal investigation and the disciplinary investigation conducted by the Appellant's employer" must fail. It is clear on the face of the Decision that the Commissioner recognised this distinction.
Paragraphs 3(g) and (h) of the Leave Submissions contend, respectively, that the Decision "contains errors in the approach adopted and it is in the public interest that the errors are corrected" and that the Decision "amounts to jurisdictional and legal error and cannot be allowed to stand". To address these submissions it is necessary to address briefly the grounds on which the Appeal is made (adopting the numbering in the Appeal).
At Ground H1 it is contended that Murphy C erred in finding that Mr Bolton had not provided an account and/or sufficient evidence in answer to allegations 1, 2, 3 and 7. We repeat our observations at [23]-[32] above. The Commissioner's findings were reasonably open to him.
Ground H2 contends that the Commissioner erred in finding that no forensic significance attached to the failure of the Police Commissioner to cross-examine Mr Bolton and challenge his account given in answer to the disputed allegations. This contention cannot be sustained if it is accepted, as we do, that the case presented by Mr Bolton failed to shift the "tactical" or "evidentiary" onus to the Police Commissioner.
The Police Commissioner submitted: "26. The purpose of cross-examination is, in large part, to test in part the truthfulness and reliability of a witnesses' [sic] account of events. However, litigation in the Commission requires that the parties present their evidence in advance so that the case proceed in an orderly manner and the parties place their cards on the table. …Litigation is played by certain rules and within the boundaries of those rules, the parties make forensic choices regarding the evidence to be called and the crossexamination to be conducted. As the Appellant bore the burden of proving that he had not engaged in misconduct, the Appellant's decision not to give a positive account of what occurred meant there was nothing in the Appellant's evidence to challenge in cross-examination. …"
The Commissioner found that Mr Bolton had not provided an account of the relevant events. This conclusion was reasonably open to him. Mr Bolton had not shifted the tactical or evidentiary onus. Had he done so, but only then, significance might have been placed on the failure of the Police Commissioner to challenge his account in cross-examination.
Ground H3 - that the Commissioner erred in finding that no forensic significance attached to the failure of the Police Commissioner to call Ms Skellet, the sole witness responsible for making allegations 1, 2, 3 and 7 against Mr Bolton - fails for the same reasons. We agree with the observations of Murphy C at [63] of the Decision reproduced at [5] above.
Ground H4 contends that Murphy C erred in holding that Mr Bolton's evidence was to be attributed no weight in the assessment of allegations 1, 2, 3 and 7. This contention misstates the Decision. The Commissioner made no finding that Mr Bolton's evidence was to be attributed "no weight". Rather, he determined that the evidence led by Mr Bolton was not sufficient: see Decision at [60], [61] and [64]. We do not accept Mr Bolton's submission that this is "a distinction without a difference" (Tcpt, p 10(16)).
Ground H5 asserts error in the Commissioner finding that allegations 1, 2, 3, 7, 8, 9 and 10 "were established by the evidence adduced by the parties in the course of the review". In so far as this ground is to be read as suggesting that proceedings under s 181E require that the misconduct alleged against a removed police officer be proven, it is misconceived. The onus was rather on Mr Bolton to make out the case that the removal was harsh, unjust or unreasonable by disproving the allegations or raising sufficient doubt in the Police Commissioner's reasoning to require the Police Commissioner to respond to that doubt, as made clear in Zisopoulos. Mr Bolton has done neither.
Ground H6 asserts that the Commissioner erred in "failing to give sufficient reasons in support of his finding that the disputed allegations (8,9, 10 and 11) were established". There are two observations to make about this contention.
First, the Commissioner made no finding that the allegations "were established". At [67] he recorded his agreement with both the Police Commissioner's findings in respect of those allegations and the comments made about them by the Police Commissioner in the Statement of Reasons, but those observations do not amount to a finding that the allegations had been made out. Such an approach would have been inconsistent with the onus borne by Mr Bolton. Instead, the relevant finding by Murphy C in respect of those allegations, which is consistent with Mr Bolton's onus, was his determination at [69] of the Decision that there was no basis on the material before the Commission to interfere with the Police Commissioner's findings with respect to the relevant allegations.
Second, Murphy C did not fail to give sufficient reasons. He stated that he agreed with the comments made by the Police Commissioner in the Statement of Reasons and the findings that had been made by him. He then proceeded at [68] of the Decision to identify the factors lending to the seriousness of Mr Bolton's conduct in disclosing confidential information to his partner and failing to disclose a conflict of interest to a senior officer. The Commissioner identified potential contraventions of the Police Act, the Crimes Act 1900, the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Computerised Operational Policing System User Guide. He proceeded to make the determination at [69] of the Decision referred to above.
While the Commissioner's reasons in respect of allegations 8,9, 10 and 11 may have been brief, it does not necessarily follow that they were inadequate. In this context, we note the observations of McColl JA, with whom Macfarlan JA agreed, in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124: "152. While, as Basten JA explained in Lo v CCSR, '[i]f a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence', such an inference should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. Indeed, it has been said that '[i]t is a mistake to conclude simply from the fact that a Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped [the Tribunal's] attention.' The Tribunal is not expected to set out every consideration which passes through the decision-maker's mind, although some, and usually the most significant, will be expressly dealt with." (Footnotes omitted)
In the same case, Emmett AJA observed: "227. While a decision-maker such as the Commissioner is required to state reasons for the decision being made, such a decision-maker is not required to mention every fact or argument relied on by a losing party. It is also not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion. The only question is whether the Commissioner entirely overlooked a mandatory consideration."
For these reasons, we do not consider that there is any substance to Ground H7, namely, that the Commissioner constructively failed to exercise the jurisdiction of the Commission.
In Ground H8 it is contended that Murphy C erred in dismissing the application. In light of the Commissioner's findings, which we have found are not affected by error, there is nothing inappropriate in such an order having been made.
In his Written Outline of Submissions Mr Bolton submitted that his removal was disproportionate to the gravity of the "admitted misconduct", which was not a matter to which Murphy C gave consideration. There are three points to make. First, the "admitted conduct" did not include allegations 1, 2, 3 and 7. Mr Bolton accepted at the hearing of the Appeal that Mr Bolton did not upset the finding that the assault allegation was substantiated, the decision to remove him was justified.
Second, the alleged failure of Murphy C to consider the proportionality of the removal to the misconduct is not expressly a ground of appeal.
Third, at [70] of the Decision Murphy C observed that he had taken into account Mr Bolton's personal circumstances and the impact that the loss of his career of 31 years had had on him financially and in other ways. The Commissioner also referred to and quoted medical evidence concerning Mr Bolton's state of health. This demonstrates that the Commissioner had regard to the proportionality of the removal to the established misconduct.
For the reasons set out, we do not consider that there is any substance to Ground H8.
As we are not persuaded that the grounds of appeal set out in the Appeal provide any basis for impugning the Decision, it follows that we reject pars 3(g) and (h) of the Leave Submissions.

Bolton v Commissioner of Police

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

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Cases Cited (11)

Cited By (4)