Bradley George Hosemans v Commissioner of Police

Bradley George Hosemans v Commissioner of Police - [2004] NSWIRComm 253 - NSWIRComm 1995 case summary — Zoe

[15]

5 The grounds of appeal relied upon, which went to the issue of leave to appeal as well as the appeal proper, were: [1] The Commission ( Haylen J) erred in determining that its role in an application under Division 1C of Part 9 of the Police Act 1990 was merely to review the decision of the Commissioner of Police to determine whether it was correct, rather than to decide the matter for itself having regard to the evidence before it. [2] The Commission erred in determining that the decision of the Court of Appeal in Commissioner of Police v Donelan and Hanson was applicable to the determination of applications under Division 1C of Part 9 of the Police Act . [3] The Commission erred in determining that its role was confined to considering whether the findings of fact made by the Commissioner of Police were incorrect, rather than to determine the relevant questions of fact for itself. [4] The Commission erred in failing to decide for itself questions of fact which had earlier arisen and been the subject of findings in criminal proceedings before a Local Court Magistrate. [5] The Commission erred in failing to find that the Commissioner of Police denied the Appellant procedural fairness by relying upon a decision of a Local Court Magistrate in criminal proceedings involving the Appellant but failing to read the transcript of evidence in those proceedings. [6] The Commission erred in failing to determine that the right to a hearing in the Commission with respect to the removal of an officer from the Police Service would not cure a denial of procedural fairness by the Commissioner of Police. [7] The Commission erred by adopting as the relevant test to be applied to the application before it as being whether the Commissioner of Police acted capriciously or ill-advisedly or was uninformed in a relevant sense in reaching his decision. [8] The Commission erred by not treating the Respondent as having the onus to prove the allegations of serious misconduct and criminal behaviour it relied upon to justify the dismissal according to the Br iginshaw standard. [9] The Commission erred in finding that the Commissioner was entitled to conclude that the Appellant had indecently exposed himself and given false evidence before the Local Court. [10] The Commission erred in not itself finding, on the basis of the evidence before it, that the Appellant did not indecently expose himself and did not give false evidence before the Local Court. [11] The Commission erred in finding that it could not be concluded that the penalty of removal was harsh, unfair or unreasonable.

[89]

56 First, the Association submitted that the Haylen J reached erroneous conclusions of law and general principle in relation to his conduct of the review under s181E of the Police Act. In support of its contention as to the proper approach, the Association submitted that: (1) parliament's intention, evidenced by the history of the legislative scheme and extrinsic material, demonstrates that a police officer in a s181E review is entitled to present his or her case in a similar way to an employee applicant in an unfair dismissal application; (2) dictionary definitions of the word "review" do not throw much light or guidance on what the Commission should actually do in the conduct of a s181E review; (3) the scheme of the Police Act , which incorporates the Industrial Relations Act (with some amendments) suggests that the protection provided to a police office is not identical but is similar to the protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act ; (4) Haylen J's approach to the nature of the review hearing is inconsistent with Court decisions in other cases where statutes have provided for a "review" (see Watson v Hanimex Colour Services Pty Limited (1991) 8 NSWCCR 190; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580; SRA of NSW v Davies (BC9504695, 10 May 1995); Cockatoo Dockyard Pty Limited v Atamian (11 May 1995); South Sydney City Council v Horiatopoulos (1992) 47 IR 93; Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37; Rohatgi v Medical Tribunal of New South Wales and Anor (BC9402485, 20 April 1994)). (5) The process of reviewing a Commissioner's decision pursuant to s181E is now reasonably well settled (see Little v Commissioner of Police (No 1) [2001] NSWIRComm 9; Giardini v Commissioner of Police [2001] NSWIRComm 333; Little (No 2) ; Miller v Commissioner of Police [2002] NSWIRComm 296; Cassel v Commissioner of Police [2003] NSWIRComm 73; Dangerfield v Commissioner of Police [2003] NSWIRComm 96. That process has included cross-examination of the applicant police officer where factual disputes exist, and, without requiring notice under s181G(1)(f)(i), cross-examination of various statement makers, including complainants. The Commission's procedure is evident in many in transcript rulings in s181E reviews.

[91]

58 Thirdly, the proper construction and application of s181G(1)(f) and s181G(2) required "new evidence" to be adduced, including, for instance, the cross-examination of the appellant and the complainant in the present case. "New evidence" may be entirely fresh evidence which was not received by or offered to the Commissioner, or it may be evidence in addition to or in substitution of the evidence provided to the Commissioner. Section 181G of the Police Act provides that new evidence may be adduced as follows: (1) pursuant to s181G(1)(f)(i) by the giving of notice of intention to do so. The court in Van Huisstede v Commissioner of Police (No 2) (2001) 106 IR 56 considered the meaning of that sub-section and concluded that the meaning of the provision is clear on its face. The Association contended that that approach adopted by Haylen J was affected by error of principle and law for the following reasons: (a) Haylen J, contrary to the decision in Van Huisstede (No 2) , held that s181G(1)(f) does not confer a right to adduce new evidence, but rather establishes a statutory limitation; (b) Haylen J's concern that "the review would thereby be extended by many days and the benefit of a speedy hearing lost" misconstrues the justice balance and natural justice rights parliament intended to afford to police officers; (c) in the present case, the appellant gave notice both of its intention to adduce new evidence and the substance of the evidence. Thus the issues were clearly defined and allowed both parties to better prepare their respective cases; (d) notice was given, either expressly or by implication, that the appellant sought to adduce evidence about a matter which was central to the task of judicial fact finding, namely the assessment of a witness's credit by Haylen J having the advantage of hearing and observing a witness; (e) the decisions in Van Huisstede (No 1) and Van Huisstede (No 2) were correct. (2) by obtaining the leave of the Commission under s181G(1)(f)(ii) or s181G(2). The Association submitted that Haylen J should have granted leave to tender the whole transcript of the Local Court proceedings as new evidence, and that such leave should have been "conditioned on at least the complainant and some of the other people being required to be made available for cross-examination before the Commission". Further, Haylen J has effectively "applied a wrong and more stringent test equivalent to the test of "special circumstances" found in other statutes, but not in s181G(1)(f)".

[119]

83 The Association made the following submissions in relation to what it described as "misstatements and obfuscations" in the respondent's submissions: (1) The respondent incorrectly submitted that the Association argued that there were only two ways procedurally that s181E reviews can be conducted. The Association referred in its submissions (in relation to other statutes which have provided for a 'review') to the "usual manner in which any s181E review will be conducted before the Commission". (2) The respondent incorrectly submitted that the Association mischaracterised the nature of the appellant's case at first instance as involving both procedural and substantive unfairness. The Association argued that its submissions were premised on the principle that s181F(1)(b) of the Police Act requires that the Commission consider the case presented by the appellant as to why the removal was harsh, unreasonable or unjust, both in the submissions made by the appellant to the Commissioner (pursuant to s181D(3)(b) of the Police Act ) and in proceedings before the Commission at first instance: Little (No 2) at [72]. (3) The respondent incorrectly submitted that the Association did not say anything about what it contended was the correct nature of the review. The Association contended that it made extensive submissions in that regard, for instance, its submission that a s181E review is not identical but is similar to an unfair dismissal matter heard under the Industrial Relations Act , subject to the important differences in Divisions 1C and 1D of the Police Act . (4) The respondent incorrectly submitted that the Association "contends in substance an identity of prescription between NSW unfair dismissal regimes and the s181E review of the police officer". The Association contended that its submissions clearly stated that the regimes were similar but not identical. (5) The respondent incorrectly submitted that the Association submitted that the respondent was obliged to refer Haylen J to the decisions in Newton (No 1) and Newton (No 2) . (6) The respondent incorrectly submitted that the Association provided no guidance in its submissions as to what constitutes "new evidence". (7) The respondent incorrectly submitted that the Association "ignores the relevance or otherwise of the Commissioner's finding of a 'loss of confidence'". The Association submitted, referring to Van Huisstede (No 1) , that the s181E review inevitably had to consider the merits of whether the Commissioner's decision had some foundation under the two chosen statutory attributes, namely conduct and integrity".

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