Commissioner of Police v Dobbie

LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990

Commissioner of Police v Dobbie (2006) 157 IR 44 Commissioner of Police v Evans (2006) 153 IR 144 Flanagan v Commissioner of Police [2008] NSWIRComm 138 Hosemans v Commissioner of Police (2004) 138 IR 159 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 CASES CITED: Johnston v Commissioner of Police (2007) 169 IR 301 Knowles v Anglican Church Property Trust (No 2) (1995) 95 IR 380 Little v Commissioner of Police (No 2) (2002) 112 IR 212 O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 Raymond Sewell v New South Wales Police Force [2008] NSWIRComm 93 Smith v New South Wales Bar Association (1992) 176 CLR 256 Van Huisstede v Commissioner of Police (2000) 98 IR 57

APPELLANT: Mr M J Kimber of senior counsel with Mr A Searle of counsel Crown Solicitor's Office (Mr I V Knight) LEGAL REPRESENTATIVES: RESPONDENT: Mr S Crawshaw of senior counsel with Mr A Metcalf of counsel Walter Madden Jenkins Solicitors (Mr M Treharne)

CORAM: WALTON J, Acting President KAVANAGH J BACKMAN J

Application by the Commissioner of Police for leave to appeal and appeal against a decision of Justice Haylen given on 6 May 2008 in Matter No. IRC 1259 of 2007

1 This is an application by the Commissioner of Police for leave to appeal and appeal against the decision of Haylen J of 6 May 2008: Raymond Sewell v New South Wales Police Force [2008] NSWIRComm 93. The decision dealt with an application under s 181E of the Police Act 1990 for review of an order by the appellant under s 181D(1), made on 26 July 2007, to remove the respondent from the NSW Police Force. His Honour found that the order under s 181D(1) was harsh and unfair and ordered that the respondent be re-instated without pay to the NSW Police Force, as well as other consequential orders. The order for re-instatement was to take effect within seven days of the date of his Honour's decision. 2 The factual background which gave rise to the s 181D(1) order was, briefly stated, that the respondent, joined the police force on 24 April 1985. He was promoted to the rank of sergeant on 4 December 1985. He appears to have had an unblemished career in the police force until a brief two month period of time during which he engaged in some seven instances of what may be described as sexual harassment of two females. The incidents were reported by the two females, as well as by other persons, who provided accounts corroborative of the two females' accounts. Police investigated the allegations made against the respondent, reports were completed, and findings made, which confirmed the accounts given by the two females, as well as the eye-witness accounts of the respondent's behaviour. Disciplinary action was recommended against the respondent, and, following recommendations made by the Independent Review Panel, which reviewed the reports sent by the investigating police into the respondent's behaviour, the respondent was returned to work in Coonamble (where he had previously been rostered) due to staff shortages. At about this time, the appellant directed that action be taken against the respondent for his removal under s 181D. In the interim period between the respondent's return to work at Coonamble and the date of the order under s 181D(1), which was a period of some sixteen months, the respondent discharged his duties as a police officer without further incident. In the evidence adduced at first instance, it emerged that during the two month period in which the respondent engaged in acts of sexual harassment, he was consuming alcohol while off duty, and at the same time was taking anti-depressant medication. 3 The appellant sought leave, as required, primarily on the basis of two factors said to be both relevant and applicable to the grant of leave. These were first, whether the ultimate conclusion reached by the Commission at first instance was reasonable on the evidence; and, secondly whether the appeal raised substantial and important considerations, such as substantial issues of principle or of law. In particular, the appellant relied on what was said to be Haylen J's failure to take into account, in the balancing exercise of competing interests (as required under s 181F(3)), the respondent's lack of frankness or candour, in relation to his role in the incidents of sexual harassment. This matter was said to be also relevant to his Honour's exercise of discretion in addressing the question of relief. The appellant also relied on the significance of the attribution of weight by the trial judge when considering the appellant's loss of confidence, as a matter relevant to the question of leave. It was also said that the decision at first instance under challenge was not reasonably open to make and should not be permitted to stand because it would otherwise result in an officer re-joining the police force as a person of integrity, but without having the appellant's confidence and, who has been found to be neither candid nor frank. Finally, the appellant contended, in support of the grant of leave, that there should be a determination at appellate level of the particular statutory context, which incorporates features of the Industrial Relations Act 1996, under which the Commission reviews decisions to remove an applicant pursuant to an order under s 181D(1). 4 The respondent opposed the granting of leave to appeal. 5 There have been a significant number of authoritative statements in this jurisdiction addressing the circumstances under which leave to appeal should, ordinarily, be granted. A clear statement of the principles on leave is provided in Knowles v Anglican Church Property Trust (No 2) (1995) 95 IR 380. Those principles were adopted by the Full Bench in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 (at [5]). We consider that that passage from Hosemans neatly summarises the state of the Commission's jurisprudence on the question of leave and, hence, we will set it out in full below: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381-382) and, subject to the requirements of s 188 (2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Second, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [5]. 6 To these observations on leave we would add that the mere recitation of issues of principle in order to attract leave will not be successful in doing so, if the approach to principle is either flawed or seeks to canvas or re-canvas well-laid principles established at Full Bench level. By way of example, the appellant raised for consideration whether particular significance should be given to the fact that there was said to be a loss of the Commissioner's confidence. However, this issue is now well settled in the jurisprudence of the Commission in this area and then so contrary to the contention advanced by the appellant. 7 There is no warrant for elevating the Commissioner's loss of confidence (based on misconduct), or according it some higher status, or place of prominence, or priority, above any other factor, or factors, which might fall for consideration as part of the balancing exercise between competing interests under s 181F(3) of the Act. Nor is there any authority which supports a proposition that a review of an order pursuant to s 181D(1) of the Act is subject to, by reason of some "special relationship" said to exist between the public and members of the police force and members (or between the Commissioner of Police and members of the police force), different considerations from an unfair dismissal claim under the Industrial Relations Act 1996. In relation to this latter point the review provisions under s 181G(1) of the Police Act import the statutory regime under the Industrial Relations Act relevant to unfair dismissal applications, subject to a few express and relatively minor modifications.

8 The relevant statements of principle are well settled in a number of decisions at appellate level in this jurisdiction.

9 In Commissioner of Police v Evans (2006) 153 IR 144 Walton J, Vice-President (with whom Staff J agreed) said: [4] The essence of the appellant's submissions -- reflected in her Honour's judgment -- is that the Commission should accord the public interest greater weight than other factors when determining whether a removal under s 181D was harsh, unreasonable or unjust. Indeed, there is an even stronger proposition implicit in her Honour's judgment: that prima facie, the Commissioner's decision to remove an officer on the basis of loss of confidence will be in the public interest, and any departure from such a decision must be justified.

[5] Equivalent submissions have been rejected by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 (at [67]-[68]) and Hosemans v Commissioner of Police (2004) 138 IR 159. Section 181F does not alter the test to be applied: it is the test applied under s 84 of the Industrial Relations Act 1996 NSW, that is, whether the dismissal was harsh, unjust or unreasonable. The most comprehensive discussion of the significance of the public interest in this context is at [216]-[219] of Van Huisstede v Commissioner of Police (2000) 98 IR 57. In short, it is one factor to be taken into account. Moreover, it will seldom be unitary: cases such as these present the possibility of many, and often competing, public interests.

[6] The decision at first instance represents an orthodox application of these well-settled principles and discloses no error. Boland J took the public interest into account in several guises: first, the public interest in the integrity of the Police Service (at [49]); and secondly, the public interest in maintaining the employment of a highly trained officer who has the strong support of colleagues and his Local Area Commander and remains capable of providing valuable service to the Police (at [52]). His Honour then considered whether the removal was harsh, unreasonable or unjust, taking into account all relevant factors and striking what he considered to be an appropriate balance between the competing interests embodied in s 181F(3).

10 Again, in Commissioner of Police v Dobbie (2006) 157 IR 44 the Full Bench held (at [67]) that, "[s]ection 181F(1)(3) does not dictate what weight or influence each of the particular matters is to have in the decision to be made" (see also Johnston v Commissioner of Police (2007) 169 IR 301 at [62], and Flanagan v Commissioner of Police [2008] NSWIRComm 138 at [22]).

11 In oral submissions, the appellant sought to draw assistance from the Full Bench decision in Little v Commissioner of Police (No 2) (2002) 112 IR 212 in order to support the contention that the statutory regime under the Act, dealing with the proceedings on review of an order under s 181D(1), is a, "special statutory regime", which is concerned with a, "special relationship", "with the public and the State." The nature of this, "special relationship", according to the appellant, is such that a review of an order under s 181D(1) should give "sufficient weight" to the Commissioner's loss of confidence. This is particularly so, when, as here, the trial judge agreed with the appellant's view both as to the facts and as to the seriousness of the conduct. The passage on Little (No 2) to which the appellant directed our attention is set out below: [74] The provisions of the Act do not so confine the Commission in considering an application under s 181E. It is true that the Commission is required to consider, under s 181F(1)(a), the reasons given by the Commissioner. In that respect, the Commission may deal with the substance and basis for the allegations brought against an officer, including whether there is a basis in fact of the allegations levelled against a police officer. However, the Commission will consider other matters and bring into account such matters as to whether the dismissal was harsh, unjust or unreasonable, which go to the merits of the application, including a consideration of the procedures adopted by the Commissioner. These matters may transcend the particular reasons stated by the Commissioner for his loss of confidence, as the statutory directive is for the Commission to consider whether the removal was harsh, unreasonable or unjust on any relevant or reasonably available basis and not simply whether the Commissioner's conclusion was sustainable or not, although the reasons for the Commissioner's loss of confidence will be plainly a matter of particular significance in such proceedings. Whether the nature of the proceedings being a review of a decision as to a "loss of confidence", may in some way affect the nature of any such merit review, does not arise for consideration in this matter.

12 In our view the passage seeks to do nothing more than emphasise that the trial judge is required to consider all matters which may be considered relevant when balancing the competing interests under s 181F(3). Those matters include the fact that the Commissioner has lost confidence in a particular officer's suitability to continue as a serving police officer, (a pre-requisite for the removal order under s 181D(1)), as well as other factors which go to the merits of the application. The passage is not authority for a proposition that the Commissioner's loss of confidence should be accorded greater weight than any other factor or that an issue of that kind was left outstanding. The passage does not elevate, either expressly or impliedly, the Commissioner's loss of confidence, to a special status over and above any other factor falling for consideration as part of the balancing exercise although, plainly, it is a relevant factor that must be taken into account (as occurred in the first instance decision). 13 In relation to the importation, by virtue of s 181G(1) of the Act, of the statutory regime governing unfair dismissal claims under the Industrial Relations Act, the proper approach to be adopted on review of an order under s 181D(1) was set out in the Little (No 2): [64] We consider that the errors essentially derived from the failure to consider the terms of s 181G of the Police Service Act . That section was the subject of discussion by Walton J, Vice-President, in Van Huisstede v Commissioner of Police in circumstances where the respondent had contended that the legislature intended to draw a distinction between the "removal" of a Police Officer and a dismissal at common law. It had been contended in that respect that a distinction should be drawn between an application brought under s 84 of the Industrial Relations Act and a review conducted under s 181E of the Police Service Act . His Honour made the following preliminary observations as to the operation of s 181G: "I note that the Commissioner relied upon the provisions of s 181D(8) to demonstrate that the legislature had drawn a distinction between the dismissal and the removal of an officer. This contention would be usefully examined in the context of ss 51 and 82 of the Act. However, it is not clear to me that a distinction has, in fact, been drawn by the legislature between dismissal' and removal' in s 181D(8). Even if it did give such an indication, it does not seem, in my view, to affect the requirements of s 181G (which is a key provision governing review proceedings under Div 1C of Pt 9 of the Act). Section 181G applies the provisions of the IR Act in relation to the review of unfair dismissals (with some exceptions) to an application for review under the Act. Notwithstanding that the legislature expressly constrained the operation of certain aspects of the IR Act, it did not limit the Commission's general powers as to unfair dismissals, and to this extent, it may be inferred that the legislature intended that the Commissioner's decision would be reviewable in a similar manner as dismissals otherwise reviewable under Pt 6 of Ch 2 of the IR Act."

[65] We consider that those observations represent the correct approach to the construction of s 181G of the Police Service Act . That provision has the effect of applying to proceedings brought under s 181E of the Police Service Act the provisions of Pt 6 of Ch 2 of the Industrial Relations Act in such a manner as to import the provisions of Pt 6 to the review proceedings (together with the corresponding adoption of the jurisprudence of the Commission with respect to the unfair dismissal provisions of the Industrial Relations Act ) except where expressly excluded by the provisions of s 181G(1). [66] This much is clear, in our view, from the plain words of s 181G of the Police Service Act . It also follows from a consideration of the nature of the exclusions that appear in s 181G. Those provisions indicate the legislature sought to exclude only the general powers of the Commission in relation to unfair dismissals in review proceedings under the Police Service Act , to the limited extent specified in the section. We note, in this respect, in Newton v NSW Police Service (No 2) (1999) 87 IR 66 at 80, the Full Bench of the Commission stated: "The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications bought under s 84 apply to s 181F review proceedings, subject to the there specified modifications." [67] We do not consider that the provisions of s 181F of the Police Service Act result in any different conclusion. Section 181F requires the Commission to consider sequentially the reasons for the Commissioner's decision to remove an applicant from the Police Service and then the cases respectively for the applicant and the Commissioner as to whether the removal was harsh, unjust or unreasonable: see Newton (No 2) (at 75). While this requirement may vary the procedure usually adopted in the hearing of an unfair dismissal matter under s 84 of the Industrial Relations Act , the variation is not of great significance and, in any event, does not alter the test to one different to that applied in such a matter, that is, whether the dismissal was harsh, unjust or unreasonable. [68] Further, the requirements of s 181F(3) are relevant to determining whether the removal of a police officer was harsh, unreasonable or unjust: see Van Huisstede (at 248). However, those factors do not diminish the obligation on the Commission to determine whether the removal of a police officer was harsh, unreasonable or unjust having regard to the principles ordinarily applied in unfair dismissal matters. The provisions of s 181F(3) are simply matters to which the Commission is also to have regard in making such an assessment (which, in any event, would be considerations broadly relevant in the adjudication of many unfair dismissal applications under the Industrial Relations Act ) and particularly so where the proceedings relate to positions in the public sector or other areas where the public interest may have particular relevance.

See also Hosemans v Commissioner of Police (2004) 138 IR 159 at [101] - [104].

14 A further matter which requires comment concerns the issue of integrity raised by the appellant during oral submissions in the context of whether Haylen J fell into error by not taking the issue into account (or sufficiently taking the issue into account) in the exercise of discretion when determining relief. We think it is important to emphasise the relevance of the public interest to this exercise of discretion. A necessary component of the public interest, in the present circumstances, was the respondent's integrity, which the appellant had linked to what has been described as the respondent's, "lack of candour" and, his, "less than frank" responses, when giving evidence.

15 In this regard we adopt the views of Walton J, Vice-President in Van Huisstede v Commissioner of Police (2000) 98 IR 57 where his Honour, in observations on the intent and purpose of s 181F(3), said: [216] The intent of the subsection is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interests and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so.

16 In the present proceedings there can be no doubt that Haylen J was entitled to make findings that adverse conduct had occurred, and then balance those findings against the countervailing factors in mitigation, allocating appropriate weight to each of the factors. The appellant's case on appeal was, we think, ultimately that his Honour failed to give sufficient consideration to the issue of integrity based on findings of untruthfulness by the investigating police, and based on his Honour's own findings as to lack of candour and frankness. In any event we do not accept as correct that his Honour failed to take these matters into account, or, as we shall now discuss, failed to give sufficient attention to them.

17 The appellant sought to rely on Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 in support of the submission that Haylen J fell into error in failing to take into account his own conclusions as to the respondent's lack of candour. In that decision, however, Boland J made a positive finding that the applicant was untruthful (at [125]). In contrast, Haylen J made no such finding. Rather, his Honour made careful, qualified findings that the respondent was, "less than frank". In relation to this finding, his Honour added that he accepted the evidence of one of the female complainants and was, "unable to accept [the respondent's] evidence to the contrary". In another part of the decision his Honour remarked that the respondent's, "lack of candour", was an important element in assessing the seriousness of the conduct. In balancing the competing considerations on review, his Honour noted that, "[a] number of the plausible explanations proffered in submissions on behalf of [the respondent] were simply not supportable on the facts and mostly, in terms, were not put to vital witnesses". Again, when considering the competing interests in accordance with s 181F(3), his Honour said that, "there were occasions when [the respondent] was less than frank in his responses." These observations, and findings, were considered directly relevant by his Honour to the issue of the, "interests of maintaining the integrity of the NSW Police Force and the fact that the Commissioner for Police had made an order under s 181D(1)" (at [128] of the decision). This last mentioned quotation was uplifted by his Honour from the words of s 181F(3)(b) of the Act. 18 His Honour also expressly took into account the Codes of Police Conduct and Ethics in deciding that, in all the circumstances, the respondent should be given a, "second chance". Those Codes had been set out by his Honour earlier in the decision when extracting the matters raised by the appellant in the Notice under s 181D(3)(a) of the Act. In particular, the Code of Conduct of Ethics "Statement of Values", as set out in the decision, stated, "[e]ach member of the NSW Police is to act in a manner which places integrity above all", an expression in identical terms to s 7(a) of the Act. In relation to the Codes, his Honour said that they, "should not be treated as a monolith but should be viewed as blueprints with layers indicating what should be the behaviour of police officers. Those layers should also acknowledge a role for flexibility, compassion and fairness in dealing with the variety of human behaviour that will be called for review." 19 In relation to his Honour's findings on the respondent's "lack of candour", it is clear, when they are considered in their totality, that his Honour did not make findings of deliberate untruthfulness, or lies, against the respondent. Rather, his Honour made careful findings which reflected something less than a positive finding of untruthfulness, and were more in the nature of preferring the evidence of the female complainants over the evidence of the respondent, on a particular issue, or accepting that a number of the respondent's responses, lacked plausibility. The distinction is significant and has been recognised as such in a number of authorities: see for example Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268 (Brennan, Dawson, Toohey and Gaudron JJ), at 271 (Deane J); O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230. 20 We perceive no error in his Honour's approach to this issue of police integrity, or to his Honour's findings made on the issue. We are of the view that his Honour gave it sufficient weight when evaluating whether the respondent's removal was harsh. We agree with the respondent that his Honour considered that lack of candour was co-extensive or connected to the respondent's "aberrant behaviour" (which factor his Honour took into account in dealing with the conduct issues). We note in this regard that the police investigators who found the respondent to be untruthful did not recommend against his re-instatement. Nor did Haylen J make a finding that the respondent was less than frank in relation to his account of all seven incidents. In particular, his Honour's findings on the matter were confined to the incident at the police station involving Ms Horan, and his behaviour at the probation and parole office, where, on both occasions, the respondent was not affected by alcohol. We have some concerns with how Haylen J dealt with those matters in the exercise of the discretion having in mind our earlier observations that a police officer's integrity is relevant to that discretion when determining relief (as were the other public interest considerations). We accept, however, on our reading of the decision, that his Honour's approach to the exercise of discretion must be read as co-extensive with the findings made in relation to s 181F(2) and (3).

21 Overall, we consider that it was open for his Honour to find, based on the principles settled in Little (No 2), that the removal of the respondent was "harsh" when the respondent's failures with respect to his conduct and integrity were balanced against the factors in mitigation taken into account by Haylen J. It was open to his Honour, on the evidence, to find the respondent's conduct to be aberrant and to measure the appropriate punishment accordingly.

22 For the foregoing reasons, we have determined to refuse leave to appeal and order accordingly.

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