(G) Summary of Superintendent Timson's interview
147 The same findings apply to the applicant's complaint regarding the adequacy of the summary of Supt Timson's evidence. That summary is set out in [4.37] of the investigation report. As the respondents' submitted, that paragraph fairly reflected Supt Timson's opinion as stated during his interview that the CCTV footage was not by itself sufficient to establish the complaint and it was necessary to consider other evidence in order to determine whether the applicant had a justifiable belief that the use of capsicum spray was warranted and that he could not defend himself against Adam using less forceful methods. The burden of the applicant's complaint seemed to be that that summary contains no reference to Supt Timson's evidence that whether or not there had been a breach of CO3 depended on the applicant's assessment of the situation at the relevant time and whether he had adequately explained his conduct. That evidence adds little or anything of significance to the actual terms of the relevant instruments (particularly cl 6.1(1)(a) of CO3) relating to the use of chemical agents and the use of force generally. The relevant instruments were publicly available and must have been known to the applicant as a police officer with the AFP. Accordingly, no practical injustice can be identified.
148 The above reasoning as to why the applicant was not denied procedural fairness being provided with a copy of the investigation report and not full transcripts of the directed interviews complained of applies equally to the applicant's complaint that he was also denied procedural fairness because Mr Whowell was not provided with full transcripts of all the directed interviews, and only had access to those relating to the complainant and the applicant.
149 As is evident from the findings above, in my view, the investigation report contained adequate summaries of the relevant interviews. Procedural fairness did not require that Mr Whowell read for himself the entirety of all the directed interviews. It was sufficient that he relied upon what I regard to be adequate summaries set out in the investigation report which conveyed the gist or substance of the interviews, together with his personal review of the CCTV footage and the taped interviews of both the complainant and the applicant. The relevant legislative framework permitted a process of multi-stage decision-making of the kind which was conducted here and which is described in [3]-[18] above. That process essentially involved an initial fact finding investigation carried out by FA Deller (which produced a recommendation that a finding be made that the applicant had engaged in category 3 conduct of the kind particularised in the complaint), a subsequent adjudication carried out by Mr Whowell (which took into account various matters, including the applicant's detailed response to the investigation report) which led to a decision to accept FA Deller's recommendation that it be found that the complaint was established, and ultimately a decision by the first respondent on the appropriate sanction to impose (on procedural fairness and multi-stage decision making, see generally South Australia v O'Shea (1987) 163 CLR 378; South Sydney City Council and Greyhound Racing).
150 Nor in my view was it procedurally unfair for Mr Whowell to take into account not only the contents of the investigation report but also the internal quality assurance reviews conducted by Messrs Lyddiard and Coutsolitis without informing the applicant of the fact that those internal quality assurance reviews had occurred or providing him with an opportunity to respond to both the investigation report and those internal quality assurance processes.
151 The quality assurance reviews involved the team leader and coordinator making certain statements in expressing satisfaction that particular matters had been attended to. In the case of Mr Lyddiard's quality assurance review, this involved him declaring that he had reviewed the investigation and was satisfied that it had been undertaken as required by Part V of the AFP Act, was of a high standard (spelling and grammar checked) and included evidence appropriately weighted and addressed. He further expressed his satisfaction that sufficient information had been obtained to support the recommended findings and that appropriate opportunities for natural justice had been afforded. Finally, he expressed his support for the recommended findings.
152 In the case of Mr Coutsolitis' further quality assurance review, he declared that he had read the investigation report and the applicant's natural justice response, as well as other material relevant to considering the sufficiency and quality of the investigation in general and the investigation report specifically. He expressed his satisfaction that the investigation had been undertaken fairly and without bias and in compliance with Part V of the AFP Act, that the investigation report substantially addressed the issues raised in the complaint and that evidence had been appropriately weighed on the civil standard in making the final recommendations and that the findings, conclusion and recommendations made by the investigator were sound, appropriate and supported by him.
153 The contents of the investigation report spoke for themselves and the applicant was given, and took advantage of, the opportunity to respond to the investigation report. The internal quality assurance process added nothing of material significance to that which was revealed by the contents of the investigation report itself, at least insofar as they raised matters that were relevant, credible and significant and which were adverse to his interests. No new adverse matters of relevance, credibility and significance were raised by the internal quality assurance reviews which, in effect, "signed off" on FA Deller's investigation report. The position might have been different if either or both of the quality assurance reviews had introduced fresh findings or material which were adverse to the applicant's interests and about which he had no prior notice leading up to Mr Whowell's decision to confirm and adopt FA Deller's recommendation that a category 3 conduct violation had been established. But that is not the case here. No practical injustice was occasioned to the applicant in not disclosing to him that FA Deller's investigation report had been subjected to the relevant processes of internal quality assurance. The applicant took full advantage of the opportunity afforded to him to respond to FA Deller's report before Mr Whowell determined to adopt its recommendation. It was the contents of the investigation report that were material to the applicant's interests, not the fact that the contents had been subject to internal quality assurance.
154 I also consider that non-disclosure of appendices A-O to the investigation report did not occasion any procedural unfairness to the applicant. As the respondents submitted, the substance - and in most cases the complete content of every appendix - was known to the applicant. Appendices A, C, M and O were documents either written by the applicant himself or provided by him. Appendix B comprised the applicant's own antecedents and the formal warning letter provided to him. He could have asked for a copy of his antecedents, but he never did. Furthermore, while the applicant gave evidence in the judicial review proceedings to the effect that there was some duplication in the records of his disciplinary record, I am not satisfied that any such duplication had any relevant bearing on Mr Whowell's ultimate finding that the particular complaint regarding the incident on 26 May 2012 was established (as the respondents also pointed out, the applicant drew the first respondent's attention to some of that duplication in his submission dated to April 2013 in response to the Show Cause Notice).
155 As to the applicant's complaint concerning Appendix D (the CCTV footage), as noted above, that footage was viewed by the applicant on three occasions prior to him forwarding his natural justice response on 15 October 2012.
156 Appendices E-L contain the "salient points" of various directed interviews, but their non-disclosure did not involve procedural fairness in circumstances where the body of the investigation report contained adequate summaries of the relevant evidence when measured against the particular extracts from the actual directed interviews relied on by the applicant. Furthermore, I accept the respondents' submission that any differences between the salient points and those summaries are inconsequential and involve no procedural unfairness (the respondents annexed to their written outline of closing submissions a two-page table which compared the text of the relevant salient points and the text of the comparable summaries of evidence in the investigation report, which I accept demonstrates that any differences were minor and inconsequential).
157 Nor was there any procedural unfairness in not providing the applicant with a copy of Appendix N (i.e. the AFP guide on the Alpha 8 role (ACT Policing)), as that document was available throughout the AFP and the applicant could have asked for a copy if he wished. Apparently he never did, notwithstanding that he was performing that role on the night of the incident.
158 Finally, for completeness, it should be noted that the applicant was provided with a copy of Appendix P (a screen shot of CCTV footage showing the applicant deploying capsicum spray).
159 As to the applicant's complaint of procedural unfairness relating to FA Deller's additional inquiries of three police officers and, in particular, to the information he then provided to Mr Whowell but not to the applicant, I do not consider that this conduct caused the applicant any prejudice or practical injustice. As noted above (at [108]) in the context of a related complaint that this conduct gave rise to apprehended bias, I do not consider that there was any procedural irregularity in what occurred taking into account in particular the multi-stage decision-making authorised by the relevant legislative scheme. Furthermore, as the respondents pointed out, the applicant was provided with a copy of FA Deller's response to the applicant's detailed written submission dated 15 October 2012 under cover of the Show Cause Notice and he was invited to provide to the first respondent any additional response or material he wished, an opportunity which was taken up by the applicant at that stage of the process. There was no procedural unfairness.
160 Nor do I accept the applicant's procedural unfairness claims arising from the terms of Assistant Commissioner Close's termination letter and, in particular, the reference therein to the applicant having assaulted and intimidated members of the public. The relevant part of the letter, which appeared immediately under the heading "Decision", was as follows:
After reviewing all the available evidence, I have formed the view that you have failed to comply with the professional standards of the AFP, specifically, your actions amount to serious misconduct given your assault and intimidation to members of the public, contrary to section 8.10 of the AFP Code of Conduct, as contained in the Commissioner's Order on Professional Standards (Commissioner's Order 2) (sic).
I consider your failure to comply with the requirements of the AFP Code of Conduct constitutes misconduct of gravity which warrants termination of your employment with the AFP. I set out the reasons for my decision below. (Emphasis added).
161 Under the heading "Reasons", the first respondent then explained the basis for her decision. After referring to the adjudication and Show Cause Notice, express reference was made to the finding that the applicant had used excessive force on a member of the public contrary to CO3. That is a plain reference to the finding by Mr Whowell that the complaint relating to the incident on 26 May 2012 was established. Any doubt on that score is removed by the subsequent reference in the letter to the adjudicator's finding that the complaint relating to that incident was established. To reinforce that point, the letter than contained the following statement:
My decision to terminate your employment with the AFP is based on the evidence before me, which shows that you did use excessive force on [Adam] when you sprayed him with oleoresin capsicum spray and took him into custody.
162 When viewed in this context, the reference in the letter to "your assault and intimidation to (sic) members of the public" is a clear reference to the applicant's history of conduct involving the use of excessive force in circumstances similar to the incident on 26 May 2012. Construed in context, I do not consider that the letter recorded any independent finding that the applicant had assaulted and intimidated [Adam] and that such a finding provided either the entire or part of the basis for the first respondent's decision to terminate his employment. Rather, the catalyst for that decision is recorded in that part of the letter which stated: "Finding ESTABLISHED", which follows immediately after a description of the precise terms of the complaint relating to that incident, which involved an allegation of using excessive force on Adam contrary to CO3.
163 There is no doubt that, as might be expected, the decision to terminate the applicant's employment also took into account his antecedents, not the least because of the formal warning he received in November 2011. The final sentence of the first respondent's termination letter makes express reference to the determination of sanction and it is recorded there that the first respondent had "regrettably decided that the breaches are sufficiently serious to warrant termination of your employment, effective from 15 July 2013" (emphasis added). Similarly, earlier in the letter, the first respondent expressed her concerns "about the seriousness of [the applicant's] behaviour and the repetitive nature of complaints made against you" (emphasis added). There was no error in taking the applicant's disciplinary history into account in determining the appropriate sanction stemming from the finding that the applicant had used excessive force on 26 May 2012.
164 As a separate aspect of his procedural unfairness case, the applicant says that the termination decision was based on evidence that was not reasonably capable of sustaining it and cited in support of that proposition the decision in Pochi. In his final further written submissions which were filed shortly before closing addresses commenced, the applicant explained this allegation by reference to the fact that the first respondent did not have before her accurate or complete evidence or the totality of the evidence, including all the tapes and/or transcripts of the directed interviews and the CCTV footage. The essence of the applicant's allegation is reflected in the following extract from his final further written submissions (at [23]) (omitting citations):
In light of the weight that was placed on the CCTV footage and the differing interpretations given by F/A Deller and the Adjudicator together with the opinion of the Adjudicator that it was a case of the applicant's version of events versus that of the complainant and other police, it was incumbent upon the first respondent to satisfy herself that the foundation of her decision was based on evidence reasonably capable of sustaining it or alternatively that the Adjudicator had made a decision on all of the relevant evidence not just on the evidence as summarised by the investigator. The failure to do so amounts to a breach of natural justice, more so where the applicant submits that the totality of the evidence paints a picture different to that of F/A Deller and the Adjudicator and which justifies the applicant's use of force.
165 In my view there is a fundamental difficulty with this aspect of the applicant's procedural unfairness case. Acceptance of the applicant's argument would be tantamount to compelling the first respondent, in exercising her delegated powers under s 40TV, to review the investigation report prepared under s 40TU and the adjudicator's report with a view to determining whether there was evidence to support their findings and/or recommendations, including by reference to all "relevant evidence" and not simply that which was available to the investigator and/or adjudicator. That proposition sits uncomfortably with the multi-stage decision-making scheme authorised by the AFP Act and the administrative instruments made under it. That scheme contemplates that the decision-making process is potentially divided into three distinct parts or segments. The first part involves the conduct of an investigation of a category 3 conduct issue by an investigator. The second part of the process (which arises under administrative arrangements put in place by CO2, which itself was made under ss 38 and 40RC of the AFP Act) involves an adjudication panel whose task is to consider any recommendations made in a s 40TU report and to make findings and determine appropriate action in relation to the category 3 conduct issue. The third and final part of the scheme involves the Commissioner or his or her delegate determining whether or not to take termination action in relation to an AFP employee (see ss 40TR(2) and 40TV). The first stage of the process attracts a statutory obligation on the investigator to ensure that the AFP appointee and any complainant is given an adequate opportunity to be heard in relation to the category 3 conduct issue, subject to the requirements of the investigation (s 40TQ(2)). Although there is no express statutory requirement equivalent to s 40TQ(2), common law procedural fairness requirements apply in respect of both the second and third stages of the process. That is not to say, however, that the content of the statutorily-imposed and common law requirements are identical in all three stages.
166 Acceptance of the applicant's submission would mean that, in conducting the third stage of the decision-making process, the first respondent was not entitled to act upon Mr Whowell's finding that the complaint was established and that she was obliged, in effect, to undertake her own investigation and fact-finding exercise with a view to determining whether or not there was "evidence reasonably capable of sustaining" the finding that the complaint was established. That would substantially undermine the multi-stage decision-making scheme and involve a substantial duplication of resources which can scarcely have been intended. As emphasised above, that is not to say that the first respondent was immune from procedural fairness requirements. She plainly was not and it is evident from the steps taken by her, including the provision to the applicant of the Show Cause Notice, the accompanying materials and an opportunity to respond, that she set out to comply with those requirements. Procedural fairness did not oblige her to effectively re-conduct the investigation and adjudication underpinning the finding that the applicant had engaged in category 3 conduct.
167 The first respondent's task under s 40TV (acting as the Commissioner's delegate) was to determine what, if any, sanction should be imposed having regard to the report of the investigation prepared in accordance with s 40TU and such other relevant material as was placed before her (which included the material produced by Mr Whowell). Her statutory task was not to conduct a fresh investigation of the complaint as the applicant appears to suggest. Of course, if it is demonstrated in subsequent judicial review proceedings that a report made under s 40TU is affected by some legal error which has the effect of vitiating the report, that is likely to have important (and potentially fatal consequences) for any action taken under s 40TV which is based either in whole or in part upon such a report. Moreover, in an appropriate case it may well be that, even absent a successful judicial review challenge, the ultimate decision-maker acting under s 40TV is persuaded that the report is affected by jurisdictional error and, therefore, could not be relied upon because, in law, it is not a valid report (see, for example, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 per Gaudron and Gummow JJ and at 618 per McHugh J), but that is not the way the applicant put his case here.