Craig Steven Dangerfield v Commissioner of Police - [2003] NSWIRComm 96 - NSWIRComm 2003 case summary — Zoe

NSWNSWIRComm

Craig Steven Dangerfield v Commissioner of Police

[2003] NSWIRComm 96

Industrial Relations Commission (NSW)|2003-04-04|Before: Staunton J

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-04-04

Before

Staunton J

Catchwords

02/17/2003
02/18/2003 DATE OF JUDGMENT: 04/04/2003

Source

Original judgment source is linked above.

Catchwords

02/17/200302/18/2003 DATE OF JUDGMENT: 04/04/2003

Judgment (148 paragraphs)

[1]

CITATION : Craig Steven Dangerfield v Commissioner of Police [2003] NSWIRComm 96 APPLICANT: Craig Steven Dangerfield PARTIES : RESPONDENT: Commissioner of Police FILE NUMBER: IRC 5715 of 2002 CORAM: Staunton J CATCHWORDS : Removal of police officer - review of order - procedural fairness - whether removal was harsh, unreasonable or unjust - onus and standard of proof in review proceedings - applicant charged with offence of assault occasioning actual bodily harm of person in custody - offence proven but no conviction recorded - other officers convicted of assault and not dismissed from Police Service not such as to be relevantly compared - rule in Jones v Dunkel not applicable in the circumstances of Commissioner responding to summons for production - credibility of applicant - removal not harsh, unreasonable or unjust - application dismissed. Crimes Act 1900 s 59 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s 10 Police Service Act 1990 ss 173 181D 181E 181F Industrial Relations Act 1996 s 84 Burrows v Commissioner of Police, Giardini v Commissioner of Police [2001] NSWIRComm 333 Jones v Dunkel (1959) 101 CLR 298 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Miller v NSW Commissioner of Police [2002] NSWIRComm 296 CASES CITED : R v Williams (1990) 50 ACrimR 213 Starr v Commissioner of Police [2001] NSWIRComm 226 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wells and the Commissioner of Police (2000) 100 IR 106 HEARING DATES: 10/30/2002; 02/17/2003; 02/18/2003 DATE OF JUDGMENT: 04/04/2003

[29]

25 In proceeding to certain factual findings in this matter, as I must, regard must be had to the requisite onus and standard of proof to apply in matters such as the one before me. That principle is well established and has been considered by the Commission in matters involving a review under s 181D of the Police Service Act as well as unfair dismissal proceedings under s 84 of the Industrial Relations Act 1996. It was canvassed extensively in the decision of Walton J, Vice-President in Starr v Commissioner of Police [2001] NSWIRComm 226 particularly at para [158] where his Honour refers to the following passage from the judgment of the Full Bench in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at pp 463 - 464: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employee's Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299. Having regard to the above his Honour states at para [159] of Starr : Thus, the relevant standard to be satisfied in relation to allegations of misconduct against employees is on the balance of probabilities. However, that standard must be satisfied to a degree which is appropriate to the gravity of the facts to be proved. Hence in New South Wales Bar Association v Livesey [1982] 2 NSWLR 231, it was considered that a finding which may put a career in jeopardy must be made with regard to such considerations of the gravity of the facts in issue. The most often cited case for such a proposition is Briginshaw v Briginshaw , which was again confirmed recently by this Commission in Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1. In that case, the Full Bench of the Commission noted that the principle in Briginshaw v Briginshaw is now embodied in s140 of the Evidence Act 1995, which provides: 140. Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a ) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 26 The recital of relevant facts and circumstances commences at about 11 pm on 29 September, when Mr Michael Davey was brought to the Penrith Police Station by Senior Constables Janovsky and Schliesing to be entered into custody. As the officer responsible for the Charge Room, Mr Dangerfield was made aware by Senior Constable Janovsky that Mr Davey had appeared at the St Marys Police Station and, following some aggressive and drunken outbursts by him, had been asked to leave the St Marys Police Station. In getting him to leave the Station there was an incident involving Mr Davey with Senior Constables Janovsky and Schliesing outside the St Marys Police Station which resulted in Senior Constable Schliesing using her capsicum spray on Mr Davey. The two Senior Constables then placed Mr Davey in the back of a police van and took him to his home to deposit him there. By all accounts, Mr Davey was assessed as moderately to severly intoxicated.

[102]

76 It is not my intention to insert into this judgment in toto the entire paras referred to in Van Huisstede that were repeated and cited with approval in Little. For the purposes of the matter before me, however, I do refer to and emphasise para [75] in Little incorporating as it does para [194] from Van Huisstede where it states: In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. And at para [199] and [200]: [199] Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458): However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion. [200] I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act. (emphasis added)

[128]

102 Comparing the disciplinary treatment of police officers in relation to a course of conduct for the purposes of determining whether the Commissioner's decision was unjust was considered by Boland J in Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333. Those matters concerned the dissemination of pornographic material on the Police Service Memo System - Mr Burrows and Mr Giardini being the initiators of that dissemination - which was in turn sent on by other police officers and received by officers senior to Mr Burrows and Mr Giardini who did nothing to stop the conduct. In relation to the matter concerning Mr Giardini on the relevance of this sequence of events Boland J stated at para [182]: Further, the evidence was that the Commissioner was able to make a judgment that Mr Giardini was in a different category to all of the other officers involved in misusing the Memo System, except for Burrows and Blackbourne. To make such a judgment, which carried with it very significant implications for Mr Giardini, it is reasonable to expect that the Commissioner would have had regard to the conduct of other officers, including that at least six officers senior to Mr Giardini were involved in receiving pornographic material from the applicant but took no steps to stop the conduct. None of those officers were dealt with any more severely than having received counselling or a warning. In having regard to the material, the Commissioner should also have realised that a number of other officers were at least as culpable as the applicant in their involvement with sending pornographic material over the Memo System. If the Commissioner did in fact have regard to this material but proceeded, nevertheless, to remove Mr Giardini then I consider his decision to do so was unjust. If the Commissioner did not have regard to the material upon which he could base a judgment that Mr Giardini fell into a "different category", contrary to the evidence of Detective Inspector Champion, then I consider that the Commissioner did not make an informed decision as to the applicant's removal. The relevant material to which the Commissioner could have paid regard was readily available to him.

Craig Steven Dangerfield v Commissioner of Police

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (148 paragraphs)

Parties

Cases Cited (15)

Cited By (6)