Flanagan v Commissioner of Police

1 Michael James Flanagan, a former Police Officer, has pursuant to s 187 and s 188 of the Industrial Relations Act 1996 ("the IR Act") sought leave to appeal and, if leave is granted, to appeal from a judgment of Staunton J given on 7 February 2008 in Michael James Flanagan v Commissioner of Police [2008] NSWIRComm 11. In that matter, her Honour declined an application for review of an order made by the Commissioner of Police under s 181D of the Police Act 1990 ("the Police Act") removing Mr Flanagan from the New South Wales Police Force. 2 The decision by the Commissioner was based on consideration of the appellant's conduct and perhaps integrity arising from two incidents: (a) an off duty assault incident involving two members of the public (Mr Amatto and Mr Hynch) which occurred in a Wellington hotel on 15 April 2006; and (b) subsequent unauthorised accesses of the Computerised Operational Policing System ("COPS") during the period 19 April 2006 to 10 May 2006. A number of the enquiries made by the appellant through COPS related to the Wellington hotel incident. 3 Given the conclusion that we have reached in this matter, that there has been a denial of procedural fairness accorded to Mr Flanagan and that the matter should be remitted for re-hearing, it is unnecessary and undesirable to rehearse the history and substance of the matters raised in the appeal in any detail. 4 It is sufficient to identify that the decision by the Commissioner to remove Mr Flanagan from the New South Wales Police Force was based on the ground of conduct relating to the incidents set out above (there was a dispute as to whether "integrity" formed a ground for the removal of the appellant). 5 Mr Flanagan was convicted of the assault and did not seek to deny that in the proceedings before her Honour. Nor did he deny accessing COPS, although he claimed what he did was consistent with conventional practice at the time. Rather, the appellant sought to establish one of the conditions in s 181E of the Act, being that his removal was harsh. One of the relevant grounds relied upon by the appellant was that there was a significant and serious provocation, which occurred whilst he was off-duty that gave rise to the assault. 6 Staunton J found that Mr Flanagan had maintained that his actions should be perceived through the prism of physically threatening remarks made to him by Mr Amatto in the gaming room of a hotel. 7 Staunton J also found, however: [105] Taking all I have considered into account, I have difficulty in accepting the evidence of Mr Flanagan together with the corroborative evidence of Ms Humphries that Mr Amatto did use the direct and explicit words that he is alleged to have said to Mr Flanagan in the gaming room, threatening to 'gut' and/or stab Mr Flanagan and stab police generally. Further, I accept, to some extent, Mr Amatto's evidence before the Local Court when it was put to him that he had made such threats to Mr Flanagan and he emphatically denied them, pointing out that he knew Mr Flanagan was a police officer and that he would be unlikely to 'take on' a police officer in the terms alleged. There is a ring of truth in that statement given, by that stage, Mr Amatto had a relatively lengthy involvement over many years with the criminal justice system and the police force in particular. 8 Her Honour did not accept that the statements attributed to Mr Amatto that were most material to Mr Flanagan making out the provocation were in fact made by Mr Amatto. This was notwithstanding that Staunton J recognised that if made in the manner attested to by the appellant, they were very serious. 9 We consider that in approaching the matter in the way she did, her Honour denied the appellant procedural fairness as to an issue that was critical to the determination of his application: see Stead v State Government Insurance Commission (1986) 161 CLR 141 and Auscare Corporation Pty Ltd v New South Wales Department of Commerce (No 2) [2008] NSWIRComm 124. 10 The reasons we have come to this conclusion are each predicated upon our opinion that the issue of provocation was a material consideration in considering whether the removal was harsh and that her Honour rejected the appellant's evidence regarding provocation. We consider that rejection constituted a denial of natural justice because: (a) the appellant's integrity and credibility regarding what occurred in the gaming room of the hotel, did not form part of the reasons for his dismissal; (b) the respondent did not, in its case, challenge this aspect of the appellant's evidence, or submit that it gave rise to a new issue as to the appellant's integrity and credibility. Indeed, we consider that the respondent conceded that her Honour should proceed on the basis that the words attributed to Mr Amatto in the gaming room were, in fact, uttered by him (in that respect,we note that the evidence of Mr Amatto was only introduced on a limited basis which we will later discuss); and (c) her Honour did not raise with the appellant in the course of the proceedings that she had a concern with the appellant's evidence as to what occurred in the gaming room to provoke him such as to give rise to a fresh and separate issue as to his credibility, or that it would be taken into account notwithstanding the absence of a contradiction as to its veracity. 11 We do not accept the contention by the respondent that the attack based on procedural fairness grounds could not be made out because of the approach by the respondent and her Honour to the issues concerning access to COPS. 12 There is no doubt that an error of this kind constitutes a failure to exercise jurisdiction in a way that vitiates the decision at first instance. In light of such a jurisdictional error, leave to appeal must be granted on public interest grounds. 13 The decision at first instance must, therefore be quashed, because as the proceedings went forward before us as an appeal stricto sensu on the grounds we have identified, there is no other sensible alternative than to remit the matter for re-hearing, particularly in the light of the respondent's submission as to the limits of the concession that it would offer in any remitted proceedings as to what had occurred between the appellant and Mr Amatto in the gaming room. 14 The appellant did raise a number of other issues as grounds for the appeal. They may be summarised as follows: first, her Honour did not consider the appellant's application in conformity with s 181F(1) of the Police Act. The importance of s 181F(1) in the context of a review undertaken under Pt 9 Div 1C of the Police Act has been emphasised a number of times by Full Benches of the Commission: Hosemans v Commissioner of Police (2004) 138 IR 159 at [106]; Commissioner of Police v Dobbie (2006) 157 IR 44 at [30]; Johnston v Commissioner of Police [2007] NSWIRComm 293.

15 The appellant contended that her Honour took into account as a decisive consideration, Mr Flanagan's integrity and credibility based on the evidence he gave before her and the Local Court as to the exchange with Mr Amatto. There was no case presented by either party that the appellant lacked integrity by reason of this evidence. In considering that issue, Staunton J did not consider the matter in accordance with the process set down by s 181F(1), which the appellant contended, constituted an error of law. 16 Secondly, it was contended by the appellant that it was not reasonably open to Staunton J, in any event, to find that Mr Flanagan's evidence as to the exchange with Mr Amatto in the gaming room, and the belief he formed as a result, was untruthful, particularly as no person, apart from Mr Flanagan and Mr Amatto, said that they heard any of the words exchanged between Mr Flanagan and Mr Amatto and Mr Amatto could not properly be believed. Mr Amatto was not called by the respondent to give evidence and his police statement was only admitted by her Honour on the basis that it would be given negligible, or no, weight. The appellant contended that Mr Amatto was an inherently unreliable witness because he was a person with a long criminal history extending over a decade and who had been sentenced to imprisonment on a number of occasions. Mr Amatto accepted at the Local Court hearing that he did not have a good recollection of the incident because he was drunk. Mr Amatto admitted at the Local Court hearing that he did not like police and Mr Amatto had previously been charged by Mr Flanagan with two counts of common assault and a stealing offence which the appellant contended gave Mr Amatto a motive to be hostile towards Mr Flanagan. 17 Thirdly, the appellant contended that her Honour mischaracterised the appellant's case and evidence before the Local Court where Mr Flanagan had run a self-defence argument, which was not made out. For the purposes of the proceedings before Staunton J, the appellant accepted that finding and did not attempt to argue that he had acted in self-defence. However, the appellant contended that her Honour characterised Mr Flanagan's case as one whereby he maintained that he acted in self-defence (with the necessary consequence that there could not have been an assault): see paragraphs [49], [63] and [76] of her Honour's judgment. 18 Fourthly, Staunton J never considered the appellant's case in accordance with the test under s 181E and s 181F of the Police Act, the test being the appellant was entitled to succeed if he established his removal was harsh. The appellant submitted that her Honour adopted a different test, namely, whether the removal was "too harsh". 19 Fifthly, the appellant contended that his non-conviction was not properly taken into account by her Honour. The assault charges against the appellant were ultimately dismissed by the District Court under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. 20 Sixthly, the appellant contended the findings of fact by her Honour that Mr Flanagan deliberately, not inadvertently, engaged in improper access to COPS, which were critical to her Honour's decision to dismiss the appellant's application, were not reasonably open on the evidence. 21 Seventhly, the appellant contended that her Honour had fallen into error in terms of the approach that was adopted in respect of the review of the Commissioner's decision. The appellant submitted that the approach adopted by her Honour was decisively rejected in Hosemans v Commissioner of Police. It was contended that her Honour failed to make a fresh and independent review of the decision itself. Such an error amounted to a constructive failure to exercise jurisdiction. 22 These are all matters about which we would have been prepared to grant leave to appeal. Whilst it is unnecessary to resolve these issues in light of the decision we have reached as to a denial of procedural fairness, we should mention two matters deriving from the further grounds. First, we think it is desirable that the approach to the question in s 181E of the Police Act should be undertaken as closely as possible in accordance with the language of the section and the applicable test there stated. Secondly, as to the operation of s 181F(3) of the Police Act, we agree with the observations of Walton J, Vice-President in Van-Huisstede v Commissioner of Police (No 1) (2000) 98 IR 57, where his Honour stated: [217] However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. [218] The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): "Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree." ORDERS 23 The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Staunton J of 7 February 2008 in matter No IRC 1363 of 2007 is quashed. 4. This matter is remitted to Kavanagh J for hearing.

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