Jamie Morgan v Commissioner of Police

The Decision by Marks J 20Marks J, after a detailed consideration of the evidence, determined that Grounds 1, 3 and 4 had not been made out. In relation to Ground 5, his Honour found that the applicant had been untruthful in one particular respect, but that there was little evidence upon which the Commissioner could have concluded that the applicant had been " deliberately misleading " in his job application. The one act of untruthfulness did not, whether alone or in combination with other matters, warrant the applicant's removal (at [193]). His Honour found that there was no basis for Ground 6. 21Marks J dealt with Grounds 7 to 11 together. He considered (at [103]) that there was no doubt that the applicant had gained access to the COPS system between 2 March 2008 and 8 April 2008. Indeed, his Honour recorded (at [104]) that the applicant had not denied that he had accessed the system in the manner identified by the Commissioner. Nor did the applicant " seriously attempt to deny that he ought not to have accessed this information ". 22Marks J recorded (at [110]) the substance of the applicant's case as follows: "all of the unauthorised access made by him to the COPS system related to the circumstances surrounding the threats which he perceived had been made against him by ES [another police officer] and the potential of ES to carry out those threats. Furthermore, the applicant said that he was told by two superior police officers that he should check COPS records to ascertain whether there was anything in them that might assist in evaluating the extent of any threat that ES posed to him or his family." Later in his judgment (at [153]), his Honour found that, contrary to the applicant's evidence, the applicant's superiors had not told him to check COPS records. 23His Honour also found (at [153]) that at the time the applicant accessed the COPS system he was under pressure because of: "his perceived concerns about the threat that ES posed to him and his family and his professed inability to do anything about it." His Honour further found that senior police officers disliked the applicant because of his propensity to lodge complaints and that they had refused to grant him a requested transfer. 24Despite preferring the evidence of senior officers over that of the applicant on the question of access to the COPS system, Marks J rejected (at [154]-[168]) a submission that the applicant's integrity had been substantially impaired by his demeanour and lack of candour in the witness box. 25Marks J noted (at [169]) that the authorities required him to make a fresh and independent review of the Commissioner's decision, based not only on the material before the Commissioner, but on any new evidence admitted in the proceedings. It was also well established (at [173]) that the IRC, in considering applications brought under s 181E(1) of the Police Act , is entitled to consider and take into account the processes and procedures adopted by the Commissioner in determining to remove a police officer. In this respect, it was clear (at [176]) that the process: "mandates that the Commissioner must afford procedural fairness to a police officer in determining to remove him or her ..." 26Marks J then canvassed (at [177]-[186]) at some length the circumstances in which the disciplinary process was initiated and pursued by Superintendent Commins. His Honour noted (at [186]) that, although Superintendent Commins had prepared a complaints history relating to the applicant and had taken the history into account in his appraisal, he had conceded in his evidence that the history, except for the grounds relied on by the Commissioner, did not indicate " an extensive sustained finding complaint record ". Nonetheless, his Honour observed (at [187]) that Superintendent Commins' assessment of the applicant's overall conduct " must have been a compelling factor in the decision ultimately taken by him to recommend the applicant's removal ". 27Marks J also found (at [188]) that the investigative processes employed by another police officer, Inspector Nicholson, were: "inappropriate and that her conclusions and findings were, to a large part, either incorrect or not capable of being sustained." Inspector Nicholson had adopted inappropriate investigative techniques designed to procure a result which she described as " outcomes based ". Notwithstanding these findings, his Honour acknowledged (at [188]) that the applicant, in accessing the COPS system, breached the procedures and protocols established by the Commissioner governing access to the system. 28The additional evidence before the IRC, which was not available to the Commissioner, was summarised by the Marks J (at [191]) as follows: "the applicant continued to voice his concerns about ES who was frequenting premises within the same apartment block as occupied by the applicant and his family, which appeared to have been considered by the applicant's superior officers against the context of the flawed risk assessment conducted by Inspector Nicholson. The applicant's request for a transfer, although supported by Superintendent Commins, was rejected by others in authority within the police force, which created a difficult situation for the applicant and those officers whose responsibility it was to manage his circumstances. Whether the applicant's fears were real or imaginary, they represented his understanding of his situation and had to be addressed in some manner." 29Marks J's conclusions in relation to Grounds 1 to 6 left only Grounds 7 to 11 for consideration. His Honour expressed (at [196]) his findings as follows: "the applicant has not established that the access which he gained to COPS on 8 April 2008 and on 1 March 2008 was authorised in the sense that such access was gained for a purpose consistent with the protocols and procedures established within the New South Wales police force to secure authorised access. On the basis of his evidence, I am of the opinion that the access gained by the applicant to COPS on these occasions was motivated by his concerns for his safety and that of his family with respect to the threats that he perceived might come from the police officer referred to in these proceedings as ES. I do not accept that the applicant was authorised by any other officer to access COPS, as asserted by him, nor do I accept that such access was gained for the purpose of the discharge of his duties as a police officer. This extends in particular to circumstances surrounding other apartments in the residential block in which the applicant resided. Furthermore, I am of the opinion that the applicant was not appropriately truthful in connection with the information that he gave to Inspector Nicholson on 18 April 2008 and during the course of the interview which she conducted on 14 May 2008." 30Marks J next addressed whether the Commissioner's decision to remove the applicant could be characterised as harsh, unreasonable and unjust. If reliance was placed on Grounds 1, 3,4, 5 and 6, the removal could not have been so characterised (at [199]). However, in his Honour's view, the remaining grounds did not fall into the same category (at [200]). 31Marks J concluded that although the case was finely balanced, he was not persuaded that the applicant had discharged the burden upon him. His Honour reasoned as follows (at [201], [206]-[214]): "201 The unauthorised access to COPS on these two occasions and the untruthfulness during the interviews with Inspector Nicholson call into question the integrity of the [applicant]. The question of integrity is specifically referred to in s 181F(3)(b) of the Act. This requires that in considering my decision in these proceedings I 'must have regard to' the public interest which is taken to include 'the interest of maintaining the integrity of the NSW Police Force ....' Of course, I am also required to take into account the other matters referred to in s 181F(3) and to strike a balance by having regard, as required, to each of them. ... 206 In the course of submissions, the [applicant] urged that I should consider his application by reference to the totality of the circumstances applying to all of the grounds relied upon by the Commissioner. More specifically, it was submitted that the underlying investigative process undertaken by those officers responsible for gathering, collating and presenting material to the Commissioner for his consideration was so fundamentally flawed that the Commissioner's reasoning and grounds became, in the result, so tainted that they should not be allowed to stand or, alternatively, should be characterised as creating a removal which was harsh, unreasonable and unjust. Particular reliance was made, in the applicant's submissions, upon the flawed approach of Inspector Nicholson. I have already commented about the approach and attitude of Inspector Nicholson and about some of the value judgments which she professed to hold. I have also earlier commented on the fundamental importance to the processes to be undertaken by the Commissioner under s 181D of the Act that he be properly and appropriately informed of all material which is relevant to any decision that he is required to make. This in turn necessitates that those presenting it to him should have first undertaken some proper evaluative process to ensure that that which is provided has a sufficient factually accurate base and that there has not been an omission to provide information which is also relevant to the Commissioner's decision. The 'results based' investigative technique employed by Inspector Nicholson is inconsistent with the proper and appropriate preparation and presentation of material to the Commissioner and the failure to properly inform the Commissioner concerning the nature and extent of the threat posed to the applicant by the particular police officer involved in the siege is a fundamental omission. 207 Nevertheless, I am entitled to approach the matter by way of a fresh and independent review of all of the evidence provided, of course, that I follow the processes mandated by s 181F(1) and have regard to the matters as mandated by s 181F(3). I note for completeness the burden of establishing entitlement to relief as set out in s 181F(2). The fundamental matter that needs to be considered to resolve these proceedings is that which concerns the unauthorised access to COPS on both occasions and the untruthfulness of the information about the access so gained given to Inspector Nicholson on the two occasions to which I have referred. I have already referred, in a general way, to the COPS system and the importance of confining access to it in circumstances that are authorised by reason of the processes and protocols that apply within the New South Wales police force. The information contained within the COPS system is obviously highly sensitive and access must be confined in the manner authorised by the Commissioner. ... 209 Put shortly, the question for determination is whether or not the unauthorised access can be justified as a means utilised by the applicant to secure his protection and that of his family. If such justification could be accepted, it would also be necessary to justify, in the same way, the untruthfulness of the applicant in the information that he conveyed to Inspector Nicholson. 210 ... There is no question of personal gain in the circumstances of these proceedings. There is no suggestion of any motivating factor for the unauthorised access to the COPS system gained by the applicant other than something done in the course of seeking to protect himself and his family from someone who the applicant assessed posed and continued to pose a significant threat. Such unauthorised access is, on the applicant's case, to be considered in the context of the applicant's perception of lack of adequate support from others within the New South Wales police force including the failure to transfer him to another locality. 211 I am required to take into account the applicant's interests. In the more usual proceedings brought under s 181E of the Act, the applicant's interest extends to matters such as his or her ability to remain a member of the New South Wales Police Service, his or her financial circumstances, loss of reputation and the like. All of these matters apply in the circumstances of these proceedings but there is the added element of the interests of the applicant represented by his concerns for his safety and that of his family. 212 On the other hand, the public interest in maintaining the integrity of the New South Wales police force dictates that police officers who deliberately and knowingly breach matters of fundamental importance, such as unauthorised access to COPS, and who are untruthful in the course of disclosing information to superior officers must run a grave risk that they will not discharge the burden of establishing that removal from the police force was harsh, unreasonable or unjust. 213 I regard this matter as being finely balanced. Notwithstanding the seriousness of the unauthorised access to COPS undertaken by the applicant, I have a great deal of sympathy for his circumstances, which, I accept, were motivated by his concerns for his safety and that of his family. However, I am unable to extend the same sympathy to the applicant with respect to the untruthfulness, which I have found has tainted the information given by the applicant to Inspector Nicholson on 18 April and 14 May 2008, which I have previously described. In determining these proceedings, I am required to undertake a weighing exercise, balancing the interests of the applicant and the public interest after taking into account the several matters referred to in s 181F(1). The process by which a decision of this kind is made involves the exercise of a value judgment that relies on the application of standards of conduct as part of the evaluative process that is undertaken. 214 Although the matter is finely balanced, in the end result I am not persuaded that the applicant has discharged the burden imposed upon him of establishing that his removal was harsh, unreasonable or unjust. The unauthorised access to COPS, when coupled with the untruthfulness of the information given by the applicant to Inspector Nicholson on the two occasions to which I have referred, does not permit me, in the circumstances, to conclude in the applicant's favour. Accordingly, I propose to dismiss the application."

Full Bench of the IRC 32The applicant sought leave to appeal to the Full Bench of the IRC against Marks J's decision. Having read the material filed in the appeal, the Full Bench directed, pursuant to s 188(3) of the IR Act , that the parties to the appeal address the question of leave separately from the merits. Having heard the parties on 18 May 2010 (the applicant being represented by counsel) the Full Bench refused leave to appeal and also dismissed the appeal. 33The Full Bench gave its reasons for making these orders on 27 May 2010. After setting out the background and referring to Marks J's judgment, the Full Bench stated (at [9]) that the applicant had contended that Marks J had erred in three respects: "1. ... in failing to consider the effect of the unsatisfactory or flawed investigation in terms of whether the actual basis upon which the Commissioner had caused his Notice to be issued was so tainted as to represent an unfairness in itself; 2. his Honour found that the [applicant] had been untruthful on both 18 April 2008 and 14 May 2008 in spite of there being no evidence upon which his Honour could base such conclusion. Further, it was never put to the [applicant] in cross-examination that he had been untruthful nor misleading, nor in any other way moved to falsehood in relation to the directed interview; and 3. his Honour failed to deal with and otherwise uphold the [applicant's] Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 defence submission, namely, that the [applicant] had at the time of his access to COPS a belief reasonably held that his actions were proper." 34The Full Bench refused leave (at [11]-[13]): "11 In our view, no issue of principle arises and the [applicant] has not established any arguable error that would attract a grant of leave to appeal. In relation to the [applicant's] contention that the investigation was so flawed it tainted the whole process, grounds 7 to 11 in the Commissioner's Statement of Reasons were severable from the earlier grounds and capable on their own of being dealt with and supporting removal of the [applicant]. The primary judge's findings regarding grounds 7 to 11 were open to him. Further, we note criticism by Marks J of the investigation process and there is nothing more we could usefully add. 12 In relation to untruthfulness, the findings made by Marks J were clearly open to him on the evidence. One of the principal reasons for the [applicant's] removal was that the Commissioner had lost confidence in his integrity because of findings of untruthfulness. The [applicant] could not have mistaken or misunderstood the case against him in that regard. 13 In relation to Proudman v Dayman, as we have stated, the findings of Marks J regarding untruthfulness were open to him. We do not consider the [applicant's] contentions regarding honest and reasonable mistake could reasonably have displaced or been preferred over the findings of untruthfulness, which were clearly available on the evidence." 35The Full Bench gave no reason for making orders not only refusing the applicant leave to appeal, but also dismissing his appeal.

REASONING 36In the course of the applicant's oral submissions, it became clear that his principal challenge he wished to mount was to the Commissioner's removal order. As I have explained, that challenge, if it is to be pursued at all, will need to be the subject of a separate application for prerogative relief pursuant to s 69 of the Supreme Court Act .

The Errors Identified by the Applicant 37The applicant nonetheless submitted that Marks J and the Full Bench of the IRC committed four jurisdictional errors warranting the grant of relief in these proceedings. The errors identified were the following: (i) Marks J failed to apply correctly s 308H of the Crimes Act 1900 (NSW) in determining that the applicant's access to and use of COPS system was unauthorised. (ii) Marks J had wrongly concluded (at [104], [21] above), that he did not need to refer in detail to a printout that was in evidence. His Honour reached that conclusion because the document confirmed the applicant's access to the COPS system identified by the Commissioner. The applicant submitted that the document was relevant for other reasons. (iii) Marks J erred in admitting into evidence and in relying on a record of interview between Inspector Nicholson and the applicant conducted on 14 May 2008. (iv) The Full Bench of the IRC failed to consider all 22 grounds of appeal relied on by the applicant before refusing him leave to appeal.

The Errors are Not Made Out 38Each of the alleged jurisdictional errors on which the applicant relies is based on a misconception. 39Section 308H of the Crimes Act creates an offence of causing unauthorised access to or modification of " restricted data " in a computer. The applicant's submission appeared to assume that Marks J found that he had committed an offence under s 308H. No such finding was made. 40Marks J found (at [196], [29] above) that the applicant had not established that his access to the COPS system was authorised: "in the sense that such access was gained for a purpose consistent with the protocols and procedures established within the New South Wales police force to secure authorised access." Marks J also rejected the evidence that two named officers had authorised the applicant to access the COPS system. Indeed, his Honour recorded that, except insofar as the applicant claimed that the two officers had authorised access to COPS, the applicant (who was then represented by counsel) did not seriously dispute that his actions breached the relevant protocols and procedures. 41The applicant's main arguments in the IRC were that the stressful circumstances in which he found himself provided an explanation, if not a justification, for his conduct and that he honestly, albeit mistakenly, believed that his actions were lawful. While the primary Judge felt sympathy for the applicant, he did not consider that the applicant, having regard to his untruthfulness to senior officers, had discharged the burden of showing that his removal was harsh, unconscionable or unjust. The findings as to his untruthfulness were not vitiated by any error of law or jurisdictional error and, as the Full Bench observed, undercut his claim to have had an honest and reasonable belief that his actions were lawful. In short, s 308H of the Crimes Act was not relevant to Marks J's decision. 42The applicant's second argument apparently wrongly assumed that the document referred to by Marks J (at [104]) recorded access to the COPS system by persons other than the applicant himself. Insofar as the applicant intended to refer to a document which did record access to the system by other police officers, it is difficult to see what relevance the document had to the proceedings. At best, the document might have tended to show (although this was not established by the evidence before Marks J) that other police officers gained unauthorised access to the COPS system from time to time. The propensity (if it existed) for other police officers to access COPS without authority was not a matter relied on by the applicant's counsel in the IRC proceedings, either before Marks J or the Full Bench. The absence of any reference by Marks J to the document could not constitute a jurisdictional error. 43The applicant, at the outset of his interview with Inspector Nicholson, objected to answering her questions and invoked his " right to silence ". Inspector Nicholson thereupon directed the applicant to answer her questions and he did so, although he reiterated his objection to any portion of the interview being admitted into evidence in any subsequent civil, disciplinary or criminal proceedings. 44The direction was given by Inspector Nicholson pursuant to reg 9(1) of the Police Regulation 2000 (NSW) (now reg 8(1) of the Police Regulation 2008 (NSW)), which obliges police officers: "to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them." 45The High Court has held that a regulation in terms similar to reg 9(1) of the Police Regulation 2000 was intended to abrogate the privilege against answering questions that might expose a police officer to a penalty: Police Service Board v Morris [1985] HCA 9; 156 CLR 397 (construing reg 95A(7) of the Police Regulations 1957 (Vic)). Despite that holding, the applicant's counsel perhaps could have successfully objected to some or all of the record of interview being admitted in evidence before the IRC. The Commission in Court Session is bound by the rules of evidence ( IR Act, s 163(2)) and it is possible that there may have been a discretionary basis for objecting to the admissibility of the record of interview. It was, however, common ground that the record of interview, which was annexed to an affidavit read by the Commissioner's counsel in the proceedings, was admitted into evidence without objection by the applicant's counsel. 46As Kirk shows, a failure to comply with rules of evidence can, in certain circumstances, constitute a jurisdictional error, even if no party objects to the reception of the evidence: at [50]-[53], [55], [76]-[77]. But Kirk was a case where legislation prevented the IRC from receiving evidence of a particular kind and, as the High Court held, counsel could not render the evidence admissible by failing to object. The present is not such a case. In the absence of any objection from the applicant's counsel to the admissibility of the record of interview, Marks J's decision to admit the document did not constitute a jurisdictional error. 47The fourth jurisdictional error identified by the applicant incorrectly assumed that the Full Bench of the IRC was required, on an application for leave to appeal, to deal expressly with each of the 22 grounds of appeal propounded on behalf of the applicant. The Full Bench was entitled to deal separately with the application for leave to appeal, without conducting a hearing into the merits of the appeal: IR Act , s 188(3). In any event, by identifying three general categories of errors attributed by the applicant to Marks J, the Full Bench was doing no more than repeating the summary of the grounds formulated by counsel for the applicant on the hearing of the leave application. 48It follows that none of the jurisdictional errors relied on by the applicant in this Court has been established.

An Error by the Full Bench 49As has been noted, the Full Bench of the IRC not only refused leave to the applicant to appeal from the decision of Marks J, but purported to dismiss his appeal. The applicant did not submit that the order dismissing the appeal constituted a jurisdictional error by the Full Bench. However, in oral argument the Court put to Mr Kimber that it was difficult to see how s 188 of the IRC Act authorised the full Bench to dismiss an appeal, when it had expressly invoked the power in s 188(3) to deal with the application for leave to appeal without conducting a hearing into the merits of the appeal. Mr Kimber submitted that even if the order purporting to dismiss the appeal was outside jurisdiction, the error did not affect the Full Bench's refusal to grant the applicant leave to appeal from the decision of Marks J. 50Section 188 of the IRC Act clearly distinguishes between an appeal to the Full Bench and an application for leave to appeal. An appeal may be made only with leave: s 188(1). The Full Bench must grant leave if, in its opinion, the matter is of such public importance that, in the public interest, leave should be granted: s 188(2). Subject to s 188(4) (which deals with appeals by the Minister), in other cases the Full Bench has a discretion to determine whether it will grant leave, although that discretion must be exercised judicially. However, as I have observed, the legislation specifically empowers the Full Bench to deal with an application for leave separately and without conducting a hearing into the merits. 51By contrast, ss 191 and 192 specify the nature of an appeal to the Full Bench and the powers of the Full Bench on an appeal. An appeal is determined on the evidence adduced in relation to the decision appealed against, unless the Full Bench grants leave on special grounds to adduce further evidence: s 191(1), (2). The Full Bench cannot " merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions ": s 191(3). The powers of the Full Bench on appeal include confirming, quashing or varying the decision of the IRC or referring the matter back with such directions as the Full Bench considers appropriate: s 192(1). The legislation does not, in terms, state that the Full Bench can dismiss an appeal (as distinct from confirming the decision of the IRC). 52The legislative scheme makes it clear, in my opinion, that the Full Bench, when it refuses leave to appeal in a separate hearing pursuant to s 188(3), of the IRC Act , is undertaking a different task and making a different decision than when it determines an appeal from the IRC in accordance with ss 191 and 192. When the Full Bench of the IRC acts pursuant to s 188(3) of the IR Act , the only decisions it is empowered to make are to grant leave to the applicant to appeal (with or without conditions or limitations) or to refuse leave to appeal. Section 188(3) does not authorise the Full Bench to dismiss the appeal (or, for that matter, to confirm the decision of the IRC) without acting in accordance with ss 191 and 192. 53The consequences of a refusal to grant leave to appeal and of the dismissal of an appeal may be different. In Mitchforce v Industrial Relations Commission of New South Wales [2003] NSWCA 151; 57 NSWLR 212, the Court of Appeal characterised a refusal of leave as an interlocutory decision which could be revisited by the Full Bench of the IRC, if the circumstances so warranted: at [133], per Spigelman CJ; at [149], per Mason P; see also Sanofi v Parke Davis Pty Ltd [1982] HCA 9; 149 CLR 147, at 153, per Gibbs CJ, Stephen and Mason JJ (holding that a grant of leave to appeal is an interlocutory decision); cf Coulter v R [1988] HCA 3; 164 CLR 350, at 360-361 , per Deane and Gaudron JJ (dissenting on another point) (suggesting that a refusal of leave to appeal by the Full Court of the Supreme Court of South Australia denies the applicant the opportunity of pursuing any appeal at all in relation to a conviction). The dismissal of an appeal, in the absence of a power to reopen conferred by statute or the rules, finally determines the appellant's rights, subject to any further right of appeal to another court. 54In Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292; 74 NSWLR 257, the Full Bench of the IRC allowed an appeal against the acquittal of a corporation charged with a criminal offence. The Full Bench remitted the prosecution to the IRC to be dealt with according to law. The Court of Appeal held that the Full Bench had committed a jurisdictional error because the relevant provision ( IR Act, s 197A(7)(b)), on its proper construction, required the Full Bench, once it upheld the appeal, to make a decision itself in accordance with law: at [76], per Spigelman CJ (with whom Giles JA and Handley AJA agreed). In the present case, the Full Bench, in purporting to dismiss the applicant's appeal otherwise than in accordance with the statutory requirements committed jurisdictional error. 55As in Bros Bins, the decision of the Full Bench in the present case, insofar as it was affected by jurisdictional error (the decision to dismiss the appeal), was clearly severable from the decision insofar as it was not so affected (the refusal to grant leave to appeal), at [81], per Spigelman CJ. Accordingly, this Court can and should quash the order dismissing the appeal, while leaving intact the order refusing leave to appeal.

CONCLUSION 56Orders should be made removing into the Court of Appeal the record of Proceedings IRC 1861 of 2009 before the Full Bench of the IRC and quashing that part of the order made by the Full Bench on 18 May 2010 which dismissed the applicant's appeal. Otherwise the application to this Court should be dismissed. Since the applicant has failed on the issues he was permitted to raise in this Court, he should pay the Commissioner's costs of the application. 57The directions made by the Court permit the applicant, if so advised, to commence proceedings in the Supreme Court seeking orders quashing the Commissioner's decision on the grounds identified earlier. It is important to stress that the reservation of this right does not imply any view as to the applicant's prospects of success in any such proceedings. As has been noted, the applicant is likely to have to overcome significant hurdles if he is successfully to challenge the Commissioner's decision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2011