Lambert v Commissioner of Police

Industrial Relations Commission (NSW)|2023-06-07

decision

This is an appeal, pursuant to s 188 of the Industrial Relations Act 1996 (IR Act), from the decision of Commissioner Sloan in Lambert v Commissioner of Police [2022] NSWIRComm 1078 (Decision) to uphold an order under s 173(2) of the Police Act 1990 served on the appellant on 24 June 2021(Order).
In substance, the Order was that the appellant be subject to a disciplinary transfer, based on two allegations, each containing several sub-bases. The Decision upheld both allegations, although finding that some of the sub-bases in each allegation were successfully challenged by the appellant.
The substance of the allegations, as set out in the Order, were: "Allegation 1 I am satisfied that there are reasonable grounds to conclude that you were present when, and/or later became aware that, Det Ch Insp Jubelin recorded his telephone call to Mr Savage on 3 November 2017, without first obtaining a warrant authorising him to do so and/or Mr Savage's consent. I am satisfied that there are also reasonable grounds to conclude that you had reasonable grounds to suspect that Det Ch Insp Jubelin had engaged in misconduct by acting unlawfully under the Surveillance Devices Act 2007, and that you failed to report this misconduct. … Allegation 2 I am satisfied that there are reasonable grounds to conclude that you were untruthful, or at the very least less than fully frank, when you stated in your Written Response that: you did not 'know or even suspect' that Det Ch Insp Jubelin's call to Mr Savage on 3 November 2017 was being recorded; you 'did not know that [you were] present at a conversation that was being unlawfully recorded until DCI BATCHELOR told [you] this in a phone call'; former Det Ch Insp Jubelin had, 'on several occasions gathered all available [SF Rosann] staff … at short notice or no notice ... whilst he makes a telephone call to a person of interest', and that 'All staff present would listen to the conversation', in an effort to 'put pressure' on the person of interest'; and you 'have never seen, accessed, or listened to any part of this electronic recording. [You] have not seen products submitted on the e@glei investigation management system that indicated that there was a conversation with [the person of interest] that was recorded unlawfully', in circumstances where you reviewed and accepted the Investigator Note." [Emphasis in original]

The Decision

Before addressing whether the appellant engaged in the misconduct set out in each allegation, Commissioner Sloan addressed the statutory scheme and the principles which guide the Commission in conducting a review pursuant to s 174 of the Police Act. Neither party on appeal submitted that Commissioner Sloan incorrectly set out the relevant principles.
In what he described as "[o]bservations on the evidence", under which he addressed submissions from the respondent against the reliability of the appellant's evidence, Commissioner Sloan concluded: "50 Having regard to the evidence that I have explored above, there is force to these submissions. [The appellant] was not an entirely satisfactory or convincing witness. I consider that it is necessary to approach his evidence with some caution."
As to whether it was out of character for the appellant to have engaged in conduct of the kind set out in the allegations, Commissioner Sloan set out a detailed consideration of this issue, and concluded: "67 In the circumstances, the conduct alleged against [the appellant] in the Order would not be 'out of character'. To the contrary, it would be consistent with his failure to report other instances of misconduct by [DCI Jubelin]."
In respect of Allegation 1, Commissioner Sloan concluded that: 1. the appellant had persuaded the Commission that the appellant did not know, at the time of the Conversation, that the Conversation was being recorded; but 2. the appellant had not discharged the onus on him to overturn the second basis in Allegation 1, that he later became aware of the unlawful recording through reviewing the electronic files of the Strike Force.
Commissioner Sloan then determined the appellant had an obligation to report DCI Jubelin's conduct, and as alleged in Allegation 1 the appellant had not. Allegation 1 was therefore upheld.
In respect of Allegation 2, Commissioner Sloan determined that: 1. Grounds 1 and 2 could not be sustained, given the conclusion that the appellant did not know, at the time of the Conversation, that the Conversation was being recorded; 2. Ground 3 could not be sustained, as the respondent did not answer the case put by the appellant at hearing of a credible alternate thesis, supported by sworn evidence; and 3. in respect of Ground 4, the appellant failed to discharge his onus, which flowed from the conclusions the Commissioner reached on the second of his conclusions as to Allegation 1 referred to at [8] above.
Commissioner Sloan concluded: "143 For the reasons set out above, and in particular at [107], [131] and [132], I find that [the appellant] has not fully discharged his onus. While not all of the findings in the Order can be sustained, I am satisfied that [the appellant] engaged in misconduct. 144 I have had regard to [the appellant's] interests. The Order is a stain on an otherwise unblemished disciplinary record. It may, at least for a period, impact on his ability to secure promotions. 145 I have had regard to the public interest. The Police Commissioner submitted, and I accept, that the public interest encapsulates the notion that the organisational integrity of the NSW Police Force must be preserved. There is a public interest in police officers, particularly senior police officers, being reprimanded when they fail to report misconduct. 146 I find that the Order is not unreasonable or unjust, or beyond power. It was not contended that the Order was harsh."

Grounds of appeal

The grounds of appeal, as set out in the Application for Leave to Appeal and Appeal (Appeal Application), are: "1. The findings at paragraphs 103 to 107, 131, 132 and 143 of the decision are erroneous having regard to the evidence as a whole. 2. The Commissioner wrongly determined that the appellant read, understood and knew that [DCI Jubelin] had made an illegal recording by virtue of the presence of IN3040 being the Investigator's note and the appellant being the accepting officer. 3. The Commissioner failed to have regard to his own findings that the Savage inquiries were largely ignored by the appellant when making his findings at paragraphs 103 to 107 and 131 of the decision. 4. The Commissioner failed to have proper regard to the volume of e@gli entries reviewed by the appellant in determining he knew that IN3040 would have made the appellant aware of [DCI Jubelin's] illegal actions. 5. The Commissioner made inconsistent findings regarding the appellant's state of knowledge regarding IN3040. 6. The Commissioner failed to have regard to relevant evidence regarding the appellant's interactions with [DCI Jubelin] in determining that he failed to report misconduct when the appellant was not aware that [DCI Jubelin] had illegally recorded Savage. 7. The Commissioner erred in relying on manifestly incorrect findings to wrongly determine at paragraphs 132 and 243 that the appellant had engaged in misconduct. 8. The Commissioner erred in relying on manifestly incorrect findings to wrongly determine at … paragraph 146 that 'the Order is not unreasonable, unjust or beyond power'."
The Appeal Application also set out the questions raised by the appeal as: "1. Whether the decision is manifestly wrong? 2. What standard of proof is required to discharge the appellant's onus under a section 173 Review? 3. Whether it was open to the Commissioner to disbelieve the appellant in the light [of] there being no contradictory evidence regarding his state of knowledge."
As to leave, the Appeal Application set out: "1. The inconsistent findings with the decision require correction. 2. The decision is attended by sufficient error to warrant a grant of leave. 3. The reputation of the appellant has been detrimentally affected by the erroneous determinations within the decision. 4. The public importance in need to clarify the determination of mixed questions of fact and law within the context of a s173 proceeding warrants correction and guidance at an appellate level."

Principles on leave to appeal

Pursuant to s 188(1) of the IR Act, an appeal to a Full Bench may be made only with the leave of the Full Bench. Pursuant to s 181(2) of the IR Act, that leave is to be granted if, in the opinion of the Full Bench, "the matter is of such importance that, in the public interest, leave should be granted".
The principles on leave are well settled. The respondent set out four principles which she submitted previous Full Benches had "distilled" to guide whether leave should be granted, being: "(a) an appeal under the Industrial Relations Act 1996 (NSW) (IR Act) is an appeal in the strict sense, and the Full Bench will only intervene to correct error; (b) leave will not be lightly or automatically granted, unless substantial issues of principle or law are raised, or there are otherwise wider implications for the jurisprudence of the Commission or the proper administration of justice; (c) in the case of discretionary decisions, it is not enough that the Full Bench would have come to a different decision. It must be shown that the Commission below failed to properly exercise its discretion; and (d) where an appeal primarily challenges finding of fact, leave will rarely be granted."
The appellant agreed these were the correct principles. They were recently reiterated in SafeWork NSW v Lipman Pty Ltd [2023] NSWIRComm 1034.

Whether to grant leave

The respondent submitted that only the final of the principles set out at [16] was of relevance in this appeal.
The appellant submitted that "[t]he primary reasons for a grant of leave in this appeal is due to manifestly incorrect findings ... outlined in the appeal submissions …", but also submitted that other matters warranted the granting of leave, being: 1. A need to clarify the way in which inconsistent findings as to credit should be approached. This was said to arise from Commissioner Sloan making different findings about the appellant's knowledge of the existence of the unlawful recording of the Conversation at different points in time, "without an explanation or reasons as [to] why there would be such a seismic change in the appellant's behaviour …"; 2. There being "… public interest in ensuring the correct test is applied in relation to findings that an officer has been untruthful in their evidence"; and 3. It being "… vitally important that those who access the Commission have access to appellant intervention in circumstances where a manifestly erroneous determination has been made which has enduring consequences on the reputation and standing of that person's character."
Notwithstanding the way in which the appellant expressed his application for leave, and contrary to his Outline of Submissions in Reply filed on 2 June 2023, it was clear that the appellant challenged findings as to facts by the Commissioner at first instance. As would be necessary in such a case, the appellant submitted that the Commissioner's findings as to certain facts were not open.
Because the questions of leave and merits were entwined, the Full Bench invited the parties to address the question of leave to appeal and the grounds of appeal concurrently.
For completeness, the Full Bench observes that no wider principle of law is relevant to the appeal.

The substantive appeal

As to the merits of the appeal, the appellant submitted that: 1. the allegation that the appellant knew that the Conversation was being recorded at the time of the Conversation was the most serious allegation levelled against the appellant; 2. Commissioner Sloan found that the appellant did not know at the time of the Conversation that it was being recorded; 3. it was incongruent for Commissioner Sloan to have made that finding, and yet to have concluded that the appellant later found out the Conversation was illegally recorded, given that: 1. Commissioner Sloan positively found that the appellant paid little attention during the Conversation; 2. the COPS event which recorded the Conversation contains no words which would objectively alert a reader that the Conversation was illegally recorded, or recorded at all; 3. the appellant was aware that a surveillance device was in the home of the other party to the Conversation, and so the Conversation may have been captured on that (legal) device, at least partially; 4. the appellant reviewed more than 10,000 COPS events for the Strike Force, and did so with an urgency such that he was "churning through" COPS events without a detailed consideration of each event. This process diminished the likelihood that anything in the relevant COPS event would have alerted him that the Conversation was illegally recorded; 5. the appellant had formed the view that the other party to the Conversation was not a serious suspect for the Strike Force; and 6. the appellant gave unequivocal evidence that he did not recall having read the COPS event until later prompted during the disciplinary process.
The appellant submitted that, to the extent that the relevant COPS event referred to an SD, being a surveillance device, this could be explained by his knowledge that a surveillance device was then in the home of the other party to the Conversation.
The appellant submitted that Commissioner Sloan's finding that he had failed on other occasions to report misconduct by DCI Jubelin was not supported by the evidence. In this respect the appellant took the Full Bench to parts of the appellant's evidence relating to discussions between the appellant and more senior officers regarding the conduct of DCI Jubelin, submitting that this amounted to reporting of DCI Jubelin.

Consideration

The gravamen of the appellant's case is that the totality of the evidence before Commissioner Sloan compelled only one conclusion, being that on reviewing the relevant COPS event the appellant was not alerted even to the possibility that the Conversation was illegally recorded.
The appellant must persuade the Full Bench that this was the only possible finding on the evidence before Commissioner Sloan if he is to satisfy the requirements for leave to appeal. In such a circumstance it is obvious that the substance of the appeal would also be made out.
The Full Bench has formed the view that Commissioner Sloan's findings were open to him.
It is clear that Commissioner Sloan's decision was based on several findings as to facts, the combination of which were taken into account by him in determining whether the appellant raised sufficient doubt about each allegation.
It is true, as the respondent conceded, that the relevant COPS event does not state expressly that the Conversation was recorded illegally. However, as Commissioner Sloan's decision sets out, the COPS event includes the following wording: "Contains Protected Information Reason Material under the Surveillance Devices Act 2007 (NSW) Comment Conversation recorded on SD"
As Commissioner Sloan found: "102. [The appellant] also accepted that the contents of the [COPS event], including the attached synopsis of the call, should have alerted him to the fact that the call was recorded. … [The appellant] knew that there was no warrant in place allowing for telephone intercepts. This was enough, in my view, to have 'rung alarms bells' and at the least have warranted further enquiry."
It is also true, based on the evidence, and as set out in the Decision, that the appellant knew there was a surveillance device in the home of the other party to the Conversation at the relevant time. However, as Commissioner Sloan observed in the Decision, any such device was only likely to have captured one end of the conversation. In these circumstances, given the appellant's clear evidence that he did not recall reviewing the relevant COPS event, we disagree that the Commissioner was bound to find that this device could, much less would, have been in the appellant's mind as an explanation for the recording or the Conversation when he reviewed the relevant COPS event.
Commissioner Sloan rejected the appellant's case that he was engaged in a "tick and flick" exercise in his review of COPS events. It is apparent that that the Commissioner considered at length the evidence of the appellant as to the manner in which he conducted his review of COPS events. The Commissioner considered expressly the totality of the appellant's evidence about his review. In considering the at times contradictory evidence, the Commissioner concluded that he considered the appellant was evasive about this review. The Commissioner rejected the appellant's position that he paid little attention to the relevant COPS event.
It is also apparent from the Decision that Commissioner Sloan gave substantial consideration to the issue of whether the appellant had reported previous misconduct by DCI Jubelin. It is clear that the Commissioner did not accept the submissions of the appellant on this point.
The Full Bench does not accept that the finding that the appellant did not know at the time of the Conversation that it was being recorded is necessarily incongruent with a finding that the appellant later discovered it was recorded, and illegally so.
The Commissioner made clear in the Decision why he made each finding. He accepted what he found was the cogent and clear evidence of the appellant as to the events at the time of the Conversation. He conversely did not accept the applicant's case as to a later discovery.
The Conversation was illegally recorded. Whether the appellant knew this at the time of the Conversation, or later found out, the appellant was obliged to report that conduct. Each circumstance needed to be dealt with on the merits of the evidence before the Commissioner, and this is what the Commissioner did.
The Full Bench finds that it was open to the Commissioner at first instance to reject the appellant's case that he was not thorough and diligent in reviewing relevant COPS events. It was also open to him to reject the appellant's case that it was out of character for the appellant not to report misconduct by DCI Jubelin.
In those circumstances, the determination that the appellant failed to discharge his onus to persuade the Commission that he did not later become aware that the Conversation was illegally recorded, was open to the Commissioner at first instance.
For these reasons we refuse to grant leave to appeal.

Orders

The Full Bench makes the following order: 1. Leave to appeal is refused. Chief Commissioner Constant, Commissioner Webster and Commissioner Muir

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: 26 July 2023

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Judgment (9 paragraphs)

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