Plaintiff v Defendants

Plaintiff v Defendants - [2009] VSC 550 - VSC 2009 case summary — Zoe

[27]

68C Procedure on review

(1) In conducting a review under this Division, the Appeals Board must proceed as follows -

(a) first, it must consider the Chief Commissioner's reasons for the decision to dismiss the applicant from the force;

(b) secondly, it must consider the case presented by the applicant as to why the decision was not sound, defensible or well-founded;

(c) thirdly, it must consider the case presented by the Chief Commissioner in answer to the applicant's case.

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(3) The applicant has at all times the burden of establishing that the decision to dismiss the applicant from the force was not sound, defensible or well-founded.

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68D What may the Appeals Board order?

(1) If the Appeals Board is satisfied that the decision to dismiss the applicant from the force was not sound, defensible or well-founded, the Appeals Board may -

(a) order the Chief Commissioner to re-instate the applicant as a member of the force on terms not less favourable to the applicant than those that would have been applicable if he or she had not been dismissed; or

(b) if the Appeals Board considers that it would be impracticable to re-instate the applicant, order the Chief Commissioner to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 12 months immediately before being dismissed; or

(c) refer the matter back to the Chief Commissioner for re-consideration in accordance with any directions or recommendations that the Appeals Board considers appropriate.

(2) If the Appeals Board makes an order under subsection (1)(a), it may also -

(a) order the Chief Commissioner to pay the applicant an amount stated in the order that does not exceed the amount that the applicant would, but for being dismissed, have received before being re-instated; and

(b) order that the period of service of the applicant as a member of the force is taken not to have been broken by the dismissal.

...

(5) If the Appeals Board is not satisfied that the decision to dismiss the applicant from the force was not sound, defensible or well-founded, the Appeals Board must confirm the order of the Chief Commissioner.

[52]

(a) You have not raised any issues about the credibility of the female complainant or any other witnesses.

(b) In relation to your submission about having denied this incident in the past, I accept that it is clear from the McCaffrey Report that you denied the allegation when interviewed by Inspector McCaffrey.

(c) In relation to your submissions about Detective Senior Constable Cox and Sergeant Crosby, the McCaffrey Report indicates that both these members were interviewed by Chief Inspector McCaffrey. A summary of the information provided by each member is contained in the McCaffrey Report. Detective Senior Constable Cox said that he could not recall you making any comments to any female at the relevant time. Sergeant Crosby denied seeing the female in question or hearing any verbal exchange between you and the female, however he said his recollection of events was very hazy due to his "fairly substantial" consumption of alcohol.

(d) In relation to your submission that you did not receive any form of counselling, admonishment or other disciplinary sanction, I note that the McCaffrey Report contained a recommendation that you be admonished. It does not establish whether that recommendation was implemented. Based on the McCaffrey Report, I can not be satisfied that you ever received an admonishment, were counselled or received any other disciplinary sanction.

(e) In relation to your submission that you could not provide a more comprehensive response without access to the entirety of the ESD file relating to this incident, I note that the McCaffrey Report is lengthy and detailed. It is 15 pages long and contains comprehensive summaries of all interviews conducted by Inspector McCaffrey with each of the civilians and members involved. Although the events are now some 14 years old, it is difficult to see what more would be necessary to assist your recall of the events in question, particularly in circumstances where you deny making the derogatory comments.

(f) In relation to your submission about the age and nature of the allegation, I note that the McCaffrey Report indicates that this allegation was substantiated in 1992, some 14 years ago. As to the nature of the allegation, I note that there is no reference in the McCaffrey Report to any specific consequences of your conduct for the female complainant.

[62]

Mr Shields denies the version of events as contained in the statement of Mark O'Regan. It is noted that the statement was taken approximately eight months after the alleged incident.

Mr Shields admits that he was present at the Shell Service Station at the corner of Linton Street and South Road, Moorabbin at approximately 3.00 pm on 23 April 2005.

Mr Shields asserts that Mr O'Regan drove his motor car into the service station at an excessive speed. He parked it directly outside the electronic doors in an area that was not appropriate for parking and which made egress difficult. The position in which it was parked, forced people to walk around it. It was apparent to Mr Shields that Mr O'Regan was indifferent to the obstruction the position of his car was causing. Mr Shields admits that he had watched the movements of Mr O'Regan, but denies that he glared at him. He also denies, as Mr O'Regan asserts in the second paragraph of his statement "I told him it was rude to stare as I walked past and went to the drink fridge to get a drink". In fact, Mr Shields asserts that what Mr O'Regan said was "what the fuck are you looking at?". It was at that time, and as a result of the utterance by Mr O'Regan that Mr Shields approached him, showed him his police identification badge which clearly depicted his name and told him that he ought behave better than he had.

Mr O'Regan had adequate time to read the name of Mr Shields on his badge. When Mr Shields returned to his car, Mr O'Regan again asked him to see the badge. Mr Shields complied. He had no reason to hide his identity. He was driving a motor car registered in his own name.

Mr O'Regan states that he believed he was going to get a ticket from the police and did not believe that he deserved one. It is submitted that a reasonable inference for the conduct of Mr O'Regan in making a complaint was to stop such a ticket being given to him.

Mr Shields subsequently received a telephone call from Sergeant Ramsden of Moorabbin Uniform about the matter. He explained to Sergeant Ramsden what is set out above. It is noted that there is no statement from Sergeant Ramsden in the Brief.

Had Mr O'Regan been encouraged by ESD to make his complaint earlier, the security film footage from the service station could have been obtained verifying the conduct attributed by Mr Shields to Mr O'Regan.

Mr Shields denies that he at any time intimidated Mr O'Regan. He did not move close enough to Mr O'Regan for him to be in any way concerned. At no time was he "getting up on his toes". He had no reason to do so. He was not trying to intimidate Mr O'Regan, nor did he do so.

In any event, it is also submitted in relation to this incident, either in isolation or in combination with the other matters contained in the Notice that it would constitute an allegation of sufficient gravity to justify.

[66]

3.1.1. You have had an ongoing personal relationship with Constable Sasha Shaw that commenced prior to her becoming a sworn member of Victoria Police. You actively encouraged and assisted her in becoming a sworn member.

3.1.2. On or about 9 September 2005, you arranged for Shaw, who was off duty and without operational equipment, to accompany you on an arrest in Bay Road, Sandringham and subsequent taped interview and search by consent of premises in Narre Warren. Sergeant Donald Gallahar from Sandringham uniform, members of the Region 1 Traffic Tasking Unit and other members of Brighton uniform were involved.

3.1.3. On 12 September 2005, you sent an email to Inspector Carlisle requesting that he express your appreciation to all members involved in the operation on 9 September 2005. In the email you listed the members involved in the operation. The list did not include Shaw.

3.1.4. On 30 September 2005, Shaw worked a day shift as a student at the Traffic Course at Dawson Street, Brunswick. You were rostered as the nightshift 265 for Divisions 3 and 4 of Region 1. You commenced duty at 2200 hrs. You picked Shaw up from your flat in Bay Street, Brighton at approximately 2245 hrs. Shaw was off duty, in plain clothes and without operational equipment. Shaw accompanied you on your patrols until approximately 0330 hrs when you dropped her back at your flat. Although some of your running sheet has been completed in Shaw's handwriting, her presence with you is in no way acknowledged on that running sheet or elsewhere.

3.1.5. On 1 October 2005, Shaw was not rostered for duty. You were rostered as the nightshift 265 for Divisions 3 and 4 of Region 1. You commenced duty at 2200 hrs. You picked Shaw up from your flat in Bay Street, Brighton at approximately 2240 hrs. Shaw was off duty, in plain clothes and without operational equipment. Shaw accompanied you on your patrols until approximately 0330 hrs when you dropped her back at your flat. Although some of your running sheet has been completed in Shaw's handwriting her presence with you is in no way acknowledged on that running sheet or elsewhere.

3.1.6. On the dates referred to in particulars 3.1.2, 3.1.3, 3.1.4 and 3.1.5 above, Shaw was a probationary constable stationed at Dandenong Police Station in Region 5.

[73]

The first allegation made in relation to [X] is that Mr Shields, in company with other members from the ... CIB set a "bounty" for who would be the first to have anal sex with [X]. There is no evidence in the Brief to justify this assertion. Mr Shields denies that he was involved in any discussion about there being a "bounty" in relation to [X]. If there was such a "bounty", he was not aware of it, and he considers it offensive and repugnant to suggest that he was a party to such an arrangement. It is unclear of the basis upon which the Chief Commissioner makes the allegation that Mr Shields was party to such arrangement in the absence of there being any evidence supporting the allegation in the Notice and supporting material.

It was only at the request of the legal representatives of Mr Shields that other members who were present at the ... CIB were asked about the existence of such a bounty. The Chief Commissioner apparently did not consider it necessary to seek their views before making the assertion that she has in the absence of any evidence to support it.

[The statement then summarised the evidence of three officers who said that they had never heard the term "bounty" being used and that there was nothing unusual in the relationship between Mr Shields and Officer X. The statement continued:]

There is no evidence that any such "bounty" was set, or that even if one was, that Mr Shields was involved in it.

Mr Shields agrees that he had a consensual sexual relationship with [X]. The relationship concluded. Mr Shields denies the conduct alleged against him in paragraph 1.1.3. Specifically, he asserts that he never told [X] that she was a "bounty" or to "fuck off".

Mr Shields admits that he had a confidential communication with a person he thought was a close friend about one particular aspect of the sexual relationship that he had with [X]. The conversation was not for the purpose of bragging or boasting, or to cause [X] any embarrassment or humiliation. In fact, Mr Shields requested that the man give his word that he would not repeat the conversation to any other person, which he did. The purpose of raising the issue with his friend was because of a concern Mr Shields had as to whether a consequence of sexual contact that he had with [X] was normal. Mr Shields does not know whether the colleague that he spoke to broke his word and repeated the communication. Mr Shields has never spoken to any other person about that particular aspect.

It is submitted that in the absence of clear evidence that he bragged or boasted about this incident with the intention of causing humiliation or degradation to [X], that it would be inappropriate for the Chief Commissioner to take this matter into account when she considers her decision in this matter.

There was nothing improper in the sexual relationship with [X]. Mr Shields is not responsible for any rumour or innuendo surrounding [X].

The Chief Commissioner asserts that [X] has been the subject of ongoing harassment from other members for approximately 10 years. That is surprising in circumstances where Mr ... makes it abundantly clear that [X] was not even aware of the allegation until January or February 2004 when Mr ... told her.

[76]

(a) I continue to accept the truth of the matters contained in [X]'s statement. As I have noted above, you have admitted the truth of some, but not all, of these matters.

(b) I reject your submission that there is no evidence that you were party to a "bounty" arrangement involving [X]. I find that evidence of this is contained in [X]'s statement. Other evidence (although of significantly less weight) is also contained in the statement of Senior Constable ... , a statement taken at your request, which is part of Annexure H to the Response. Senior Constable ... states that she has heard that there was a bet about you and [X] having sex, although she had never heard the term "bounty" used.

(c) I find that [X]'s statement contains clear evidence of the harassment she endured throughout a period of approximately ten years. Although Sergeant ...'s statement makes clear that [X] did not fully comprehend the reasons for the various nicknames she had been given until 2004, this does not detract from her assertions about the harassment she endured, which included the use of those nicknames, prior to that time. Use of those nicknames is corroborated by other members who made statements at your request, including Sergeant ... and Senior Constable ... , whose statements are part of Annexure H to the Response. It is also corroborated by the statement made by ... In any event, much of the harassment of which [X] complains was associated not with the nicknames, but with the dissemination of the story of the "bounty".

(d) I find that you failed to take any action to alleviate or minimise the harm caused to [X] by the dissemination of this story. I note that you have not pointed to the taking of any such action in the Response.

(e) I do not regard the statements of the three other members who worked at ... at the relevant time to be persuasive. I note that one of these members, Sergeant ... , is said by [X] to be one of the "bounty" group. Another ( ... ) says that he barely knew [X], and notes that ... CIB (where you and he were at the relevant time) and ... Uniform (where [X] was) were at different locations.

[143]

SOUND, DEFENSIBLE OR WELL FOUNDED

The Board has sought to make it very clear that its purpose is to determine if the decision of the Chief Commissioner to dismiss the Applicant was sound, defensible or well founded. Equally, the Board has sought to make it clear that the task is not to re-make the decision.

As stated earlier a key document for the Board is the Dismissal Order of the Chief Commissioner wherein she details the matters before her and the weight she has applied to those matters.

The Board has also considered written and oral submissions by the Applicant and the Chief Commissioner's representative. Mr ELLIOTT, the Advocate for the Applicant also provided the Board with a final written submission.

Mr ELLIOTT's submission sought to challenge all of the matters upon which the Chief Commissioner had placed weight and suggested that there should have been further investigation by the Chief Commissioner. To require the Chief Commissioner to "speak to" complainants and others is untenable. Those tasked with collecting information (conducting investigations) in this case have done so and that information has been placed before the decision maker.

Perhaps most importantly, the Board again makes the point that the decision under review is an administrative decision and not a decision of guilt or innocence of a disciplinary offence. What must be decided by the Chief Commissioner pursuant to the provisions of Section 68 of the Act is the suitability of the Applicant to continue as a member of the force having regard to his integrity and the potential loss of community confidence if he were to continue.

THE BOARD'S FINDING

The Board considers that the important issue of procedural fairness has been comprehensively examined by the Supreme Court. Justice BELL clearly found that the Applicant was afforded procedural fairness and the Board is bound by that decision. The Board also notes that the Chief Commissioner considered the submissions by the Applicant concerning his good character.

On the remaining question the Board finds that the Applicant has not discharged the burden of proof required to establish that the decision to dismiss was not sound, defensible or well founded. Accordingly, the Dismissal Order of the Chief Commissioner is confirmed.

At a glance

Court

Decision date

Before

Source

Judgment (224 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (7)