Application to tender new evidence dismissed
The Commission has dismissed an application to tender new evidence in an appeal against the decision of the Commissioner of Police to remove a police officer under the Police Act 1892 (WA) . The Commission, in the same hearing, granted an amendment to the grounds of appeal.
The appellant is a former member of the Western Australian Police Force. At the time of the events leading to his removal, the appellant was a Senior Constable based at the Geraldton Police Station.
Loss of confidence proceedings commenced in October 2020. The appellant was accused of making an arrest without lawful authority; using excessive force in an arrest; being negligently or wilfully dishonest; and failing to perform his duties in a proper manner by failing to address inaccurate and misleading in formation in a witness statement.
The appellant was removed from the Police Force on 29 December 2020. The appellant denied the allegations.
The appellant made two interlocutory applications in connection with the appeal. Firstly, to tender new evidence under s 33 R of the Police Act, and secondly, to amend the grounds of the appeal. The applications were heard together.
The appellant sought to have various categories of evidence tendered, including audio recordings of all managerial interviews; historical penalties for excessive force; newspaper and media reports outlining a shooting in the region; occupational health and safety reports and dispatch figures.
The appellant argued, among other things, that this evidence displayed bias in the investigations conducted and the decision to remove him from the Police Force was affected by it . It was also argued that the appellant’s removal was disproportionate to his conduct, compared to other cases. It was also contended that the force used in the arrest was not excessive and was necessary to avoid injury to himself and the other police officer on duty with him at the time of the incident.
The appellant also submitted that there had been no appreciable decline in dispatch requests from Geraldton Police Station. The appellant argued that these figures were indicative of public confidence in the Police at Geraldton, and as such, there was no loss of confidence.
The Commission identified key provisions under the Police Act that are required to be fulfilled when determining if new evidence may be tendered where the Commissioner of Police does not consent.
The Commission outlined that the qualification for the WAIRC to grant leave to tender new evidence is satisfaction of s 33R(3)(b), and that the Commission must be satisfied that
- the appellant is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information;
- the new evidence might materially have affected the Commissioner of Police’s decision to take removal action; or
- it is in the interests of justice to do so.
The Commission went on to outline that the tender of new evidence is also constrained by s 33R(4), in that the Commission must consider the appellant’s prior awareness of the substance of the new evidence. Further, under s 33R(11), the new evidence must not have been considered by the Police Commissioner in making the decision to take removal action.
The Commission also dealt with the concept of public interest under s 33Q(4) of the Police Act. The Commission clarified that the public interest was not based on the individual conduct of the appellant and whether this had resulted in fewer calls to the Geraldton Police Station. Rather, it is concerned with whether the actions of the appellant were compatible with the need to maintain public confidence in the Police Force generally, and whether it was open to the Commissioner to lose his confidence in the appellant in the circumstances.
The Commission determined that the documents did not satisfy the requirements of s 33R of the Police Act, and dismissed the application to tender new evidence. The Commission, however, held that the application to amend the grounds of appeal, not relating to the tender of new evidence, would be granted.
The decision can be read here