The Commission has dismissed the appeal of a Senior Constable (appellant) against the decision of the Commissioner of Police to take removal action. The Commission found that it was open to the Commissioner of Police to lose confidence in the appellant, finding that he had unlawfully arrested an Aboriginal woman, and in the course of the arrest, had used excessive force.

Background

On 13 November 2019, the appellant and another Constable attended the home of an Aboriginal woman (referred to in the reasons as Ms G) in response to her call for assistance to remove a male from her home.

On arrival, Ms G was holding a small kitchen knife, which she dropped when directed to. The appellant and Ms G engaged in a discussion, following which the appellant placed Ms G under arrest, referring to an English charge of “racially aggravated public order”. The officers lifted Ms G from her seated position to place her in the vehicle with force. The Commission observed that Ms G was told she was under arrest within 31 seconds of the appellant exiting his vehicle, and she was placed in the police vehicle within approximately one minute of his arrival. Ms G was taken to the police station, where the appellant continued to engage with Ms G in the charge room.

Ms G was later charged with an offence under the Weapons Act relating to possessing an article with intent to cause fear, and two counts of disorderly conduct, relating to her conduct in her front yard and in the police station. The appellant and the Constable prepared a statement of material facts for the prosecution, and later, in January 2020, prepared witness statements.

All charges were withdrawn after Ms G’s representative alerted the prosecution to significant inconsistencies between the officers’ witness statements, and the events as they are captured on the officers’ body warn camera footage. The representatives lodged a complaint to the Internal Affairs Unit. An investigation was commenced, followed by loss of confidence proceedings, resulting in the appellant’s removal as an officer.

Reasons for removal

The Notice of Intention to Remove outlined the reasons for the appellant’s removal, being:

1. The appellant arrested and detained Ms G without lawful authority.
2. The appellant used excessive force when arresting and detaining Ms G.
3. The appellant was negligently or wilfully dishonest when he prepared a statement of material facts document and witness statement for the prosecution of Ms G.
4. The appellant failed to perform his duties in a proper manner when he included the other constable’s witness statement in an evidential brief for the prosecution of Ms G, without addressing inaccurate and misleading information within that document.
5. The appellant was wilfully dishonest or misleading during managerial interviews. 

Grounds of appeal

The appellant challenged the reasons for removal, raising six grounds of appeal, being:

1. The arrest was not unlawful, as it complied with the Police Force Regulations 1979 (WA) and the Criminal Investigation Act 2006 (CI Act) requirements, and that there were valid grounds for an arrest.
2. The use of force was not excessive, as it complied with the Police Force Regulations and was necessary to protect the officers’ and Ms G’s safety as well as to prevent continuation of the offence.
3. That he was not wilfully dishonest in preparing the Statement of Material Facts and his witness statement for the prosecution brief, and that his statements were consistent with his recollections, and he did not intend to mislead.
4. That he did not fail to perform his duties in a proper manner when he included the other constable’s witness statement in the prosecution brief without addressing its. The appellant indicated that the constable’s recollections were ‘largely similar to his own’ and it was usual practice to assess these things in a cursory, rather than accurate way.
5. That he was not wilfully dishonest or misleading during managerial interviews, as there was no evidence that he intentionally mislead interviewers. He was not evasive or duplicitous and he did not materially change his story despite ‘duress’ during the interviews.
6. The decision to remove him was disproportionate with his behaviour and has not resulted in a loss of public confidence in the Police Force. The appellant suggested he performed his duties ‘in line with acceptable custom and practice for front line officers’.

Findings

The primary reasons were delivered by Cosentino SC and Emmanuel C jointly.  Kenner CC agreed in large part.

As to ground one, Cosentino SC and Emmanuel C considered whether the charges for offences brought against Ms G were in compliance with the requirements under the CI Act and Weapons Act respectively. They found that the appellant, when stating an English offence when arresting Ms G, did not meet the requirements of s 128 of the CI Act. They considered that, even if the appellant had in mind a racial offence under the CI Act, that these offences would not be appropriate offences for the conduct in question. Cosentino SC and Emmanuel C further held that it was not objectively reasonable for the appellant to have a suspicion that Ms G had committed an offence under the Weapons Act.

As to ground two, Cosentino SC and Emmanuel C found that there was no resistance to the arrest, and that the evidence demonstrated there was no need to use any force. They found that the appellant had not created any doubt as to the reasonableness of the finding that the force used in the arrest was excessive.

In relation to ground three, Cosentino SC and Emmanuel C observed that the reasons the appellant provided did not explain the inconsistencies in his account of events. They noted that it was more plausible that some statements were a fabrication to support the charges laid against Ms G. They also raised serious concerns about the review process as to the conduct of other officers, in failing to identify the flaws in the appellant’s material for the prosecution.

Cosentino SC and Emmanuel C observed that consideration of grounds four and five were not required, given the appeal had not succeeded on the preceding grounds. They noted however, in relation to ground four, that ‘putting efficiency before integrity is inimical to the very core of a police officer’s duties’. They further found that ground five was made out, and that the appellant was not wilfully dishonest or misleading during the managerial interviews.

In relation to ground six, Cosentino SC and Emmanuel C acknowledged that the removal was a high price to pay for the appellant. However, they highlighted that he had failed to demonstrate insight into, or remorse for his actions, and had gone to lengths to portray Ms G as racist, aggressive, and dangerous, and failed to acknowledge the harm his actions caused her.  They noted the public interest in improving Aboriginal/Police relations; in closing the gap on Aboriginal incarceration rates; and in having a police force which is effective in responding to and preventing domestic and family violence. Cosentino SC and Emmanuel C held that the appellant’s interests, weighed against the public interest, were not such as to render his removal harsh, oppressive, or unfair.

The appeal was dismissed.

Additional commentary

The appellant also sought to argue that the recent decision of Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 reversed the onus of proof that is on the appellant in Police appeals of this kind.

Kenner CC observed that the decision of the New South Wales Court of Appeal in Zisopoulos affirms the proposition that the overall persuasive burden rests on an appellant to establish that the removal was unfair, and that the existence of an evidential or tactical onus does not shift the overall burden of proof. Kenner CC further noted that raising doubt as to one aspect of the reasons for removal, may not be sufficient to justify overturning the decision.

Cosentino SC and Emmanuel C also considered that Zisopoulos did not mark a departure from the settled approach to appeals under s 33Q of the Police Act.

The full decision can be read here.