The Commission has dismissed a Senior Prison Officer’s application to tender new documents in a loss of confidence appeal, finding that the evidence was not new, and that it was not in the interests of justice to grant leave to be tendered.

Background

The appellant, a Senior Prison Officer, appealed his removal from his position under the loss of confidence provisions in Part X of the Prisons Act 1981 (WA) (Prisons Act). Prior to the substantive appeal being heard, the appellant lodged an interlocutory application seeking to rely on two documents not originally filed.

Contentions

The appellant contended that first document, a transcript, was not available to him at the time of filing as it was ‘restricted information’ under the Corruption, Crime and Misconduct Act 2003 (WA). In the alternative, if the transcript was properly characterised as ‘new evidence’ as used in the Prisons Act then the appellant sought leave to tender it under s 108 of the Prisons Act. The appellant contended the second document, an Incident Report, was new evidence for the purposes of Part X of the Prisons Act, and it was in the interests of justice to grant leave to tender it.

The respondent opposed orders enabling the documents to be before the Commission and contended the transcript was ‘new evidence,’ and that neither document met the test in s 108 of the Prisons Act for the tender of ‘new evidence’, because neither document was relevant to any issue in the appeal.

Findings

The Commission found that determining whether to allow the transcript involved construction of the Prisons Act regarding the meaning of ‘examined and taken into account’ in part (a) of the definition of ‘new evidence.’ The Commission found that ‘taken into account…in making the removal decision’ meant considered as a step in the process that led to the removal action. The Commission found that documents and materials that were both examined by the respondent and considered by him as a step in the process leading to the removal action, would be within the exclusion in subpar (a) of the definition of ‘new evidence’ and therefore be outside the scope of what is ‘new evidence’

The Commission found that the transcript was not new evidence as it had been examined by the respondent and was considered by him in the process leading to the removal action, including in his assessment of the grounds of the Notice of Loss of Confidence, the Investigation Report, and the appellant’s submissions. The Commission found that it should not exercise its discretion to extend the time for filing of the transcript as the transcript was not relevant to the issues in the appeal to justify doing so.

The Commission found that it could be inferred that the Incident Report would have been made available to the appellant had he sought it from the respondent. The Commission found that this weighed against the grant of leave. The Commission found that the appellant’s grounds of appeal were not advanced by the Incident Report and that it was not in the interests of justice to grant leave to tender the Incident Report.

The Commission dismissed the application.

The decision can be read here.