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WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES ALLAN RAYMOND CARLYON

APPELLANT

 -v-

 COMMISSIONER OF POLICE

RESPONDENT

CORAM CHIEF COMMISSIONER W S COLEMAN

 SENIOR COMMISSIONER A R BEECH

 COMMISSIONER P E SCOTT

DATE MONDAY, 10 MAY 2004

FILE NO APPLICATION 1721 OF 2003

CITATION NO. 2004 WAIRC 11413

_______________________________________________________________________________

Result Leave for appellant to tender new evidence granted in part

Representation

Applicant Ms M. Ridley (of counsel) on behalf of the appellant

Respondent Mr R Bathurst (of counsel) on behalf of the respondent

_______________________________________________________________________________

Reasons for Decision -

Appellant’s application to tender new evidence

1          The Appellant seeks leave to tender new evidence pursuant to section 33R(3) of the Police Act 1892.  The Commission heard both parties in relation to that application and our decision has been reached for the following reasons.  The numbering which follows is the numbering of those matters in the Appellant’s application which were proceeded with before us. 

1.1(b): matters raised in the IAU and IIU Folio Summaries

2          By section 33L(5)(b) of the Police Act 1892 if the Commissioner of Police decides to take removal action he shall provide to the member a copy of any documents and make available to the member for inspection any other materials that were examined and taken into account by the Commissioner in making the decision.  Commission was informed that the IAU complaints histories and IIU complaints history being items 12 and 13 of the “Materials examined and taken into account by the Respondent” in the Appeal book were not provided to the Appellant prior to the decision to remove him being made.  The Appellant seeks to tender new evidence being his responses to the matters raised in those histories. 

3          The Commission considers that such a response is “new evidence” for the purposes of section 33R(11) of the Police Act 1892.  We have noted the submission of Mr Bathurst that there is no evidence that the Commissioner of Police took the histories into account prior to making the decision.  Indeed we note that the histories are not referred to in the Notice of Removal of 7 November 2003 (AB 123).  We are, however, of the view that there is no evidence before us which could lead to the positive conclusion that the Commissioner of Police did not take those histories into account.  Indeed, as the histories are included in the Appeal book under the heading of “Materials examined and taken account by the Respondent” we consider it would be difficult for the Commissioner of Police to deny that they were taken into account. 

4          By section 33R(3)(b)(iii) the Commission may grant the Appellant leave to tender new evidence if it in the interest of justice to do so.  We consider it is in the interests of justice for the Appellant to be given the opportunity to comment upon the histories given that they are materials examined and taken into account by the Commissioner of Police upon which he had no opportunity to comment. 

5          We have also given consideration to the manner in which the new evidence is to be tendered.  We acknowledge that the incorporation of section 27(1)(b) and (hb) of the Industrial Relations Act 1979 into an Appeal of this nature by virtue of section 33S of the Police Act 1892 permits the Commission to receive oral evidence.

6          We note, however, that by section 33R(6) of that Act that if the Appellant is given leave to tender new evidence under section 33R(3) the Commission is to give the Commissioner of Police a reasonable opportunity to consider the new evidence.  We are of the view therefore that the tendering of the new evidence on this occasion is best achieved by requiring under section 27(1)(hb) that the Appellant’s new evidence permitted by the Commission be presented in writing by way of affidavit.

1.1(c): Matters within the knowledge of the Commissioner of Police when making his determination, in particular:

7            (i) Injuries sustained by the Appellant in the performance of his duty

8          The Commission notes that in his response to the Commissioner of Police of 1 August 2003 (AB 84) the Appellant referred to being on a return to work program under the guidance of health and welfare branch at the time of the incident and being under enormous professional and personal stress as a result of incidents at work since his transfer to Broome (AB 89/90).  We consider that pursuant to section 33R(4) we have not been persuaded that the Appellant was not aware of the substance of the new evidence and that it was contained in a document to which he had reasonable access before his removal from office.  In particular, his inclusion of the letter from the Northwest Mental Health Service (AB 81) leads us to conclude that he did.  Accordingly, we do no grant leave.

9            (ii) Management issues at Broome Police Station

10         The Commission understands that the Appellant wishes to bring new evidence regarding his application to be transferred from the Broome Police Station which had not been agreed to because of manpower issues.  This matter does not appear to have any real relevance to or connection with the issues surrounding his removal from office.  We have had regard to the matter set out in section 33R(4) and are not satisfied that leave should be granted.

11         (iii) Duties performed by the Appellant from the date of offence until dismissal from the WA Police Service

12       The Commission has noted in this regard that the report of the Assistant Commissioner (Professional Standards) to the Commissioner of Police of 23 September 2003 (AB 113) states that the Appellant had been stood down from duty on full pay since 11 April 2003.  We note that this was incorrect.  However in his response the Appellant stated that he had “continued my duties at Broome Police Station and again I have maintained my commitment and integrity to the job” at (AB 90).  Further, the consent of the Commissioner of Police to the tendering as new evidence the affidavit of John Allen Hallett means that the evidence in that affidavit of the duties is to be put to the Commissioner of Police.  Accordingly, leave is not granted.

1.2: Affidavit evidence of Senior Sergeant Hallett

13       The Commissioner of Police consents to this affidavit being received.  Pursuant to section 33R(3)(a) of the Act.  Leave is therefore granted.

1.3: Evidence of the Commissioner of Police

14       The Appellant seeks leave of the Commission to issue a summons to the Commissioner of Police.  By section 33S of the Police Act 1892 the provisions of section 33 of the Industrial Relations Act 1979 are incorporated into this Appeal.  Significantly, it is provided that a summons may be issued to the Commissioner of Police but only at the direction of a Commissioner if that Commissioner is satisfied that there are extraordinary grounds for doing so.  It may be shortly stated that the Commission is not of the opinion that there are extraordinary grounds before the Commission for issuing such a direction as is sought. Accordingly, the direction will not be given and to the extent that leave is sought for that to occur, that leave is refused.

15       The parties recognise, indeed section 33R(6) provides, the Appellant having been given leave to tender new evidence obliges the Commission to give the Commissioner of Police a reasonable opportunity to consider the new evidence.  We are cognisant that whilst the Commissioner of Police is aware of the contents of the affidavit of Senior Sergeant Hallett, the Commissioner of Police is not aware of the new evidence to be given by the Appellant in accordance with the decision.  On that basis, it is somewhat difficult to estimate the time which will constitute that reasonable opportunity.  We are mindful that on the basis of the content of the affidavit of Senior Sergeant Hallett the Commissioner of Police submitted that one week’s adjournment would be a reasonable opportunity.  We also acknowledge in our consideration the logistical difficulties within the Commission in reconvening given court listings already made.  We advise the parties that by virtue of section 33(6) of the Act, the matter listed for 11 May 2004 is adjourned and that date is hereby vacated.  The Appeal is hereby re-listed for Friday 4 June 2004.  We consider that that timeframe provides more than a reasonable opportunity for the Commissioner of Police to consider the new evidence.  The Minute of the Order giving effect to these reasons now issues.