100423340

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 THURSDAY, 8 JULY 2004

FILE NO APPLICATION 1721 OF 2003

CITATION NO. 2004 WAIRC 11966

_______________________________________________________________________________

Result Appeal pursuant to section 33P of the Police Act 1892 dismissed

Representation

Appellant Ms M Ridley (of counsel) on behalf of the Appellant

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

_______________________________________________________________________________

Reasons for Decision

1         This is an appeal by Allan Raymond Carlyon (“the Appellant”) under section 33P of the Police Act, 1892 (“the Act”) against the action taken by the Commissioner of Police to remove him from the Western Australian Police Service.

2         Under section 33L(1) of the Act the Commissioner of Police gave the Appellant notice of loss of confidence in his suitability to continue as a member of the Police Force (Appeal Book pages 19 – 21).  After taking into account written submissions from the Appellant in response to the grounds which the Commissioner of Police cited as the basis upon which he had lost confidence in the Appellant, the Commissioner of Police decided to take removal action under section 33L(5) of the Act.  The Appellant was advised of the reasons upon which the removal action was taken.  These reasons were set out in a memorandum from the Commissioner of Police to the Minister for Police.  A copy of that memorandum was attached to the notice to remove the Appellant from the WA Police Service (Appeal Book pages 122 and 122A).  That advice fulfilled the requirements of section 33L(5) of the Act for the Appellant to be advised of the reasons.

3         The circumstances and reasons for removal are summarised in the Commissioner of Police’s memorandum:

“During the early hours of 7th December 2002, Senior Constable Allan Raymond Carlyon was off duty when he approached a group of eight young persons who were seated outside a restaurant within the Broome townsite.  The complainant, Jeremy Andrew Brown, 19 years was seated with the group.

Senior Constable Carlyon engaged some of the group in conversation and attempted to obtain information about a family related issue.  In response Brown stood up and Senior Constable Carlyon challenged him before assaulting him by head butting and then punching him several times to the head.

Brown reported the matter to the officer on duty at Broome Police Station and as a result of an investigation by Inspector Nigel White of the Kimberley District Office, Senior Constable Carlyon was charged with assault occasioning actual bodily harm pursuant to section 317 of the Criminal Code.  The hearing has been adjourned part completed until 8-10 December, 2003.

As a result of investigations into this event the Investigating Inspector recommended Senior Constable Carlyon be dealt with by way of the Commissioner’s Loss of Confidence under the provisions of the Police Act.  Subsequent to the Investigating Inspector’s recommendation that Carlyon be dealt with by way of the Commissioner’s Loss of Confidence, a Review Officer was appointed.

The Review Officer was appointed to inquire into the key issues of the preceding investigation and provide a balanced view as to the suitability of Carlyon to remain as a member of the Police Service.  Consequently the Review Officer recommended that Carlyon be served with a Notice of Intention to remove from the Police Service.

Accordingly I notified Carlyon that I intended to recommend his removal from the Police Service, as I was not satisfied that his conduct and integrity were of the standard expected and required of a member of the Police Service and necessary to maintain public confidence in the Police Service.  I hold this view in respect of the incident, which has been the subject of investigation and a review process.

In forming that view I have considered Carlyon’s detailed responses and the analysis of those responses by the Review Officer.  I generally concur with the analysis and conclusions reached by the Review Officer.

Carlyon, in his record of interview with Inspector White, stated he was socializing from about 5.30pm on the 6 December, 2002 to 1.00am the following morning, but he had only consumed four or five cans of Carlton Mid-Strength beer.  The incident took place after he and his party left the Roebuck Hotel and he walked towards the Wings Restaurant.

Carlyon in his response denies he acted in the matter alleged although he states he regrets having engaged in a verbal altercation with Brown, rather than backing off or attempting to defuse the situation.  The witnesses clearly identify Carlyon, as behaving in a confrontational manner toward the group and he was the person who struck the first blow by head-butting Brown, a 19 year old teenager.

In my view Carlyon’s behaviour clearly amounts to conduct unbecoming of what is expected of a member of the Police Service.  Carlyon is a person of 39 years of age, and is a Senior Constable with 13 years in the Western Australian Police Service.

Having evaluated Carlyon’s conduct and integrity I do not consider that he meets the high standards required and expected of a member of the Police Service.  I have accordingly lost confidence in his suitability to remain as a member and consider that he should be removed from office forthwith.”

4         The grounds upon which this appeal is pursued are as follows:

“The decision of the Commissioner of Police to take removal action relating to the Appellant was harsh, oppressive or unfair for the following reasons:

(a) The Respondent, when making his determination to recommend the removal of the Appellant from office, took account of additional materials which were not referred to in the Notice of Intention to Remove and specifically:

 (i) IAU Complaints history;

 (ii) IIU Complaints history; and

 (iii) Assistant Commissioner of Professional Standards memo of
 23 September 2003;

 and, accordingly, the Appellant was not given the opportunity to provide a response to the matters raised in those additional materials.

(b) Further to paragraph (a) above, the memo of Assistant Commissioner of Professional Standards dated 23 September 2003 is wrong in two material respects:

 (i) the Appellant had not “been stood down from duty on full pay since 11               April 2003” and, in fact, continued to fulfil his duties as a Police               Officer until served with the letter of removal from the Commissioner               of Police on 12 November 2003; and

 (ii) Senior Sergeant Hallett, the OIC of Broome Police Station does not  state “the officer would have to be moved from Broome if he is to               remain in the Service” which suggests the Appellant could not fulfil his               duties if he were to remain in Broome and, in fact, Senior Sergeant               Hallett says “Allan will have to be moved from Broome to allow               opportunity for further development and allowing him time to better               position himself within the Agency.”

(c) The Respondent relied upon the unsworn and untested evidence of intoxicated juvenile witnesses which was specifically excluded from the materials taken into account in making a determination to issue the Notice of Intention to Remove.  In reliance on that exclusion, the Appellant specifically did not comment upon the evidence of those witnesses in his response (at page 6) but the evidence was then included by the Review Officer in his subsequent report dated 5 September 2003 and taken into account by the Respondent in making a determination to recommend the Appellant’s removal from office.

(d) The Respondent elected to proceed with the removal action before the outcome of the criminal trial and ought to have accepted the evidence of the Appellant over the unsworn, uncorroborated and conflicting evidence of intoxicated juveniles.

(e) The Respondent accepted the unsworn and untested evidence of the complainant in preference to the evidence of the Appellant.

(f) The decision of the Respondent is based on conclusions which could not reasonably be drawn from the material before him as the evidence of the witnesses is not supported by the independent evidence of the treating medical practitioners or the attending police officers.

(g) The consequences for the Appellant are disproportionate to the gravity of the misconduct.

(h) The Respondent has concluded the “conduct and integrity” of the Appellant does not meet “the high standards required and expected of a member of the Police Service” when there is no issue of integrity raised in the material before him.

(i) The conduct referred to by the Respondent does not have a relevant connection to the employment of the Appellant to warrant removal action being taken as it does not undermine the Appellant’s capacity to perform his duties or diminish his status and authority to such an extent that it affects his fitness to discharge the duties of his office.

(j) At the time of the incident, the Appellant was on a return to work program, was recovering from Post Traumatic Stress Disorder and Severe Major Depressive Illness and was on medication as a direct consequence of injuries received and victimisation suffered whilst fulfilling his duties as a police officer.

The Appellant seeks the following relief:

(a) An order that the Appellant’s removal from office is and is to be taken to have always been of no effect.

In the alternative:

(b) An order that the Respondent do pay to the Appellant an amount of compensation for loss or injury caused by the removal.”

5         Conciliation under section 32 of the Industrial Relations Act 1979 as provided for by section 33S of the Act was unavailing and the appeal was set down for hearing.

6         Applications were received from the Respondent (on 17 February 2004) and the Appellant (on 29 April 2004) for each to tender new evidence under sections 33R(2)(b) and 33R(3) of the Act respectively.

7         These applications were dealt with by the WAIRC on 7 May 2004 (Allan Raymond Carlyon v Commissioner of Police (2004) 84 WAIG 1395) and 10 May 2004 (Allan Raymond Carlyon v Commissioner of Police 2004 WAIRC 11413 unreported).  Orders issued granting leave for:

(a) the Respondent to tender the transcript of the criminal trial and the Magistrate’s reasons dated 10 December 2003 (Allan Raymond Carlyon v Commissioner of Police 2004 WAIRC 11363 unreported) for convicting the Appellant of assault occasioning bodily harm ; and

(b) the Appellant to tender the evidence in relation to the IAU and IIU Complaints Histories set out at pages 101-112 of the Appeal Book and affidavit evidence of Senior Sergeant John Hallett (Allan Raymond Carlyon v Commissioner of Police (2004) 84 WAIG 1397).

8         The WAIRC’s reasons for decision dated 10 May 2004 sets out those matters for which the Appellant had sought leave to tender new evidence but for which leave was refused (Allan Raymond Carlyon v Commissioner of Police 2004 WAIRC 11413 unreported).

9         The WAIRC subsequently issued reasons for decision as to whether or not new evidence tendered by the Appellant was “in response” to the evidence tendered by the Respondent pursuant to that set out in (a) above [to come when other decision submitted].  This new evidence from the Appellant went to the records of criminal charges of three other members of the Western Australian Police Service who continue to serve as officers notwithstanding their convictions for those charges.

10      The evidence was accepted by the WAIRC as coming within the scope of being “in response” to that tendered by the Respondent.  Three serving officers against whom convictions are recorded attended the hearing under summons.

Proceedings on Appeal – Addressing the requirements of section 33Q(1)(a) of the Act:

First the WAIRC shall consider the Commissioner of Police’s reasons for deciding to take removal action

11      The question arises as to the WAIRC’s duty under section 33Q(1)(a) of the Act when proceeding to hear an appeal.

12      Does section 33Q(1)(a) serve to draw the WAIRC’s attention to those reasons, to take note of them and to give heed to those reasons and go no further?  Or, does the statute impose a duty to also examine, scrutinise or inspect those reasons?

13      A limited interpretation would serve to reinforce the importance of the reasons as the basis upon which removal action was taken.  The onus to show that there had been an error in the process including consideration of an irrelevant matter, a mistake of fact or a fettering of the Commissioner of Police’s discretion in determining those reasons would be borne by an Appellant.

14      A wider interpretation of the requirement to “consider” would not only serve to remind the WAIRC to be attentive to the reasons but would impose upon it the duty to inspect the efficacy and adherence to the statutory requirements which must be followed in their formulation as the basis upon which the decision was taken to remove an officer from the Police Force.

15      While it is noted that at all times an appellant has the burden of establishing that the decision to take removal action was harsh, oppressive or unfair, we believe that provision of section 33Q(1)(a) imposes a duty on the WAIRC to not only be attentive to the reasons for which the Commissioner of Police decided to remove a member, but also to examine closely those reasons in terms of substance and the process by which they were formulated.

16      In addressing the requirements of section 33Q(1)(a) of the Act for consideration to be given to the Commissioner of Police’s reasons for deciding to take removal action, the WAIRC must satisfy itself that those reasons are soundly based and that the Appellant has had the opportunity to address matters relevant to the determination of those reasons before they were acted upon to remove an officer from the Police Force.  In this respect:

• The Commissioner of Police must have given the member the opportunity to answer any allegations and to review all of the evidence.
• The reasons must be based on the evidence and conclusions that were reasonably open to the Commissioner of Police to draw.
• The Appellant must have been able to address the reasons for the loss of confidence in his/her suitability with access to all of the information/evidence available to the Commissioner of Police and any other information/evidence which would be of benefit to him.
• The Commissioner of Police must not have decided to take removal action unless he has taken into account any written submission received from the member under section 33L(2) of the Act, with respect to addressing the reasons on which the Commissioner has lost confidence in the member’s suitability to continue as a member of the Police Force.
• Where (as in this case) new evidence is tendered and the Commissioner of Police does not revoke the removal action (as in this case) but reformulates reasons under section 33R(8)(a) of the Act, the WAIRC shall consider the reasons as if they had been reasons given to the member under section 33L(5)(a) of the Act.  In this respect the member shall be advised of those reasons.

17      As Mr Bathurst for the Respondent points out the WAIRC is bound by statute to accept the re-formulated reasons for removal action being taken that may arise after new evidence is tendered by the Appellant.  In this respect the Respondent’s advice to the Appellant dated 27 May 2004 is claimed to constitute the re-formulation of the reasons for loss of confidence under section 33R(8)(a) of the Act.

18      Not all of that advice, however, is a re-formulation.  Much of it goes to addressing the new evidence that the Respondent was required to consider and in this regard is irrelevant to the reasons for deciding to take removal action.  However, the additional comments serve to show that the Respondent has reconsidered what has been put to him by way of new evidence.

19      It is appropriate to put the re-formulated reasons for loss of confidence which led to removal action into context.  The reasons as initially expressed by the Respondent and received by the Appellant were:

“(a) the Appellant’s conduct on 7 December 2002 in assaulting Mr Jeremy Brown, a 19 year old, by head butting him and then punching him several times in the head,  and

 (b) in fact in his written response to the Respondent dated 1 August 2003 the Appellant denied unlawfully assaulting Mr Brown and dishonestly alleged that it was Mr Brown who had struck the Appellant.”

(Appeal Book folios 5 and 6)

20      The relevant part of the advice from the Respondent to the Appellant dated 27 May 2004 re-formulates the reasons as being:

“Rather, I decided to take removal action because I lost confidence in your suitability to remain as a member of the Force given your conduct on 7 December 2002 in unlawfully assaulting Mr Jeremy Brown.  I also had regard to the fact that in your written response to me dated 1 August 2003, you denied unlawfully assaulting Mr Brown and alleged that it was Mr Brown who first struck you.”

(Letter dated 27 May 2004 from Commissioner of Police to Mr Carlyon)

21      In our view the re-formulated reasons merely re-state the two grounds upon which the loss of confidence was originally based, i.e. the conduct in assaulting Jeremy Brown (which with the fact of conviction became expressed as “unlawful assault”) and the dishonest denial of the assault with the allegation that it was Jeremy Brown who struck the Appellant first.

22      The Appellant received notification of the re-formulation in writing in accordance with section 33R(10) of the Act.

23      It is noted that the Respondent’s intention to take removal action against the Appellant on 7 July 2003 was based on the view that he had “acted in a manner unbecoming of a member of the Western Australian Police Service” when he engaged in a “public altercation with Jeremy Andrew Brown and assaulted that person causing him bodily injury”.  The advice of this intention followed an investigation by Inspector White of the Kimberly District Office into a criminal investigation which resulted in the Appellant being summonsed to appear at the Broome Court of Petty Sessions on Monday 9 June 2003 on a charge of assault occasioning bodily harm under section 317 of the Criminal Code.

24      As at July 2003 the Appellant had been charged with a criminal offence, but had not been convicted.

25      The Appellant’s response to the Notice of Intention to Remove him from the Police Force dated 1 August 2003 gave rise to the second limb of the reasons for taking removal action i.e. in dishonestly alleging that it was Mr Brown who struck him first.  It is appreciated that the Police Amendment Act 2003 amended the Police Act 1892 to provide a procedure for removing members of the Police Force and for dealing with appeals in relation to those removals.  It also provided for matters relating to disciplinary offences but they are not relevant to the appeal procedure. 

26      The Police Amendment Act 2003 was assented to on 27 March 2003 and came into effect on 27 August 2003.  Prior to that date an administrative process was in place which enabled the Respondent’s decision to recommend the removal of a member to the Minister for Police, to be reviewed by the WAIRC prior to removal being effected under section 8 of the Police Act 1892.  In this matter the incident and the investigation which culminated in the Respondent’s determination that he had lost confidence in the Appellant’s suitability to continue as a member occurred prior to the amending legislation coming into effect.  The subsequent consideration of the Appellant’s response and the decision that removal action be taken all came within the provisions of Part IIB – Removal of Members of the Police Act 1892, as amended by the Police Amendment Act 2003.

27      In this respect it is noted that the Commissioner of Police may give a written “Notice of Loss of Confidence” to a member before removal action is taken (section 33L(1) of the Act).  In this matter the advice sent to the Appellant on 7 July 2003 was not identified as such but was headed “Notice of Intention to Remove from Police Force of Western Australia”.  Although the substance of the advice complies with section 33L(1) of the Act in that it identifies the Respondent’s reasons for loss of confidence in the Appellant, it does so in the context of an intention already formed to recommend his removal from the Police Force of Western Australia, “in the absence of being persuaded otherwise” (see Appeal Book Folio 19).

28      The Act now makes it clear that it is after the receipt of written submissions from the member under section 33L(2) in respect of the grounds upon which the Commissioner of Police has stated that he has lost confidence in the member to continue, that the Commissioner of Police then, subject to sections 33L(4)(a) and (b), decides whether or not to take removal action under section 33L(3) of the Act.

29      If the Commissioner of Police decides to take removal action the member is to be advised of the reasons for the decision.  In this matter, as already noted, advice was conveyed to the Appellant by way of a copy of the memo to the Minister recommending his removal.  The memo records the steps taken in the process whereby the investigating Inspector recommended that the Appellant be dealt with by way of the Commissioner of Police’s loss of confidence under the provisions of the Police Act 1892.  Then with the appointment of a Review Officer the recommendation was made that the Appellant be served with a Notice of Intention to Remove him from the Police Force.

30      The issue arises as to whether in notifying the Appellant on 7 July 2003 that he had lost confidence in the Appellant’s suitability to remain a member of the Police Force, the Commissioner of Police in also stating that he intended, “in the absence of being persuaded otherwise to recommend to the Minister for Police, that she approve your removal from the Police Force of Western Australia” prejudiced the Appellant.

31      In formulating an intent to remove the Appellant before considering his written submissions in response to the Commissioner of Police’s grounds upon which the Commissioner stated he had lost confidence in the Appellant’s suitability to continue as a member of the Police Force, could the Commissioner of Police be seen to have closed his mind to the possibility of being persuaded otherwise?  In other words, did the Commissioner of Police fail to properly address the requirements of section 33L(4)(a) in order to reassess his position under section 33L(4)(b) of the Act? 

32      Sections 33L(2), (3) and (4) of the Act provide:

“(2) If a notice is given to a member under subsection (1), the member may, before the expiration of the period of 21 days after the day on which the notice is given or such longer period as is allowed by the Commissioner of Police, make written submissions to the Commissioner of Police in respect of the grounds on which the Commissioner has lost confidence in the member’s suitability to continue as a member.

(3) After the end of the period referred to in subsection (2), the Commissioner of Police shall –

 (a) decide whether or not to take removal action;  and

 (b) give the member written notice of the decision.

(4) The Commissioner of Police shall not decide to take removal action unless the Commissioner –

 (a) has taken into account any written submissions received from the member  under subsection (2) during the period referred to in that sub section;  and

 (b) still does not have confidence in a member’s suitability to continue as a  member, having regard to the member’s integrity, honesty, competence,               performance or conduct.”

33      The process which was followed in this case is not a matter which attracted consideration by the parties nor to which their attention was drawn in the hearing.  However, if a loss of confidence in the member’s suitability to continue as a member carries with it the implication that the member should be removed from the Police Force, and we think that it does, then the statement made by the Commissioner of Police of the intention to recommend removal subject to being persuaded otherwise, does not itself impugn the process.  What is important is consideration being given by the Commissioner of Police to the Appellant’s written response to the Notice of Loss of Confidence in accordance with section 33L(4) of the Act.  It is clear from the documents before us that this has occurred.

34      In accordance with section 33X of the Act, if this is merely a failure to comply with the procedure prescribed under Division 2 of the Act which regulates the removal of members from the Police Force, it is not substantive and does not invalidate or call into question the action of the Commissioner of Police.

35      Another matter is the form of the advice to the member when the Commissioner of Police decides to take removal action under section 33L(5) of the Act.  A notice to the member which clearly sets out the reasons, and is not merely a copy of the recommendation to the Minister, would seem far more preferable.  It is not for the Appellant nor for the WAIRC to extract from background notes the reasons upon which the decision was taken to remove the member from the Police Force.

36      In this case no issue was taken about the form of the advice under section 33L(5)(a) of the Act.  Indeed, with the advent of new evidence the reformulation of reasons pursuant to section 33R(8)(a) of the Act has reaffirmed the basis upon which the Commissioner of Police does not have confidence in the Appellant’s suitability to continue as a member.

37      In addressing section 33Q(1)(a) of the Act we reiterate what was stated about the fact of a criminal conviction when we considered the Respondent’s application to tender the transcript and reasons of the Magistrate in convicting the Appellant of assault occasioning bodily harm.

“In Neville Raymond Smith v Director-General of Transport [2002] WASCA 64, a taxi driver recently convicted of the offence of assault occasioning bodily harm appealed against the Magistrate’s decision to dismiss the application made by the taxi driver to review the Director-General of Transport’s decision to cancel the applicant’s endorsement for a taxi driver’s licence on the grounds that the Director-General had reason to believe that the taxi driver was not of good character.  The conviction had occurred in circumstances where the assault involved took place in the course of his occupation as a taxi driver.

While it was made clear that the conviction could not be attacked or called into question by a collateral attack in the review proceeding (Mickelberg v Director of Perth Mint [1986] WAR 365 at 372) the particular facts established by the conviction needed to be considered to ascertain the way upon which they revealed or reflected the character of the taxi driver.  Heenan, J went on to say:

“The ultimate issue for determination was whether or not the appellant was of sufficiently good character to hold a taxi driver’s licence.  Proof of his conviction causing bodily harm did not make it inevitable that he was not of sufficient character to hold that licence but it is certainly a telling fact.  The role of a court in reviewing a decision on that ultimate issue must have regard to his overall character and the requirements of the occupation for which the licence is necessary – compare Ziems v The Prothonotary at the Supreme Court of NSW (1957) 97 CLR 279.

This may involve the court scrutinising the conviction which is relied upon in the case before it to demonstrate unfitness to practice a profession, hold a licence, or obtain some other right or privilege in order to identify what facts the conviction necessarily establishes and which must, therefore, be taken to be conclusively proved in the absence of some fresh evidence or other factor (such as the institution of a separate action to set aside a conviction or judgment on the grounds that it was obtained by fraud).  In such circumstances the court will need to examine the issues in the case, as established from the formal charge or indictment and the plea made in answer to it, and the factual issues upon which the determination of guilt turned in those circumstances.  In doing this the court will naturally have regard to any reasons for decision given by the court, where there are any, and the terms of any special verdict which might have been given by a jury.  Similarly, sentencing remarks may be helpful in identifying what was necessarily established by the conviction (op cit at para 24 and 25).”

Here, where the Appellant accepts that the appeal does not present the forum to re-try issues determined in the conviction proceedings, the fact of the conviction establishes for the Commission the facts of the incident upon which the Commissioner of Police took removal action.”

(Allan Raymond Carlyon v Commissioner of Police (2004) 84 WAIG 1395 at 1397)

38      On 7 July 2003, when the Commissioner of Police expressed loss of confidence in the Appellant’s suitability to continue as a member of the Police Force, he cited the Appellant’s alleged conduct on 7 December 2002.  That decision was reached after considering the Summary of Investigation by the Review Officer.  The Summary of Investigation took into account the record of interview with the Appellant conducted on 31 December 2002 by Inspector White.  That interview included reference to the following matters:

• At the outset Inspector White reminded the Appellant of his duty to report and obey a lawful order as provided by the Police Force Regulations.  The Appellant was then ordered to answer every question put to him in the interview.  He was reminded that he was required to answer even though any answer may tend to incriminate him.  The Appellant was assured that the answers would not be used in any criminal proceedings against him.

Furthermore, he was advised that any answer given which is found to be wilfully or negligently false, misleading or inaccurate would result in disciplinary action being taken against him.  It may result in his dismissal from the Police Service.  The Appellant indicated that he understood the import of this.

• Inspector White outlined the allegations made against the Appellant which included the claim that he had head butted Jeremy Brown causing his nose to bleed, that he then grabbed him by the shirt around the neck area with both hands and started slinging him around.  Further, it was put to the Appellant that he ripped Brown’s shirt and hit him in the face approximately 5 to 7 times.  When examined by a doctor a few days later, the injuries sustained by Brown were consistent with being assaulted in the manner in which he described to the doctor.
• In outlining his version of events that occurred in the early hours of Saturday 7 December 2002 the Appellant stated that:
• After socialising with his wife and daughter and other off-duty officers and their spouses on Friday evening he approached a group of people sitting on the steps of the Wings Chinese Restaurant in Broome.  He went over to talk to them about threatening phone calls his son had been receiving.  He suspected that this group were involved in making the calls.
• At this time the Appellant says he was in good spirits.  As the Appellant approached the group his daughter pointed out Jeremy Brown.
• The Appellant asked Brown if he had been ringing his son.  With that Brown, who had been sitting, got to his feet and became abusive.
• The Appellant stated that while he and Brown were yelling at each other Brown leant in and head butted the Appellant on the left side of the head.  It was not a full force head butt.  The Appellant says he then pushed Brown away.  It was then asserted that Brown “danced” in a boxing pose and came back and punched the Appellant in the right eye.  He claimed he was then hit again.  He was stunned but then “shaped up” to Brown and with a left jab hit him square in the face, next he missed with a haymaker but then connected Brown with an upper cut to the nose.  Next the Appellant’s wife grabbed hold of him and said “Allan, we’re leaving”.
• The Appellant stated that Brown yelled out that he wanted the police.  To this the Appellant claims to have said “Look, no use making a scene you’re going to make it worse for everyone, let’s go down to the police station.”
• Accompanied by his wife and daughter, the Appellant then proceeded to the police station.
• The Investigating Officer put to the Appellant what some other witnesses had said.  In effect this was that the Appellant had instigated the whole issue, and that when Brown stood up, the Appellant had head butted him causing his nose to bleed.
• The Appellant stood by his version of the incident, re-affirmed that he had punched Brown twice but that it was Brown who had thrown the first punch and had leant in and head butted the Appellant.
• The Appellant’s recollection was that the incident ended when his wife pulled him away and Sergeant Thompson grabbed hold of Brown, who was still in a fighting stance.
• The Investigating Officer confirmed with the Appellant that he was to return to a work programme with “Health and Welfare”, working 4 hours a day.
• Inquiries were also pursued as to whether the Appellant was intoxicated on the night in question and if he was taking drugs as part of his rehabilitation programme.  The Investigating Officer sought information from the Appellant as to whether there was any warning on the medication not to consume alcohol.  The Appellant’s position was that he did not believe that the alcohol and drugs would have affected his memory of events that occurred.  He stated that he had a full recollection of everything that happened that night and did not believe the medication or alcohol impaired his judgment or made him intoxicated.
• It was put to the Appellant that other witnesses were very clear that on the evening of the incident he was asking him questions about a person named Lloyd Cobb.  The Appellant stated that prior to the incident he did not know a person by the name of Lloyd Cobb other than that he was a friend of his daughter.
• In again focusing on the physical altercation between the Appellant and Brown, the Appellant was emphatic that he did not head butt Brown.  As to being the instigator the Appellant does blame himself for the incident.  He says he should not have walked over to the group.  That is all he could say.
• While he admits to hitting Brown twice, the Appellant says that only came about after he had been head butted and punched twice by Brown.   He admitted:

“… I’d basically, I’d lost any sense of self-control and it was more of a flight or fight.  I couldn’t run away because my daughter was there and I didn’t know where she was.  As I say I was outnumbered and ..err .. basically didn’t have anywhere to go.  The only other natural human response was to fight back in self defence, ...provocation type of situation.  As I say I hit Jeremy twice.  He hit me three times and as I say, thrown at least one more punch that I knew about which was the left hand haymaker over the top which didn’t make contact on..err.. as I say, my only thought at that stage was he was going to kick punch me until.. if someone pulled him away or I fell to the ground.”

(Appeal Book Folio 76)

• In refuting that he had head butted Brown the Appellant was invited to consider whether, in the initial confrontation with Brown “where he’s leaned in and head butted you, that you’ve had a reflex action and head butted him back or pushed him back with your head, which could be misconstrued as a head butt?”  In response to this the Appellant reiterated that Brown’s was not a full blooded head butt on him but rather that with a stiff neck Brown pushed into his head.  At the same time the Appellant says he actually pushed him back.
• The Appellant says that at no point in the fight did he lose control.  He maintains that he threw only a few punches.
• At the conclusion of the interview the Appellant stated that he had not wilfully or negligently made false, misleading or inaccurate statements to the questions.

39      In the written response to the Commissioner of Police’s loss of confidence in him the Appellant maintained that he had acted in self defence.  He maintains that he did not provoke the situation by merely asking who had been telephoning his son.  It is the Appellant’s position that Brown became abusive and threatening towards him.  He admits to having maintained his position when Brown stood from sitting on the steps and that he (the Appellant) verbally abused Brown in response.

40      The Appellant maintains that Brown head butted him (by which he means Brown pushed against the Appellant’s head with the top of his head) and inflicted an injury to the Appellant’s right eye.  With Brown continuing to challenge him the Appellant hit back.  He says that he was concerned not only for his own safety but the safety of his daughter.

41      While the Appellant expressed his regret for having engaged in a verbal altercation with Brown he maintains that he did not provoke the situation.  Once Brown became violent towards him he claims to have reacted, as any man or Police Officer would, in defending himself and his family who were in close proximity.

It is claimed that the injuries sustained by Brown are entirely consistent with the Appellant’s account of the incident and inconsistent with that given by Brown.  The Appellant put to the Commissioner of Police that:

“It should be borne in mind that the incident occurred in a matter of seconds and that it is always easy to criticise with the benefit of hindsight in an analytical way without the presence of the circumstances and emotions.”

42      The Appellant maintained that the incident should, at worst, be judged as an error of judgment in a split second decision.

43      The review in response to the Appellant’s written submission to the Commissioner of Police dated 1 August 2003 identifies five “points of contention”.  In summary, these are:

1. The Appellant was off duty at the time and submits that this is highly relevant.  He concedes that the conduct of police officers must be exemplary at all times, particularly when stationed in small towns.

2. When the Appellant approached the young people he was not seeking an altercation but saw it as an opportunity to resolve the issue of his son receiving menacing and threatening phone calls.

 The Appellant maintains that there is no evidence that he commenced the altercation or challenged Brown.

 From witness statements of the young people present at the time, including Brown and from the Appellant’s response, the Review Officer suggests that the Appellant was affected by alcohol and at the time was displaying his anger.

3. The Appellant does not agree he challenged Brown or that he assaulted him by inflicting a head butt on Brown’s face or by punching him several times.

 The Review Officer notes that the Appellant confirmed in the investigation interview that he and Brown were in each other’s “personal space” being face to face and probably chest to chest.  The Appellant admits to having twice punched Brown in the face.  These actions are claimed to be in self defence.

 From the Review Officer’s analysis of the witness statements he concludes that the Appellant did strike the first blow on Brown by the use of a head butt.

4. The Appellant was critical of the manner in which the Review Officer’s initial report was written.  He considers it highly prejudiced in that the Review Officer is keen to identify the four witnesses as members of the Appellant’s family and friends and yet fails to identify that six witnesses who do not support his recollection are friends of Brown.

 The Review Officer notes that the Appellant has identified the group of young people he approached on the night in question as being known to him as friends of his children.  Five of the six witnesses identify themselves as being friends of the Appellant’s children.

5. The Appellant states that there are many inconsistencies in the statements of the witnesses, which he believes will be discredited at his trial.

44      The Review Officer’s conclusion states:

“Carlyon, in his record of review with Inspector White, stated he was socializing from about 5.30pm on the 6th December 2002, to 1.00am the following morning, but he had only consumed four or five cans of Carlton Mid-Strength Beer.

The incident took place after he and his party left the Roebuck Hotel and he walked towards the Wings Restaurant.

The statements of the witnesses clearly identify Carlyon as behaving in a confrontational manner toward the group and he was the person who struck the first blow by head-butting Brown, a 19 year old teenager.

In my view Carlyon’s behaviour clearly amounts to conduct unbecoming of what is expected of a member of the Police Service, Carlyon is a person of 39 years of age, and is a Senior Constable with 13 years in the Western Australia Police Service.

Carlyon in his response denies he acted in the manner alleged although he states he regrets having engaged in a verbal altercation with Brown, rather than backing off or attempting to defuse the situation.

In this matter, it is clearly open to the Commissioner of Police to lose confidence in Carlyon’s suitability to remain a member of the Western Australia Police Service and recommend that the Honourable Minister approve the removal of Carlyon from the Police Service.

Senior Sergeant Hallett, Senior Sergeant Fuller and Sergeant Hayden have forwarded favourable character references on behalf of Carlyon.

Also attached are two letters concerning the on going mental health state of Carlyon in respect of depression and Post Traumatic Stress Disorder from Dr Lili Costello, Psychiatric Registrar and Ms Melinda Andrews, Psychologist.

A character reference has also been attached to Carlyon’s response from Mr Paul Fowler, Proprietor Broome’s Last Resort Inn.

Submitted for your information and consideration of the Commissioner of Police in making his determination.”

(Appeal Book Folios 120 and 121)

45      The Commissioner of Police was presented with a memo dated 23 September 2003 from the Assistant Commissioner (Professional Services) (Appeal Book folio 113).  The memo includes the following:

“The Review Officer, Superintendent Gascoigne has completed his review and analysis of the response and states that it is clearly open to you not to have confidence in this officer to remain in the Service.  I note that Senior Constable Carlyon included a number of referees with response.  One referee Dr Costello states he (sic) treated Senior Constable Carlyon for a major depressive illness and that he has responded to treatment for his illness.  Another referee, Senior Sergeant Hallett, the OIC of Broome Police Station is supportive of the work ethic of Senior Constable Carlyon.  However, he states that the officer would have to be moved from Broome if he is to remain in the service.

Further to the above Senior Constable Carlyon was charged with assault occasioning bodily harm from the circumstances that gave rise to this Loss of Confidence motion.  This matter was part heard in the Broome Court of Petty Sessions on 15, 18 and 19 September 2003 and has now been adjourned to 8, 9 and 10 December 2003.”

(Appeal Book Folio 113)

46      Receipt of this information by the Commissioner of Police completed his consideration of written submissions received from the Appellant under section 33L(2) of the Act.

47      The Commissioner of Police then decided to take removal action and in accordance with section 33L(5)(a) of the Act on 2 October 2003 advised the Appellant of the reasons for his decision by way of a copy of the memo forwarded to the Minister of Police (Appeal Book 122 and 122A).

48      The fact of the Appellant’s criminal conviction and leave to tender the transcript and reasons of the Magistrate must be taken into account by the WAIRC.  The re-formulation of the Respondent’s reasons for taking removal action comprehends the availability of this information together with other new evidence for which leave was granted to the Appellant to tender.

49      As Heenan J observed in Neville Raymond Smith v Director General of Transport [2002] WASCA 64 the facts the conviction necessarily establish must be taken to be conclusively proven.  In the circumstances of this matter the WAIRC will need to examine the issues in the case as established from the formal charge and the plea made in answer to it.  The Commission will also need to consider the factual issues upon which the determination of guilt turned in those circumstances.

50      The Appellant pleaded not guilty to a charge of assault occasioning bodily harm on Jeremy Brown on 7 December 2002. In these proceedings, the Appellant stated that when he attended the Police Station after the incident he said to Senior Constable Carter that when walking past the Chinese restaurant, “Wings”, he saw a group of young people and someone yelled a “smart-arse” comment and that he went over because he believed that one of them had been ringing up his son.  He told the officer that Brown got up and head butted him and threw three punches.  Further, the Appellant stated that he suggested that they go to the police station but that Brown said that he wouldn’t go.  The Magistrate observed that this was contrary to the evidence of other witnesses.  They said that it was Brown who instigated going to the police station after he had been assaulted.

51      The Magistrate noted that Senior Constable Carter said that the Appellant was not affected by alcohol but that Brown was intoxicated to such an extent that he would not take a statement from him.  Senior Constable Carter allowed the Appellant to answer telephone calls at the police station that evening as they were particularly busy at the time Brown and the Appellant attended.  Senior Constable Carter also noted that Brown complained to him of being head-butted by the Appellant and he believed it was some “tit-for-tat complaints”.  The Appellant had told him that he had retaliated to the head butt from Brown and that he had punched Brown in the head twice.

52      The Magistrate considered the submission that the prosecution case was “an orchestrated litany of lies by the young people at worst, and at best deception by them as to what happened … and whether or not their evidence was in fact tainted by any collusion talking with regards to what had happened.” 

(Transcript of proceedings before Mr C Cullen, SM at Broome on 19 September 2003)

53      The Magistrate also considered how consistent was the medical evidence of injuries sustained on the version of events given by the respective parties.

54      The evidence of Brown was reviewed by the Magistrate.  He noted that Brown had consumed six cans of full strength alcohol that evening and that he had felt tipsy.  He described how he and his friends had gone to a food van adjacent to Tokyo Joe’s nightclub and also to Wings Chinese Restaurant that evening.  He had lent his belt to Lloyd Cobb for him to go into the nightclub.  The shorts he was wearing were too big for him.  Brown knew the Appellant’s daughter and her mother.  He did not know that the Appellant was a police officer.

55      It appeared to the Magistrate that the Appellant had gone to the young people and demanded to know the whereabouts of Lloyd Cobb.  According to the Magistrate, Brown said he “stood right over me, over the top of me”.  The Appellant said “Why are you standing up to me?”  Then he was head-butted by the Appellant between the eyes.  His nose bled and the Appellant grabbed him by the shirt, around the neck, and punched him several times.  Brown threw a couple of punches.  He was holding his shorts up with his left hand at the time.  The Appellant told him to leave his son, Allan, alone.  Then Sergeant Thompson took the Appellant away.  Brown says he shouted “I’m going to the cop shop”.  The Appellant replied, “I’ll see you there”.

56      The Magistrate then reviewed the Appellant’s version of the incident.  He alleged that Brown’s reaction to the question “Who’s been ringing Allan, threatening to break his neck?” was met with an aggressive outburst.  The pair stood close to each other and Brown pushed his head into the Appellant’s left eyebrow.  He says he was stunned and pushed Brown away with an open hand to the chest.  Brown then punched him in the right eye.  It was then that the Appellant says he retaliated and put an end to the matter with an upper cut to Brown’s face.  According to the Appellant Brown wanted to keep going.  He then said to Brown, “Let’s go to the police station” but according to the Appellant this was rejected.

57      The Magistrate comments:

“It is interesting to note that at no time did the defendant say to Brown he was a police officer, did he warn him as to his behaviour, or inform him that he could be arrested or that he was under arrest, nor did he retreat from the confrontation, on his version of events, from Brown.”

(Op cit at p 86)

58      The Appellant denied being aggressive or asking for Cobb.  Several of the young people with Brown knew the Appellant was a police officer and were apprehensive about him approaching them that night.  The Magistrate describes their perception of him as being “aggressive and wild about something”, being frustrated and “angry, angry and in an aggravated voice”.

59      The Magistrate notes:

“No one else heard Brown make any threats.  Why would he?  Why would he jump up and head-butt a total stranger?  If he had done that, then the others would no doubt have informed him at that point that he was a police officer.  I have no doubt that the reaction of the defendant towards Brown gave the young people who were present on that particular night a shock as to what was transpiring, and they were no doubt in disbelief as to what was happening on (sic) front of them by the man whom they knew was a police officer.”

(Op cit at p 89)

60      The Magistrate was satisfied that on that particular night, the Appellant went up to the group of young people to gain some retribution with regards to the phone calls to his son.  It was not in the circumstances a correct thing for him to have done.  The Appellant had been drinking; he was an off duty police officer.  The Magistrate found that he was aggressive and that he had head-butted Brown, “no doubt in frustration for getting no response to his questions as to who was Lloyd Cobb”.  The Magistrate went on to find that the Appellant was affected by alcohol.  He rejected the version of events that Brown either head-butted or threw the first punch at the Appellant.  He accepted the evidence of the young people present.  In his view the prosecution negatived any question of self-defence relied upon by the Appellant.  He was the attacker.

61      The prosecution proved each of the elements of the offence of assault occasioning bodily harm.

62      It is also relevant to consider what was put before the penalty was imposed and what the Magistrate said in sentencing the Appellant.

63      The Magistrate was told that the Appellant is 40 years of age.  He has been married for 20 years and has two children aged 20 and 19.  In all the Appellant has 23 years of service in State and Government agencies; 10 years in the Royal Australian Navy and then 13 years in the Police Service of Western Australia.  He has no record of any similar conduct and it is not likely that he will re-offend.  At the time of his conviction the removal notice had been effected.  The Appellant’s employment prospects were uncertain.  The medical reports which were presented to the Magistrate showed his particular circumstances at the time of the incident.  Then he was on a return to work programme having been on sick leave for some time as a result of post traumatic stress disorder and a severe major depressive illness.  The Appellant was on medication at the time of the offence.

64      It was put to the Magistrate that although it was found as a matter of fact that he was affected by alcohol, the effect that his medication may have had on him was unclear.

65      References were tendered which went to showing that this incident was out of character and that the Appellant had been experiencing difficulties at work which had affected his personal life.

66      The Appellant’s counsel stated:

“I would put to you, sir, that this is an error of judgment of the defendant at the time.  The incident of violence itself would have taken at most 30 seconds, and I would suggest, for a shorter time.  That compared with his 39, now 40 years of good conduct (which) needs to be weighed up by you, particularly in the line of work he was in on the night he approached the group, who were known to him due to an association with his son.  I would put to you that he was acting as a father and not as a police officer.   … He was approaching as a father in an attempt to sort the matter out, certainly an error of judgment and certainly in hindsight, had that not occurred, had he not approached, they all would have gone home on this evening”.

67      In sentencing the Appellant the Magistrate noted that his appointment as a member of the Police Force had been terminated.  He also referred to the references of a good work ethic and the fact that over a period of time the Appellant had suffered trauma from a motor vehicle accident and an assault which had left him with some depressive illness which was being treated.  The Magistrate considered that the incident on 7 December 2002 was not only an error of judgment but also an act of gross stupidity for someone who had been a police officer as long as him.  He had obviously got mixed up on that particular night between his responsibility as a police officer and that of a father.  The Magistrate saw that the unfortunate consequence of his actions that particular evening was that young people who saw what transpired between him and Brown will judge other police officers by the way the Appellant had acted.  He had therefore done immeasurable harm to himself and to other police officers in this State.  The fine imposed on the Appellant recognised that he had been removed from the Police Service and thereby paid the “ultimate sacrifice” for his acts.  But the penalty also had to be commensurate with the offence and taking into account that what he had done had made a lasting impression on the young people who were present, a fine of $500 was appropriate.

68      In this appeal new evidence, for which leave to tender was given to the Appellant, went to the IAU and IIU Complaints Histories.  These are matters which the Appellant cites in paragraph 1(a)(i) and (ii) of the grounds of appeal and which he asserts were taken into account by the Respondent and which were not referred to in the Notice of Intention to Remove.

69      The Appellant gave evidence by way of affidavit as to the background and origin of complaints being raised against him upon his transfer to Broome as the Alcohol Drug Advice (ADA) Officer.  It is the Appellant’s position that in discharging his duties to enforce provisions of the Liquor Licensing Act, which he believed had not previously been enforced in Broome, he came into direct conflict with hoteliers and his colleagues who enjoyed an advantaged position prior to his arrival.

70      The Appellant submits that he was able to prove in the IIU and IAU investigations that the complaints were frivolous and vexatious.  They were made in an attempt to have him removed from Broome as ADA Officer.  In conclusion the Appellant notes that he had a completely clean record until his transfer to Broome.  He goes on to state that:

“The number and nature of the complaints against me whilst I was in Broome highlight the extremely difficult professional and personal pressures brought to bear upon me as a police officer and a father which culminated in my medical condition and, no doubt, my lack of judgment which I always admitted in having approached the group of youths on 7 December 2002.”

71      Other new evidence which was tendered with the agreement of the Respondent and for which leave was not required was evidence sworn under affidavit by Senior Sergeant John Allen Hallett.  He attested to having no difficulty having the Appellant work on his team in any area or station even with full knowledge of matters pertaining to his dismissal.  Any contrary interpretation of a reference he had previously provided is incorrect.  Senior Sergeant Hallett maintains the view that the correspondence conveyed that the Appellant’s removal from Broome when he was a police officer should not have been for any reason associated with misconduct, but rather for his professional development.

72      The WAIRC’s consideration of the Commissioner of Police’s reasons for deciding to take removal action against the Appellant has meant that we have had to review each step in the process which culminated in the final re-formulation of those reasons after the removal from office had been effected.  This has involved the initial investigation carried out by Inspector White on Tuesday, 31 December 2002, the formulation of the Notice of Intention to Remove and the Appellant’s response dated 1 August 2003 to that notice.  Then followed the Commissioner of Police’s consideration of the response, the re-affirmation of this decision and the notice of removal.  The fact of the conviction (with reference to the transcript of proceedings and the findings and comments on the conviction were noted).  The other new evidence was inspected.

73      The final step in the process for the purpose of the appeal is the re-formulation of the reasons for which the Commissioner of Police justified the Appellant’s removal from the Police Force and thereby the rejection of any new evidence which would have caused him to revoke the removal action under section 33N(2) of the Act.

74      The text of the re-formulated reasons is set out in full hereunder:

“I have carefully considered the new evidence you tendered under section 33R of the Police Act 1892, consisting of:

(a) an affidavit of Senior Sergeant John Hallett, dated 3 May 2004; and

(b) an affidavit sworn by you, dated 17 May 2004.

In relation to Senior Sergeant Hallett’s affidavit, I particularly note that:

(a) it is Senior Sergeant Hallett’s belief that you would be a beneficial member of the Police Service;

(b) Senior Sergeant Hallett would have no difficulty with you working on his team in any area or station;

(c) Senior Sergeant Hallett’s statement in his letter dated 1 August 2003 that “Allan will have to be moved from Broome to allow opportunity for further development and allowing him time to better position himself within the Agency” should not be interpreted to suggest that Senior Sergeant Hallett believes you could not work in Broome or should be moved from Broome as a result of misconduct; and

(d) following the incident on 7 December 2002, to continue to work at the Broome Police Station until 12 November 2003.

In relation to your affidavit, I have considered the matters you raise in relation to the IIU summary and the IAU summary.  While I read those documents prior to recommending your removal from office, I did not base my decision on them.  Rather, I decided to take removal action because I lost confidence in your suitability to remain as a member of the Police Force given your conduct on 7 December 2002 in unlawfully assaulting Mr Jeremy Brown.  I also had regard to the fact that in your written response to me dated 1 August 2003, you denied unlawfully assaulting Mr Brown and alleged it was Mr Brown who first struck you.

While I did not base my decision to take removal action on the IIU and IAU summaries, nonetheless, I note that some of the statements in your affidavit are inaccurate.  In particular, the IAU report found the following four complaints against you were sustained:

(a) using threatening and abusive language towards Senior Constables Hallam and Mustchin after they had interviewed your son in relation to a criminal offence;

(b) failing to display proper court etiquette during court proceedings on 8 March 2002 involving your son;

(c) improperly approaching a juvenile prosecution witness in a prosecution against your son; and

(d) accumulating personal frequent flyer points while performing work-related prisoner escorts.

Further, the IAU report did not recommend that you “be transferred from Broome due to the untenable position [you] had been placed in by the WA Police Service.”  It did suggest, however, that your position in Broome was untenable because Magistrate Bloeman had identified you “as a police officer who lacked credibility”.

Having carefully considered the new evidence put forward by you, I continue to have a loss of confidence in your suitability to be a member of the Police Service.

Yours sincerely

(signed) B E Matthews

Commissioner of Police

27 May 2004”

75      There is nothing to conclude that following consideration of the Commissioner of Police’s reasons for deciding to take removal action, that there is anything either procedurally or substantively that would lead us to conclude that those reasons were not properly formulated (and re-formulated) or that prima facie the reasons were not reasonably open to the Commissioner of Police to conclude in the light of what was before him.  As noted we have also had to have regard to the fact of the criminal conviction and the factual basis upon which the determination of guilt turned in those circumstances (Neville Raymond Smith v Director General of Transport [2002] WASCA 64).

Addressing the requirements of section 33Q(1)(b) of the Act:

Secondly, the WAIRC shall consider the case presented by the Appellant as to why that decision was harsh, oppressive or unfair

76      The Appellant, by reference to the grounds of appeal (already set out in these reasons for decision) sought to show in the first instance that notwithstanding the limitation the Commissioner of Police sought to impose on the Appellant in responding to the “Notice of Intention to Remove” by directing him only to the transcript of interview between himself and Brown, the Commissioner of Police had in fact taken into account additional material.

77      While Ms Ridley, for the Appellant, concedes that those matters referred to in Grounds 1(b) of the appeal have been remedied the Appellant believes that at the time the Notice of Intention to Remove was formulated, the Commissioner of Police took into account the unsworn and untested testimony of juvenile witnesses which had been specifically excluded from the material to which the Appellant is requested to respond.  That, it is argued, gives rise to a degree of unfairness which subsequently cannot be rectified because the Appellant did not have the opportunity to respond.

78      With respect to grounds 1(d), (e) and (f) these refer to reliance being placed on unsworn, uncorroborated and conflicting evidence of intoxicated juveniles being preferred to that of the Appellant.  While the Appellant accepts that the legislation now provides that the Commissioner of Police can proceed to remove a member before the outcome of a trial, in the circumstances of this matter it is submitted that findings of misconduct were made which were not open to him on the evidence.  Where the respondent proceeds to remove a member before the outcome of a trial he should accept the best evidence.  In this case the Commissioner of Police relied on the evidence of police witnesses and medical advice when he should only have accepted admitted facts, rather than make a determination which ought to properly have been left to the court.  The Commissioner of Police could not have been satisfied at the time of making the decision that the conduct warranted dismissal.  It is argued that he cannot rely on the outcome of the subsequent trial to justify his position at some later stage.

79      By ground 1(g) the Appellant argues that the consequences for him by removal from the Police Force are disproportionate to the gravity of the misconduct.  A decision to terminate employment may be harsh because of its personal and economic consequences for the employee or because it is disproportionate to the gravity of the conduct (Ross VP in Rose v Telstra Corporation Ltd Print Q9292).

80      In this matter it is argued that in the first instance the decision to remove was based on the consideration of the conduct unbecoming a police officer; there was nothing which relied on bringing discredit to the police force nor the integrity of the Appellant.

81      The incident occurred very quickly.  There was no premeditation; it arose out of circumstances that occurred at a particular time.  The Appellant admits to showing poor judgment and for having let the situation deteriorate.  Even police officers are entitled to make one mistake.  But it appears to the Appellant that there are some mistakes which are not forgiven.

82      In the circumstances of this matter it is submitted that disciplinary action under section 23 of the Police Act 1892 would have been more appropriate.

83      The Appellant submits that the issue of his integrity was not in issue when the focus of the Respondent’s concern was his “unbecoming behaviour”.  In addressing ground 1(h) the Appellant argues that the notice of dismissal deals with his behaviour as a member in relation to a particular incident, it does not call into question his integrity.

84      As to the incident which occurred when the Appellant was off duty it is submitted under ground 1(i) that under general principles of employment law an employee’s behaviour outside work hours will only have an impact on their employment if it breaches an express or implied term of their employment.  The conduct must be viewed objectively to see whether it damages the employer’s conduct or is incompatible with the employee’s duty as an employee (see Ross VP Rose v Telstra Corporation Ltd Print Q9292).

85      The Appellant accepts that these general principles must be weighed against the issues of public interest and the nature of the special relationship between the Commissioner of Police and members of the Police Service.  However, in the circumstances of this case the Appellant submits that he was acting in his role as a parent.  He has always admitted that he was wrong in approaching the group of young people.  The issue is whether there is a relevant connection to his employment from his actions that night.  The fact of a conviction alone does not dispose of his claim that removal was too harsh.

86      The Appellant submits that his actions that night have not unduly impacted on his ability to perform his duties as a police officer, particularly in his role of enforcing liquor licensing laws.  In uniform he has the anonymity of a member of the Police Force.  He would have the status and authority that goes with the uniform.  Most members of the public would identify with the office of a member of the Police Force and not him as an individual.

87      He was for a period of 11 months prior to his removal from the Force able to effectively discharge duties as a member.  There were no other incidents arising from his conduct during that time.

88      Ground 1(j) of the Appeal raises the issue of whether the effect of a major illness the Appellant was suffering at the time of the incident should have been a factor considered by the Commissioner of Police.  It is acknowledged by the Appellant that he did not rely upon or seek to excuse or explain his behaviour by reference to his major depressive illness.  However, it was submitted that the facts of that illness were known to the Commissioner of Police and notwithstanding that this matter was not pleaded by the Appellant, should have been taken into account by him.

89      The Appellant then turned his attention to addressing the new evidence.

90      In the Appellant’s view the issue of integrity was only raised at the point of his removal from the Police Force.  He maintains the position that he did not lie to the Commissioner in the initial investigation nor in his response.  The Appellant submits that his position was consistent with the defence he argued against the charge before the Magistrate in the Court of Petty Sessions.  Subsequent to that he has not been charged with perjury.

91      The Appellant notes that the Magistrate accepts that there are inconsistencies in all of the evidence.  It is not open to the Respondent to conclude that because of these inconsistencies in everyone’s stories that the Appellant lied.  The Appellant submits that there will be different perceptions and personal circumstances which colour all witnesses’ recollections of the incident.  He accepts for the purpose of this appeal that weight of evidence “on this occasion” went against his understanding of what happened.  However, he submits that the finding of fact and the defence he raised also had to be weighed against the finding of fact that he was affected by alcohol.  That was not an issue he argued.  That is not a situation he would ever be in again when discharging his duties as a police officer.

92      When considering the findings made by the Magistrate, the Appellant argues that it should also be realised that it was found that he had “acted out of frustration in the circumstances that existed once he had approached the group.”

93      The Magistrate also noted the Appellant felt threatened and head butted Brown.

94      The Appellant argues that the finding made was that there were inconsistencies in the evidence of all the witnesses.  On this basis it is submitted that it is not open to the Respondent to conclude that the Appellant had lied.

95      As to matters referred to in section 33Q(4) of the Act it is submitted that the interests of the Appellant require the WAIRC to consider the gravity of the consequences of what has happened to him.  The loss of employment is the most serious consequence that can occur.  That in turn leads to a loss in income and that affects his family.  His 13 years of service in the Police Force is a relevant consideration.  This, together with his 10 years in the Royal Australian Navy, amounts to a significant period of work in the community.

96      When weighted against the interests of the Commissioner of Police it needs to be appreciated that the Appellant was off-duty at the time of the incident and involved a conflict between his role as a parent and that of a member of the Police Force.  Alcohol was present and affected his judgment.

97      The medical report (Appeal Book Folio 91) about the Appellant’s treatment for a major depressive disorder and the issues in the work environment in Broome and the Police Station, show the level of stress he has been working under for several years.  According to the Appellant he was dealing with them at the time of the incident.  The affidavit submitted by the then Officer in Charge, Senior Sergeant Hallett, attests to the pressures the Appellant was being subjected to and the undue criticism being levelled against the Appellant by some people who were not in possession or knowledge about the effects that family issues and work pressures had on his well-being.  Notwithstanding these difficulties it is submitted that the Appellant showed a considerable work ethic and continued to discharge policing duties to the satisfaction of his superiors for a considerable period of time even after the incident.  It is submitted that there is nothing to suggest that what happened on 7 December 2002 would ever happen again.

98      With respect to the WAIRC’s consideration of the public interest that, it is argued, should not be judged in disregard of the Appellant’s interests.  The Appellant’s age, his service record, the fact that the incident occurred while he was off-duty and the conflicting role between being a police officer and a parent should all be taken into account.  It is submitted that the incident received no publicity.  There is no evidence of public knowledge of the indiscretion of the Appellant which has brought about criticism of the Police Service.  Even after the Commissioner of Police advised the Appellant that his loss of confidence in him would lead to his removal, that did not occur for over one month and during that time he continued to discharge his functions as a member of the Police Force.  He could, it is argued, be effectively deployed elsewhere in Western Australia.

99      The Appellant accepts that his indiscretion should not go unsanctioned and submits that the public expectation of disciplinary action against him could be met by action under section 23 of the Police Act 1892.

100   On the issue of public interest, the Appellant presented new evidence from three serving officers each with a criminal conviction but who continue to serve as members of the Police Force.  Each of the officers attended the hearing under summons and was cross examined.

101   The first case involved the assault of a 10 year old female child by the officer while on duty.  At the time the child was in his care and protection.  Furthermore, when the incident occurred he was the senior officer with responsibility for three junior officers and three juvenile detainees.  The Commissioner of Police issued the officer with a Notice of Intention for his removal from the Police Service on 4 May 2003, that being some 15 months after the officer was convicted of criminal assault in the Perth Court of Petty Sessions.  The conviction arose from the officer’s action in slapping the child in circumstances which the officer said was done to stop her spitting at him.  At his trial the defence of “self-defence” was rejected by the Magistrate.  The inquiry which led to the Commissioner of Police’s loss of confidence in the officer’s suitability commented that the claim that he had attempted to push the child’s face away to avoid being spat at was “unbelievable”.  Furthermore, the investigating officer expressed the view that “his defence in my view is illogical within the context of the evidence” and that “given that his defence entirely relied upon the act of self-defence a serious doubt is raised concerning his credibility on this point”.

102   Notwithstanding the fact of conviction and the rejection of the defence of “self-defence” by the Magistrate, the Commissioner of Police after re-considering all of the factors found that his confidence in the officer’s suitability to continue as a member of the Police Service had been restored.  This was after the Commissioner of Police commented:

“You have maintained in your response that your actions in slapping X was to prevent her spitting at you, a justification of self-defence which was rejected by Magistrate Black.  I also find this explanation unconvincing and incongruent with the evidence of all the other witnesses as to what was said and done by you  …

… It concerns me when considering your future that you have persisted with this self-defence explanation to justify your unprofessional conduct.”

(Copy of correspondence included as attachment to Affidavit of the witness)

103   The next officer to give evidence was charged with making a false statement under the Stamp Act 1921 in 1999.  He pleaded guilty and was fined $200 and a spent conviction was ordered.  The sentence was appealed by the complainant and the appeal was upheld.  The fine was increased to $1000 and the spent conviction was set aside.  In the course of the decision which issued on 14 September 2000 McKechnie J stated:

“I note that a conviction recorded against the respondent is likely to have particular consequences in view of his occupation as a police officer.  The offence was not committed in the course of that occupation, but related to an ancillary business venture.  This is a factor to be weighed.  On the other hand, there may be a public interest in recording a conviction against a person whose daily duties involve them in the administration of justice, enforcing the law or holding a position of public trust.

By my finding, this was not a spur of the moment careless breach of the Stamp Act but a deliberate attempt to evade duty.  Furthermore, no remorse is demonstrated by the continuation of the evasion up to the hearing before the Magistrate”

(Attachment to the Affidavit of the witness)

104   The Commissioner of Police issued a Notice of Intention to Remove the officer from the Police Force on 7 September 2001.  The reasons for initiating removal action included reference to the conclusion that the officer had “wilfully misled” the investigating officer of the State Revenue Department in December 1998 and then in August 1999 sent a letter to the Presiding Magistrate that “contained information that was false in relation to the facts surrounding the purchase of the motor vehicle”.  The summary of investigation which the Commissioner of Police took into account in formulating his reasons for the officer’s removal noted that by maintaining this deception (about the facts surrounding the purchase of the motor vehicle) the officer had attempted to place before the Magistrate a set of circumstances that were untrue.

105   It is noted that the officer pleaded guilty to the charge before the Magistrate but this was in the context of having proffered to the Court information which was false.

106   The officer attests to the Commissioner of Police regaining confidence in his ability to effectively discharge the functions of his office as a member of the Police Force.  That advice was conveyed to the officer in November 2001 some 14 months after his decision by the Supreme Court which withdrew the spent conviction and imposed the additional fine of $1000.

107   The final matter to which the Commission’s attention was drawn involved the criminal conviction of a constable arising from an incident with a 19 year old male.  The constable considered that an offence had been committed and that in striking the youth on the knees with his baton the constable believed he was entitled to use that amount of force in discharging his duties.  The court rejected that defence and the constable was convicted of assault and fined $1500.  In the investigating officer’s report the constable’s use of force was described as “unprovoked and unnecessary”.  The youth was not charged with any offence.  Disciplinary action was taken against the constable by the Commissioner of Police under section 23 of the Police Act 1892.  At no stage did the Commissioner lose confidence in the constable’s ability to serve as a member of the Police Force.

108   The Appellant cites each of these cases to show that matters of public interest have not been prejudiced notwithstanding that the three members have received criminal convictions.  Each has attested to the following:

“Since my conviction I have had no comment made to me in relation to my suitability to be a police officer from any member of the public or any solicitor or court officer during a trial in which I have given evidence. 

I am not aware of any adverse consequences to the Western Australian Police Service as a result of the Commissioner of Police retaining confidence in me and allowing me to continue to discharge my duties as a police officer.”

(Attested to by each witness by way of affidavit)

109   We have taken into account each ground of appeal cited by the Appellant and reviewed all of the evidence presented on his account.  There are difficulties for the Appellant in maintaining the position that he has taken from the outset of the investigation with respect to his version of the incident on 7 December 2002.  As noted the fact of his criminal conviction could not be attacked or called into question by a collateral attack in these proceedings.  This was not attempted and the particular facts established by the conviction need to be considered within the context of the Appellant’s suitability to continue as a member of the Police Force when the Commissioner of Police has lost confidence in his ability, having regard to the conduct cited as the reason for his removal.

110   We have considered these issues which go to the interests of the Appellant and how they may be seen as being balanced with matters of public interest, including those set out in section 33Q(4)(b)(i) and (ii) of the Act.

Addressing the requirements of section 33Q(1)(c):

Thirdly, the WAIRC shall consider the case presented by the Commissioner in the Appellant’s Case

111   The Respondent sets out the legal principles that he considers should be addressed in dealing with appeals against removal action.

112   First, it is emphasised that there must be an appreciation of the very wide managerial power to remove police officers that resides with the Commissioner of Police under section 8 of the Act.

113   As statutory officers not all the principles that arise in the cases that deal with unfair dismissals necessarily apply to police officers under the Police Act 1892.

114   Under the Act the Commissioner is entrusted with the responsibility to act to maintain public confidence in the Police Force and its members and to take prompt action to that end if he sees it necessary and desirable (R v Miller; ex parte Parker, unreported, WA Full Court, Lib No 980249 per Franklyn at 11).  It is the responsibility of the Commissioner of Police to ensure that only officers who are trustworthy and adequately behaved should remain in the Police Force (Bigg v NSW Police Service (1997) 72 IR 330 at 332).

115   Removal of an officer from the Police Force is not done as a punitive measure.  In this case there is no charge of misconduct nor was it to be the basis upon which punishment was determined.  Removal action results from the Commissioner of Police’s lack of confidence in a member’s suitability to continue in the Police Force, it is effected to protect the public, to maintain proper standards of conduct of members and to protect the reputation of the Police Force.

116   Removal from the Police Force under the Commissioner of Police’s loss of confidence is not an avenue through which to exact retribution (Minister for Police & Another v Smith (1993) 73 WAIG 2311 at 2327).

117   The Respondent points out that when considering appeals against removal action, it is not a question of whether the “punishment fits the crime” but rather has the action been justified to maintain the proper functioning of the Police Force?

118   The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of members of the Police Force, upon their assiduous performance of duty and upon judicious exercise of their powers (Public Service Board and Another v Morris and Martin (1984-85) 156 CLR 397 at 412).

119   On the basis of the above principles and subject to the statutory requirements set out in section 33Q of the Act in conducting an appeal it is, in the Respondent’s view, appropriate for the WAIRC to adopt the approach which it set out in the Report to the Minister under section 80ZE of the Industrial Relations Act 1979 on 18 December 1998:

“We have approached the matter on the basis that the Commissioner of Police has a statutory duty to maintain an efficient and effective Police Force in which the public has confidence.  It is trite to say that the “effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers”.  Moreover, we have approached the matter, recognising that it is the Commissioner of Police, and not us, who is charged with the responsibility of managing the Police Force.  In common with industrial tribunals in other States, the Industrial Commission has been at pains to point out that in examining allegations of harsh, oppressive or unfair dismissal from employment the Commission is not to put itself in the position of taking over the management of the relevant workplace by substituting its opinion for that of the appropriate manager.  Instead, its task is to determine whether there was a fair and reasonable explanation for the decision of the manager, which when viewed objectively, would be regarded by fair-minded persons as being totally legitimate.  In the context of this review, the question is whether the recommendation of the Commissioner of Police was one which was open to a fair-minded person charged with the statutory responsibilities of the Commissioner of Police.  In considering that question, it is necessary to have regard for the fact that … as with all members of the Police Force, occupies a statutory office, which is unlike that held by most other people who come before this Commission complaining of being unfairly dismissed from their employment.  The duties and responsibilities of members of the Police Force are such that the public is entitled to expect that they always act in a way which is above suspicion and reproach.

As already noted, the Commissioner of Police … asserts that by reason of his conduct, whether or not it constitutes misconduct, he has lost all confidence in his capacity to fulfil the role of a member of the Police Force.  He is not recommending that he be removed from the Police Force as a punitive measure but as a means of maintaining confidence in the Police Force.  Industrial tribunals, and indeed the civil courts, for a long time have made it clear that in such circumstances it is not necessary that the Commissioner establish that the police officer concerned is guilty of misconduct, but simply that there be a proper basis upon which the Commissioner of Police could conclude that the conduct of the police officer in question was of such a nature as to put the public confidence in the Police Force in jeopardy.  For the Police Force to have the confidence of the public, members of the Police Force must not only act above suspicion and reproach but be seen [to] act above suspicion and reproach.”

120   In answer to the first ground of appeal there is the allegation that the Commissioner of Police took into account additional material not referred to in the Notice of Intention to Remove i.e. IIU and IAU complaints and that the Appellant was not given the opportunity to comment on the memorandum of the Assistant Commissioner of Police (Professional Services) of 23 September 2003.

121   The Respondent submits that this ground of appeal falls away as there is no obligation on the Respondent to provide the Appellant with an opportunity to provide a response to the IIU and IAU Complaints Histories nor to the Assistant Commissioner’s memo, either under the Memorandum of Understanding which regulated appeals prior to August 2003, or under the statutory provisions which had effect from 27 August 2003.

122   Furthermore, in any event the Appellant has now, through tendering new evidence, had the opportunity to provide a response to his IAU and IIU Complaints Histories as well as to the memo dated 23 September 2003.

123   The Respondent then points out that the mistakes of fact identified in Ground 1(b) have been rectified by the new evidence submitted by way of affidavit from John Hallett on the Appellant’s account.

124   It is noted that the matters raised in grounds 1(a) and (b) of the Appeal have been considered by the Commissioner of Police and are the subject of comment in his re-formulated reasons for taking removal action as set out in the letter to the Appellant dated 27 May 2004.

125   By ground 1(c) the Appellant attacks the Respondent’s reliance on “unsworn and untested evidence of intoxicated juvenile witnesses” which he says was specifically excluded from the materials taken into account by the Respondent in making the determination to issue the Notice of Intention to Remove.  The Appellant goes on to assert that in reliance on that exclusion he specifically did not comment on the evidence of those witnesses in his response.  However, the Appellant asserts that this evidence was then included by the Reviewing Officer in his subsequent report dated 5 September 2003 and was taken into account by the Commissioner of Police in making the determination to remove the Appellant from the Police Force.

126   The Respondent points to the Appellant’s response to the Notice of Intention to Remove dated 1 August 2003 and notes that reference is made to “the many inconsistencies in the statements of those witnesses” (Appeal Book folio 89).

127   The Respondent submits that it is quite clear that the Appellant was aware of the evidence of the witnesses in question but for his own reasons chose not to make a detailed response.  This the Respondent surmises may have been either because of the nature of that evidence against the Appellant or for tactical reasons in view of the prosecution he faced.

128   As far as the Respondent is concerned, regulation 6A07 enables the Commissioner of Police to receive additional information following receipt of a police officer’s written submission.  In view of the denials put up by the Appellant and the claim that indeed it was him that was assaulted, the Commissioner of Police then received the evidence of six other witnesses.  The Commissioner was entitled to do this under the Regulations.  It is submitted there can be no complaint on this ground.

129   The Respondent answers the claim about receiving “unsworn” and “untested” evidence by pointing to the outcome of the trial before the Court of Petty Sessions.  As to who started the altercation and as to who was assaulted the findings of the Magistrate cannot now be challenged.  The Appellant cannot (and indeed did not) assert in the appeal that the evidence of the witnesses in question was false as this would amount to a collateral attack on his conviction (Smith v Director General of Transport op cit).  However, the Respondent submits that the Appellant cannot escape the fact that he lied to the Commissioner of Police.  There remains in the Respondent’s view a continuing unwillingness in these proceedings to accept the truth of what happened.

130   In electing to proceed with removal action before the outcome of the criminal trial it is argued that the Commissioner of Police should have accepted the evidence of the Appellant over the unsworn, uncorroborated and conflicting evidence of the intoxicated youths.

131   The Respondent points out that it is clear that the Commissioner of Police does not have to wait for the outcome of related criminal proceedings before recommending removal action (section 33W of the Act).

132   While acknowledging that there are some inconsistencies in the evidence of the witnesses they were consistent in stating that the Appellant had head-butted Brown.  Further, it is submitted that in any event, the reasons for decision of the Magistrate dated 10 December 2003 in the Appellant’s criminal trial, makes it clear that the Appellant cannot now argue that his evidence was truthful and that of the witnesses against him was untruthful (Smith v Director General of Transport op cit).

133   The Respondent submits that it is an extraordinary proposition that there was in any sense entrapment of the Appellant by the Commissioner of Police by moving to remove the Appellant from the Police Force prior to the criminal trial.  The inference which could be taken from the Appellant’s argument under this ground of appeal is that the Commissioner of Police “should wait to allow the Appellant to see if he could get off at the trial so that he can see whether he could lie in his response” to the Commissioner of Police.  The Respondent emphasises that a member of the Police Force is obliged to tell the truth, the whole time, whether in response to the Commissioner or in Court.

134   The Respondent acknowledges that there are inconsistencies in the evidence of the witnesses to the Appellant’s conduct but they were all consistent in stating that the Appellant had assaulted Brown.  The relevant extracts were placed before the Commissioner of Police in the Review Officer’s report of the responses given by the Appellant to the Notice of Intention to Remove (refer to Appeal Book pages 118 and 119).

135   The Respondent submits:

“Now, the final point – and this is really the nail in the coffin for this ground of appeal, as it is for so many others – is that given the result in the criminal trial it is now accepted that the Appellant’s evidence that he hadn’t started this fight, that he was acting in self-defence, was simply false and so it cannot now be said that that evidence should have been accepted over the evidence of the other people because it’s clear now that the other people were telling the truth and that the Appellant was lying.  For that reason as well, that appeal ground must fall away.”

(Transcript p 94)

136   With respect to appeal ground 1(e) that the Respondent accepted the unsworn and untested evidence of the complainant in preference to the evidence of the Appellant, even without the conviction it is submitted that the Appellant’s story is inherently improbable.  To accept the Appellant’s version of events requires acceptance that the seven young people conspired together to set up the Appellant.  This was specifically rejected at the trial.

137   Another reason why the Respondent argues that the Appellant’s story is inherently improbable is that it requires acceptance that after being assaulted without provocation the Appellant, who is a police officer for some 13 years, makes no effort to arrest or charge the person who has assaulted him.  Neither does the other police officer who was there at the time.

138   It is submitted that ground 1(f) suffers from the same fatal flaw.  That ground states:

“The decision of the Respondent is based on conclusions which could not reasonably be drawn from the material before him as the evidence of the witnesses is not supported by the independent evidence of the treating medical practitioners or the attending police officers.”

139   The response points to the report from the Acting Senior Medical Officer in the Kimberley Health Region, dated 10 December 2002:

“He (Brown) presented at 1514 on 7 December 2002.  He alleged he had been head-butted and punched several times in the face.  At the time of the injuries he had had a bleeding nose.  No loss of consciousness occurred.  At that time he had a painful left cheek, upper lip and left anterior neck/sternomastoid.

Examination revealed the following injuries:

1. Abrasion to right nasal mucosa

2. Bruising, swelling and tenderness to the left corner of mouth and left cheek.

3. Small abrasion on right neck

4. Chipped upper canine

5. Tender left upper sternomastoid.    …

The injuries are consistent with having been inflicted as alleged …”

(Appeal Book Pages 47 and 48)

140   Given the findings made by the Magistrate, it is submitted that, for the purposes of these proceedings, the Appellant did in fact attack Brown; ground 1(f) is simply inarguable.

141   Ground 1(g) raises the issue of “whether the punishment fits the crime”.  Are the consequences for the Appellant disproportionate to the gravity of the conduct?

142   The Respondent submits that the removal of a member under section 8 of the Police Act 1892 is not about punishing police officers for misconduct, this is dealt with under disciplinary matters elsewhere in the Statute.  Section 8 is about protecting members of the public, maintaining standards of conduct and protecting the reputation of the Police Force.  The public is entitled to expect that police officers will always act in a way which is above reproach.  In this way they are different from most people.  They are not employees they are police officers at all times, not just when they are on duty.

143   The Respondent submits that the Appellant has been a police officer for 13 years and just as the Magistrate observed, he really should have known better.

144   Rather than seeing if the “punishment fitted the crime” the question to be addressed according to the Respondent is that given the Commissioner of Police’s statutory duty was it fairly open to him to recommend the removal of the Appellant to protect members of the public, to maintain standards of conduct of the Police Force and to protect the reputation of the Police Force?

145   The Respondent submits that when this test is applied it is apparent that it was open to the Commissioner of Police to take the course he did.

146   As to the evidence presented by three serving police officers with criminal convictions, that in the Respondent’s view goes to an argument that says “Well look, there are people that are worse than me, and they are police officers.  Why can’t I be a police officer?”  That is rejected as an acceptable line of argument.  The issue is really, given the Appellant’s conduct, what is the position with regard to him?  In any event the comparisons that are drawn are not ‘like with like’.

147   The constable who assaulted the 19 year old male had been out of the Police Academy only 9 months.  He honestly believed he had the authority to use the force that he did.  The Court considered that was not the case.  The constable did not lie to the Court, he pleaded guilty.  The circumstances where a young, inexperienced officer uses excessive force is quite different to an experienced officer, who under the influence of alcohol beats up a young man then lies about it.  There can be no comparison between the two.

148   The Respondent acknowledges that the cases of the other two officers are a “bit more borderline”.  This is reflected in the Commissioner of Police’s decision when he revoked the Notice of Intention to Remove.

149   First there was the officer who assaulted the 10 year old girl by slapping her across the face.  He did not hit her with such force as to leave a permanent mark, nor as in this case, to cause bleeding or to chip a tooth.  In response to the section 8 notice he maintained the defence of self-defence.  The Commissioner of Police saw through that but responded to the plea for a second chance.  Again that was a borderline case.

150   It is submitted that, with respect, it is not for this Commission to sit in judgment of what was done on that occasion.  It is for the Commissioner of Police, given his experience and expertise in the area, to make the call as to which side of the line an individual may fall.

151   As to the officer who fraudulently misrepresented the purchase of a vehicle to evade stamp duty; he pleaded guilty to the charge and was the subject of a section 8 notice.  The officer said he took responsibility for what he did and asked for a second chance.  It is submitted that the point can be fairly made that this offence is not as serious as assaulting someone by head-butting them, punching them then lying to the police investigators, the Court and the Commissioner of Police.  It doesn’t excuse what this officer did and it was a difficult decision for the Commissioner of Police.

152   It is submitted that it is not for the WAIRC to stand in the Commissioner’s shoes and proclaim that it would have done something different.

153   The WAIRC must accept that in the cases cited where confidence in the member’s suitability was retained, the Commissioner of Police weighed up all of the issues, not least of which may have been the seriousness of the offence and the fact that each of the officers took responsibility for their actions.

154   It is not the function of the WAIRC to go through each case under section 8 of the Police Act 1892 and make comparisons to see how “each stacks up against the others”.

155   Ground of Appeal 1(h) takes exception to the conclusion that the Respondent has concluded that the “conduct and integrity” of the Appellant does not meet the high standards required and expected of a member of the Police Service when there is no issue of integrity raised in the material before him.

156   In answer to this the Respondent points out that in the re-formulated reasons for loss of confidence, no reference is made to the “integrity” of the Appellant.  Therefore, this ground of appeal falls away.  However, on reflection the Respondent considers that by his actions following the assault the Appellant proffered a version of events to suit himself to avoid the truth.  In the Respondent’s view this showed a level of dishonesty and lack of integrity.  By lying to superior officers, the Court and the Commissioner of Police, it is submitted that the Appellant lacks the integrity necessary to fulfil the role of a member of the Police Service.

157   Under ground 1(i) the Appellant argues that the conduct referred to by the Respondent does not have a relevant connection to the employment of the Appellant sufficient to warrant removal action being taken.  The conduct does not undermine the Appellant’s capacity to perform his duties or diminish his status and authority to such an extent that it affects his fitness to discharge the duties of his office.

158   In response to this the Respondent notes that the Appellant accepts that particularly in small towns the conduct of police officers must be exemplary at all times.

159   The Respondent points to the Magistrate’s reasons for decision in which he observed that in assaulting Brown, the Appellant did immeasurable harm to his own position as a police officer as well as to the reputation of the Police Force as a whole.  Furthermore, the Magistrate commented on the lasting impact his assault on Brown will have on the young people present that night.  The Magistrate noted that this will affect the way they will judge other police officers.

160   It is submitted that the Appellant cannot take any comfort from the fact that the Appellant continued to work in Broome for a further 11 months after the incident.  The Appellant was taken off operational duties.  There is no evidence before the WAIRC as to the Appellant’s reputation.

161   It is emphasised that the WAIRC should not draw any conclusion adverse to the Respondent because the Appellant remained working while the process which culminated in his removal was worked through.  The Respondent submits that as a matter of commonsense, if a police officer assaults a member of the public it damages the reputation of all police officers.

162   The point is made by the Respondent that it must be borne in mind what section 8 proceedings are all about; why officers are removed from the Police Force.  It isn’t simply about their ability to continue to do the work, it is about protecting the public and protecting the reputation of the police force.

163   Even on the basis of normal employment relationships, the misconduct committed by the Appellant would justify dismissal.  But here, it is argued, we are dealing with the removal of an officer not solely because he cannot do his duty but to protect the public and to protect the reputation of the Police Force.  These factors must be balanced when looking at the fairness of the Commissioner’s recommendation for removal.

164   Turning to ground 1(j), the Appellant submits that at the time of the incident, the Appellant was on a return to work programme, was recovering from post traumatic stress disorder and severe major depressive illness.  He was on medication as a direct consequence of injuries received and victimisation suffered whilst fulfilling his duties as a Police Officer.

165   The Respondent notes that the Appellant did not seek to rely on recovery from these illnesses to justify his actions.  Rather he denied that he had unlawfully assaulted Brown and wrongly accused him of assault.

166   The Respondent notes the medical reports tendered in the Appeal Book.  The letter from the Psychiatric Registrar dated 30 July 2003 notes the requirement for “intense treatment for a Severe Major Depressive Illness over the last six months.”  That period is after the assault incident in December 2002 (Appeal Book Page 91).

167   A letter from a Psychologist refers to counselling going back to October 2002 associated with “significant stress related to on-going difficulties at work.  He also reported depressive symptoms, which were regularly impacting on his work, family and social life.  His symptoms appeared consistent with a Major Depressive Episode …”  The letter goes on to record that:

“By 24 February 2003 Allan appeared to be making good progress and that he reported his depressive symptoms had subsided and he was able to manage stress more effectively both at home and at work.  Allan attended a follow up session on 26 March 2003 where he reported he had maintained good progress, therefore, he would require no further sessions at this stage.”

(Appeal Book folio 100)

168   The Respondent points out the inconsistency between the two reports.  The psychiatrist notes that for the first six months of 2003 the Appellant has severe major depressive illness which requires intensive treatment, whereas the psychologist records that by February 2003 he is making good progress and his depressive symptoms have subsided.  This contradiction remains unanswered.

169   It is also noted by the Respondent that in the record of interview conducted on 31 December 2002 the Appellant affirmed a full recollection of everything that occurred on the evening of the assault and expressed the view that he did not believe medication or alcohol impaired his judgment or made him intoxicated.

170   The Respondent makes the point that there was no suggestion from the Appellant at the time that his medication in any way caused him to do what he did nor the fact that he was recovering from illness could excuse his conduct.  There is no medical evidence before the WAIRC to show that in some way the Appellant was incapable of controlling himself.

171   The Respondent refutes any suggestion that the Commissioner of Police had a duty to inquire into the Appellant’s mental state given the fact that he was on a return to work programme in December 2002.  This is said to be the case because the Appellant flatly denied that he had started the altercation or that he had head-butted the 19 year old male.

172   In the light of the denial it is submitted that it cannot be expected that the Commissioner of Police will “go hunting around every other peripheral issue that happens to be raised in response”  (transcript page 113).

173   The Respondent submits that because the Appellant did not seek to justify his action by reference to his medical condition it does not behove him to try and do so after his conviction.

174   Finally, the Respondent reminds the Commission that the burden of establishing that the decision to take removal action was harsh, oppressive or unfair always rests with the Appellant.

Conclusion

175   As the Commission granted both parties leave to tender new evidence and this occurred right up to the time of the hearing, the case for the Appellant extends beyond the grounds that were submitted at the time the appeal was first lodged.  Taking all of the evidence into account the thrust of the Appellant’s case focuses on the following broad areas:

• The alleged unfairness which arises from the process whereby evidence was collected and made available for comment.
• The alleged lack of consideration given to matters going to the Appellant’s interests; and
• An alleged failure in considering public interest in the light of other cases and the public perception of the Appellant’s conduct.

176   In considering the Appellant’s case in the broader context either as matters directly addressed or arising from or as a consequence of matters raised, the following questions and issues need to be addressed:

• Did the Commissioner of Police limit the evidence presented to the Appellant for comment and response and even if that was the case did consideration of what was tendered as new evidence rectify any fault?
• Were the conclusions reached by the Commissioner of Police as to the Appellant’s behaviour reasonably open to him?
• Has the Commissioner of Police confused “integrity” with the conduct cited and thereby extended the reasons for the loss of confidence without a proper basis for so doing?
• Should a distinction be drawn between the assessment of evidence made by the Commissioner of Police on what was before him at the time he formulated the reasons for his loss of confidence in the Appellant and the findings which were subsequently made by the Court when the Appellant was convicted?
• Has there been a failure on the part of the Commissioner of Police to fully appreciate and to take into account the following matters?
• That the incident occurred “out of hours” while the officer was off-duty.
• That the Appellant was in a difficult situation.  He was acting as a parent and carrying the responsibilities of a police officer.
• That the decision to remove the Appellant has a dramatic economic impact on the Appellant and his family.
• That insufficient weight was given to the Appellant’s length of service as a police officer and as a member of the Royal Australian Navy serving the community.
• The findings of the Magistrate that the Appellant was affected by alcohol and that at the time of the incident he felt threatened, were not considered or were not sufficiently considered by the Commissioner of Police.
• The Commissioner of Police failed to take into account or to sufficiently consider that at the time of the incident the Appellant was on a return to work programme.  Although the Appellant did not plead it, his state of mental health should have been considered by the Commissioner of Police.
• Did the Commissioner of Police consider the public interest in disregard of the Appellant’s interests?  According to the Appellant the incident received little or no publicity in the local community.  Other officers have been convicted of offences after maintaining defences of “self-defence”.  The Commissioner of Police was prepared to revoke the loss of confidence in their suitability to continue as members of the Police Force.  On the same measure is it unfair for the Commissioner of Police to re-affirm his loss of confidence in the Appellant?

177   In considering the case presented it is important from the Respondent’s viewpoint for the WAIRC to appreciate that the Commissioner of Police is entrusted with the statutory responsibility to maintain an efficient and effective Police Force in which the public has confidence.  In performing this duty the Commissioner of Police is given wide powers under section 8 of the Police Act 1892 to remove officers in whom he has lost confidence.

178   Importantly, it is emphasised that it is not the WAIRC’s role to take over the management of the Police Force with respect to the retention or removal of the Appellant as a member of the Police Force, by substituting our opinion for that of the Commissioner of Police.  Adopting what was said by the WAIRC to the Minister in a report under section 80ZE of the Industrial Relations Act dated 18 December 1998 “… the question is whether the recommendation of the Commissioner of Police (to remove the Appellant) was one which was open to a fair-minded person charged with the statutory responsibilities of the Commissioner of Police.”

179   It is the Respondent’s case that this appeal should be considered on the basis of these principles.

180   We re-affirm acceptance of statements set out above going to the Commissioner of Police’s statutory function in maintaining public confidence in the Police Force and his wide powers under section 8 of the Police Act 1892, to ensure that the public interest is served.  What needs to be identified is the test to be applied to ascertain whether the decision of the Commissioner of Police to take removal action relating to a member of the Police Force was harsh, oppressive or unfair.

181   In this respect it is appropriate to set out what was stated by Brinsden, J in Undercliffe Nursing Home v The Federated Miscellaneous Workers Union of Australia, Hospital, Service & Miscellaneous, WA Branch (1985) 65 WAIG 385:

“The jurisdiction has been variously stated: in re Loty and Holloway v Australian Workers’ Union (1971) AR 95 at 99 Sheldon, J said that even though in the dismissal be it summary or on notice, the employer has not exceeded his common law and/or award rights, the Court was entitled to enquire as to whether the employee had received “less than a fair deal”.  He also approved what had been said in an earlier case whether there had been “a fair go all round”.  In a later case Metropolitan Meat Industry Board v Australian Meat Industry Employees’ Union (New South Wales Branch) (1973) AR 231 at 233 Watson, J thought that even if there are grounds for terminating the contract of employment it was still open to the tribunal to examine the severity or otherwise of the step of dismissal.  In the majority judgment in Western Suburbs District Ambulance Committee v Tipping, at 277 their Honours stated the question as being “whether the employer’s action was harsh or unjust or that the employer had abused his right to dismiss his employee”.  In that case they considered the union had made out its case in connection with an employee whose services had been terminated pursuant to the award without any reason being given, the employee having been of impeccable conduct and service over a long period of years.  Finally, in North West Council v Dunn 129 CLR 247 at 263 Walsh, J specifically approved a test stated by McKeon, J in the case immediately last cited as being the question to ask:

Has there been or has there not been oppression, injustice, or unfair dealing on the part of the employer towards the employee?

As His Honour points out the question to be investigated is not a question as to the respective legal rights of the employer and the employee but a question whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right?”

182   While the notion of a “fair go all round” encapsulates the test against which harshness, oppressiveness or unfairness of a member’s removal is to be judged in an industrial sense, the provisions of section 33Q(4) of the Act impose a specific duty on the WAIRC in determining an appeal in that “it shall have regard to –

(a) the interests of the Appellant; and

(b) the public interest, which is taken to include

 (i) the importance of maintaining public confidence in the integrity, honesty,  conduct and standard of performance of members of the Police Force; and

 (ii) the special nature of the relationship between the Commissioner of Police and               members of the Force.”

183   This provision ensures that the industrial standard based as it is on an employer/employee relationship is, in the circumstances of this statutory appeal process, particular to the service within the Police Force.

184   The interests of the Appellant and those aspects of public interest which go to the maintenance of public confidence in the Police Force have been identified by the parties in the cases considered here under section 33Q(1) of the Act, or in the reiteration by the WAIRC of legal principles which apply in an appeal.

185   What has not been articulated is the special nature of the relationship between the Commissioner of Police and members of the Police Force under section 33Q(4)(b)(ii) of the Act, which goes to the public interest and how these are to be regarded by the WAIRC in determining the appeal.

186   In our view this provision serves to remind the WAIRC to take into account that the nature of the relationship between the Commissioner of Police and members of the Police Force extends beyond those duties and obligations which are implied in normal employer/employee relationships.  It goes beyond the member’s duty of honesty, fidelity, obedience and to co-operate and the Commissioner of Police’s duty to provide training and a safe work environment.  It encompasses the commitment of a member to discharge the requirements of his/her commission whether on duty or off duty and to serve as a member of a disciplinary force.  While the very nature of policing assumes that the environment in which members discharge their duties will not always be safe it is the duty of the Commissioner of Police to ensure that members receive appropriate education, training, information and supervision in order for them to make decisions appropriate to the proper discharge of their duties and in the public interest.

187   It is within the context of this relationship between the Commissioner of Police and the Appellant that the WAIRC must, in addition to the other matters cited in the statute, have regard in determining the appeal.

188   We consider that the specific requirements for the WAIRC to have regard to the interest of the Appellant and the public interest which is taken to include those matters set out in section 33Q(4)(b)(ii) of the Act can be accommodated with the industrial notion of a “fair go all round”.  We now turn to the grounds of the appeal and matters which were argued before us.

189   There is nothing which prompts us to consider that the Commissioner of Police’s reasons for removing the Appellant from the Police Force can be impugned under matters which go to procedural fairness.  This includes the evidence upon which the Commissioner initiated the Notice of Intention to Remove the Appellant, the information that was made available to the Appellant nor on subsequent matters considered by the Commissioner of Police, including the information he received following the review of the Appellant’s response.

190   There are two matters which are relevant to the consideration of those elements of the appeal which go to the questions upon which the decision to remove the Appellant was based.  First, there is the fact of the conviction.  Second is the process which enabled the Commissioner of Police to re-formulate his reasons for determining that he had lost confidence in the Appellant to continue to serve as a member of the Police Force.

191   Notwithstanding anything that has gone before by way of an investigation, the fact of a member’s conviction establishes the factual issues upon which the determination of guilt has turned.  It matters not that the decision to remove the Appellant was made before the Court determined those issues.  The appeal cannot be determined on the basis of an artificial premise that sets aside the fact of conviction for it to be considered only in the context of public interest after the Commissioner of Police’s reasons for determining the Appellant’s removal have been looked at in isolation.

192   The Commissioner of Police is duty bound to take into account any written submissions in response to the Notice of Loss of Confidence given before removal action is taken (section 33L(4)(a)).  If removal action is pursued, the Appellant is to be advised of the reasons for the decision (section 33L(5)(a)).

193   The new evidence tendered under section 33R affords the Commissioner of Police the opportunity to re-formulate his reasons for not having confidence in the Appellant’s suitability to continue as a member of the Police Force (section 33R(8)(a)).

194   If the reasons are re-formulated the Commissioner of Police is required to give the WAIRC and the Appellant notice in writing of the re-formulated reasons before resumption of the hearing.  There is no obligation imposed on the Commissioner of Police to give the Appellant the opportunity to again provide a written submission in response to the re-formulated reasons.

195   In this case, however, the Commissioner of Police took the opportunity to address matters which were the subject of new evidence tendered by the Appellant.  In this regard the Appellant was not disadvantaged by not knowing what the Commissioner of Police had taken into account.  The letter titled “Re-formulated reasons for loss of confidence under section 33R(8) of the Police Act 1892” from the Commissioner of Police dated 27 May 2004, ensured that the Appellant’s concerns about the correct interpretation of affidavit evidence of Senior Sergeant John Hallett and IIU and IAU Complaints Histories were before the Commissioner of Police.

196   In this respect there were no residual matters arising from the Appellant’s written submission under section 33L(2) of the Act which were either not before the Commissioner of Police or were not the subject of clarification.

197   The Commissioner of Police did not limit the evidence presented to the Appellant for comment, and matters which were before the Commissioner of Police by way of new evidence ensured that any issues to which the Appellant wanted consideration given were presented to the Commissioner.

198   The WAIRC does not accept that the Commissioner of Police’s reference to the Appellant’s lack of integrity as well as reliance upon the Appellant’s conduct as the basis upon which loss of confidence was founded are incompatible or are so separate and distinct so as to give cause to uphold the appeal on the basis that the reasons formulated by the Commissioner of Police are faulty.  From the outset when the Notice of Intention to Remove was formulated, the Commissioner of Police stated that he was not satisfied that the Appellant’s “integrity, honesty and conduct are of the standard expected or required of a member of the Police Force…”

(Appeal Book, page 19)

199   The subsequent notice of removal reiterated reference to the Appellant’s “conduct and integrity” (Appeal Book, page 122A – Copy of Memo to Minister for Police and Emergency Services dated 2 October 2003).  Finally, in the re-formulated reasons for loss of confidence under section 33R(8) of the Act reference was specifically made to the Appellant’s conduct on 7 December 2002 in unlawfully assaulting Brown and to the Appellant’s denial of that conduct, as well as the assertion that it was Brown who struck the Appellant first.  In our view those denials go to the issue of the Appellant’s integrity.

200   What cannot be avoided are the facts that have been established.  It was the Appellant who initiated the altercation on 7 December 2002, it was he who head-butted the 19 year old male and notwithstanding the warnings given at the outset of the investigation as to his duty to answer all the questions truthfully, the Appellant persisted with a version of events which sought to deny culpability and mislead the Commissioner of Police.  It was an explanation perpetuated before the Court and one which was roundly rejected.

201   The offence of which the Appellant was convicted went beyond common assault to assault occasioning bodily harm.  Put in the context of an employee/employer relationship given that the conduct occurred out of hours, it would be necessary to consider whether the Appellant’s behaviour had seriously damaged that relationship by being incompatible with the employee’s duties or the employer’s interests.  However, when matters of public interest (as understood by reference to section 33Q of the Act) and the special relationship between the Appellant and the Commissioner of Police, which emphasises a duty to obey and uphold the standards of policing are taken into account, it is difficult to see that the decision to remove the Appellant from the Police Force could be harsh, oppressive or unfair.

202   Consideration of the matter, however, on such a narrow basis does not alone justify that conclusion.  The notion of a “fair go all round” within the context of the Police Act demands that matters going to the interests of the Appellant require particular consideration.  This, it is noted, is not only an obligation imposed on the Commissioner of Police but specifically one to which the WAIRC must have regard.  It is not sufficient for us to note that the Commissioner of Police took these matters into account in reaching his decision to remove the Appellant from the Police Force.  The WAIRC must make an independent assessment of the interests of the Appellant in determining whether removal from the Police Force was harsh, oppressive or unfair.  We have in this respect identified all of the issues to which we must direct our attention.

203   These have been enumerated in our consideration of that which was put to us in the Appellant’s case as well as what was submitted to the Magistrate on the Appellant’s behalf before he was convicted.  In summary, those matters go to the fact that the Appellant was off-duty at the time of the incident.  He was acting as a parent in attempting to address a problem involving his son.  As an officer with 13 years’ service he had not been involved in this type of behaviour before.  The incident took place in the space of less than a minute; the Appellant acknowledges that he should not have approached the youths that evening.  The Magistrate found that the Appellant was affected by alcohol and at the time of the incident had felt threatened.  In the light of this, the Appellant’s behaviour could be seen as an aberration.  The removal from the Force has had a dramatic economic impact on his family.

204   In considering matters which go to the interests of the Appellant we also note that at no time during the incident did he attempt to use his authority as a policeman to intimidate Mr Brown.  In some respect this confirms the position that he was acting as a parent, albeit that because of his commission he was at all times a police officer.

205   We also note the matters which were tendered in new evidence which show that the Commissioner of Police has been able to retain confidence in other officers, notwithstanding their criminal conviction.  It is sufficient to note that for the purpose of whether any sense of grievance arises from the outcomes of their cases compared with that of the Appellant, that consideration was given to their respective positions under a process which ensured that the Commissioner of Police took into account the fact of their conviction as well as the officers’ responses.  A different outcome does not imply an injustice.  What is important is that the process by which the respective cases was dealt with was substantially consistent.  Consistency does not necessarily mean equality of outcome (Madgwick, J in Capral Aluminium Ltd v Sae (1997) 75 IR 65).

206   Finally, we note that although it was never a matter which was put in issue either in the Commissioner of Police’s investigation or in court proceedings, the Appellant had been suffering psychiatric problems for some time prior to the incident.  He was, at the time of the assault, on a restricted work programme.

207   The Police Act 1892 requires us to not only take into account those matters that are in the interests of the Appellant and the public interest but also those which go to the special relationship between the Commissioner of Police and members of the Police Force.  In this regard there is an all encompassing requirement for members to uphold the highest standards of ethical behaviour.  The Magistrate’s assessment that the Appellant had done immeasurable harm to other Police officers in this State is not insignificant.  A review of the Police Force Regulations 1979 shows the scope and detail of the relationship and the duty that a member of the Force has under his/her oath.

208   There is, however, a reciprocal duty within that relationship.  It is that which the Commissioner of Police owes to members to maintain their well being.  The Commissioner has at all times the power to direct the member to attend a medical examination from a practitioner of the Commissioner’s choice.  The member is obliged to comply with that direction.

209   Where, as in the circumstances of this matter, the member’s health only allows him to perform his duties on a restricted work programme and it was known to the Commissioner of Police through his Investigating Officer that the member is on medication, then an enquiry to the member about the affect of that medication with alcohol would hardly seem to be a reliable basis upon which to discount the possibility that this may have contributed to his aberrant behaviour.

210   It is appreciated that the Appellant emphatically denied any such effect and steadfastly maintained that he had not struck the first blow and indeed, had been head-butted. However, just as the facts of the conviction established the factual issues upon which guilt was determined, for the purposes of appeal the other findings of the Magistrate must be considered.

211   It is established that the Appellant was intoxicated and that he felt threatened when Brown stood up and the two confronted each other.

212   The submission of medical reports from the Appellant on the state of his psychological well being was before the Commissioner of Police.  While it may not be enough to cite an inconsistency between the reports of a psychologist and psychiatric registrar to discount the relevance of this information the fact of the Appellant’s medical history was known to the Commissioner of Police and was taken into account.

213   At the end of the day matters of public interest which include the importance of maintaining public confidence in the integrity, honesty, conduct and standards of performance of a member of the Police Force, and that aspect of the special relationship between the Commissioner of Police and members of the Force, which bears so heavily on the member’s duty of obedience, outweigh those matters which are of interest to the Appellant and those aspects of the special relationship which go to protecting his well being.

214   It is in the final analysis a judgment as to whether matters of interest to the Appellant outweigh the detriment that is suffered to the public interest.  In the circumstances of this matter we have not been persuaded that the removal of the Appellant from the Police Force on the ground that the Commissioner of Police had lost confidence in his ability to continue in the Force was not open to him.

215   It is not open to the WAIRC to take over the role of the Commissioner of Police in the management of the Police Force in the respect of deciding, in the circumstances of this matter, that we would have come to a different conclusion to that of the Commissioner of Police.  What is before us is the issue of whether in consideration of the reasons for losing confidence in the Appellant to continue to serve as a member of the Police Force and in addressing the matters specifically required under section 33Q(4) of the Act, has the Appellant been given a fair go all round?  We conclude that he has. The Appellant has not shown that his removal is harsh, oppressive or unfair.

216   The appeal is dismissed.