WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES WAYNE RUSSELL MCGRATH

APPELLANT

-v-

COMMISSIONER OF POLICE

RESPONDENT

CORAM CHIEF COMMISSIONER A R BEECH

 COMMISSIONER P E SCOTT

 COMMISSIONER S WOOD

DATE FRIDAY, 1 APRIL 2005

FILE NO. APPL 718 OF 2004

CITATION NO. 2005 WAIRC 00843

Result Leave to tender new evidence granted in part

Catchwords New evidence sought to be tendered – consent of Commissioner of Police – Police Act 1892 s.33R(3) and (4)

Representation 

Appellant Mr W.R. McGrath on his own behalf by way of written and oral submission

Respondent Mr R. Andretich (of counsel) by way of oral submission

Reasons for Decision – Application to tender new evidence

1          THE COMMISSION:  At the conclusion of Mr McGrath’s submissions he requested leave to amend the grounds of his appeal and also to tender new evidence.  The Commission, not without some hesitation, directed Mr McGrath to put in writing the amendments he wished to make, provide a copy of the new evidence that he sought to tender and provide a copy to Mr Andretich.  The hesitation was because it is quite unusual for such leave to be sought almost at the end of the case, and which necessarily meant that the appeal came to a temporary halt whilst the issue is then dealt with.  However, the Commission took into account that Mr McGrath is unrepresented and is endeavouring to prosecute his appeal to the best of his ability.  As Mr Andretich properly observed, Mr McGrath has been unrepresented for some period of time and had received the appeal book late in the day. 

2          Mr McGrath complied with the direction and Mr Andretich, on behalf of the Commissioner of Police, has advised that the Commissioner consents to both the amendments sought and the new evidence produced.

3          Against that background, the Commission has to consider Mr McGrath’s two requests: merely because the Commissioner of Police consents does not remove the obligation on the Commission to decide whether to grant the requests.  Section 33R(3) states:

 “(3) The WAIRC may grant the appellant leave to tender new evidence if —

   (a) the Commissioner of Police consents; or

   (b) the Commission is satisfied that —

  (i) the appellant is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information;

  (ii) the new evidence might materially have affected the Commissioner of Police’s decision to take removal action; or

  (iii) it is in the interests of justice to do so.”

4          Section 33R(4) states:

  “(4) In the exercise of its discretion under subsection (3) the Commission shall have regard to —

   (a) whether or not the appellant was aware of the substance of the new evidence; and

  (b) whether or not the substance of the new evidence was contained in a document to which the appellant had reasonable access,

    before his or her removal from office.”

5          The requirement in s.33R(4) for the Commission to have regard to whether or not Mr McGrath was aware of the substance of the new evidence, and whether or not it was contained in a document to which he had reasonable access before his or her removal from office applied to the whole of s.33R(3).  That is, the Commission is obliged to have regard to those things even when the Commissioner of Police consents to Mr McGrath’s requests.

6          We therefore now do so. 

7                                         (1) Mr McGrath seeks to add a new ground 8.  This is to the effect that the decision to dismiss was not made within the range of reasonable responses available to the Commissioner of Police and his judgment in part was influenced by the manner in which the media portrayed the officers as guilty and that the sacking of Mr McGrath was imminent; the media portrayal occurred one month prior to the Commissioner of Police’s decision to remove him and left the Commissioner no other option than  dismissal. 

8                                          The Commission considers new ground 8 merely re-states ground 6 of Mr McGrath’s grounds of appeal which is to the effect that he considers it harsh, oppressive and unfair to dismiss Mr McGrath due to adverse publicity which was generated by the Commissioner of Police in circumstances where the same conduct would not have resulted in Mr McGrath’s removal if the publicity had not been received.  We therefore are unwilling to allow the amendment sought: it does not add anything of substance to the existing ground.

9                                          Mr McGrath seeks to tender as part of new ground 8 as “new evidence” a newspaper article of 11 January 2004.  Having regard to s.33R(4) it is apparent to the Commission that the newspaper article was a document which it is likely Mr McGrath was aware of before 15 April 2004 when he was removed from office.  Had it not been for the consent of the Commissioner of Police it is unlikely we would have granted leave to tender it.  However, we do so and given that the newspaper article relates, it appears, to the existing ground 6, the Commission will grant leave to Mr McGrath to tender the article as part of ground 6 and make any further submissions he wishes to make in relation to it.

10                                      (2) Mr McGrath seeks to submit a newspaper article dated 22 April 2004 with the intention of showing that the idea of the “prank” came from the driver of the car and not himself and that he had only been a reluctant participant who had been swept up in the joke at the time and made a “finger” gesture. 

11                                      We have approached this matter is a similar vein to the matter above.  We note that the existing ground 1 is that Mr McGrath’s dismissal was unfair on the basis that he should not be held equally accountable with the driver as Mr McGrath was a passive participant.  Given that the newspaper article is dated 22 April 2004, being a date after Mr McGrath’s removal from office on 15 April 2004, we consider that the newspaper article is “new evidence” and grant leave for it to be tendered.  To the extent that in submitting the article Mr McGrath also seeks to amend the grounds of appeal, we do not consider the amendment is necessary in the circumstances and leave to do so is refused.  Leave is granted to Mr McGrath to tender the article as part of ground 1 and he may make any submissions he wishes to make in relation to that article.

12                                      (3) Mr McGrath seeks to submit as “new evidence” copies of newspaper articles and extracts from the “Police Gazette” to show that his dismissal was harsh and that an alternative to his removal was available under s.23 of the Police Regulations.  For the purposes of s.33R(4), it is convenient to group the “new evidence” which Mr McGrath seeks to tender. 

13                                         The first group is a series of newspaper articles from September 1993 to August 1994.  These articles are documents to which we consider Mr McGrath had reasonable access before his removal from office on 15 April 2004 and we consider it likely therefore that he was aware of the substance of the new evidence.  Notwithstanding the consent of the Commissioner of Police we do not grant leave to admit these newspaper articles.

14                                         The second group is a newspaper article of 28 June 2001.  For similar reasons, we decline to grant leave to Mr McGrath to tender the article.

15                                         The third group is extracts from the Police Gazette between the period July 2001 and October 2002.  For similar reasons, we decline leave to Mr McGrath to tender these extracts.

16                                         The final group is newspaper articles of May 2004 and January 2005.  We consider that leave should be granted to Mr McGrath to admit those documents as they are documents which post-date Mr McGrath’s removal and to do so as part of ground 4 of his appeal.

17       In summary therefore Mr McGrath is given leave to tender “new evidence” being - 

(a)                    the newspaper article from the “Bunbury Herald” of 11 January 2004 and to place further submissions before the Commission in relation to that article as it relates to ground 6 of his appeal.

(b)                    the newspaper article from the “South Western Times” of 22 April 2004, and to place further submissions before the Commission in relation to that article as it relates to ground 1 of his appeal;

(c)                    the newspaper articles of May 2004 and January 2005 and to make further submissions in relation to those articles as they relate to ground 4 of his appeal.

18       In all other respects leave is refused.

19       In accordance with s.33R(6) the Commissioner of Police is now given a reasonable opportunity to consider the new evidence.  We will contact the parties to confirm a convenient re-listing date allowing that to occur and suiting the convenience of the parties and the Commission in order to finalise this appeal.