APPEAL AGAINST A DECISION OF THE COMMISSIONER OF POLICE TO TAKE REMOVAL ACTION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Gerald Jean-Noel Laurent

APPELLANT

-v-

Commissioner of Police

RESPONDENT

CORAM Chief Commissioner A R Beech

 Commissioner P E Scott

 Commissioner J L Harrison

HEARD Friday, 24 april 2009, friday, 17 July 2009, Tuesday, 11 August 2009, Wednesday, 16 September 2009

DELIVERED friday, 25 September 2009

FILE NO. APPL 135 OF 2008

CITATION NO. 2009 WAIRC 00839

CatchWords Removal of police officer - loss of confidence by  Commissioner of Police - application to tender new evidence - Police Act 1892 (WA) s 33R(3) and (4); s 33S - Industrial Relations Act 1979 (WA) s 33(1)(a)

Result Application dismissed

Representation (via telephone)

Appellant Mr G Laurent, in person

Respondent Ms K Jones, of counsel

Reasons for Decision – New evidence

1          These Reasons for Decision relate to Mr Laurent’s application for leave to tender new evidence.  The new evidence is both documentary and oral evidence from witnesses. 

Background

2          There have been a number of interlocutory applications made by Mr Laurent in the course of endeavouring to list his appeal for hearing.  When this matter was before the WAIRC on 11 August 2009 for a Speaking to the Minutes, the WAIRC granted Mr Laurent’s request for an adjournment of his appeal for one month.  This was in response to his submission to us that he wished to investigate appealing our previous interlocutory decisions and to seek legal advice.  Mr Laurent also mentioned as a reason for granting his request that he has another matter before the State Administrative Tribunal (SAT), although we have stated in an earlier decision that matters before another tribunal are not a matter for the WAIRC.  Nevertheless, we adjourned listing his appeal for one month on the understanding that if during that time Mr Laurent lodged an appeal, he would have the basis for applying for a further adjournment whilst that appeal was heard.  We stated that if Mr Laurent had not lodged an appeal during that time, the WAIRC would expect Mr Laurent to proceed with his appeal (Transcript 11August 2009 at page 8). 

3          On 21 August 2009, both Mr Laurent and the Commissioner of Police agreed, by email, to Mr Laurent’s appeal being listed for 1 and 2 October 2009. 

4          On 5 and 17 August, Mr Laurent advised the WAIRC, again by email, that he intended to forward new evidence and he requested a date for that purpose.  On 23 August, Mr Laurent asked whether a date had been set aside for the new evidence and he also stated that he intended to summons twenty witnesses. 

5          The WAIRC, having regard to the agreed hearing dates of 1 and 2 October 2009, estimated that if Mr Laurent was able to submit the new evidence to the WAIRC and to the Commissioner of Police by 9 September 2009, it would allow the WAIRC sufficient time to list this new application and deal with it without affecting the agreed hearing dates of 1 and 2 October 2009.  In reaching this conclusion, the WAIRC was aware that as early as March this year Mr Laurent advised the WAIRC of his intention to call witnesses; in emails dated 10 March, 12 March, 13 and 18 March, Mr Laurent announced his intention to call witnesses, stated that he was in consultation with them and, in at least one case, gave the witness’s available dates.  In reply to his advice to us, and at the direction of the WAIRC, the WAIRC’s Associate advised Mr Laurent of a procedure to progress this issue.  In the circumstances, the WAIRC concluded, that by 9 September 2009 Mr Laurent would be well prepared and able to meet the necessary requirements with respect to the evidence he wished to submit, the identity of the witnesses he seeks to call and the reasons for calling them.  

6          Both Mr Laurent and the Commissioner of Police indicated their availability to convene on 16 September 2009 in order to make submissions regarding Mr Laurent’s application to tender new evidence.  Both parties agreed that Mr Laurent would participate by conference telephone from Geraldton and the Commissioner of Police also would participate by conference telephone. 

7          However, on 26 August 2009, Mr Laurent advised the WAIRC that due to him having “the same matters” at the SAT and at the Equal Opportunity Commission (EOC), he would not be in a position to comply with the date of 9 September 2009 because the new evidence is extensive and therefore requires him to sit for a long period of time, thus exacerbating his back injury and other injuries and the short time frame will not allow him the opportunity to compile the information.  He also stated that he needed to seek legal advice.  He requested a further thirty days to compile his submissions. 

8          The WAIRC refused to grant the additional thirty days and in doing took into account the reasons set out above.  The WAIRC was of the view that Mr Laurent has been aware since at least March of this year of his intention to submit new evidence and to call witnesses and he has therefore had ample time to prepare.  Further, and as we have already indicated to Mr Laurent, we have an obligation to deal with his appeal and the fact that he has related, but different, matters before other tribunals is not of itself a valid reason for us to grant an extension of time.

9          On 9 September 2009 the WAIRC received a bundle of documents from Mr Laurent and on 11 September 2009, Mr Laurent made a formal application to adjourn the hearing dates of 1 and 2 October 2009.  Both he and the Commissioner of Police were advised that the application to adjourn would be dealt with on 16 September 2009 as well as Mr Laurent’s application to submit new evidence.  Mr Laurent was asked to forward by 15 September 2009 any documents that he wished to rely on in support of his application for an adjournment and a fifty-page facsimile was received from Mr Laurent on 15 September 2009.  The WAIRC also received, from the Commissioner of Police, an outline of submissions in response to Mr Laurent’s applications. 

The present application

10       The Police Act, 1892 (the Police Act) places considerable restrictions on the ability of either Mr Laurent or the Commissioner of Police to tender new evidence.  Section 33R(1) states:

(1) New evidence shall not be tendered to the WAIRC during a hearing of an appeal instituted under this Part unless the Commission grants leave under subsection (2) or (3).

11       These opening words of section 33R as set out above are prohibitory in that the emphasis is that new evidence shall not be tendered to the WAIRC during the hearing of an appeal.  It seems quite clear the Police Act intends that an appeal is heard and determined only on: 

• Any document or other material that was examined and taken into account by the Commissioner of Police in making a decision to take removal action;
• The notice of intention to remove;
• A written submission to the Commissioner of Police made by the appellant in response to the notice of intention to remove;
• The written notice of a decision to take removal action; and
• The notification of the removal from office.

12       Evidence other than of the above is “new evidence” (see section 33R(11)).  The WAIRC is given the power to grant leave, however it is subject to the restrictions set out in s 33R(3) and (4).  It is section 33R(3) that is of relevance to this application as it governs the circumstances by which the WAIRC may grant leave to Mr Laurent to tender new evidence.  In the absence of consent from the Commissioner of Police, the WAIRC will need to be satisfied in relation to each document submitted by Mr Laurent, and in relation to the evidence to be given by any witness summonsed by Mr Laurent, that:

• Mr Laurent is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information; or
• The new evidence might materially have affected the Commissioner of Police’s decision to take removal action; or
• It is in the interests of justice to do so.

It is not necessary that all three of the above need apply to any particular piece of new evidence; it is sufficient if any one of the three applies.

13       There is a further test.  Even if the new evidence Mr Laurent seeks to submit meets one of the three tests above, section 33R(4) states that in the exercise of the WAIRC’s discretion under subsection 33R(3), the WAIRC shall have regard to:

• Whether or not Mr Laurent was aware of the substance of the new evidence; and
• Whether or not the substance of the new evidence was contained in a document to which Mr Laurent had reasonable access,

before his removal from office.

14       It is apparent from the wording of section 33R(3) and (4) that the WAIRC is only able to assess whether leave should be granted if it is aware of the nature of the new evidence to assess its substance.  If it is unable to see the new evidence and assess its substance, it is not able to grant leave to tender new evidence.

15       Where the new evidence which is sought to be tendered is contained in a document, the WAIRC will be able to assess its substance.  Where the evidence sought to be tendered is the oral evidence of a witness, the WAIRC will need to be made aware of the substance of the witness’s evidence in order to determine whether or not to admit it.  This can be done by the witness preparing a statement or affidavit (see Allan Raymond Carlyon v Commissioner of Police (2004) 84 WAIG 1397).

Submissions

16       Mr Laurent’s submissions to us initially were to the effect that he is still suffering injury and that he is “petrified” to seek medical advice in Geraldton because the Commissioner of Police has prejudiced the medical practices there.  He stated that the list of witnesses he has submitted is 80% of the persons he actually wishes to summons.  He informed us of a recent injury he has sustained.  He referred to there being collusion and coercion in relation to the Northbridge incident and the detriment it has caused him.  He states that the injuries received whilst he was a police officer were caused by the Commissioner of Police.

17       Mr Laurent also addressed what he sees as the relevance of the submissions he has made to the SAT and to the EOC to his appeal.  He also addressed the list of witnesses he has submitted.  We refer later to his submissions when we consider this list of witnesses.

18       The Commissioner of Police’s submissions were presented in writing.  In addition, the Commissioner’s representative responded to Mr Laurent’s submissions.  The written submissions very helpfully categorised the various documents submitted by Mr Laurent from the Commissioner of Police’s point of view.  The Commissioner does not consent to any of the documents being accepted as new evidence and points out that Mr Laurent has not complied with the directions given by the WAIRC for tendering the documents.  The Commissioner also addressed how the requirements for the tendering of new evidence could not be complied with in relation to each of the documents Mr Laurent has submitted.

The documents submitted by Mr Laurent

19       These documents submitted by Mr Laurent on 9 September 2009 may be dealt with in groups.  The first group contains the following:

(1) A document headed “In the State Administrative Tribunal - Applicant’s Statement of Issues, Facts and Contentions Harassment and Victimisation” signed by Mr Laurent on 17 March 2009.

(2) A document headed “In the State Administrative Tribunal of Western Australia - Applicants’ Outline of Submissions in Support of Application to not Strike Out” and dated 12 January 2009.  This document has been previously sent to us by Mr Laurent as an attachment to an email dated 18 May 2009.

(3) A document headed “In the State Administrative Tribunal - Applicant’s Statement of Issues, Facts and Contentions” and dated (on its second-last page) 3 March 2009.  This document was previously sent to us by Mr Laurent as an attachment to an email dated 24 April 2009.

(4) A document headed “In the State Administrative Tribunal of Western Australia -Applicants’ Outline Of Submissions in Support of not Strike Out Application” and dated 7 September 2009.

(5) A letter from Mr Laurent to the EOC dated 7 September 2009.

(6) A document headed “Gerald Jean-Noel Laurent – Applicant” and listing Karl J O’Callaghan and fifteen other persons as respondents, unsigned and undated but which by its opening paragraphs is a submission regarding “Further Discrimination and Victimisation using the provision of the Equal Opportunity Act” and requesting that it be added to a previous complaint submitted sometime in 2007 at the EOC.

(7) A document headed “Commissioner Yvonne Henderson – Equal Opportunity Commission - Applicant’s Grounds of Discrimisation (sic) and Victimisation” and dated 2 June 2009.

(8) A document headed “Victimisation by WA Police – Rash Impairment” and states that it is related to matters submitted to the EOC and dated 21 July 2008.

20       These documents are what they are described to be, namely, submissions made either to the SAT or the EOC.  They are similar in style and in substance to the document of 2 June 2009 which Mr Laurent wished to add to his grounds of appeal in earlier proceedings before the WAIRC ((2009) 89 WAIG 934; [2009] WAIRC 00515; 3 August 2009 at [8]).  That document was headed “Appellant’s Issues, Facts And Contention For Dismissal Of Employment” and consisted of questions, allegations and statements and submissions.   We said of that document on that occasion at paragraph [53]:

It contains statements of facts, or perhaps what Mr Laurent may believe to be facts, but is not proof of any of those things.

21       That same conclusion applies to each of the eight documents referred to above; they each contain a number of “questions” or identify “issues” or make allegations or state claims but for the purposes of this appeal, they are not evidence of the facts or allegations referred to within them.

22       We point out to Mr Laurent that although he has evidently made a claim or claims to the SAT or to the EOC arising from his time as a police officer, neither of those bodies is dealing with his appeal under s 33P of the Police Act that the decision of the Commissioner of Police to take removal action relating to him was harsh, oppressive or unfair.  The fact that Mr Laurent has made those claims, and that he is making, or has made submissions to those other bodies in support of those claims, these are not relevant to the WAIRC’s consideration of his appeal under Part IIB Division 3 of the Police Act.

23       They are not relevant because of the very limited nature of an appeal under the Police Act which obliges the WAIRC to hear and determine Mr Laurent’s appeal almost entirely on the documents or other material that were examined and taken into account by the Commissioner of Police in making the decision to remove Mr Laurent, the notice of intention to remove, Mr Laurent’s written submission in response to the notice of intention to remove, the written notice of the decision to remove him and the notification of his removal from office.  They also are not relevant because the WAIRC can only deal with Mr Laurent’s appeal under the Police Act against his removal; the WAIRC cannot investigate under s 33P of the Police Act or deal with a claim that Mr Laurent has an “impairment within the meaning of s 4 of the Equal Opportunity Act, 1984” or was “victimised” or “discriminated against” or was subjected to “injuries”.

24       The second group of documents contains the following:

(1) An untitled and undated document commencing with the words “Hi Linda, Please refer to the attached email sent to Karen JONES for the initial information.”

 There is no explanation who “Linda” is or how this document meets the tests in section 33R(3) and (4) for the WAIRC to allow it to be accepted as “new evidence”.  It appears to be simply Mr Laurent’s account of a meeting.

(2) Two documents, one commencing with the words “My name is Jayne Shepherd-LAURENT,” unsigned and undated and a letter headed “to whom it may concern, from Jayne Shepherd-Laurent,” undated.

 These two documents will be considered later when we deal with Mr Laurent’s request that the Registrar be directed by us to summons witnesses.  This is because Jayne Shepherd-Laurent is a person in the list of names.

(3) Two documents directed to Adam Gailey, one undated and the other dated 2 January 2008.  Mr Laurent submits that these documents show the way the police behaved at Northbridge.  However, the contents of the letters are merely Mr Laurent’s allegation of the way police behaved at Northbridge – they are not evidence, nor proof, that the police behaved in the way he describes.  The two documents are evidence only of the fact that letters were written by Mr Laurent to Mr Gailey, and nothing more. 

(4) A unsigned letter from Professor Kurt Gebauer, a specialist in the field of industrial dermatology.  The correspondence is dated 8 September 2009 (or perhaps 10 September 2009 if the date has been auto-updated by the printer that printed it).  The letter discusses Professor Gebauer’s availability to be a witness, including his feeling that “there is a strong dermatological case.”  However, the letter on its own is merely evidence of Professor Gebauer’s availability if he was to be called as a witness.  According to the Commissioner of Police’s written submission at page 5, this letter was actually obtained by Mr Laurent for another purpose, namely following an order from the SAT that Mr Laurent file a list of proposed witnesses in the matter before it.

25       Documents 1, 3 and 4 do not satisfy the tests in s 33R(3) and (4) of the Police Act: they do not appear to us to be capable of showing that the Commissioner of Police has acted upon wrong or mistaken information or that they might have materially affected the Commissioner of Police’s decision to take removal action against Mr Laurent.  This is, in part, because they all seem to be documents occurring after Mr Laurent’s removal.   

26       The third category of documents contains the document headed “In the Western Australian Industrial Commission of Western Australia” and is dated 9 September 2009.  This document commences by setting out s 33R of the Police Act with some highlighting and comment by Mr Laurent.  On page 4, under the heading “Issues,” Mr Laurent states that he is disappointed that the WAIRC has given no consideration to the fact that he is suffering an injury and has set a short time frame for Mr Laurent to lodge such a large response.  Then follows twelve paragraphs which are effectively submissions by Mr Laurent.  They are not new evidence.  They appear to be either “issues” (as Mr Laurent has identified them) or they are submissions of either what the WAIRC must or must not do, what Mr Laurent believes that he is able to either do or not do and they conclude with Mr Laurent stating, or in his submission re-stating, the grounds of his appeal. 

27       For similar reasons to those we have already given, we consider that the contents of pages 4 and 5 are unable to meet the requirements of s 33R(3) or (4) of the Police Act.  They are submissions but they are not evidence.

28       We wish to observe that amongst the submissions made by Mr Laurent is one at point 6 on page 4.  This states that if Mr Laurent gave us more information the Commissioner of Police will interfere with the evidence in such a way that its forensic value will be dissipated.  It states that it is evident that the Commissioner of Police has instructed witnesses not to give evidence in order to “mask criminality demonstrating strong evidence that the [Commissioner of Police] is conspiring its employers (sic) to mask criminality at all costs to protect the [Commissioner of Police’s] interests.”  Mr Laurent states that “[t]hese allegations are before the SAT and should be allowed to conclude at the WAIRC in the interest of justice without any interference”.  This suggests that Mr Laurent does understand that there is a difference between the claim or claims he has made to the SAT and the appeal he has made to the WAIRC against his removal.

Witnesses

29       The remainder of this document is headed “Witnesses” and contains a list of 96 names.  Five names are repeated.  In most, but not all, cases the names are followed by an address and a statement which sets out the reasons why Mr Laurent wishes to summons them to give evidence in his appeal.

30       The Police Act provides for witnesses to be called to give evidence in an appeal under Part IIB Division 3 of that Act because s 33S specifically applies to those appeals.  Section 33(1)(a) of the Industrial Relations Act, 1979 provides that the Registrar shall, on the application of any party, or by direction of the WAIRC, issue a summons in the prescribed form to any person to appear and give evidence before the WAIRC.  That power is constrained for the purposes of an appeal under the Police Act by s 33S as follows:

A summons shall not be issued under section 33(1)(a) to the Governor.

 A summons may be issued to the Commissioner of Police or the Minister but only at the direction of a Commissioner appointed under the Industrial Relations Act 1979 if that Commissioner is satisfied that there are extraordinary grounds for doing so.

A summons may not be issued to any other person except at the direction of a Commissioner.

31       Mr Laurent therefore needs to seek a direction from the WAIRC that the Registrar issue a summons, or in this case, approximately 96 summonses, for persons to give evidence in his appeal.  Such evidence will be new evidence, and before the WAIRC can be satisfied that a direction should issue to the Registrar, the WAIRC will need to be made aware of the substance of the evidence which the witness is to give.  In addition, where the request for a direction is for the purpose of issuing a summons to the Commissioner of Police or the Minister, Mr Laurent will need to satisfy the WAIRC that there are extraordinary grounds for doing so.

32       For that reason, when Mr Laurent informed the WAIRC on 23 August 2009 that he intended to summons 20 witnesses and in order to assist him, in a response to him dated 25 August 2009 he was informed of the provisions of s 33S of the Police Act and directed as follows:

 To enable the WAIRC to consider whether any summons should be issued, Mr Laurent is to forward to the WAIRC and to the Commissioner of Police in writing:

 (i) the name and address for summons of each of the people he wishes to be summonsed; and 

 (ii) reasons in writing why each of them ought to be summonsed; and

 (iii) identification of the ground/s of appeal to which each witness relates.

We note that in Mr Laurent’s list of 96 names there is no reference to a ground or grounds of appeal for each name.  Putting that to one side, we expected that the requirement for Mr Laurent to give the reasons in writing why each person ought to be summonsed would make us aware of the substance of the evidence each witness is to give.  

33       The first two persons in Mr Laurent’s list of persons he wishes to summons are the Minister and the Commissioner of Police.  In regards to the Minister, Mr Laurent gives as his reason for wanting to have the Minister give evidence the following:

“seeking clarification to explain if the Police Act allows the Commissioner of Police to use criminality to terminate my employment and other matters.”

There are a number of things which might be said about the reason for Mr Laurent summonsing the Minister, however, it is appropriate that we restrict ourselves to making the following comments.  There is nothing in Mr Laurent’s reason which would allow the WAIRC to make an assessment of the substance of what the Minister’s evidence would be if he was summonsed to give evidence; Mr Laurent’s reason only gives us an indication of the issue or issues Mr Laurent would raise with the Minister.  The WAIRC could only direct the Registrar under s 33S of the Police Act to issue a summons to a person to give evidence if it is likely that the person’s evidence will satisfy s 33R(3) and (4) and the WAIRC cannot make that judgment if it has no indication of what that evidence is likely to be.  Further, in the case of this request directed to the Minister, there is nothing in Mr Laurent’s reason which addresses the additional requirement on the WAIRC to find that there are extraordinary grounds for directing the Registrar to issue a summons to the Minister.

34       The same comments may be said in regards to the request for a summons to be given to the Commissioner of Police.  The reasons given by Mr Laurent in support of us doing so, which consist of 25 or so numbered paragraphs on pages 7, 8, 9 and 10 of this document, some which have many subparagraphs, are all allegations about which Mr Laurent wishes to question the Commissioner of Police.  Some of Mr Laurent’s sentences are vague and their meaning is not clear and some of them contain serious allegations of conspiracy and impropriety directed against the Commissioner of Police himself, however none of the allegations can be considered evidence relevant to Mr Laurent’s appeal.

35       Additionally, the comments we make above regarding Mr Laurent’s wish to summons the Minister are equally relevant to his request to summons the Commissioner of Police.  There nothing in Mr Laurent’s 25 or so numbered reasons which would allow the WAIRC to make an assessment of the substance of what the Commissioner’s evidence would be if he was summonsed to give evidence and when we raised this issue with Mr Laurent during the hearing he replied that we did know what the Commissioner’s evidence would be because it is already in a letter written to Mr Laurent.  Whilst we are not sure to what letter Mr Laurent is referring, if he is correct then there is no need for him to call the Commissioner of Police to give that evidence because the evidence is contained in that letter.  The proper way for Mr Laurent to ensure the evidence is drawn to our attention is to identify it if it is already in the volumes of documents we have before us, or to seek to tender the letter as new evidence.

36       Furthermore, there is nothing from Mr Laurent which addresses the requirement on the WAIRC to find that there are extraordinary grounds for directing the Registrar to issue a summons for the Commissioner of Police to give evidence.  Indeed, it appears that Mr Laurent wishes to use his appeal under s 33P of the Police Act to make allegations against the Commissioner of Police.

37       In regards to each of the other witnesses, with the exception of Jayne Shepherd-Laurent, there is nothing in Mr Laurent’s reasons as to why he wishes them to be summonsed which would allow the WAIRC to make an assessment of the substance of what their evidence would be if they were to be summonsed to give evidence in his appeal.   The reasons in some cases describe the person and refer to an issue.  For example, in the cases of the persons numbered 5, 10, 22, 28 (second occurrence), 30 (second occurrence), 36, 38, 45, 49, 79, 80, 82, 87 and 94, the reasons indicate they were either witnesses to an event or occurrence, or persons to whom Mr Laurent had told things, but there is nothing to indicate what their evidence is likely to be.

38       In the significant majority of cases, the reasons given by Mr Laurent are allegations against those persons variously of conspiracy, misconduct, interference with Mr Laurent’s health or causing his ill-health or injury, or of being influenced by the Commissioner of Police.  In those cases, not only is there nothing to indicate what their evidence is likely to be but the manner of the reasons suggests that the purpose of calling them is for Mr Laurent to use these proceedings to pursue his own claims against them.  As we have already stated above, an appeal under s 33P of the Police Act is an appeal of a very limited nature and it is not a process whereby Mr Laurent may pursue his own claims against these persons.  A number of other persons in Mr Laurent’s list appear to be medical practitioners or medical staff or persons associated with maintaining medical records and it is unclear why Mr Laurent wishes to summons them to give evidence.  In most cases, there is insufficient information in Mr Laurent’s reasons to indicate just what the purpose is of calling the person as a witness, and there is nothing in Mr Laurent’s reasons which indicates what their evidence is likely to be. 

39       In relation to the person numbered 87, Mr Dekker, Mr Laurent gives the following reason for summonsing him:

“Independent witness that the Respondent dismissed important forensic evidentiary value on two separate occasions to falsely prosecute.”

This is a meaningless sentence.  Even if we assume that Mr Laurent is attempting to say that the Commissioner of Police dismissed important evidence given by Mr Dekker on two occasions, we have no idea to what Mr Laurent is referring.

40       We are aware from our own reading of the material before us that this person is mentioned in Mr Laurent’s Notice of Appeal.  Mr Laurent says:

“I must point out that Fisher’s abusive language to move on was also directed towards Dekker and Adam Gailey which can be testified by Dekker and Gailey.”

41       We are also aware of the record of interview of Mr Dekker in Vol 3 tab 12 but that evidence is already before us.  It therefore appears to us that the purpose which Mr Laurent seeks to achieve is likely to be to produce evidence in this appeal that abusive language was directed to Mr Dekker by Acting Senior Sergeant Fisher.  This does not seem to us to fit with the reason now given by Mr Laurent for requesting that we direct the Registrar to issue a summons to Mr Dekker.  Even if we were inclined to issue a summons, Mr Laurent did not supply an address for service for Mr Dekker which means that we are not able to direct the Registrar to issue him a summons.  It is not up to the WAIRC to make assumptions favourable to Mr Laurent’s case.  It is up to Mr Laurent to satisfy the WAIRC that it should direct the Registrar to issue summonses to each of the persons he has named and in this instance he has not done so and we are not provided with any basis by Mr Laurent which could allow us under the Police Act to direct the Registrar to issue a summons for him to give evidence in this appeal.

42       Mr Laurent submitted to us that the Commissioner of Police has “stopped a number of witnesses” from giving evidence and he claimed that “they” are not allowed to speak to him.  We have only Mr Laurent’s assertion that this is the case and we observe that even if this was so, Mr Laurent has not given any indication of what the evidence would be of those persons whom he wishes to summons who are not serving police officers.

43       We have referred to an exception in the case of Jayne Shepherd-Laurent who is Mr Laurent’s spouse, and this is because in her case, and only in her case, Mr Laurent has supplied to us the two documents we referred to above which we consider does allow the WAIRC to make an assessment of the substance of what her evidence would be if she was to be summonsed to give evidence in his appeal.  We add that Mr Laurent did not provide these two documents on this basis; they were merely part of the bundle of documents which he submitted to the WAIRC as new evidence and he has not linked those two documents to the fact that Mrs Shepherd-Laurent is number 50 on the list of his “witnesses” and the reason given by him in that list for wanting to summons her does not refer to those two documents.  Nevertheless, we consider it appropriate to consider Mr Laurent’s request that his spouse be summonsed in the context of these two documents indicating what the substance of her evidence would be.

44       The first of the two documents, after an introductory paragraph, carries the heading “HARRASMENT” (sic).  It describes a visit to the family home by Commander Gere and Inspector Travis on 19 November 2008.  It describes Mrs Shepherd-Laurent’s reaction to the news that they would have to move out of their GEHA house following the visit.  It states her concern at what she sees as harassment by the WA Police and certain officers within it.  The second document refers specifically to 28 September 2008 and describes Mr Laurent becoming ill, being taken to hospital and then being bedridden for a week afterwards.  There is specific reference to the exacerbation of Mr Laurent’s rash injury. 

45       Assuming that these documents contain the potential evidence which Mrs Shepherd-Laurent would give if she was called to give evidence, would it be admissible under s 33R(3) and (4) of the Police Act as new evidence?   In other words, can the WAIRC be satisfied that this evidence is capable of showing that the Commissioner of Police has acted upon wrong or mistaken information, or might have materially affected the Commissioner of Police’s decision to remove Mr Laurent, or that it is in the interest of justice to grant leave to tender it?  Mr Laurent has not made any submission to us about these matters.

46       The reasons the Commissioner of Police acted as he did, and his decision to remove Mr Laurent, are set out in the Notice of Intention to Remove (Vol 1 tab 7) and the letter of removal (Vol 1 tab 3) and the issues referred to in the Notice of Intention to Remove are expanded upon in the Summary of Investigation (Vol 1 doc 9).  Mrs Shepherd-Laurent’s potential evidence from the first document refers to an event on 19 November 2008 which is one day after the Commissioner of Police wrote to Mr Laurent to tell him of his decision to remove Mr Laurent: see Vol 1 tab 3.  That potential evidence does not refer to any of the issues relied upon by the Commissioner of Police and does not purport to do so; rather, harassment is a specific matter which Mr Laurent refers to in the document directed to the SAT (Document 1 in the first group of documents referred to earlier in these reasons). 

47       As Mr Laurent has pointed out to us on another occasion, section 33R(3)(b)(iii) refers to the interests of justice as a reason to grant leave to tender new evidence.  Those words should be given their ordinary meaning, however they must be read within their context.  These proceedings are an appeal against Mr Laurent’s removal.  It will not be in the interests of justice in these proceedings to give leave to tender new evidence which is not directed to the appeal.  We are of the view that evidence about an event which occurred after the removal of Mr Laurent will not be directed to the appeal against Mr Laurent’s removal.  We note that Mr Laurent’s response to the Notice of Intention to Remove (Vol 1 tab 6) refers at page 4 to “[t]hreats by Superintendent Gere” however as this response is dated 6 October 2008 it cannot refer to an event which took place on 19 November 2008 to which the potential evidence is directed.

48       Mrs Shepherd-Laurent’s potential evidence from the second document refers to Mr Laurent’s ill-health on 28 September 2008 and in the week after that date.  The Notice of Intention to Remove (Vol 1 tab 7) is dated 3 September 2008.  We conclude that the reasons the Commissioner of Police acted as he did, and his decision to remove Mr Laurent, are necessarily based upon events and issues occurring prior to 3 September 2008.  Accordingly, Mrs Shepherd-Laurent’s potential evidence from the second document cannot be relevant to the reasons the Commissioner of Police formed the intention to remove Mr Laurent.  The most that can be said of Mrs Shepherd-Laurent’s potential evidence from the second document is that in the week prior to Mr Laurent submitting his Response to the Notice of Intention to Remove on 6 October 2008 (Vol 1 tab 5 attachment 1) he was in ill-health.  We do not consider that potential evidence can satisfy the tests in s 33R(3).

49       For all of the above reasons, we find that Mr Laurent has not shown that the documents he submitted can be new evidence.  He also has not shown that the WAIRC should direct the Registrar to issue a summons, or approximately 96 summonses, to the persons listed by Mr Laurent to give evidence in his appeal.  Accordingly, Mr Laurent’s application for leave to tender new evidence will be dismissed.

50      Order accordingly.