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

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES AM

APPELLANT

-v-

Commissioner of Police

RESPONDENT

CORAM Chief Commissioner A R Beech

 Commissioner J L Harrison

 Commissioner S M Mayman

HEARD Monday, 4 May 2009, Wednesday, 12 August 2009, Thursday, 8 October 2009, Thursday, 12 November 2009

DELIVERED friday, 4 December 2009

FILE NO. APPL 8 OF 2008

CITATION NO. 2009 WAIRC 01285

CatchWords Removal of Police Officer - Loss of confidence by Commissioner of Police - Officer convicted of criminal offence - Conviction overturned on appeal - Whether removal harsh, oppressive or unfair - Police Act 1892 (WA) s 33L(1), (5)(a), s 33P, s 33Q(4), s 33R, s 33R(8), s 33R(10)(b), s 33Us, s 33W, s 33XU

Result Removal was harsh, oppressive or unfair and removal from office is and is to be taken to have always been of no effect

Representation 

Appellant Ms K Vernon, of counsel

Respondent Mr R Andretich, of counsel

Reasons for Decision

BEECH CC:

1         This is an appeal pursuant to s 33P of the Police Act 1892 (“the Police Act”).  By that Act a member of the Police Force who has been removed from office may appeal on the ground that the decision of the Commissioner of Police to take removal action relating to the member was harsh, oppressive or unfair. 

Background

2         On 15 May 2006, the Commissioner of Police issued a Notice of Intention to Remove AM from the Police Force.  The Notice stated that the Commissioner of Police had lost confidence in AM’s suitability having regard to the matter set out in an attached Summary of Investigation, as well as statements obtained, which suggested that between 1 September 2001 and 31 October 2001 at Kalgoorlie, he sexually penetrated a person without her consent in a circumstance of aggravation in that at the time she was over the age of 13 years and under the age of 16 years (Tab 6 of Commissioner of Police’s Documents).  AM had been a member of the Police Force for a period of approximately 12 months prior to being served with the Notice of Intention to Remove and at the time of the alleged incident giving rise to the loss of confidence nomination he was not a member of the Police Force. 

3         AM’s Response to the Commissioner’s Loss of Confidence notice is dated 7 June 2006 (Tab 5).  He emphatically denied the allegation and noted that he had been charged with a criminal offence arising from the alleged incident, that he had entered a plea of not guilty and continued to maintain his innocence.  His submission was that the allegation had no substance or foundation and would be defended before a jury which would assess the evidence which is an advantage that the Commissioner of Police did not have.  Further, the Commissioner of Police’s loss of confidence was based upon untested statements of individuals.  AM submitted (at [23]) that bearing in mind the presumption of innocence and the fact that it is equally in the public interest that the Police Force be seen to uphold such fundamental principles, public confidence is best served by the loss of confidence process being held in abeyance pending the disposition of the criminal charge. 

4         On 31 July 2006, the Acting Commissioner of Police advised AM that he was prepared not to take removal action pending the outcome of the criminal trial in relation to the charges preferred against him under s 326 of the Criminal Code (Tab 2).  AM was then stood down on full pay pending the outcome. 

5         On 12 February 2008, following a trial in the District Court of Western Australia before a Judge alone, AM was convicted of the charge of sexual penetration without consent of a child over the age of 13 years and under the age of 16 years ([2008] WADC 20) and was imprisoned.  On that same day, the Commissioner of Police informed AM that, further to the Notice of Intention to Remove of 17 May 2006, the Minister for Police approved his removal from the Police Force on 12 February 2008 (Tab 1).

6         AM appealed against his conviction and on 6 March 2008, AM also appealed to the WAIRC against his removal.  As he had appealed against his conviction, and pursuant to s 33T of the Police Act, his appeal to the WAIRC was adjourned pending the outcome of the appeal against his conviction ((2008) 88 WAIG 203; 2299 and (2009) 89 WAIG 380).  On 26 September 2008, the Court of Appeal (WA) allowed the appeal and ordered a retrial ([2008] WASCA 196).  Subsequently the Director of Public Prosecutions (“DPP”) discontinued the proceedings against AM with the result that there was not, and will not be, a retrial.

7         For the purposes of his appeal to the WAIRC, leave was granted at a hearing on 12 August 2009 to AM to tender as new evidence pursuant to s 33R of the Police Act a copy of the judgment of the Court of Appeal and a copy of the DPP’s notice of the discontinuance of proceedings against AM.  As a consequence of the tendering of new evidence, and pursuant to s 33R(8) of the Police Act, on 11 September 2009 the Commissioner of Police filed reformulated reasons for the removal of AM from the Police Force and also tendered as new evidence a copy of the decision of the District Court of Western Australia.    

The Appeal -

The Case Presented by the Commissioner of Police

8         The Commissioner of Police’s reformulated reasons for removing AM note (at [5]) that he had been prepared to accede to AM’s request to defer a final decision in his case principally because the allegation was of an extremely serious nature and all of the evidence was at that time untested.  As AM had been convicted, he removed him from the Police Force and the mere fact that he had been convicted, together with the fact of his imprisonment, made this necessary and he saw no need to revisit his reasons for requiring AM to show cause prior to removing him from office (at [7]). 

9         The Commissioner of Police stated that as AM’s conviction has now been quashed it is no longer appropriate to rely solely on the fact of the conviction as providing a sufficient basis for his removal and he considered whether on the material available to him he had cause to lose confidence in AM’s suitability to remain as a Police Officer.  The Commissioner referred to the District Court trial noting that the District Court Judge accepted the complainant’s evidence (i.e. the person allegedly sexually penetrated) as truthful and reliable, and did not consider AM’s evidence to be persuasive and that “it did not have a ring of truth about it”.  The Commissioner of Police referred to what he described as the long standing principle of a trial judge enjoying the advantage of hearing and observing the demeanour of witnesses in assessing their credibility. 

10      The Commissioner of Police noted that AM’s appeal to the Court of Appeal was on four grounds.  The first challenged the admissibility of TL’s evidence; the second challenged the weight accorded to TL’s evidence by the District Court Judge; the third challenged the sufficiency of the Longman direction (Longman v. The Queen (1989) 168 CLR 79) given by the judge while the fourth ground of appeal contended that the verdict was not reasonably open and was unsafe and unsatisfactory.  The Commissioner noted that AM had been successful on the third ground of appeal only.  The Commissioner of Police considered that, having regard to the nature of the power afforded to him to remove a Police Officer in whom he has lost confidence, even if the District Court Judge had given herself the appropriate Longman direction and had been unable to satisfy herself as to AM’s guilt, it would still be open to the Commissioner of Police to have regard to the Judge’s observations about AM’s evidence and that of the complainant.  Given the advantage the trial judge had in hearing and observing the demeanour of witnesses and assessing their credibility, the Commissioner of Police believed that the District Court Judge’s observations regarding the truthfulness of the complainant’s evidence, in contrast to the unpersuasive nature of AM’s evidence was sufficiently compelling to give rise to a significant doubt in the mind of the Commissioner of Police as to the suitability of AM to be a Police Officer having regard to his conduct, honesty and integrity (at [21]).

11      The Commissioner of Police stated that the fact that all three Judges of the Court of Appeal dismissed the fourth ground of appeal which related to the verdict of guilty not being reasonably open to the trial judge, and instead considered that there was ample evidence to support the verdict of guilty, thus fortifying his doubts about the suitability of AM to remain as a Police Officer.  The Commissioner of Police set out (at [22]) each of the comments of the trial judges to which he was there referring.

12      The Commissioner of Police maintains that it is enough that in good faith he considers that the officer is not fit to occupy the office of constable or that there was real doubt about the officer’s suitability to be a member of the Police Force (at [23]).  He concluded that having regard to the observations of the District Court Judge and the decision of the Court of Appeal on the fourth ground of appeal, he was satisfied that there was sufficient doubt about AM’s suitability to be a Police Officer having regard to his honesty, integrity and conduct. 

13      The reformulated reasons (at [25]) states that the Commissioner of Police relies upon the Summary of Facts and Issues of Law, and the matters set out in reply, which are in his response of 30 June 2009.  For completeness, that response refers to s 33W of the Police Act which provides:

33W.  Effect of charge for an offence or an acquittal

  To avoid doubt, it is declared that if a member —

 (a) has been charged with committing an offence; or

 (b) has been acquitted of an offence,

  that charge, the existence of proceedings relating to that charge or the acquittal does not preclude the Commissioner of Police from taking any action under this Part in relation to any matter, act or omission relating to or being an element of the offence.

14      In the submissions made in support of the reformulated reasons, Mr Andretich, who appeared for the Commissioner of Police, maintained that not only was the Court of Appeal unanimous in rejecting the fourth ground of appeal that the District Court Judge’s verdict on the evidence was not available and unsafe, but there was also no criticism of the District Court Judge’s determinations as to the credit of witnesses.  Therefore, the Commissioner of Police was entitled to find that there was sufficient credible evidence to reasonably suspect, or find that the offence was committed by AM such that he no longer had confidence in him serving as a Police Officer.

The Case Presented by AM

15      AM’s amended grounds of appeal are as follows:

“1. The Notice of Removal dated 12 February 2008 and served on 13 February 2008 provides no detail of why removal action was effected, however it is assumed the only reason was the Appellant’s conviction for the offence of sexual penetration without consent in the District Court of Western Australia on 12 February 2008. 

2. As at the date of the Removal, the disposition of the criminal charge preferred against the Appellant had not been finally determined.

3. When the Court of Appeal quashed the Appellant’s conviction and ordered a retrial on 26 September 2008, and the Director of Public Prosecutions subsequently discontinued the charge on 5 February 2009, the reason for the Removal on the basis of criminal conviction alone became invalid.”

16      In support of Ground 1, AM claims that as the Commissioner of Police’s Notice of 12 February 2008 removing him from office (Tab 1) does not give reasons for the decision to remove him it is a breach of s 33L(5)(a) of the Police Act which says:

(a.) the notice under subsection (3)(b) shall advise the member of the reasons for the decision;

17      Ms Vernon submitted that the requirement to give reasons is a fundamental component of natural justice and the failure of the Commissioner of Police to do so is therefore a substantive breach.  This is significant because the provisions of s 33X of the Police Act would only excuse this failure on the part of the Commissioner of Police if the failure to give reasons is not substantive.

18      In relation to Ground 2, it is argued on behalf of AM, that although s 33W means that the Commissioner of Police is not precluded from acting to remove AM, he had decided to wait for the outcome of the criminal trial in relation to the charges preferred against AM.   Referring to the wording in s 33T of the Police Act, Ms Vernon submitted that a criminal charge is not “finally determined” until there has been a finding of a court that is no longer subject to a statutory right of appeal.  The criminal charge had not been finally determined at the time the removal took effect because the time for AM to lodge an appeal against his conviction had not expired and in that respect, the action of the Commissioner of Police deprived AM of his right to be able to demonstrate his innocence to the Commissioner of Police.

19      In relation to Ground 3, Ms Vernon submitted that the Commissioner of Police’s reliance on the decision of the Court of Appeal that the appeal would not be upheld on the fourth ground cannot be elevated above the ultimate finding of the Court of Appeal which overturned AM’s conviction.  Ms Vernon submitted that the Commissioner of Police had relied upon selected sections of the judgments, however a reading of the reasons of the three Judges show that the facts which constituted the foundation for the conviction had ceased to exist.  Ms Vernon referred in detail to the comments of the three Judges of the Court of Appeal which led them to allowing the appeal. 

20      On behalf of AM, Ms Vernon submitted that the Court of Appeal could have chosen not to overturn the conviction and could still have dismissed the appeal if it considered that no substantial miscarriage of justice had occurred.  Even though the Court of Appeal ordered a retrial, AM’s conviction does not stand which means that the facts which formed the foundation for the conviction were therefore overturned and the retrial would mean that there would have to be a redetermination of the facts, as that redetermination of the facts may have led to a conviction or it may have resulted in an acquittal.  This gives back to AM the presumption of innocence until such time as a retrial reaches a conclusion that he is guilty.  In essence the Court of Appeal had set aside the conviction of AM and as a result this set aside everything that resulted in AM’s conviction, and the overturning of the conviction nullified the findings of the District Court Judge regarding the credibility of the complainant and of the witness and of AM.  Specifically, the District Court Judge found that AM was guilty based in part upon her observations of the witnesses and findings as to credibility.  The ordering of a retrial would not mean that it would be heard before the same Judge. 

The Commissioner of Police’s Response

21      On behalf of the Commissioner of Police, Mr Andretich submitted that in relation to the Notice of Removal (Tab 1) and whether it contained the reasons for the removal, circumstances had moved beyond it with the reformulated reasons dated 11 September 2009.  The Commissioner had deferred his consideration of the removal but acted when AM was convicted, and AM’s conviction demonstrated his unsuitability to remain within the Police Force.  The trial process had then been completed and he submitted that AM had not suffered any prejudice as a result of his removal at that time.  Furthermore, there was no obligation on the Commissioner of Police to wait for the expiry of the appeal period.

22      Mr Andretich further submitted that the substantial matter was whether there was sufficient material before the Commissioner of Police to allow him to reach the decision which he reached.  In Mr Andretich’s submission, the judgments of the District Court Judge and the Appeal Justices formed the material which the Commissioner of Police could have, and should have, taken into account in the decision he reached, and the material and the judgments upon which the Commissioner of Police relied are not dissimilar to the material contained in the summary of investigation.  His reliance on the Court of Appeal judgment was informed by the comments of caution made by the Judges.  The Commissioner could be heartened that the evidence before him had been tested and had been pronounced upon by a judicial officer.     

Consideration – Ground 1

23      In relation to Ground 1 of the Appeal, in my view the Notice of Removal given to AM on 12 February 2008 (Tab 1) does not comply with s 33L(5) of the Police Act.  Section 33L(5) requires the Notice of Removal to advise the reasons for the decision to take removal action.  The Notice given to AM commences with the words “Further to the Notice of Intention to Remove from the Police Force of Western Australia dated 17 May 2006, …” but provides no reasons for the decision to take removal action.  In the absence of words such as “For the reasons set out in the Notice of Intention to Remove…”, the reasons for the Commissioner’s removal need to be assumed to be the same as the reasons set out in the Notice of Intention to Remove, even if it be an assumption made with confidence. 

24      The significant point is that a member of the Police Force who has been removed should not have to assume what the reasons are for his or her removal.  They may not be the same as the reasons set out in the Notice of Intention to Remove.  The Notice of Intention to Remove may, depending on the circumstances, contain a number of reasons why the Commissioner has lost confidence in an officer’s suitability to remain a member of the Police Force.  Pursuant to s 33L(2) of the Police Act, the officer may within 21 days make a written submission to the Commissioner of Police in respect of those reasons.  Pursuant to s 33L(3) the Commissioner of Police is then to decide whether or not to take removal action and in so doing take into account any written submissions received from the officer.  Therefore the reasons for the Commissioner of Police deciding to remove an officer may be all or only some of the reasons set out in the Notice of Intention to Remove. 

25      It is for that reason, I suspect, that the Police Act requires separately in s 33L(1) that the Commissioner of Police’s written Notice of Intention to Remove set out the grounds upon which the Commissioner of Police does not have confidence in the member’s suitability to continue as a member, and in s 33L(5)(a) that the Commissioner advise the member of the reasons for the decision to take removal action.  This recognises that the eventual reasons for deciding to remove a member may differ from the grounds for intending to remove the member.  Therefore, a mere reference in the Notice of Removal to the earlier Notice of Intention to Remove does not satisfy the requirement to give reasons for the decision to remove the member. 

26      The failure of the Commissioner of Police to comply with the procedure described under Division 2, which includes s 33L of the Police Act, shall not be invalid or called into question if the failure is not substantive (s 33X of the Police Act).  Ordinarily, a failure to provide reasons for decision where an officer is removed from office might materially affect the right of the officer to appeal his or her removal under s 33P of the Police Act.  This is because the officer would not know the basis upon which the decision to remove had been made.  Therefore, the requirement on the Commissioner of Police in s 33L(5)(a) to provide reasons for the decision to remove an officer is a substantive, and not procedural, requirement. 

27      In the context of this matter, it is pertinent to consider whether any prejudice was occasioned to AM by the failure of the Notice of Removal to contain the reasons for the decision to remove him.  It was not submitted on behalf of AM that he had suffered any prejudice directly from the failure of the notice to contain the reasons (transcript page 20).  I do not think AM has suffered any prejudice.  The Notice of Intention to Remove (Tab 6) contains only one reason why the Commissioner of Police lost confidence in AM’s suitability to continue as a member of the Police Force, that is, statements obtained by the Commissioner of Police suggesting that AM sexually penetrated a person without her consent in circumstances of aggravation.  Where only one reason, albeit a most serious accusation, forms the basis for the Commissioner’s loss of confidence in AM, it is not unreasonable to argue, as Mr Andretich submitted, that the reference in the Notice of Removal to the Notice of Intention to Remove makes it plain that the reasons for the Commissioner’s decision to remove AM are the reasons set out in the Notice of Intention to Remove.   

28      Further, I consider the failure to provide the reasons for removing AM is overtaken by the subsequent granting of leave to AM to tender new evidence and, as a consequence, the Commissioner of Police reformulating his reasons for not having confidence in AM’s suitability to continue as a member.  Section 33R(10)(b) obliges us to consider the reformulated reasons as if they had been reasons given to AM under s 33L(5)(a) of the Police Act.  In effect, the reformulated reasons replace the original Notice of Removal.  Importantly, AM amended his grounds of appeal subsequent to the reformulated reasons and I consider that by the time of the hearing of his appeal, any prejudice to AM from the original Notice would have been overcome by these later events.  Therefore, despite the Notice of Removal not containing the reasons for the Commissioner’s decision to remove AM, I would not uphold the appeal on this ground.

Ground 2

29      In relation to Ground 2, AM submits that at the date of his removal the disposition of the criminal charge against him had not been finally determined.  The point being made, as I understand it, is that the Commissioner of Police ought to have waited until the appeal period against AM’s conviction had expired, a period we are informed of 21 days, particularly given his earlier decision not to proceed with the removal pending the outcome of the criminal charge against AM.  In response, the Commissioner of Police submits that there is no obligation upon him to wait for that appeal period to expire.  I agree with this submission in part, because of the terms of s 33W which I have set out earlier in these reasons. 

30      The Commissioner of Police states (in the reformulated reasons at [7]) that AM’s conviction served to reinforce his concern about AM’s suitability to remain a member of Police Force and as he had been convicted, the Commissioner of Police proceeded to remove him; the mere fact that AM had been convicted, together with the fact of his imprisonment, made it necessary in the view of the Commissioner of Police.  In my view, the Commissioner of Police has a discretion to wait for the expiry of an appeal period before removing an officer who has been convicted of an offence, however each case will need to be looked at on its merits.  Notwithstanding that discretion, I consider that the criminal proceedings had concluded with the decision of the District Court, not 21 days after that decision.  The lodging of an appeal by AM means that decision may or may not be overturned, however until it was overturned the decision of the District Court stood and AM was convicted and in custody.  It was not harsh, oppressive or unfair, in the context of maintaining public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force, that the Commissioner of Police proceeded to remove him at that precise point in time.  For those reasons, Ground 2 is not made out.

Ground 3

31      In Ground 3, AM argues that the quashing of his conviction and the ordering of a retrial, and the DPP’s subsequent discontinuance of the proceedings against him, means that the reason for his removal on the basis of the criminal conviction alone became invalid.  As Ms Vernon in these proceedings emphasises, the three Judges of the Court of Appeal upheld the appeal against the decision of the District Court Judge on the basis that there had been a substantial miscarriage of justice.

32      In my view, this ground requires a consideration of the Commissioner of Police’s reformulated reasons because the Commissioner of Police states in them at [8] that as AM’s conviction has now been quashed it is no longer appropriate to rely solely on the fact of the conviction as providing a sufficient basis for his removal and he considered whether on the material available to him he had cause to lose confidence in AM’s suitability to remain a Police Officer. 

33      As I have set out earlier, the Commissioner of Police relies upon the District Court Judge’s decision where Her Honour found the complainant’s evidence truthful and reliable ([2008] WADC 20 at [33]) and did not consider AM’s evidence to be persuasive, and that all three judges of the Court of Appeal dismissed the fourth ground of appeal that the verdict was not reasonably open to the trial judge.  The Commissioner of Police was therefore satisfied that there was sufficient doubt about AM’s suitability to be a Police Officer. 

34      This reliance requires a careful examination of the judgments of the Court of Appeal.  When assessing the impact of the District Court Judge’s failure to correctly apply the appropriate Longman direction, Steytler P held at [17] that a substantial delay in making a complaint will ordinarily have a number of consequences including that “[t]he evidence of the complainant cannot be adequately tested, making it dangerous to convict on that evidence alone, although the trier of fact can convict on that evidence alone if satisfied of its truth and accuracy”.  He noted that in the present case the District Court Judge had concluded that any prejudice to AM from the delay was minimal and there were no real dangers arising from the delay.  Steytler P stated at [20] that there were material shortcomings from this analysis in that there had been real prejudice to AM and, at [21], the acceptance of TL’s evidence did not overcome the dangers arising from the delay.  These errors were central to the decision of the District Court Judge that it was safe to convict essentially on the strength of the complainant’s evidence. 

35      In other words, in my view, His Honour is saying that it was not safe to convict AM essentially on the strength of the complainant’s evidence because there had been real prejudice to AM arising from the delay, and the acceptance of TL’s evidence did not overcome those dangers.  This must call into question the weight which now can be attached to the District Court Judge’s observation that the complainant’s evidence was truthful and reliable, because as Steytler P has said “[t]he evidence of the complainant cannot be adequately tested, making it dangerous to convict on that evidence alone…”.  The balance of his Honour’s sentence, “although the trier of fact can convict on that evidence alone if satisfied of its truth and accuracy”, did not change this finding; it led to the conclusion that there should be a retrial. 

36      The conclusion that there should be a retrial is most important: although Steytler P states at [23] that this is a case in which it would be open to a trier of fact to convict and like Miller JA held that nothing raised in Ground 4 would inevitably make it unreasonable, insupportable or dangerous to convict AM, a retrial necessarily carries with it the presumption that AM is innocent of the charge laid against him.  It will be up to the prosecution in another trial to prove AM’s guilt beyond reasonable doubt and unless and until that occurs, AM remains innocent of the charge.  If the charge against AM remains unproven, the issue for the WAIRC becomes whether his removal in these circumstances is harsh, oppressive or unfair.  I shall return to this issue subsequently.

37      Miller JA dismissed the fourth ground of appeal.  His Honour at [187] found that there was ample evidence to support the verdict of guilty and that once the evidence of the complainant was accepted as credible and persuasive and the evidence of AM was rejected, it was necessary only for the trial judge to carefully scrutinise the evidence of the complainant before acting upon it.  It could not be said that a verdict of guilty was unreasonable, incapable of being supported having regard to the evidence or in any way unsafe or unsatisfactory.  However, Miller JA held earlier at [146] that an error had been made by the District Court Judge in that what was missing from the Longman direction given by her was a direction that the delay had in fact made it difficult to test the complainant’s evidence; the delay had caused actual prejudice to AM, rather than possible prejudice.  A second error (see [147] – [149]) was that the District Court Judge had elevated the evidence of TL to that of a confession such that any prejudice to AM occasioned by the delay in being charged was minimal.

38      At [150] and following, Miller JA then noted that that under s 30(4) of the Criminal Appeals Act 2004 (WA) even if a ground of appeal might be decided in favour of AM, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.  He did not dismiss the appeal, holding that the District Court Judge’s failure to properly direct herself in accordance with the Longman direction (that is, as he had earlier stated, that the delay had in fact made it difficult to test the complainant’s evidence and the evidence of TL did not make minimal any prejudice to AM occasioned by the delay in being charged) constituted “a serious breach of the presuppositions of the trial process” which denied the application of s 30(4).  His Honour concluded that it is impossible to assess the impact of the irregularity on the fairness of the trial.

39      Murray AJA at [190] agreed with both Steytler P and Miller JA that the appeal should be allowed and a new trial ordered.  In relation to the fourth ground, at [196] he agreed with them both that the proposition that the verdict and decision of the District Court Judge was unreasonable or cannot be supported, having regard to the evidence, is not made good. 

40      It is Murray AJA’s consideration of the applicability of the Longman direction to which I draw particular attention.  His Honour stated at [202] that the need for the Longman direction arises “where, for any reason, the reliability of a witness, upon the acceptance of whose evidence the prosecution case solely or substantially relies, comes into question...”.  His Honour at [204] agreed with both Steytler P and Miller JA that the lapse of time between the alleged commission of the offence and AM being charged and the trial, meant that there was an incapacity for either side to gather evidence which might enable the credibility of the complainant to be thoroughly examined in the context of a body of evidence concerned with the events of the night in question.

41      Murray AJA noted at [205] that the District Court Judge spoke approvingly of the complainant as witness and then referred to matters arising from the Longman direction.  At [206] his Honour stated:

206    Her Honour then referred to matters under the heading 'Longman warning'. In other words, it seems to me that her Honour reversed the appropriate order of consideration of the issues. Before considering the extent to which she needed to carefully scrutinise the evidence of the complainant, having regard to the various challenges made to its reliability, her Honour had already expressed the view that she accepted the complainant's evidence as being truthful and reliable. In my view, her Honour was in error in that regard.

42      His Honour found at [207] that the District Court Judge thereby reversed the appropriate order of consideration of the issues and was thereby in error.  I set out his Honour’s conclusions (omitting references):

210    The evidence of TL was certainly important in the case. If accepted, as it was, the appellant had made statements contradicting his evidence and that of his mother that he had no opportunity to commit the offence. But that evidence, relevant only in that way and having no probative value to support the complainant's evidence that the appellant did commit the offence in the circumstances she alleged, was not material to the process of carefully scrutinising the complainant's evidence, having regard to the matters of forensic disadvantage which the case raised, before the complainant was accepted as a truthful witness.

211    Rather, what the trial judge did in this case, it seems to me, was that, having already accepted the complainant as a truthful witness, her Honour did not adequately and appropriately evaluate the reliability of her evidence, having regard to the obvious elements of forensic disadvantage which the case threw up.

212    That error having been made, there has been a substantial miscarriage of justice because the appellant has been deprived of a trial in which the complainant's evidence, upon which the case against him so substantially depended, was appropriately and thoroughly tested for its reliability before it was accepted as evidence of truth.

213    For those reasons, I concur in the view that it would be appropriate in this case to allow the appeal, quash the conviction and order a retrial.

43      In the reformulated reasons at [19] the Commissioner of Police states:

As I understand the point of the Court of Appeal’s decision, while it may be unsafe to convict the appellant in the absence of an appropriate warning as to the disadvantage caused by the delay, it does not mean Her Honour was not entitled to find that the complainant was a credible witness or that the appellant was unpersuasive.

44      As I have set out above, the judgment of Murray AJA makes it clear that the District Court Judge’s acceptance of the complainant as a truthful witness was an error because it was made before adequately and appropriately evaluating the reliability of her evidence, having regard to the obvious elements of forensic disadvantage which the case threw up.  It led to a substantial miscarriage of justice.  In my view this is the same conclusion reached by Steytler P at [22], that the errors were central to the decision of the District Court Judge that it was safe to convict essentially on the strength of the complainant’s evidence, and by Miller JA at [146] that an error had been made by the District Court Judge in that what was missing from the Longman direction given by her was a direction that the delay had in fact made it difficult to test the complainant’s evidence.

45      It follows that the comments of Steytler P at [23] (that this is a case in which it would be open to a trier of fact to convict AM); Miller JA at [187] (that there was ample evidence to support the verdict of guilty) and Murray AJA at [196] (that the proposition that the verdict and decision of the District Court Judge was unreasonable or cannot be supported, having regard to the evidence, is not made good) upon which the Commissioner of Police relies in the reformulated reasons at [22] are comments which are to be read in the context of the judgments as a whole.  It is correct that the fourth ground of appeal was dismissed and that Steytler P and Miller JA respectively held that it would be open to a trier of fact to convict and there was ample evidence to support the verdict of guilty.  However, the observations of the District Court Judge regarding both the complainant’s truthfulness and AM’s unpersuasiveness were found to be part of an error which resulted in a substantial miscarriage of justice.  Their decision means that in order to decide those issues and whether there will finally be a verdict of guilty there will need to be a retrial.  In the absence of a retrial, those issues of credibility are and remain undecided.

46      I therefore conclude that the reliance by the Commissioner of Police on the observations of the District Court Judge and the respective judgments of the Court of Appeal as to the fourth ground of AM’s appeal is, with respect, not reasonably open to him.  When the respective judgments are read as a whole, they do not form a reasonable basis for him to be satisfied that there is a sufficient doubt about AM’s suitability to be a Police Officer.   To hold otherwise is to say AM’s removal is fair on the basis of observations regarding credibility made by the District Court Judge in proceedings which were subsequently overturned or on the basis of certain comments made by the three Judges of the Court of Appeal which when read in context were themselves not sufficient to lead them to dismiss AM’s appeal. 

47      As Mr Andretich submitted, the Commissioner of Police did also have before him the material contained in the Summary of Investigation.  However, there are two difficulties with the material contained in the Summary of Investigation.  First, it is not clear that the Commissioner of Police relied upon this material in the reformulation of his reasons.  The reformulated reasons show at [7] that AM’s conviction and imprisonment alone were the deciding factors in the Commissioner of Police’s decision to remove AM because he “saw no need to revisit [his] reasons for requiring the appellant to show cause prior to removing him from office” and the fact of conviction and imprisonment made his removal necessary.

48      The Commissioner of Police may not have relied upon this material due to the second difficulty which is that prior to AM’s conviction, the Commissioner of Police recognised that the material contained in the Summary of Investigation was untested.  It was, as Mr Andretich stated, a suspicion and therefore, properly in my view, the Commissioner of Police decided not to take removal action pending the outcome of the criminal trial in relation to the charges preferred against AM under s 326 of the Criminal Code (Tab 2).  The fact is that the material contained in the Summary of Investigation remains untested.  The reformulated reasons at [25] states that the Commissioner of Police relies upon the Summary of Facts in his response of 30 June 2009, however to the extent that the Summary of Facts states as fact the allegation made against AM (particularly [3] to [6]), the Commissioner of Police is not able to fairly rely upon the Summary at all: the allegation still remains an allegation and it has not been established as a fact.  Therefore the earlier decision of the Commissioner of Police not to take removal action pending the outcome of the criminal trial in relation to the charges remains.  I find Ground 3 is made out.

Conclusion

49      The essential question before us is whether the decision of the Commissioner of Police to remove AM was harsh, oppressive or unfair (McKay .v Commissioner of Police [2006] WASC 189 at [25]; (2006) 155 IR 336).  The test whether the decision of the Commissioner of Police to remove AM was harsh, oppressive or unfair is whether the legal right of the Commissioner of Police to remove AM has been exercised so harshly or oppressively against him as to amount to an abuse of that right (Carlyon v. Commissioner of Police (2004) 85 WAIG 708 at 724; [2004] WAIRC 11966 at [181], applying The Undercliffe Nursing Home v. The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, W.A.  Branch (1985) 65 WAIG 385 per Brinsden J at 386).  That test necessarily involves a consideration of all of the circumstances including those set out in s 33Q(4) of the Police Act.

50      Having regard to the interests of AM (which we are required to do under s 33Q(4)(a) of the Police Act), I consider there is much force in the submission of Ms Vernon that in the circumstances where a retrial was ordered, AM is entitled to the presumption of innocence.  If that was not the case, the Court of Appeal would not have upheld the appeal and ordered a retrial.  The fact that there will not be a retrial does not remove that presumption and it remains.

51      The interests of AM include the material contained in the background to his Response to the Commissioner’s Loss of Confidence Notice (Tab 5, page 4) which refers to a seemingly unblemished service of 11½ years as a member of the Victoria Police, including having been awarded the Police Service Medal for Diligent and Ethical Service, and a number of written commendations and references attesting both to his ability as a Police Officer and to his character.  

52      We are also to have regard to the public interest which is taken to include the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force, and the special nature of the relationship between the Commissioner of Police and members of the Force.  Maintaining public confidence in the Police Force is a matter of fundamental importance.  The allegation against AM in the material in the Summary of Investigation is very serious; the fact remains, however, that after a trial before a Judge of the District Court and the subsequent appeal, the allegation (in the form of the criminal charge) ultimately has not been proven. 

53      AM was convicted and imprisoned.  If this appeal was to be decided on those two circumstances alone I would dismiss the appeal.  However, as Mr Andretich observed in relation to Ground 1, correctly in my respectful observation, circumstances have moved beyond the removal of 12 February 2008 with the reformulated reasons of 11 September 2009.  The new evidence before us demonstrates that the conviction resulted from a trial process where, per Miller JA, it is impossible to assess the impact of the irregularity on the fairness of the trial and the conviction was quashed and AM was released. 

54      Further, although the conduct alleged is very serious, it does not refer to AM’s conduct or performance as a Police Officer although I add that if the allegation had been proven, the fact that AM was not a Police Officer at the time it occurred would not prevent a finding that that the Commissioner of Police had lost confidence in his suitability to be a Police Officer on the basis of a lack of integrity or honesty.  In these circumstances, I do not consider that public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force is compromised.

55      In relation to the special nature of the relationship between the Commissioner of Police and members of the Police Force, the position of the Commissioner of Police in relation to AM cannot reasonably be significantly different today from the position in July 2006 when he was not prepared to take removal action pending the outcome of the criminal trial.   Whilst I accord considerable respect to the perceptions of the Commissioner of Police regarding that relationship and its special nature, in this case the outcome of the criminal trial will not be known, the State having discontinued its proceedings against AM.  AM is still presumed to be innocent; the observations of the District Court Judge regarding the credibility of both the complainant and AM respectively came from a trial process where, per Miller JA, it is impossible to assess the impact of the irregularity on the fairness of the trial and which warranted a retrial; and the comments of the Judges of the Court of Appeal referred to and relied upon at [22] of the reformulated reasons are to be read in the context of the judgments as a whole which held the errors made by the District Court Judge required the appeal to be upheld and a retrial ordered.  

56      In this case, the above analysis of the judgments of the Court of Appeal shows that the reformulated reasons for removing AM do not rest upon a strong foundation.  The allegation against AM which led to the loss of confidence is the same as the offence for which AM was charged and for which he is still presumed to be innocent.  In this circumstance, the fact that the allegation does not relate to AM’s service as a Police Officer becomes important: AM’s record of service as a Police Officer both in Victoria and for the relatively short time in WA is not questioned.  Taking into account his interest and the public interest in s 33Q(4)(b), I conclude on the basis of the new evidence before us that it was unfair to remove AM from the Police Force.  It was unfair because notwithstanding s 33W, the Commissioner of Police had decided not to take removal action pending the outcome of the criminal trial and that outcome has left the allegation against AM unproven and, in respect of the reformulated reasons, the observations made by the District Court Judge and the selected comments of the Judges of the Court of Appeal relied upon do not take into account the reasons why AM’s appeal was upheld.  I find Ground 3 is made out and that AM has discharged the onus upon him of showing the Commissioner of Police’s decision to take removal action relating to him was harsh, oppressive or unfair. 

Orders to be made

57      Section 33U of the Police Act applies if the WAIRC decides on an appeal that the decision to take removal action relating to an appellant was harsh, oppressive or unfair.  Neither party addressed the issues which arise for consideration out of that section.  There is no submission before us that it is impracticable for it to be taken that AM’s removal from office is, and had always been, of no effect (s 33U(2)).  I would declare the removal of AM to be harsh, oppressive or unfair and make the order envisaged under s 33U(2).  However, it would not be my intention to thereby include the period during which AM was imprisoned, that being a period when he was unavailable to discharge the duties of office.  I would request the parties to confer on the order to issue and provide the WAIRC with a draft order within 14 days of the issuance of this decision.

HARRISON C:

58      I have read the reasons for decision and I agree with those reasons and have nothing to add.

MAYMAN C:

59      I have had the opportunity of reading in draft form the reasons of the Chief Commissioner in this matter.  I agree with the reasons given and have nothing further to add.