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

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Alistair Lindsay Gordon

APPELLANT

-v-

Commissioner of Police

RESPONDENT

CORAM Chief Commissioner A R Beech

 Acting Senior Commissioner P E Scott

 Commissioner S M Mayman

HEARD friday, 23 april 2010, friday, 27 August 2010 AND WEDNESDAY, 15 SEPTEMBER 2010 (WRITTEN SUBMISSIONS)

DELIVERED FRIDAY, 1 OCTOBER 2010

FILE NO. APPL 38 OF 2009

CITATION NO. 2010 WAIRC 00937

CatchWords Removal of Police Officer - Loss of confidence by Commissioner of Police - Whether conviction for common assault being quashed on appeal significant - Off-duty behaviour - Visiting female while on duty for non-work purpose - Conduct in interview with Internal Affairs Unit - Loss of confidence while already under a Management Action Plan - Police Act 1891 (WA) s 8, s 33P, s 33W

Result Appeal dismissed

Representation

Appellant Ms K Vernon, of counsel

Respondent Ms D Scaddan, of counsel

Reasons for Decision

BEECH CC:

Background

1          This is an appeal under s 33P of the Police Act, 1892 (WA) (“the Police Act”) by Alistair Gordon who was a sergeant in the WA Police prior to his removal under s 8 of that Act on 29 April 2009.  Mr Gordon’s appeal was filed on 25 May 2009 however, the hearing of the appeal was adjourned until 2 June 2010 pursuant to s 33T of the Police Act ((2009) 89 WAIG 656; [2009] WAIRC 00358).  Under s 33T, the hearing of an appeal may be adjourned if an appellant has been charged with an offence relating to any matter that was taken into account by the Commissioner of Police in deciding that he did not have confidence in the appellant’s suitability to continue as a member and if the charge has not been finally determined by a court or otherwise disposed of.  That was the case here: Mr Gordon had been charged with two charges of aggravated common assault in relation an incident at the Midland Gate Shopping Centre. 

2          On 19 March 2009 in the Magistrates Court of WA Mr Gordon was convicted of two counts of aggravated common assault.  On 3 September 2009 the Supreme Court of WA allowed Mr Gordon’s appeal against the conviction and ordered a retrial (Gordon v. Barry [2009] WASC 280).  The State Solicitor’s Office declined to retry Mr Gordon and on 2 March 2010 the criminal charges were formally dismissed.

3          On 23 June 2010 Mr Gordon was granted leave to amend the grounds of appeal and to tender as new evidence the decision of the Supreme Court referred to above and a certified copy of the prosecution notice of 2 March 2010 dismissing criminal charges against him ((2010) 90 WAIG 651; [2010] WAIRC 00368).

4          In response to the tendering of new evidence, and pursuant to s 33R(8) of the Police Act, on 23 July 2010 the Commissioner of Police reformulated his reasons for removing Mr Gordon and also tendered a letter from the State Solicitor’s Office (“SSO”) of 10 November 2009 where the SSO sets out the reasons why “there are reasonable prospects of convictions against Mr Gordon” but that “there are other relevant public interest factors which would render a retrial inappropriate in this case” (CoP bundle, tab 2).

5          The appeal was heard on 27 August 2010.  At the conclusion of the appeal, and at the request of Ms Vernon who appeared for Mr Gordon, leave was given for Mr Gordon to make written submissions in reply to the oral submissions of the Commissioner of Police.  The WAIRC considered that there were some points raised in those submissions that were appropriate to take into account and an opportunity was then given to the Commissioner of Police to respond to those submissions.  The Commissioner of Police did so on 15 September 2010.

6          In the reasons which follow we have deliberately not used the names of persons who were referred to in the proceedings.

The Commissioner of Police’s Reasons for Deciding to Take Removal Action

7          The Commissioner of Police noted his letter of 20 April 2009 to the then Sergeant Gordon where he stated that he had lost confidence in Mr Gordon’s suitability to remain a member of the WA Police, having regard to his integrity, honesty and conduct, based on the grounds that:

1. On 10 May 2008 Mr Gordon assaulted MML and KAL at the Midland Gate Shopping Centre (while under a Management Action Plan for Ground 2);

2. Between 19 October and 18 November 2007 Mr Gordon inappropriately visited Ms C on two occasions for non-work purposes, while on duty, in uniform and using a police vehicle; and

3. On 27 November 2007 Mr Gordon was untruthful at an internal interview with Internal Affairs Unit investigators regarding events that occurred during his attendance at Ms C’s place of residence as described in Ground 2.

8          The Commissioner of Police reviewed the new evidence in addition to the material that was before him when he made the original decision to take removal action and confirmed that he still does not have confidence in Mr Gordon’s suitability to remain a member of the WA Police.  The Commissioner of Police stated that the decision in Gordon v. Barry (op cit) did little to assist him in making up his own mind regarding what happened at the Midland Gate Shopping Centre.  Although the decision in Gordon v. Barry quashed Mr Gordon’s conviction on two counts of assault, the Commissioner of Police stated that he did not have recourse to the Magistrate’s reasons for decision in making his decision.  Although the Commissioner of Police had decided to reserve his decision with respect to Mr Gordon’s suitability until after the Magistrate Court proceedings, this had been to avail himself of any additional material that may have emerged in Mr Gordon’s trial which may have assisted the Commissioner of Police in arriving at a final decision concerning this issue.  The Commissioner of Police noted that no additional material was presented to him that assisted him one way or the other.  The Commissioner of Police was able to satisfy himself as to the lack of Mr Gordon’s suitability on the basis of the material presented to him as part of a loss of confidence process, which is unrelated to the findings of guilt by the Magistrate and the subsequent reasons for the quashing of the convictions by the Supreme Court.

9          The Commissioner of Police further stated that the copy of the prosecution notice dismissing criminal charges on 2 March 2010 goes no further than demonstrating that the prosecution was dismissed following the Supreme Court’s decision to quash the convictions and remit the charges for retrial.  The Commissioner of Police referred to the letter from the SSO of 10 November 2009 where the prosecutor was only prepared to consider a submission that there should not be a retrial on the basis that witnesses to the incident were children, and should be spared the trauma and stress of retrying the charges.  The Commissioner of Police expressly did not accept the assertion that quashing the convictions, and the decision not to retry the charges, somehow invalidated or undermined the decision of the Commissioner of Police to remove Mr Gordon from the WA Police.

10       The Commissioner of Police then described in considerable detail the three grounds for removing Mr Gordon set out at the commencement of his reasons.  It is necessary for the purposes of this appeal only to summarise some of that detail.

Midland Gate Shopping Centre Incident

11       The Commissioner of Police stated that he is satisfied that Mr Gordon’s conduct was inappropriate and excessive to the position in which Mr Gordon found himself.  The Commissioner of Police noted that the incident was a dispute involving Mr Gordon and MML jostling for a parking space, that a heated exchange took place, that MML may or may not have driven in the direction of Mr Gordon’s children but immediately stopped when she saw them on the road and that after MML had stopped, Mr Gordon opened the front passenger door of her car, reached across and, coming into contact with her 12 year old daughter KAL who was distressed and crying, grabbed MML.  The Commissioner of Police noted that even if he was to accept that Mr Gordon was angered by what had occurred, as a serving member of the WA Police at the time, the appropriate course of action was to make a complaint to the Police and not to do what he, in fact, had done.  In the Commissioner of Police’s view, Mr Gordon’s conduct was underscored by the fact that at that time he was under managerial action for inappropriate behaviour involving Ms C.

Inappropriately Visiting Ms C

12       The Commissioner of Police noted that Mr Gordon first attended Ms C’s home to obtain her personal details in the course of investigating an incident in the car park adjacent to her home.  In the days following this, Mr Gordon attended Ms C’s home on his own on two further occasions in a police uniform, driving a police vehicle, and while on duty.  The Commissioner of Police noted that the totality of what occurred at Ms C’s home on these two subsequent visits may be the subject of some conjecture, although having regard to the material before him, the Commissioner of Police determined that:

• Mr Gordon’s attendance at Ms C’s home address on the two subsequent occasions was unrelated to Mr Gordon’s duties as a police officer and nor was there any basis upon which his attendance at her home address could be justified;
• There was inappropriate intimate contact between Mr Gordon and Ms C on at least one occasion and this occurred whilst Mr Gordon was on duty and in police uniform;
• Ms C was sufficiently concerned by the impropriety to report it to another police officer she saw by chance at a service station, although she declined to give her personal details for fear of getting into trouble; and
• Following another encounter with Mr Gordon at a swap meet, she was interviewed by officers from the Internal Affairs Unit whereupon meeting these officers Ms C stated words to the effect that she thought they might have been “the Sergeant coming around again to feel my ---”.

13       The Commissioner of Police stated that he was inclined to believe Ms C’s version of events because Mr Gordon’s version of the events is “so inherently improbable as to verge on ridiculous” and because of Mr Gordon’s own admission that he was untruthful about his interaction with Ms C.  The Commissioner of Police concluded that whatever had transpired between Mr Gordon and Ms C, he was certain that Mr Gordon’s attendance at Ms C’s residence in uniform, in a police vehicle and while on duty, had absolutely nothing to do with policing and it left the Commissioner of Police with a distinct impression that whatever the contact was between Mr Gordon and Ms C, regardless of whether it was consensual or not, Mr Gordon had attended Ms C’s home address on the second and third occasions to re-establish intimate contact.  Further, he did this in police uniform, driving a police vehicle, and while being paid by the WA Police.  The Commissioner of Police stated that this demonstrated such poor judgment and reflected so poorly on the WA Police that he is satisfied that Mr Gordon is not fit to occupy the office of constable.

Untruthful at an Internal Affairs Unit Interview

14       In relation to the third ground set out at the commencement of the Commissioner of Police’s reasons, the Commissioner of Police noted that honesty in internal investigations, particularly to officers from the Internal Affairs Unit (“IAU”), is of paramount importance to the Commissioner of Police.  The Commissioner of Police noted that during the IAU interview into the incident involving Ms C, Mr Gordon’s legal representative halted the interview and it was only after this that Mr Gordon returned and admitted that he had not been truthful during the initial part of the interview.  The Commissioner of Police noted that thereafter Mr Gordon implicated Ms C in a series of intimate acts about which the Commissioner of Police expressed his doubt. 

15       The Commissioner of Police noted of particular significance to him that Mr Gordon’s decision to admit to certain aspects of what had occurred was not as a consequence of any apparent appreciation on Mr Gordon’s part that lying is wrong but, on the contrary, Mr Gordon’s willingness to be more forthright arose because he became aware that the issues were not as dire as Mr Gordon had first thought. 

16       The Commissioner of Police noted that Mr Gordon had already been involved in the Midland Gate Shopping Centre incident at the time the Commissioner of Police was considering the incident involving Ms C and he had therefore requested that both incidents be considered together for the purposes of s 8 of the Police Act.  In the Commissioner of Police’s view, Mr Gordon’s behaviour during either the incident involving Ms C or the incident at Midland Gate Shopping Centre would cause him real doubt about Mr Gordon’s suitability to remain a member of the WA Police.

The Case Presented by Mr Gordon

17       Mr Gordon’s appeal as amended consists of six grounds.  The first ground was not pressed and need not be considered.

Ground 2

18       Ground 2 is that if the reason for the removal of Mr Gordon, whether in whole or in part, was Mr Gordon’s criminal conviction, when the Supreme Court allowed Mr Gordon’s appeal against his conviction, quashed the conviction and ordered a retrial, and the criminal charges were subsequently dismissed on 2 March 2010, then such reasons for removal became invalid.

19       In my view this ground of appeal fails at the outset.  The Commissioner of Police’s reformulated reasons are set out above and they do not show that the reason for the removal of Mr Gordon, in whole or in part, was Mr Gordon’s criminal conviction.  The fact of Mr Gordon’s criminal conviction on 19 March 2009 is not mentioned. 

20       Ms Vernon, in her submissions in reply at [5], submits that the Commissioner of Police saying that he did not take any account of the Magistrate’s reasons for decision is not the same as saying that he did not take into account the fact of the conviction.  Although that is a correct submission, it does not lead to the conclusion that the Commissioner of Police did take the fact of the conviction into account.  The fact remains that the Commissioner of Police’s reformulated reasons do not say that a reason for the removal of Mr Gordon, whether in whole or in part, was Mr Gordon’s criminal conviction; rather, as Ms Scaddan for the Commissioner of Police submits in her response at [16], the Commissioner of Police refers to Mr Gordon’s integrity, honesty and conduct.

21       Ms Vernon submits at [6] that the Commissioner of Police’s letter of 22 December 2008 (CoP bundle, tab 7) states that he would prefer to reserve any decision regarding Mr Gordon’s suitability to remain a member of the WA Police until the outcome of the trial is known and she asserts that this can only be interpreted as the conviction or the acquittal so that could be taken into account.  However, that letter continues as follows:

“This is not to say that I now have confidence in your suitability to remain a police officer, but that I would prefer to avail myself of any additional information or evidence that may be led at the criminal trial and which may be of benefit to me in making my final decision.”

22       The stated purpose of reserving the decision until the outcome of the trial is known is not to take into account Mr Gordon’s acquittal or conviction.  It is quite appropriate, in my respectful view, for the Commissioner of Police to want to wait to see if any additional information or evidence is led at the criminal trial and the wording of this letter is consistent with the Commissioner of Police’s reformulated reasons where he states no additional material was presented to him that assisted him one way or the other. 

23       I accept that Mr Gordon’s criminal conviction would have been known to the Commissioner of Police at the time he made his decision that he still did not have confidence in Mr Gordon; this must follow from his knowledge of the Magistrate’s reasons for decision.  The issue, however, is not whether the Commissioner of Police knew of Mr Gordon’s conviction, but whether he took it into account.  There is no evidence before us that he did.  Unlike the circumstances in AM v. Commissioner of Police ((2009) 90 WAIG 276; [2009] WAIRC 01285) upon which Mr Gordon relies to support this ground of appeal, Mr Gordon was not removed from the WA Police on the same day as he was convicted, but almost six weeks afterwards.  It is difficult to draw the conclusion, as we are invited to do, that notwithstanding the express words in the reformulated reasons, the reason for the removal of Mr Gordon, whether in whole or in part, was Mr Gordon’s criminal conviction. 

24       The fact that the conviction was quashed upon appeal to the Supreme Court therefore is of quite limited significance.  Further, in reformulating his reasons, the Commissioner of Police does not rely at all on the judgment of the Supreme Court.  This is quite different from the circumstances in AM (op cit) where the mere fact that AM had been convicted, together with the fact of his imprisonment, made his removal necessary and the Commissioner of Police had seen no need to revisit his reasons for requiring AM to show cause prior to removing him from office ((2009) 90 WAIG 276 at 277; [2009] WAIRC 01285 at [8]).  Subsequent to the quashing of AM’s conviction, the Commissioner of Police referred to, and relied upon, the District Court trial proceedings and the judgment of the Court of Appeal in maintaining his loss of confidence in AM (above at WAIG 277, 278; WAIRC [9]-[14]).

25       That is simply not the case here.  In the circumstances of this case, the quashing of the conviction, the ordering of the retrial and the subsequent dismissal of the criminal charges does not invalidate the Commissioner of Police’s reasons for removal and Ground 2 is not made out.

Ground 3

26       Ground 3 alleges that if the reason for the removal, whether in whole or in part, was based upon the Commissioner of Police’s conclusion that Mr Gordon’s behaviour whilst off duty that led to his criminal conviction was inappropriate, or not the conduct expected of a police officer, then by reason of Mr Gordon’s successful appeal and the subsequent dismissal of the criminal charges such reason for removal became invalid.

27       Some of the issues which arise in this ground are dealt with in relation to Ground 2 above.  In support of this ground, Ms Vernon submits that the charges were preferred against Mr Gordon before the loss of confidence process and the charges are based upon the very same facts.  Ms Vernon submits this is the same situation as occurred in AM because at the time of the loss of confidence process, the allegations against AM were untested.  Mr Gordon is entitled to the presumption of innocence until he is proven guilty and as Mr Gordon has not been convicted of the charges, the Commissioner of Police is effectively finding Mr Gordon to be guilty when he has not in law been found to be guilty.  Ms Vernon queries whether the Commissioner of Police is exercising “an extraordinarily draconian power” in this circumstance.

28       In response, Ms Scaddan, who appears for the Commissioner of Police, stresses the lack of any reliance by the Commissioner of Police in reaching the decision that he had no confidence in Mr Gordon either on the Magistrate’s proceedings or on Mr Gordon’s conviction or upon the reasons of the Supreme Court.  The reasons the Commissioner of Police relies upon in his conclusions are not referrable to the criminal charges but rather referrable to whether or not he has confidence in Mr Gordon’s integrity, honesty and conduct. 

29       My conclusion on this ground is as follows.  The fact that Mr Gordon’s conviction for two cases of aggravated common assault was quashed and he is entitled to the presumption of innocence on those criminal charges, does not mean that the circumstances leading to the preferring of those charges is not available to the Commissioner of Police for the purposes of the loss of confidence process.  Section 33W of the Police Act makes this abundantly clear: if a police officer has been charged with committing an offence or has been acquitted of an offence, the charge or the existence of proceedings relating to the charge or the acquittal does not preclude the Commissioner of Police from taking any action in relation to loss of confidence in relation to any matter, act or omission relating to, or being an element of, the offence.  The fact that Mr Gordon remains entitled to the presumption of innocence in relation to whether he committed a criminal offence does not mean that the incident to which those charges relate ceases to exist.  Conduct by an employee which might not be criminal conduct nevertheless might be misconduct, that is to say, conduct so seriously in breach of the contract of employment that by standards of fairness and justice an employer should not be bound to continue the employment (North v. Television Corporation Ltd (1976) 11 ALR 599 at 608/9 per Smithers and Evatt JJ).

30       For the Commissioner of Police to rely upon the events at the Midland Gate Shopping Centre in order to reach a conclusion that he had lost confidence in Mr Gordon’s suitability to remain a member of the WA Police is not at all the same as the Commissioner of Police finding that Mr Gordon was guilty of the criminal charges when he has not been found guilty of them in a court.  Whether the Commissioner of Police has lost confidence in Mr Gordon’s suitability to remain a police officer, and the issue of whether or not Mr Gordon was guilty of a criminal charge, are two entirely different things: the reformulated reasons show that the Commissioner of Police is separately satisfied that Mr Gordon’s conduct in the Midland Gate Shopping Centre incident was inappropriate and excessive to the position in which Mr Gordon found himself, not that his conduct was aggravated common assault. 

31       That is a conclusion which is reasonably open to the Commissioner of Police on the material that was before him.  Ms Vernon (at [26] of her submission and [11] of her submissions in reply) drew attention to the decision in AM, where (at WAIG 282; WAIRC [48]) the WAIRC stated that to the extent that the Summary of Facts in that case states as fact the allegation made against AM, it was untested and remains just an allegation.  Ms Vernon submitted that AM is applicable here because the loss of confidence materials contained untested, unproven but disputed allegations.  However, in my view, and unlike the facts in AM, in this case the material before the Commissioner of Police included Mr Gordon’s own evidence of his conduct at the Midland Gate Shopping Centre contained in the record of interview (CoP bundle, tab 12(11)) and in his response to the Notice of Intention to Remove (CoP bundle, tab 9) which together do permit a conclusion to be fairly drawn that Mr Gordon’s conduct in the Midland Gate Shopping Centre incident was inappropriate and excessive to the position in which Mr Gordon found himself.

32       For those reasons, Ground 3 is not made out.

Ground 4

33       Ground 4 is that if the reason for Mr Gordon’s removal, whether in whole or in part, was his conduct towards Ms C, when the Commissioner of Police served Mr Gordon with a 12 month Management Action Plan (“MAP”) operative from 28 November 2007 in response to such conduct, then that reason for removal was invalid because by imposing the MAP, the Commissioner of Police had already determined that Mr Gordon’s conduct towards Ms C did not constitute a loss of confidence in Mr Gordon’s suitability to continue as a member of the WA Police. 

34       In support of this ground, Ms Vernon submits that it is harsh, oppressive or unfair for the Commissioner of Police to go further on the issue of Mr Gordon’s conduct towards Ms C when it is that same conduct to which the MAP relates.  The conduct towards Ms C occurred between 19 and 31 October 2007.  Mr Gordon had been transferred to another police station immediately after his IAU interview on 27 November 2007 to a position where he would be subject to close supervision and a greater degree of accountability.  On 15 January 2008 Mr Gordon was served with a MAP which included quarterly reviews over a 12 month period commencing 28 February 2008, a s 23 disciplinary charge, a 12 month moratorium on promotion opportunities and verbal guidance in appropriate conduct.  Further, and contrary to [45] of the submissions of the Commissioner of Police, the MAP makes no mention of further action beyond that stated in it and Mr Gordon had not acknowledged that further action may be taken against him.  Indeed it was submitted that Mr Gordon had a legitimate expectation that the issue of his conduct towards Ms C had been dealt with by the MAP.

35       In response, the Commissioner of Police rejects the idea that there could be any legitimate expectation that the MAP concluded matters in relation to Mr Gordon’s conduct towards Ms C.  In the Commissioner of Police’s reformulated reasons, the introduction of the Managerial Intervention Model Policy (HR-31) under which managerial action commenced against Mr Gordon in no way derogated from the Commissioner of Police’s responsibility or discretion to ensure that only officers who exhibit the requisite standard of behaviour remain members of the WA Police.  That policy specifically provides that while managerial intervention may be appropriate for the majority of complaints, recourse may still be had to criminal charges, disciplinary charges under s 23 of the Police Act, or removal action under s 8 of the Police Act.  The Commissioner of Police states that once he was apprised of Mr Gordon’s behaviour involving Ms C, he determined that the most appropriate course of action was under s 8 of the Police Act.

36       My conclusion in relation to this ground is as follows.  Section 8 of the Police Act itself does not preclude the Commissioner of Police from proceeding with a loss of confidence process and ultimately removing an officer if the officer is subject to a MAP.  The discretion of the Commissioner of Police is not fettered in that regard.  Further, our attention was not drawn to any representation, undertaking or policy made by the Commissioner of Police which could engender a legitimate expectation that the issue of Mr Gordon’s conduct towards Ms C had been dealt with by the MAP.  The Investigation Final Report (CoP bundle, tab 12(1) at page 14) contains recommendations to address Mr Gordon’s conduct in relation to Ms C, however they are just recommendations.  An Internal Review Panel had agreed to a recommendation that the matters be dealt with by a disciplinary charge but this was not progressed given the Commissioner of Police’s decision to commence the loss of confidence process (CoP bundle, tab 11).  Given that HR-31 provides that the provision to invoke loss of confidence remained (as it was submitted before us - see T57), it is not apparent how Mr Gordon could be said to have a legitimate expectation that the MAP precluded any further action being taken against him in relation to his conduct towards Ms C. 

37       In employment generally, even if an employer condoned an employee’s serious misconduct by not dismissing the employee without notice, it does not change the character of that misconduct nor excuse it.  In John Lysaght (Aust) Ltd v. FIA; Re York (1972) AILR 517 Sheppard J observed:-

"It is no doubt possible for the company to waive particular acts of misconduct that would otherwise have justified dismissal without notice.  These particular acts could not subsequently be used for this purpose once the decision was made not to rely on them.  The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs.  It remains and makes up the continuing history and record of a man's service.  That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about a dismissal."  (Adopted by Ryan J in McCasker v. Darling Downs Co-operative Bacon Association Ltd (1988) 25 IR 107 at 114 and considered in The Federated Miscellaneous Workers' Union of Australia WA Branch v. Cat Welfare Society Inc (1991) 71 WAIG 2014. See also Porter v. Eltin Underground Operations Pty Ltd and Another (2000) 80 WAIG 5349 at [122]).

38       There is no reason why this would not apply in the case of police officers.  Even if it could be held that the imposition of a MAP created an expectation that it concluded any further consideration of Mr Gordon’s conduct towards Ms C, and I do not think it can, it would follow that at most, the Commissioner of Police should inform Mr Gordon that his conduct towards Ms C was part of his reasons for losing confidence in Mr Gordon (O’Rourke v. Miller [1984] VR 277 per Murphy J at 292; the appeal against this decision was dismissed: (1985) 156 CLR 342) and that is what happened in this case.

39       Further, the imposition of the MAP upon Mr Gordon for his conduct towards Ms C did not involve the Commissioner of Police himself.  Rather, the Commissioner of Police became aware of the MAP at a later stage.  At that time, the Midland Gate Shopping Centre incident had occurred and the decision of the Commissioner of Police to institute removal action was taken in consideration of all of the circumstances and not just the existence of the MAP.  It was certainly open to the Commissioner of Police to consider the circumstances of Mr Gordon’s conduct towards Ms C in the context of a loss of confidence, notwithstanding that a MAP had been imposed on Mr Gordon.  For those reasons, Ground 4 is not made out.

Ground 5

40       Ground 5 is that if the reason for Mr Gordon’s removal, whether in whole or in part, was his conduct during an IAU interview about his conduct towards Ms C, then when the Commissioner of Police served Mr Gordon with the MAP, that reason for removal was invalid because the Commissioner of Police had already determined that Mr Gordon’s conduct towards Ms C and during the IAU interview did not constitute a loss of confidence in Mr Gordon’s suitability to continue as a member.  The submissions in support of this ground of appeal are similar to those in relation to Ground 4 above.  Ground 5 is not made out for the same reasons as are given in relation to Ground 4.

Ground 6

41       Ground 6 is expressed as additional, or in the alternative to Ground 5.  It is that if the reason for the removal, whether in whole or in part, was Mr Gordon’s conduct during the IAU interview, then that as a reason for removal is trivial and insufficient to constitute a loss of confidence in Mr Gordon’s suitability to continue as a member of the WA Police.  This is because Mr Gordon took steps during the interview to correct any untruthfulness alleged to have arisen. 

42       In support of this ground, Ms Vernon submits that it is important to look to the gravity of the conduct and ask whether removal under s 8 of the Police Act is disproportionate to it.  As I understand the submission, the principle is acknowledged that untruthfulness, of itself, between an employer and an employee is a serious matter.  Here, however, Ms Vernon stresses that at no point was Mr Gordon wilfully misleading and that he gave accurate answers when he answered.  Further, he corrected himself during the course of the interview.  Therefore, when the interview is considered as a whole in final form, it cannot be said that he was untruthful.

43       In response, Ms Scaddan submits that the expectation that a police officer will answer questions honestly means that Mr Gordon does not get to choose when to be truthful.  It was only when he believed that the circumstances being put to him were less dire than he initially thought they were going to be, that he indicated a preparedness to tell the truth.  Even then, the suggestion for an adjournment part way through the interview was not made by Mr Gordon, but by Mr Gordon’s legal representative.

44       In relation to this ground of appeal, I find as follows.  In the first part of the IAU interview, Mr Gordon simply tried to deny what took place.  At the instigation of his legal representative, there was a short adjournment and when the interview resumed (CoP bundle, tab 12(3) at page 14), Mr Gordon stated that the story he had been telling to that point contained elements of truth but where he had said it was the whole story, that was not the whole truth.  In fact, in his own words he had “come up with a cock and bull story”.  In my view, the submission of Ms Scaddan is quite correct:  the expectation is that a police officer will tell the truth when interviewed and it is not open to a police officer to choose when to tell the truth. 

45       In any event, in my view there is considerable force in the observations of the Commissioner of Police in the reformulated reasons that Mr Gordon’s decision to admit to certain aspects of what had occurred with Ms C was not as a consequence of any apparent appreciation on Mr Gordon’s part that lying is wrong, but rather it was because Mr Gordon became aware that the issues were not as dire as he had first thought.  In addition, the Commissioner of Police doubts even after the short adjournment whether Mr Gordon was telling the truth in relation to allegations he made regarding Ms C’s own conduct.  Rather, and as noted earlier in our decision, the Commissioner of Police was inclined to believe Ms C’s version of events because Mr Gordon’s version of events is so inherently improbable as to verge on the ridiculous, and because of Mr Gordon’s own admission that he was untruthful about his interaction with Ms C.  That is a conclusion which is reasonably open to the Commissioner of Police on the material which was before him.  Therefore there remains some doubt whether Mr Gordon was telling the whole truth even after the adjournment.

46       In these circumstances, it cannot reasonably be said that Mr Gordon’s conduct during the IAU interview can be regarded as trivial and insufficient to constitute a loss of confidence in Mr Gordon’s suitability to continue as a member of the WA Police because he took steps during the interview to correct any untruthfulness alleged to have arisen.  This ground of appeal is not made out.

Concluding Comments

47       Mr Gordon has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair (s 33Q(2) of the Police Act) and that is the essential question before the WAIRC (McKay v. Commissioner of Police [2006] WASC 189; [2006] 155 IR 336).  The principles applicable to appeals under s 33P have been set out in the submissions of the Commissioner of Police and are not disputed in this appeal.  The Police Act entrusts the Commissioner of Police with the responsibility to act to maintain public confidence in the WA Police and its members, and to take prompt action to that end if it is seen by him as necessary and desirable (Carlyon v. Commissioner of Police ((2004) 85 WAIG 708 at 723; [2004] WAIRC 11966 at [180]).  The specific requirements on the WAIRC to have regard to the interest of the appellant and the public interest which is taken to include those matters set out in s 33Q(4)(b) of the Police Act can be accommodated within the industrial notion of a “fair go all round” (Carlyon (op cit) at [188]).

48       At the time of his removal, Mr Gordon was a senior sergeant with 32 years of service.  His removal undoubtedly has significant consequences for him and his family.  However, the reasons relied upon by the Commissioner of Police, and the reformulated reasons, are soundly based.  Mr Gordon’s reaction to the incident at the Midland Gate Shopping Centre while off duty was not that expected of a long serving and relatively senior police officer.  This is at least illustrated in the reactions of MML’s children who were in the car when he opened the passenger door of her car and leant across the passenger seat. 

49       In relation to Mr Gordon’s conduct towards Ms C, even though what actually occurred inside Ms C’s home is disputed, the inappropriateness of his behaviour can be assessed by Ms C’s evidence to the IAU that what had occurred sufficiently upset her that she subsequently had discussions with her father and a friend about what to do.  In addition, her evidence of her approaching two police officers who happened to be at a petrol station to raise the issue, together with her hesitation, and the reason for her hesitation, in opening her front door to the two IAU officers who called to see her, and finally her reaction when she saw Mr Gordon at the swap meet.  Mr Gordon’s conduct, even if the detail is disputed, can be seen to have been manifestly contrary to the public interest and to have been conduct which would undermine public confidence in the conduct of members of the WA Police.  It is very much to Ms C’s credit that in spite of what had occurred, she had at least the confidence in the WA Police to approach the two officers at the petrol station.  Nevertheless, Mr Gordon’s conduct was such as to put public confidence in the conduct of WA Police in jeopardy. 

50       His responses in the first part of the IAU interview are also not what is expected of a police officer when being interviewed.  His answers inevitably undermined the trust and confidence which needs to exist between an employer and an employee, and there remains some doubt whether Mr Gordon was telling the whole truth even after the adjournment.  There is a special nature in the relationship between the Commissioner of Police and members of the WA Police which is expressly recognised in s 33Q(4)(b)(ii) of the Police Act.  The Commissioner of Police has stated that honesty in internal investigations, particularly to officers from the IAU, is of paramount importance to him.  In my respectful observation, he is quite correct to do so.  

51       Mr Gordon’s removal was not because of one incident.  It was because of three incidents.  It is as well to remember that Mr Gordon was removed under s 8 of the Police Act not as a punishment, but as a means of maintaining the integrity and public confidence in the WA Police.  It cannot reasonably be said that the legal right of the Commissioner of Police to remove Mr Gordon has been exercised so harshly or oppressively against Mr Gordon as to amount to an abuse of that right (as set out in Re Undercliffe Nursing Home v. The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch (1985) 65 WAIG 385).  Accordingly, the appeal will be dismissed.

SCOTT ASC:

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

MAYMAN C:

53       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.