WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00918

DELIVERED : Wednesday, 7 December 2016

FILE NO. : APPL 109 OF 2015

Appellant

AND

The Commissioner of Police

Respondent

CatchWords : Application to tender new evidence - Removal of police officer - Loss of confidence by Commissioner of Police - Relevance of proposed new evidence on remedy

Legislation  : Industrial Relations Act 1979 (WA)  s 23A(6), s 26(1), s 26(1)(a), s 26(1)(b), s 26(3), s 27, s 27 (1)(l)

Police Act 1892 (WA)  s 33P, s 33Q, s 33Q(4), s 33R,  s 33R(1), s 33R(2), s 33R(2)(b), s 33R(3), s 33R(4), s 33R(5), s 33R(7), s 33R(8), s 33S, s 33U, s 33U(1), s 33U(2), s 33U(3)

Result : Application to tender new evidence dismissed

Representation:

Counsel:

Applicant : Mr N T L John (of counsel)

Respondent : Ms K Vernon (of counsel)

Reasons for Decision

1         This is our unanimous decision. 

2         The Commissioner of Police seeks leave to tender new evidence in accordance with s 33R of the Police Act 1892 (WA) (the Police Act).  He also says that he ought then be able to reformulate his reasons for the appellant’s removal in accordance with s 33R(8) of the Police Act. 

Background

3         The appellant was removed as a police officer on 27 February 2015.  The Notice of Intention to Remove indicated that the grounds were that on 18 July 2014, the appellant had acted in a manner that was likely to bring discredit to the force or in a manner that is unbecoming of a member of the force in relation to alleged conduct towards four people.  He was charged with assault and grievous bodily harm in relation to that alleged conduct.  As at the time of his removal, the charges had not been dealt with by the court.  He filed this appeal on 27 March 2015.  In the circumstances, it was agreed twice that the hearing would be adjourned to enable those charges to be dealt with. 

4         On 17 October 2016, the Commissioner filed this application for leave to tender new evidence.  The evidence sought to be tendered is: 

(1)   Three emails from the appellant to the Commissioner, dated 6 April 2016; and

(2)   A record or ‘notations’ of communication between police officers and the appellant and his partner, on 8 April 2016, in relation to those emails. 

The Commissioner’s submission

5         The Commissioner submits that the WAIRC ought to be satisfied that it is in the interests of justice to grant leave to tender the new evidence because: 

(1)   The new evidence constitutes, in its own right, a reason that the Commissioner does not have confidence in the appellant’s suitability to be a member of WA Police;

(2)   The new evidence reinforces the Commissioner’s loss of confidence on the grounds he had previously expressed;

(3)   Ultimately, the WAIRC should not be left to speculate as to whether the new evidence would have altered the Commissioner’s loss of confidence; and

(4)   The new evidence is highly relevant to the WAIRC’s consideration of the application of s 33U of the Police Act in relation to remedy in the event that the appellant is successful in his appeal. 

6         The Commissioner acknowledges that the proposed evidence is not directly related to the appellant’s conduct on 18 July 2014 which the Commissioner considered, amongst other things, in deciding to take removal action.  However, it not only colours the particular conduct that day, but it also speaks to his integrity, performance and conduct as a whole, his attitude to the disciplined hierarchy of WA Police, and the maintenance of the special relationship between the appellant and the Commissioner. 

7         Therefore, it is said to be closely related to the appellant’s suitability to be a member of WA Police. 

8         The Commissioner also says that the proposed evidence will have significance in the determination of a remedy should the appeal be successful, as well as to whether the conduct is insubordinate and unbecoming of a police officer, and demonstrates a lack of integrity.  The proposed evidence demonstrates that the special relationship of trust and confidence between the Commissioner and the appellant has been irreparably destroyed. 

9         It is said to also demonstrate that the appellant has no intention to return to WA Police. 

Whether the Commissioner should be able to reformulate his reasons

10      The Commissioner says that in the event that leave is granted to tender the new evidence, he should be able to reformulate his reasons for removal of the appellant to expressly address the new evidence. 

11      The Commissioner says that the provisions of s 33R, taken in context, indicate that the Commissioner may revoke the removal action upon consideration of any new evidence whether tendered by the Commissioner under subsection (2) or by the appellant under subsections (3) and (4), or (5). 

12      If the Commissioner does not give notice of revocation under subsection (7), his rights under subsection (8) to reformulate his reasons arise.  Those reformulated reasons may be different from the original reasons or may be additional reasons. 

13      Therefore, the Commissioner seeks to be able to tender the proposed evidence and should then be able to reformulate his reasons. 

The appellant’s submissions

14      The appellant agrees that the emails constitute new evidence but says that the notations do not.  The notations do not have the necessary quality of evidence because they are by unknown authors; created on an unknown date; the location or source of the notations is unknown; the contents of the first notation purport to be the author’s commentary on what was allegedly said by the wife of the appellant (including hearsay and her opinions on matters purportedly in the mind of the appellant), and the contents of the second notation are the author’s commentary on what was allegedly said by the appellant. 

15      On such appeals, the WAIRC has a duty to have regard to the interests of the appellant and the public interest in determining the appeal (s 33Q(4) of the Police Act). 

16      The appellant says that the material facts which subsequently came to light regarding a removed person’s conduct must have a direct bearing on the conduct complained of in the removal.  The new evidence is not a material fact that has come to light regarding the appellant’s conduct, performance, honesty or integrity as a police officer because he was not a police officer at the time of the new evidence.  The new evidence does not have a direct or even indirect bearing on the appellant’s conduct complained of on 18 July 2014 that led to his removal and is irrelevant to the issues surrounding the appellant’s removal from office. 

17      The appellant also says that if the proposed evidence is accepted as true and correct, then it demonstrates that the appellant was suffering from mental health issues brought about by the stress of being removed based on allegations not found proven in court. 

18      The appellant says that the new evidence does not colour the appellant’s conduct claimed to have occurred on 18 July 2014 because there was no connection between the two.  It is not relevant in assessing whether the appellant’s removal on 27 February 2015 was harsh, oppressive or unfair because it occurred after the removal, and would not have occurred but for the removal. 

19      Also, the conduct occurred at the time the Commissioner had no jurisdiction over the appellant and there was no special relationship between the two, so the alleged conduct cannot bring discredit on the WA Police Force.

Whether the Commissioner should be able to reformulate his reasons

20      Even if leave were granted, the appellant says this does not entitle the respondent to reformulate his reasons for removal pursuant to s 33R(8) of the Police Act. 

21      The appellant also says that the proposed evidence cannot give rise to an additional reason for the appellant’s removal because such conduct had not occurred at the time of removal. 

The Commissioner’s submission in reply

22      The Commissioner sought to overcome the question of the genesis or provenance of the first and second notations by appending a statement of Detective Sergeant Alan Bavich as to his attendance at the appellant’s address on 8 April 2016 in relation to the emails, of speaking ‘with [the appellant’s] wife’, and of a telephone conversation with the appellant later that day. 

Consideration and conclusions

The statutory scheme

23      The Police Act sets out in s 33P – Appeal right that a member who has been removed from office may appeal that removal action on the grounds that it was harsh, oppressive or unfair, and is to state the nature of relief sought. 

24      Section 33Q – Proceedings on appeal, at subsection (4) provides, amongst other things, that the WAIRC is to have regard to the interests of the appellant and the public interest which is to include: 

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

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

25      Section 33R – New evidence on appeal provides that either party may seek leave to tender new evidence.  In the case of an application by the Commissioner, the WAIRC may grant the application if the appellant consents or it is satisfied that it is in the interests of justice to do so.  The appellant has not consented.  Therefore, the WAIRC needs to consider whether it is in the interests of justice to do so.  That phrase must be given a wide meaning (Allan Raymond Carlyon v Commissioner of Police [2004] WAIRC 11428; (2004) 84 WAIG 1395 [18] – [21]).

26      Subsection (5) provides that if the Commissioner of Police is given leave to tender new evidence, then the appellant is to have a reasonable opportunity to consider that new evidence and may tender new evidence without leave in response to the new evidence tendered by the Commissioner. 

27      The Commissioner may then either give notice of the revocation of the removal action (subsection (7)) or reformulate his or her reasons for not having confidence in the appellant’s suitability to continue as a member, having regard to the appellant’s integrity, honesty, competence, performance or conduct (subsection (8)). 

28      According to s 33S of the Police Act, certain provisions of the Industrial Relations Act 1979 (WA) (the IR Act), subject to necessary modifications, apply to and in relation to an appeal and a determination in this case.  They include s 26(1)(a) and (b) and s 26(3).  Section 26(1)(a) and (b) provide that in the exercise of its jurisdiction, the WAIRC: 

(a)    shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and

(b)    shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; …

(IR Act  s 26(1)(a) and (b))

29      Subsection (3) is not relevant to this matter. 

30      Section 33R of the Police Act provides two significant aspects regarding new evidence.  The first is that, generally, new evidence shall not be tendered.  In those circumstances, the appeal is to be determined on the evidence that was before the Commissioner in making the decision to take removal action (s 33R(1)), subject to it being in the interests of justice to receive new evidence. 

31      Secondly, in the case of the Commissioner’s application for leave to tender new evidence, the test is whether it is in the interests of justice to do so (s 33R(2)(b)). 

32      We also note that where it is the appellant who seeks leave to tender new evidence, s 33R(4) provides that the WAIRC shall have regard to two specific matters: 

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

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

before his or her removal from office. 

(Police Act  s 33R(4))

33      Those tests do not apply to an application by the Commissioner.  Previous cases about new evidence relate to a matter occurring before the removal action was taken, not after it.  

34      In Carlyon v Commissioner of Police, the new evidence the Commissioner sought leave to tender was the transcript of the criminal trial of the appellant and the Magistrate’s reasons relating to the incidents which formed the Commissioner’s grounds for removal.  That is not the case here.  The proposed evidence relates to conduct after the removal.  It is not evidence which came to light subsequent to the removal, but which relates to the conduct that formed the grounds for the removal.  It relates to an entirely different circumstance.  It was conduct at a time when the appellant was not a police officer. 

35      The decision in Minister for Police and Commissioner of Police v Smith (1993) 73 WAIG 2311, 2326 is also distinguishable.  In that case, the evidence which later came to light related to the incident the subject of the Commissioner’s grounds for dismissing Smith, not to a different and subsequent incident. 

36      The Commissioner also refers to Kenner C’s comments in Gordon v Commissioner of Police [2010] WAIRC 00334 at [34] to [35]; (2010) 90 WAIG 645 at 650, that the provisions of s 26(1) and 27 (1)(l) of the IR Act are directed to enabling the WAIRC to ‘do what is necessary to enable the expeditious hearing and determination of all [the] relevant issues’ (Commissioner’s submissions, 2 November 2016 [59]).  However, Kenner C’s comments were made in respect of an application by the appellant to amend his grounds of appeal.  Such an application is to be dealt with by reference to the general powers of and directions to the WAIRC in ss 26 and 27 of the IR Act.  On the other hand, the issue of new evidence is specifically set out and circumscribed by the provisions of s 33R of the Police Act.  Those specific provisions must override any consideration of the WAIRC’s general powers under ss 26 and 27 of the IR Act. 

37      In determining the appeal, the WAIRC is not limited to what it may consider, however, it is to consider two particular matters:

(1)   the interests of the appellant; and

(2)   the public interest, which is taken to include: 

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

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

(Police Act  s 33Q)

38      The conduct complained of by reference to the proposed evidence is not related either to the particular conduct alleged in the Notice of Intention to Remove, nor is it of a similar type.  It is communications with the Commissioner by email relating to an entirely different matter.

39      While the conduct the subject of the proposed evidence may relate to the appellant’s conduct and integrity as a person, it does not relate to his conduct and integrity as a member of the force because he was not a member at the time. 

40      However, it does relate to a former police officer seeking to return to the WA Police and conduct during that period when he is seeking to be returned.  It may reflect on his integrity as a person and consequently may reflect on the WA Police Force should he be returned to that situation, if he is successful in his appeal. 

Relevance of the proposed evidence on remedy

41      Section 33U(1), (2) and (3) provide that: 

(1)    This section applies if the WAIRC decides on an appeal that the decision to take removal action relating to the appellant was harsh, oppressive or unfair.

(2)    If this section applies and unless an order is made under subsection (3) the WAIRC may order that the appellant’s removal from office is and is to be taken to have always been of no effect.

(3)    If, and only if, the WAIRC considers that it is impracticable for it to be taken that the appellant’s removal from office is and has always been of no effect, the Commission may instead of making an order under subsection (2), subject to subsections (5) and (6), order the Commissioner of Police to pay the appellant an amount of compensation for loss or injury caused by the removal.

42      Subsection (3) suggests that, rather than nullifying the removal, the WAIRC may make an order for compensation for loss or injury, similar to the question of impracticability of reinstatement in s 23A(6) of the IR Act that: 

If, and only if, the Commission considers reinstatement or re‑employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.

43      In our view, it is only in this regard, that is, whether nullifying the removal is practicable, that the proposed evidence may be relevant.  This is because it may be relevant to whether the appellant and the Commissioner could re‑establish the necessary special relationship which is recognised in the Police Act, and whether the Commissioner would have the trust and confidence in the appellant as a police officer. 

44      Section 33U(4) sets out two particular matters which are relevant to consider in considering ‘whether or not it is impracticable for it to be taken that the appellant’s removal from office is and always has been of no effect’.  The use of the phrase ‘it is relevant to consider’ is not language of limitation.  The considerations are not expressed as exhaustive.  Rather, the subsection provides that while the WAIRC is to consider those matters set out in s 33U(4)(a) and (b) as relevant, it is not restricted to those matters only (AM v Commissioner of Police [2010] WAIRC 00061; (2010) 90 WAIG 283 [18] – [23]). 

45      Therefore, we are of the view that the Commissioner ought not to be granted leave to tender the new evidence for the purpose of determining the appeal.  Should the WAIRC uphold the appeal and need to determine whether, under s 33U(3), it is impracticable for the removal to be taken as having no effect, it may be raised at that point. 

46      The application is dismissed.