WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00238

DELIVERED : Monday, 1 May 2017

FILE NO. : APPL 109 OF 2015

Appellant

AND

The Commissioner of Police

Respondent

CatchWords : Removal of Police Officer –  Appeal against removal – Code of Conduct – Conduct likely to bring discredit on and unbecoming of a member of the Police Force - Loss of Confidence by Commissioner of Police – Loss of Confidence proceedings not suspended pending criminal trial – Misconduct as criminal offence or disciplinary matter – Allegations of assault and grievous bodily harm disciplinary matters and not relied on same considerations as required to prove criminal conduct - Denial of procedural fairness and natural justice – Right to claim privilege against self-incrimination – Denial of real opportunity to respond to allegations and express contrition

Legislation : Criminal Code Act 1902  s 231, s 260, s 297, s 313(1)(b)
 Police Act 1892  s 33L, s 33Q, s 33R, s 33T, s 33W
Police Force Regulations 1979  reg 603

Result : Appeal upheld

Representation:

Counsel:

Appellant : Mr D Jones of counsel and later, Ms K Vernon of counsel

Respondent : Mr N John of counsel

Solicitors:

Appellant : Tindall Gask Bentley Lawyers

Respondent : State Solicitor’s Office

Reasons for Decision

1         On 18 July 2014, Shane Michael Ferguson, a serving police officer, was off duty.  Having attended social functions during the day and evening, at around 11 pm, Mr Ferguson was leaving a bar in Midland where the WA Police Social Club had held a function.  He heard a car doing a burnout in the road.  He walked out into the road where the vehicle had stopped and leaned down to take a photograph of the registration plate.  He then walked to the driver’s door.  He says that he announced that he was a police officer and showed his police identification.  It is alleged that Mr Ferguson attempted to drag the driver, Gavin Ross Gero, from the car.  Mr Ferguson says he unsuccessfully attempted to arrest Mr Gero. 

2         In the minutes that followed, Mr Ferguson says that Mr Gero and his friends tried to drag Mr Ferguson away from Mr Gero.  Mr Gero and his friends say that Mr Ferguson was either drunk or affected by drugs, they did not think Mr Ferguson could be a police officer because of the way he was behaving, and a number of physical altercations followed. 

3         A number of people, including Mr Ferguson, were injured in the altercations. 

4         This incident led to internal and criminal investigations. 

The managerial interview and witness statements

5         Acting Detective Inspector Jackson took charge of the internal investigation into the incident on 21 July 2014.

6         On 29 July 2014 Acting Detective Inspector Jackson interviewed Mr Ferguson in the presence of Inspector Alan Carter and a lawyer for the police union.  In this interview, Mr Ferguson was ordered, in accordance with reg 603 of the Police Force Regulations 1979, to answer questions, and he did so, noting that the interview was not voluntary. 

7         A number of people who attended the social function attended by Mr Ferguson immediately before the incident, staff members at the bar and a group of young people who were in a vehicle departing from the venue, gave statements to police.  There was also a witness statement from a police sergeant who attended the scene after the incident.  Some of these statements are signed and witnessed and some are not. 

The criminal charges

8         On 21 July 2014, Acting Detective Inspector Jackson started the criminal investigation. 

9         On 21 August 2014, Mr Ferguson was charged with offences arising during the incident of:

(a) Causing grievous bodily harm to a Mr Prime contrary to s 297 of The Criminal Code;

(b) Assaulting a Ms Lloyd‑Riley contrary to s 313(1)(b) of The Criminal Code.

The Interim Internal Investigation Report

10      On 27 August 2014, Acting Detective Inspector Jackson produced an Interim Internal Investigation Report into the incident.  It examined the witness statements and other evidence, including CCTV footage and a video and audio recording made by one of the witnesses on his telephone. 

11      A decision was then made to proceed with a loss of confidence (LOC) process under s 33L of the Police Act 1892 (the Police Act).  Inspector Neville Dockery was appointed as a review officer in that process.  He issued his Summary of Investigation (SOI) on 7 November 2014 recommending that the Commissioner consider issuing Mr Ferguson with a Notice of Intention to Remove (NOITR) having regard to Mr Ferguson’s integrity, professionalism and conduct on the grounds that he:

I. On 18 July 2014 at Midland, acted in a manner that was likely to bring discredit on the force or in a manner that is unbecoming of a member of the force by using excessive force when arresting Gavin Ross Gero;

II. On 18 July 2014 at Midland, acted in a manner that was likely to bring discredit on the force or in a manner that is unbecoming of a member of the force by assaulting Hayley Lloyd‑Riley;

III. On 18 July 2014 at Midland, acted in a manner that was likely to bring discredit on the force or in a manner that is unbecoming of a member of the force by causing serious injury to Joshua Keiran Prime; and

IV. On 18 July 2014 at Midland, acted in a manner that was likely to bring discredit on the force or in a manner that is unbecoming of a member of the force by being disorderly and assaulting Sam Self.

Respondent’s reg 92 Bundle, document 1, page 58

12      The Commissioner issued a NOITR to Mr Ferguson on 27 November 2014 in which he said, amongst other things, that ‘in the absence of being persuaded otherwise’ he intended to recommend to the Minister for Police that she approve Mr Ferguson’s removal from the Police Force.  This was on the basis that he had lost confidence in Mr Ferguson’s suitability to continue as a member of WA Police.  He said that his loss of confidence was based on the matters set out in the SOI prepared by the Review Officer and in particular, the four allegations set out above.  He invited Mr Ferguson to respond by making a written submission within 21 days in relation to the loss of confidence. 

13      Mr Ferguson’s solicitor, Darren Jones, wrote to the Commissioner by letter dated 29 December 2014.  He asked the Commissioner to suspend the LOC process until the criminal charges against Mr Ferguson were resolved in the District Court.  He noted the likely timing for the trial.  He said that it would be unfair for Mr Ferguson to be required to respond to the four issues because it would affect his position and defence to the criminal charges.  He said:

The pressure to respond to the allegations as part of s.33L process may intrude upon Detective 1/C Ferguson’s lawful privilege against self-incrimination.  You will be aware that issues relating to the privilege in light of compulsion, and the compulsory nature of a s.33L response, have recently been raised and commented upon in cases like Critchley v The State of WA [2013] WASCA 28, Lee v The Queen [2014] HCA 20 and others that have a bearing on these issues. 

14      Mr Jones also asserted that the allegations and ‘component issues’ that would arise at trial are matters that would be tested and decided by jury.  He said that the result would have a strong bearing on the Commissioner’s position on the allegations as part of the LOC process, and he respectfully suggested that the Commissioner would be in ‘a much better position to make [his] decision with the fulness[sic] of information available after trial’. 

15      The letter pointed out that the Commissioner would be aware that s 33T of the Police Act provides for an adjournment of appeal proceedings in cases where the grounds correspond to criminal charges. 

16      On an unknown date in December 2014, the Commissioner responded saying that criminal and LOC proceedings were quite separate processes and both have to be independently considered and resolved.  He said the outcome of either proceedings should not influence the other.  He also said that a criminal conviction or acquittal alone is not a sole determining factor in the LOC process and that ‘what is more important is a comprehensive and fair managerial examination of all the facts in issue which form the basis of the LOC nomination and action’.  He therefore denied the request to suspend the LOC process. 

17      Mr Ferguson then provided his response to the NOITR by letter dated 6 January 2014.  He reiterated his previous concerns, also expressed in the interview some months earlier, about any link between the LOC proceedings and the criminal matters.  He noted his intention to enter a plea of not guilty to the alleged offences of Grievous Bodily Harm (GBH) and Common Assault.  He referred to the submission Mr Jones made on his behalf dated 29 December 2014, saying:

I cannot properly respond to issues that relate directly to the criminal charges against me for the reasons he has identified in his submission.

Respondent’s reg 92 Bundle, document 4

18      He noted that ‘[a] large amount of emphasis has been placed on my level of intoxication at the time of this incident including my previous complaint history’.  He addressed those matters in his letter.  He went on to say that he wanted ‘to co‑operate as much as possible with these proceedings at least to the extent that I can address certain concerns identified in the SOI’.  He addressed his personal background; briefly set out the circumstances leading up to the incident; set out his injuries and hospital treatment following the incident; noted that he had been arrested on suspicion of GBH and common assault; he had been offered an opportunity to take part in an Electronic Record of Interview which he declined at the time; and was charged with GBH and common assault.

19      In response to the particulars of the allegations, Mr Ferguson said that although his desire was to ‘articulate the circumstances of the night, I consider myself in a precarious position, as I do not wish to jeopardise the court process.’  He denied unlawfully assaulting Ms Lloyd‑Riley, Mr Gero or Mr Self as alleged.  In relation to the assault of Mr Prime, Mr Ferguson said he acted to protect himself in response to being attacked.  Under the heading of Ancillary Issues, he then addressed what he described as ‘peripheral aspects of the SOI without compromising my position as an accused person’.  These included whether or not he was intoxicated at the time of the incident, and he gave reasons associated with his physical characteristics why people may have come to the conclusion that he was intoxicated. 

20      He responded to the issues of his complaint history.  He also put forward his personal attributes and skills for the Commissioner’s consideration. 

21      Next, he set out, in brief terms that he acted in good faith during the incident.  He accepted that in hindsight he made a poor decision by getting involved in the incident and that there were other options available to him.

22      He argued his case generally, highlighting his productivity and the further positive contribution he could make.

23      The letter demonstrates that Mr Ferguson did not wish to, and did not, respond to the particulars of the allegations or to the reports about what the witnesses had said about the incident because he did not wish to jeopardise the court process. 

24      Mr Dockery then provided an Analysis of Response dated 21 January 2015.

25      By letter dated 10 February 2015, the Commissioner noted that:

Your subsequent response to the Notice failed to provide sufficient detailed explanation or mitigation for your actions, (despite my attempt to reassure you that one process does not affect the other), so given your lack of detailed explanation or acknowledgement for your conduct therefore, it offers me no comfort that your actions were appropriate, justified or measured. 

Other than your denial of unlawfully assaulting the alleged victims and claiming you acted in self‑defence, your lack of detail explaining the significant amount of police and independent evidence against you, leaves me very little scope to even consider that your actions may have been justified. 

On balance, the evidence clearly reveals (albeit a perhaps well‑intentioned, yet misguided attempt by you to intervene in a traffic incident), your subsequent over‑zealous response significantly escalated the matter and conduct as alleged. Your failure to specifically respond does not attempt to account for your actions, nor have you recognised that your actions were excessive and disproportionate and you have offered no contrition for your actions to address the serious questions that remain over your integrity, conduct and performance.

Respondent’s reg 92 Bundle, document 7

26      The Commissioner also said:

the existence of criminal proceedings does not preclude me from taking LOC action in relation to any matter, act or omission relating to or being an element of the offence. This recognises the managerial and summary nature of this process, as being both an effective and expedient means of addressing risk and maintaining community confidence in WA Police. 

27      He noted that criminal charges were currently pending against Mr Ferguson but said that they ‘do not form the basis for LOC proceedings against you, but rather your demonstrated unprofessional conduct which is relevant.’  He said that there is nothing in Mr Ferguson’s response that altered the position that he exhibited serious unprofessional conduct, used excessive and unnecessary force, was disorderly on the evening, and did not meet the standards required of a member of WA Police.  The letter then addressed each of the allegations.

28      The concluding paragraphs of the letter note that Mr Ferguson’s response did not justify or acknowledge that his actions were inappropriate, and say that he failed to accept responsibility, failed to show contrition for his actions, exhibited poor judgement and a lack of professionalism.  The Commissioner concluded that Mr Ferguson’s unprofessional conduct was in clear contravention of the WA Police Code of Conduct and that his ‘actions significantly undermined the credibility and reputation of WA Police.’ 

29      Therefore, following the internal investigation, the Commissioner of Police found that Mr Ferguson had acted in a manner that was likely to bring discredit on WA Police, in a manner that was unbecoming of a member of WA Police by:

(1) Using excessive force when arresting Mr Gero;

(2) Assaulting Ms Lloyd‑Riley;

(3) Causing serious injury to Mr Prime; and

(4) Being disorderly and assaulting Mr Self.

30      The Commissioner decided to remove Mr Ferguson from office as a member of the WA Police on the basis that he had lost confidence in Mr Ferguson’s suitability to remain as a member of WA Police, having regard to Mr Ferguson’s integrity, performance and conduct. 

Outcome of criminal trial

31      When the two criminal charges against Mr Ferguson were heard in the District Court he was acquitted and the charges were discontinued respectively. 

The process of this appeal

32      The process of this matter being dealt with by the WAIRC was deferred, in accordance with s 33T of the Police Act, on the basis that Mr Ferguson had been charged with criminal offences arising from the same incident and did not wish to proceed to hearing until those charges had been dealt with. 

33      Following the dismissal of the charges, the Commissioner of Police filed his response to the appeal on 23 November 2016.  The appellant filed an outline of submissions on 10 January 2017.  The Commissioner filed an outline of submissions on 16 January 2017.  The matter was to be heard on 18 January 2017. 

The application to amend the grounds of appeal

34      On 13 January 2017, Mr Ferguson filed an application to amend his grounds of appeal to add to ground 3, that the respondent ‘failed to consider and/or take into account evidence which was available to the Respondent of the CCTV footage taken from inside the [bar] which contradicted the eye witness evidence that the appellant was intoxicated’. 

35      At the hearing on 18 January 2017 when the application to amend was raised, it was unclear whether or not the Commissioner had seen and considered the evidence to which the application to amend related.  The Commissioner was on leave and was not immediately available to provide instructions to his counsel, and his counsel needed an adjournment to obtain instructions. 

36      We decided that it was appropriate to adjourn to allow clarification about whether the Commissioner had viewed and considered that footage. 

37      Mr Ferguson preferred to proceed with the hearing rather than have the adjournment.  Accordingly, the application to amend ground 3 was abandoned. 

The Commissioner’s reasons for removal

38      Under s 33Q of the Police Act, the WAIRC is required to consider the Commissioner’s reasons for deciding to take removal action. 

39      The WAIRC is required to be ‘attentive to the reasons for which the Commissioner of Police decided to remove a member … [and] to examine closely those reasons in terms of substance and the process by which they were formulated’ (Carlyon v Commissioner of Police [2004] WAIRC 11966 at [15]). 

40      In our view, that does not require the WAIRC to necessarily review the Commissioner’s reasons either in addition to or separately from the grounds of appeal.  It would be unusual were the WAIRC expected to independently assess those reasons with a view to itself identifying errors or omissions not raised on appeal.  Rather, it is a step in the process of dealing with the appeal.  The WAIRC is not, in that sense, an independent oversight body charged with reviewing the Commissioner’s decisions. 

41      The Commissioner’s reasons were as a result of his having formed the view that in the incident, Mr Ferguson had acted in the manner alleged. 

42      The Commissioner notes that the removal action does not relate to the lawfulness or otherwise of the conduct.  Rather, it is conduct likely to bring discredit on the Force or unbecoming of a member of the Force. 

43      An examination of the material before us, in particular his letter of 10 February 2015, leads to a conclusion that the Commissioner’s reasons for removal were formed by an examination of the evidence from a number of witnesses as well as Mr Ferguson, and from the CCTV footage and the video recording.  He weighed that evidence and the conflicts within it.  Subject to a small number of errors in the findings, which were acknowledged by the Commissioner’s counsel during the hearing, the Commissioner’s letter to Mr Ferguson of 10 February 2015 sets out the detail of those reasons. 

44      The conclusion to the letter sets out that in his response, Mr Ferguson did not justify or acknowledge that his actions were inappropriate, that he failed to accept responsibility, or show contrition for his actions, and exhibited poor judgment and a lack of professionalism.  It said that ‘your unprofessional conduct was a flagrant disregard of police policies and guidelines.’ 

45      The Commissioner then said he accepts that there was sufficient evidence to sustain the issues put to him in the Notice and that ‘I have concluded that your unprofessional conduct was in clear contravention of the WA Police Code of Conduct in respect of your integrity, performance and conduct and that your actions significantly undermined the credibility and reputation of WA Police.’  He also noted that he had had regard to the context of Mr Ferguson’s response, including his personal circumstances, letters of support, and previous service history, however, this did not ameliorate his concerns about Mr Ferguson’s suitability to remain a member of WA Police. 

46      Therefore, we think it is fair to say that the Commissioner’s reasons relied upon conclusions, drawn from a number of accounts of the incident, that Mr Ferguson had done the four things alleged and that his conduct in the incident was abrasive, over‑zealous, unprofessional and an over‑reaction; he used excessive force; exercised poor judgment; his behaviour was questionable and his conduct unprofessional; that his actions caused significant bodily injury to Mr Prime; that his use of force towards Mr Prime was excessive and inappropriate in the circumstances, was totally unwarranted; that he had admitted that his conduct was disorderly and a complete over‑reaction in the circumstances; that ‘[a]lthough enduring a hostile reaction and receiving injury in the process would have been confronting and challenging, for a trained police officer, it does not excuse your aggressive and inappropriate response towards the group in a public place.’ 

47      We note that the allegations against Mr Ferguson in the LOC notice were not that his conduct was abrasive, over‑zealous, unprofessional, etc. in the incident, but that he acted in a manner that was likely to bring discredit on the Force, or in a manner unbecoming of a member of the Force by assaulting Ms Lloyd‑Riley, using excessive force against Mr Gero, causing serious injury to Mr Prime and being disorderly and assaulting Mr Self. 

48      Finally, the Commissioner concluded that his integrity, performance, conduct and actions significantly undermined the credibility and reputation of WA Police. 

49      As to the issue of intoxication, we think it is fair to say that the letter indicates that it is not the intoxication itself which is the issue.  It is the particular conduct of use of excessive force, assault, causing serious injury and being disorderly and assault, which brought significant discredit to the Force.  The conclusion appears to be that the conduct is exacerbated by Mr Ferguson’s apparent level of intoxication, that it is, for example, the excessive use of force ‘coupled with [his] apparent heightened state of intoxication’.  Therefore, one of the clear conclusions was that Mr Ferguson had consumed a significant amount of alcohol and was intoxicated. 

50      Whether he was intoxicated or not does not appear to be the main cause of concern, rather it was his conduct being unbecoming and bringing discredit on the Force.  However, the level of intoxication and the perception of the level of intoxication clearly evident by the comments and actions of others around him, were a cause for concern. 

The Grounds of Appeal

51      The grounds of appeal are that the decision to remove Mr Ferguson was harsh, oppressive or unfair because: 

1. The findings that the Appellant, on 18 July 2014 at Midland, acted in a manner that was likely to bring discredit on the force or in [a] manner that is unbecoming of a member of the force cannot be a basis for the Respondent to have lost confidence in the Appellant’s suitability to continue as a member of the WA Police Service having regard to his honesty, integrity and conduct because:

1.1 the findings were entirely based on findings that the Appellant’s conduct as alleged constituted criminal offences contrary to the Criminal Code WA;

1.2 as at the date of the Removal, the Appellant had been charged with criminal offences arising from the same conduct and findings as alleged by the Respondent (criminal charges);

1.3 as at the date of the Removal, the criminal charges had not been dealt with by a court.

2. The Appellant was denied a fair go all round because the Respondent:

2.1 unreasonably refused the Appellant’s request dated 29 December 2014 (via his legal representative) to suspend the loss of confidence process under section 33L of the Police Act 1892 (WA) (Act) until after the determination of the criminal charges;

2.2 failed to take into account the Appellant’s right to claim the privilege against self‑incrimination whilst the criminal charges remained undetermined by concluding that the Appellant’s failure to provide a detailed explanation for, or acknowledgment of, his conduct on 18 July 2014 left the Respondent with very little scope to even consider that the Appellant’s actions may have been justified;

2.3 denied the Appellant the benefit of the privilege against self-incrimination;

2.4 in denying the Appellant the benefit of the privilege against self‑incrimination, thereby:

2.4.1 denied the Appellant the right to be heard in response pursuant to section 33L(2) of the Act; and/or

2.4.2 failed to properly consider whether the Appellant had committed the conduct as alleged.

3. The Respondent failed to properly take into account the effect of the Appellant’s written submissions in response to the Respondent’s Notice of Intention to Remove and therefore took removal action contrary to section 33(L)(4) of the Act.

Consideration

52      Rather than attacking the particular evidence or findings, Mr Ferguson says that the process is flawed and therefore the result is unfair. 

Ground 1

53      In proceeding with the LOC process, Mr Ferguson says the Commissioner made his own findings that Mr Ferguson was guilty of criminal conduct prior to a valid judgment of a criminal court.  He is said to have denied Mr Ferguson a fair go all around by: 

(a) ignoring the presumption of innocence;

(b) making findings that he committed offences of assault alleged in the NOITR in reliance on unsworn and untested statements; and

(c) making those findings of fact prior to the trial of the charges, and with knowledge that the same unsworn and untested statements the respondent relied upon would be tested in court. 

54      Mr Ferguson says that where the conduct relied on by the Commissioner constitutes criminal offences, such conduct cannot be the basis for a finding of a LOC until a prosecution is brought and the conduct is proven in a court of criminal jurisdiction.  To proceed with a LOC process in the absence of that proof is a denial of natural justice and procedural fairness. 

55      There were two criminal charges; one of assaulting Ms Lloyd‑Riley and one of GBH to Mr Prime.  These two terms of ‘assault’ and ‘grievous bodily harm’ are terms arising in criminal law, under The Criminal Code.  Mr Ferguson says the language used in the LOC allegations against him is either the same language used in the criminal charges or it has the same meaning.  For example, the term used in respect of the conduct towards Mr Prime was ‘causing serious injury’ and this has the same meaning as the criminal charge of grievous bodily harm.  The ‘use of excessive force’ is the same as ‘assault’.  Also, using ‘more force than is justified by law under the circumstances’ is unlawful (The Criminal Code  s 231, see also s 260). 

56      The Commissioner is said to have found Mr Ferguson had committed criminal offences.  Mr Ferguson says that only a criminal court can make such findings.  At the time of those LOC findings, the court had not found him guilty. 

57      The Commissioner is also said to have made the findings based on unsigned and untested witness statements, and would appear to have used a lower standard of proof than is required to prove them under criminal law. 

58      In this way, the Commissioner is said to have erred. 

59      Mr Ferguson refers to AM v Commissioner of Police [2009] WAIRC 01285; (2009) 90 WAIG 276 and to Gordon v Commissioner of Police [2010] WAIRC 00937; (2010) 90 WAIG 1644, where the Commissioner deferred the removal process pending the outcome of the criminal proceedings.  Mr Ferguson says this is the way the Commissioner ought to have dealt with his case. 

60      Therefore, Mr Ferguson says that the Commissioner has, in effect, dismissed him for breaking the law when in fact, at the time he was dismissed, the criminal charges had not been heard and that is the only way for a conclusion to be reached about such an issue.  In any event, the charges were ultimately dismissed. 

61      The Commissioner says that the same conduct may constitute both criminal offences and disciplinary matters.  Merely using words which coincide with the language of crimes does not mean that the acts themselves can only constitute crimes. 

62      The Commissioner says that s 33T and s 33W of the Police Act provide a complete answer to this ground.  Firstly, the Commissioner was entitled to proceed as the existence of the charges did not preclude the Commissioner from taking removal action in relation to any matter, act or omission relating to, or being an element of, the offence. 

63      We find that the Commissioner is able to make findings about conduct, which might also constitute criminal conduct, as a step towards deciding whether to lose confidence in an officer, in the absence of a criminal court deciding the matter. 

64      In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7, the plurality of the High Court commented on courts exercising civil jurisdiction, determining facts which establish that a person has committed a crime (footnotes omitted): 

32 The Authority submits, correctly, that the ‘general principle’ stated by the Full Court and set out at [26] above is expressed too widely and does not follow from the constitutional constraint stated in the joint reasons in Lim on the adjudgment and punishment of criminal guilt under Commonwealth law.  Not uncommonly, courts exercising civil jurisdiction are required to determine facts which establish that a person has committed a crime. Satisfaction in such a case is upon the balance of probability. In Helton v Allen, Mr Helton’s acquittal of the murder of the testatrix was no bar, on the trial of the civil suit arising out of the will, to the finding that he had unlawfully killed her.

33 More generally, and contrary to the ‘normal expectation’ stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. The decisions of this Court in Attorney-General (Cth) v Alinta Ltd and Albarran v Companies Auditors and Liquidators Disciplinary Board accept so much.  There is no reason to suppose that a Commonwealth public housing authority might lack the capacity to terminate a lease on the ground of the tenant’s use of the premises for an unlawful purpose notwithstanding that the tenant has not been convicted of an offence arising out of that unlawful use.

65      In the same way, the Commissioner exercising a statutory function, may decide that an officer has conducted himself or herself in a way that might also constitute an offence under the criminal law, but which for the Commissioner’s purposes of managing the officer, constitutes conduct that is likely to bring discredit on the Force and is unbecoming. 

66      In Gordon v Commissioner of Police, Beech CC, with whom Scott A/SC and Mayman C agreed, said that: 

29 … 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.

67      Therefore, the same conduct can constitute misconduct or conduct unbecoming, as well as being criminal conduct.  However, they can be separate matters.  One relates to whether or not the person has broken the law.  A court will decide, on evidence to the appropriate standard, whether the conduct of the person constitutes a breach of the law. 

68      The same conduct, which might be the basis for criminal charges, while not being demonstrated to the criminal standard of proof, may still be demonstrated to the standard set out in Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336, taking account of the seriousness of the allegations, etc.  That conduct may also demonstrate a lack of judgment, poor self control, verbal abuse, or other characteristics which mean that the Commissioner might, in a particular case, be entitled to lose confidence. 

69      In this case, it is clear from the language used in the letter of 10 February 2015 and the way the allegations are framed, that those allegations do not rely on the same considerations as are required to prove criminal conduct in respect of the same behaviour.  The fact that they rely on the same incident, conduct and consequences does not mean that the Commissioner was obliged to await the outcome of criminal charges.  Mr Ferguson was not removed because he had broken the law.  He was removed because the Commissioner decided that his conduct, found on the lesser standard of proof, was likely to bring discredit on the Force or was unbecoming of a member of the Force.  Those things might be true of conduct whether it also constitutes criminal conduct or not.  In this case, there were two sets of complaints arising from the same conduct, one of them alleged criminal conduct and the other was conduct likely to bring discredit to the Force or in a manner that is unbecoming to a member of the Force. 

70      Merely because the language used in the allegations in the LOC process is the same or similar language as would arise in criminal charges does not mean the conduct is exclusively criminal.  For example, the use of the term ‘assaulting’ or ‘causing serious injury’ does not mean that that conduct can only be characterised as criminal conduct.  Those terms have an ordinary meaning.  Such conduct may still be misconduct or conduct likely to bring discredit to the Force or in manner unbecoming of a member of the Force. 

71      We find that the cases of AM v Commissioner of Police and Gordon v Commissioner of Police should be distinguished.  They were cases where the Commissioner awaited the outcome of the trial.  They were each convicted.  However, they each appealed.  The convictions were subsequently overturned, a retrial ordered and no retrial eventuated.  The circumstances giving rise to those matters and the issues and the manner in which they were determined was quite different to the circumstances in this case. 

72      In Gordon v Commissioner of Police [2010] WAIRC 00937 at [21], Beech CC, with whom Scott A/SC and Mayman C agreed, noted that in the Commissioner’s letter to Mr Gordon, he said that he would avail himself ‘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’.  Mr Ferguson says that this is what should have happened in his case.  Beech CC went on to comment that:

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 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. 

73      The Commissioner is not obliged to await the criminal trial to see if any additional information or evidence is led that might assist him in making his decision.  That is a matter for the Commissioner in considering whether it is appropriate to proceed or not. 

74      In this case, the reason why Mr Ferguson wanted a delay was so that he would not compromise his rights at the criminal trial.  It is up to the Commissioner whether or not he wished to delay so that he could either take account of the acquittal or conviction, or take account of any additional information or evidence that was led at the trial.  In this case, he decided not to.  That does not assist the appellant in this particular case. 

75      Merely because the Commissioner decided not to proceed pending the outcome of the trials in those cases does not mean he is obliged to do so in other circumstances.  In fact, s 33T of the Police Act envisages that the Commissioner may proceed on the LOC process and act in the face of unresolved criminal charges. 

76      Therefore, we would dismiss the first ground of appeal. 

Ground 2

77      Prior to the Commissioner coming to a final conclusion, he offered Mr Ferguson an opportunity to respond to the allegations and to any proposed action.  Mr Ferguson sought to defer any response to avoid compromising his right to silence and his privilege against self‑incrimination in his upcoming criminal trial. 

78      In light of the history of cases which have demonstrated that information provided in internal cases may end up before the courts, and in any event, Mr Ferguson did not want to be required to compromise his privilege against self‑incrimination. 

79      In Mr Jones’ letter to the Commissioner, he referred to two cases.  Critchley was a case where the trial judge erroneously allowed into evidence Mr Critchley’s letter to the Commissioner in response to a NOITR in which he made admissions against his interests.  Lee & Anor v The Queen [2014] HCA 20 involved the unlawful publication of the transcripts of interviews by the New South Wales Crime Commission to the New South Wales Police and to officers of the Director of Public Prosecutions. 

80      In this case, the Commissioner sought to give certain assurances about the use he might make of any response Mr Ferguson might make but he could not guarantee that other use might be sought, either lawfully or otherwise. 

81      The Commissioner refused to defer the process, saying that the two processes were unrelated, and went on to make his decision.  In his letter of 10 February 2015, he said that ‘[y]our failure to specifically respond does not attempt to account for your actions, nor have you recognised that your actions were excessive and disproportionate and you have offered no contrition for your actions to address the serious questions that remain over your integrity, conduct and performance’. 

82      It was this exact opportunity, to respond by giving an account of his actions, either recognising that they were excessive and disproportionate or of justifying and explaining them, or of offering contrition, that Mr Ferguson was denied because he sought to preserve, and not potentially compromise, his rights in the criminal trial. 

83      His failure to address those things in his response to the Commissioner is understandable and reasonable in the circumstances. 

84      There is a good argument that a member facing such a charge should enjoy his right to silence until the last minute; that is, until he has heard all the evidence against him in the criminal proceedings and needs to make a decision whether or not to give evidence in his own defence. 

85      There is a good argument that he should be able to make a decision unencumbered by considerations of whether previous statements made by him in the matter may affect the credibility of that evidence in the myriad ways that previous statements, in the hands of a skilful cross‑examiner, may do so (and we add here, especially if the trier of fact is a jury). 

86      One of the key points identified in the process in Carlyon at [16] is that: 

The Commissioner of Police must have given the member the opportunity to answer any allegations and review all of the evidence. 

87      Mr Ferguson was constrained by potentially compromising his rights in his impending criminal trial and he sought the Commissioner to defer the process until then.  In that context, the Commissioner’s refusal to allow this meant that Mr Ferguson was not given a real opportunity to answer the allegations, and was unfair. 

88      A denial of procedural fairness is arguably able to be cured in a de novo hearing in an industrial tribunal:  JRS Forbes, ‘Justice in Tribunals’, referred to in Australian Medical Association (WA) Incorporated v The Minister of Health (FB) [2016] WAIRC 00699; (2016) 96 WAIG 1255 at [176]. 

It is an accepted principle that a hearing of an industrial matter may cure a breach of procedural fairness if the person aggrieved by a decision is allowed to canvas the issues that he or she would have raised if the original process had been properly conducted: see the discussion by Forbes J R S in Justice in Tribunals (4th ed, 2014) [14.10]; citing Baker v University of Ballarat (2005) 225 ALR 218; [2005] FCAFC 210 [51] - [52].

89      Also in Fombason v Kimberley Individual and Family Support Association [2016] WAIRC 00171; (2016) 96 WAIG 295 [84] – [85], Smith AP, with whom Beech CC and Scott A/SC agreed, said:

84 Even if this argument is accepted, and a breach of procedural fairness could be made out, not every breach of procedural fairness will necessarily lead to a decision being set aside. In Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 - 146, the High Court found:

The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board ([1957] 2 Q.B. 55, at p. 67), in these terms: 

‘There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge.... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.’

That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.  By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact:  Supreme Court Rules, O. 58, rr. 6 and 14. However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial. (emphasis added)

85 In Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543 [187] - [188], Ritter AP said: 

The broader principle which may be extracted from Stead is encapsulated by their Honour’s question ‘would further information possibly have made any difference?’ (145) and that all ‘the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome’ (147).

Gleeson CJ in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [10] said: ‘In a case of failure to give a hearing when a hearing is required, the person complaining of denial procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness’. Similarly, Kirby J in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [86] referred to the High Court in Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 as affirming the ‘strong principle earlier stated in Stead’. This principle was a ‘could not possibly have produced a different result’ test.

90      The WAIRC cannot now know what Mr Ferguson might have said to the Commissioner had he had an opportunity after the threat to his right of privilege against self‑incrimination was no longer hanging over him.  He may have made submissions on issues of fact.  He may have responded to the evidence and the conclusions regarding the allegations by putting his version and giving a different perspective of the other evidence.  He might have expressed contrition in ways acceptable to the Commissioner. 

91      We note that Mr Ferguson did some of those in the managerial interview on 29 July 2014, in the days immediately following the incident.  Mr Ferguson provided a very detailed account of the events that day, including answering questions of clarification and detail.  Mr Ferguson was shown video footage from a CCTV camera and was asked for his comments about particular matters displayed in the footage. He was asked about his alcohol consumption and his view of his level of intoxication, about injuries he and others received and about statements made by others either involved in or witness to the incident.  The questions and answers are detailed and extensive.  The transcript of the interview indicates it went for two hours and nine minutes.  The transcript is just over 36 closely typed pages. 

92      However, that interview was before Mr Ferguson was charged with criminal offences, and he was compelled to answer.  Yet, at the end of the process, Mr Ferguson did not have a proper opportunity to respond to all of the evidence and the analysis of it that was finally before the Commissioner.  That ultimately was put to him in the NOITR. 

93      Although the Commissioner says that Mr Ferguson could have informed the WAIRC during the course of the hearing of anything that he would have said to the Commissioner in response now that the criminal trial has been concluded and the charges dismissed, the refusal to allow him to await that outcome cannot now be cured by the hearing. 

94      This is reinforced by it not being for the WAIRC to take over the role of the Commissioner in managing WA Police by deciding that it would have come to a different conclusion (see Carlyon [215]). 

95      It is not an answer to now say that Mr Ferguson could have put something to the Commissioner after the criminal trial by way of new evidence by utilising s 33R of the Police Act.  By then, the LOC decision had been made and Mr Ferguson was removed.  Section 33R would then come into play as part of the appeal process, after the removal, not before.  It should not be for an appellant to apply to the WAIRC to tender new evidence to overcome the Commissioner’s error. 

96      It is not incumbent upon Mr Ferguson to now prove to the WAIRC that he would have given a fuller account, that he would have admitted fault and expressed contrition at the material time but felt he could not do so and that this would have made a difference. 

97      The appellant does not now have to tell the WAIRC what he would have said if the process had been stayed and he had given his substantive response to the Commissioner once the criminal charges had been determined. 

98      It will now never be known what Mr Ferguson would have said in those different circumstances and it will never be known what attitude the Commissioner would have taken to Mr Ferguson’s submissions in those circumstances. 

99      The time for those different circumstances to arise has now passed and, what is more, passed for all time.  The Commissioner cannot now put what he knows out of his mind and look at a fresh submission unencumbered by it.  Mr Ferguson could hardly now address the Commissioner’s evident concerns by making a submission that involved him admitting that his actions were ‘excessive and disproportionate’ and ‘offering contrition’. 

100   Further, it requires the Commissioner to agree to the new evidence being tendered or for the WAIRC to be satisfied of a range of things. 

101   Mr Ferguson has not applied to the WAIRC to tender new evidence.  We must consider the fairness of the Commissioner acting as he did, when he did.  We conclude that s 33R does not cure the denial of procedural fairness in this case. 

102   The Commissioner argues that any officer, faced with a criminal charge arising from the same conduct as gave rise to the LOC process, could rely on the right to silence to avoid responding until criminal charges were dealt with, and that s 33W says he does not have to wait.  We are not convinced that this will apply in all cases.  The circumstances of this case indicate that fairness overrides s 33W. 

103   It was unfair of the Commissioner to proceed with the Part IIB process over Mr Ferguson’s request that it be stayed and to then rely upon what may very well have been a product of refusing the stay, namely a response that was not detailed and did not admit fault and express contrition. 

104   In coming to this conclusion, we have also taken account of the provisions of s 33T and s 33W of the Police Act.  These provisions merely say that the Commissioner is not precluded from proceeding with the LOC process.  It does not oblige him to proceed.  In this particular case, it was unfair that the Commissioner did not grant Mr Ferguson’s request for a deferral to ensure that his rights were not negated. 

105   We uphold this ground. 

Ground 3

106   This ground of appeal relates to the Commissioner’s final decision which stated that Mr Ferguson’s response did not explain or acknowledge his conduct, and gave no real response to the evidence against him.  Yet the Commissioner’s comments reflect that he did not accept and take account of what Mr Ferguson had said to him.  That is, that he could not address those things without compromising his rights in the criminal trial. 

107   We conclude that this ground is merely consequential on the finding that ground 2 is made out. 

In conclusion

108   Section 33Q(4) of the Police Act provides: 

Without limiting the matters to which the WAIRC is otherwise required or permitted to have regard in determining the appeal, it shall have regard to —

(a) the interests of the appellant; and

(b) 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.

109   It is in the public interest that public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force is maintained.  However, in the Commissioner deciding to take removal action, he must do so in a way that is fair.  The denial of a real opportunity to respond to the detail of the evidence and, if appropriate, to express contrition in a meaningful way about particular matters is a matter of unfairness.  It was denied by the insistence on a response which might have compromised Mr Ferguson’s rights. 

110   We would uphold the appeal and find that, in the circumstances, the decision to take removal action was unfair. 

Remedy

111   The parties are to confer about remedy and advise the WAIRC within 14 days of any agreement on remedy, or alternatively, of any agreed directions for a hearing on that matter. 

112   We note that in our Reasons for Decision dealing with the Commissioner’s application to tender new evidence ([2016] WAIRC 00918; (2016) 96 WAIG 1599) at [45], we indicated that should we 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, that matter of the new evidence may be raised.  The parties are to confer about that issue also.