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

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00270

DELIVERED : Monday, 15 May 2017

FILE NO. : APPL 41 OF 2016

Appellant

AND

The Commissioner of Police

Respondent

CatchWords : Industrial law (WA) – Removal of Police Officer –  Loss of Confidence by Commissioner of Police – Appeal against removal –  Whether removal harsh, oppressive or unfair – Conduct unbecoming of a Police Officer – Police Officer convicted of criminal offence – False or misleading testimony in court – Commissioner of Police able to rely on conduct not the subject of a conviction

Legislation : Industrial Relations Act 1979  s 29(1)(b)(i)
Police Act 1892  s 8, s 33K, s 33L(1), s 33L(2), s 33L(3)(a), s 33L(3)(b), s 33L(4), s 33L(5)(a), s 33P, s 33P(1), s 33Q(1), s 33Q(1)(a), s 33Q(2), s 33Q(4), s 33Q(4)(b), s 33Q(4)(b)(i)

Industrial Relations Commission Regulations 2005  reg 92  

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr D Renton

Respondent : Mr N John

Reasons for Decision

1         This is our unanimous decision. 

2         Mr Nigel Beverly was removed as a police officer after he gave evidence in the Perth Magistrates Court.  The evidence Mr Beverly gave was in his own defence against a charge of aggravated assault occasioning bodily harm (AOBH) against his estranged wife, Tanya.  He was convicted of the charge. 

3         The Commissioner of Police lost confidence in Mr Beverly’s suitability to continue as a member of WA Police, having regard to Mr Beverly’s conduct, honesty and integrity.  The reason for the loss of confidence is set out in the Commissioner’s letter to him dated 27 May 2016 that: 

… on 1 September 2015, you acted in a manner unbecoming of a police officer by wilfully or negligently providing false or misleading testimony in the Perth Magistrates Court. 

Respondent’s reg 92 Bundle, document 6 –
Notice of Removal Recommendation 27 May 2016

4         Mr Beverly now appeals against that decision in accordance with s 33P of the Police Act 1892 (the Police Act), on the general ground that the decision to take removal action was harsh, oppressive or unfair. 

Grounds of appeal

5         The grounds of appeal, filed on 4 July 2016, are that: 

The reasons why the Respondent’s decision to remove the Appellant dated 7 June 2016 (“the Removal”) is harsh, oppressive or unfair are –

1. The finding that the Appellant on 1 September 2015 acted in a manner unbecoming of a police officer by willfully[sic] or negligently providing false or misleading testimony in the Perth Magistrates Court 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. it was not reasonable for the Respondent to rely on the observations regarding credibility made by the Magistrate as they were:

1.1.1. either erroneous or not entirely supported by the evidence; and

1.1.2. not the subject of a conviction for contempt nor were they the subject of a charge of perjury;

1.2. it was not reasonable for the Respondent to rely on the observations regarding credibility made by the Magistrate in circumstances when the Respondent’s internal managerial process did not raise any issue about the Appellant’s honesty or integrity during the internal investigations into the Appellant’s conduct concerning his wife;

1.3. the finding did not distinguish whether the alleged conduct was willful[sic] or negligent;

1.4. the Removal was based on a single incident; and

1.5. the Removal was disproportionate to the gravity of the alleged conduct. 

2. 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 33L(4) of the Police Act 1892 and in any event, denied the Appellant a fair go all round.

Form 31, Attachment A

Chronology

6         Nigel Beverly and Tanya Beverly married in 2012.  Tanya Beverly is also a police officer.  They have two children.  On 29 March 2014, in Sorrento, there was an altercation between them (the Sorrento incident), following a social function where they had both consumed alcohol.  The altercation was the subject of an internal investigation.  They were each found to have acted unprofessionally and to have failed to fully cooperate with the investigation.  Each was disciplined.  It was said that during this incident Nigel Beverly punched Tanya Beverly. 

7         In December 2014, Mr Beverly moved out of the family home in Carine.  However, they shared parenting responsibilities. 

8         On 21 February 2015, there was an incident at the home in Carine (the Carine incident) and police attended.

9         On 25 February 2015, an Interim Violence Restraining Order (VRO) was issued restraining Mr Beverly from contacting Mrs Beverly.  He breached that order by contacting her via email.  He was subsequently charged with this offence, pleaded guilty and received a fine and a spent conviction. 

10      On 24 February 2015, Mr Beverly was charged with the criminal offence of aggravated AOBH relating to the Carine incident.  He pleaded not guilty. 

11      On 26 February 2015, as part of an internal investigation, Mr Beverly was interviewed in a Managerial Interview regarding the alleged assault and the breach of the VRO.  At the completion of the internal investigation, Mr Beverly received an Assistant Commissioner’s Warning Notice for assaulting Ms Beverly and for the breach of the VRO. 

12      On 31 August and 1 September 2015, the charge of aggravated AOBH was heard in the Perth Magistrates Court.  Mr Beverly chose to give evidence in his trial. 

13      On 11 September 2015, Magistrate Mignacca‑Randazzo issued Reasons for Decision and a judgment finding Mr Beverly guilty of the charge.  In those Reasons, the learned Magistrate made findings against the truthfulness and credibility of Mr Beverly’s evidence. 

14      On 23 September 2015, Mr Beverly made his plea of mitigation and a fine of $10,000 was imposed on him.  Mr Beverly did not appeal against his conviction. 

15      In light of the findings against Mr Beverly’s truthfulness and credibility made by the Magistrate, an investigation was undertaken by Detective Senior Sergeant Bell in consideration of a recommendation that the Commissioner apply the Loss of Confidence (LOC) process and require Mr Beverly to show cause why he should not be removed. 

16      In his report dated 18 November 2015 (Respondent’s reg 92 Bundle, document 1.3), Detective Senior Sergeant Bell sets out the background information which generally is set out above.  He quotes from the Magistrate’s findings against Mr Beverly as follows (footnotes omitted): 

● “The accused has not been forthcoming that Ms Beverly had been[sic] had a black eye on 31 March 2014.” (Sorrento Incident)

● “The accused has not told me the truth that he did not punch Ms Beverly that accounts for the “black eye”.  In this respect the accused has not been a witness of the truth and not trust worthy.” (Sorrento Incident)

● “I do not believe the accused.  In this part of the accused’s evidence the accused has not been truthful.  The accused was not prepared to admit that Ms Beverly was seen on the bathroom floor crying and bleeding…” (Carine Incident)

● “As I have firmly concluded that I do not believe a significant part of the evidence given by the accused I also make clear that I do not even believe that his account might be true.  I have lost all confidence in the accused as a historian of the truth.  My disbelief and want of confidence is reinforced by the fact that the accused was also shown not to be truthful about causing Ms Beverly a black eye in the “Sorrento incident”.  My belief in the accused’s credibility is not even restored by taking account that as serving police officer he would be a person otherwise of good character.”

● “I believe and find as fact beyond reasonable doubt that the accused repeatedly and deliberately punched Ms Beverly 4 times to the nose with his left fist wrapped in a towel.  The accused’s actions were willed.  That series of strikes are proved by the prosecution beyond reasonable doubt…”

● “I also believe beyond reasonable doubt that the accused punched Ms Beverly to the face after she got up from the bath room floor and pushed the accused.  The accused’s punch was not in response to a harmful act but a lawful reaction by Ms Beverly.  In any event the further punch was an unreasonable response to the push and was unlawful.”

Respondent’s reg 92 Bundle,
document 1.3, pages 7 – 8

17      Detective Senior Sergeant Bell also examined and compared Mr Beverly’s answers in his managerial interviews regarding the Sorrento and Carine incidents with his evidence in court.  He made a finding that by repeating a false assertion relating to the Sorrento incident, in the trial, and raising previously unmentioned matters, Mr Beverly has displayed dishonesty. 

18      Mr Bell noted at page 10: 

It is clear from [Magistrate] Randazzo’s findings that Beverly has, during his evidence given under oath, lied about several matters.  Again Beverly repeated false assertions previously given in internal interviews, this time under oath in court.  Those false assertions are: 

● Tanya punched him during the Sorrento incident; (New assertion)

● He did not punch Tanya during the Sorrento incident;

● He did not know Tanya had a black eye following the Sorrento incident;

● He did not punch Tanya four times to the face during the Carine incident;

● He did not see any injuries or blood during the Carine incident; and

● He did not punch Tanya a fifth time during the Carine incident.

Beverly has displayed dishonesty, bringing his and the WA Police’s credibility into disrepute.  The issue is sustained.

Respondent’s reg 92 Bundle,
document 1.3, page 10

19      Detective Senior Sergeant Bell recommended the Commissioner initiate the LOC process.  The recommendation took into account the Magistrate’s findings, the investigation of the Sorrento and Carine incidents, a psychological assessment, and Mr Beverly’s refusal ‘to accept he has done anything inappropriate.  He minimises and abrogates his responsibility at all opportunities’ (page 13). 

20      On 18 January 2016, Superintendent Beer forwarded the recommendation to Assistant Commissioner Anticich, and it was approved. 

21      Inspector Green then prepared a Summary of Investigation, gathering together all materials said to be relevant.  In this SOI, Inspector Green analyses the circumstances of the assault on 21 February 2015 in the Carine incident and says (footnotes omitted): 

51. Whilst it is in no way the intent of the SOI to question the findings of [Magistrate] Randazzo or to dispute his interpretation of the evidence, it is nonetheless important to appreciate the opinion of Randazzo in respect of his views concerning witnesses are merely his views, albeit such views carry significant weight. 

52. It is noted that in his judgement Randazzo raised concerns over the honesty of Beverly, and, he made the comment over a number of specific aspects of his testimony including the following: 

‘I do not believe the accused.  In this part of the accused’s evidence the accused has not been truthful.  The accused was not prepared to admit that Ms Beverly was seen on the bathroom floor crying and bleeding by Ms Gantner when she was first called to come and get the children and certainly before any chain being broken or before he gave her any push with his hands.’

53. However, in respect of the above evidence attributed to Beverly it should be noted that this is not testimony provided by Beverly, either in direct evidence or put to him and denied by him during his testimony. 

54. From viewing the transcript of the trial it is noted the closest comments which could be attributed to Beverly in respect of this aspect of the evidence occurred on 1 September 2015 in discussions between Randazzo (His Honour) and the Defence Counsel (Dobson), in the following conversation:

His Honour:  ‘But I repeat the question I asked:  am I right in saying that on his version of events, there’s not an occasion when he has seen Ms Gantner go to the bathroom with Ms Beverly on the floor of the bath with a towel? 

Dobson:  ‘I don’t think he said that he said that.  No.  No, your Honour.’ 

His Honour:  ‘Am I right in saying that at least part of Ms Gantner’s evidence was clearly to that effect?’ 

Dobson:  ‘Yes, your Honour. Although you might think I am having 50 cents each way here, Ms Gantner also has that at the end, which on the complainant’s evidence never happened.’ 

55. It would appear that at least in respect of Randazzo’s view that Beverly has lied about seeing Tanya on the bathroom floor, bleeding and holding a towel to her nose in fairness to Beverly and with respect may not be accurate.  Whilst the evidence of Gantner was readily accepted it is noted that there was not a lot of rigour in determining exactly when Gantner arrived in the bathroom relative to when Beverly left the bathroom. 

56. Also from analysing the transcript it is noted that this evidence has not been led by Beverly, nor has this version of events been put to him (Beverly) to comment on or deny.  However, this does not diminish the fact that Randazzo has found Beverly guilty of the offence and that he has been untruthful or at least misleading for parts of his testimony albeit not to the extent expressed by Randazzo. 

57. The aspects of Beverly’s testimony which raise the most concern centre around the black eye received by Tanya in the Sorrento incident, and, the bloody nose received by Tanya in the Carine incident, neither of which were not reasonably explained by Beverly when he provided testimony concerning these matters. 

58. In respect of these matters, on balance it is accepted that Beverly has been untruthful or at least misleading when stating that he had not struck Tanya to the face during the 2014 Sorrento incident and again during the 2015 Carine incident for which he was convicted. 

59. In respect of these matters the available evidence suggests that the conduct of Beverly in being either untruthful or misleading was unbecoming and below what it should have rightly been expected of a police officer. 

Respondent’s reg 92 Bundle,
document 1, [51] – [59]

22      Inspector Green also looked at Mr Beverly’s ‘Behavioural History’ from the records of the respondent, which included both positive and negative comments and records of incidents. 

23      The SOI also took into account the Internal Investigations of the Sorrento and Carine incidents. 

24      It also examined the medical evidence, which included a psychological assessment of Mr Beverly and his work performance and recommendations by senior officers. 

25      In his conclusions, Inspector Green says: 

88. It is noted that the Psychological Assessment of Beverly articulates that Beverly does not pose a threat to others is positive as is his separation from Tanya which is likely to diminish the propensity of future incidents against her.  It is also noted that this LOC is primarily focused on the issue of Beverly providing untruthful or misleading evidence before Randazzo rather than the matter of the assault upon Tanya which has been finalised through the courts and during previous investigations. 

89. It is noted that Randazzo formed the view that Beverly has been untruthful in the evidence he provided, and whilst the view of Randazzo should be considered as persuasive it is at the end of the day merely his view.  From analysing the transcript of evidence actually led it could equally be determined that the view of Randazzo at least in respect to some of his criticisms of Beverly were not well founded or supported. 

90. That being said the available evidence suggests that Beverly has not been completely truthful and has been misleading with respect to the testimony has[sic] provided before Randazzo specifically in respect of the black eye and bloody nose of Tanya.  In respect of these matters his conduct in providing misleading evidence has the potential to undermine any good work undertaken and achieved by him previously and into the future. 

91. It is appreciated that Beverly is an experienced and effective police officer but for an officer to remain effective requires the maintenance trust from the community which in no small part is achieved from officers demonstrating honesty, integrity and appropriate conduct.  To be criticised for being untruthful when giving evidence before a Magistrate has the potential to seriously undermine the capacity of Beverly to perform his role as a police officer. 

92. On a positive note it is recognised that Beverly is highly regarded by senior police for his work ethic, his capacity to apprehend criminals, and, his leadership of others to improve their capacities in what are increasingly challenging times for police. 

93. If the Commissioner accepts the evidence in these issues then it is open to him to conclude that Beverly has breached the trust placed in him to adhere to the expected conduct of a police officer whilst off‑duty.

Recommendation

94. The conduct of Beverly in respect of this issue is well below what could and should be expected of him as a member of the WA Police.  I contend that there is evidence and doubt concerning Beverly’s conduct which may raise concerns over his ability to remain a member of the WA Police. 

95. Based on the available evidence it is open for the Commissioner to lose confidence in Beverly, although given the good work history of Beverly, the positive appraisal of his supervisors, and assessment that he does not pose a risk to others it is also open for Commissioner to consider alternative remedies should he deem that appropriate.

Respondent’s reg 92 Bundle,
document 1, [88] – [95]

26      On 5 April 2016, the Commissioner issued the Notice of Intention to Remove (NOITR).  The sole basis as set out in the NOITR was that: 

My loss of confidence in your suitability to continue as a member of WA Police is based on the matters set out in the Summary of Investigation prepared by the Review Officer and in particular, the allegation that you:

● On 1 September 2015, you acted in a manner unbecoming of a police officer by wilfully or negligently providing false or misleading testimony in the Perth Magistrates Court.

Respondent’s reg 92 Bundle, document 2

27      On 1 May 2016, Mr Beverly responded.  He argued against the Magistrate’s findings against him by setting out the details of the Sorrento and Carine incidents from his perspective and the evidence at trial.  He asserted that all his evidence was given with complete honesty and as thoroughly as he could.  He said that while he:

completely accept[ed] that the finding, and the comments, are a conclusion following the trial process of a learned Magistrate, it is not a finding of fact that needs to be accepted by you for the purpose of determining my honesty and integrity.  As I mentioned above, sometimes the court process produces results that do not reflect the truth of events, for various reasons, and this is one such example. 

Respondent’s reg 92 Bundle, document 3, page 11

28      Mr Beverly maintained that he did not punch Mrs Beverly on either occasion and that he gave truthful and full evidence before the court.  He ‘adamantly’ denied that he had not given truthful evidence or that he wilfully misled the court. 

29      He then said that he had let his family down and damaged his reputation and that of the WA Police Service, that in effect, the incidents were not a true reflection of his character. 

30      Mr Beverly said his performance in court was hindered by the emotional, stressful and personal nature of the proceedings, but he repeated his assertion that he was ‘completely honest’ in his evidence to the court. 

31      Inspector Green provided an Analysis of Response on 13 May 2016.  In it, he examined Mr Beverly’s response and the letters of support from senior officers.  In his conclusions, Inspector Green noted that if the Commissioner accepts the evidence in respect of the issue, it is open for him to conclude that the response had not provided any plausible explanation, mitigation or justification for the questionable conduct exhibited by Mr Beverly.  He said: 

37. Similarly, should the Commissioner determine he accepts the evidence outweighs the officer’s account of events in relation to each of these issues, it is open for him to conclude that Beverly has acted in a manner that is in clear contravention of the WA Police Code of Conduct and that his conduct represents a significant risk to WA Police which brings into question Beverly’s suitability in continuing as a member of WA Police. 

38. In the alternative if the Commissioner determines a remedy, other than progressing with an LOC, would reinforce with Beverly the expectations he has of him then this would also respectfully be open to him. 

…

40. I contend there is sufficient evidence and doubt concerning Beverly’s conduct, honesty and integrity for the Commissioner to lose confidence in his ability to remain a member of the WA Police. 

Respondent’s reg 92 Bundle,
document 4, [37] – [38], [40]

32      By letter dated 27 May 2016, the Commissioner recommended Mr Beverly’s removal to the Minister for Police, who approved it. 

The process of an appeal

33      If the Commissioner does not have confidence in a member’s suitability to continue as a member of the WA Police, the Commissioner may give the member a written notice setting out the grounds on which the Commissioner does not have confidence in the member’s suitability to continue as a member (Police Act s 33L(1)).  This is known as the Notice of Intention to Take Removal Action (NOITR). 

34      The member is then given 21 days in which to make written submissions to the Commissioner in respect of those grounds (s 33L(2)). 

35      The Commissioner then decides whether to take removal action (s 33L(3)(a)), and if so, is to give the member written notice of that decision (s 33L(3)(b)), the Notice of Removal Action (NORA). 

36      If the Commissioner decides to take removal action, the Notice referred to in subsection (3)(b) shall advise the member of the reasons for that decision (s 33L(5)(a)). 

37      Removal action is the recommendation by the Commissioner to the Minister that the Minister approve the removal (s 33K).  If approved by the Minister, the Commissioner gives the member the Notice of Removal (NOR). 

38      Therefore, the Commissioner’s reasons for taking removal action are those in the document referred to in s 33L(3)(b). 

The test and the appeal process

39      An appeal to the WAIRC is on the basis that the decision of the Commissioner of Police to take removal action relating to the member was harsh, oppressive or unfair (s 33P(1)).  In the case of an unfair dismissal of an employee, referred to the Commission under s 29(1)(b)(i) of the Industrial Relations Act 1979, this requires consideration of whether the employer’s lawful right to dismiss an employee had been exercised so harshly or oppressively against him as to amount to an abuse of that right (Brinsden J in The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia (1985) 65 WAIG 385).  In the case of a removal under s 8 of the Police Act, the same test applies, albeit that the member is not an employee.  Also, the test for the purposes of the Police Act include that the Commissioner is required to take account of those matters set out in s 33Q(4) which are: 

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.

(See also McGrath v Commissioner of Police [2005] WAIRC 01989; (2005) 85 WAIG 2006)

40      In Polizzi v Commissioner of Police [2014] WAIRC 00302; (2014) 94 WAIG 477 [144] the WAIRC expressed the test as including whether there is a logical and sound basis for the Commissioner finding as he did.  If so, then even if an aspect of the Commissioner’s reasons is invalid or mistaken, it does not necessarily mean that the whole of the decision ought to be overturned.  It is the overall reasonableness or fairness of the decision, taking account of all of the circumstances, that is significant. 

41      The appellant bears the burden of establishing that the decision to take removal action was harsh, oppressive or unfair (s 33Q(2)). 

42      The WAIRC is firstly to consider the Commissioner’s reasons for deciding to take removal action (s 33Q(1)).  According to s 33L(1), the Commissioner loses confidence in a member’s suitability to continue as a member, having regard to the member’s integrity, honesty, competence, performance or conduct. 

43      The grounds of appeal are those which the WAIRC is to consider, and they mark out the scope of the issues to be determined (Moran v The Commissioner of Police [2015] WAIRC 00464; (2015) 95 WAIG 804 (per Beech CC [96] – [97], Mayman C agreeing; Kenner C [175])).  In Ferguson v The Commissioner of Police [2017] WAIRC 00238 the WAIRC noted: 

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. 

44      Therefore, whilst s 33Q(1)(a) says the WAIRC is to consider the Commissioner of Police’s reasons for deciding to take removal action, that is done as part of the process of considering the appeal, rather than the WAIRC examining the reasons with a view to identifying matters other than those that are set out in the grounds of appeal. 

The Commissioner’s reasons

45      The reasons are set out in the Commissioner’s letter to Mr Beverly dated 27 May 2016 in accordance with s 33L(3)(b), the Notice of Removal (NORA).  That Notice says that the Commissioner has lost confidence in Mr Beverly’s suitability to remain as a member of WA Police, having regard to his conduct, honesty and integrity because ‘on 1 September 2015, [he] acted in a manner unbecoming of a police officer by wilfully or negligently providing false or misleading testimony in the Perth Magistrates Court’. 

46      It goes on to note: 

In the Response, you adamantly deny that you wilfully mislead[sic] the court in your testimony, regardless of the comments or finding of Magistrate Mignacca‑Randazzo.  You offer some strong letters of support from other officers, however you fail to provide any new material that would alter my decision. 

Much of the support we receive from the community as police officers is conditional upon officers conducting themselves appropriately at all times, including being truthful when providing testimony before the courts.  Unfortunately the available evidence suggests that you have not been truthful in the testimony you provided to Magistrate Mignacca-Randazzo and it is likely that this will present significant challenges to your credibility if you were to present testimony as a police officer before the courts in the future.  Your conduct has exposed the WA Police to risk and embarrassment, and potentially compromises the agency’s integrity and reputation within the community.

Respondent’s reg 92 Bundle, document 6

47      Therefore, the Commissioner’s reason is that he had lost confidence in Mr Beverly’s suitability to remain as a member of WA Police, having regard to his conduct, honesty and integrity because on 1 September 2015 he had acted in a manner unbecoming of a police officer by wilfully or negligently providing false or misleading testimony in the Perth Magistrates Court. 

Ground 1

48      The overarching assertion in grounds 1.1 and 1.2 is that the Commissioner relied on the Magistrate’s observations and ought not to have done so.  It then goes on to challenge particular aspects of the reasonableness of that reliance.  However, we would dismiss grounds 1.1 and 1.2 because the Commissioner did not rely on the Magistrate’s observations. 

49      The Commissioner’s reasons are not that the learned Magistrate made unfavourable comments about Mr Beverly’s honesty, but rather, in apparent reliance on an assessment by both Detective Senior Sergeant Bell and Inspector Green, Mr Beverly had been dishonest and repeated false assertions under oath in court.  Ultimately the Commissioner found that he had ‘wilfully or negligently provid[ed] false or misleading testimony.’ 

50      Detective Senior Sergeant Bell’s report examined records of the investigations into the Sorrento and Carine incidents, the VRO incident and the trial in the Perth Magistrates Court.  It analysed the differences between the findings of the investigating officers and the findings of fact by the Magistrate.  It compared Mr Beverly’s answers given in managerial interviews and those given in court.  It concluded in respect of the Sorrento incident that ‘[b]y repeating [the false assertion that he had not struck Tanya in the face] during trial, and raising previously unmentioned matters regarding Tanya’s punch, Beverly has displayed dishonesty’ (Respondent’s reg 92 Bundle, document 1.3, page 9). 

51      It also examined the conflicting statements relating to the Carine incident.  While the report acknowledged the difficulty in interpreting conflicting evidence, and of the benefits of testing witnesses and the accused under cross‑examination and under oath, it also referred to the Magistrate’s findings and said that it is clear from those findings that Mr Beverly lied under oath about several matters, and repeated false assertions previously given in internal interviews.  It identified six such assertions. 

52      This report made its own findings of fact rather than relying on the observations made by the Magistrate. 

53      In the SOI, Inspector Green examined the findings made by the learned Magistrate and compared them with the evidence before the court.  He examined the Magistrate’s findings by reference to the transcript and expressed reservations about, and expressly rejected, some of the Magistrate’s findings.  He drew his own conclusions about whether each of the Magistrate’s findings was supported by the evidence.  He drew distinctions between which facts the Magistrate found and those he accepted as being supported by the evidence and those which were not. 

54      In particular, Inspector Green did not conclude that Mr Beverly was dishonest or gave misleading evidence in respect of each of the factual findings made by the Magistrate.  Rather, he drew his own conclusions, including that ‘some of the Magistrate’s criticisms of Mr Beverly were not well founded or supported’ (Respondent’s reg 92 Bundle, document 1, page 21).  He went on to say that Mr Beverly had been dishonest in respect of specific matters. 

55      Therefore, in accepting the recommendation in the SOI, the Commissioner did not say that he had lost confidence in Mr Beverly because the Magistrate had made adverse comments about his credibility.  Rather he lost confidence because he found that Mr Beverly had in fact acted in a manner unbecoming of a police officer ‘by wilfully or negligently providing false or misleading testimony’, that is, as a matter of fact, not because of the Magistrate’s observations. 

56      In spite of finding that the general premise of all of grounds 1.1 and 1.2 is erroneous, we will deal with the sub‑grounds as if they were not based on that overarching premise. 

Ground 1.1.1

57      This ground alleges that the Magistrate’s observations about credibility were either erroneous or not entirely supported by the evidence. 

58      Mr Beverly says that it was not open to the Commissioner to rely on a judicial officer’s comments where they are not properly based in evidence.  Rather, the Commissioner must be independently satisfied of those matters.  Mr Beverly then examines the Magistrate’s observations and findings, and draws his own conclusion about his own and Mrs Beverly’s evidence. 

59      He also says that the Commissioner does not provide reasons for how he came to the conclusion he did or identify the particular evidence given by him. 

60      While the Commissioner’s NOITR and the NORA do not expressly identify the particular aspect or aspects of false or misleading testimony said to have been given by Mr Beverly, the supporting documents on which the Commissioner’s decision is based give clear guidance.  Firstly, the Commissioner appears to have accepted the recommendation of Inspector Green set out in the SOI.  That document analyses the evidence before the Magistrate and concludes that a couple of the Magistrate’s findings may be erroneous.  However, having identified those particular aspects, Inspector Green’s comments provide a clear inference that the remainder of the Magistrate’s findings and comments were correct.  He concludes that: 

57. The aspects of Beverly’s testimony which raise the most concern centre around the black eye received by Tanya in the Sorrento incident, and, the bloody nose received by Tanya in the Carine incident, neither of which were not reasonably explained by Beverly when he provided testimony concerning these matters. 

58. In respect of these matters, on balance it is accepted that Beverly has been untruthful or at least misleading when stating that he had not struck Tanya to the face during the 2014 Sorrento incident and again during the 2015 Carine incident for which he was convicted.

Respondent’s reg 92 Bundle, document 1, [57] – [58]

61      In particular, issues of what Mr Beverly saw in relation to Mrs Beverly being on the floor in the bathroom, and of having seen the black eye may be open to question.  What was not open to question was the finding that Mr Beverly punched Mrs Beverly a number of times. 

62      It is clear that a number of the Magistrate’s findings were accepted.  Those findings were contrary to Mr Beverly’s testimony (as well as to his other statements) and this supported a conclusion that he had given false or misleading testimony.  Therefore, to the extent that the Magistrate’s findings were considered and accepted by the Commissioner, it was open to him to do so (see AM v Commissioner of Police [2009] WAIRC 01285; (2009) 90 WAIG 276 at [45] – [46]). 

63      Therefore, in respect of ground 1.1.1, whether some of the Magistrate’s findings were erroneous about particular matters does not overcome the fact that a number of those findings regarding the punches were found by the Review Officer to be sustained, having taken account of the entirety of the material in the respondent’s possession. 

Ground 1.1.2

64      Mr Beverly complains that it was not reasonable for the respondent to rely on the observations regarding credibility made by the Magistrate as they were not subject to a conviction for contempt nor were they subject of a charge of perjury. 

65      Firstly, we note that Mr Beverly did not appeal against his conviction. 

66      Secondly, in his report, Detective Senior Sergeant Bell considered the prospects of Mr Beverly being charged with perjury for giving false evidence.  He noted that it is not the practice of WA Police to routinely conduct perjury investigations unless a magistrate makes a referral to the Police; that lying may be taken into account by the Magistrate in sentencing for the substantive offence; and the public interest would not be served by an investigation and trial of that matter as Mr Beverly had already been convicted of the original offence.  He also noted that Mr Beverly had acknowledged in sentencing that he was likely to be dismissed from WA Police, and he used it as a mitigating factor. 

67      It is not necessary for Mr Beverly to have been convicted of contempt or been charged with perjury for the Commissioner of Police to be able to draw the conclusion that he has in respect of Mr Beverly’s testimony before the Perth Magistrates Court. 

68      In Ferguson v The Commissioner of Police [2017] WAIRC 00238 at [63] – [65] the WAIRC dealt with the issue of the Commissioner being able to rely on matters not the subject of a conviction, saying: 

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. 

69      In the same way as the Commissioner is entitled to rely upon conduct which might, but has not, actually been the subject of criminal charges, or has been the subject of criminal charges which were not proven in a court of law, and thus beyond reasonable doubt, the Commissioner is not required to act or to draw his own conclusions regarding a member’s truthfulness in court based only on a conviction for contempt or a charge of perjury. 

70      Therefore, this ground fails. 

Ground 1.2

71      In this ground, Mr Beverly says that the Commissioner should not have relied on the observations of credibility by the Magistrate when the Commissioner’s own internal managerial processes did not raise any issues about Mr Beverly’s honesty or integrity during the internal investigations into Mr Beverly’s conduct concerning his wife.  However, this is contrary to the material that was actually considered by Detective Senior Sergeant Bell.  He referred to the investigations into the Sorrento incident in which the credibility of both Mr Beverly and Mrs Beverly was questioned.  Senior Sergeant Wynne’s report (Respondent’s reg 92 Bundle, document 1.11, pages 7 – 8) also noted at page 13 that Mr Beverly’s ‘sanatised[sic] version’ raised concerns about his integrity.  Inspector Green also referred to this in the SOI at page 17. 

72      This ground is not sustained. 

Ground 1.3

73      This ground says that it is not reasonable for the Commissioner to make the finding that he did when the finding did not distinguish between whether the alleged conduct was wilful or negligent.  It is said that this leaves open the possibility that the manner in which testimony was given might not necessarily give rise to loss of confidence. 

74      To have any possible effect on a removal decision, it would need to be demonstrated that negligently giving evidence on a matter such as punching someone a number of times, is a significantly lesser evil than doing so wilfully. 

75      The use of terms ‘wilfully or negligently’ is disjunctive.  However, they are used as a phrase to cover a broad range of attitudes, from intentional or deliberate through to failing to take proper care.  The use of the phrase in this case also suggests that, whether wilful or negligent, the evil was worthy of a loss of confidence. 

76      This ground seems to us to be very pedantic, and not of much assistance to Mr Beverly.  We think it is fair to say, having examined the reports by Detective Senior Sergeant Bell and Inspector Green, that there is not much room for a conclusion that Mr Beverly gave his testimony negligently, because he repeated the same assertions a number of times at various stages of the internal investigations and in court, as well as in his response to the NOITR.  That leaves the conclusion as being that his conduct was wilful. 

77      Further, it is difficult to contemplate that a person would be negligent in giving testimony about whether they punched another person, the only person present with them, a number of times. 

Ground 1.4

78      The basis of this ground is that it was unreasonable to rely on a single incident of giving evidence before the Magistrates Court.  However, as set out in the Commissioner’s NORA of 27 May 2016: 

much of the support we receive from the community as police officers is conditional upon officers conducting themselves appropriately at all times, including being truthful when providing testimony before the courts … and it is likely that this will present significant challenges to your credibility if you were to present testimony as a police officer before the courts in the future.  Your conduct has exposed the WA Police to risk and embarrassment, and potentially compromises the agency’s integrity and reputation within the community. 

79      We think this is the nub of the issue, that for all time, the truthfulness of Mr Beverly’s testimony and thus his credibility as a witness in court may be undermined.  It is a very significant matter that a police officer should wilfully or negligently give false testimony when the conduct of police officers is scrutinised and the truthfulness of their evidence in court is an essential part of their role. 

80      Also, s 33Q(4)(b)(i) notes the importance of ‘maintaining public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force’. 

Ground 1.5 – that the removal was disproportionate to the gravity of the alleged conduct

81      Mr Beverly accepts in his submissions at [85] that ‘a police officer who deliberately gives false or misleading testimony would undoubtedly do irreparable harm to both himself and the WA Police more broadly.’ 

82      Even taking account of the personal nature of the incident, Mr Beverly was still a member of WA Police and his relationship to upholding the law goes with him into court every time he gives evidence.  It is to be remembered that his removal was due to the Commissioner’s loss of confidence in him.  Giving false testimony in court strikes at the heart of the confidence the community holds in members of the Police Force and in the confidence the Commissioner holds in his officers. 

83      In our view, the gravity of the conduct was very significant in the context of Mr Beverly being a police officer.  It strikes at the heart of his role.  In the circumstances, removal was not disproportionate. 

Ground 2

84      This ground relates to the weight that the Commissioner gave to Mr Beverly’s written submissions. 

85      The authorities make it clear that the weight to be given to decisions of this nature is a matter for the decision maker, and only in cases where it is glaringly unreasonable would an appeal body overturn the weight that has been attributed in such a decision. 

86      In Lourey v Legal Profession Complaints Committee [2012] WASCA 112, Murphy JA (Pullin JA agreed) dealt with the issue of weight in these circumstances.  Although these proceedings are not by way of judicial review, the principles are not dissimilar: 

30 In proceedings for judicial review (and hence in an appeal of the kind under consideration), generally the weight to be given to a relevant consideration is for the decision‑maker to determine; however, a failure to give adequate weight to a matter of great importance, or the giving of excessive weight to a matter of no real importance, may signify that the discretionary decision is ‘manifestly unreasonable’ in the sense that it is so unreasonable that no reasonable person could ever have come to it:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (41) per Mason J, citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230.  In this respect, there is an analogy between judicial review of administrative action and appellate review of a judicial discretion:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (42).  An appellate court will not interfere with an exercise of judicial discretion on the basis of a failure to give adequate weight to relevant considerations unless it can be shown that the failure really amounts to a failure to exercise the discretion actually entrusted to the court:  Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 534 - 535; Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605, 614; Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519; Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 [36]; Dodds v Kennedy [2011] WASCA 32 [4].  The analogy serves to illustrate that ‘a court should proceed with caution ... lest it exceed its supervisory role by reviewing the decision on its merits’:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (42).  See also [102] below. 

31 A discretionary decision will be so unreasonable that no reasonable person could have come to it if there is ‘something overwhelming’ such that the conclusion is one to which no reasonable body could have come:  Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [44].  Also, a decision that no reasonable person could have come to is so unreasonable if ‘it might almost be described as being done in bad faith’ or if it is ‘so absurd that no sensible person could ever dream that it lay within the powers of the [Tribunal]’:  Wednesbury (229), cited with approval in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [30].

87      In this case, the Commissioner has examined the conduct, he has come to conclusions based on an analysis of all of the material before him that Mr Beverly has given false testimony in the Perth Magistrates Court.  He says in the NORA of 27 May 2016 that he has taken account of Mr Beverly’s years of service and the letters of support and his personal circumstances, but he has not changed his view. 

88      We are not satisfied that the weight attributed by the Commissioner to Mr Beverly’s case is manifestly unreasonable such that no reasonable person could have ever come to the decision he did, nor is there something overwhelming such that the conclusion is one that no reasonable body could have come to.  That is a high threshold to meet in such a case and is not demonstrated in this case where Mr Beverly has conducted himself in such a way that his credibility is severely undermined and would be an issue for performance of his duties for the future.  This is in spite of his having many years of worthy service and having received letters of support from other officers. 

Section 33Q(4) considerations

89      It is true that Mr Beverly’s interests are significant.  The decision to remove brings his career of 20 years as a police officer to an end; it affects his livelihood, his reputation and his family arrangements. 

90      Those interests are to be weighed with the public interest of the maintenance of public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force.  It is of great importance that the public confidence be maintained.  The Commissioner of Police has a particular role in ensuring that public confidence is maintained and his relationship with members of the Force is of a special nature because of the requirement for public confidence in members of the Force, and because of the powers and responsibilities of those police officers.  Confidence in a member means, amongst other things, being able to rely on the member to give truthful testimony in court, and not having any case before a court undermined by tarnished testimony. 

91      In those circumstances, we find that the interests of the appellant do not override the public interest as it is identified in s 33Q(4)(b). 

92      We find that it has not been demonstrated that the removal was harsh, oppressive or unfair.  Accordingly, the appeal is dismissed