2017 WAIRC 00714
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00714

CORAM
: PUBLIC SERVICE APPEAL BOARD
COMMISSIONER D J MATTHEWS - CHAIRMAN
MS B CONWAY - BOARD MEMBER
MR D SPIVEY - BOARD MEMBER

HEARD
:
TUESDAY, 20 DECEMBER 2016, TUESDAY, 24 JANUARY 2017, TUESDAY, 9 MAY 2017, WEDNESDAY, 10 MAY 2017, FRIDAY, 12 MAY 2017, MONDAY, 22 MAY 2017, WEDNESDAY, 14 JUNE 2017

DELIVERED : WEDNESDAY, 9 AUGUST 2017

FILE NO. : PSAB 22 OF 2016

BETWEEN
:
RICHARD BROWN
Appellant

AND

COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES
Respondent

CatchWords : Industrial Law (WA) - Appeal against decision to terminate employment - Decision to terminate based on finding of misconduct - Appellant denies misconduct occurred - Recording of appellant making contact with respondent witness tendered as exhibit - Public Service Appeal Board raises concerns about the recording - Submissions made about the contact between appellant and respondent's witness - Contact found to be improper - Consequences of improper conduct considered - Appellant's improper conduct makes reinstatement to former role impossible
Legislation : Industrial Relations Act 1979
Young Offenders Act 1994
Result : Appeal dismissed

REPRESENTATION:

Counsel:
APPELLANT : MR D HOWLETT
RESPONDENT : MR J CARROLL
Solicitors:
APPELLANT : APPIUS LAWYERS
RESPONDENT : STATE SOLICITOR’S OFFICE



Cases referred to in reasons:
Civil Service Association of Western Australia (Incorporated) v Director General, Ministry of Justice (2003) 94 WAIG 215
Director of Public Prosecutions (Cth) v Besim and Anor [2017] VSCA 165
Librizzi v Western Australia [2006] WASCA 237
Mary Elizabeth Re v The Inspector of Custodial Services (2013) 93 WAIG 1776
Powell v in de Braekt [2007] WASC 165
R v McLachlan [1998] 2 VR 55
Randall de Vos v Minit Australia Pty Ltd (2002) 82 WAIG 2195

Reasons for Decision
1 On 23 September 2016 the appellant was dismissed from his employment as a Youth Custodial Officer after the respondent had found the following allegation against him proven:
“That on or about 20 September 2015, at Banksia Hill Detention Centre, you did not treat a young person in your care with respect or dignity when you swore at a Detainee D telling him to get into his cell while calling him a "cocksucker" and "little cunt'' or words to that affect. You then apparently threatened him by saying words to the effect of, "I will smash your head in you little cunt."
(Notice of Appeal – Annexure RB 1)
2 On 14 October 2016 the appellant lodged a Notice of Appeal to the Public Service Appeal Board.
3 Directions hearings were held by the Public Service Appeal Board on 20 December 2016 and 24 January 2017. At those hearings it was agreed that the matter would proceed by way of a hearing de novo and the appellant made clear that his case would be that he had not committed the misconduct alleged against him, or at least it could not be established to the requisite standard that he had.
4 The appellant argued at the directions hearing on 24 January 2017 that the respondent ought to present its case first and for the reasons given by the Public Service Appeal Board at the conclusion of the directions hearing on that date such an order was made.
5 The substantive hearing commenced on 9 May 2017.
6 The respondent opened and called as his first witness Peter Swidden Murdoch, his Principal Review Officer for Professional Conduct and Review. Mr Murdoch gave some brief evidence in chief and was then cross-examined by counsel for the appellant.
7 The cross-examination initially traversed, among other things, the whereabouts of D, the reasons why the respondent was not calling D as a witness, which other witnesses were to be called by the respondent, disclosure of documents to the appellant and that the appellant had been trained as a staff support officer and negotiator.
8 The cross-examination then moved onto issues related to D’s character and, in particular, whether he had a reputation for making false complaints against Youth Custodial Officers.
9 An objection taken to the tender of a document during that part of the cross-examination led counsel for the respondent to make clear that the respondent was not relying upon anything produced by D as part of his case.
10 The cross-examination then explored an issue that was clearly of importance to the appellant, being whether another witness to be called, another Youth Custodial Officer and an apparent eye witness to relevant events, Leilani McCloy, had been threatened or pressured at any stage of the investigation of the allegation by the respondent. Counsel for the appellant explored with Mr Murdoch his knowledge of that matter and the consideration given to it in the decision-making in relation to the appellant.
11 Counsel for the appellant then had Mr Murdoch agree he was aware that another person present at the time of relevant events, not Ms McCloy, was of the opinion that the appellant had not misconducted himself in relation to D.
12 There was then this exchange:
“If Ms McCloy felt threatened and forced to make statements against her will and feared for her job and had a mortgage, do you accept that they would be reasons why she may something - might say something different to what Mr Brown says? --- I - I can’t say what’s in Ms McCloy’s mind. I - I can’t answer that.”
(ts 21)
13 And a little later:
“So if Ms felt - Ms McCloy felt threatened and forced to make a statement against her will and feared for her job and had a mortgage and was threatened to agree with something that was being put to her do you accept that those things would be a reason why she might make up a story and agree with what Mr D had said?I - I can’t say. I mean, she has the option to speak to the CCC if that was the case or the Public Sector Commission to make a public interest disclosure. There’s a - a range of avenues where if she felt in those circumstances for that to be the case that she could air those and have them dealt with confidentially and appropriately.”
(ts 21)

14 Later counsel for the appellant cross-examined Mr Murdoch about whether he was aware that Ms McCloy had made a complaint about threats and bullying and in that line of questioning mentioned the names “Beard”, “Kelly”, “Davison” and “Kench”.
15 Finally, counsel for the appellant asked some questions intimating that Ms McCloy had given an inaccurate account to the respondent and had been influenced in giving her account by Messrs Beard and Kelly.
16 It is clear from the cross-examination of Mr Murdoch that the reliability of Ms McCloy’s previous statements was to be put in issue by the appellant and that, to the extent she had, in the past, said things adverse to the interests of the appellant, the question of whether she had done so as a result of threats, bullying and intimidation by officers of the respondent was to be explored with her.
17 It was also clear that the comment in the letter of dismissal that Ms McCloy had “no reason to make a false claim or in some way collude with D to make up a story” was going to be challenged and that whether Ms McCloy had such a reason was to be explored with her.
18 Ms McCloy was then called by the respondent.
19 Ms McCloy gave evidence that she had been a Youth Custodial Officer for around two and a half years.
20 Ms McCloy then gave evidence about what she had relevantly seen and heard on or about 20 September 2015.
21 Ms McCloy then gave evidence about how she had come to report the incident and about how she came to make a statement about it and whether she had been “pressured or coerced” to do so by officers of the respondent.
22 Ms McCloy’s evidence in chief moved on to what she described as “bullying” of her by other staff after 20 September 2015.
23 There was then the following exchange:
And has Mr Brown tried to make contact with you since he was dismissed from his employment?Yes.
Can you explain?Ah, I’ve had a few text messages, ah, a few phone calls. Um, a lot of them I haven’t answered cos I didn’t have the number so I don’t really know who it was. I don’t answer numbers that I don’t know.
Did you ever speak to him?Yeah, on two occasions I spoke to him. Two occasions.
And was this in person or   ?No, just over the phone.
Did you make any record of these conversations?The first one, no. The second one, um, I recorded a part of the conversation, yes.
How did you record that?On my housemate’s phone.
Okay.
And explain why you recorded that conversation?For my own - just personally I wanted to have a record of it and I felt uncomfortable during the phone call and I thought I might record it cos - just to recall what was said.
When you say uncomfortable, can you say why you felt uncomfortable?Cos I felt like what he was saying was to try and get me to change what I had said.
And when you say change what you’ve said, what do you mean by that?The statement.
The statement?Of the incident on that day.
And who actually recorded this conversation?My housemate did.
Okay.
And how did it come about that she recorded the conversation?She was just in the house, um, she was sitting on the couch next to me and I had it on loudspeaker and she also was going, “No, this doesn’t sound right” and didn’t feel comfortable about where the conversation was going, and I was like - I just kind of whispered to her, “Can you record this?”. And she said - well, she started recording it and then obviously she - I didn’t want her having it on her phone so I recorded it off her phone onto my phone and then we deleted it off her phone.
(ts 34 – 35)
24 The recording was played and the disc of it became Exhibit 8 in the proceedings without objection. In particular no submission was, or has subsequently been made, that the evidence ought not be relied upon by the Public Service Appeal Board for any reason.
25 Ms McCloy then gave some brief evidence about the role of a Youth Custodial Officer and concluded by answering “No” to a question about whether she held any personal animosity or hostility toward the appellant.
26 The Chair of the Public Service Appeal Board then asked Ms McCloy what had been said in the first conversation between her and Mr Brown, her evidence having been that she had spoken to him twice and the recording was of the second conversation.
27 Ms McCloy said:
“Just basically along the same lines of him wanting to - wanting me to meet with his lawyer. I can’t remember exactly what was said but it was about seeing his lawyer.”
(ts 45)

28 Cross-examination then commenced. It did not proceed very far until the Public Service Appeal Board interrupted it and we reproduce in full:
CROSS-EXAMINATION BY MR HOWLETT:

HOWLETT, MR: Could the witness be shown exhibit 4, please?

MATTHEWS C: She probably still has it with her.

HOWLETT, MR: Do you have the map with you, Ms McCloy?Yep.

Now, you - can you look at it with the two buildings to your left hand side?Yeah.

The building to the right hand side is Wing A?Yep.

The building on the left hand side at the lower part is Wing C - sorry, Wing B?Yep.
And the one at the top is Wing C?Yeah, that’s correct.

Where was - you’ve drawn the picture there - where was Tanya Eddy at that time?Um, either she was in the unit staff office or she wasn’t in the unit cos she was  I didn’t see her.

You didn’t see her?No, not during this incident.

Where is her office?Next to Wing A where it says, “Staff office”. Um   

So in effect if she was in her office she would be within metres of Mr D, Mr Collier and Mr Brown?Yep, if she was in there yeah.

On 20 September 2015  sorry, I withdraw that.

Do you recall that the incident with the spray bottle and Mr D occurred on 20 September 2015?I can’t remember the exact date. I know it was in   

On 20 September 2015 you were on probation, yes?Yep.

And you had a mortgage?Yes.

You didn’t want to be a witness in this case, did you?I didn’t want to be involved.

Is that a no?If I could of not been involved then I wouldn’t have been.

Do you know that the Commissioner of your Department isn’t going to give evidence?Sorry?

Do you know that the Commissioner of your Department isn’t going to give evidence?No, I don’t know what you mean.

And you spoke to - I think you’ve confirmed you did speak to Mr Stitt?Yep.

And do you know that Mr Stitt is not going to give evidence?Mm, okay. I didn’t know.

You don’t know?No.

And you spoke to Mr Beard and Mr Kelly?Yeah.

And you know that they’re not going to give evidence?No.

And did you know that Mr D wasn’t going to give evidence?He did give evidence.

No, in this hearing?Oh, no.

You didn’t want to be the star witness when Mr Brown spoke to you on 14 October last year, did you?I just didn’t want to be part of it.

It’s a yes or no. You didn’t want to be a star witness when he spoke to you in October last year, did you?No.

29 At that point the Public Service Appeal Board communicated that it wanted Exhibit 8 to be transcribed before the matter proceeded further and counsel for the respondent said this could be done. A transcript was provided later on 9 May 2017 and the hearing continued on 10 May 2017 with a copy of the transcript, accepted to be accurate enough for use to be made of it, in the hands of the parties. A copy of it is attached as Schedule 1 to these reasons.
30 Upon resumption on 10 May 2017 the Chair of the Public Service Appeal Board communicated to the parties that the Public Service Appeal Board had concerns about the contents of the recorded conversation and the appellant’s conduct in the recorded conversation. It is felt best to set out what the Chair said in full:
“Now, I speak for the Board here in saying we have some concerns about the contents of the telephone recording. Taking the most favourable view possible for the applicant, it is that he believed his version was the truthful one. He believed that Ms McCloy had given a version to investigators that hadn’t captured the truth and he felt that that had occurred because of some coercion or pressure placed upon Ms McCloy. So that’s the most favourable version I think we can take of the applicant’s position.

Taking that, it seems to the members of the Board that it was questionable behaviour to contact a witness for the other side at all. Of course, there’s no property in witnesses, but it’s questionable to do so. It seems it happened at least twice on this occasion and that there had been an assumption on the part of the applicant that Ms McCloy didn’t wish to speak to him, which emerges from the telephone recordings, so he called her again.

So whilst accepting there’s no property in witnesses, it’s a situation in which caution is best. And that caution having been abandoned by the applicant, we have some concerns about things that happened during the course of the recording - or the conversation which was recorded. And those are, to group them, is that the applicant, on one reading of the transcript, appears to give Ms McCloy advice about the consequences of her changing her story without any expertise to do so, telling her things such as that she wouldn’t get in trouble - “110 per cent”, she wouldn’t get in trouble, that her changing her story would change everything, that no one will get in trouble, that it would stop the hearing, that it would squash the process.

On one version, moving to a second category, it would appear that the applicant misrepresented what the process was about, in that he said, on page 1:

“They’ve sacked me anyway now, so that is not going to change any time now.”

And it was only after Ms McCloy called him on that statement that he said that he was, in fact, seeking to get his job back.

Another category is the - several references to Ms McCloy as the “Star witness”, which we provisionally see as putting some pressure on her. We also see some clear pressure provisionally being applied to her by reference to the court process as a “Real ugly thing”, that she - words to the effect that she’ll feel excluded at the hearing because she’s going to have to make a decision about who she sits with and, in some way, stick her colours to the mast at that point in time in a way that’s obvious for everyone to see.

There is some pressure - or some inducements, moving to a new category - there are some inducements, it would seem, that were placed before her, such that she would be thought of as a wonderful person if she was to do what the applicant was suggesting that she do and that she would become the applicant’s “Star person”.

And there also seems to be the inducement that the applicant seems to suggest that the harassment she was suffering would stop if she did what was being suggested to her by the applicant, with him saying that it was within his power - or their power to change that situation.”
(ts 50 – 51)

31 The Chair went on to say that the Board was giving “active consideration” to dismissing the appeal pursuant to its power to do so under section 27(1)(a)(iv) Industrial Relations Act 1979.
32 The Chair explained that the Public Service Appeal Board was concerned that the appellant was seeking relief from it when, potentially, the appellant had failed to have respect for its processes and was also concerned the appellant sought by way of remedy, and could only seek by way of remedy, a return to a position associated with the administration of justice when, potentially, he had shown disregard for the administration of justice.
33 The hearing was then adjourned until 12 May 2017 to allow the parties to obtain transcript and prepare submissions on the matters raised by the Public Service Appeal Board.
34 Before adjourning, and in answer to a suggestion from counsel for the appellant that evidence might be needed from the appellant before the section 27(1)(a)(iv) Industrial Relations Act 1979 matter could be decided, the Chair said this:
“No, because I’ve proceeded on the basis - the most favourable basis possible, that Mr Brown believes he is telling the truth, that he believes Ms McCloy’s version given to investigators is not the truth and all he was seeking to do was have Ms McCloy correct her version. That is not a finding by any means, but for the purposes of what I - or what the Board is talking about, we’re prepared to proceed on the basis most favourable to the applicant.”
(ts 52)
35 The hearing resumed on 12 May 2017 at which time counsel for the appellant made two applications which were dismissed by the Public Service Appeal Board for reasons published on 22 May 2017.
36 The hearing resumed on 14 June 2017 at which time submissions were made by counsel on the question of dismissal pursuant to section 27(1)(a)(iv) Industrial Relations Act 1979.
37 At the commencement of proceedings on 14 June 2017 counsel for the appellant tendered a document which contained screenshots from the appellant’s phone showing call and text contact between the appellant and Ms McCloy. That document became Exhibit 9 in these proceedings. An aide-memoire was also handed up that was designed to put the contents of Exhibit 9 into chronological order.
38 Counsel for the appellant made the following submissions:
(1) The appellant denies he committed the act of misconduct that led to his dismissal;
(2) The appellant believes that Ms McCloy was the subject of coercion and pressure in the production of her statement to investigators and there is evidence to support that belief;
(3) The appellant did not initiate contact with Ms McCloy. Ms McCloy first contacted the appellant about a week after he had been suspended and well before he was dismissed. In that conversation Ms McCloy “effectively apologised for what she had done and she explained that she had done it under pressure”. She was “in tears during that conversation”;
(4) Ms McCloy told the respondent’s investigators that she had been pressured by Mr Beard and Mr Kelly;
(5) At the time of the recorded conversation the appellant believed Ms McCloy had made a complaint about the conduct of Mr Beard and Mr Kelly and he had also been told by a Ms Knight, another of the respondent’s employees, that Ms McCloy had complained to her about “bullying”, “pressure” and “coercion”. Accordingly, when the appellant made reference to those matters in the recorded conversation, “he was not inventing that or speculating”;
(6) At the time of the recorded conversation the appellant could not “know” that Ms McCloy would be called as a witness if the matter proceeded to a hearing before the Public Service Appeal Board although clearly he “perceived she was or would be.”;
(7) A witness to be called by the appellant, a departmental employee named Tanya Eddy, had been told by an employee of the respondent not to speak to counsel for the appellant or his instructor and was worried that she would get into trouble if she did;
(8) Given that the recorded conversation occurred around the same time as the Notice of Appeal was lodged it is likely Ms McCloy “did not even know about it at that time.”;
(9) There is no reason to believe Ms McCloy did not wish to speak to the appellant and “the texts indicate that she would and did speak to him at her initiative”;
(10) The texts and the recorded conversation show there was no animosity or pressure and Ms McCloy had confirmed she did not hold any personal animosity toward the appellant;
(11) The use in the recorded conversation of the phrase “star witness” did not put pressure on Ms McCloy and there is no evidence that she felt pressured by the appellant;
(12) The contents of the recorded conversation “arose from Ms McCloy continuing to ask [the appellant] questions”;
(13) All that the appellant was seeking to achieve from contact with Ms McCloy was to have her contact his lawyer;
(14) The appellant’s “ultimate intention and motive was for Ms McCloy to tell the truth” and “that motive was to be achieved by asking Ms McCloy to speak to his lawyer”;
(15) Ms McCloy gave no indication in the recorded conversation that she felt pressured or uncomfortable “…and kept the conversation going for quite a long time, a lot longer than it would have taken to get the lawyer’s number and then hang up”;
(16) It is arguable that at the time of the recorded conversation the appellant “misunderstood the process and the law”, it not being “easy law to understand for anyone without an understanding of public sector law in Western Australia.”;
(17) The appellant did not mislead Ms McCloy in the recorded conversation;
(18) The appellant did not ask Ms McCloy to “change her story” (a term used by the Chair of the Public Service Appeal Board on 10 May 2017) and sought only to have her tell the truth;
(19) In relation to inducement, Ms McCloy, in a part of the conversation which was not captured by the recording, had told the appellant words to the effect that things at work were “shit and no-one was speaking to her” and the appellant’s comments about this should be understood in that context and in light of his role as a “staff support person” who “likes to help people”;
(20) In relation to the appellant’s comments about sitting with Mr Kelly at the hearing the appellant “perceives that not many people in his former workplace like Mr Kelly as a result of the way Mr Kelly behaves” and Ms McCloy “knew what [the appellant] meant when he said that and her response does not indicate that she took it as a threat or intimidating or sinister or improper.”;
(21) The appellant in the recorded conversation was trying to persuade Ms McCloy to talk to his lawyer and “generally to do the right thing” and it would be a “sad irony if someone who is trying to correct an impropriety which I say is his dismissal because of an incorrect report by Ms McCloy given under pressure, was themselves treated as acting improperly.”;
(22) It would be inappropriate to treat the appellant’s conduct in the recorded conversation as improper because he was, in it, pursuing his right to prove his case by having Ms McCloy tell the truth;
(23) Given that Ms McCloy actually appeared as a witness before the Public Service Appeal Board it is clear the recorded conversation did not interfere with the Public Service Appeal Board’s processes and any issues arising out of it, and the issue of whether it affected her evidence, and if so how, may be explored with her;
(24) If improper conduct on the part of the appellant in the recorded conversation is found, dismissal of the appeal would be unfair punishment of the appellant;
(25) There was no intention to do the wrong thing and if the matter proceeds to its conclusion the Public Service Appeal Board “will be able to satisfy itself that the process has not been compromised in any way.”;
(26) The “punishment” of the appeal being dismissed pursuant to section 27(1)(a)(iv) Industrial Relations Act 1979 “will be extreme and…unprecedented for these reasons.”;
(27) The appellant said several times in the recorded conversation that, in relation to relevant matters, “it is up to you” or “it is your choice.”;
(28) The respondent evidently suffers poor conduct from its employees, such as that alleged against Mr Beard and Mr Kelly, so it is difficult to see how the appellant, who behaved less badly and to no palpable effect, could not work within its system;
(29) The standard of beyond reasonable doubt should be applied to any finding adverse to the appellant;
(30) The whole context of the recorded conversation changes, and in such a way as to remove all the Public Service Appeal Board’s concerns, if it is understood that the appellant did not call Ms McCloy on any of the three occasions the appellant says he spoke with her, that Ms McCloy had told the appellant she had been pressured to say what she did “whilst in tears and effectively apologising to him”, that the appellant had been told about pressure on Ms McCloy from another source and that Mr Kelly was, to the appellant’s belief, not well liked;
(31) By reference to some cases, the power under section 27(1)(a)(iv) Industrial Relations Act 1979 should not lightly be invoked and should be exercised with great caution being mindful that, as a rule, a person is entitled to insist upon the exercise of a jurisdiction properly invoked;
(32) In answer to a question from the Chair of the Public Service Appeal Board concerning whether the appellant had dealt appropriately with Ms McCloy if she were understood to be in a position of vulnerability, and whether this might impact on his return to a position of responsibility in relation to vulnerable persons, that Ms McCloy was not in a position of vulnerability or, if she was, it was not exploited by the appellant; and
(33) Evidence will be led, if the hearing proceeds, that the appellant was a very good Youth Custodial Officer with a ten-year unblemished record of service and there is “no suggestion at all that he has any disregard for vulnerable people whether they be inmates or other employees.”
39 Counsel for the respondent made some submissions in reply.
40 Counsel for the respondent said:
“The ultimate position of the respondent is that, even taking all of that at its highest, concessions made by counsel this morning demonstrate that Mr Brown did, in fact, conduct himself improperly to such an extent that it would be open for the Board to dismiss this matter; to control its own processes. And the concession that I refer to, which the respondent would say is quite properly made because it’s quite clear from the recording, is that there’s no doubt that Mr Brown was trying to persuade Ms McCloy to do - well, to speak to his lawyer and to do the right thing.

Now, the authorities I’m about to take the Board to demonstrate quite clearly that it’s - there is nothing wrong with a litigant trying to persuade a person to tell the truth if you expect them to be a witness or if they’re likely to be a witness, as long as that’s by reasoned argument. But if you do it by improper means, then that’s when it becomes improper and in this case it’s quite clear from the recording that the meetings were improper; both threats and inducements were used. It’s clear from the recording and the highest it’s been put by counsel this morning is that you need to read the whole context, however, the whole context demonstrates there was clearly inducements and clearly intimidation used in this process.”
(ts 98)

41 Counsel for the respondent referred the Public Service Appeal Board to case law which it was submitted established that in this matter the conduct was improper, even if the motive was not, because rather than trying to persuade Ms McCloy to tell the truth by reasoned argument the appellant had used “threats and inducement.”
42 Counsel for the respondent made reference to various parts of the recorded conversation saying that the appellant had used fear, the promise of benefits, threats and inducements in those passages.
43 Counsel for the respondent submitted that “…in order for the public to have confidence in the integrity of the processes of the Public Service Appeal Board, it is necessary that the Public Service Appeal Board not come to the assistance of a party who seeks to undermine its processes…” (ts 103) and, for this reason, is entitled to dismiss the appeal.
44 Counsel for the respondent referred to cases within the Western Australian Industrial Relations Commission which had accepted that the Western Australian Industrial Relations Commission is entitled to apply the maxims of equity that “he who seeks equity must do equity” and “he who seeks equity must come with clean hands.”. (see Civil Service Association of Western Australia (Incorporated) v Director General, Ministry of Justice (2003) 94 WAIG 215)
45 Counsel for the respondent submitted that reinstatement was the only remedy the Public Service Appeal Board could order and that there is no point in continuing the hearing because that remedy could not be ordered where, even if the appellant did not intend to employ improper means in the recorded conversation:
“…what, on its face, he did do would demonstrate such a poor lack of judgment and insight into the proper administration of justice, such that it is axiomatic, that it is impracticable for Mr Brown to be reinstated into a position that requires such high standards of integrity and the position that is, itself, an important cog within the wheels of the State’s regime of administering justice.”
(ts 104)
46 Counsel for the respondent concluded by addressing submissions made on behalf of the appellant.
47 Counsel for the appellant made brief submissions in reply.
48 I set out counsel’s substantive submission in reply in full:
“The first is that the submission that what Mr Brown did was not done by way of reasoned argument. We say that that really attributes to Mr Brown who, I think, has been acknowledged by the Board anyway, as he’s not legally qualified, he’s not trained, his text messages clearly show that he had only one real intention which was that Ms McCloy call and speak to his lawyer. And what he was faced with, when that phone call came through to him, was simply a response to the many questions that had been asked of him by Ms McCloy. And it really attributes to Mr Brown who really is an unqualified and untrained in this regard responding off the cuff to this phone call and questions that he hadn’t anticipated, which arguably he shouldn’t have answered but he did do, was that he wasn’t trying by reasoned argument. It wasn’t – it clearly wasn’t his intention in the first place to have a reasoned argument with her. It was his intention to ask her to speak to his lawyer. So it just seems to me that on the facts of this case and the way in which they happened and the background to it, was not to come up with academic, if you like, legal standards, simply don’t match up to the factual circumstances of this case. There’s no issue of reasoned argument because he wasn’t expecting or intending to have one. He just responded as he did.”
(ts 106)

Factual Findings and Consideration of Whether Conduct Improper

49 In our view the appellant behaved improperly in the recorded conversation and we find that to be so whether the correct standard of proof is on the balance of probabilities or beyond reasonable doubt.
50 The recorded conversation occurred at a time when the appeal had in all likelihood been filed (although perhaps only a matter of moments after it had been filed) but certainly after the appellant had signed the Notice of Appeal. Therefore, the proceedings before the Public Service Appeal Board had either commenced, or would imminently commence, at the time of the recorded conversation.
51 The recorded conversation followed a telephone call by Ms McCloy to the appellant but was in response to the appellant’s unanswered call to Ms McCloy nine minutes before and the appellant’s text message to Ms McCloy one minute before the recorded conversation. Ms McCloy did not initiate the contact at that time, the appellant did.
52 We accept that the appellant’s main purpose in contacting Ms McCloy was to ask her to contact his lawyer and we accept also, for present purposes, that the appellant had the intention of having Ms McCloy tell the truth.
53 We also find that the appellant knew, or acted on the belief that, Ms McCloy would be a witness in the proceedings before the Public Service Appeal Board.
54 We hold, on the basis of compelling authorities to this effect, that in considering whether the appellant acted improperly it is not a complete defence to an allegation of impropriety that he was only trying to have Ms McCloy tell the truth. While it is legitimate to seek to persuade a witness to tell the truth by reasoned argument it is not legitimate to do so by intimidation or inducement. (see Librizzi v Western Australia [2006] WASCA 237; R v McLachlan [1998] 2 VR 55)
55 Accordingly, in circumstances where the appellant believed, as we accept he did, that Ms McCloy had given an untruthful account of his behaviour, and was possibly going to repeat that version in proceedings against him, various things could have properly happened.
56 The appellant could have attempted, by reasoned argument, to persuade Ms McCloy to change her version.
57 The appellant could have arranged for Ms McCloy and his lawyer to meet at which time his lawyer could have attempted the same.
58 Alternatively, and if an attempt to have Ms McCloy tell the truth by reasoned argument was not made or had failed, then the appellant had to leave it up to the Public Service Appeal Board to determine whether Ms McCloy was telling the truth or not.
59 Against the above factual and legal background we turn to consider and characterise what the appellant said in the recorded conversation.
60 Firstly we find that what the appellant said in the recorded conversation went well beyond reasoned argument and, in fact, that there was no attempt to persuade Ms McCloy to tell the truth by way of reasoned argument. Such a concession was made, and properly so, in the submission reproduced at [48] above.
61 We find that what the appellant did in the recorded conversation was use fear and intimidatory tactics and the promise of benefits to persuade Ms McCloy. The following are examples:
(1) Mr Brown: Basically you are the star witness for the department. They have put you out there and they sent letters to my lawyers saying that we sacking Richard because we have a witness, and they named you in their letters saying this is our star witness and that is the reason why.
This comment would, reasonably viewed, isolate, and thereby pressurise a person who was giving evidence. To intimate to a witness they have a singular importance as the “key” or “principal” witness can only add, and unfairly so, to the stress and pressure any witness in Ms McCloy’s situation would be feeling.
(2) Mr Brown: That's what I want done, and I mean obviously with that if you can, I mean I don't know what you're thinking but if you're happy to do that, that will help me a lot because it stops everything now. It slows all legal process down and then they can then send a letter back to the State Solicitor's Office that represents the department and say look, there is new evidence come to light. We've spoken to Leilani. Leilani has given this version of events that she didn't feel what was asked of her in the initial interview, it doesn't matter about the other statements. What was asked about that in the interview, you made comments that you felt bullied or coerced or something to that effect… in the early stages
Ms McCloy: Umm
Mr Brown: That kind of thing, I don’t know the exact words, but that kind of thing.
This is an offer of an inducement. That is, if Ms McCloy does something related to the proceedings the matter will end. Not only is it an inducement but it was one that the appellant could not even be certain would be met. The appellant could not reasonably promise that the proceedings would be “squashed” if Ms McCloy did something for him. That the appellant made it sound all so simple and that a carefree attitude may be taken to the proposed course by Ms McCloy is a form of pressure and inducement and is made worse for being so recklessly applied and offered. It shows that the appellant had concern only for what he wanted and little else.
(3) Ms McCloy: What happens to John Beard and Sean, they will lose their…., I don't know what happens.
Mr Brown: No, no, no they won't lose their job, it won't even go that far, that's what I'm saying. If you weren't happy to do that then it all gets squashed now.

Ms McCloy: How do you know that?

Mr Brown: Well I have spoken to the lawyer this morning and I have asked all of them this morning. And he said to me none of this would ever come back on you… because apart from the State Solicitor's Office and no one else would know. Because if won't go back to Banksia Hill in front of Sean Kelly or anyone like that ………….. lawyer then it has gone way over his head and it has gone to the Commissioner's Office and they obviously don't deal with it because it is a legal matter. So they put it onto the State Solicitor's Office

Ms McCloy: So, Sean and, I'm just confused, so Sean and John won't even get questioned about this?

Mr Brown: No,

Ms McCloy: Are you sure?

Mr Brown: Unless you want them to be, or unless you want them to be

This is also an inducement, being if Ms McCloy changes her version of events that not only will the proceedings end but that there will be no negative repercussions for anyone. Again the inducement is worsened because the appellant is assuring Ms McCloy that an outcome will result when he was in no position to give such an assurance. The appellant is effectively misleading Ms McCloy, or at the very least being extremely reckless in the comforts he offers her.

(4) Mr Brown: so it’s basically I suppose from your point of view to help you out as well with regards to people thinking that you are doing the wrong by me
This is, objectively, an attempt to persuade by intimidation and inducement. We accept that if “people” were thinking that Ms McCloy had done the wrong thing by the appellant, and were acting poorly toward Ms McCloy as a result, that this was not the doing of the appellant. However, inherent in the comment is that if Ms McCloy changes her version of event “people’s” view of her will change and for the better.
That is an inducement. In the mind of a reasonable listener the comment would also serve as a reminder that, if Ms McCloy does not change her version of events, “people’s” thinking is likely to remain the same, with deleterious results for Ms McCloy. That is intimidation.
(5) Mr Brown: But that is entirely up to you Leilani, to be quite honest there is going to be a real ugly thing and it will go off to court
This is intimidation and the offering of an inducement and is, in our view, an outrageous thing to say to a witness. Such a description of the contemplated proceedings before the Public Service Appeal Board could only intimidate and pressurise a witness. The inherent offer of a “real ugly thing” being avoided is a clear inducement. That the Public Service Appeal Board would allow the proceedings to be “ugly” shows a lack of respect for it unless, of course, the Appellant was talking about things that might happen at the proceedings, or related to the proceedings, that were unknown to, and out of the control, of the Public Service Appeal Board. If so the comment is all the worse for it.
(6) Mr Brown: …it will go off to court, if it goes that far, it will go off to court and I will sit in court and they will call witnesses… and I'll have to go to court and myself and my wife will be there and then obviously you are going to get all the witnesses from Banksia. There's people that I want to call up for witnesses for my character reference, they will all be there and then it will be the department sat on the other side. Now the problem is for you and this is what is not going to help you, is you are going to turn up in court, because you will be summonsed to appear and then who do you sit with Leilani? Do you sit with Sean Kelly as a witness if it goes to court?
This is also intimidation and the offering of an inducement and, again, completely outrageous. It is a clear attempt to isolate and intimidate Ms McCloy. The appellant says he will be present for proceedings, his wife will be there and his character witnesses will all be there. Ms McCloy on the other hand, the appellant says, will have a “problem” because she will have no one to “sit with”, except maybe Sean Kelly who the appellant perceives to be unpopular. This is an outrageous attempt to paint a picture for Ms McCloy of the proceedings being a lonely and stressful situation for her (quite apart from the stress of actually giving evidence). The appellant is effectively telling Ms McCloy that she must pick a side and if she does not pick his side she will end up on the wrong side, a side lacking both quality and quantity. The appellant was quite wrong about how proceedings might be regulated by the Public Service Appeal Board to ensure that such pressure as he threatens is not brought to bear, and his cavalier attitude indicates a lack of respect for the Public Service Appeal Board, but in any event the comments are reprehensible.
(7) Mr Brown: All I can think about Ms Leilani is that obviously this is the best outcome for me and its obviously will be a really good outcome for you because you will be my star person as opposed to Sean Kelly's star person and everyone will think you are wonderful then.
This is a clear inducement to the effect that other employees will like Ms McCloy if she changes her version. Inherent in the statement is also a reminder of the pressure Ms McCloy will be under if she does not change her version. In that event Ms McCloy will suffer the effects of being “Sean Kelly’s star person” with it having been in the appellant’s mind that Sean Kelly is not liked by other staff.
(8) Ms McCloy: Ok. So what if I do this and then it doesn't change anything.
Mr Brown: Sorry
Ms McCloy: What if I do and it doesn't even change anything
Mr Brown: Trust me Leilani it will change everything.
This is an inducement and one aggravated by it being so recklessly made. The appellant could not possibly offer the assurance he did.
(9) Mr Brown: All right well listen I'm sorry about everything else that's going on with work but I suppose I have been there for over 10 years I've got I know a lot of people there so I wasn't aware that this sort of stuff was happening. But listen if there's anything in particular that is happening there with anybody by all means speak to me and I'll do my best to make sure its resolved but I think what it is that everyone is trying to support me because I have known a lot of people there for a long time.
Ms McCloy: Yeah I know.
Mr Brown: And because you are relatively new that they probably think that you are doing the wrong thing.
The distance between this statement and reasoned argument is vast. Ms McCloy is being reminded of the pressure she is under and told by the appellant that he can do something about it. He makes the point, none too subtly, that Ms McCloy is “new” and that people think she is doing “the wrong thing” and that “everyone supports him” because he has “known a lot of people there for a long time”. The appellant is isolating Ms McCloy, or at least reminding her of her isolation, and telling her that he has a large group of loyal and long time backers who support him, over Ms McCloy, because she is thought by them to be doing the wrong thing by him.
The pressure being brought to bear is no less exquisite for being couched in sympathetic and comforting language.
(10) Mr Brown: But um I can resolve all of that altogether we can resolve all of it or together we can resolve all of it and you'll end up being the star of the show, Leilani
This is a clear inducement, with the appellant effectively saying “change your version to a truthful one and I will stop the negative conduct of others toward you.” Further, “you will go from an outcast to part of the gang.” This is an outrageous thing for a litigant to say to a witness against them.
62 The Public Service Appeal Board is prepared to accept that the appellant did not ring Ms McCloy, or take her return call, with a series of prepared points in mind which he intended to make to exert pressure upon and offer inducement to her. The recorded conversation developed in the way the transcript of it shows with the appellant speaking for large slabs but also answering questions asked of him by Ms McCloy.
63 The appellant had several opportunities to state his business, which was to request Ms McCloy to call his lawyer, and move on. We do not accept that the conversation was in any way driven by Ms McCloy but at the same time it was a conversation and not a “message” delivered by the appellant.
64 However, what did clearly occur is that the appellant acted in an opportunistic way. Being presented with the opportunity to talk at length, and prompted perhaps by things he was asked or told by Ms McCloy, the appellant took the several opportunities offered to exert pressure upon and to offer inducements to Ms McCloy as set out above.
65 We accept the appellant did not have an intention to pressure Ms McCloy when he called her, or took her return call, but he evidently developed such an intention and acted upon it during the course of the recorded conversation.
66 We accept that the appellant may very well not have known at any time that he was potentially “interfering with the administration of justice”, as that term is known to the law, but we find that he had or developed the intention to cause Ms McCloy, by his conduct, to refrain from giving the evidence she intended to give and to do so for his own purposes. This is enough to make the conduct improper in the present context.
67 The conduct clearly had the capacity or tendency to frustrate the Public Service Appeal Board’s processes. It could have led to the respondent not having an opportunity to have the matter decided by the Public Service Appeal Board, if it had felt obliged to cease its opposition because its key witness had recanted, or, had the matter proceeded, could have affected the evidence given by Ms McCloy and thus affected the Public Service Appeal Board’s ability to do proper justice.
68 It is not required, of course, that the conduct actually had those effects. In this case it has not deprived the Public Service Appeal Board of the opportunity to hear and determine the matter and we are happy to assume that it has not affected Ms McCloy in a way that might undermine the Public Service Appeal Board’s ability to do proper justice.
69 However, that the conduct had such potential or tendency is enough for it to be improper (see Librizzi v Western Australia (2006) 33 WAR 104 and R v McLachlan [1998] 2 VR 55) or, put more fully, it is enough if there is a real risk that justice will be interfered with or that there is a real and definite tendency to prejudice or embarrass proceedings or conduct has clear tendency to prejudice the due administration of justice (per Simmonds J in Powell v in de Braekt [2007] WASC 165).
70 What the appellant did, even if in a conversation that was initially intended only to have Ms McCloy talk to his lawyer and have her tell the truth, was apply improper pressure and offer inducements.
71 The appellant acted improperly and, to the extent and in the way that intention is relevant, with an improper intention.
72 We have no hesitation in finding that the appellant’s conduct during the recorded conversation was improper, even taking into account all of the circumstances and the submissions made on his behalf relating to his original intent and that he was “…unqualified and untrained in this regard responding off the cuff to this phone call and questions that he hadn’t anticipated...”. (ts 106)
73 The appellant should have held himself and his distance from the witness much better than he did.
74 The Public Service Appeal Board is at pains to note that we have not considered whether the appellant is in contempt of these proceedings or whether he has perverted the course of justice or attempted to do either of these things. It would be completely inappropriate for the Public Service Appeal Board to do so.
75 Our reference to case law occurs only in the context of learning from those cases what kind of conduct may be described as improper in the current context.
76 We have found the appellant’s conduct to have been improper for the reasons set out above. Now we turn to consider what consequences, if any, should flow at this time.
Consequences and Section 27(1)(a)(iv) Industrial Relations Act 1979
77 Counsel for the appellant says that dismissing the appeal at this stage, without the matter having been fully heard and all evidence having been led, would be too harsh and extreme. He makes the point that in other jurisdictions where such conduct is identified there may be a separate process related to it but the substantive hearing may proceed. That is, the person who so conducts themselves still gets their day in court on the substantive matter.
78 Counsel for the appellant also likens dismissal of the appeal at this stage to a punishment for the purposes of praying in aid law to the effect that a punishment might not be imposed if a court finds that improper conduct was not done with the intent of, and/or did not have the effect of, interfering with the administration of justice (such as in Powell v in de Braekt [2007] WASC 165).
79 Counsel for the appellant also says that it would be an odd result to punish the appellant in this way when others within the respondent’s employ have acted badly in the course of the investigation into the matter.
80 Counsel for the appellant submits that it would be unfair for the Public Service Appeal Board to go to a case such as Powell v in de Braekt [2007] WASC 165 to inform itself on whether the appellant’s conduct was improper but to then ignore the result in that case, which was, because of the court’s finding about intention, to impose no punishment on the contemnor. He warns us against “cherry picking”.
81 Counsel for the appellant reminds the Public Service Appeal Board that the power to dismiss under section 27(1)(a)(iv) Industrial Relations Act 1979 is an exceptional one and should be exercised sparingly and with extreme caution. Counsel for the appellant reminds us that the appropriate start point is that the appellant is entitled to invoke our jurisdiction and should not lightly be deprived of its exercise.
82 We largely accept the submissions of counsel for the appellant in this regard, and the force behind them.
83 In particular, we accept:
(1) That it would be an exceptional result for improper conduct such as that we have found on the part of the appellant to deny him his day in court;
(2) That, although it would by no means be intended to “punish” the appellant, the appellant may view such an outcome as a punishment for the conduct and that, accordingly, it is relevant to consider the appellant’s intention and the effect of his conduct. We take into account that the appellant did not ring Ms McCloy with an intention to pressure her and that, as he opportunistically did so in the conversation, he did not have knowledge that he may have been engaging in conduct that might interfere with the administration of justice. Having said that, it is also noteworthy that the conduct was committed by a party to proceedings and offered by him to a key witness against him, with the comments of Simmonds J at [112] of Powell v in de Braekt [2007] WASC 165 in mind;
(3) That the power under section 27(1)(a)(iv) Industrial Relations Act 1979 should be sparingly exercised and that, prima facie, the appellant is entitled to invoke completely the Public Service Appeal Board’s jurisdiction.
84 However, we do not accept the full effect of those submissions. We find that the submissions have insufficient regard for the context in which the improper conduct occurred.
85 The appellant was employed as a Youth Custodial Officer and seeks a return to that position. The Public Service Appeal Board, by way of outcome in this matter, has power only to dismiss the appeal or uphold it and return the appellant to the position he held at the time of his dismissal, if that is what the appellant seeks (State Government Insurance Commission v Johnson (1997) 77 WAIG 2169 and Mary Elizabeth Re v The Inspector of Custodial Services (2013) 93 WAIG 1776 with the Public Service Appeal Board as presently constituted agreeing with the Public Service Appeal Board in that matter at [20] to [24].)
86 A Youth Custodial Officer is a position having great power and, with it, great responsibility.
87 We need go no further than refer to section 7, section 8 and section 11B(d) Young Offenders Act 1994 to explain the unique responsibilities, and powers, of a Youth Custodial Officer.
88 Equal regard may be had to the job description form which became Exhibit 3 in these proceedings which states:
“Divisional Outcomes
…guidance of young people who have offended towards the adoption of law abiding lifestyles.;
Role of the Position
A Youth Custodial Officer is a person who:
· Is responsible for the safety, security, care, wellbeing and developmental needs of young people in custody.
· Works with young people in challenging situations, by diffusing and managing conflict.
· Is required to provide a positive role model for young people”
(Exhibit 3)
89 Children are vulnerable people and those deprived of their liberty particularly so. These vulnerable persons are under the day to day care of Youth Custodial Officers.
90 In our view the appellant’s conduct, even taking the most favourable view of it, and of him, and even accepting the force of what the appellant’s counsel has said on his behalf, has disqualified himself from receiving an order from the Public Service Appeal Board which would have the effect of returning him to that role.
91 The appellant should not have lost his way so quickly and so easily in the conversation. The appellant, being a Youth Custodial Officer involved in the administration of justice, should not have so easily and recklessly succumbed to the temptation to achieve a legitimate end through illegitimate means.
92 Given that the appellant seeks a return to a position within the justice system, that reckless disregard for proper behaviour in the context of impending proceedings of an arbitral nature may have very well been enough to have the Public Service Appeal Board exercise its power under section 27(1)(a)(iv) Industrial Relations Act 1979.
93 It is particularly relevant in the context of a case involving elements of the administration of justice that the appellant come to the Public Service Appeal Board with “clean hands”.
94 However, in its proper context, the conduct goes further or has a more material characterisation than this.
95 The appellant was clearly dealing with a person in a vulnerable position. On the appellant’s version, which we accept, Ms McCloy had made a statement to investigators which contained inaccuracies and which were the result of threats and coercion. This, in itself, showed Ms McCloy was vulnerable to pressure but also that circumstance in itself would have, as at the date of the phone call, had Ms McCloy feeling vulnerable as to her future.
96 The circumstances of vulnerability were only added to by Ms McCloy’s evident concern about being bullied at work and by her evident confusion as to what might happen to her and others if she engaged with the appellant or his lawyer and took the course of action the appellant suggested.
97 In our view the appellant, whether intentionally or unthinkingly, attempted to exploit Ms McCloy’s vulnerabilities. He offered her certainty in relation to the consequences of taking the action he wanted. He offered her an end to the bullying and he offered her hero status. He offered her avoidance of an unpleasant appearance before the Public Service Appeal Board. The appellant, whether intentionally or unthinkingly, zeroed in on Ms McCloy’s vulnerabilities, and on occasions introduced other vulnerabilities and, with what he said to her about them, preyed on them and quite improperly so.
98 It is aggravated by the fact that the appellant was a Youth Custodial Officer of some ten years’ experience, with a “camp” of supporters, and that Ms McCloy was “relatively new” to the positon. There was clearly a gulf in terms of seniority, experience and support at the workplace.
99 The Public Service Appeal Board gives full weight to the submissions that the appellant did not initiate contact with Ms McCloy with the aim of intimidating her or offering her inducements and was not mindful during the conversation that what he was saying might interfere with the administration of justice. We also have full regard for the submission that there is no evidence that what the appellant said has, in the end, interfered with the administration of justice.
100 We are prepared to view the conduct as opportunistic and unthinking and occurring in circumstances where the appellant was himself under a great deal of pressure having lost his job when, so far as he was concerned (and we accept for present purposes), he had done nothing wrong. We also accept that the appellant had given ten years of good service as a Youth Custodial Officer without there being any evidence before us that he had misconducted himself in the past. We accept the conduct in the recorded conversation was a “one off” and the context is fully appreciated.
101 However, what concerns the Public Service Appeal Board, and is ultimately determinative, is the serious nature of what the appellant said to Ms McCloy, with Ms McCloy being the main witness in the proceedings, and that the appellant so readily and recklessly took the opportunity to pressure her and offer inducements to her. A key to the effective administration of justice, and dealing with vulnerable people, is to hold yourself under pressure and maintain proper standards at all times. The appellant clearly should have known better than to act as he did.
102 Given the appellant seeks a return to a position involved in the administration of justice, and in a role that would see him exerting power over vulnerable persons, the Public Service Appeal Board has no hesitation in dismissing the appeal pursuant to section 27(1)(a)(iv) Industrial Relations Act 1979 because of the appellant’s conduct.
103 Although counsel for the appellant may be correct in saying that section 27(1)(a)(iv) Industrial Relations Act 1979 has not arisen for consideration in similar circumstances we note that the range of circumstances in which it might be exercised is not limited other than by the words in the subparagraph, upon which no gloss ought to be put.
104 We note that the Public Service Appeal Board in Mary Elizabeth Re v The Inspector of Custodial Services (2013) 93 WAIG 1776 acted under section 27(1)(a)(iv) Industrial Relations Act 1979 at a stage, prior to the completion of the hearing, when it became clear that the appellant would not succeed in achieving the remedy the Public Service Appeal Board could grant.
105 We note also that in Randall de Vos v Minit Australia Pty Ltd (2002) 82 WAIG 2195 the Western Australian Industrial Relations Commission in its general jurisdiction took such action when the applicant misbehaved during the course of proceedings in such a way that the Western Australian Industrial Relations Commission came to the conclusion, on its own motion, that it could not possibly grant the applicant a remedy.
106 We have full regard to section 26(1) Industrial Relations Act 1979 and find that although the substantial merits of the case might be said to be, at this stage, not fully exposed, that equity and good conscience and regard for the interests of all persons, including not only the appellant but also the respondent and Ms McCloy, and the interests of the community in protecting the Public Service Appeal Board’s processes from interference by way of improper conduct by an appellant, demands the result that the appeal be dismissed at this time.
107 After preparation of these reasons for decision in draft form the appellant referred the Public Service Appeal Board to the decision Director of Public Prosecutions (Cth) v Besim and Anor [2017] VSCA 165, which had been handed down subsequent to the hearing of this matter, and made written submissions in relation to its argued relevance. The respondent provided written submissions in response.
108 We have reviewed our reasons for decision taking the decision into account.
109 The appellant submitted that the conduct of the persons in that case was worse than that of the appellant, because of its intrinsic nature and because it was inarguable that they should have known better than to behave in the “appalling” way they did, and yet, despite severe criticism from the Court of Appeal of Victoria, they have retained positions of significant power and influence in the administration of justice.
110 It was argued that the appellant had behaved less badly and that it may not be assumed that he should have known better and yet he was facing a penalty whereas the persons in that case had not been penalised.
111 The case is, in our view, of limited relevance and largely for the reasons, with respect, given in the respondent’s written submissions on it.
112 These are that the persons criticised in the case were not parties to the matter before the Court and the Court was not in any way empowered to make a decision which impacted directly on the positions they held (with the Public Service Appeal Board noting that the holding of the positions in that case was a matter of political appointment and not employment) and that the persons in that case admitted the impropriety of their conduct and apologised for it.
113 If anything the case indicates that the Public Service Appeal Board has been muted in its expression of its disapproval of the conduct of the appellant.
114 The Public Service Appeal Board has decided that it could not possibly return the appellant to a position within the justice system and this is especially so given that, if returned, he would have power over vulnerable people. Accordingly, the appeal is dismissed.

Schedule 1
Mr Brown:
I'm not sure what was said in there because I was not there – that is that kind of stuff, that is really what he wants to hear and ……………… and your name will not get, and I asked them this this morning, I said look if this young lady comes and talks to you and says some stuff to you, his name is Yashar – he is a foreign gentleman. I said if I can ask Leilani to come and talk with you…………. I said this is not going to go back to anyway else, is it? And he said no, not at all. As long as you just take … and he will take an informal statement from you and he can send it off to the State Solicitor's Office and nobody at Banksia would even know what you have said or done. And then ……. haven't got anywhere to go with it, and then that will stop the hearing – do you know what I mean.

Ms McCloy:
So, I am just so confused, like ….

Mr Brown:
There is two ways Leilani of looking at it, the first way is um ….. when ….. you don't do anything yeh, and the process will continue and obviously my lawyers are going to call the department and then they are going to call all the witnesses and that will come from yourself, Wayne, myself Sean Kelly, John Beard and there are a few others in there. And everyone will get called to that hearing and ……… and obviously the lawyers will iron out any differences that they find or come across. What I am saying to you is that can all get stopped before then if you are happy to talk to a lawyer.

Ms McCloy:

Um,
Mr Brown:
It's entirely up to you, I mean I'm not, I'm not trying to influence you one way or the other because they sacked me anyway now, so that is not going to change any time now. But what I am saying……… is that if we don't do anything now then he is going to go to court and you will get called up and then obviously it will progress from there with everybody else.

Ms McCloy:
So, from the first
Mr Brown:
Basically you are the star witness for the department. They have put you out there and they sent letters to my lawyers saying that we sacking Richard because we have a witness, and they named you in their letters saying this is our star witness and that is the reason why.

Ms McCloy:
What is the goal, like obviously … are you trying to get your job back or what is this?

Mr Brown:
Yeah, I am going to get my job back

Ms McCloy:
Yeah, okay

Mr Brown:
That's what I want done, and I mean obviously with that if you can, I mean I don't know what you're thinking but if you're happy to do that, that will help me a lot because it stops everything now. It slows all legal process down and then they can then send a letter back to the State Solicitor's Office that represents the department and say look, there is new evidence come to light. We've spoken to Leilani. Leilani has given this version of events that she didn't feel what was asked of her in the initial interview, it doesn't matter about the other statements. What was asked about that in the interview, you made comments that you felt bullied or coerced or something to that effect. … in the early stages

Ms McCloy:
Umm

Mr Brown:
That kind of thing, I don't know the exact words, but that kind of thing.

Ms McCloy:
Um, what happens

Mr Brown:
That will squash it

Ms McCloy:
Yeah, but who goes on to an investigation from there

Mr Brown:
Sorry

Ms McCloy:
What happens to John Beard and Sean, they will lose their…., I don't know what happens.

Mr Brown:
No, no, no they won't lose their job, it won't even go that far, that's what I'm saying. If you weren't happy to do that then it all gets squashed now.

Ms McCloy:
How do you know that?

Mr Brown:
Well I have spoken to the lawyer this morning and I have asked all of them this morning. And he said to me none of this would ever come back on you … because apart from the State Solicitor's Office and no one else would know. Because if won't go back to Banksia Hill in front of Sean Kelly or anyone like that ………….. lawyer then it has gone way over his head and it has gone to the Commissioner's Office and they obviously don't deal with it because it is a legal matter. So they put it onto the State Solicitor's Office

Ms McCloy:
So, Sean and, I'm just confused, so Sean and John won't even get questioned about this?

Mr Brown:
No,

Ms McCloy:
Are you sure?

Mr Brown:
Unless you want them to be, or unless you want them to be.

Ms McCloy:
I just don't get it. But that's the initial interview and it's like, it doesn't, the investigators was the second interview?

Mr Brown:
Yeah

Ms McCloy:
What, so that makes everything

Mr Brown:
……. I've got all the documents that you sent Sean Kelly an email

Ms McCloy:
Yeah, the first

Mr Brown:
Yeah, you had a chat with him in the office, him and John Beard. He'd left the office and I'm assuming you'd gone to a computer somewhere and then you've said that as per our conversation and you sent an email.

Ms McCloy:
Hmm

Mr Brown:
I've read all the emails, …… they all got the emails, and all that sort of stuff, so it's basically I suppose from your point of view to help you out as well with regards to people thinking that you are doing the wrong by me. Um you may want to speak to the lawyer, and say to the lawyer about how you felt at that time initially, when you very first spoke to Sean Kelly and John Beard. But that is entirely up to you Leilani, to be quite honest there is going to be a real ugly thing and it will go off to court, if it goes that far, it will go off to court and I will sit in court …and they will call witnesses… and I'll have to go to court and myself and my wife will be there and then obviously you are going to get all the witnesses from Banksia. There's people that I want to call up for witnesses for my character reference, they will all be there and then it will be the department sat on the other side. Now the problem is for you and this is what is not going to help you, is you are going to turn up in court, because you will be summonsed to appear and then who do you sit with Leilani? Do you sit with Sean Kelly as a witness if it goes to court?

Ms McCloy:
Argh, this is awful.

Mr Brown:
Do you know what I mean?

Ms McCloy:
Yeah I know what you mean, it's just

Mr Brown:
That's why I am trying to resolve all of that

Ms McCloy:
So all they want to know is what they said to me in the first interview?

Mr Brown:
Yeah

Ms McCloy:
But then that’s all well and good and then how do they know like there was only John Beard and me at the start and then both of them. So what are they going to say, they will have to call him up one day.

Mr Brown:
No no because they have already given their account of what's happened.
Ms McCloy:
And what did they have to say.

Mr Brown:
What they are saying they didn't that……………………..um they had interviewed you. I don't know the exact words of what was said but something along the lines that you were spoken to at Banksia…………………………………all you can say is what I felt but that’s your personal choice that’s not you saying something is right or wrong it's just you expressing how you felt about the whole procedure at the time. Did you feel anxious about it did you feel that you were intimidated, did you feel like you were coerced into saying and agreeing …. I don’t know.

Ms McCloy:
Well I was fearing for my job at the time.

Mr Brown:
Yeah yeah.

Ms McCloy:
But I mean … ahhh

Mr Brown:
All I can think about Ms Leilani is that obviously this is the best outcome for me and its obviously will be a really good outcome for you because you will be my star person as opposed to Sean Kelly's star person and everyone will think you are wonderful then. I don’t know what else to say. That's in a nutshell I suppose.

Ms McCloy:
Yeah. It's just been full on. Um can I call you back this afternoon or tomorrow?

Mr Brown:
It's entirely up to you, but I have the lawyer's number here but if you want you can call his number or you can call me back whatever you want to do. All I am saying though because you said last time oh yeah I will give you a call back, you better call back so I just thought that you didn't want to do that.

Ms McCloy:
I just thought I spoke to someone about it and they said I could get into a lot of trouble for speaking to you.

Mr Brown:
No you can't I have spoken to a lawyer about this and that’s not true because I still up against trouble speaking to you because your Department's witness as their saying so I mention that to the lawyer this morning and he said no not at all.

Ms McCloy:
Oh

Mr Brown:
At the end of the day you know it's your decision you’re an adult and you can talk to who you want and although they've sacked me from work I am sacked …………… but I've got 21 days to appeal the decision so that’s the Appeal I'm going through now the legal process for that so I suppose technically we don't work together anymore because I've been sacked but there is a little bit there that I kind of still work for the department …….

Ms McCloy:
Ok

Mr Brown:
But I …can only 110% say that that you will not get into trouble with that.

Ms McCloy:
And won't to Management afterwards.

Mr Brown:
No if you can ask the lawyer that as well if you want to but because I said I asked him all these questions ……… I said if I asked Leilana this she will probably think I am just saying it because I wanted to do something for me but I said you know would she get into any trouble will I get in to any trouble he said no you won't get into any trouble Richard because you are only asking her to speak with us and you can legally do that I can do that and then if you speak to the lawyer that’s in complete confidence. What you say to that lawyer it just stays with the lawyer, the only thing that he will do is that he will contact State Solicitor's Office and ay that he has spoken to you and this is your version of events but that you felt coerced or bullied or whatever John Beard said to you um and then all their going to say is thanks very much. There's obviously no point them pursuing it because now um you're not their star witness.


Ms McCloy: Ok. Um can I get his number.

Mr Brown:
Yeah, yeah this is my mobile number yeah you can contact me on that.

Ms McCloy:
The lawyers?

Mr Brown:
Oh, the lawyer's number yep.

Ms McCloy:
Yep

Mr Brown:
Have you got a pen.

Ms McCloy:
Yep

Mr Brown:
Yep its xxxx

Ms McCloy:
xxxx

Mr Brown:
Yeah xx

Ms McCloy:
xx

Mr Brown:
xx

Ms McCloy:
xx

Mr Brown:
Yeah

Mr Brown:
The gentleman I am dealing with his name is name Yashar. Ok…. if you give him your name and say reference Richard Brown um and then give him and a call ………….on that.

Ms McCloy:
Ok. So what if I do this and then it doesn't change anything.

Mr Brown:
Sorry

Ms McCloy:
What if I do and it doesn't even change anything.

Mr Brown:
Trust me Leilani it will change everything.

Ms McCloy:
Okay

Mr Brown:
It will change everything

Ms McCloy:
Ok. All right. I will keep in contact with you ok.

Mr Brown:
Ok. Are you happy for me to pass your number across to the lawyer?

Ms McCloy:
Um yeah you can.

Mr Brown:
Is that ok?

Ms McCloy:
Yeah that’s fine.

Mr Brown:
Ok

Ms McCloy:
All right.

Mr Brown:
All right well listen I'm sorry about everything else that's going on with work but I suppose I have been there for over 10 years I've got I know a lot of people there so I wasn't aware that this sort of stuff was happening. But listen if there's anything in particular that is happening there with anybody by all means speak to me and I'll do my best to make sure its resolved but I think what it is that everyone is trying to support me because I have known a lot of people there for a long time.

Ms McCloy:
Yeah I know

Mr Brown:
And because you are relatively new that they probably think that you are doing the wrong thing.

Ms McCloy:
Yeah but they're not helping the situation and it's just making me get angry about it so

Mr Brown:
Yeah

Ms McCloy:
And

Mr Brown:
But um I can resolve all of that altogether we can resolve all of it or together we can resolve all of it and you'll end up being the star of the show, Leilani.

Ms McCloy:
Argh, alright

Mr Brown:
If you want to be.

Ms McCloy:
Ok. Alright I'll stay in touch with you.

Mr Brown:
All right then thanks Leilani.

Ms McCloy:
Ok. All right

Mr Brown:
Seeya Bye