Appeal against the decision of the Commissioner of Police to take removal action

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00481

DELIVERED : FRIDAY, 27 AUGUST 2021

FILE NO. : APPL 7 OF 2021

Appellant

AND

West Australian Police Force

Respondent

Catchwords : Industrial law (WA) - Removal of police officer - Loss of confidence by Commissioner of Police - Application to tender new evidence and amend grounds of appeal – Relevant principles applied 

Legislation : Police Act 1892 (WA) ss 33R(3), 33R(4) 33R(11)

  Police Force Regulations 1979 (WA)

  Criminal Code

  Weapons Act 1999 (WA)    

Result : Order issued

Representation:

Counsel:

Appellant : Mr M Shipman of counsel

Respondent : Mr S Pack of counsel

Solicitors:

Appellant : Western Australian Police Union of Workers

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Carlyon v Commissioner of Police [2004] WAIRC 11966; (2004) 85 WAIG 708

Hogan v Hinch (2011) 243 CLR 506

Magyar v Director General, Department of Education [2020] WAIRC 00988; (2020) 101 WAIG 1

Reasons for Decision

Background

1    The appellant is a former member of the Western Australian Police Force who was at the rank of Senior Constable.  At the time of the events leading to this appeal, the appellant was based at the Geraldton Police Station.  Loss of confidence proceedings were commenced by the respondent against the appellant in October 2020, under the Police Act 1892 (WA).  The loss of confidence proceedings involved allegations arising from the arrest by the appellant and another officer, Constable Amphlett, of a person at her residence in Geraldton at approximately 5:30 AM on 13 November 2019.

2    The allegations against the appellant were set out in the respondent’s Notice of Intention to Remove dated 19 October 2020 in the following terms:

1. On the morning of Wednesday 13 November 2019, in Spalding, you arrested and detained Deanne Gregory without lawful authority.

2. On the morning of Wednesday 13 November 2019, in Spalding, you used excessive force when you arrested and detained Deanne Gregory.

3. You were negligently or wilfully dishonest when you prepared a statement of material facts document and your witness statement for the prosecution of Deanne Gregory.

4. You failed to perform your duties in a proper manner when you included Constable Amphlett's witness statement in a prosecution brief for Deanne Gregory without addressing inaccurate and misleading information within that document.

5. You were wilfully _dishonest or misleading during your managerial interviews on 19 February and 19 March 2020.

3    The appellant denied the allegations and responded to the NOITR.  The respondent was not persuaded to alter his view as to his loss of confidence in the appellant and as a result, the appellant was removed from the Police Force on 29 December 2020.

4    The appellant now appeals against his removal.  The appellant has made two interlocutory applications in connection with his appeal.  The first seeks the tender of new evidence under s 33R of the Police Act.  The second application seeks an amendment to the appellant’s grounds of appeal.  As there is a degree of overlap between the application to tender new evidence, some of which is sought to be referred to in the proposed amended grounds of appeal, both applications were heard together.

5    For the purposes of considering both applications, the following is provided by way of brief background.  As to allegation one, the appellant maintained that he was fatigued from working long hours on his prior shift.  He contended that relations between police and the Aboriginal population in Geraldton were tense, as a result of the shooting of an Aboriginal woman by a Police Officer in September 2019. The appellant maintained that Ms Gregory was highly intoxicated, was wielding a knife and made racist remarks against him. The appellant maintained the arrest of Ms Gregory was lawful and the charges of disorderly behaviour under the Criminal Code and carrying a weapon under the Weapons Act 1999 (WA) were both justified.

6    As to the allegation of the use of excessive force in arresting Ms Gregory and placing her into the POD of the police vehicle, the appellant contended that he used neither excessive nor unnecessary force for the purposes of the Police Force Regulations 1979 (WA). The appellant said that his actions in putting Ms Gregory in the POD were necessary to prevent Ms Gregory causing harm to others and the manner of placing her in the POD was to prevent injury to the appellant or his partner, Constable Amphlett.

7    As to the third allegation, the appellant maintained that some inconsistencies in his statements used in the prosecution brief were as a result of the conflation of the attendance at Ms Gregory’s residence when the arrest was made, with an earlier attendance at her residence that same morning.  Also, his recollections were affected by fatigue and medication.  Additionally, the appellant contended that his statements were reviewed by superior officers in the initial preparation of the prosecution brief and were approved.  The appellant also denied the fourth allegation, and he maintained that Constable Amphlett’s statements were not materially inconsistent with his own and the conflation referred to above, contributed to any errors in this respect.

8    Finally, the appellant denied that he was wilfully dishonest in his responses to questions as a part of the managerial interviews in February and March 2020.  For present purposes, the appellant contended that in the interview on 19 March 2020, the investigating officers adopted a prosecutorial style, were biased and the interview was conducted unfairly.

Application to tender new evidence

9    The new evidence sought to be tendered by the appellant is in the following categories as follows:

(a) audio recordings of all managerial interviews;

(b) excessive force examples and historical penalties;

(c) injury reports when placing offenders into a POD;

(d) newspaper and media reports regarding the shooting of “JC”;

(e) an email from Senior Constable Christine Frey concerning the number of injuries to police officers when placing offenders in police vehicles and the introduction of “fast straps” (leg restraints) to reduce the potential injury to police officers when placing offenders into PODs of police vehicles;

(f) the agenda and minutes of an Occupational Safety and Health Advisory Committee dealing with officer assaults; and

(g) Geraldton Police Station CAD/tasking records for December 2018, 2019, and 2020.

10 Copies of the materials sought to be tendered, and the audio recordings, were filed with the application.

Statutory provisions and relevant principles

11 By s 8 and Part IIB of the Police Act, provision is made for the removal by the respondent of police officers in circumstances where the respondent has lost confidence in an officer, having regard to the officer’s integrity, honesty, competence, performance or conduct.  An officer so removed, may appeal to the Commission from the respondent’s decision, on the grounds that the removal is harsh, oppressive or unfair.  An appeal from removal may be brought by an officer under Division 3 of Part IIB.  It is clear from these provisions that an appeal is limited in scope and it is not a de novo proceeding.  Subject to s 33R, by s 33Q, the parties are to consider the respondent’s reasons for removal and the materials relied upon and advance their respective cases based upon it.

12 The Commission is required by s 33Q(4) to have regard to the interests of the appellant and the “public interest”.  The latter is to include the need to maintain public confidence in the integrity, honesty, conduct and standard of performance of Police Force members, and the special nature of the relationship between the respondent and police officers.

13 New evidence on an appeal is dealt with in s 33R of the Police Act.  It relevantly provides as follows:

33R. New evidence on appeal

(1) New evidence shall not be tendered to the WAIRC during a hearing of an appeal instituted under this Part unless the Commission grants leave under subsection (2) or (3).

(2) The WAIRC may grant the Commissioner of Police leave to tender new evidence if —

(a) the appellant consents; or

(b) it is satisfied that it is in the interests of justice to do so.

(3) The WAIRC may grant the appellant leave to tender new evidence if —

(a) the Commissioner of Police consents; or

(b) the Commission is satisfied that —

(i) the appellant is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information;

(ii) the new evidence might materially have affected the Commissioner of Police’s decision to take removal action; or

(iii) it is in the interests of justice to do so.

(4) In the exercise of its discretion under subsection (3) the Commission shall have regard to —

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

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

before his or her removal from office.

…

(11) In this section —

new evidence means evidence other than evidence of —

(a) any document or other material that was examined and taken into account by the Commissioner of Police in making a decision to take removal action;

(b) the notice given under section 33L(1);

(c) a written submission made to the Commissioner of Police by the appellant under section 33L(2);

(d) the notice given under section 33L(3)(b); and

(e) a notification of the removal from office.

14 The terms of s 33R reflect the restrictive nature of an appeal to the Commission under Part IIB of the Police Act. The definition of “new evidence” in s 33R(11) also confirms the limitations on an appeal, such that it is only material not considered and taken into account by the respondent in making a removal decision, that may be so characterised.  Further, the language of s 33R(1) itself, the use of the words such as “shall not be tendered …” “unless the Commission grants leave …” affirms this limited scope and constraint.  The qualification for the grant of leave, without consent by the respondent, which is the case in these proceedings, on an appellant’s application, is satisfaction of s 33R(3)(b).  As this provision is expressed disjunctively, it is clear that the Commission may be so satisfied if any of sub pars (b)(i), (ii) or (iii) are made out.  However, the Commission’s discretion to do so is further qualified by s 33R(4), such that irrespective of which ground(s) may be met in s 33R(3)(b), the Commission must have regard to, in effect, the appellant’s prior awareness of the substance of the new evidence.  Thus, s 33R of the Police Act, dealing with the circumstances in which new evidence may be tendered in appeals of the present kind, is far more restrictive than the common law principles applicable to the adducing of new evidence in appeals, for example, to the Full Bench under s 49 of the Industrial Relations Act 1979 (WA): Magyar v Director General, Department of Education [2020] WAIRC 00988; (2020) 101 WAIG 1. (See too Laurent v Commissioner of Police [2009] WAIRC 00839; (2009) 89 WAIG 2177; Moran v The Commissioner of Police [2014] WAIRC 01358; (2014) 95 WAIG 185).

Consideration - tender of new evidence

15 We turn now to consider each of the appellant’s categories of new evidence sought to be tendered, in light of the foregoing discussion.

Audio recordings of managerial interviews

16 The appellant submitted that the audio recordings of the managerial interviews, in particular, with himself on 19 March 2020, demonstrate bias, leading questions, and badgering of the appellant by the investigators.  This was said to amount to the display of a general “prosecutorial” style, especially by Detective Senior Sergeant Hunter and also Detective Senior Sergeant MacKenzie.  The appellant contended that the conduct of his interview on 19 March 2020 was unfair.  Despite this contention, the appellant submitted, however, that the audio record also demonstrates the appellant’s “stoic and unwavering responses” to the various lines of questioning put to him, as referred to in ground 5.2 of the appellant’s proposed amended grounds of appeal.

17 The appellant also submitted that the interview of another officer, Sergeant Connor, who oversaw the charges preferred against Ms Gregory by the appellant, was also inappropriate and was alleged to have been used to provide evidence against the appellant.

18 The full transcripts of all the managerial interviews were provided to the appellant in order for him to prepare his response to the NOITR.  The appellant made extensive reference to the transcript of his interview on 19 March 2020 (see tab 30 Bundle of Materials) with Detective Senior Sergeants Hunter and MacKenzie, in his response (see pp 7-10 tab 42 Bundle of Materials).  The appellant made the same allegations then, that he makes now, as to the interviewing style adopted by the investigators.

19 As the respondent pointed out in his response to the application to tender new evidence, there has been no suggestion by the appellant that the transcripts of the managerial interviews were incomplete or inaccurate, to require supplementation by the audio tapes.  It is therefore difficult to see how the absence of the audio tapes being separately considered, would possibly lead the respondent to have proceeded on wrong or mistaken information, at the time he made his decision for the purposes of s 33R(3)(b)(i).  Furthermore, leading questions, or any suggestion of improper conduct, may readily be seen from a transcript, without the need for audio tapes.

20 Additionally, and more fundamentally, the appellant, having been told in his interviews that they were recorded, and having been given a full and complete transcript of the interviews, must be taken to have been aware of the audio tapes and thus, the “substance” of the new evidence for the purposes of s 33R(4) of the Police Act.  This is a factor to be weighed against the exercise of the discretion in this case.  In any event, and irrespective of the above, we have, for the purposes of informing ourselves and to enable us to properly consider the appellant’s application, listened to the audio tapes, especially that of the managerial interview of the appellant on 19 March 2020.  We do not consider that the style of interview by the investigators can be characterised as contended by the appellant.  To the extent that propositions were put to the appellant in the course of the interview, that could be described as leading questions, such questions are quite proper in an investigation, in order for a person to be afforded procedural fairness and to provide an opportunity to respond to contentions that the respondent may rely on at a later time.

21 We are therefore not persuaded that the appellant has established that the audio records of interview should be tendered in evidence in the appeal.

Excessive force examples and historical penalties

22 The second category of new evidence sought to be tendered are examples of prior disciplinary charges brought against police officers by the respondent, for the use of excessive force.  We understand the appellant’s contention to be that the respondent should have had regard to this type of material as a comparator in assessing the use of force allegations against him.  The first example is a four page document setting out particulars of disciplinary charges against a police officer in February 2018.  The document contains a summary of facts and a statement of four charges, only one of which relates to the use of excessive force against a person.  There is no indication of an outcome other than a handwritten notation on the front page of the document, making reference to “fined $2,200”.

23 The second document comprises a “Managerial Notice” and a “Managerial Notice – Endorsement”.  The documents refer to an incident during an arrest of a person by a police officer in March 2020, where unnecessary and excessive force was used.  The use of the Managerial Notice served as a form of counselling and the officer was required to undergo refresher training.

24 Other than what appears on the face of the documents, we know nothing of the circumstances of the two incidents concerned, including whether any mitigating factors existed.  The factual circumstances of these two cases would appear to be far removed from those the subject of these proceedings.  As each case will turn on its own facts, it is difficult to see how the requirements of s 33R(3)(b) could be met.  Furthermore, as noted by the respondent in his response, the appellant referred in his response to the NOITR (see pp 8-9 tab 42 Bundle of Materials) to “a recent example of allegations of excessive force being substantiated, yet the offending officer remained in force [sic].  It would seem I am suffering an inconsistent interpretation of any test of reasonable use of force”.

25 It is not clear from this response whether the appellant was referring to either of the examples now sought to be tendered.  However, the appellant seems to have been certainly aware of one or more of such cases, and accordingly s 33R(4) would not be met in any event.

Injury records when placing offenders into POD; Senior Constable Frey email; Occupational Safety and Health Committee documents

26 These categories of documents can be conveniently dealt with together.

27 Category (c) are injury reports over various dates in late 2020 and early 2021, where offenders have lashed out at Police Officers when being placed into the rear POD of police vehicles, following their arrest.  Officers have suffered injuries in some of these incidents.  The incident involving the appellant, as noted earlier, occurred in November 2019, about one year prior to the earliest of the reports, therefore well before the events.  The respondent’s NOITR was served on the appellant on 21 October 2020 (see tabs 40 and 41 Bundle of Materials) prior to the first of the incidents in the category (c) documents, which was dated 5 November 2020.  Most of the incidents in the bundle sought to be tendered occurred in March and April 2021, after the appellant’s removal. 

28 Similarly, the category (f) document, being the Perth Branch Meeting of the Western Australian Police Union report from Senior Constable Frey, is dated 5 November 2020.  Also, the Occupational Safety and Health Advisory Committee Meeting minutes were dated 12 November 2020, again well after the incident with the appellant, the subsequent NOITR and the appellant’s removal.  As noted by the respondent, it also seems that this category of documents was brought to the attention of the Union, prior to the provision of the appellant’s response to the respondent’s NOITR.

29 However, and despite the above, as with the documents in category (b), the circumstances of each of the incidents in the category (c) reports turn on their own facts.  Comparisons with what occurred in November 2019, involving the appellant and Constable Amphlett, are very difficult to make.  For such material to be of assistance to the Commission, as with the disciplinary incidents, direct and detailed oral evidence would be required, to enable a fulsome consideration of all of the facts and circumstances, so that an informed comparison could be made.

30 As with the examples of excessive force, the appellant also made mention in his response to the NOITR of “examples of officers being injured when placing persons in PODs” (see p 8 tab 42 Bundle of Materials).  This suggests that the appellant was aware of the substance of this new evidence, either the actual examples sought to be tendered that predated the submission of his response on 11 November 2020 (see tab 42 Bundle of Materials), or records of other similar incidents.  Thus, it is difficult to see how ss 33R(3) and (4) can be satisfied in these circumstances.

Media articles

31 The category (d) documents comprise a bundle of newspaper and other media reports in relation to the shooting by a police officer of an Aboriginal woman in Geraldton in September 2019.  The appellant contended that the intense public pressure on the Police Force, as a result of this incident, unduly influenced the respondent to remove the appellant from the Police Force.  The difficulty with this material is that most of it predates the incident involving the appellant and Constable Amphlett in 2019.  Additionally, and self-evidently, from the various dates of the media reports, all of this material was in the public domain well after the incident.  The appellant was also clearly aware of the situation as he made mention of it in his response to the respondent’s NOITR (see p 1 tab 42 Bundle of Materials).  It is therefore difficult to see how he could not have been aware of the substance of the new evidence for the purposes of s 33R(4).

32 Furthermore, there is nothing before the Commission to explain how, to the extent required, the mere existence of such material in the public domain would establish the likelihood that the respondent acted upon wrong or mistaken information or it might materially have affected the respondent’s decision to take removal action, or how it is in the public interest that it be tendered, for the purposes of s 33R(3)(b).

CAD data

33 Category (g) is tables of information showing computer aided dispatch figures for priority 1 to 6 tasks for the Geraldton Sub-District for the months of November and December 2018, 2019, and 2020.  The purpose of this material as advanced by the appellant, as we understand it, is to show that there was no loss of confidence in the Geraldton Police, following the incident involving the appellant in November 2019.  The appellant contended that a measure of loss of confidence is a request for attendance by police from the public and the total number of jobs undertaken.  The submission was that this data shows there was no appreciable decline.  The appellant maintained therefore that the respondent should have had regard to this material in making his decision.  As the concept of the “public interest” has been agitated by the appellant in his submissions on this point, in support of his new evidence application, some consideration of it now follows.  

34 In determining an appeal of the present kind, the Commission is required to have regard to matters set out in s 33Q(4) which is in the following terms:

33Q. Proceedings on appeal

…

(4) 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.

35 The concept of the “public interest”, in general terms, imports the notion of the wellbeing and welfare of the public: CCH Macquarie Dictionary of Law 1996 CCH Australia. As was said by French CJ in Hogan v Hinch (2011) 243 CLR 506 at [32], “… When used in a statute, the term derives its content from “the subject matter and the scope and purpose” of the enactment in which it appears” (citing O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ, in turn citing Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon CJ; Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320 at 329 [13] per French CJ, Gummow and Bell JJ).

36 Section 33Q(4)(b) extends the general notion of the public interest to specifically include, for the purposes of the Police Act and in particular Part IIB, the importance of the matters set out in sub-par (b)(i), in terms of the Police Force as a whole, and the special relationship between the respondent and members of the Police Force.

37 These broad concepts were considered and discussed by the Commission in Carlyon v Commissioner of Police [2004] WAIRC 11966; (2004) 85 WAIG 708.  In referring to the respondent’s broad power of removal of a Police Officer under s 8 of the Police Act (which is subject to the requirements of s 33L) the Commission observed at [111] to [118] as follows:

111 The Respondent sets out the legal principles that he considers should be addressed in dealing with appeals against removal action.

112 First, it is emphasised that there must be an appreciation of the very wide managerial power to remove police officers that resides with the Commissioner of Police under section 8 of the Act.

113 As statutory officers not all the principles that arise in the cases that deal with unfair dismissals necessarily apply to police officers under the Police Act 1892.

114 Under the Act the Commissioner is entrusted with the responsibility to act to maintain public confidence in the Police Force and its members and to take prompt action to that end if he sees it necessary and desirable (R v Miller; ex parte Parker, unreported, WA Full Court, Lib No 980249 per Franklyn at 11).  It is the responsibility of the Commissioner of Police to ensure that only officers who are trustworthy and adequately behaved should remain in the Police Force (Bigg v NSW Police Service (1997) 72 IR 330 at 332).

115 Removal of an officer from the Police Force is not done as a punitive measure.  In this case there is no charge of misconduct nor was it to be the basis upon which punishment was determined.  Removal action results from the Commissioner of Police’s lack of confidence in a member’s suitability to continue in the Police Force, it is effected to protect the public, to maintain proper standards of conduct of members and to protect the reputation of the Police Force.

116 Removal from the Police Force under the Commissioner of Police’s loss of confidence is not an avenue through which to exact retribution (Minister for Police & Another v Smith (1993) 73 WAIG 2311 at 2327).

117 The Respondent points out that when considering appeals against removal action, it is not a question of whether the “punishment fits the crime” but rather has the action been justified to maintain the proper functioning of the Police Force?

118 The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of members of the Police Force, upon their assiduous performance of duty and upon judicious exercise of their powers (Public Service Board and Another v Morris and Martin (1984-85) 156 CLR 397 at 412).

38 The Commission in Carlyon was urged to apply its approach in a 1998 matter under the former regime dealing with challenges against removals from the Police Force and continued at [119]:

119 On the basis of the above principles and subject to the statutory requirements set out in section 33Q of the Act in conducting an appeal it is, in the Respondent’s view, appropriate for the WAIRC to adopt the approach which it set out in the Report to the Minister under section 80ZE of the Industrial Relations Act 1979 on 18 December 1998:

“We have approached the matter on the basis that the Commissioner of Police has a statutory duty to maintain an efficient and effective Police Force in which the public has confidence.  It is trite to say that the “effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers”.  Moreover, we have approached the matter, recognising that it is the Commissioner of Police, and not us, who is charged with the responsibility of managing the Police Force.  In common with industrial tribunals in other States, the Industrial Commission has been at pains to point out that in examining allegations of harsh, oppressive or unfair dismissal from employment the Commission is not to put itself in the position of taking over the management of the relevant workplace by substituting its opinion for that of the appropriate manager.  Instead, its task is to determine whether there was a fair and reasonable explanation for the decision of the manager, which when viewed objectively, would be regarded by fair-minded persons as being totally legitimate.  In the context of this review, the question is whether the recommendation of the Commissioner of Police was one which was open to a fair-minded person charged with the statutory responsibilities of the Commissioner of Police.  In considering that question, it is necessary to have regard for the fact that … as with all members of the Police Force, occupies a statutory office, which is unlike that held by most other people who come before this Commission complaining of being unfairly dismissed from their employment.  The duties and responsibilities of members of the Police Force are such that the public is entitled to expect that they always act in a way which is above suspicion and reproach….

39 In considering these issues, and endorsing this approach, the Commission in Carlyon concluded at [180] and [184]-[187] as follows:

180 We re-affirm acceptance of statements set out above going to the Commissioner of Police’s statutory function in maintaining public confidence in the Police Force and his wide powers under section 8 of the Police Act 1892, to ensure that the public interest is served. What needs to be identified is the test to be applied to ascertain whether the decision of the Commissoner of Police to take removal action relating to a member of the Police Force was harsh, oppressive or unfair.

…

184 The interests of the Appellant and those aspects of public interest which go to the maintenance of public confidence in the Police Force have been identified by the parties in the cases considered here under section 33Q(1) of the Act, or in the reiteration by the WAIRC of legal principles which apply in an appeal.

185 What has not been articulated is the special nature of the relationship between the Commissioner of Police and members of the Police Force under section 33Q(4)(b)(ii) of the Act, which goes to the public interest and how these are to be regarded by the WAIRC in determining the appeal.

186 In our view this provision serves to remind the WAIRC to take into account that the nature of the relationship between the Commissioner of Police and members of the Police Force extends beyond those duties and obligations which are implied in normal employer/employee relationships. It goes beyond the member’s duty of honesty, fidelity, obedience and to co-operate and the Commissioner of Police’s duty to provide training and a safe work environment. It encompasses the commitment of a member to discharge the requirements of his/her commission whether on duty or off duty and to serve as a member of a disciplinary force. While the very nature of policing assumes that the environment in which members discharge their duties will not always be safe it is the duty of the Commissioner of Police to ensure that members receive appropriate education, training, information and supervision in order for them to make decisions appropriate to the proper discharge of their duties and in the public interest.

187 It is within the context of this relationship between the Commissioner of Police and the Appellant that the WAIRC must, in addition to the other matters cited in the statute, have regard in determining the appeal.

40 We adopt and apply this approach for present purposes.  Thus, the Commission’s obligation to take into account the public interest is not based on the individual conduct of the appellant and whether this has resulted in fewer calls to the Geraldton Police Station.  Rather, it is the impact of the actions of the appellant and whether they are compatible with the need to maintain public confidence in the Police Force generally and as a whole, as discussed above, and whether it was open to the respondent, in light of the special relationship he maintains with Police Officers, to lose his confidence in the appellant in the circumstances of this case.

41 Therefore, we are not satisfied that the documents in this category satisfy the requirements of s 33R(3)(b).

Application to amend the grounds of appeal

42 To the extent that the proposed amendments to the grounds of appeal do not incorporate the subject matter of the application to tender new evidence, the application will be granted.  Accordingly, save for par 6 of ground 2; pars 3, 4 and 5 of Allegation 2 and par 5 of the Relief Sought, the Schedule to the application filed by the appellant on 18 March 2021 will stand as the appellant’s amended grounds of appeal.

43 We also note that the proper name of the respondent is the Commissioner of Police and not the West Australian Police Force.  An order to amend the name of the respondent should also be made.

Conclusion

44 The application to tender new evidence is dismissed.  The application to amend the grounds of appeal, is, to the above extent, granted.  We would order accordingly.