2021 WAIRC 00631
APPEAL AGAINST THE DECISION OF COMMISSIONER TO TAKE REMOVAL ACTION OF 29 DECEMBER 2020
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00631

CORAM
: CHIEF COMMISSIONER S J KENNER
SENIOR COMMISSIONER R COSENTINO
COMMISSIONER T EMMANUEL

HEARD
:
WEDNESDAY, 6 OCTOBER 2021

DELIVERED :   TUESDAY, 14 DECEMBER 2021

FILE NO. :   APPL 7 OF 2021

BETWEEN
:
DAREN LEE
  Appellant

  AND

  COMMISSIONER OF POLICE
  Respondent

Catchwords : Industrial law (WA) - Removal of police officer - Appeal against removal - Loss of confidence by Commissioner of Police - Whether arrest was unlawful - Whether use of force in arrest was excessive - Legal and evidentiary burden of proof in appeal against removal of police officer considered - Appeal dismissed
Legislation : Criminal Code Act Compilation Act 1913 (WA) s 76, s 78,
s 80A, s 80B, s 231, s 231(1)
Criminal Investigation Act 2006 (WA) s 3, s 4, s 16, s 128,
s 128(1), s 128(3)
Interpretation Act 1984 (WA) s 5
Police Act 1990 (NSW) s 181D(1), s 181F, s 181F(2)
Police Act 1892 (WA) s 33P, s 33P(1), s 33Q(2), s 33Q(3),
s 33Q(4)
Police Force Regulations 1979 (WA) r 402, r 605
Weapons Act 1999 (WA) s 8, s 8(3), s 11  
Result : Appeal dismissed
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:
Amoco Oil Co. v Parpada Shipping Co. Ltd. (The “George S.”) [1989] 1 Lloyd’s Law Reports 369
Brady (Inspector of Taxes) v Group Lotus Car Cos plc [1987] 2 All ER 674
CARLYON V COMMISSIONER OF POLICE [2004] WAIRC 11966; (2004) 85 WAIG 708
COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE V ZISOPOULOS [2020] NSWCA 236
FERGUSON V THE COMMISSIONER OF POLICE [2017] WAIRC 00238; (2017) 97 WAIG 502
FORREST V DOUGLAS [1983] WAR 270
Gibbs v Wanganeen [2001] FMCA 14; (2001) 162 FLR 333
LABRIOLA V MORGAN [2017] WASC 256
MCGRATH V COMMISSIONER OF POLICE [2005] WAIRC 01989; (2005) 85 WAIG 2006
MORAN V THE COMMISSIONER OF POLICE [2015] WAIRC 00464; (2015) 95 WAIG 804
NIGEL BEVERLY V THE COMMISSIONER OF POLICE [2017] WAIRC 00270; (2017) 97 WAIG 627
O’HARA V CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY [1996] UKHL 6; [1997] AC 286
PETERS V R [1998] HCA 7; (1998) 192 CLR 493
POLIZZI V COMMISSIONER OF POLICE [2014] WAIRC 00302; (2014) 94 WAIG 477
Shire of Esperance v Peter Maxwell Mouritz (1991) 71 WAIG 891
THE UNDERCLIFFE NURSING HOME V THE FEDERATED MISCELLANEOUS WORKERS’ UNION OF AUSTRALIA, HOSPITAL, SERVICE AND MISCELLANEOUS, WA BRANCH (1985) 65 WAIG 385
Tredinnick v Commissioner of Police [2016] NSWIRComm 14

Reasons for Decision
KENNER CC:
1 I have had the benefit of reading a draft of the joint reasons for decision of Cosentino SC and Emmanuel C. The appellant, Mr Lee, has brought six grounds of appeal. In relation to his six grounds of appeal and the issues arising from those grounds as set out in the joint reasons, I agree, for the reasons that they give, that Grounds one to four inclusive are not made out. I also agree, for the reasons that they give, that had it been necessary to decide the matter, that Ground five is made out, and that Mr Lee was not demonstrated to have been wilfully dishonest and misleading during his managerial interviews. I am also not persuaded that in all of the circumstances, the removal of Mr Lee was harsh, on the ground that it was disproportionate to the behaviour and conduct that he engaged in.
2 There was one matter upon which I wish to make further observations, and that is Mr Lee’s contention that the judgment of the Court of Appeal of New South Wales in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236, is of significance to the approach the Commission should take in the disposition of the present appeal, and appeals of the present kind generally, having regard to s 33Q(2) of the Police Act 1892 (WA) (Police Act). The issue of the application of Zisopoulos, arose towards the conclusion of the hearing of the appeal, and the parties were granted leave to file further supplementary written submissions in connection with the issue said to arise.
3 In summary, Mr Zisopoulos was a former member the Police Force of New South Wales who, in December 2016, was removed by a notice under s 181D(1) of the Police Act 1990 (NSW) (NSW Act). He was removed because the Police Commissioner was satisfied, on the balance of probabilities, that Mr Zisopoulos had voluntarily consumed a prohibited drug, that being methylamphetamine. Proceedings were commenced by Mr Zisopoulos in the New South Wales Industrial Relations Commission, under statutory provisions very similar to Division 3 of Part IIB of the Police Act. Section 181F(2) of the NSW Act, is in the same terms as s 33Q(2) and (3) of the Police Act in this jurisdiction.
4 At first instance, Murphy C upheld the challenge by Mr Zisopoulos to his removal. The Commissioner applied an earlier decision of the Full Bench of the New South Wales Industrial Relations Commission, in Tredinnick v Commissioner of Police [2016] NSWIRComm 14. On this basis, given the approach taken by the Police Commissioner to the material before him, which material he assessed on the Briginshaw test, doubt was cast upon the Police Commissioner’s finding that Mr Zisopoulos had consumed prohibited drugs. Environmental contamination was at least a “likely” explanation for the relevant test results, rather than the voluntary ingestion of prohibited drugs by Mr Zisopoulos.
5 On appeal to the Full Bench of the New South Wales Industrial Relations Commission, a challenge was made that the Commission at first instance had misconstrued the terms of s 181F of the NSW Act, in relation to the onus on an appellant to establish that their removal was harsh, unreasonable or unjust. The Full Bench dismissed the appeal and concluded that the Commissioner did not misconstrue or fail to apply the terms of s 181F or misapply the approach taken in Tredinnick.
6 On an application for judicial review commenced by the Police Commissioner to the Court of Appeal, Bell P and Macfarlan JA (Wright J dissenting), held that neither the Commissioner at first instance, nor the Full Bench, had misconstrued the onus provision under s 181F(2) of the NSW Act, properly considered. On the basis that the Police Commissioner had imposed the Briginshaw standard upon himself, and the evidence before the Commission did not meet that standard, the conclusion that Mr Zisopoulos’ removal from the Police Force was harsh, unreasonable or unjust, was reasonably open.
7 After setting out the history of the relevant provisions of the NSW Act, the majority of the Court considered the distinction between the legal burden on an application seeking relief from removal, and the “evidentiary burden” or “tactical burden” which involves an assertion of no more than that at any particular given time in the hearing of a legal proceeding, the evidence may be such that it is open for one party to succeed, thereby requiring the other party to adduce evidence to counter it. In this sense, the “evidential burden” may move from one party to the other and back again, during the course of a hearing: Amoco Oil Co. v Parpada Shipping Co. Ltd. (The “George S.”) [1989] 1 Lloyd’s Law Reports 369 at 370 per Lord Donaldson of Lymington MR, cited in Zisopoulos at [69]. Such an ebb and flow of the requirement for there to be evidence to establish the existence of a fact in issue, does not in any sense, affect the overall legal or persuasive burden on the party required to establish their case.
8 As was said by Kennedy J in another context, in Shire of Esperance v Peter Maxwell Mouritz (1991) 71 WAIG 891 at 895, “an evidential burden does not require the person upon whom it lies to establish anything. It imposes only an obligation to show that there is sufficient evidence to raise an issue as to the existence or nonexistence of a fact in issue”. Furthermore, the notion of the “evidentiary burden”, is really in essence, one of tactical consideration or involving the “tactical onus”, discussed and applied in Brady (Inspector of Taxes) v Group Lotus Car Cos plc [1987] 2 All ER 674 per Sir Nicolas BrowneWilkinson VC at 686687, cited by the Court of Appeal in Zisopoulos at [96]. However it may be expressed, this does not, for present purposes, alter or shift the overall burden of proof on an appellant for review under either the NSW Act in s 181F(2) or s 33Q(2) and (3) of the Police Act, in this jurisdiction.
9 Whilst s 181F(2) of the NSW Act is in the same terms as s 33Q(2) and (3) of the Police Act in this jurisdiction, I agree with the respondent’s submissions that Zisopoulos does not alter the approach that the Commission should take. Importantly too, it must be borne in mind that as identified by the Court of Appeal, mentioned above, on the facts in Zisopoulos, the Police Commissioner had imposed upon himself the Briginshaw test of the evidence before him, to justify the removal of Mr Zisopoulos from the NSW Police Force. It was for this reason, that the Commission, both at first instance and on appeal, considered that the evidence before the Commission fell short of that standard, thereby enabling the conclusion to be reached that the removal of Mr Zisopoulos was harsh, unreasonable and unjust. It was on this basis that the Full Bench’s reference to “sufficient doubt”, on the facts of the case, justified the conclusion that Mr Zisopoulos’s removal was unfair. The mere raising of a doubt, does not impact on the overall burden on an appellant to establish his or her case: per Bell P at [84][85] (Macfarlan JA agreeing).
10 As was observed by the majority in the Court of Appeal too, and as has been the approach of the Commission in this jurisdiction in dealing with appeals under Division 3 of Part IIB of the Police Act, the issue at the end of the day will always be, as s 33P(1) requires, whether or not the removal decision by the Commissioner of Police is “harsh, oppressive or unfair”. This involves an assessment by the Commission of all the material before the Commissioner of Police when he made his decision, as may be supplemented by any “new evidence”, admitted under s 33R of the Police Act. The majority of the Court of Appeal in Zisopoulos has, as the respondent correctly noted in its written supplementary submissions, affirmed the fundamental proposition that the overall persuasive burden rests on an appellant to establish that his or her removal was unfair. In my view, the same conclusion applies in this jurisdiction. The Commission’s approach has always been thus, consistent with the requirements imposed by s 33Q(2) and (3) of the Police Act.
11 As noted by the majority in Zisopoulos, the invocation of concepts of “tactical onus” or “evidentiary onus”, can give rise to confusion: per Bell P at [88] (Macfarlan agreeing). Similar observations were made by Wright J at [200].
12 This Commission has generally taken a broad approach to the application of the terms of s 33P(1) of the Police Act and whether an appellant has established that the taking of removal action is harsh, oppressive or unfair. No distinctions involving an evidential or tactical onus have been applied in this jurisdiction when considering appeals against removal. I see no reason to adopt such an approach now. For example, in Nigel Beverly v The Commissioner of Police [2017] WAIRC 00270; (2017) 97 WAIG 627, the Commission noted that even where doubt is raised as to one aspect of the reasoning of the Commissioner of Police in taking removal action, this may not justify the overturning of the decision. The Commission said at [40]:
In Polizzi v Commissioner of Police [2014] WAIRC 00302; (2014) 94 WAIG 477 [144] the WAIRC expressed the test as including whether there is a logical and sound basis for the Commissioner finding as he did. If so, then even if an aspect of the Commissioner’s reasons is invalid or mistaken, it does not necessarily mean that the whole of the decision ought to be overturned. ...
13 The appeal should be dismissed.
COSENTINO SC AND EMMANUEL C:
Table of Contents
Introduction 7
Background 8
Reasons for removal action 16
Mr Lee’s response to proposed removal action 16
Grounds of Appeal 19
Appeals under Part IIB of Police Act 1892 (WA) 20
Was there an absence of lawful authority for the arrest? 23
Did Mr Lee use excessive force when he arrested and detained Ms G? 35
Was Mr Lee negligently or wilfully dishonest when he prepared the Statement of Material Facts and Witness Statement for Ms G’s prosecution? 37
Did Mr Lee fail to perform his duties in a proper manner by including Constable Amphlett’s Witness Statement in the prosecution brief? 41
Was Mr Lee wilfully dishonest or misleading during managerial interviews? 41
Section 33Q(4) considerations 42
Introduction
14 Mr Daren Lee was removed from his position as a police officer in the service of the WA Police for reasons relating to his conduct during, and following an arrest he made on 13 November 2019. In this appeal, he challenges the removal decision.
15 In bringing this appeal, Mr Lee maintains that his actions on 13 November 2019 in making the arrest and using force to place an Aboriginal woman, who will be referred to in these reasons as Ms G, in a police vehicle were legitimate, within power and properly exercised. His appeal therefore raises technical legal issues concerning the requirements of the Criminal Investigation Act 2006 (WA) (CI Act). At the end of the day, we have formed the view that the Commissioner of Police was right to conclude that the arrest was unlawful, and the use of force excessive. For those reasons alone, Mr Lee’s appeal must fail. But even if he had been right about the lawfulness of his actions, it is disappointing that he has not acknowledged that anything could, or should, have been handled differently by him on 13 November 2019. It is also disappointing that throughout the course of the disciplinary action and this appeal, Mr Lee has showed no concern about the serious impact of his actions of 13 November 2019 on Ms G.
Background
16 As at 13 November 2019, Mr Lee was a Senior Constable stationed at Geraldton.
17 At 1.22 am on 13 November 2019, Ms G called 000. The operator ascertained that she was seeking police assistance. Her call was traced to her address and Mr Lee and Constable Amphlett attended at her address, establishing that Ms G had called for assistance to remove a white man, Gary, from her home. Mr Lee and Constable Amphlett found Ms G in an agitated state, likely intoxicated and hostile towards them. Gary told police that he was a friend of Ms G’s and he voluntarily left the premises on foot, leaving his car at Ms G’s home. He told police that he would return later to collect it. Mr Lee and Constable Amphlett departed.
18 Ms G called 000 a second time for police assistance at about 5.11 am on 13 November 2019, complaining that Gary had returned and had been terrorising her. Mr Lee and Constable Amphlett attended her home again.
19 Mr Lee turned on his body worn camera (BWC) upon arriving at the scene. The BWC footage was before the Commissioner of Police and was shown in the hearing of the appeal. It shows that when Mr Lee and Constable Amphlett arrived, Ms G met them on the front step of her home veranda. She was standing and holding a serrated kitchen knife in her hand. Constable Amphlett directed that she drop the knife which she did, throwing it into her front yard.
20 The BWC records that Ms G then sat down on the step of her front veranda and engaged in a brief discussion with the police officers. It is worth detailing in full the dialogue and actions as captured by the BWC:
Time
Speaker
Transcript/Action


Body Worn Camera  Lee
00:19 (seconds)

Police arrive, no audio
00:25

Lee out of vehicle – drivers side
00:28

Ms G standing on porch, hands at side.
00:29

Appears to throw knife away
00.30
Ms G
“what you gonna taser me or shoot me”
00.32
Amphlett
“just drop the knife”
00.33
Ms G
“there knifes gone, you gonna pull out a gun?”
00:36
Lee
“no it’s a taser”
00:37
Amphlett
“...taser, don’t be stupid”. Victim sits on step.
00:39
Ms G
“well you’se are stupid, look it here, I rang you’se for what?”
00:43
Amphlett
“yeah well for what? Tell us what”.
00:44
Ms G
“your colour could have killed me before you got here”.
00:48
Lee
Our colour? Right if you ‘re gonna be racist we’re leaving, bye”.
Both officers turn and walk towards the vehicle
00:50
Ms G
“bye”.
Officers reach the front of their vehicle, wind noise blocks voices momentarily.
00:52

Lee turns back and walks towards Ms G
00:54
Lee
“you’re under arrest, racially aggravated public order”.
Ms G is still seated.
00:56
Ms G
“what?”
00:57
Lee
You’re under arrest, racially aggravated public order”.
00:58
Ms G
“my house is unlocked”.
Both officers grab Ms G’s right arm.
01:00
Ms G
“what?”.
01:01
Lee
“racially aggravated public order”.
01:02

Both officers lead Ms G to police vehicle.
01:05
Lee
“you are under arrest, you do not have to say anything, but it may harm your defence if you..??..questions
01 :12
Ms G
“why don’t you go back to your own country?”.
Pod door being opened”
01 :13
Lee
“in you get”.
01 :21

Both officers bundling Ms G into the rear pod”.
Amphlett walks to porch, Lee picks up knife.
21 It was not in dispute that after Ms G said “Bye” and before Mr Lee turned back towards her, Ms G said something further and that it was likely she said the words “English pig”. The BWC did not pick up anything that was said due to wind noise.
22 Ms G told investigators she said, “You racist…You English pig or something like that…why don’t you go back to your own country and arrest people over there?” However, on the BWC footage there is very little time, two to three seconds, between Ms G saying “Bye” and Mr Lee turning back towards her. Mr Lee could not recall the precise words he heard, but said it is likely it involved the words “Fucken English pig”. That is less plausible than “English pig” given the timing, and also because Ms G did not otherwise use any profanities towards police during the course of the events at her home, except perhaps to once say “cocksucker” at 1:10 of the BWC footage detailed below.
23 Mr Lee turned, placed Ms G, still sitting, under arrest and escorted her to the police vehicle, referring to a charge of “racially aggravated public order” and citing a UK version of a caution.
24 Mr Lee and Constable Amphlett used physical force to haul Ms G up from her position seated on her front veranda and to place her in the police vehicle (POD). To place her in the POD, Mr Lee lifted her legs while her arms were held behind her back by Constable Amphlett, forcing her head and torso first into the POD.
25 Ms G was told she was under arrest within 31 seconds of Mr Lee exiting his vehicle, and she was in the rear of the police vehicle within about one minute of his arrival. Throughout the BWC footage there are glimpses of the street and area surrounding Ms G’s home. There are no other people visibly present in the footage other than a woman, Ms K, who came to Ms G’s home once Ms G was in the POD, and who described herself to police as a Ms G’s cousin.
Constable Amphlett’s BWC records events over a period of 6:30 minutes after Ms G is placed in the POD. The dialogue it records is as follows:
Time
Speaker
Transcript/Action


Body Worn Camera  Amphlett


Ms G is in the rear pod
00:25
Amphlett
“are you going to calm down?”
00:26
Ms G
“why are you arresting me, I rang the cops on Gary and they arrested me”.
00.28
Amphlett
Are you going to calm down
00:32
Ms G
Help me
00.34
Amphlett
I’m not going to open it, I can’t help you
00:36
Ms G
Help me
00:38
Amphlett
We’ll go back to the station. We’re not going to let you out if you’re gonna keep banging, I can’t speak to you like this.
00:44
Ms G
Help me, I rang the cops for you to help me
00:46
Amphlett
Yeah we tried to speak with you
00:48
Ms G
I got assaulted and end up in here(?)
00:49
Amphlett
We’ll take her back to the station
00:50
Lee
We’ll take her back and put her in the cell
01:10
Ms G
....? Gary already assaulted me, these cops [and this cocksucker] chucked me in the back, I mean it I’m gonna die, I need to breathe, open here
01:25

Gonna die if she can’t breathe from her shouting
01:28
Ms G
I need hospital attention, I rang the cops to help me, they only seen the blackfellas....? Look what Gary’s done to me. I’m gonna die, this is the last time you’re gonna see me.
01:48

settle down
01:50
Ms G
there’s something wrong with me, help I can’t breathe properly, they threw me in here....before?
02:00
Ms K
settle down then sis, settle down
02:02
Ms G
help me, I’m gonna die if you can’t help me


Wind noise
02:14
Amphlett
she bloody came out with a knife
02:15
Lee
she had a knife
02:21

Ms K talking to Ms G
02:50
Amphlett
happy if we open it?
02:52
Lee
no leave the chain on
02:56
Ms G
help me, I CAN’T
02:59
Lee
sit up properly
03:03
Amphlett
is it [name] or [name]?
03:04
Lee
Why not?
03:05
Ms G
Because I’ve been assaulted before you chucked me in here
03:12
Lee
well you’re kicking the, are you going to be quiet, or do you want to go to...
03:16
Ms G
help me please help me
03:20
Lee
are you going to listen or do you want to go to the cells
03:23
Ms G
.....? [Gary already] assaulted me...? Can’t [and this cunt] chuck[ed] me in the back here
03:24
Amphlett
[name]
03:25
Lee
do you want to go to the cells or do you want to listen and talk like a proper adult
03:27
Ms G
after you threw me in here
03:29
Lee
which do you want to do, do you want to stay here or do you want to go to the cells
03:34
Ms G
I want to talk to my sister
03:37
Lee
no I’m asking you, what are you going to do
03:39
Ms G
I want to stay here
03:42
Lee
right sit up on the bench then and I’m going to open the door
03:43
Ms G
I can’t, I can’t
03:49
Amphlett
why can’t you [name]
03:52
Ms G
I tried to say to you whats happened to me
03:55
Lee
you were ok when you were shouting the abuse and had the knife, so I don’t get..
03:58
Ms G
I was just beaten, and you’se rocked up and you’se threw me in here after I had this happen to me.
04:12
Lee
sit up properly on the bench, if you don’t sit up I’m taking you to cells
04:19
Amphlett
open it up


takes chain off door
04:22
Lee
come on wake up
04:23
Amphlett
[name]
04:24
Lee
wake up
04:26
Amphlett
[name] we’re gonna pull you out and start doing CPR, stop it
04:29
Lee
Stop arsing around
04:31
Ms G
I’ve been assaulted look
04:34
Lee
Unfortunately that’s an old bruise
04:35
Ms G
it’s a boot, I got booted
04:36
Lee
it’s an old bruise
04:41
Lee
why didn’t you tell us about that before then?
04:45
Ms G
because you just grabbed me
04:47
Lee
right you’re going to cells


Lee slams door
04:49
Ms G
help me, help me
04:52
Lee
she’s that pissed she can’t listen to reason
05:00
Amphlett
it’s alright we’re just going to go, what was your name? Are you a relative
05:03
Ms K
yeah cousins
05:04
Amphlett
is there anyone else here that
05:06
Ms K
probably
05:08
Ms G
I got assaulted and they arrested me
05:09
Ms K
is there any other boys here or what
05:10
Ms G
Gary done it
05:16
Lee
Gary was out the back earlier
05:19
Amphlett
[name] are you happy to stay here or something, she’s not going to need a pair of shoes she’s only going to be there for 2 seconds
05:30
Lee
........? can stay here, I’m not giving her a lift
05:31
Amphlett
no we’re not but we’ll sort it out later
05:34
Lee
are you going to calm down and listen like a responsible adult
05:43

Opens the door
05:44
Lee
are you going to carry on being like a baby or are you going to listen like an adult


Ms G seated on floor
05:50
Lee
you’re holding the wrong side, your bruise is on the other side


[name] breathing deeply
05:53
Amphlett
[name], talk to us, this is your chance to talk to us, do not yell at us, tell us what’s happened
06:02
Amphlett
because all we’ve seen is you with a knife and you ‘ve been aggressive towards us
06:06
Ms G
I was trying to defend myself and you
06:07
Lee
who against?
06:09
Ms G
I rang the cops and you’se go and chuck me in here
06:12
Lee
Because you pulled a knife on us
06:14
Ms G
I had the knife in my hand trying to help myself from the ex
06:19

Lee slams door shut
06:30

Officers get in vehicle, BWC turned off.
26 Ms G was taken to the Geraldton police station. There is CCTV footage of Ms G being removed from the POD at the police station by Mr Lee and Constable Amphlett as well as her interactions with police officers in the charge room. In this footage Mr Lee is shown coming into the charge room, interacting with Ms G, and escorting her from the charge room.
27 Ms G was charged with an offence under the Weapons Act 1999 (WA) (Weapons Act) related to possessing an article with intent to cause fear and two counts of disorderly conduct. The first count of disorderly conduct related to her conduct whilst in the front yard of her home. The second count of disorderly conduct related to her conduct whilst at the police station.
28 On the same day, Mr Lee prepared a Statement of Material Facts for the purpose of the prosecution of the charges. The Statement of Material Facts stated:
…
Whilst speaking to police the accused swore and made racist comments towards officers. (Where have you been you’re not helping cos he’s white and I’m black.”
Officers instructed the accused they would leave if she continued being racist.
The accused shouted several times; “Fuck off back to your own country.”
At the time the weather was warm and still with several neighbouring properties having their windows open. Also there were several pedestrians walking around the area within hearing distance.
The accused was arrested on the present charge.
…
29 Ms G was released on bail. She later pleaded guilty to the disorderly conduct charges and not guilty to the Weapons Act offence.
30 On 2 January 2020, Mr Lee and Constable Amphlett each prepared a witness statement for the purpose of the hearing of the Weapons Act charge. Their respective statements were signed in each other’s presence.
31 Mr Lee’s statement said:
As we returned to our vehicle [Ms G] shouted more abuse at us.
Aware that people were asleep with their windows open and some walking about the area, I returned to [Ms G] who was sat on the step.
I then started walking [Ms G] to the police vehicle and as I did so I advised her; “You do not have to say anything, but anything you do say will be recorded and may be used in evidence.”
During the booking in process [Ms G] stated that the knife had been in case he returned.
32 Constable Amphlett’s statement contained the following relevant statements:
As she threw the knife the accused continued to scream racial abuse at officers.
I attempted to gain an account from the accused, but she continued to scream profanities at police and accuse them of murder.
…continued to shout profanities.
33 Mr Lee then listed both witness statements, together with the BWC footage, on the list of materials for disclosure. The prosecution brief was provided to the Aboriginal Legal Service (ALS) who were acting for Ms G.
34 All charges against Ms G were withdrawn prior to trial and after the ALS alerted the prosecution to the discrepancies between the BWC footage and Mr Lee’s and Constable Amphlett’s Witness Statements.
35 On 27 February 2020, the ALS lodged a complaint to the Internal Affairs Unit (IAU) about Ms G’s treatment on 13 November 2019. The IAU commenced its investigation.
36 During managerial interviews conducted on 19 February 2020 and 19 March 2020 in relation to Ms G’s, Mr Lee denied that he was involved in walking Ms G into the charge room of the police station, asserting that he had handed the matter over to other officers for the bookingin process and did not go into the custody area.
37 The investigation found that recordings from the BWCs did not substantiate the statements by Mr Lee as to the words he attributed to Ms G, nor that she was at any relevant time swearing, shouting or screaming. The investigation also found that CCTV footage from the police station showed Mr Lee did escort Ms G to the charge room, contrary to his statement in interview.
Reasons for removal action
38 The reasons for Mr Lee’s removal relate to the events of 13 November 2019 and the subsequent prosecution process. They are set out in a Notice of Intention to Remove letter of 19 October 2020. The reasons for the removal decision were:
1. On the morning of Wednesday 13 November 2019, in Spalding, you arrested and detained [Ms G] without lawful authority.
2. On the morning of Wednesday 13 November 2019 in Spalding you used excessive force when you arrested and detained [Ms G].
3. You were negligently or wilfully dishonest when you prepared a statement of material facts document and witness statement for the prosecution of [Ms G].
4. You failed to perform your duties in a proper manner when you included Constable Amphlett’s witness statement in an evidential brief for the prosecution of [Ms G] without addressing inaccurate and misleading information within that document.
5. You were wilfully dishonest or misleading during managerial interviews on 19 February and 19 March.
Mr Lee’s response to proposed removal action
39 Mr Lee’s submissions to the Commissioner of Police regarding the allegations against him are contained in an undated, 17page Memorandum. He describes the second interaction with Ms G on 13 November 2019 as follows:
…
When Constable Amphlett and I approached the property, [Ms G] came out of the property holding a serrated edged knife with a 68inch blade. She was instructed to by Constable Amphlett to “drop the knife”. I instinctively reach for my Taser. [Ms G] threw the knife into the front yard. I did not draw my Taser. [Ms G] made a racist comment regarding our “colour.” This was a continuation of the abuse she had levelled at us during the earlier visit. My instinctive response was to leave the property to mitigate any escalation of tension. I walked a few metres away and was further racially abused by [Ms G]. I cannot accurately recall her words; however, I understand in her interview with Det Snr Sgt Hunter where she described the incident, she confirmed she called me an “Fucking English Pig.” This may have been what I heard? It would explain my instantaneous reaction.
I immediately return to her verandah and made an arrest. It was at this time I cited an English offence rather than the Western Australian offence. I cannot recall doing this. Further I cited most of the English caution rather than the Western Australian version. Again, I cannot recall doing this…
…
While I did not advise her at the time of the arrest of my intention to charge her under s8(l)(a) & (b) Weapons Act 1999 (WA), I am confident her behaviour satisfied the elements of s 8(l)…
40 Mr Lee concedes that the initial arrest was for an offence under UK law that is not an offence in Western Australia, that the charge cited was incorrect and not sustainable. He maintains, though, that Ms G’s conduct would support an offence of conduct intended to or likely to racially harass and disorderly behaviour in public.
41 In relation to the allegation of excessive use of force, Mr Lee states:
…As shown on the BWC I did not use any unnecessary force when assisting [Ms G] into the POD following her refusal to comply with my instructions to voluntarily enter the POD…
…
Upon opening the POD, I twice instructed [Ms G] to voluntarily get into the POD. She did not meet my request. I moved to place her chest onto the floor of the POD. Once in place, Constable Amphlett and I lifted her legs off the ground and moved her to a position inside the POD. During this part of the arrest [Ms G] did not raise any concerns about her previously incurred injuries and did not display any behaviour which would indicate she was injured…
42 Mr Lee essentially relies upon what is shown of his actions on the BWC in response to the allegation. He does not address the question of whether Ms G’s demeanour or the surrounding circumstances generally justified any use of force.
43 In relation to the statements Mr Lee made in support of the prosecution of the charges, he says:
…
I concede that some of the entries in both of my Statements are not consistent with the actual events recorded on the BWC of the incident at [address] at approximately 5.20 am. I believe this is a result of my conflation of the two incidents at the house on the night of 13 November 2020[sic]. During the first incident [Ms G] was highly intoxicated, swearing and racially abusive. Constable Amphlett and I endured considerable racial abuse largely arising from her reaction to the shooting by a police officer of an indigenous woman who may be related to her and the fact that [Ms G’s] abusive husband was white.
…
I have no recollection of Constable Amphlett advising me that either the charge or the caution was incorrect.
I have no recollection of the events in the Sally Port. When asked to recall these events I simply reverted to what is the usual practice in dealing with unruly offenders. They are placed in the custody of the Lockup Keeper. I did not review the Solly Dock footage, I had no reason to do so. The arrest of [Ms G] remained in my recollection uncontroversial.
44 In relation to the inclusion of Constable Amphlett’s Witness Statement in the evidential brief, Mr Lee says:
…
I see no controversy in the fact Constable Amphlett’s statement was included in the prosecution brief. Her recollection of events is largely consistent with my own as expressed in my statements. It is likely that any inconsistencies in the statements have arisen because we have both unknowingly conflated the two events of the night of the 13 November 2020[sic]. My viewing of the BWC was not forensic, and the events of the 13 November 2020[sic] and the subsequent charges were at the time of reviewing Constable Amphlett’s statement a fading memory.
45 In his response, Mr Lee also levels criticism against the investigators in the conduct of his interview. He says:
…
The conduct of the interview by Hunter and Mackenzie was in my view, highly unprofessional, riddled with bias and unfounded conclusions and extremely prosecutorial.
Throughout the interview Hunter and Mackenzie consistently put words in my mouth and made numerous conclusions as to my behaviour and motivations without any evidence to be found in my responses for his conclusions.
I provide the following examples in support of my contention.
Hunter displays a poor understanding of the Code. He dismisses [Ms G]’s arrest on the “racial charge” even though it is found at s80(B) of the Code.
At 10 of page 17, I dispute his contention. Clearly the BWC records [Ms G] saying “cocksucker” and “cunt” when in the POD. She repeats the words at the Station as evidenced on the CCTV.
At 35 of page 17, I respond to questions saying [Ms G] remained aggressive in POD. The BWC clearly shows this behaviour.
At 5 and 10 of page 18, Hunter fails to note s11 Weapons Act which goes to the onus of proof of the defence found at s8. He wrongly asserts [Ms G] had a perfect defence.
At 5 to 40 of page 17, Hunter questions me about my instruction to [Ms G] to get into POD. The BWC clearly shows I asked her twice to get in and she did not comply. I clearly explain why I acted with speed when placing her in the POD. I acted as I am expected to do under the Regs.
At 5 to 40 of page 21, I am questioned about excessive or unnecessary force. The Regs go to unnecessary force however the allegation goes to excessive force. The two terms are used interchangeably in many of the documents supporting the allegations. Clearly there is no evidence in the BWC to satisfy a test for excessive force. As for unnecessary force, [Ms G] presented with a knife and was abusive. I acted to protect myself and Constable Amphlett and [Ms G].
…
46 Finally, Mr Lee requests that the Commissioner review recent examples of Officers being injured when placing persons in PODs “and consider a recent example of allegations of excessive force being substantiated, yet the offending Officer remained in Force”.
Grounds of Appeal
47 Mr Lee basis his appeal on six grounds. Grounds one1 to five essentially challenge the ultimate finding of fact in relation to each of the five reasons for removal:
(a) Ground one is that the Commissioner of Police was wrong in finding Ms G’s arrest was unlawful because the arrest complied with the Police Force Regulations 1979 (WA) and the CI Act requirements. As part of this ground, Mr Lee argues that there were valid grounds for an arrest based on the commission of an offence under s 8 of the Weapons Act and/or disorderly conduct in public and/or conduct likely to or intended to racially harass under the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code). Mr Lee submits that the incorrect recitation of the caution does not undermine the lawfulness of the arrest.
(b) Ground two is that the Commissioner of Police was wrong in finding that Mr Lee had used excessive or unnecessary force against Ms G. Again, Mr Lee says the use of force complied with the Police Force Regulations 1979 (WA) and was necessary to protect the officers’ and Ms G’s safety as well as to prevent continuation of the offence.
(c) Ground three is that the Commissioner of Police was wrong in finding that Mr Lee was wilfully dishonest in preparing the Statement of Material Facts and his Witness Statement for the prosecution brief. He says his statements were genuinely consistent with his recollections of events and he had neither intention nor motivation to mislead. He also relies upon “accepted practices of the respondent” in preparation of these documents, including that they are prepared quickly and any deficiencies addressed when handed to prosecutors or during checks by the supervisory chain of command. He points out that none of the supervisory chain of command found his documents wanting, and permitted the prosecution to proceed based on them.
(d) Ground four is that the Commissioner of Police was wrong to find Mr Lee had failed to perform his duties in a proper manner when he included Constable Amphlett’s Witness Statement in the prosecution brief without addressing its inaccuracies and misleading information contained in it. He says her recollections were “largely similar to his own” and it was usual practice to assess these things in a cursory rather than accurate way.
(e) Ground five is that the Commissioner of Police was wrong to find Mr Lee was wilfully dishonest or misleading during the managerial interviews because there is no evidence that he intentionally mislead interviewers, was not evasive or duplicitous and he did not materially change his story despite “duress” during the interviews.
48 Mr Lee’s sixth appeal ground is that the decision to remove him was harsh because it is disproportionate with his behaviour, it brings to an end his 20year career devoted to public service, and has not resulted in a loss of public confidence in the Police. This final ground also alleges the removal action to be harsh “because Mr Lee’s performance of his duties in line with acceptable custom and practice for front line officers”. This submission would, of course, be worrying if it was shown to have any merit.
Appeals under Part IIB of Police Act 1892 (WA)
49 Section 33P of the Police Act 1892 (WA) (Police Act) allows a person who has been removed from office as a result of removal action under s 33L to appeal to the Western Australian Industrial Relations Commission (Commission) on the ground that the decision of the Commissioner of Police to take removal action was harsh, oppressive or unfair. This involves the test articulated in The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 of whether the employer’s lawful right to dismiss an employee has been exercised so harshly or oppressively as to amount to an abuse of that right.
50 Under s 33Q, on hearing an appeal under s 33L, the Commission must proceed as follows:
33Q. Proceedings on appeal
(1) On the hearing of an appeal instituted under this Part, the WAIRC shall proceed as follows —
(a) first, it shall consider the Commissioner of Police’s reasons for deciding to take removal action;
(b) secondly, it shall consider the case presented by the appellant as to why that decision was harsh, oppressive or unfair;
(c) thirdly, it shall consider the case presented by the Commissioner in answer to the appellant’s case.
(2) The appellant has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair.
(3) Subsection (2) has effect despite any law or practice to the contrary.
(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.
51 The effect of s 33Q is to include a requirement for the Commission to determine whether there is a logical and sound basis for the Commissioner of Police finding as he did. The Commission should be attentive to the Commissioner of Police’s reasons, examining them closely in terms of substance and the process by which they were formulated: Carlyon v Commissioner of Police [2004] WAIRC 11966; (2004) 85 WAIG 708 at [15]; Ferguson v The Commissioner of Police [2017] WAIRC 00238; (2017) 97 WAIG 502. If there is a sound, logical reason for removal, then, even if an aspect of the Commissioner’s reasons is invalid or mistaken, it does not necessarily mean that the whole of the decision ought to be overturned. It is the overall reasonableness or fairness of the decision, taking account of all of the circumstances, that is significant: Polizzi v Commissioner of Police [2014] WAIRC 00302; (2014) 94 WAIG 477 at [144]. See also McGrath v Commissioner of Police [2005] WAIRC 01989; (2005) 85 WAIG 2006.
52 Mr Lee’s counsel submitted that the Commission should follow the reasoning in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236. Counsel submitted that Zisopoulos stood for the principle that once sufficient doubt is raised by an appellant as to the soundness of a reason for removal action, then an evidentiary or tactical burden may arise which will require the Commissioner of Police to answer the doubt in order to defeat a conclusion that the removal was harsh, unreasonable or unjust.
53 Zisopoulos does not lay down a formula for determination of appeals under either s 181F(2) of the Police Act 1990 (NSW) (NSW Act) or s 33Q(2) of the Police Act. The issue which the New South Wales Court of Appeal was deciding was whether, by referring in its reasons to the appellant casting “sufficient doubt” on the findings of the Commissioner of Police, and an “evidentiary burden” on the Commissioner of Police, the Commissioner at first instance had misapplied the legislative test which placed the legal burden of proof on the appellant. The majority of the Court of Appeal resolved the matter on the basis the Commissioner’s reasoning did not amount to the application of any legal onus different to that mandated by the legislation.
54 We agree with the Commissioner of Police’s submissions that Zisopoulos does not mark a departure from the settled approach to appeals under s 33Q as set out above. Fundamentally, the appellant bears the legal burden of proving removal action is harsh, unjust or unreasonable. At most, Zisopoulos demonstrates how, practically, the Commissioner of Police may answer and defeat an appeal once an appellant has produced enough evidence to otherwise justify upholding their appeal.
55 The appellant did not, in any event, address how Mr Lee’s case created “sufficient doubt” to need to be answered by the Commissioner of Police (the tactical or evidential burden). Mr Lee apparently considered that it was enough for him to merely challenge the Commissioner of Police’s findings in order to create “sufficient doubt”. His submissions state:
The appellant contends that much of the facts relied on by the Police Commissioner could not support a decision to remove him from the WA Police Force.
The decisions in Starr and Tredinnick which were followed almost entirely in Zisopoulos clearly demonstrate an evidentiary or tactical burden must shift to the respondent as the appellant has cast “sufficient doubt” on the evidence relied upon by the Police Commissioner.
56 The reference in this submission to a burden “shifting” is mistaken. Zisopoulos makes it clear that the legal burden of proof never shifts from the appellant. Rather, an evidentiary or tactical burden arises (not shifts) once the appellant has created sufficient doubt.
57 The second difficulty with the submission is, as is alluded to earlier, it assumes that challenging the Commissioner of Police’s finding equates to creating sufficient doubt. There is, of course, a critical step, indeed a hurdle, for Mr Lee to first overcome, namely, creating the doubt as to the reasonableness of the Commissioner of Police’s finding.
58 A further mistake that is apparent from Mr Lee’s submissions in relation to the application of Zisopoulos, is that he then further disregards the step involving the evidentiary burden on the Commissioner of Police if and when doubt is raised, instead treating the creation of doubt as being sufficient to determine the outcome of the appeal. This flawed application of the reasoning is apparent from Mr Lee’s submissions formulated as follows, for example:
…[I]n consideration of Mr Lee’s evidence the Police Commissioner could not reasonably find Mr Lee’s behaviour was wilfully dishonest. The allegation should fall away.
59 As can be seen, even if Mr Lee’s evidence raises doubt about the reasonableness of a finding, Zisopoulos means that the Commissioner of Police may meet, and defeat, the case on the basis of the Commissioner of Police’s evidence which shows the finding was reasonable. The allegation does not “fall away” at the point when Mr Lee’s evidence creates doubt.
60 The conclusion of the Court of Appeal in Zisopoulos does not, as Mr Lee’s counsel suggests, give Mr Lee’s appeal some practical advantage which means he does not need to establish the Commissioner of Police’s findings were harsh, oppressive or unreasonable.
61 The grounds of appeal mark out the scope of the issues to be determined: Moran v The Commissioner of Police [2015] WAIRC 00464; (2015) 95 WAIG 804 (per Beech CC at [96][97], Mayman C agreeing; Kenner C at [175]).
62 Therefore, the process for determining this appeal involves consideration of the following issues raised by the grounds of appeal:
(a) whether Ms G’s arrest was unlawful;
(b) whether Mr Lee’s use of force on Ms G was excessive;
(c) whether Mr Lee was negligently or wilfully dishonest when he prepared the Statement of Material Facts and Witness Statement for Ms G’s prosecution;
(d) whether Mr Lee failed to perform his duties in a proper manner when he included Constable Amphlett’s inaccurate and misleading witness statement in the prosecution brief;
(e) whether Mr Lee intended to mislead investigators during managerial interviews; and
(f) what the competing interests and factors set out in s 33Q(4) signify in relation to the reasonableness and fairness of removal action.
Was there an absence of lawful authority for the arrest?
63 The Commissioner of Police was satisfied that the arrest was not lawful. Mr Lee has the onus of establishing that this finding was unsound or unreasonable. Section 128 of the CI Act sets out the conditions for making a lawful arrest, without an arrest warrant. Mr Lee must therefore show that the requirements for exercising the power of arrest under s 128 were satisfied.
64 Section 128 provides:
128. Arrest power for offences
(1) In this section —
serious offence means an offence —
(a) the statutory penalty for which is or includes imprisonment for 5 years or more or life; or
(b) under the Restraining Orders Act 1997 section 61(1) or (2a); or
(c) that involves family violence as defined in the Restraining Orders Act 1997 section 5A(2)(a), (b), (e) or (j) or a threat to enact that violence; or
(d) under section 38C(2).
(2) A police officer or a public officer may arrest a person for a serious offence if the officer reasonably suspects that the person has committed, is committing, or is just about to commit, the offence.
(3) A police officer or a public officer may arrest a person for an offence that is not a serious offence if the officer reasonably suspects —
(a) that the person has committed, is committing, or is just about to commit, the offence; and
(b) that if the person is not arrested —
(i) it will not be possible, in accordance with law, to obtain and verify the person’s name and other personal details; or
(ii) the person will continue or repeat the offence; or
(iii) the person will commit another offence; or
(iv) the person will endanger another person’s safety or property; or
(v) the person will interfere with witnesses or otherwise obstruct the course of justice; or
(vi) the person will conceal or disturb a thing relevant to the offence; or
(vii) the person’s safety will be endangered.
65 “Offence” is defined in s 3 of the CI Act as “…any offence under a written law”. The reference in this definition to a “written law” is a reference to any Act or Ordinance passed by the Parliament of Western Australia, or by any Council previously having authority or power to pass laws in Western Australia, such Act or Ordinance having been assented to by or on behalf of Her Majesty and any subsidiary legislation for the time being in force: Interpretation Act 1984 (WA), s 5.
66 Section 4 of the CI Act is also relevant. It states:
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time of suspecting the thing and those grounds (even if they are subsequently found to be false or nonexistent), when judged objectively, are reasonable.
67 In Labriola v Morgan [2017] WASC 256, Tottle J described the requirements of s 4 of the CI Act at [45][46] (citations omitted):
Section 4 of the Criminal Investigation Act states that a person ‘reasonably suspect’ something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or nonexistent) when judged objectively, are reasonable.
There are two aspects to the definition:
(i) The arresting officer must suspect the thing. A suspicion is a state of mind. It has been held to mean ‘a state of conjecture or surmise where proof is lacking’; and, ‘more than an idle wondering ... it is positive feeling of actual apprehension or mistrust amounting to a slight opinion but without sufficient evidence’. In the context of an investigation, a suspicion has been held to mean a ‘working hypothesis’ for which there is some supporting material, and where there is a rational connection between the suspicion and the supporting material. The information acted on by the arresting officer need not be based on his own observations. He is entitled to form a suspicion based on what he has been told. He may act on hearsay evidence, information from an informant or even an anonymous tipoff.
(ii) The suspicion must be objectively reasonable. That is, the information or material from which the officer’s suspicion arises must also engender that suspicion in the mind of a reasonable person thinking about that information. In assessing this, the Court is required to look at the grounds which were in the officer’s mind at the relevant time, and judge those grounds objectively against what was known, or reasonably capable of being known by the officer at the time. The question whether the information provided reasonable grounds for the suspicion will depend on the source of the information in its context seen in the light of the surrounding circumstances.
…
68 So, for an arrest to be lawful, s 128 requires:
(a) First, that the police officer form a suspicion that an offence has been, is being, or will be committed. That is, the officer must, as a matter of fact, actually subjectively suspect that an offence has, is or is just about to be committed.
(b) Second, the suspicion must be reasonably held. Whether a suspicion was reasonable is a mixed question of law and fact. This involves an objective assessment judged at the time the power was exercised: O’Hara v Chief Constable of the Royal Ulster Constabulary [1996] UKHL 6; [1997] AC 286 at [298]. Section 4 of the CI Act makes plain that it does not matter whether the grounds for the suspicion are subsequently found to be false or nonexistent.
(c) Third, if the offence is not a serious offence, then the officer must also form a reasonable suspicion, that is, a belief actually held and objectively reasonable, that one or more of the conditions in s 128(3)(b) are met.
69 At the time he made the arrest, Mr Lee described the charge as “racially aggravated public order”. It was accepted by both parties that this relates to an offence that exists in UK law and does not represent an offence under the Criminal Code or in Western Australian law.
70 There is no suggestion in this case that the arrest was based on a suspicion that an offence was about to be committed. Mr Lee’s position is that the arrest was based on Ms G’s actions immediately prior to the arrest.
71 What offence did Mr Lee suspect Ms G of committing? This is, as indicated above, a question of fact: Labriola at [65]. There is some force to the Commissioner of Police’s submission to the effect that the surest guide to what offence Mr Lee had in mind and the offence he suspected was being committed at the time of the arrest was the one he spoke at the time of the arrest, that is, the English offence of “racially aggravated public order”.
72 Mr Lee concedes that there is no offence of racially aggravated public order in Western Australian law. If it is accepted that the offence expressly cited was the one Mr Lee believed had been committed, it must follow that the first condition for the arrest was not met. Mr Lee did not suspect an offence as defined in s 3 of the CI Act was being committed. There was no “written law” in his contemplation. Rather he suspected that Ms G’s behaviour met the elements of what is an offence in the UK, but not in WA.
73 As a consequence, the arrest would not comply with the requirements of s 128 of the CI Act. This failure cannot be circumvented by later identifying an offence with which Ms G might have been charged. This conclusion appears to be supported by Forrest v Douglas [1983] WAR 270 where Burt CJ gives short shift to the Magistrate at first instance having held that an arrest was lawful because an alternative offence to the one cited was available. His Honour said simply, “It is with respect to that enough to say that that was not the basis for the arrest in fact”.
74 However, we have some disquiet in accepting that the offence Mr Lee had in mind as a matter of fact, was the English offence simply because of the nomenclature he used. Mr Lee contends that although he cited the English offence, he had in his mind the offences under Chapter XI of the Criminal Code. There is no suggestion that Mr Lee was under some misapprehension at the time that he made the arrest that he was at a house in suburban Liverpool rather than the midwest of what is now known as Western Australia. Nor is there any suggestion that he believed UK laws applied in this state. On that basis, it is more likely that Mr Lee did have in his mind an offence or offences under the Criminal Code, but misnamed them by the name he recalled from UK law.
75 Accordingly, the fact that Mr Lee uttered an English offence is not, in our view, the end of the matter.
76 At hearing, Mr Lee’s counsel asserted that when making the arrest, Mr Lee had in mind a racial offence or offences under the Criminal Code, referring to ss 78, 80A and 80B. The relevant parts of the Criminal Code are as follows:
76. Terms used
In this Chapter —
animosity towards means hatred of or serious contempt for;
display means display in or within view of a public place;
distribute means distribute to the public or a section of the public;
harass includes to threaten, seriously and substantially abuse or severely ridicule;
member of a racial group includes a person associated with a racial group;
publish means publish to the public or a section of the public;
racial group means any group of persons defined by reference to race, colour or ethnic or national origins;
written or pictorial material means any poster, graffiti, sign, placard, book, magazine, newspaper, leaflet, handbill, writing, inscription, picture, drawing or other visible representation.
…
78. Conduct likely to incite racial animosity or racist harassment
Any person who engages in any conduct, otherwise than in private, that is likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.
Alternative offence: s. 80A or 80B.
Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.
…
80A. Conduct intended to racially harass
Any person who engages in any conduct, otherwise than in private, by which the person intends to harass a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.
Alternative offence: s. 78 or 80B.
Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.
80B. Conduct likely to racially harass
Any person who engages in any conduct, otherwise than in private, that is likely to harass a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.
77 Counsel also added that Mr Lee had in mind the offence of carrying an article with intent to cause fear that someone will be injured or disabled under s 8 of the Weapons Act. That section provides:
8. Other articles carried or possessed as weapons
(1) Except as provided in subsections (3) and (5) and section 10, a person who carries or possesses an article, not being a firearm, a prohibited weapon or a controlled weapon, with the intention of using it, whether or not for defence —
(a) to injure or disable any person; or
(b) to cause any person to fear that someone will be injured or disabled by that use,
commits an offence.
Penalty: imprisonment for 2 years and a fine of $24 000.
(2) A person is presumed to have had the intention referred to in subsection (1) if —
(a) the article was carried or possessed in circumstances that give reasonable grounds for suspecting that the person had the intention; and
(b) the contrary is not proved.
(3) A person does not commit an offence under subsection (1) if the person carries or possesses the article at the person’s dwelling for the purpose of using it in lawful defence at the dwelling in circumstances that the person has reasonable grounds to apprehend may arise.
(4) In subsection (3) —
dwelling has the same meaning as in section 1 of The Criminal Code.
(5) A person who has the immediate control of a business does not commit an offence under section 8(1) if the person carries or possesses the article at a part of the business premises —
(a) that is not in the view of the public; and
(b) to which the public does not usually have access,
for the purpose of using it in lawful defence at the business premises in circumstances that the person has reasonable grounds to apprehend may arise.
78 The first pertinent observation is that the offences under ss 78 and 80A of the Criminal Code are punishable by imprisonment of five years. This means that both offences are categorised as “serious offences” under s 128(1) of the CI Act. In his recorded interview conducted on 19 February 2020 Mr Lee told Sergeant Darren Connor that he considered Ms G’s conduct was “…[B]asically it’s disorderly conduct but with racial undertones”. He also effectively concedes that the conduct was “at the lower end of the scale”. In the result, Ms G was not charged with any serious offence. Mr Lee considered a serious offence was not appropriate in light of the degree of severity of the conduct: paragraphs (9)(10) of his Record of Interview.
79 It is apparent from Mr Lee’s statement to Sergeant Connor that Mr Lee did not subjectively or in fact suspect Ms G of committing a serious offence of any sort. To have maintained otherwise, given that Ms G’s conduct amounted to one sentence plus one brief combination of two to three adjectives, is simply implausible. We find that he did not suspect Ms G had committed a serious offence and therefore did not suspect the commission of an offence under either ss 78 or 80A of the Criminal Code.
80 Nor are we satisfied that Mr Lee subjectively and in fact suspected that Ms G had committed an offence against s 80B of the Criminal Code. That section does not involve a serious offence as defined under s 128 of the CI Act. However, from Mr Lee’s responses to questions in the interview with Sergeant Connor, it is clear that Mr Lee did not know the elements of s 80B at the time that he made the arrest. He said:
…I should have locked her up for the disorderly and then researched or spoken with the supervision regarding the racial aspect of it, cos I’ve had this discussion before, but it was about eight years ago, but that’s where I knew at the back of me mind --
SGT CONNOR: Yeah.
SNR CONST LEE: --- there was such legislation---
SGT CONNOR: Yeah.
SNR CONST LEE: --- but I didn’t know about the DPP bit until I actually brought the lady back. So, yeah, we should have just gone for the disorderly and then researched it and kept it with that. I think it was a case of basically I was tired, it was the end of the day, and I knew there’s an offence there, and I had a brain fart, if you’ll excuse me Fren - and basically I went back to what I knew best, which was basically the old English legislation.
…
81 We have no doubt Mr Lee thought Ms G was being racist. It is also clear from his response to the words she uttered that he was affronted by them. No criticism is made of Mr Lee for being affronted, but him being affronted does not equate to a suspicion that a criminal offence had been committed. In this case, Mr Lee did not have enough knowledge of the elements of s 80B of the Criminal Code to have subjectively suspected Ms G had committed that criminal offence.
82 Even if this conclusion is wrong, and Mr Lee did have the requisite subjective suspicion, such suspicion would not meet the further requirement that it be objectively reasonable. Section 80B makes it unlawful to engage in conduct, otherwise than in private, that is likely to harass a racial group or a person as a member of a racial group. “Harass” includes to threaten, seriously and substantially abuse or severely ridicule.
83 Mr Lee told investigators that when Ms G referred to “Your colour could have killed me before you got here” he understood she was referring to the threat of violence from the white male, Gary, who had earlier been at her home and whose presence was the reason she had called for police assistance. While she referred to “colour”, the part of her statement which was denigrating was in reference to Gary. She was not alleging white people in general were killers. Further, the derogatory part of her statement “English pig” was not the “English” as much as the “pig”: a reference to Mr Lee’s occupation as a police officer.
84 In the definition of “harass”, the concepts of seriously and substantially abusing and severely ridiculing should be viewed from the victim’s perspective. In this case the victim is a police officer with some 20 years of policing experience. It is unlikely that Mr Lee is a person who had a delicate sensitivity to language, such that references to skin colour or “English pig” could seriously and substantially abuse or severely ridicule him. The fact that, by the time he made his response to the proposed removal action, he could not even recall what words were spoken by Ms G in the seconds that were “lost to the wind”, also reveals a lack of severity even from Mr Lee’s point of view.
85 It is apt to recall what Commissioner Wootten observed in the course of the Royal Commission into Aboriginal Deaths in Custody:
Over and over again during this Commission there has been evidence about Aboriginals using the term ‘cunts’ in relation to police, usually with the result of a charge of offensive behaviour … I have often been led to wonder how police could continue to remain offended by a term they heard so often and so routinely … The evidence in the Gundy hearing gave several glimpses of the fact that, as one would expect, it is a term in common use amongst police themselves …
It is surely time that police learnt to ignore mere abuse, let alone simple ‘bad language’ … Charges about language just become part of an oppressive mechanism of control of Aboriginals. Too often the attempt to arrest or charge an Aboriginal for offensive language sets in train a sequence of offences by that person and others  resisting arrest, assaulting police, hindering police and so on, none of which would have occurred if police were not so easily ‘offended’ (Wootten 1991a, pp. 144  145).
86 The Royal Commission into Aboriginal Deaths in Custody recommended that the use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest and charge. A review of the implementation of this recommendation found that:
‘[T]hroughout Australia, Aboriginal people are being arrested, placed in police custody and, in some cases, imprisoned on the basis of behaviour that the police find offensive and which has been precipitated by police actions’ (Cunneen C and McDonald D, Keeping Aboriginal and Torres Strait Islander People Out of Custody: An Evaluation of the Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody, Aboriginal and Torres Strait Islander Commission, Canberra (1997) 8.
87 In the circumstances, a conclusion that Ms G’s conduct was conduct that was likely to “harass” Mr Lee, an experienced police officer, was not objectively reasonable.
88 Further, the two statements were made by Ms G from her front verandah, when the police officers were in her front yard. There were no other people present. She was not shouting, and indeed the words she stated immediately prior to her arrest were not even audible on the body worn camera footage. There was therefore no reasonable basis to suspect that the words spoken were otherwise than in private, having regard to both the location and the quality of the conversation: Gibbs v Wanganeen [2001] FMCA 14; (2001) 162 FLR 333 at [14][18]. Again, this deprives the suspicion of an offence having been committed of the requirement that the suspicion be reasonably held.
89 Finally, it is necessary to consider whether Mr Lee had a reasonable suspicion that Ms G had committed an offence under s 8 of the Weapons Act at the time he arrested her. Mr Lee’s position at the hearing of this matter was that this was an offence that Mr Lee had in mind at the time of the arrest.
90 The BWC footage shows that immediately after Mr Lee places Ms G in the POD, he walks towards the knife that she had thrown into the front yard when the officers had first arrived, picked it up and placed it in the police vehicle.
91 Further, when Ms G was in the POD, and the officers were speaking with MsK who had arrived at Ms G’s property, both Constable Amphlett and Mr Lee told Ms K that Ms G “had a knife”. When Ms G says, from the POD “I rang the cops and you’se go and chuck me in here”, Mr Lee’s response was “Because you pulled a knife on us”.
92 In his 19 February 2020 interview, Mr Lee told Sergeant Connor “I felt that she had the knife, and I had the powers to arrest her for it”.
93 On the basis of evidence outlined above, we find that Mr Lee subjectively held a suspicion that Ms G had committed an offence against the Weapons Act by carrying the kitchen knife.
94 The next question is whether the suspicion was objectively reasonable. In this regard, the Commissioner of Police held two concerns about the reasonableness of any such suspicion. The first concern about reasonableness was that Mr Lee had apparently not had regard to the likelihood of Ms G having a complete defence to the charge under s 8(3), that is, a selfdefence defence.
95 This concern arises in the context of Ms G explaining, or attempting to explain, from the rear of the POD, the reason she had the knife: “I had the knife in my hand trying to help myself from the ex”, immediately before Mr Lee slams the door of the POD shut on her.
96 Mr Lee submits to the effect that Ms G had the onus of establishing that she had a lawful excuse to have carried or been in possession of the knife. That much is clear from s 11 of the Weapons Act which states:
11. Proof of exceptions or lawful excuses
In any proceedings against a person for an offence under section 6, 7, 8A or 8 the person has the burden of proving any exception under that section or section 10 or any lawful excuse on which the person seeks to rely.
97 However, that is not quite to the point of whether or not there was a reasonable basis to suspect she had committed an offence by being in possession of a weapon. Section 8(3) expressly provides that an offence is not committed if the defence applies. We do not agree that placing a legal burden of proving the defence on the person carrying the weapon is the same as deeming the offence to have been committed unless and until the burden is discharged, which is the effect of Mr Lee’s submission. Formulating a suspicion that the offence has been committed requires a consideration of whether a defence is likely to be proved.
98 Mr Lee did not contend in the course of the hearing that Ms G did not, at the end of the day, have a good defence to the s 8 Weapons Act charge. While he appeared to suggest to investigators that Ms G had the knife to attack Gary, rather than for selfdefence, he had no grounds for making that assertion. On the contrary, and astoundingly, Mr Lee did nothing to ascertain the reasons Ms G was holding the knife, or indeed as to her safety generally, prior to making the arrest despite the facts:
(a) that the reason police were called to attend Ms G’s house was that she had contacted police for their assistance;
(b) earlier that morning Mr Lee had attended her house and found her in conflict with Gary who, he ascertained, was known to Ms G, and whose car was at her house. Mr Lee knew that Gary had left the premises by foot and so it was likely that he was going to return for his car;
(c) Mr Lee understood Ms G’s reference to “your colour could have killed me” to be a reference to Gary; and
(d) when police arrived Ms G had repeated that she had called for police help and she pointed to overturned furniture on her veranda.
99 Mr Lee maintained that he was not aware of any history of a domestic relationship or violence between Gary and Ms G. However, the WA Police CAD records showed:
(a) that Ms G made a call to police because her expartner, Gary, was terrorising her at 5.10.22 am, at 5.07.46 am on 13 November 2019; and
(b) at 5.11 am further details were entered into the CAD including that Ms G had a medical condition which requires regular monitoring; and that 36 family violence incidents were recorded against her name.
100 There is no evidence that Mr Lee accessed this CAD data, although there is evidence that Constable Amphlett was using CAD throughout the following events, from around 5.20 am through to 6.59 am on 13 November 2019.
101 Even if Mr Lee did not have an actual knowledge of a history of family and domestic violence between Ms G and Gary from the CAD entries or Ms G herself, he had enough information from the previous evening to have a basis to suspect the possibility of violence between Ms G and Gary and certainly had enough information to have warranted questions being asked to ensure Ms G’s safety.
102 Mr Lee had not asked a single question of Ms G prior to arresting her. When Constable Amphlett asked the question “Tell us what [you rang police for]”, Mr Lee did not wait for any response or explanation before he said “Our colour? Right if you’re gonna be racist we’re leaving, bye”. His dismissive and disrespectful behaviour generally towards Ms G ultimately means that he could not have made any assessment of her reasons for holding the knife and therefore could not be said to have reasonably held a suspicion that she had committed an offence under s 8.
103 The second concern with the reasonableness of suspecting a Weapons Act offence had been committed is the absence of conduct by Ms G indicating that she intended using the knife to injure or threaten anyone. The Summary of Investigation notes:
…There is no evidence to indicate [Ms G] had threatened the officers or intended to threaten the officers with the knife, and the BWC recording indicates that there were no other people in the vicinity.
104 The BWC footage shows that when Mr Lee exits his vehicle, Ms G’s arms were down by her side. Her stance is casual, and she throws the knife away in a casual manner either immediately before, contemporaneously or instantly after being asked by Constable Amphlett to do so.
105 Significantly, immediately before the arrest, Mr Lee was returning to his vehicle and leaving Ms G’s property without apparently considering no further police attendance at the property was necessary and without taking any steps to retrieve and secure the knife. From this alone it can be inferred that Mr Lee did not consider Ms G intended using the knife to cause injury or make threats.
106 In these circumstances, it was not objectively reasonable for Mr Lee to have held a suspicion that Ms G had committed an offence under s 8.
107 Even if we are wrong about:
(a) Mr Lee’s subjective state of mind as to his suspicion of the commission of an offence under s 80B of the Criminal Code; or
(b) the objective reasonableness of his suspicion of the commission of an offence both under s 80B of the Criminal Code and s 8 of the Weapons Act,
the arrest was nevertheless unlawful because the requirements of s 128(3)(b) were not met.
108 Mr Lee’s counsel submitted that s 128(3)(b) was met because:
(a) under s 128(3)(b)(ii) Ms G will continue or repeat the offence;
(b) under s 128(3)(b)(iv) Ms G will endanger another person’s safety or property; and
(c) under s 128(3)(b)(vii) Ms G’s safety will be endangered.
109 Whether the offence or offences involve the possession of a weapon or racial hatred, there can be no credible suggestion that Mr Lee suspected Ms G would continue or repeat the offence in circumstances where, at the time of and immediately prior to the arrest:
(a) The knife had been dropped;
(b) Ms G had not done anything to retrieve the knife;
(c) Police officers had not done anything to retrieve the knife;
(d) Police officers were leaving Ms G’s premises and Mr Lee had said “Bye”; and
(e) Ms G was sitting on her front veranda and had said “Bye”.
110 Mr Lee’s counsel did not really elaborate upon why or how Mr Lee formed a reasonable suspicion that Ms G would endanger another person’s safety or property. Again, nothing was evident in the evidence or the body worn camera footage what would suggest such potential. There were no other people around, other than the police officers. She was at and within her own home.
111 The suggestion that Ms G was arrested for her own safety, because there was a suspicion her safety could be endangered if she was not arrested, cannot be seriously entertained when the evidence shows Mr Lee had a complete and utter disregard for her wellbeing throughout the course of his interaction with her on the morning of 13 November 2019. The suggestion that she was arrested for her own safety borders on offensive. This is what the evidence shows:
(a) Ms G had called for police assistance, but Mr Lee did nothing to ascertain why she had called for police assistance. He decided to leave her unassisted within seconds of arriving at her property.
(b) Mr Lee grabbed Ms G by the arm to haul her up from her position seated on her veranda and placed her in the POD.
(c) Mr Lee dismissed Ms G’s concerns about her preexisting injuries. As she calls out from the back of the POD about having been assaulted by Gary and needing hospital attention, it is only Ms K, who responds to her. The following exchanges occurred:
Lee: Sit up properly
…
[Ms G]: Because I’ve been assaulted before you chucked me in here
Lee: Well, you’re kicking the  are you going to be quiet or do you want to go to ---
[Ms G]: Help me. Please help me.
Lee: Are you going to listen or do you want to go to the cells?”
…
[Ms G]: …I tried to say to you what’s happened to me.
Lee: You were okay when you were shouting the abuse and had the knife so I don’t get ---
[Ms G]: I was just beaten, and you’se rocked up and you’se threw me in here after I had this happen to me.
Lee: Sit up properly on the bench, if you don’t sit up I’m taking you to cells.
…
[Ms G]: I’ve been assaulted look.
Lee: Unfortunately that’s an old bruise.
[Ms G]: It’s a boot, I got booted.
Lee: It’s an old bruise. Why didn’t you tell us about that before then?
[Ms G]: Because you just grabbed me.
Lee: Right, you’re going to the cells.
[Slams door].
112 It is impossible in these circumstances to entertain any suggestion that Mr Lee was concerned for Ms G’s safety such as to have had a suspicion that not arresting her would mean her safety would be endangered.
113 None of the conditions of s 128(3)(b) were met. Accordingly, in our view Mr Lee has not cast the necessary doubt on whether the Commissioner of Police acted properly or fairly in finding the arrest was unlawful. Ms G should not have been arrested.
114 In the Commissioner of Police’s reasons for removal action there is reference to Mr Lee having cited the incorrect caution when making the arrest. At hearing, the Commissioner of Police properly conceded that the incorrect caution did not render the arrest unlawful.
Did Mr Lee use excessive force when he arrested and detained Ms G?
115 Mr Lee refers to s 231of the Criminal Code as the authority for using force in the execution of an arrest. Section 231(1) provides:
231. Executing sentence, process or warrant or making arrest, using force for
(1) It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.
…
116 Section 16 of the CI Act further provides:
16. Force, use of when exercising powers
(1) When exercising a power in this Act, a person may use any force against any person or thing that it is reasonably necessary to use in the circumstances —
(a) to exercise the power; and
(b) to overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.
(2) If under subsection (1) a person uses force, the force may be such as causes damage to the property of another person.
(3) Any use of force under subsection (1) against a person is subject to The Criminal Code Chapter XXVI.
117 Mr Lee also refers to the Police Force Regulations 1979 (WA) regs 402 and 605, emphasising that an arrest should be effected “zealously”, “diligently” and “promptly”. He relies upon the BWC footage, which he says does not appear to involve any use of excessive force. He points out that Mr Lee asked Ms G twice “in you get” but that Ms G made no attempt to enter the POD voluntarily, so as to make the use of force necessary and reasonable.
118 It is clear from s 231(1) of the Criminal Code and s 16 of the CI Act that while an officer may use force as is reasonably necessary in exercising the power of arrest, such force is only to either exercise the power or to overcome resistance to the exercise of the power. Mr Lee did not make any attempt to justify his use of force by reference to these conditions.
119 The BWC footage shows that at no time did Ms G demonstrate any resistance to the arrest. She pointed out that her house was unlocked (this comment was ignored by the police officers). She asked “What?” twice when told she was under arrest and what the charge was. She looked visibly baffled, bewildered and incredulous at her arrest. But she did not resist it.
120 While it is true that Ms G did not voluntarily enter the POD when asked, it is also clear that she was still processing what was going on and had little real opportunity to enter the POD before she was forcibly placed in the POD. There was no more than nine seconds between the POD door being opened, the first instruction to “Get in the POD” and the second instruction which coincided with her being “bundled” into the POD. In that time, Ms G was obviously still processing what was going on and what was being asked of her. There was no real opportunity for her to get into the POD voluntarily or in a safe and dignified way.
121 The evidence simply does not demonstrate that there was any resistance to the arrest nor any need to use force to effect it. Mr Lee has not created any doubt as to the reasonableness of the Commissioner of Police’s finding that his use of force in the course of the incident was excessive.
Was Mr Lee negligently or wilfully dishonest when he prepared the Statement of Material Facts and Witness Statement for Ms G’s prosecution?
122 Mr Lee concedes that his accounts of the events on 13 November 2019 as set out by him in the Statement of Material Facts and his Witness Statement were wrong. He exaggerated the number of times Ms G was instructed to drop the knife before she did so, and also exaggerated the extent of swearing (of which there was none prior to her arrest) and abuse levelled towards Mr Lee and Constable Amphlett.
123 The picture painted by the Statement of Material Facts and the Witness Statement is at complete odds with what is shown by the BWC footage. The statements paint a picture of the officers being fearful for their own safety because of Ms G’s aggression. The BWC footage shows a woman who is clearly frustrated and unimpressed with police but relatively passive being treated with dismissiveness and provocation by Mr Lee.
124 Mr Lee’s challenge to the Commissioner of Police’s finding is directed at the finding that the inaccuracies were “willful”. He contends that his mistakes were innocent: the result of confusion, and perhaps fatigue, rather than being deliberate fabrications. The Commissioner of Police points out that the relevant finding was that Mr Lee was willfully or negligently dishonest. In other words, the respondent says it is not necessary for the Commissioner of Police to have found Mr Lee had an intention to mislead or to have acted deliberately in order to have made the relevant finding.
125 The basis for the removal action relevant to this ground was not merely that Mr Lee made a false statement about the events on 13 November 2019. Rather, it was that he made dishonest statements. In dealing with this ground, it is therefore more useful to focus on the meaning of “dishonesty” than the words which precede it. The preceding words are practically redundant once “dishonesty” is properly understood.
126 In Peters v R [1998] HCA 7; (1998) 192 CLR 493Toohey and Gaudron JJ said at [15][18]:
There is a degree of incongruity in the notion that dishonesty is to be determined by reference to the current standards of ordinary, honest persons and the requirement that it be determined by asking whether the act in question was dishonest by those standards and, if so, whether the accused must have known that that was so. That incongruity comes about because ordinary, honest persons determine whether a person’s act is dishonest by reference to that person’s knowledge or belief as to some fact relevant to the act in question or the intention with which the act was done. They do not ask whether he or she must be taken to have realised that the act was dishonest by the standards of ordinary, honest persons. Thus, for example, the ordinary person considers it dishonest to assert as true something that is known to be false. And the ordinary person does so simply because the person making the statement knows it to be false, not because he or she must be taken to have realised that it was dishonest by the current standards of ordinary, honest persons.
There are also practical difficulties involved in the Ghosh test. Those difficulties arise because, in most cases where honesty is in issue, the real question is whether an act was done with knowledge or belief of some specific thing or with some specific intent, not whether it is properly characterised as dishonest. To take a simple example: there is ordinarily no question whether the making of a false statement with intent to deprive another of his property is dishonest. Rather, the question is usually whether the statement was made with knowledge of its falsity and with intent to deprive. Of course, there may be unusual cases in which there is a question whether an act done with knowledge of some matter or with some particular intention is dishonest. Thus, for example, there may be a real question whether it is dishonest, in the ordinary sense, for a person to make a false statement with intent to obtain stolen property from a thief and return it to its true owner.
The practical difficulties with the Ghosh test arise both in the ordinary case where the question is whether an act was done with knowledge or belief of some specific matter or with some specific intent and in the unusual case where the question is whether an act done with some particular knowledge, belief or intent is to be characterised as dishonest. In the ordinary case, the Ghosh test distracts from the true factual issue to be determined; in the unusual case, it conflates what really are two separate questions, namely, whether they are satisfied beyond reasonable doubt that the accused had the knowledge, belief or intention which the prosecution alleges and, if so, whether, on that account, the act is to be characterised as dishonest. In either case, the test is likely to confuse rather than assist in deciding whether an act was or was not done dishonestly.
In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people. However, if “dishonest” is used in some special sense in legislation creating an offence, it will ordinarily be necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that word. Certainly, it will be necessary for the jury to be instructed as to that special meaning if there is an issue whether the act in question is properly characterised as dishonest.
127 Ultimately, dishonesty involves a subjective element in addition to the making of a false statement. The subjective element may, depending on the context, involve knowledge, belief or intent. Practically, in the circumstances of this case, whether the conduct is negligent or wilful is neither here nor there, because in order for Mr Lee to have made a statement dishonestly, he had to have made it with either subjective knowledge of the true events, an intention to make a false statement or a belief that his statement was false. It is not necessary for it to be proven that Mr Lee intended to gain a benefit for himself in making a false statement. That is only one potential means by which dishonesty might be found.
128 Mr Lee maintains that his statements were made to the best of his recollection. He says that the “discrepancies” between what is evident from the BWC as to the actual events of 13 November 2019 and the documents he completed recounting the events was the result of him conflating or confusing the events of the earlier attendance at Ms G’s home the previous evening. He says he was fatigued, that he might have been suffering from sane automatism on the morning of the arrest, and that he suffers from PTSD for which he takes medication. He also relies on an absence of evidence that he intended to do harm to Ms G or receive a benefit from making a false report.
129 Mr Lee did not rely upon any evidence as to the impact of PTSD or his medication for it on the accuracy of his own memory. His case in reliance upon his medical condition was no more than an unsubstantiated assertion that it may have had a role to play. It does not undermine the reasonableness of the Commissioner of Police’s finding.
130 When it comes to the Statement of Material Facts which Mr Lee completed at the end of the same shift during which he attended at Ms G’s home on two occasions, it is plausible that the effects of fatigue caused him to conflate and confuse the events of both visits. This might explain why the Statement of Material Facts stated, falsely, “Whilst speaking to police the accused swore” and “The accused shouted several times; ‘Fuck off back to your own country’”.
131 However, it is difficult to understand how fatigue or conflation of the two visits accounts for the false statement:
The accused was instructed several times to drop the knife.
It was only when an officer reached for his Taser, did the accused drop the knife.
as there is no suggestion a knife was involved in the first visit.
132 Nor does Mr Lee’s explanation account for the false statement, “There were several pedestrians walking around the area within hearing distance”.
133 What Mr Lee knew of the events of 13 November 2019 is what he observed. He was present and his knowledge was firsthand. What he did not observe himself, he cannot have known or believed to be true. Accordingly, Mr Lee has not established that these false statements are anything but an invention by him. That is, he made the statements knowing that they were not true. They were dishonest.
134 Dealing then with Mr Lee’s Witness Statement, the first point is that because the statement was made several weeks after 13 November 2019, fatigue cannot explain Mr Lee’s false account. If Mr Lee, by that point in time, no longer had an accurate recollection of the events, then he was able to review the incident report and BWC footage. Indeed, he told investigators that he had watched the BWC footage prior to signing Constable Amphlett’s Witness Statement on 2 January 2020, albeit not in conjunction with reading the brief.
135 Accepting that Mr Lee had viewed the BWC footage prior to signing his Witness Statement on 2 January 2020, it must follow that Mr Lee did not know nor believe to be true the statements contained in his Witness Statement that Ms G ignored instructions to drop the knife. Given that the statement was made for the purpose only of proving the charge under s 8 of the Weapons Act, the statement was a material one in the scheme of the facts which needed to be proven.
136 Even if it was plausible that Mr Lee believed that Ms G had ignored the instruction to drop the knife, it is more plausible that the statement was a fabrication designed to ensure the evidence supported the charge which followed the arrest which Mr Lee had made.
137 Before leaving this ground, something further should be said about the fact that the prosecution brief was allowed to be served, and the prosecution maintained, on the basis of the fallacious material until 24 January 2020 after the ALS raised concerns about the lawfulness of the arrest. Notably, the prosecution brief was served on Ms G on 22 January 2020 and the ALS had identified the flawed basis by the following day, 23 January 2020. This is telling of how glaringly obvious it was that Ms G should never have been arrested, and is damning of a system that failed to pick up what was glaringly obvious.
138 Of particular concern is the evidence that Mr Lee’s supervisor, Sergeant Connor, viewed the BWC footage with the volume low to see that the footage was able to be played, but without a view to assessing the strength of the evidence supporting the charge on the basis that could be left to Brief Quality Management. Sergeant Connor also told investigators that he did no more than skim the police officers’ witness statements and did nothing to verify their consistency, either with each other or the BWC footage.
139 The following exchange occurred between Sergeant Connor and the investigator:
INVESTIGATOR: In hindsight, if you had watched that video and then read the statements, what would you have done?
SGT CONNOR: Oh, it would have been cut off right then and there and I would have had a chat to them and depending on the severity, from what I can  I know now, whatever the case  there would have been some performance management done at some level.
INVESTIGATOR: Okay.
SGT CONNOR: I would have taken it to the OIC.
140 It is clear that the potential injustice to Ms G was not perpetrated by Mr Lee alone, but was the result of the actions and decisions of several others involved in supervisor review and what was termed “Brief Quality Management” processes.
Did Mr Lee fail to perform his duties in a proper manner by including Constable Amphlett’s Witness Statement in the prosecution brief?
141 At this point, having found that Mr Lee has not succeeded in the preceding grounds of appeal, we are satisfied that there existed a sound, logical reason for removal, even without regard to the last two allegations. It is therefore not technically necessary to consider the fourth and fifth grounds of appeal. However, for completeness, the following observations can be made about Ground four.
142 Mr Lee countersigned Constable Amphlett’s Witness Statement at 10.05 pm on 2 January 2020, having signed his own at 9.30 pm on that same day. He countersigned it after he had viewed the BWC footage. The content of Constable Amphlett’s statement was inconsistent with the BWC footage and, as Mr Lee rightly submits, was significantly more fallacious in its account of relevant events than Mr Lee’s statement was.
143 It is not entirely clear on what basis Mr Lee challenges the finding against him. He refers to having adopted his usual practice in reviewing and signing Constable Amphlett’s statement: a practice which has never previously resulted in any performance or disciplinary issues being raised with him. There are three ways of viewing this argument. The first is that Mr Lee’s practice of making a “cursory assessment” of the brief materials has not previously resulted in a misleading or fallacious brief. If that is the case, it does not advance Mr Lee’s case because in this instance, the brief did contain fallacious information.
144 The other way of viewing the submission is that Mr Lee cannot be confident that his practice has not resulted in briefs containing misleading or fallacious information in the past, but if it has, he has gotten away with it. For obvious reasons, he did not articulate his case in this way. It too would not have advanced his case.
145 The third way to view the argument is that Mr Lee’s cursory assessment of the materials was the result of environmental pressures to transact such work quickly. The difficulty with accepting this as a factor exculpating Mr Lee is that the compilation of police prosecution briefs is not a matter of mere paperwork, but concerns the integrity of the criminal justice system and has consequences for individuals’ liberty. In short, the idea that police officers are required to put efficiency before integrity is inimical to the very core of a police officer’s duties.
Was Mr Lee wilfully dishonest or misleading during managerial interviews?
146 While it is not technically necessary to consider this ground, the following observations are made.
147 The Commissioner of Police’s primary concern about Mr Lee’s answers to investigators was his denial of having involvement with Ms G after arriving with her at Geraldton police station. It is clear from CCTV footage, and he now concedes, that he did have involvement with her.
148 It appeared to be common ground that it is considered undesirable for a police officer to continue to have involvement with a person in custody for offences relating to conduct that involved that police officer, as was the case here. That is likely to do with the potential for aggravation of hostility, and provoking further offences as well as to preserve the integrity of the charging process.
149 Mr Lee appears to have known that he should not have had continued involvement with Ms G once she was in custody as he said during interview on 19 March 2020:
I couldn’t tell you [what Ms G had said when in custody about her reasons for having a knife]…That’s because I had handed over  in the sally port, so we didn’t go into the custody area, either of us, because of the way she’d been towards the two of us. So we handed over to other officers for the bookingin process.
150 Even so, reviewing the transcript of the interviews on this topic, there is no positive basis to conclude that Mr Lee was other than genuinely mistaken about his involvement with Ms G while she was in custody. The Commissioner of Police says that Mr Lee has not offered any adequate explanation for his inaccurate statements. That does not mean that he knew the statements were wrong, believed they were wrong or intended to make false statements.
151 Had it been necessary to determine this ground of appeal, we would uphold it. However, upholding this ground will not alter the ultimate view that the Commissioner of Police’s removal action was reasonably and soundly based.
Section 33Q(4) considerations
152 The removal action has brought Mr Lee’s career of 20 years as a police officer to an end. It affects his livelihood and reputation. Clearly the removal action is a high price for Mr Lee to pay for his conduct.
153 Regrettably, Mr Lee has not demonstrated any real insight into or remorse for his actions, other than to the extent it has had consequences for himself.
154 It is worth noting that in the hearing of this matter, counsel for Mr Lee referred the Commission to video footage of Ms G whilst in police custody at the Geraldton police station which counsel submitted demonstrated a “continuation” of the racist hatred offences she had committed earlier. The particular exchange counsel referred the Commission to was as follows:
Gatehouse keeper: Do you have any allergies?
[Ms G]: Yeah, racist white arseholes.
155 This was part of the basis for a further, third charge against Ms G of behaving in a disorderly manner in a police station or lockup being added to the charges against Ms G after her arrest. The Statement of Material Facts says, relevantly:
…During this time the accused was continually racially abusive and aggressive towards officers and the Custody Notification Scheme (CNS) representative.
156 Pointing out this “continuing” conduct at the police station does not advance Mr Lee’s appeal. His removal was based on his actions in conducting the arrest and the use of force prior to Ms G’s arrival at the Geraldton police station. However, the fact that Mr Lee relies upon this particular exchange to attempt to justify her original arrest demonstrates how misguided he is in relation to what constitutes racist harassment and, if anything, fortifies our concerns about his lack of insight and remorse.
157 Had Ms G wished to express her sentiments in a manner deemed by Western society to be polite, she might have said:
I am an Aboriginal woman who has suffered the effects of racism and discrimination by white, colonial society and I no longer wish to be so subject.
158 She did not use polite terms, but her meaning was the same.
159 Given the events that preceded Ms G’s reference to racist white arseholes, including her complaints that she had contacted police for assistance and they had arrested her rather than her white expartner, she had perfectly reasonable cause to call out racism. It is a welldocumented fact that Aboriginal people suffer discrimination and racism in and by white society. Ms G was perfectly placed to express what is highly likely to be her real, lived experience of racism.
160 In its context, her statement is an accusation of racism. The meaning she conveyed and her attempt to convey it cannot reasonably be viewed as the commission of a criminal offence any more than saying here that the impact of colonisation through the actions of white participants have caused Aboriginal trauma and oppression, or the even less controversial statement that some white people are racist.
161 In Mr Lee’s response to the proposed removal action and his appeal to the Commission, he has consistently maintained that he was right to have arrested Ms G and that the charges against her were justified. In his attempts to justify his use of force against her, he has gone to lengths to portray her as racist, aggressive and dangerous. At no point has Mr Lee acknowledged that Ms G had good cause to be aggrieved, nor has he acknowledged the harm his actions caused Ms G. The closest he has come to an expression of remorse was when, on 19 March 2020, he said to investigators:
All I can say is I’d acted in good faith. I believed my actions were right on the day, and it’s only after sitting down now with you that, yeah, it was a little bit worse than what I thought. So, yeah, I – I  all I can say is obviously I’ve messed up. It was not me intention. It’s not me intention to do false prosecutions or charges. I’m not like that. I don’t want to do that. It’s  we’ve got enough shit going on as it is without bloody falsifying stuff. So, yeah, like I say, I was acting in best faith, and I’ll walk away and learn from this.
162 Mr Lee’s remorse has therefore only extended to his own erroneous statements made after the events of the morning of 13 November 2019 and not his actual interaction with Ms G.
163 How, then, does Mr Lee’s interests; his reputational and career interests particularly; weigh as against the public interest? There is undeniably an urgent public interest in improving Aboriginal/Police relations, in closing the gap on Aboriginal incarceration rates, and in having a police force which is effective in responding to and preventing domestic and family violence. All of these are highly relevant to the maintenance of public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force. We can therefore comfortably say that Mr Lee’s interests, weighed against this public interest, are not such as to render his removal harsh, oppressive or unfair.

NOTE: [38] amended by Corrigendum issued 19 January 2022 ([2022] WAIRC 00017).