100422715

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES ALLAN RAYMOND CARLYON

APPELLANT

 -v-

 COMMISSIONER OF POLICE

RESPONDENT

CORAM CHIEF COMMISSIONER W S COLEMAN

 SENIOR COMMISSIONER A R BEECH

 COMMISSIONER P E SCOTT

DATE FRIDAY, 7 MAY 2004

FILE NO APPLICATION 1721 OF 2003

CITATION NO. 2004 WAIRC 11428

_______________________________________________________________________________

Result Leave to tender new evidence granted

Representation

Appellant Ms M Ridley (of counsel) on behalf of the appellant

Respondent Mr R Bathurst (of counsel) on behalf of the respondent

_______________________________________________________________________________

Reasons for Decision

1         The Respondent seeks leave to tender the following as new evidence under section 33R(2)(b) of the Police Act 1892 in this Appeal.

(a) Transcript of the criminal trial of the Appellant for assault occasioning bodily harm, heard on 15 September, 18 September, 19 September and 8 December 2003; and

(b) Reasons of Magistrate Cullen, dated 10 December 2003, for convicting the Appellant of assault occasioning bodily harm.

2         The Appellant does not consent to the above being tendered and opposes the application.

Respondent’s Submissions

3         The Respondent says that in the interests of justice the Western Australian Industrial Relations Commission (“the WAIRC”) should not ignore, as relevant fact, what actually happened in the incident that led to removal action being taken by the Commissioner of Police.

4         The Respondent submits that the Commission is obliged to examine matters before it having regard to equity, good conscience and the substantial merits of the matter.  Material facts which subsequently come to light regarding a dismissed person’s conduct and which have a direct bearing on the conduct complained of should not be ignored in determining the fairness or otherwise of a dismissal and whether or not there should be reinstatement (Minister for Police and Commissioner of Police v Smith (1993) 73 WAIG 2311 at 2326) (“the Smith Case”).

5         While it is acknowledged that the instant matter is different from the Smith Case where additional information about Mr Smith’s behaviour subsequently came to light after that officer had been removed from the Police Service, here the criminal trial is an event which occurred after the Appellant’s removal.  Nevertheless, it is submitted even though the trial took place after the decision was made by the Commissioner of Police to remove the Appellant from the Police Service, the trial referred to conduct that occurred while the Appellant was a serving officer.  Therefore, the transcript of that trial and the reasons for decision in the criminal conviction are material factors relevant to the Commission’s consideration.  The principle is still the same. Where a matter is being considered on the substantial merits of the case it is relevant to consider all the factual circumstances. Where the onus has been discharged beyond reasonable doubt, the hearing and reasons for decision in that matter should be looked at in the interests of justice.

6         Furthermore, the Respondent submits that as the Appellant argues that the respondent relied on unsworn and untested evidence in reaching his decision to issue the Appellant with the Notice of Removal, the fact that that evidence has now been sworn and tested in cross examination and indeed preferred to the evidence of the Appellant, then in the interests of justice the transcript and reasons for decision in those proceedings should now be available to the Commission.  The transcript and the Magistrate’s reasons for decision bear directly on the grounds of Appeal.

7         The Respondent submits that more significantly, the reasons for decision of the Magistrate in the Appellant’s criminal conviction will determine the way this Appeal can be conducted.

8         In this respect an Appellant cannot (except in limited circumstances) allege in a court of civil jurisdiction facts that are inconsistent with the reasons for decision in the criminal case.  The issues arising in the criminal matter have been heard and finally determined.  The appellant has been convicted. The conviction cannot be attacked or called into question by a collateral attack in civil proceedings.

9         For fresh evidence to displace the prima facie evidence which is that of the conviction, fresh evidence must not only be fresh in the sense that it was not available at trial and could not by the exercise of reasonable diligence have then been obtained; it must also be evidence which entirely changes the aspect of the case (Mickelberg v Director of Perth Mint [1986] WAR 365 at 372).

10      Notwithstanding that the Appellant has lodged an appeal against his criminal conviction, it is submitted that it is not now open to the Appellant in these proceedings to argue that there are discrepancies in the evidence nor facts different from those which were tested before the learned magistrate and which were the subject of findings that resulted in criminal conviction.

11      In the interests of justice it is submitted that it is important for the Commission to have the transcript and reasons for decision in the criminal matter before it to ensure that there is no abuse of process by considering evidence contrary to the facts established by the conviction.

Appellant’s Submissions

12      In opposing the application by the Respondent to tender new evidence, the Appellant argues that the transcript and reasons for decision are not relevant to this Appeal.  Section 33Q of the Police Act 1892 sets out the basis upon which the Appeal shall proceed.  The criminal hearing and conviction are subsequent events.  In this respect the transcript and reasons for decision were not available to the Commissioner of Police at the time he made his decision to issue the Notice of Removal.  On the basis of this what is sought to be tendered is not new evidence.

13      The scheme of the Police Act for the removal of a member and an appeal against that decision enables the Commissioner of Police to act without awaiting the outcome of criminal proceedings.  However, section 33T(2) enables an application from the Commissioner of Police for adjournment to be considered pending the final determination by a court where an appellant has been charged with a relevant offence.  It would, in the Appellant’s view leave the Police Act open to abuse if the Respondent can rely on the outcome of a later criminal trial to support the decision to remove the member or revoke that decision if the member was acquitted.

14      Removal of the Appellant was determined prior to the conviction.  The Commissioner of Police formed the view on the basis that there was sufficient evidence available to him at that time.  The Appellant submits that the outcome of the criminal charge was irrelevant to the Commissioner of Police’s considerations at that time and the new evidence being sought is irrelevant now.

15      It is the Appellant’s position that the Appeal can only proceed on the evidence available to the Commissioner of Police at the time of removal and it is on this basis that the grounds of appeal have been drafted.

16      The Appellant submits that having regard to the dictates of section 33Q, the fact of a conviction is irrelevant to the statutory requirements imposed on the Commission for hearing an appeal.  However, it is conceded by the Appellant that the fact of conviction may be relied on by the Commission but only with respect to considering whether or not the Appellant is a person who can be returned to his employment as a police officer.  The Commission can do this without “looking behind” the conviction.  But the fact of the conviction is not, in the Appellant’s view, in any way fatal to the Appeal.  The provisions of section 33Q(4) may make the record of conviction a matter of public interest, but again, in the Appellant’s view it is the conviction alone and not the transcript and reasons for decision that are excited by that provision.

17      According to the Appellant it is in the interests of justice that only the facts upon which the Commissioner of Police made his decision be considered and that this does not include the new evidence for which leave is now being sought to admit.  Consistent with this line of argument the Appellant confirms that it is not available to him to re-argue the issues that were before the learned Magistrate.

Conclusion

18      In the absence of the Appellant’s consent under section 33R(2) of the Police Act 1892, the Commission must be satisfied that it is in the interests of justice that leave be granted to tender new evidence as defined (section 33R(11)).

19      The phrase “interests of justice” must be given a wide meaning in the context of determining what new evidence should be considered in an appeal under the Police Act 1892.

20      The Commission must take into account all matters relevant to the disposition of the Appeal in accordance with the terms of the statute including the requirement to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.  Furthermore, the Commission shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just.  These requirements are imported to the Police Act 1892 by section 33S from sections 26(1)(a) and (b) of the Industrial Relations Act 1979.

21      Consistent with the interests of justice necessary for admitting new evidence and the requirement to act according to equity, good conscience and the substantial merits of the case, the Commission is directed to consider in the sequence specified, matters set out in section 33Q(1) of the Police Act 1892.  Furthermore, without limiting the matters to which the Commission 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.” (section 33Q(4))

22      Indeed it may be seen that on the basis of public interest as identified in section 33Q(4) of the Police Act 1892 it is encumbent upon the Commission to have regard for the fact of an appellant’s criminal conviction.  Where, as in this case, the grounds upon which the Appellant claims that the decision of the Commissioner of Police was harsh, oppressive or unfair go directly to the issues determined in criminal proceedings, the sworn and tested evidence together with the findings should be available to the Commission.

23      If this is the case the Appellant’s argument that the Commission must consider the Appeal and matters relating to it within the confines of the evidence and material available to the Commissioner of Police and issues he considered at the time of his decision cannot be accepted.  In our view the scope of sections 33Q(1) and (4) and section 33T of the Police Act 1892 make it clear that such a narrow view of the appeal process and new evidence which is in the interests of justice cannot apply.  Similarly these provisions militate against an interpretation of the scheme of the Police Act 1892 which so limits consideration of the appeal as if it was to be determined at the time of the Commissioner of Police’s decision to issue a notice removing the officer.  The availability of an adjournment to the Commissioner of Police under section 33T where the Appellant has been charged with a relevant offence, does not act to impose a limitation on the Commission to consider only what was before the Commissioner of Police when his decision was made to remove the officer.

24      The Appellant has at all times the burden of establishing that the Commissioner of Police’s decision to take removal action was harsh, oppressive and unfair.  In determining the Appeal the Commission has a duty to have regard to the interests of the Appellant and the public interest.  In this latter respect the Appellant’s ability to maintain public confidence in the integrity, honesty, conduct and standard of performance of the Police Force must be assessed.

25      In Neville Raymond Smith v Director-General of Transport [2002] WASCA 64, a taxi driver recently convicted of the offence of assault occasioning bodily harm appealed against the Magistrate’s decision to dismiss the application made by the taxi driver to review the Director-General of Transport’s decision to cancel the applicant’s endorsement for a taxi driver’s licence on the grounds that the Director-General had reason to believe that the taxi driver was not of good character.  The conviction had occurred in circumstances where the assault involved took place in the course of his occupation as a taxi driver.

26      While it was made clear that the conviction could not be attacked or called into question by a collateral attack in the review proceeding (Mickelberg v Director of Perth Mint [1986] WAR 365 at 372) the particular facts established by the conviction needed to be considered to ascertain the way upon which they revealed or reflected the character of the taxi driver.  Heenan, J went on to say:

“The ultimate issue for determination was whether or not the appellant was of sufficiently good character to hold a taxi driver’s licence.  Proof of his conviction causing bodily harm did not make it inevitable that he was not of sufficient character to hold that licence but it is certainly a telling fact.  The role of a court in reviewing a decision on that ultimate issue must have regard to his overall character and the requirements of the occupation for which the licence is necessary – compare Ziems v The Prothonotary at the Supreme Court of NSW (1957) 97 CLR 279.

This may involve the court scrutinising the conviction which is relied upon in the case before it to demonstrate unfitness to practice a profession, hold a licence, or obtain some other right or privilege in order to identify what facts the conviction necessarily establishes and which must, therefore, be taken to be conclusively proved in the absence of some fresh evidence or other factor (such as the institution of a separate action to set aside a conviction or judgment on the grounds that it was obtained by fraud).  In such circumstances the court will need to examine the issues in the case, as established from the formal charge or indictment and the plea made in answer to it, and the factual issues upon which the determination of guilt turned in those circumstances.  In doing this the court will naturally have regard to any reasons for decision given by the court, where there are any, and the terms of any special verdict which might have been given by a jury.  Similarly, sentencing remarks may be helpful in identifying what was necessarily established by the conviction.”  (op cit at para 24 and 25).

27      Here, where the Appellant accepts that the appeal does not present the forum to re-try issues determined in the conviction proceedings, the fact of the conviction establishes for the Commission the facts of the incident upon which the Commissioner of Police took removal action.

28      In the circumstances of this appeal the interest of justice dictates that the Commission should grant leave to tender the new evidence as sought.

29      The facts established by the conviction proceedings and the reasons for decision are directly relevant to the determination of the appeal both in terms of the harshness, oppressiveness or unfairness of the removal and matters which the Commission shall have regard to under section 33Q(4) of the Police Act 1892.