APPEAL AGAINST THE DECISION OF COMMISSIONER TO TAKE REMOVAL ACTION ON 15 APRIL 2025

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00763

DELIVERED : MONDAY, 8 SEPTEMBER 2025

FILE NO. : APPL 29 OF 2025

Appellant

AND

Commissioner of Police

Respondent

Catchwords : Industrial Law (WA) – Removal of police officer – Applications to amend grounds of appeal and to tender new evidence – Two witness statements – Terms of 33R(6) Police Act 1892 (WA) considered – Evidence of appellant’s treating psychiatrist admitted

Legislation : Police Act 1892 (WA) 

Result : Order issued

Representation:

Counsel:

Appellant : Mr R French of counsel

Respondent : Ms J Kasbergen of counsel

Case(s) referred to in reasons:

Carlyon v Commissioner of Police [2004] WAIRC 11428; (2004) 84 WAIG 1395

Lee v West Australian Police Force [2021] WAIRC 00481; (2021) WAIG 1294

Stead v State Government Insurance Commission (1986) 161 CLR 141

Reasons for Decision

THE COMMISSION:

Background

1         The appellant was a police officer for 16 years and attained the rank of Senior Constable.  As a result of a domestic violence incident between the appellant and his wife at their home on the night of 8 August 2024, loss of confidence proceedings were commenced against the appellant by the respondent.  This led to the appellant’s removal as a police officer on or about 15 April 2025, by reason of the respondent’s loss of confidence in the appellant’s integrity and conduct.

2         The appellant now appeals against his removal and seeks an order that his removal be taken to have always been of no effect, along with reinstatement.  Alternatively, the appellant seeks an order for compensation.

Interlocutory matters

3         There are two interlocutory matters before the Commission. The first is an application by the appellant to amend his notice of appeal to recast his grounds of appeal.  The second is an application to tender new evidence under s 33R of the Police Act 1892 (WA). 

Application to amend

4         The application to amend the notice of appeal was not opposed by the respondent. The Commission, at the hearing of the interlocutory applications, granted the appellant leave to do so.

New evidence

5         The application for leave to tender new evidence relates to two witness statements. The first is that of Dr Martin Chapman dated 28 August 2025.  Dr Chapman is a psychiatrist and has been the appellant’s treating psychiatrist since 2024.  Dr Chapman’s witness statement deals with his diagnosis of Post-Traumatic Stress Disorder for the appellant, his recent medication history and the symptoms of his medical condition, relevant to the incident which occurred on 8 August 2024.  The second is that of the appellant’s wife, Cassandra Henderson. Whilst the respondent submitted that he would need further time to consider Dr Chapman’s witness statement as to whether he agreed with any of its content, the respondent consented to its tender for the purposes of the appeal. The tender of Ms Henderson’s witness statement was opposed by the respondent.  

6         We deal with the application to tender Ms Henderson’s witness statement below.  We first consider the relevant statutory provisions and authorities. 

Statutory provisions and applicable principles

7         Section 33R of the Police Act is relevantly in the following terms:

 33R. New evidence on appeal

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

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

(a) the appellant consents; or

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

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

(a) the Commissioner of Police consents; or

(b) the Commission is satisfied that —

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

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

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

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

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

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

before his or her removal from office.

…

(11) In this section —

new evidence means evidence other than evidence of —

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

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

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

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

(e) a notification of the removal from office.

8         In Lee v West Australian Police Force [2021] WAIRC 00481; (2021) WAIG 1294, in relation to an application to tender new evidence, the Commission observed at [14] as follows:

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

9         Furthermore, as to the question of the meaning of ‘in the interests of justice’ for the purposes of ss 33R(2)(b) and 33R(3)(b)(iii), that concept is to be construed broadly in the context of s 33R of the Police Act as a whole: Carlyon v Commissioner of Police [2004] WAIRC 11428; (2004) 84 WAIG 1395 at [18]‑[21].

Contentions of the parties

10      The appellant contended that Ms Henderson’s witness statement ought to be tendered because it is evidence that would be likely to show that the respondent acted upon wrong or incomplete information.  This was contended to be on two bases.  The first being the witness statement would demonstrate Ms Henderson’s willingness to cooperate with the respondent’s managerial investigation, which the appellant submitted was relevant to the amended appeal ground D, alleging that the respondent did not take adequate steps to properly investigate relevant events prior to 8 August 2024.  Accordingly, it was contended that the appellant was not provided with an adequate opportunity to respond to allegations in relation to these prior events.

11      The second basis was that Ms Henderson’s witness statement would go to whether the appellant displayed symptoms on 8 August 2024 and in the week prior, consistent with his PTSD diagnosis and the appellant having PTSD episodes.  It was also submitted that such evidence may materially have affected the respondent’s decision to remove the appellant as a police officer, and it would be in the interests of justice for leave to be granted. 

12      As to the first basis of the leave to tender, the appellant submitted that the respondent’s analysis of response, contained in the parties’ joint reg 92 Bundle at pp 161‑162, specifically at [76], noted that Ms Henderson did not wish to cooperate with any managerial investigation.  It was submitted that when she was asked by investigators whether she would provide a statement for the investigation, Ms Henderson understood that to be for the purposes of a criminal prosecution, and not in relation to assisting in a managerial investigation. The appellant contended that Ms Henderson’s willingness to cooperate in this manner, in particular as to clarifying disclosures she made on 8 August 2024 regarding the appellant’s prior conduct, whilst not conclusive, would provide a ‘step along the way’ in enabling the appellant to answer the allegations more properly against him.

13      It was submitted that the failure to have Ms Henderson assist in the managerial investigation may have had a material effect on the findings ultimately made in relation to the appellant’s conduct towards his wife, in particular his conduct towards Ms Henderson on a prior occasion, some years prior to the incident on 8 August 2024. 

Consideration

14      For the following brief reasons, we are not persuaded that the appellant should be granted leave to tender new evidence in the form of the witness statement from Ms Henderson.  First, whilst the witness statement is undated, it is said to have been made on 1 September 2025, over a year after the relevant events leading to the appellant’s removal, which occurred on the night of 8 August 2024.  It is not, compared to the statements made by Ms Henderson on the night in question, contemporaneous with the material events. 

15      Second, and related to this, the content of Ms Henderson’s witness statement going to the second issue, of whether or not the appellant’s conduct and demeanour were consistent with the appellant displaying PTSD symptoms, is not new.  There was a significant amount of material before the respondent, including body worn camera footage of Constable Spencer, who attended the appellant’s home on the night in question. 

16      That audio and video footage records Ms Henderson repeatedly making statements about the appellant’s demeanour in words to the effect ‘I know it’s not him’, ‘he is not well’, and ‘I could see it in his eyes, he was having some sort psychosis or something, it wasn’t him’ (see joint reg 92 Bundle document 1.7 at [03:00], [10:00], [10:43], [11:20] and [28:20]). This material is broadly consistent with [6] and [7] of Ms Henderson’s witness statement.

17      Given the similarity of that material, it is difficult to see for the purposes of s 33R(3)(b)(i) and (ii) of the Police Act, how the witness statement would be likely to show that the respondent acted upon wrong or mistaken information or alternatively, how it may have materially affected the respondent’s decision to take removal action.  Similarly, given what we have just said, it is also difficult to see how the tender of the witness statement would be in the interests of justice, for the purposes of s 33R(3)(b)(iii).

18      Furthermore, given that Ms Henderson provided a statement in support of the appellant, as a part of his response to the respondent’s Notice Of Intention To Remove (see joint reg 92 Bundle at pp 189‑190), it would have been open for Ms Henderson to raise these matters in that statement at that time.  There has not been an explanation for that omission.  

19      Insofar as the witness statement contends that Ms Henderson would have been willing to cooperate in the managerial investigation, this issue was really advanced on the footing that the appellant was denied procedural fairness.  Whilst undoubtedly the process of removal by the respondent of a police officer must be procedurally fair, to succeed on this basis, the appellant would need to demonstrate that the failure to admit the witness statement of Ms Henderson going to this factor, would have deprived the appellant of the possibility of a successful outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.  In the absence of any particularity in Ms Henderson’s witness statement about what assistance she could have provided in the managerial investigation, specifically in relation to prior incidents involving the appellant, it is difficult to see how this test could be satisfied. Counsel for the appellant properly conceded that this was a difficulty for the appellant.

20      Given the terms of s 33R(6), in light of the tender of new evidence in the form of the witness statement of Dr Chapman, the respondent is to be given a reasonable opportunity to consider that new evidence.  Accordingly, the proceedings will be adjourned to enable that to occur and for the parties to confer, as was discussed at the conclusion of the hearing, in relation to any necessary directions to enable the appeal to be heard on the merits in due course.

Conclusion

21      Orders now issue.