DODGE v COMMISSIONER OF POLICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, SAMUELS and CLARKE JJA 5 April 1989 [1989] NSWCA 66 POLICE TRIBUNAL — departmental charges — particulars of alleged "misconduct punishable by law' — no prosecution for offences — time for commencement of criminal proceedings statute barred Held: (1) The Police Tribunal had jurisdiction to deal with the matters alleged as departmental charges. (2) There was no basis on the material before the Court for concluding that the proceedings involved an abuse of process or should be stayed. WORDS AND PHRASES "misconduct punishable by law" Police Regulation Act 1899 Police Regulation (Allegations of Misconduct) Act 1978 Police Rules 1977 Gleeson CJ The claimant, Susanne Joy Dodge, is a member of the New South Wales Police Force. During 1987, in the course of a departmental investigation, a search was made of residential premises occupied by the claimant. The investigation, or consideration of the results of the investigation, apparently continued until May 1988. In May 1988 the complainant was charged with three departmental charges of misconduct. In short, the charges alleged possession and use of prohibited drugs contrary to s10, sll, and s12 of the Drug Misuse and Trafficking Act 1985. Each charge made specific reference to the provisions of Police R11(g). The particulars of the charges alleged that the misconduct occurred on various dates between 24 April 1987 and 12 September 1987. The claimant has never been prosecuted under the Drug Misuse and Trafficking Act. It was common ground in the proceedings that a prosecution for the alleged offences as specified in the departmental charges would have been statute-barred as at the date when the departmental charges were preferred against the claimant. Such prosecution would have had to be commenced within six months of the date of the alleged offences. (See Justices Act 1902 s56 and Drug Misuse and Trafficking Act 1985 s9). The charges against the claimant came on for hearing in December 1988 before the Police Tribunal of New South Wales constituted by his Honour Judge Wall. That Tribunal is established by s36 of the Police Regulation (Allegations of Misconduct) Act 1978. Pursuant to s41 of the Act the Tribunal has exclusive jurisdiction to hear and to determine departmental charges preferred against a member of the Police Force where certain stated circumstances exist. At the outset of the hearing before the Police Tribunal, and before any evidence was taken, counsel for the claimant made submissions to the learned judge. In short, the submissions were that the Tribunal had no jurisdiction to hear and determine the charges in question or, alternatively, that the proceedings involved an abuse of process or a denial of natural justice and should be stayed. His Honour rejected those submissions and thereupon proceedings were commenced in this Court claiming a declaration that the Police Tribunal has no jurisdiction to hear and determine the departmental charges, a declaration that the proceedings constitute a denial of natural justice and an abuse of process, and an order that the proceedings be permanently stayed. 2 UNREPORTED JUDGMENTS To understand the basis of these claims it is necessary to refer in more detail to the legislative and regulatory background to the proceedings before the Police Tribunal. S12 of the Police Regulation Act 1899, in the form in which it stood at the time of the promulgation of the Police Rules 1977, provided as follows: "12(1) The Governor may make rules for the general government and discipline of the members of the Police Force and to give effect to this Act and the Police Regulation (Superannuation) Act 1906. Different rules may be made applying to different members of the Police Force, according to whether they are male members or female members. Any such rule may specify the duties to be performed by female members of the Police Force or by different classes of female members of the Police Force, and may provide that any such member shall not be required or obliged to perform any specified duty, any other law to the contrary notwithstanding. (2) S41 of the Interpretation Act 1897 applies in respect of a rule made under this Act as if this Act had been passed after the commencement of the Interpretation (Amendment) Act 1969." The section has subsequently been amended, but not in a way that materially affects the outcome of the present case. The Police Rules 1977 contain the following provision, which forms the basis upon which the departmental charges in question were preferred against the claimant. R11, so far as material, provides: "(11) Each member admitted to the Force after the commencement of these rules is admitted upon the following conditions, and each member admitted to the Force before that commencement continues to be a member upon the following conditions, namely Liability to Dismissal or other Punishment (g) He is liable to dismissal or other punishment for disobedience, neglect or omission of duty, incompetency, intemperance, being under the influence of intoxicating liquor while on duty or while in uniform, disrespect to any person in authority, insolent or indecorous behaviour, any words or actions subversive of discipline or calculated to impair the efficiency of, or bring discredit upon, the Force, or any misconduct punishable by law or contrary to these Rules or the Police Instructions;" The allegation against the claimant was that she had been guilty of "misconduct punishable by law" within the meaning of r11(g). It was that allegation which the Police Tribunal was proceeding to hear and determine when the preliminary points earlier referred to were taken. In substance, the proceedings in this Court are brought for the purpose of bringing to an end the proceedings before the Police Tribunal. Since the various contentions made on behalf of the plaintiff turn, in one way or another, upon the point that the misconduct allegedly engaged in by the claimant, if it occurred, involved offences under the Drug Misuse and Trafficking Act, and that she was never prosecuted for those offences and, indeed, at the time when the departmental charges were laid, could not have been prosecuted, it is necessary to consider the legislative provisions which affect such a situation. It was conceded by counsel for the claimant, correctly in my opinion, that the expression "misconduct punishable by law" is one which relates to the quality or nature of the conduct at the time it is committed. Broadly speaking, it is a reference to conduct which, when it occurred, exposed the person involved to some kind of penalty for a breach of the law. It was common ground that the conduct in which the claimant allegedly engaged between April and September 1987 was "misconduct punishable by law" within the meaning of r11(g). URJ DODGE v COMMISSIONER OF POLICE (Gleeson CJ) 3 It is obvious that some kinds of conduct in which a member of the Police Force might engage and which might make that member liable to dismissal might also constitute an offence punishable by law, whereas other kinds of conduct rendering such member liable to dismissal might not. R38 of the Police Rules 1977 provides: "38 Where the Commissioner considers that action should be taken against a member of the Force, he may direct the preferment of a departmental charge against the member or he may direct the institution of Court proceedings, whichever he considers appropriate." That rule by its terms assumes that, in a given case, either of the two courses of action referred in it may be open to the Commissioner. Bearing in mind the provisions of r38, therefore, it is plain that "misconduct punishable by law" of the kind referred to in r11(g) is capable of including misconduct in respect of which the Commissioner is, by 138, given a choice as to whether he directs the preferment of a departmental charge or the institution of Court proceedings. It was against that background that the Police Regulation (Allegations of Misconduct) Act 1978 was enacted. That Act established a somewhat altered procedure for consideration and investigation of complaints against members of the Police Force, including a procedure for supervision of such investigations by the Ombudsman. (Generally, see The Ombudsman v Moroney [1983] 1 NSWLR 317). Pt4 of the Act, dealing with investigations of complaints by the Internal Affairs Branch, contains the following provision: "22 (1) Where it appears to a member of the Police Force conducting an investigation that sufficient evidence exists to warrant the prosecution of any person for an offence, he shall, subject to the Police Regulation Act 1899 and the rules made thereunder, cause appropriate proceedings to be instituted against that person." It is to be noted that the above section does not derogate from the provisions of the Police Rules, and, in particular, 138, but, on the contrary, is expressly made subject to them. It is clear from the language of the statutory provisions and rules set out above, that there is no statutory obligation which makes it necessary and inevitable that, if a member of the Police Force is alleged to have engaged in misconduct punishable by law, then, regardless of the circumstances of the case, any proceedings against him must be by way of criminal prosecution. It is easy to imagine cases in which it would be quite inappropriate to commence such a prosecution. The simplest possible example is a case where the commission of the alleged offence only comes to the notice of the Commissioner or other relevant officer at a time when proceedings by way of prosecution are statute-barred. That, it is true, is not the present case, but the question presently under consideration is one as to the construction of the relevant provisions, and is therefore to be determined in the light of the various possible circumstances that might exist. Contrary to submissions made on behalf of the claimant, I see no constitutional or other reason why the provisions set out above should not be given effect according to their plain terms. Indeed, it is somewhat surprising to hear it urged on behalf of a member of the Police Force that if a member of the Force is alleged to have engaged in misconduct punishable by law there exists an absolute obligation to prosecute such member in a court of law, and that there is a jurisdictional impediment to dealing with the matter by way of a departmental charge before the Police Tribunal. It was submitted on behalf of the claimant that, although a member of the Police Force is liable to dismissal for misconduct 4 UNREPORTED JUDGMENTS punishable by law, by reason of the provisions of r11(g) such member may not be made the subject of a departmental charge, at least unless the misconduct also falls within one of the other categories earlier referred to in the rule. Presumably the corollary of that proposition is that, subject to the qualification mentioned, dismissal can only result by reason of the operation of r45. That rule is in the following terms: "45 When a member of the Force has been charged before a court with an offence, and the court has found the charge proved, the Commissioner may take action against the member as if a departmental charge embracing the same facts had been preferred against him and had been found proved." Such a contention is, in my view, quite untenable. The rules mean what they say. The language of 138 is plain, and, in my view, fatal to the claimant's contention. In conclusion it may be noted that, if the jurisdictional submission made on behalf of the claimant were correct, then the decision of this Court in Cottee v Commissioner of Police (Court of Appeal, unreported, 23 September 1988) proceeded upon a false premise. It is true that the point was not argued, and therefore not considered, in that case. However, the members of the Court in Cottee clearly dealt with the matter upon the basis of an assumption that "misconduct punishable by law" could be the subject of a departmental charge dealt with before the Police Tribunal. The alternative submission was that the proceedings in the Police Tribunal should be stayed, either because they constitute a denial of natural justice or because they involve an abuse of process. It is to be noted that this submission was developed on the bare facts recited above and without any evidence, for example, as to the circumstances in which the departmental investigation extended beyond the time after which a prosecution became barred or as to any other facts or circumstances relating to or bearing upon the decision to proceed before the Police Tribunal rather than before a court of law. It was pointed out on behalf of the claimant that in various respects, exemplified by the decision in Cottee, there are material differences between proceedings before the Police Tribunal and a prosecution conducted in the ordinary way. For example, the standard of proof is lower. There is, however, nothing surprising or necessarily oppressive in this. An ordinary employee may be liable to dismissal by his employer as the result of an act of dishonesty, but the employer's power of dismissal is normally not conditioned by an obligation to wait until the charge is proved beyond reasonable doubt in a court of law. It is easy to envisage circumstances in which a member of the Police Force would have a preference for having an allegation against him dealt with by way of departmental charge rather than by way of criminal prosecution. It is far from clear what the preference of the present claimant would have been if she had been invited to exercise a choice in the matter at a time before a prosecution against her became statute-barred. It is true, as urged by counsel for the claimant, that as a general rule there are considerations of public policy which might well be thought to lead to the conclusion that allegations of breaches of the law by members of the Police Force are inherently more serious than comparable allegations against many other members of the public and, therefore, one might ordinarily expect to see prosecution. Even accepting such a generalisation, however, it would need to yield to the circumstances of the individual case. URJ DODGE v COMMISSIONER OF POLICE (Gleeson CJ) 5 I can see nothing in the bare facts of the present case which justifies the conclusion either that what is involved constitutes an abuse of process, or that there is a denial of natural justice to the claimant. 5 The summons should be dismissed with costs.