GARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and SHELLER JJA 14 February 1992, 21 May 1992 [1992] NSWCA 158 Prerogative relief — (per Mahoney JA) — when granted incidental error of law insufficient. Interference with discretion of Police Tribunal — refusal to rely on psychologists note not refusal to take account of evidence but rather finding that it was inappropriate to do so (per Mahoney JA) or not persuasive (per Clarke JA, Sheller JA agreeing). Error of law — no error if Judge correctly sets out applicable test, even if reasoning unsound — Azzopardi v Tasman-UEB Industries Ltd (1985) 4 NSWLR 139, discussed (per Clarke JA, Sheller JA agreeing). Fact finding — credibility — demeanour — ability to put aside such findings limited — test whether demeanour appropriate based on "ordinary human experience" — this normally question of fact not law — Tribunal not in error in its use of demeanour (per Mahoney JA). Inferences — defendants answers to questions — issue of fact not law — goes to credibility (per Clarke JA, Sheller JA agreeing). Tribunal's reasons — circular or faulty — finding of fact not law (per Mahoney JA) conclusions based on "human experience" may involve intuition rather than Aristotelian logic — judge's reasons not plainly wrong. Review Division — non-consideration of arguments — arguments at first instance based on conflicting evidence — detailed discussion of evidence in Tribunal judgment — no need for Review Division to give detailed reasons on the evidence and arguments if it agreed with Tribunal's reasons (per Clarke JA) greater detail of.dissenting Review Tribunal judgment irrelevant (per Sheller JA) dissenting judgment a virtual retrial: Misconception of jurisdiction to review — no evidence of misapplication of Abalos v Australian Postal Commission, 65 ALJR 11 — no error in Tribunal's finding of assault — no finding that Tribunal's decision was glaringly improbable possible (per Clarke JA, Sheller JA agreeing). Mahoney JA Constable Geraldine Kilfoyle, a member of the New South Wales Police Force, alleged that Constable Gary John Minter and other officers-of the Force were concerned in the assault, harassment or abuse of her during the period 2627 June 1990. Proceedings were brought, inter alia, against Mr Minter based upon Ms Kilfoyle's complaints. The proceedings were heard by the Police Tribunal of New South Wales. Judge Cooper, who constituted the Tribunal, in a long and detailed judgment, concluded that Mr Minter had been guilty of some of the matters of which Ms Kilfoyle complained. He recommended that Mr Minter be dismissed from the Force. Mr Minter appealed to the Review Division of the Tribunal. The majority of the Tribunal (Chief Judge Staunton and Judge Smyth) dismissed the appeal: the other member of the Tribunal Judge Wall would have upheld the appeal. There is no appeal, as such, against the decision of the Review Division of the Tribunal. However, Mr Minter has brought proceedings in this Court seeking relief, by way of prerogative order or declaration, against the findings of the Tribunal and what has followed from them. 2 UNREPORTED JUDGMENTS The findings are of particular importance to the parties and in particular to Mr Minter. If final effect be given to the recommendation that he be dismissed from the Force, his career will be terminated: if a lesser consequence results from the findings, those findings will be likely to have serious effects upon him, within his occupation and otherwise. Those representing him have therefore placed before this Court material extending over some hundreds of pages relating to what occurred before the Tribunal and have placed before this Court submissions, both oral and in writing, seeking the reversal of the findings made against him. However, it must be said at the outset, and the parties agree, that the powers of this Court in relation to the matter are limited. Having regard to the way in which the proceeding has been presented, it is proper to refer to the function which this Court performs in relation to matters of this kind and the limitations upon what the court may do. This Court has no power as such to review the findings of fact made by the Police Tribunal or to correct errors of fact which may have been made by it. Under the general law, misconduct of police officers, whether towards fellow officers or members of the public, was subject to correction either as a disciplinary matter by those in charge of discipline within the police force or by action under the general law, civil or criminal. But the legislature, for reasons which no doubt were appropriate, has laid down detailed provisions as to how complaints in respect of police officers are to be dealt with. This Court is entitled to know that there was considerable public discussion as to the form which provisions of this kind should take. The provisions which ultimately were made were, no doubt, enacted in a form which the legislature considered accommodated the claims and interests which had been made in that regard. The accommodation which has been adopted by the legislature is now contained primarily in the Police Regulation (Allegations of Misconduct) Act 1978. It is in my opinion important that this Court observe and give effect to the terms of the accommodation embodied in the relevant legislation according both to the terms and the intendment of it. Stated in general terms, the legislation now provides that relevant complaints may be brought against a police officer before the Police Tribunal of New South Wales. The complaints are heard by the Tribunal, constituted by a District Court judge. The Tribunal so constituted finds whether the complaints have been proved. If they have, it may make a recommendation as to the penalty which should be imposed. That recommendation is directed either to the Minister or to the Police Commissioner. The Police Regulation (Allegations of Misconduct) Act constitutes, in addition, a Review Division of the Tribunal. An appeal may be brought to the Review Division against the findings of the Tribunal. The Review Division considers the evidence which was brought before the Tribunal and, in general, as on the equivalent of a rehearing, itself determines whether the complaint has been proved: see s43. It may accept additional evidence in relation to matters occurring since the hearing before the Tribunal: s43(4); but otherwise it is confined to the evidence given before the Tribunal. If the Review Division finds the complaint not proved, it may uphold the appeal and set aside the findings of the Tribunal. If it holds the complaint proved, it will dismiss the appeal. The parties are agreed that, on the proper construction of the legislation, the Review Tribunal has no power in relation to the penalties recommended by the Tribunal. WARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOB (Mahoney JA) If the complaint has been proved and the appeal dismissed by the Review Division, the matter goes to the Minister or to the Commissioner of Police. The parties are agreed that any decision made by the Minister or the Commissioner of Police consequent upon such recommendation is subject to appeal to the Government and Related Employees Appeal Tribunal under the Government and Related Employees Appeal Tribunal Act 1980. I have summarised the effect of the legislation only in so far as it is directly relevant to the present proceeding. As appears from this summary, the relief sought from this Court would involve, if granted, intervention by this Court between the decision of the Review Division and the action (if any) taken by the Minister or the Commissioner of Police pursuant to the recommendation of the Tribunal. Intervention at this stage would involve intervention before the course of procedure laid down by the relevant legislation had been completed. But, it was submitted for Mr Minter, the circumstances of the legislation would warrant such intervention. The submissions which have been made by Mr Gross QC for Mr Minter and by Mr Littlemore for the third opponent, the Commissioner of Police - Police Department of New South Wales, have ranged over a number of matters. It will be sufficient for the purpose of this proceeding to consider the three matters to which principally attention has been directed: (1) the basis on which prerogative or declaratory relief is sought; (2) whether that basis has been established; and (3) whether there are discretionary reasons why the relevant relief should not be given. (1) The basis of the claim for relief: At the commencement of the hearing before this Court, the court asked Mr Gross QC to specify the basis on which the claim for relief was put. It was necessary that this be specified as the basis had not been particularised as such in the summons or in the supporting affidavits and it was not referred to in the preliminary written submissions. Mr Gross QC indicated that the claim was based upon the submission that the Tribunal had, in the initial judgment of his Honour Judge Cooper, committed errors of law in that, in the instances referred to by counsel, his Honour had arrived at conclusions of fact upon bases which could not support them; that the Review Division had, in adopting Judge Cooper's conclusions of fact, consequently adopted the errors of law made by him; that the Review Tribunal had not performed its duty under s43 et seq of the Act in that it had not addressed the questions to which, under the Act, it was required to attend; and that the Review Division had failed to give reasons for the decision at which it had arrived. Mr Gross QC put his submissions in various ways but, in my opinion, what was submitted falls essentially within these propositions. It is, in my opinion, proper to deal with the proceeding by reference to those submissions. When the proceeding commenced Mr Gross QC, having indicated the basis of the application for relief sought from this Court, tendered evidence in support of the application. The material tendered consisted essentially of the evidence given before the Police Tribunal, the judgments of the Tribunal, and details of the submissions which were made in writing to the Tribunal on behalf of Mr Minter. Mr Gross QC sought to tender in addition a transcript of the proceedings before the Review Division on 29 August 1991. It was indicated that that transcript was tendered essentially "for completeness". The court indicated that the transcript was at that stage not admissible on that ground. It reserved 4 UNREPORTED JUDGMENTS leave to the plaintiff to re-tender the transcript if, during the proceeding, there appeared a basis on which it would be relevant in the proceeding. The transcript was not tendered. Mr Littlemore for the third opponent did not object to the evidence which has been admitted and, the evidence having been admitted, tendered no evidence. It is not necessary to consider whether, if other bases had been urged for the relief sought by the present summons, evidence would have been tendered or other submissions made. The matter has proceeded upon the basis that has been advanced by Mr Gross QC. As I have indicated, there is no appeal as such from the decision of the Police Tribunal: in particular, there is no appeal as such from a decision of the Review Division of that Tribunal. Therefore, if relief is to be sought against that decision, it is accepted that it must be by way of prerogative relief or declaratory relief. It is not suggested in the present proceeding that, if the errors suggested had been made by the Tribunal, its decision would be void: such errors would involve, at the most, errors of law in refusing or exercising the relevant jurisdiction. Declaratory relief would therefore not be appropriate. The argument has proceeded upon the basis that the relief sought is prerogative relief, by way of certiorari or, perhaps, mandamus. The circumstances in which prerogative relief will be granted against a decision of an inferior court or tribunal of the nature of the Police Tribunal has been considered in a number of cases: see, eg, John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 468-70, 476. It is accepted that relief may be granted where the decision involves an error of law, at least if it be of an appropriate kind, and that error appropriately appears upon the record of the Tribunal. Reference has been made in decisions of this Court to the nature of the error of law which will attract prerogative relief: see, eg, Commissioner for Road Transport v Kirkpatrick (1988) 13 NSWLR 368; and to the circumstances in which that error will sufficiently appear upon the record of the Tribunal: see, eg, GJ Coles and Co Pty Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503. In my opinion, it is not every error of law which will attract prerogative relief of the present kind. Thus, a ruling in a proceeding to admit or reject evidence may be wrong and may constitute an error of law. But, as at present advised, I do not think that an incidental error of that kind would, without more, be the basis for the grant of certiorari in respect of a decision of the Police Tribunal: Ex parte Dowsett: re Macauly (1943) 60 WN (NSW) 40; Ex parte Ball: re Tanner (1960) SR (NSW) 465. Whether and to what extent mistakes in relation to the weighing of evidence of the kind here in question would constitute, for the purposes of the grant of certiorari, an error of law warranting relief is a matter which may require consideration in an appropriate case. It has been conventionally accepted that, in general, an error of law will ground prerogative relief in certiorari only if it appropriately appears on the record of the tribunal. What constitutes such record and when the error will, for this purpose, appear remains finally to be determined. It has been held by this Court that, for the purposes of a particular Tribunal, the judgment of the Tribunal may constitute part of its record and accordingly that an error appearing in the judgment will appropriately appear on the record of that tribunal: see, eg, Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503. Whether that will be so in relation to the Police Tribunal has not been determined. In the present case, some at least of the errors suggested in respect of evidence would involve WARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOB (Mahoney JA) not merely reference to the judgments but also a detailed examination of the evidence and the exhibits. Whether an error which required to be established by reference to evidence and exhibits in this way would appropriately appear on the record of the Tribunal is also a matter which, I think, remains to be decided. I have referred to these matters because, in my opinion, it is important that it be clear that this Court may not intervene generally in relation to errors made by the Police Tribunal: it is, as I have suggested, important that the statutory arrangements in respect of complaints against police officers be observed and maintained. However, because of the views which I have formed in relation to the substance of the complaints made for Mr Minter, it is not necessary to pursue further the delineation of the boundaries within which each intervention may take place. (2) Is the basis for relief established? Mr Gross QC put his submissions in this regard in a number of different ways. It will be sufficient to deal with the main ways in which the submissions were made. It was submitted that errors of law had been committed both by his Honour Judge Cooper and by the Review Division, in its affirmation of his Honour's judgment and otherwise. In relation to the decision of Cooper DCJ it was submitted that his Honour erred in law: (a) in putting aside psychiatric evidence in relation to Ms Kilfoyle because it would be "quite unfair" to use it; (b) because he drew inferences from specified aspects of the demeanour of Mr Minter and Mr Metcalfe in evidence before him; and (c) because he followed wrong reasoning processes, in that he followed a circular reasoning process in concluding that Mr Minter and Mr Metcalfe were not telling the truth, his reasoning was illogical in drawing conclusions which did not follow from premises and in drawing inferences not justified by the facts from which they were drawn. In relation to the Review Division it was submitted in addition: (d) that their Honours had not addressed the matter to be determined by them; and (e) that they did not give reasons or sufficient reasons for their conclusion. Ihave, as I have indicated, summarised the main matters raised in argument by Mr Gross QC. In the interests of his client, he pursued, I think, every possible objection to what the Tribunal did. Counsel is, within appropriate limits, entitled so to do. But a court giving judgment is not obliged to pursue and destroy every argument advanced. At least, the decision not to do so does not involve an error of law by the court. I adhere in this regard to the conclusions which I stated in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 385-6; (1984) 58 ALJR 553; in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSLWR 247 at 269-70; and in Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). Some submissions are sufficiently dealt with in argument. The answer to others will sufficiently appear from the thrust of what the court has done in relation to other matters. Some will not need to be dealt with because the court has decided the proceeding in a way which makes them irrelevant. Some may be dealt with briefly: a long argument does not require a long answer. And it is no disrespect to the industry of counsel in the pursuit of their client's interests to say that, in some cases, a submission may not warrant being dealt with at all. In general, it is sufficient to say that it has not been the practice of this Court to answer every argument nor, I believe, has the practice of the High Court of Australia been different. The court should, in my opinion, adhere to its practice in this regard. 6 UNREPORTED JUDGMENTS I come now to consider the main errors of law suggested. As I have indicated, the plaintiffs case has been placed and the matter has been argued upon the basis that, in this proceeding, certiorari will go only if it be shown that the Tribunal fell into error of law. It is, of course clear that certiorari may be granted for reasons other than an error of law appropriately appearing from the proceedings of the Tribunal in question. But this proceeding has been confined to errors of law and it is proper that the proceeding be determined on that basis. I shall go first to the errors suggested in relation to the judgment of Cooper DCJ. (a) It was first submitted that his Honour erred in the manner in which he dealt with the evidence derived from the notes of a psychologist who had examined Ms Kilfoyle. The suggestion was that the learned judge refused to take this evidence into account and that he did so merely because it would be "unfair" to take it into account. Iam satisfied that this was not what the judge did. Clarke JA has set out what, in this regard, was said by the judge. The judge was perhaps less than fully precise in his use of the term "unfair". But it is sufficient to say that what the learned judge meant by his use of the term is plain. He was, in my opinion, indicating that, having regard to the circumstances in which she said what she did, it would be wrong or inappropriate to use what Ms Kilfoyle had said to the psychologist as the basis for an inference that she was paranoid or given to irrational reasoning. "Unfair" was used to convey this. So understood, what the judge said did not evidence an error of law. (b) It was then submitted that his Honour erred in the way in which he drew inferences from the demeanour of Mr Minter and Mr Metcalf. In deciding that he did not accept their evidence, he relied, in part, upon what he observed in the witness box. He detailed some at least of the things he observed. And, he said, it was by reason of these matters that he did not accept them as witnesses of truth. His Honour was careful to point out that his conclusion was not influenced only by these matters: he took into account other, including objective, matters arising from the factual evidence which had been given. But it was submitted that the matters which the judge detailed could not warrant the inferences as to credibility which were drawn by him and for this reason he had, in arriving at his conclusion, erred in law. It is well established that a judge may draw inferences as to credibility from what he sees of a witness before him. (See generally Abalos v Australian Postal Commission (1990) 171 CLR 167; Chambers v Jobling (1986) 7 NSWLR 1; Dawson v Westpac Banking Corporation (1991) 66 ALJR 94). The term "demeanour" is frequently applied to comprehend matters of this kind. The term is, I think, less than completely apt. What is involved is, I think, something which goes beyond merely the witness's manner of comporting himself. It encompasses all of the things which the witness says and does and the manner of his doing it. The term is intended to comprehend all of the things to which ordinary people have regard in determining whether a witness is to be accepted as accurate or truthful. There are, of course, established restrictions on the use to which an appellate court is, on a rehearing, entitled to differ from the conclusions of a judge as to credibility based, in whole or in part, upon demeanour. Restrictions of this kind were referred to in Voulis v Kozary (1976) 50 ALJR 59 and in the cases there referred to. WARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOR (Mahoney JA) In view of the submissions made in the present case, it is proper to repeat that, whilst demeanour can assist in deciding credibility, it does not follow that, in a particular case, the demeanour of the witness will assist in that regard. The fact that demeanour can in some cases assist in determining credibility does not mean that it will in every case do so. Nor does it mean that trial judges may not err in what they take from demeanour: Chambers v Jobling at 29. Cases such as Abalos affirm, in this regard, merely that, where the trial judge finds it has done so (or it is not established that it has not done so) an appellate court on a rehearing should not put aside the trial judge's conclusions of fact except for reasons of the kinds referred to in Voulis v Kozary and the cases there referred to. However, the main thrust of Mr Gross's submissions in this regard was that there are limits to the extent to which a trial judge can and should rely upon demeanour and in this case his Honour transcended those limits. His argument has suggested that the kinds of things detailed by the judge cannot as a matter of law provide the basis for an inference as to credibility or the like. To understand the use of demeanour in fact-finding, it is necessary to understand the nature of the fact-finding process itself and how it was applied in the particular case. In Jones v Sutherland Shire Council (1979) 2 NSWLR 206, I referred to what, in my opinion, are the basic principles in this regard. Insofar as the process of fact-finding is to be rationalised, it involves the application to an instant factual problem of (to adapt the phrase of Knox CJ and Dixon J in Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163) "human experience". The fact-finding process will often involve deciding whether, because facts A and B exist, it is to be inferred that C exists. Thus, the question may be whether the fact that X killed Y is to be inferred from the facts that Y was fatally stabbed and X was seen standing over him with a blood stained knife. To follow the reasoning in Morgan, the tribunal will ask whether human experience shows that in such circumstances it is proper to infer that X killed Y. Inferences may be drawn not merely from objective facts but also from the actions and reactions of an individual. The reasoning process remains in principle the same, namely, whether human experience is, and is sufficiently clear, that where a person acts in the relevant way, it should be inferred that he did the thing in question. See Jones v Sutherland Shire Council at 225. The difficulty in such a case is, as always, the minor premise: it is clear that inferences can in some cases be drawn from what a person says and does but the issue is whether that inference should be drawn from what he has said and done in the particular case. It is the thrust of Mr Gross's submission that, from the things detailed by his Honour, the inference cannot properly be drawn that Mr Minter or Mr Metcalfe was not a credible witness. There are, of course, some things from which it is not possible or proper to draw inferences. Thus, it has been said, accurately or not, that in earlier times the inference was drawn that a person was a witch or a sinner if, when thrown into a pond, he or she floated: God, or the pond, would not accept a witch or a sinner. If it was at that time seen as human experience that a witch or a sinner would be rejected in this way, that would not now be accepted as the basis for such an inference. And, the argument suggested, modern experience shows _ that inferences cannot be drawn from matters specified by the learned judge. It may be accepted that there are some things from which an inference against credibility cannot be drawn and that, perhaps, in some cases lack of credibility is inferred from inadequate evidence. But abuse does not evidence that there is no 8 UNREPORTED JUDGMENTS proper use. Experience does show that inferences from demeanour can be of assistance in determining credibility. The real, and difficult, question is: what are the aspects of demeanour from which such an inference can and should be drawn. Such a matter is, in a case such as this, not to be decided by elaborate psychological evidence. In the end, the matter is to be determined by whether - again to paraphrase the approach of Knox CJ and Dixon J - the ordinary human experience is that the aspects of demeanour in question may, in a proper case, be of assistance in deciding credibility. What is human experience is, in the end, to be determined by the court: it is the court which decides generally what kinds of things are or are not probative in this respect. I do not think that, properly understood and taken as a whole, the kinds of matters to which the judge referred are outside what may be used for this purpose. It would be wrong to treat (I take the kinds of things to which Judge Cooper referred) a shuffling of the feet or a blinking of the eyes as invariably indicating credibility or the lack of it. But I do not think that the fact that, in a particular case and in particular circumstances, a judge found such matters to be of assistance indicates that he went beyond what human experience evidences. As Ihave said, the judge was careful to indicate that he used these matters, not alone, but in conjunction with his consideration of objective facts in arriving at his judgment. I do not think that he was wrong in principle in the matters on which he relief in this regard. I have dealt with the submissions made by Mr Gross QC in this regard generally according to the thrust of them. But even if the judge had had reference to elements of demeanour beyond what human experience warranted, it does not follow that in so doing he erred in law. It has been held, eg, in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6, that (special cases or contexts apart) even gross errors of fact and of reasoning are not errors of law. What is an error of law may depend upon the context in which the term is used. I would for myself reserve the possibility that for some purposes an argument which involved adding apples to oranges to arrive at an aggregate number of pears could constitute an error not merely of fact but of law. See Acevski v Van Klooster (Court of Appeal, 4 October 1990, unreported). And it may be that the principles enunciated by Viscount Radcliffe in Edwards v Bairstow (1956) AC 14 at 33 et seq, will be relevant in this regard. However, it is not necessary to pursue that question further in the present case. (c) It was then submitted that Cooper DCJ had erred in law because he had arrived at his assessment of Mr Minter and Mr Metcalfe by means of, eg, circular or illogical factual reasoning. I am not satisfied that his Honour did this or that what he did would in any event constitute an error of law. The reasoning to conclusions of fact is often, perhaps ordinarily, not based upon Aristotelian logic. In many cases at least, conclusions of fact are drawn by a more intuitive process. And, I think, the assessment of what is, in this sense, "human experience" will often or ordinarily involve an intuitive conclusion which cannot be demonstrated by logical deduction from accepted premises. The fact that conclusions of fact therefore do not follow from the stated premises is not of itself a criticism of them. I do not mean by this that conclusions of fact drawn in such a way may not properly be subjected to analysis or audit, by the application of the rules of logic or otherwise. The law may reject conclusions of fact for such reasons which WARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOB (Mahoney JA) ordinarily ought be accepted for extra-judicial purposes. But it does not follow that conclusions which cannot be derived from logical processes of inference must necessarily be rejected. There are, of course, conclusions which, whether intuitive or not, are plainly wrong. Inconsistencies, contradictions or the like may show them to be such. But, in the present case, I do not think that his Honour's conclusions were based upon such matters. I do not think that this submission should be upheld. His Honour followed the familiar processes of fact-finding where evidence is conflicting. I do not think that the way in which he chose between or recounted the evidence of differing witnesses involved the kinds of errors for which Mr Gross QC contended. I come now to the submissions made in relation to the judgment of the Review Division. As I have indicated, these were, in general, two: that the Review Division did not address the question before it; and that it did not give sufficient reasons for its conclusions. (d) The duty of the Review Division is set forth essentially in s43 of the Act. It is, in essence, to review the decision given by the judge on the evidence before him, in the manner indicated by the Act. That review will involve, in the ordinary sense, a rehearing and reconsideration of the matter. The submission made suggests, I think, that the Review Division did not do this but merely reviewed the judge's decision. It did not, the suggestion was, review the evidence. Ido not think that that is a correct assessment of what the Review Division did. At the risk of oversimplification, the position was that there was a serious conflict of fact as to what, in relation to the matters complained of by Ms Kilfoyle, had occurred. If the evidence of Ms Kilfoyle was accepted, the complaint was made out: if the evidence of Mr Minter and his witnesses was accepted, it was not. The Review Division had before it the long and detailed judgment of Cooper DCJ and, inter alia, detailed written submissions for Mr Minter. It was not necessary for it to review the facts in detail because of the way in which the matter had been dealt with by Cooper DCJ. His Honour had, affected by the demeanour of the witnesses, accepted the evidence of Ms Kilfoyle and found the evidence of Mr Minter lacking in credibility. He either rejected or was able to put aside the evidence of Mr Minter's witnesses. In those circumstances, the Review Division could not find for Mr Minter and against Ms Kilfoyle unless it could, within the accepted principles, put aside the judge's findings of fact. The Review Division therefore directed its attention to that matter. Smyth DCJ in the majority judgment stated the relevant principles with appropriate accuracy. The findings of the judge could not be put aside unless he had, to put the matter compendiously, misused his advantage. Smyth DCJ concluded that he had not. His Honour did not examine in detail the reasons suggested for the submission that Cooper DCJ had misused his advantage. In the context, I do not think that it was necessary for him to do so. Subject to what I have already said, those submissions involved inconsistencies between the oral and written statements of the witnesses. There was, in my opinion, clearly nothing of the nature of the inconsistencies referred to in, eg, Voulis v Kozary and similar cases. In my opinion, therefore, this submission has not been made out. (e) It was then submitted that Smyth DCJ had not given reasons for his decision. His Honour's decision extended over some ten pages. The submission was in effect that, though reasons were given, they were not adequate. 10 UNREPORTED JUDGMENTS The principles to be applied have been referred to. The main thrust of the submission was the implication that the judge did not analyse the inconsistencies or otherwise pursue in detail the question whether the judge had failed to use the advantage which he had. Generally for the reasons that I have given, I do not think that it was necessary for him to do so. It is plain why Smyth DCJ decided as he did. (3) Discretion: Because of the conclusions which I have detailed, it is not necessary to consider this question. But, in view of the submissions made, I should state that it does not follow that, if errors of law of the kind alleged had been established, prerogative relief would be granted. There may be a right of appeal against any order made against Mr Minter: the present relief is sought before the statutory process is concluded. That does not prevent the possibility of relief at this stage. But whether relief should be granted remains for consideration. I express no opinion upon this matter. lam therefore of the opinion that the plaintiff should not have the relief sought. The summons should be dismissed with costs. Clarke JA The claimant and three other officers were charged before the PoliceTribunal of New South Wales with a number of charges of misconduct. Those charges were heard by the Tribunal constituted by HL Cooper DCJ during February 1991 and on 5 March 1991 Cooper DCJ gave judgment in which he made findings adverse to the claimant and one other officer. His Honour's findings in respect of the other two officers were favourable. He did not, however, find all three charges which had been laid agaInst the claimant made out. One he dismissed. The two that he did find proven were that the claimant conducted himself in an indecorous manner towards Constable Geraldine Kilfoyle on 26 June 1990 and assaulted the same officer on 27 June 1990. Having made that determination the tribunal recommended to the Commissioner of Police that the claimant be dismissed from the New South Wales Police Force. The claimant appealed against the determination of the Tribunal pursuant to s43 of the Police Regulation (Allegations of Misconduct) Act 1978 ("the Act') and in his notice of appeal enumerated the following grounds: (a) I am not guilty of the charges; (b) the evidence disclosed no offence; (c) the determination is bad and contrary to law; (d) the determination is against the evidence and the weight of the evidence. In describing the grounds of appeal in that manner the claimant closely followed the enumeration of possible grounds of appeal in s43 of the Act. His appeal was duly heard by the Review Division of the Tribunal constituted by Staunton CJ DC, Smyth and Wall DCJJ. By majority the Review Division dismissed the appeal and the claimant has sought orders from this Court quashing the determination of the Tribunal in its original jurisdiction and the decision of the Review Division upon the grounds that errors of law affected both decisions. Although this Court is solely concerned with the question of whether there were errors of law sufficient to require it to quash the determination and decision made below the nature of the errors upon which the appellant relies makes it desirable that I refer in a little more detail to the charges and the course of proceedings. On 28 June 1990 Mr Stephen Kilfoyle, the husband of the complainant and a former member of the Police Force, attended Grafton Police Station and lodged a complaint regarding the conduct of each of the officers charged towards his WARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOR (Clarité JA) wife, a member of the Police Force. The background to the complaint was that on 26 and 27 June 1990 the complainant, Constable Kilfoyle, and the four officers charged Were required to travel from Grafton to Coffs Harbour in a departmental vehicle to attend departmental examinations. The complainant alleged that on both days two of the officers charged, the claimant and Constable Metcalf, in the presence, and with the tacit concurrence, of the other two persons charged, subjected her to repeated indecorous behaviour which included molestation, comments of an explicit sexual nature and requests for sexual favours. She further alleged that on the morning of 27 June the complainant assaulted her. Most of the conduct of which the complainant complained on 26 June 1990 occurred while both the claimant and complainant were in the vehicle being drive to and from Coffs Harbour. There was, however, one incident which occurred in a lingerie shop and which was regarded by HL Cooper DCJ as, in its context, quite serious. According to the complainant she walked into the lingerie shop while waiting for the other officers and was followed into it by the claimant. She alleged that he took hold of a see-through lace body suit (called a Teddy) which was then hanging on a coat-hanger on a rack and said to the complainant: "This would look nice on you Gerry". She said that shortly thereafter the claimant and another officer were asked to leave the shop as one of them was eating food. This incident was regarded by HL Cooper DCJ as constituting indecorous conduct. This finding was, I hasten to add, made in a context in which his Honour had found that the claimant had been guilty of indecorous conduct towards the complainant on the journey between Grafton and Coffs Harbour in that he, and another officer, had used disgusting and suggestive language in order to humiliate the complainant. It was also asserted that the claimant had behaved in an indecorous manner on 27 June when they were both travelling between Coffs Harbour and Grafton but his Honour was not satisfied that the conduct alleged had been established and found that charge not proved. He did, however, find that on 27 June the claimant assaulted the complainant, by striking her three times on the back of the head. In his lengthy and careful judgment his Honour subjected the evidence of all witnesses to very careful analysis. He noted that in the main the evidence of the complainant was denied (or at least not admitted) by the evidence of all four of the charged officers. In three of the instances about which complaint was made there was evidence given by independent witnesses which in part supported the complainant and in part contradicted her evidence. As his Honour noted the determination of whether the charges had been proved depended, to some extent, upon his view of the credibility of the respective witnesses. His Honour thought that there was a seed of truth in the complainant's allegations but also considered that that seed had been embellished by exaggerated and untrue facts so as to create a plausible but inaccurate series of allegations against the respondents. His Honour did not, however, determine whether the embellishment was conscious or sub-conscious. Having expressed those conclusions his Honour considered the detail of the criticisms made about the complainant and noted that there were aspects of her evidence which initially tended to raise doubts as to the credibility of her complaints. Having considered the whole of her evidence in chief and cross-examination his Honour concluded that the substance of many of the complainant's allegations were true but that there had been embellishments and some 12 UNREPORTED JUDGMENTS exaggeration which had developed over a period of about eight or nine months and which his Honour put down,in part, to the stress she suffered on 22 and 27 June. On the other hand HL Cooper DCJ formed a strongly adverse view of the claimant and the other officer against whom a determination of guilt was made. He expressed the view that they were both transparent liars. Notwithstanding this conclusion his Honour did not simply reject their evidence out of hand. He carefully analysed each of the complaints made by the complainant, and there were many, and weighed the evidence of all the witnesses, including the independent witnesses, relating to those complaints. This approach to his task resulted in findings favourable to the complainant in respect of some allegations and adverse to her in respect of others. Although I may not agree, with respect, with every word written by his Honour I am bound to say that the judgment reflects a conscientious, careful and analytical approach to a case which depended solely upon the resolution of conflicting evidence. The nature of the conduct found proven against the claimant can best be illustrated by reference to statements made by HL Cooper DCJ in his recommendations as to penalties. There he said, inter alia: "Of all the acts which I have found proved as conducting himself in an indecorous manner towards Constable Kilfoyle, the most serious is Minter's conduct in making what can only be described as a disgustingly obscene and indecent suggestion to her whilst in the police vehicle travelling from Coffs Harbour to Grafton on the afternoon of 26 June 1990. This is second in gravity only to the act of assault perpetrated in quite a cowardly manner in the car at the jetty at Coffs Harbour on the morning of 27 June. To my mind Constable Minter demonstrated a course of conduct on 26 June in which he set out to humiliate offend and disgust Constable Kilfoyle. On 26 June his conduct consisted mainly of words reaching their climax in the disgusting and indecent suggestions made to her in the car on the way back to Grafton.... When, however, she drove away in the police car from the jetty on the morning of 27 June his pride and ego were hurt to the extent that he could control himself no more. His disgusting behaviour which, to that stage had been mainly limited to verbal taunts, degenerated into physical violence." In the Review Division Judge Smyth gave the majority decision (Staunton CJ of the DC agreed with Judge Smyth) and supported his opinion with twelve pages of reasoning. The dissenting judge (Wall DCJ) subjected the judgment of Cooper DCJ to an exhaustive analysis and concluded that a number of errors had occurred and that the appeal should be allowed. The main thrust of the claimant's submissions is that there were a number of errors, both of fact and law, in HL Cooper DCJ's judgment and that these were overlooked by the majority in the Review Division of the Tribunal in what was, according to the submission of counsel for the claimant, a cursory examination of an arbitrarily selected number of the claimant's submissions. It was submitted to this Court that the majority in the Review Division of the Tribunal had, in effect, failed to give proper reasons for the decision and had, in addition, made a number of errors of law. Accordingly, it was contended that the decision could not stand. These submissions do not, however, touch the judgment and determination of HL Cooper DCJ. For this reason the claimant also sought to argue that that judgment was itself affected by legal error. There are some difficulties with this latter submission insofar as HL Cooper DCJ resolved what was in every sense a factual dispute and did 80 in a perfectly conventional manner. WARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOR (Clark@ JA) There are two points which should be made clear before I embark on a consideration of the submissions made to the court. In the first place it appears to have been assumed that the appeal to the Review Division of the Tribunal was an appeal in which it was open to the appellant to rely upon alleged errors of fact and of law. Although in the light of s43(4) and (5) it would seem clear that the appeal is in the nature of a re-hearing to be conducted in accordance with the well established principles which, for instance, govern an appeal from a single judge of this court to the Court of Appeal the manner in which s43(1) is expressed raises some doubts in my mind as to the precise content of the grounds on which an appeal can be advanced. However, in this case there has been no argument on this point and it is convenient to proceed upon the assumption that the claimant was entitled to rely on alleged errors of fact and of law in his appeal to the review division. Secondly, because I have concluded that the claimant has failed to make good his assertion that either decision was vitiated by error of law it is unnecessary to consider the question whether if an error of law had been established this Court could, or should, intervene. The claimants two initial submissions were comprehensive ones in which he contended that the Review Division had failed properly to consider and analyse ("rubber stamped" was the expression used) HL Cooper DCJ's decision and the errors which it was said were to be found in it and had therefore failed to perform its statutory task. It was also said that the Review Division had misconceived its jurisdiction and the ambit of its power to review. In this respect it was said that HL Cooper DCJ had in some instances made glaringly improbable findings and in others reached conclusions which were contrary to compelling inferences. In addition a number of specific errors of law were asserted and it is convenient initially to deal with these. In this Court it was submitted that HL Cooper DCJ had erred in law by declining to consider the effect of certain statements made by the complainant to Mr McCombie, a consulting psychologist, upon her credibility. What HL Cooper DCJ said, relevantly, in considering the credibility of the complainant was: "Tt was submitted that the medical records in evidence particularly those of Mr McCombie, the consultant psychologist, show that Constable Kilfoyle, had made a number of irrational statements to him which demonstrate her lack of credibility. I would respond to this submission by saying that Mr McCombie's notes include information given to him by Constable Kilfoyle during the course of therapy sessions including session under hypnosis. In those sessions she was required to say whatever came to her mind whether it was rational or irrational. To use her responses given under these circumstances against her, would be, in my view, quite unfair. " A somewhat similar submission was made to the Review Tribunal. There it was said that HL Cooper DCJ had improperly rejected or disregarded evidence on a perceived discretionary ground of fairness in contravention of the rule that it is not permissible for a tribunal determining civil proceedings to decline to receive evidence on such grounds. This submission was accepted by Wall DCJ who found that HL Cooper DCJ misdirected himself on the proper use of this evidentiary material and had therefore committed an error of law. The majority obviously did not agree. 14 UNREPORTED JUDGMENTS I am prepared to assume, without deciding, that a refusal to consider the statements made by the complainant to Mr McCombie on the issue of her credibility would constitute an error of law. However, I am unable to accept that HL Cooper DCJ did fail to consider that evidence. The evidence establishing that the statements had been made was admitted without objection and his Honour adverted to it on the issue of credibility. It cannot therefore be said that HL Cooper DCJ rejected the evidence on discretionary, or any other, grounds. Furthermore it is clear that the evidence was relevant to the complainant's credibility and this was undoubtedly recognised by HL Cooper DCJ. In those circumstances for the claimant to establish that an error of law occurred he would have to satisfy the court that what the learned judge was saying was that although he had admitted this evidence the circumstances in which the statements were made were such as to persuade him that he should, in effect, treat the evidence as though it did not exist. I do not think that is what his Honour was saying. To my mind the preferable view is that his Honour considered that the circumstances in which the statement was made denied them of any weight on the issue of the complainant's credibility. In other words his Honour considered the evidence but did not find it persuasive. While it may be that not everyone would agree with this view HL Cooper DCJ committed no error of law in adopting it. An attempt was made to bolster the submission by a number of criticisms of the approach to the factual question by HL Cooper DCJ which found expression in the lengthy analysis by Wall DCJ in the Review Division but these submissions misconceived the distinction between error of law and error of fact. In these circumstances I think it is as well to repeat the words of Glass JA in Azzopardi v Tasman-UEB Industries Ltd, (1985) 4 NSWLR 139, at 155-7. There his Honour said: "Tt is dear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White, (1966) 116 CLR 644, at 654. A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date.... It is important, I believe, to remember that whether an error is one of fact or law is determined by legal theory and the theory is the same whether the Tribunal be divided or undivided. Errors may be committed by a Workers' Compensation Judge at any one of three points viz determining the facts by way of primary WARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOR (Clark6 JA) findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality, or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error will, by definition, be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined failed to satisfy a statutory test... will ordinarily be a erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open." The principles enunciated by Glass JA in Azzopardi have been accepted by this Court as a correct exposition of the law for many years and should be applied in this case. I would add that I have taken the trouble to set out portion of Glass JA's judgment for the reason that the arguments in this case have, with respect, proceeded on a much more expansive new of an error of law than is sustainable in the light of Azzopardi. For instance, it was submitted that his Honour HL Cooper DCJ had totally failed to appreciate the strength of certain evidence and the powerful inferences which flowed from it. This it was said, on more than one occasion, constituted an error of law. It is, I hope, clear that the submissions were unsound. Provided that the tribunal of fact correctly defines the test which has to be applied there is no error of law in reaching a factual conclusion by demonstrably unsound reasoning even where that reasoning ignores the probative force of powerful evidence. It follows that I am unable to accept that HL Cooper DCJ erred in law in these respects or that the Review Division was bound, as a matter of law, to reverse his finding. The next ground of complaint asserted that HL Cooper DCJ erred in drawing inferences adverse to Constable Metcalf (the other witness against whom the charge was found proven) from the fact that in question 18 of his record of interview (Exhibit F) concerning the alleged "Teddy" incident he answered "I can't recall that happening", as distinct from giving an emphatic denial. In written submissions produced to the Review Tribunal it was said that: "Ground 12, in essence, makes the complaint that his Honour really made too much of the distinction between making an emphatic denial and making a denial in the terms 'I can't recall that happening'." Even if HL Cooper DCJ did err in this respect, and I do not think he did, there can be no basis upon which it can be said that his error was one of law nor can it be contended that the Review Tribunal was bound, as a matter of law, to decide that he was in error. Quite apart from these factors the point only goes to the credibility of the witness Metcalf who, for quite different reasons, HL Cooper DCJ found unworthy of belief. In these circumstances I can see no possible basis upon which this ground could lead this Court to grant the relief sought in the Summons. The next ground was expressed in these terms: "His Honour erred in assessing the impact on her credibility of psychiatric and other evidence bearing upon her mental and emotional state in a manner which was unduly favourable to Constable Kilfoyle, by adopting circular and faulty reasoning which provided an unsafe basis for judging the consequences on her credibility of the various exaggerations, embellishments, errors and falsehoods which she had made and the irrational thoughts which she had entertained." 16 UNREPORTED JUDGMENTS It was submitted that HL Cooper DCJ had concluded that there was no legitimate foundation for a number of the allegations she made concerning the happenings on the afternoon of 27 June 1990 but had failed to give proper effect to this conclusion. In particular it was said that his Honour failed to give due weight to his conclusion that her evidence about things happening after the assault was unreliable. He should, it was said, have adverted to the possible effect of the assault on her allegations of previous misconduct. The claimant's written submissions to the Review Tribunal amplified this argument. What relevantly appears there is as follows: "There is no rational basis for rejecting her version of events on the basis of a traumatic stress disorder when directed to events after the traumatic stress disorder is said to have been reactivated and yet ignore the capacity of the traumatic stress disorder to distort her recollection of events prior to that reactivation so as to render the later rendition of the story unreliable." This was, no doubt, the proper approach to an appeal in which findings of fact were to be reviewed. While I do not think there is any force in the submission that matters little as the submission goes solely to error of fact. It is not said that his Honour misunderstood his task but that the reasoning process by which he reached a factual conclusion was erroneous. The submission raises no error of law by HL Cooper DCJ or the majority in the Review Tribunal who upheld his Honour's judgment. The claimant then asserted that "HL Cooper DCJ erred in drawing adverse conclusions concerning the credibility of the claimant and Constable Metcalf by holding that they were transparent liars judged by the manner in which they gave their evidence when such conclusions were not soundly based or rationally justified;". This ground was also Ground 4(a) before the Review Tribunal. Reduced to its basics the argument was that a judge errs in law if he concludes from the demeanour of a witness he has seen in the witness box that that witness's evidence is not to be believed. This simply cannot be right. It may be that counsel for the claimant was placing greater emphasis on those aspects of the demeanour of the two witnesses in question which his Honour identified and which could not, according to the submission, justify a finding that the witnesses were lying. But whatever way the submission is put it raises no more than a possible error of fact for it asserts no more than that the factual conclusion was based on faulty reasoning. I appreciate the fact some appellate judges have questioned the ability of trial judges to determine the truthfulness of a witness from his demeanour and have referred to psychological research in support of their doubts. Nonetheless it is an undeniable truth that judges who are involved in the resolution of conflicts of fact regularly have recourse to the demeanour of the witness in order to decide which evidence to accept and their right to do so has never been questioned. It is also well established that where a finding of fact made by a judge is based on demeanour it may only be reversed by an appellate court in very limited circumstances (see for instance, SS Hontestroom v SS Sagaporak, 1927 AC 37). No doubt an attack on the reasoning which led a judge to a demeanour-based finding on credibility is a sensible course for an advocate seeking the reversal, on a point of fact, of the decision below but the persistence with this argument before this Court can be explained only upon the basis of a misconceived perception that a factual determination on credibility based on questionable reasoning could properly be described as wrong in law. WARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOR (Clarké JA) That brings me to the two major grounds on which the summons is based. In the first the claimant submits that Smyth DCJ did not properly consider the submissions made to the Review Division, did not analyse the arguments which were put orally and in writing and purported to give reasons which, upon analysis, were not reasons at all. In this context it is important to reiterate that the decision by Cooper DCJ depended upon the resolution of a number of conflicts of fact. On the one hand the complainant asserted that a number of incidents had occurred. On the other the four police officers either denied or did not admit that those incidents had occurred. The determination of the Tribunal depended upon a conclusion as to what evidence should be accepted on each of the issues raised. Once HL Cooper DCJ decided to accept the evidence of the complainant on, for instance, the assault incident then it followed, as a matter of course, that the allegation had been made out. The difficulty in the case was not its legal complexity but in determining whether as a matter of fact the complainant's evidence should be accepted in respect of some or all of the incidents. As I have pointed out HL Cooper DCJ gave a very lengthy and careful judgment analysing the evidence and expressing the reasons which led him to accept the complainant's evidence in respect of some of those incidents. When the matter came before the Review Tribunal it was bound to act in accordance with the established principle "that an appellate court should not depart from a finding of fact made by a tribunal of fact which is based on the demeanour or credibility of witnesses unless the finding of fact is inconsistent with admitted or proved facts or is, 'glaringly improbable" (see Brunskill v Sovereign Marine and General Insurance Co Ltd, (1985) 59 ALJR 842, at 844; Dawson and Anor v Westpac Banking Corporation, High Court of Australia, 12 December 1991, unreported; and Voulos v Kozary and Ors, (1976) 50 ALJR, at p 59). Smyth DCJ was conscious of the restraint required of the Review Tribunal particularly as specific findings on credibility had been made partly, at least, on the basis of demeanour. His Honour was also conscious of the detailed nature of the examination undertaken by HL Cooper DCJ into the series of incidents of which the complainant gave evidence. Obviously, he took the view that it was-neither necessary nor desirable to recount in great detail each of the incidents and restricted his consideration to the specific challenges made to the judgment. It is said in this respect that he did not articulate a conclusion in respect of each of the arguments put forward by the claimant and that it follows that he failed to consider those arguments. I am unable to accept this argument. Once his Honour reached a conclusion that HL Cooper DCJ's findings were not contrary to proved facts, were not glaringly improbable and were not tainted with unsatisfactory reasoning his Honour concluded that the appeal should be dismissed. No doubt Smyth DCJ could have expressed his reasons at greater length but in view of the careful attention devoted to the matter by HL Cooper DCJ and the relatively limited area of review I do not think that he was bound to do so nor do I think that the fact that he did not express his reasons at great length demonstrates a failure to consider any of the arguments put by the claimant. I have not overlooked the very lengthy dissenting judgment of Wall DCJ in which his Honour concluded, as I understand it, that the decision of HL Cooper DCJ had been shown to be clearly wrong on grounds not depending merely on 18 UNREPORTED JUDGMENTS credibility. The fact that one of three judges writes at great length does not mean that another judge who has written a much shorter judgment has failed to perform his judicial task. In all the circumstances I am not satisfied that Smyth DCJ failed to appreciate the weaknesses in the complainant's case or the many arguments which were put by counsel for the claimant. The final submission is that the majority in the Review Division misconceived their jurisdiction to review and misapplied the decision in Abalos v Australian Postal Commission, 65 ALJR 11. The submission was put in two ways: First, there was the general submission that the shortness and terms of Smyth DCJ's judgment indicated that he perceived that if a trial judge had looked at a matter carefully then in accordance with Abalos it was not open to an appellate court to interfere. This submission disregards totally his Honour's discussion of Hontestroom, and Voulos and finds no support in any of the material before this Court. Secondly, it was said that HL Cooper DCJ had made findings which were glaringly improbable and which should have led the Review Tribunal to allow the appeal. The particular incident singled out by counsel in his oral argument was the assault which HL Cooper DCJ found proven. It was alleged that this occurred in the motor vehicle when the Complainant was sitting in the driver's seat. She contended that while sitting there she was struck three times on the back of the head by the claimant when he first entered the vehicle. HL Cooper DCJ found that at, or shortly after, the critical time Constable Thompson was sitting in the front passenger's seat, Constable Ede behind the complainant, Constable Metcalf in the rear passenger nearside seat and the claimant in the middle of the rear seat. The finding at first instance was expressed in these terms: "T am comfortably satisfied on the balance of probabilities that what had happened was that as Minter was getting in from the passenger side and before he had actually sat down, he gave three short jabs with his fist to Constable Kilfoyle in the position of the nape of the neck towards the left as she stated in her evidence. It was this which caused her to look around and say words to the effect of 'get lost'. If Minter had administered the three quick blows whilst he was semi standing in the back seat, he could have done so without any difficulty and probably without any of the other occupants of the vehicle noticing it. Their attention could well have been directed elsewhere. " Wall DCJ concluded that this finding was "glaringly improbable". As I would understand it he reasoned to this conclusion in the following manner - Constables Ede, Thompson and Metcalf all denied seeing the claimant hit the complainant and as HL Cooper DCJ found Constable Thompson and Constable Ede to be "credible witnesses overall and worthy to be believed" the complainant's allegations must have been wrong. There are a number of difficulties with this analysis, not the least being that HL Cooper DCJ did not at any stage express a finding that Constables Ede and Thompson were credible witnesses overall and worthy of belief. Indeed in his discussion on the credibility of witnesses HL Cooper DCJ referred only to features of the evidence of those two officers which had caused him concern but which he had ultimately resolved in their favour. Those features did not bear on the point now under discussion and there is no express approbation of them as witnesses of truth. In addition HL Cooper DCJ not only had the advantage of having seen and heard the witnesses give evidence but he had a view of the vehicle in which the police officers had travelled and which no doubt placed him WARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOR (Shelle JA) in a singularly advantaged position to analyse the evidence which had been given in respect of the various positions people occupied at various times in the vehicle. Wall DCJ also said there was no evidentiary basis to support, either directly or by implication, the finding that the assault was committed "probably" without any of the other occupants of the vehicle noticing as their attention could have been directed elsewhere. The possibility that a person in the front seat and other occupants may not have seen an incident which occurred in the car when, or just after, they were taking their positions in the car was, in my opinion, a real one and I am unable to agree with Wall DCJ on this point. After all, as I have sought to demonstrate, Cooper DCJ was in a position of advantage to assess the likelihood that the incident could have occurred without the other officers seeing it. In circumstances where the Tribunal accepted the evidence of the complainant that she had been struck on the back of the head the only explanations for the denial by the other occupants of the incident was that they were not telling the truth or that they had not seen the assault. Thave carefully read the judgments of both HL Cooper DCJ and Wall DCJ on this issue and I am unable to understand how it could be said that the finding of the former judge was glaringly improbable. Indeed I would myself prefer the analysis carried out by HL Cooper DCJ particularly as there is no doubt that the claimant was very angry with the complainant at this time and he admitted thumping the back of the front passenger seat. Although proof of his anger does not establish his guilt of the assault it is a factor which supports in a positive way the version given by the complainant. I conclude that the claimant has failed to make out any of the errors of law on which his claim for relief depends and I would therefore dismiss the summons with costs. Sheller JA I have had the benefit of reading the reasons for judgment of Mahoney and Clarke JJA. I would dismiss the summons substantially for the reasons given by Clarke JA. The Police Tribunal of New South Wales exercising its original jurisdiction was constituted by Cooper DCJ who in his reasons for determination given on 5 March 1991 carefully summarised and evaluated the evidence. He explained his reasons for the findings he made. These findings depended upon his acceptance of part of Constable Kilfoyle's evidence. Other parts of her evidence he did not accept. The process of reasoning which led him to do this he spelled out in detail. He gave reasons, including Constable Kilfoyle's psychological history, for tending towards having some doubts as to the credibility of her complaints. He continued: "However, almost two days of persistent, insistent, tenacious and repetitive cross examination by counsel elicited a much better understanding of the character and thought processes of Constable Kilfoyle. " He explained this in detail and said that the task had been rendered less difficult by the complete transparency of Constable Metcalfe and the transparency to a lesser extent of Constable Minter. The former he described as a transparent liar and of the latter he said: "One would have very little faith in accepting his evidence". However he went on to say: "T do not mean by these remarks to suggest that the sole basis for my findings of fact is the demeanour of witnesses. There are many other factors which are mentioned elsewhere in these Reasons for Determination, but the demeanour of witnesses has tended to confirm the other factors." 20 UNREPORTED JUDGMENTS His Honour's reaction to these witnesses flowed from a process described by Lord Wright in Powell v Streatham Manor Nursing Home (1935) AC 243 at 267 as follows: "as the evidence proceeds through examination, cross examination and re-examination the judge is gradually imbibing almost instinctively, but in fact as a result of close attention and of long experience, an impression of the personality of the witness and of his trustworthiness and of the accuracy of his observation and memory or the reverse. He will not necessarily distrust a witness simply because he finds him inaccurate in some details: he can give such inaccuracy its proper place, particularly if he sees that the witness is tired, or antagonised, or confused, or perhaps impatient, and especially if the matter of the inaccuracy is of minor or collateral importance. But such inaccuracies may appear in a very different light when pointed to as isolated passages in the shorthand notes and abstracted from the human atmosphere of the trial and from the totality of the evidence. The judge will form his impression from the whole personality of the witness.." In Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, McHugh J with whose judgment all other members of the Court agreed, quoted with approval, under the heading "The power of the Court of Appeal" from the speech of Lord Sumner in SS Hontestroom v SS Sagaporack (1927) AC 37 at 47 a passage which ended with the sentence: "If (the judge's) estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be left alone." That is the position even if the trial judge has made a finding of fact contrary to the evidence of a witness and made no reference to that evidence unless the appellate court is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion." Pursuant to s43(1) of the Police Regulation (Allegations of Misconduct) Act 1978 the appeal to the Review Division of the Tribunal was upon one or more of the following grounds: (a) that the claimant was not guilty of the charge; (b) that the evidence disclosed no offence; (c) that the determination was bad and contrary to law; (d) that the determination was against the evidence and the weight of the evidence. Whatever the precise ambit of this jurisdiction the principles to which I have referred apply to its exercise. No member of the Review Division thought otherwise. The majority in reasons expressed by Smyth DCJ applied the principles enunciated by McHugh J and concluded after what was obviously a careful review of the reasons for determination of Cooper DCJ and the submissions put to them on behalf of the claimant that the appeal should be dismissed. They took account of the decision of the High Court in Voulis v Kozary (1975) 50 ALJR 59 and concluded that "the exceptional circumstances which existed in (that case) do not exist in the present case." By this I would take them to mean that they were not satisfied that there was a "glaring improbability about the story accepted" by Cooper DCJ or that the ultimate findings were ones which were not reasonably open on the whole of the material before Cooper DCJ. This is an application for relief in the nature of certiorari against the Tribunal in its original jurisdiction and against the Review Division and for a declaration that the determination of the Tribunal of 5 March 1991 is void. The grounds are WARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOR (Shelfst JA) errors in law by the Review Division in failing to give reasons for rejecting the grounds of appeal relied upon by the claimant together with the written and oral submissions made in support thereof, ignoring grounds of appeal and submissions, resolving the appeal in an inadequate basis and misapplying the decision in Abalos. Ultimately it is asserted that the majority judgment erred in law in failing to adopt the reasoning and reach the same conclusions as those of the dissenting member, Wall DCJ. In the first place I am not satisfied that the majority ignored grounds of appeal or submissions. What they did was to acknowledge, as they were perfectly entitled to do, the carefully reasoned assessment of the evidence by Cooper DCJ. This they accepted. They were not persuaded, applying the appropriate principles, that they should do otherwise. While the Review Division was required to consider the submissions put to it and the evidence relied upon in support of the appeal it was unnecessary for it to refer to all these submissions or this evidence in its reasons for judgment. What is essential is that the reasons exposed the grounds for the decision; Austral Standard Cables Pty Ltd v Walker Nominees Pty Ltd (unreported, Court of Appeal, 4 March 1992 per Kirby P at 5). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273, Mahoney JA, one of the majority, said at 273: "There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if - to adapt the formula used in a different part of the law: see R v Associated Northern Collieries (1910) 11 CLR 378 at 740 - by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted. To require that a judge detail the way in which he has reasoned step by step to his conclusion is, in my opinion, to mistake the nature of the reasoning process." The other member of the majority, McHugh JA, as he then was, at 280-281 said: "If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: ex parte Powter; re Powter (1945) 46 SR (NSW) | at 5. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697 at 701, 713. In Iveagh (Earl) v Minister of Housing and Local Government (1964) 1 QB 395 Lord Denning MR, speaking of a Minister's duty under the Tribunals; and Inquiries Act 1958 (UK) to furnish 'the reasons for the decision' declared that: Sceseees the whole purpose of the enactment is to enable the parties and the courts to see what matters he has taken into consideration and what view he has reached on the points of fact and law which arise. ' If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, 22 UNREPORTED JUDGMENTS other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough." A failure to refer to a submission or some of the evidence may, in some cases, indicate that the judge has failed to discharge the duty which rests upon him or her; see, for example Mifsud v Campbell (1991) 21 NSWLR 725. I do not think that the reasoning of the majority of the Review Division indicates such a failure. In his judgment Smythe DCJ said: "T am satisfied that his Honour Judge Cooper carefully analysed all the evidence which was placed before him and made reasoned decisions as to why he accepted or did not accept the witnesses called before him. It could not be said that he failed to appreciate the criticisms made of Constable Kilfoyle....... Iam of the view that his Honour took into account all matters which he should properly have taken into account and, having carefully observed the witnesses, as they gave their evidence before him, gave careful consideration as to what allegations were proved and what were not." Wall DCJ dissented on the basis of detailed reasons critical of Cooper DCJ's reasons. I have carefully considered his Honour's reasons. With respect it seems to me that his Honour has, to adopt the language of Lord Wright in Powell's case at 266, proceeded to try the case on paper on his own view of the probabilities. I appreciate that his Honour was concerned to consider whether there were glaring improbabilities or findings which could not reasonably be supported by the evidence. He took a less favourable view of the evidence of Constable Kilfoyle and apparently a more favourable new of the evidence of Constable Minter. Woven through this are references to an assertion, which also is assumed in the reasons of the majority, that Cooper DCJ found Constable Thompson and Constable Ede to be credible witness overall and worthy to be believed. This is asserted more than once. No part of Cooper DCJ's reasons are referred to to support it. All that can be said, and this is to say something quite different, is that his Honour expressed himself as not satisfied that the complaints against those two officers were made out. In his judgment Clarke JA has referred to the finding of assault on Constable Kilfoyle while she was sitting in the driver's seat of the motor vehicle and to the conclusion by Wall DCJ that this finding was glaringly improbable. The analysis by Clarke JA makes it plain that Wall DCJ evaluated the evidence and applied to his conclusion an inappropriate epithet. He concluded on his view of the evidence and on the basis that Constable Thompson and Constable Ede were credible witnesses overall and worthy to be believed that the assault was not established. I agree with Clarke JA that there was no basis for saying that the finding of Cooper DCJ was glaringly improbable in the way in which that expression has been used in such cases as Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842 at 844. In my opinion the summons should be dismissed with costs. Summons dismissed with costs. Counsel for Appellant: B GROSS QC and R HOOD Instructed by: TAYLOR and SCOTT Counsel for Respondent: SM LITTLEMORE Instructed by: HK ROBERS, CROWN SOLICITORS OFFICE