COMMISSIONER OF POLICE vy DONLAN, COMMISSIONER OF POLICE v HANSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and POWELL JJA 20 June 1995, 8 August 1995 [1995] NSWCA 468 GREAT ACT — STATUTORY CONSTRUCTION — s48(4) — STATUS OF REASONS PUBLISHED AFTER DECISION HANDED DOWN GREAT ACT — STATUTORY CONSTRUCTION — s54 — APPEALS ON ERRORS OF LAW — WHEN WRONG QUESTION ASKED — AZZOPARDI v TASMAN UEB INDUSTRIES LTD (1985) 4 NSWLR 139 APPLIED GREAT ACT — WHETHER TRIBUNAL ASKED THE WRONG QUESTION FACTS The two respondents, Donlan and Hanson, were prosecuted and convicted for assault and assault occasioning actual bodily harm. Following their convictions, the two respondents were dismissed from the Police Force. They then appealed to GREAT. Seven days after the completion of the hearing, GREAT gave its decision and published short reasons for that decision. One month later GREAT published a document described as "Reasons for Decision". The substantial ground of appeal to this Court was that GREAT had erred in law by asking itself the wrong question and in basing its decision on the answer to that question. ISSUES 1. What is the status of the reasons GREAT published one month after GREAT gave its decision? 2. Did GREAT ask itself the wrong question? HELD (per Clarke JA; Handley and Powell JJA agreeing) The statutory obligation of GREAT is clearly expressed in s48(4) and it follows that the publication of the later reasons was an act which was not authorised by the law and was of no legal effect. This court is obliged, therefore, to disregard those later reasons. They are of no legal effect and cannot be used to supplement, or explain, the reasons given with the decision. $54 of the GREAT Act properly construed, enables an appellant to appeal against the decision of GREAT whenever an error of law, as explained in Azzopardi, is raised. That will occur, as I have previously indicated, where the Tribunal has asked itself the wrong question. What test should GREAT apply? GREAT's jurisdiction is of a protective nature and GREAT was not concerned with punishment. (per Clarke JA, Handley JA concurring and Powell JA dissenting) Did GREAT pose for itself the correct test? There are indications in the language used in the decision which point in the direction of punishment. On the other hand GREAT placed much emphasis on the answer to the question whether the respondents were capable of rendering valuable police service if allowed to remain in the force. In considering that question great weight to the respondents' previous records, the expressions of opinion of senior Police officers and their community reputation. Having done that GREAT concluded that the respondents were capable of rendering valuable service in the future and for that reason thought that the respondents should have the opportunity to continue in the force. In these circumstances I am unable to conclude that GREAT did, as charged, pose, and answer, the wrong question. 2 UNREPORTED JUDGMENTS (per Powell JA) Far from considering whether, having regard to the objects of protection of the public, maintenance of proper standards of conduct on the part of members of the Police Service and the protection of the reputation of the Police Service, the decision of the Commissioner to dismiss the Respondents was correct, GREAT was concerned to determine whether, in all the circumstances, dismissal from the Police Service was too great a punishment for the offences of which the Respondents had been convicted. GREAT misdirected itself and failed to take into account certain relevant facts. ORDERS Appeal dismissed with costs. Clarke JA These two appeals, which were heard together, concern the reversal by the Government and Related Employee's Appeal Tribunal (GREAT) of orders of dismissal of two policeman each of whom is a respondent. It is accepted that the appeals from GREAT are restricted to the consideration of errors of law (indeed the respondents submitted that the appeals were confined to a limited category of errors of law), nonetheless, it is necessary to refer shortly to the facts in order to provide the background for the consideration of the legal questions which arise. At about 9.30 pm on 28 September 1990 both respondents, Donlan and Hanson who were off duty, were at the Moss Vale Hotel in Moss Vale. There they became involved in a difference or argument with two other customers - Quigg and McIntyre. The argument became heated and the licensee of the hotel ordered the respondent, Donlan, to leave the hotel and he also ordered Quigg to leave by another exit. All four who had been involved in the altercation then left the hotel. A short time later Donlan called out to Quigg and Mcintyre in the street and another argument developed. Hanson then joined them and shortly afterwards the two respondents started to assault the other two men. Mcintyre managed to escape but Quigg was subjected to a brutal assault in which he was punched by Hanson and, when he fell to the ground, kicked. Donlan assisted Hanson and dragged Quigg. As a result of the assault Quigg went to the Bowral District Hospital where he was attended by Dr Flynn. The doctor observed that Quigg had contusions on his forehead, right frontal region, right temporal region, and around the left eye. The doctor also observed swelling over the right cheek bone and thought initially that there was a possible fracture. Quigg's nose was swollen and his left nostril was torn away from his face. Five sutures were required. Quigg also complained of pain to his left wrist and was generally sore over the rest of his body. Dr Flynn was of the opinion that Quigg's injuries were consistent with his having been unlawfully assaulted. The two respondents were prosecuted for assault and assault occasioning actual bodily harm. They pleaded not guilty and, after a hearing, were convicted. In his decision the learned Magistrate found that the assault was premeditated and that both respondents intentionally occasioned actual bodily harm to Quigg. This was a serious finding on any view. Having found the respondents guilty the learned Magistrate stood over the sentencing, having said that he would have to consider imposing a term of imprisonment. Following their convictions the two respondents were dismissed from the Police Force. This could hardly have been thought surprising given the gravity of their proven misconduct. It was the dismissal which led to the appeal to GREAT. UWRAMMISSIONER OF POLICE v DONLAN, COMMISSIONER OF POLICE v HANSON (Clarke JA) The appeals were heard by GREAT which, seven days after the completion of the hearing, gave its decision setting aside the dismissals and at the same time publishing short reasons for that decision. In the course of its decision GREAT said: [1] "This decision and short reasons therefore are published so that the Tribunal's directions may be implemented as quickly as possible. This will enable both the Commissioner and the appellants to know their respective positions. The full reasons for the Tribunal's decision will be published at a later date." One month later GREAT published a document described as "Reasons for Decision" as it had foreshadowed it would do in its decision and original reasons. The substantial ground of appeal to this Court was that GREAT had erred in law by asking itself the wrong question and in basing its decision on the answer to that question. I will return to this legal issue but before doing that I need to consider two questions, the answers to which concern the course that this Court should take. The first question concerns the status of the reasons GREAT published in October 1994, approximately one month after handing down its decision. The appellant has submitted that these reasons are of no legal effect and must be disregarded by this Court. In their written submissions the respondents contended that the court was entitled to regard both sets of reasons as disclosing relevant grounds for the decision which had been published. However, in the light of authorities to which I will refer, the respondents did not adhere to that stand and during his oral submissions senior counsel for the respondents, Mr Gross QC, accepted that the later reasons were of no effect and should substantially be disregarded by this Court. Mr Gross did, however, contend that the court could have recourse to the later reasons as explaining more fully what had been said in a shorthand way in the earlier reasons. In my opinion Mr Gross was correct to abandon the stance which he had initially taken and to accept that the later reasons were devoid of legal effect. The relevant section of the Government and Related Employees Appeal Tribunal Act 1980 ("the GREAT Act") relating to GREAT's obligation to publish a decision in writing supported by reasons is s48(4) which reads: [2] "The decision of the Tribunal in respect of an appeal shall be in the form of an instrument in writing signed by the Senior Chairperson or Chairperson before whom the appeal was heard and shall include the reasons for the decision. This section clearly expresses the obligation cast upon GREAT to publish its decision in the form of an instrument in writing which includes the reasons for that decision. Not only does the Act not expressly reserve to GREAT a power to publish its reasons at a later time than it publishes its decision but s55, which lays down a mandatory requirement that any appeal be made within 21 days after the date of the Tribunal's decision, provides a clear indication, if such be necessary, that the legislative intention underlying s48(4) was that the decision and reasons be published at one and the same time. Furthermore, the powers of GREAT, being a creature of statute, are limited to those powers expressly conferred upon it by the statute. Any attempted exercise of power beyond those conferred by the statute is necessarily of no legal effect. In Ex parte Currie; Re Dempsey and Ors (1969) 70 SR (NSW) 443 this Court said, in a different context, (at 447): 4 UNREPORTED JUDGMENTS [3] "... From a consideration of these provisions, and indeed of the whole tenor of the Act and Regulations, it is clear that the court is intended to exercise only the powers conferred by the statute. It is purely a statutory tribunal subject to the well-recognised limitations of power of such a court. If the power does not flow from the Act as properly construed, it cannot exist. The jurisdiction of an inferior court is defined by the Act of Parliament by which it is constituted or such general provisions of statutes which extend such jurisdiction." The application of those principles led this Court in Palmer v Clarke (1 989) 19 NSWLR 158 to hold. in the context of the District Court Act 1912, and Rules, that, in the District Court, reasons delivered subsequent to the entry of judgment were of no force and effect and could not of themselves be used on appeal to remedy deficiencies in the reasons delivered upon pronouncement of the judgment. That decision was applied to the Solicitors' Statutory Committee constituted by the Legal Practitioner's Act 1898 in Knaggs v Solicitors' Statutory Committee and Anor (No 2) (1992) 27 NSWLR 603. There the public pronouncement of orders in proceedings heard by the Committee was made by a statutory committee constituted differently to the one which heard the proceedings. This Court held there never had been a lawful conclusion of the reference to the statutory committee concerning Mr Knaggs and that the order which was published had no warrant in law In the course of their reasons the court said (at 611): [4] '"Aseries of decisions in this State has emphasised the requirement of courts and tribunals of limited jurisdiction established by statute to adhere strictly to the formalities required by law. Those formalities extend to the publication of reasons and to pronouncing their order. If they are required of courts, with a large penumbra of powers necessarily imputed to courts for the performance of their functions, they are also required of tribunals such as the statutory committee." The statutory obligation of GREAT is clearly expressed in s48(4) and it follows that the publication of the later reasons was an act which was not authorised by the law and was of no legal effect. This court is obliged, therefore, to disregard those later reasons. They are of no legal effect and cannot be used to supplement, or explain, the reasons given with the decision The next question concerns the nature of an appeal from GREAT to this Court. The question arises out of the words used in Pt5 of the GREAT Act dealing with appeals from the Tribunal and a number of decisions which have passed on those words. The relevant Part commences with the heading 'Appeal to Supreme Court on point of law' and there then follows s54-s56 the relevant parts of which read: "54. A person being... may, subject to this part, appeal to the Supreme Court against any decision of the Tribunal on a question of law. [5] TIME FOR MAKING APPEAL ETC [6] 55.(1) An appeal under s54 shall be made within 21 days after the date of the Tribunal's decision on the question of law.... [7] DETERMINATION OF QUESTION OF LAW [8] 56.(1) The Supreme Court shall hear and determine the question of law arising on an appeal under s54..." The breadth of these provisions arose for consideration in Metropolitan Water Sewerage and Drainage Board v Histon and Ors (1982) 2 NSWLR 720. There the chairman of GREAT decided a preliminary question as to the meaning of 'salary in s21(1)(f) of the GREAT Act. The question arose whether an appeal lay under UWRAMMISSIONER OF POLICE v DONLAN, COMMISSIONER OF POLICE v HANSOS (Clarke JA) s54 from that interlocutory decision. On this question, which obviously turned upon the proper construction of the legislative provisions, Samuels JA had this to say (at 725): [9] "It seems to me that the natural meaning of the relevant words in s54 is that an appeal lies against any decision which the tribunal makes on a question of law. My paraphrase is, on reflection, scarcely less pointed than the original language, but the notion which the language conveys is that the decision does not bear what may be its prima facie meaning of dispositive order but is qualified by the succeeding words 'on a question of law' in a way which displaces that prima facie sense. The competing constructions to which s54 might be subject are well conveyed by a case... (Director General of Social Services v Chaney (1980) 47 FLR 80). There, the question was the meaning of the word 'decision' in the context of the Administrative Appeal Tribunal Act 1975 (Cth) s44(1): 'A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision... in that proceeding'. [10] The Federal Court, by a majority, held that 'decision' in that statutory context was to be given 'a restricted meaning and refers to a final decision or ory determination'. [11] Samuels JA went on to point out that s54 was framed in almost exactly "the contrary way". In his view "As a matter of grammar the words 'on a question of law' qualify 'any decision of the Tribunal', and not the words 'appeal to the Supreme Court'." It followed, in his Honour's view, "that the ordinary meaning of this language is that an appeal lies against any decision of the Tribunal which is a decision on a question of law". Hutley JA, who agreed with Samuels JA, thought that it was clear that there was a decision on a question of law whenever the Tribunal decided a question of law, that is, whether before or at the time of giving its decision on the appeal. This construction of the Act widened the ambit of the appeal provisions. Nonetheless, Mr Gross QC, has sought to rely on Histon in support of the proposition that an appeal only lies when the Tribunal expressly refers to a question of law which it proceeds to determine. According to his submission, in Histon the Tribunal expressly raised the question as to the meaning of the word 'salary' in the relevant legislative provision and that was a question of law. Where the Tribunal decided a factual dispute without expressly referring to any legal questions then, according to the argument, no appeal lay to this Court and Mr Gross took the court to some authorities which seemed to provide support for that proposition. Perhaps the high point of his argument was the judgment of Kirby P in Wijesuriya v Director General of the Department of Conservation and Land Management (1994) 54 IR 384. There the learned President said that s54 had been given a narrow construction in this Court and went on to say "effectively, it has been held that the Tribunal must identify a question of law and decide it as such" and quoted Histon's case. This test was expressed by the President in a passage of his judgment which was not part of the ratio. Despite what might be thought to be a very limited appeal right the President concluded that an appeal against the decision of GREAT should be allowed for the reason that in approaching a factual question GREAT asked itself the wrong question. It is not presently fruitful to reflect upon the consistency between the test and its application. Handley JA (at 395) referred to the passage in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at 156 where Glass JA said: 6 UNREPORTED JUDGMENTS [12] "A finding of fact... 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." [13] and reached the same conclusion as the learned President, that is, that the Tribunal had erred in law by asking itself the wrong question. Although, therefore, on one view the case provides superficial support for Mr Gross's submission the judgments do not, upon examination, support the proposition that an appeal lies only when GREAT expressly poses for itself a question of law which it proceeds to answer erroneously. On the contrary it supports the proposition that an appeal will lie where GREATs decision has been affected by an error of law, such as a failure to ask itself the correct question. In my respectful opinion the true effect of s54 of the GREAT Act is to be found in the judgment of Sheller JA in Clisdell vy Commissioner of Police (1993) 31 NSWLR 555 at 559: [14] "However, if in accordance with the general understanding of the expression 'appeal from a decision', one translates 'decision' to 'order' or 'judgment', used in the sense of an act affecting adversely the rights claimed by the appellant, the qualification 'on a question of law' is meaningless. It seems to me, therefore, that 'decision' in s54 is used to include an opinion of the Tribunal on a question of law upon which its action or decision, as generally understood, is based." Further, | would understand the approach of the President In Wijesuriya to be substantially in accordance with this expression of opinion by Sheller JA. Accordingly, I would reject the submission that it is necessary for GREAT expressly to identify a point of law and then furnish its answer to that point before an appeal will lie under s54. In my opinion the section, properly construed, enables an appellant to appeal against the decision of GREAT whenever an error of law, as explained in Azzopardi, is raised. That will occur, as I have previously indicated, where the Tribunal has asked itself the wrong question. I return now to the appellant's fundamental submission which, it will be recalled, is that GREAT asked itself the wrong question. The question which the Tribunal asked itself, according to Mr Porter QC who appeared for the appellant, was "What punishment was appropriate in the circumstances?" This was the wrong question for, according to well established doctrine, the relevant disciplinary jurisdiction invested in GREAT is protective. More specifically, the correct question was whether it was in the public interest and the interest of the Police Service that the respondents should be allowed to continue as police officers. The submission raises two questions. First, what test should GREAT apply and, secondly, did it apply that test in this case? The answer to the first question is straightforward and is in accordance with Mr Porter's submission. GREATs jurisdiction in a disciplinary appeal such as this is of a protective nature. This principle has been laid down in a line of cases relating to the exercise of disciplinary jurisdiction of which New South Wales Bar Association v Evatt (1967) 117 CLR 177, at 183-4 is a good example and has been applied in the context of a Commonwealth policeman in Hardcastle v Commissioner of Police (1984) 53 ALR 593, at 597 where the Full Federal Court said: UWRAMMISSIONER OF POLICE v DONLAN, COMMISSIONER OF POLICE v HANSON (Clarke JA) [15] "The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish." [16] That seems to me to be a concise and admirable description of the relevant principle. Mr Gross conceded that the test was as stated in Hardcastle but contended that the language used by GREAT should be understood in the context that the Police Regulations (Appeals) Act 1923 referred, in s61, to the punishment of a member of the Police Force. For my part I do not think that that Act is relevant to the problem presently under consideration. The jurisdiction of the tribunal is essentially protective and GREAT was not concerned with punishment. Accordingly, the second question to which I earlier adverted arises - Did GREAT pose for itself the correct test? This is not a simple question given the abbreviated nature of its reasons. Mr Porter contends that it is clear that GREAT considered that it was determining the appropriate punishment for the respondents (who were the appellants before it). He contends that the words used are supportable only upon that basis but in addition has argued that if GREAT had asked itself the correct question it could never have made orders setting aside the dismissals. In other words, having regard to the objective seriousness of the misbehaviour of the respondents the only order which could properly have been made 'to protect the public and to maintain proper standards of conduct by members of the Police Force and to protect the reputation of that body' was one dismissing their appeals. They were not fit, in his submission, to be members of the Police Force and the only rational way in which the reputation of the New South Wales Police Force could have been protected was by maintaining their expulsion from the force. The passage in the judgment upon which the submissions have focused is relatively short and I will set it out in full: [17] "The evidence presented has convinced the Tribunal that each appellant is capable of rendering valuable Police service if given the opportunity. In reaching its decision to allow them that opportunity the Tribunal has given weight to their previously unblemished record of service, the opinions expressed by senior police officers who have knowledge of their previous service, and the regard with which each was held in the community prior to the offences of which they have been convicted. The Tribunal regards those offences as serious and totally inconsistent with their duties and oath of office. However, the Tribunal believes that their actions in committing these offences were an aberration and uncharacteristic of their normal behaviour. While the conduct of the appellants is to be deplored, there are circumstances which satisfy the Tribunal that they should have the opportunity to continue their police service." Mr Porter sought to reinforce his submission by reference to the statement later made in the decision relating to Donlan - "The Tribunal has decided that he should also suffer loss of seniority so as to further bring home to him the seriousness of his conduct of the night in question" - which was, according to his submission, the language of punishment. These submissions cannot lightly be dismissed for, with great respect to GREAT, the result was a surprising one and there are indications in the language used in the decision which point in the direction of punishment. On the other hand GREAT placed much emphasis on the answer to the question whether the respondents were capable of rendering valuable police service if allowed to 8 UNREPORTED JUDGMENTS remain in the force. In considering that question GREAT gave weight to the respondents' previous records, the expressions of opinion of senior Police officers and their community reputation. Having done that GREAT concluded that the respondents were capable of rendering valuable service in the future and for that reason thought that the respondents should have the opportunity to continue in the force. In these circumstances I am unable to conclude that GREAT did, as alleged, pose, and answer, the wrong question. Although I would accept that their approach is not entirely clear I am unable to conclude that the appellant has demonstrated the error of law upon which the success of its appeal depends. For these reasons I would propose that the appeal be dismissed with costs. Handley JA I agree with Clarke JA. Powell JA I have read in draft the Judgment which has been prepared by Clarke JA, with which Judgment and the Orders proposed by his Honour I understand Handley JA to agree. Insofar as, in his Judgment, Clarke JA has dealt with the preliminary questions: 1. what is the status to be accorded to the reasons published by the Tribunal in October 1994; and 2. what must be demonstrated before an appeal to this Court will lie under s54 of the GREAT Act; I agree with his Honour's conclusions, and I would not wish to add anything to his reasons for those conclusions. However, I regret that I am unable to share his Honour's conclusion that the Tribunal did not misdirect itself as to the questions which, in the circumstances, it was required to determine. With respect to those who hold a different view, it seems to me that, in coming to the conclusion which it did, the Tribunal erred in two respects, they being: 1. it failed to appreciate that its role was to review "the Commissioner's" decision - that is to say, to determine whether that decision was correct - rather than to make a fresh and independent decision on the material before it; and 2. it failed to appreciate that the power, the exercise of which by "the Commissioner" was the subject of that review, while it may loosely be described as a power to punish for an offence found to have been proved, is a power conferred on the Commissioner, and is to be exercised by him, for the protection of the public; So far as the first of these matters is concerned, it is sufficient, in my view, to remind oneself of what was said by McHugh JA (as he then was), with whom Priestley JA agreed, in Strange-Muir v Corrective Services Commission of New South Wales!, which was an appeal under s54 of the GREAT Act: - "When the legislature gives to a court the power to review or hear an 'appeal' against the decision of an administrative body, a presumption arises that the court is to exercise original and not appellate jurisdiction: Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283; 64 WN 63. The court hears fresh evidence and determines the case as at the date of hearing on the materials and the law then applicable. The rule is not an absolute one and gives way to any contrary indication in the terms of the statute conferring jurisdiction: Buliders Licensing board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621. The position with respect to the hearing of an appeal by one administrative 1. (1986) 5 NSWLR 234, 249-250) \WRAMMISSIONER OF POLICE v DONLAN, COMMISSIONER OF POLICE v HANSON (Powell JA) body against the decision of another administrative body is perhaps not so clear. No doubt the matter must ultimately be determined by the terms of the statute which confers the right of appeal. Unfortunately, however, legislation rarely gives any definite indication as to the nature of the hearing. In Horne v Locke [1978] 2 NSWLR 88, Sheppard J held that an appeal to an Appeals Board by an employee against - the failure of his employer to promote him had to be determined on the facts which existed at the time of the employer's decision. His Honour reached this decision notwithstanding that the Board had power to hear evidence. He held that the Board could hear evidence of events up to the date of the employer's decision whether or not they were before the employer but could not hear evidence of events after that date. No doubt the learned judge's decision in confining the evidence to the date of the employer's decision was influenced by the terms of the legislation in question. But I think that his Honour was also influenced (at 101) by the inconvenience which might occur if an administrative decision of the employer could be set aside by relying on facts which did not exist at the date of the original decision. Horne v Locke also decided that the issue for the Board was whether the decision of the employer was objectively correct and not whether it was reasonably open on the facts. The decision was approved on this point by Smithers J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 430; 24 ALR 677 at 699. In that case the Full Court of the Federal Court considered the nature of the Jurisdiction of the Administrative Appeals Tribunal in reviewing an administrative decision. That Tribunal has power to admit evidence on the review. Bowen CJ and Deane J said (at 419, C89): 'The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.' This passage brings out the point that, although the Administrative Appeals Tribunal may hear evidence which was not before the administrator, nevertheless it is the correctness of his decision which remains the focus of review. That is to say, the Tribunal does not itself make a new decision but reviews the original decision of the administrator. It is true that these two decisions were not uninfluenced by the terms of the legislation which they were considering. Nevertheless they are consistent with the principle that, in the absence of a contrary legislative indication, the conferring of a right of appeal to an administrative tribunal against an administrative decision is not a grant of jurisdiction to make a fresh or original decision. Uniformity of approach in this area of the law is highly desirable. Accordingly, I think that those two cases would be taken as establishing that there is a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made. The hearing is not de novo. This is so whether or not the tribunal is empowered to hear additional evidence." As is apparent from the relevant passage in its Judgment which Clarke JA has set out on 10-11 of his Judgment, the Tribunal at no time directed itself to the question whether - either in the light of the material before "the Commissioner" in October 1992, or in the light of the material before it in September 1994 - the decision of "the Commissioner" to dismiss the Respondents was correct when it was made; on the contrary, that passage seems to demonstrate that the Tribunal believed that its role was to determine, in the light of the material then before it, 10 UNREPORTED JUDGMENTS in what manner the power which, in October 1992, was conferred on "the Commissioner" by R44 of the Police Regulations 1990, and, in September 1994 was conferred on "the Commissioner" by s179 of the Police Service Act 1990, ought then to be exercised. In so doing, the Tribunal, in my view, misdirected itself. Even if this were not so, and even if it were open to it to make a fresh, or original, decision on the question whether or not the Respondents ought to have been dismissed from the Police Service, the Tribunal, in my view, misdirected itself as to the matters relevant to be considered before making that decision. It is to be remembered that the power to dismiss from the Police Service is a power which, in October 1992, was to be found in that part of the Police Regulation 1990 which dealt with "Discipline", and which is now to be found in "Pt9 - Discipline of Members of the Police Service of the Police Service" of the Police Service Act 1990. It is also to be remembered that the power was, and is, one which may be exercised in any case in which a departmental charge - which, if denied, is, in the usual case, to be dealt with by the Police Tribunal (Police Service Act 1990 s174) which must make a recommendation as to "the penalty" appropriate to be applied (s175(1)), and which recommendation must be taken into consideration by, although it does not bind, "the Commissioner" (s175(3)) - or a criminal charge, against a police officer is duly proved (Police Service Act s178-s179) whether, or not, in the case of a criminal charge, the relevant court has proceeded to a conviction. While it might be possible in the case of a departmental charge involving disciplinary proceedings to characterise the power as a power to impose a penalty, or punishment, for an offence, the fact that the power is also exercisable in respect of an offence for which a court may impose, or has imposed, a penalty, or punishment, makes it clear that the true objects for the attainment of which the power was granted, and for which it is to be exercised, is, not punishment, but the protection of the public, to maintain proper standards of conduct on the part of members of the Police Service and to protect the reputation of the Police Service (see, for example, Hardcastle v Commissioner of Police.? The passage from its Judgment which Clarke JA has set out on 10-11 of his Judgment, in my view, makes it clear that, far from considering whether, having regard to those objects, the decision of "the Commissioner" to dismiss the Respondents was correct, the Tribunal was concerned to determine whether, in all the circumstances - including those matters personal to each of the Respondents - dismissal from the Police Service was too great a punishment for the offences of which the Respondents had been convicted. In proceeding in this way, the Tribunal, in my view, not only misdirected itself, but failed to take into account the facts: - 1. that the offence of assault occasioning actual bodily harm is a felony carrying a maximum penalty, following a conviction on indictment, of penal servitude for 5 years, or if dealt with summarily, imprisonment for 2 years; 2. common assault, although a misdemeanour, carries a maximum penalty of imprisonment for 2 years if dealt with on indictment, or 12 months if dealt with summarily; 3. although each of the Respondents claimed that, on the night in question, he acted solely in self-defence, the magistrate found that the Respondents had acted in concert deliberately to assault the victim; 2. (1984) 53 ALR 593,597 \WRQMMISSIONER OF POLICE v DONLAN, COMMISSIONER OF POLICE v HANSON (Powell JA) 4. having delivered his Judgment and found the Respondents guilty of each of the offences charged the magistrate expressed the view that a custodial sentence had to be considered; 5. prior to their being sentenced, the Respondents had been dismissed from the Police Service; 6. in his remarks before imposing sentence, the magistrate said: - "BENCH: The finding of the facts which I made in relation to both the defendants was that it was a joint enterprise. It wasn't a coincidence that the two of them met up together. The circumstances were all the parties had been at the hotel for some time. They were all affected by alcohol, despite the evidence of one of the victims that they considered that the defendants were asserting their authority as police officers when they approached them. I take Into account the fact that the police officers were not on rostered duty, a police officer is always on duty as regards his obligations as a police constable. The police officers must be aware that they have that authority at all times and that the public are also aware of that. This Is a matter whether they were police officers or not, a term of imprisonment because of the circumstances of the assaults, a prison sentence is warranted. I take into account that they had no prior convictions whatsoever and there is affirmative evidence in respect of both defendants of their good character. I note that they both will suffer severely as a result of their loss of employment as police officers. I must take into account that they do not have the ability or claim that say a labourer or a bricklayer might have, that this type of offence might have been more in character with their upbringing and the circumstances and culture in which they worked. A police officer because of the fact that he is a police officer in all his duties should be more conscious of his obligation not to engage in this sort of behaviour. In the circumstances, and in respect of each offence I give the same penalties in respect of each offence to both police officers. I come to that final result by different courses in respect of each of them but in the upshot it brings the same penalty. One is an older man and has a longer period of prior unblemished record. The other gentleman did not participate as fully in the physical contact. I am satisfied that they both participated by mutual agreement, it was not two individuals acting not in concert with each other. Please stand up Mr Donlan and Mr Hanson. IN EACH MATTER YOU ARE CONVICTED. The court has been informed that you consent to perform community service, is that correct? DONLAN: Yes sir. HANSON: Yes sir. BENCH: The purpose of the order is that as punishment for the offences for which you have been convicted you are to perform unpaid community. This is a direct alternative to going to gaol. If you do not complete the order satisfactorily further action can be taken against you and the order can be revoked. It can also be revoked if you are sentenced for other offences. If it is revoked then you can be sent to prison." which remarks make it clear, in my view, that the principal reason for the Respondents not being given a custodial sentence was their dismissal from the Police Service; 7. the Respondents' appeal to the District Court against conviction was dismissed by Phelan DCJ; 8. if the Respondents had, in fact, been given a custodial sentence, any appeal against "the Commissioner's" decision to dismiss the Respondents from the Police Service would, in my view, have been hopeless; 12 UNREPORTED JUDGMENTS 9. the fact that, because of their dismissal from the Police Service, the Respondents were not given a custodial sentence could hardly justify a finding that "the Commissioner's" decision to dismiss was, in all the circumstances, erroneous. The Orders which, for these reasons, | would favour are: 1. ORDER that the Appeal be upheld. 2. ORDER that the matters be remitted to the Tribunal to reconsideration according to law. 3. ORDER that the Respondents' pay the Appellant's costs of the Appeal but, if qualified, have a certificate under the Suitors' Fund Act 1951. Appeal dismissed with costs. COUNSEL: Appellant: CA PORTER QC and G WILLIS Respondent: BJ GROSS QC and RW WHITE SOLICITORS: Appellant: OFFICE OF THE SOLICITOR NSW POLICE SERVICE Respondent: COHEN AJAKA and WALTER