COMMISSIONER OF POLICE v ANDERSON and ANOR [1996] NSWCA 116

COMMISSIONER OF POLICE v ANDERSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY ACJ, MEAGHER and BEAZLEY JJA 27 August 1996, 21 October 1996

[1996] NSWCA 116

Procedural fairness — effect of drawing incorrect inference from remarks of trial judge.

Offensive language — s4(1)(b), Summary Offences Act, 1988 — language used by a police officer — possibility of language being heard in foyer of police station.

FACTS:

The respondent had been charged pursuant to Police Departmental regulations with using offensive language. The terms of the charge substantially followed s4(1)(b) of the Summary Offences Act, 1988. the charge was heard before the Police Tribunal. At these proceedings, the legal representative for the Appellant failed to give submissions on the question of whether the language used by the respondent could have been heard in a public place. In its decision, the Police Tribunal dismissed the charge on the grounds that it had not been proved that the language could have been heard in a public place.

On appeal, the Appellant submitted that the trial judge, during the proceedings, had led the parties to the dispute to believe that the question of whether the language could be heard in a public place was no longer in issue and, as such, the appellant had been denied procedural fairness.

HELD:

By Mahoney ACJ, Meagher, Beazley JJA:

There has not been a denial of procedural fairness where a legal representative has drawn an inference that is incorrect that a particular point is no longer in issue and, as a result, has failed to give submissions on that point.

By Meagher JA:

On the facts, the language used by the respondent was not legally offensive.

ORDERS:

1. Appeal dismissed with costs.

Mahoney ACJ I agree with the orders proposed by Meagher JA.

The Commissioner of Police seeks prerogative relief against what was done by the Tribunal in respect of one of the charges brought against the police officer in question Sergeant Anderson, namely, that relating to the use of offensive words in circumstances such that they could be heard in a public place, namely, the foyer of the Blacktown Police Station.