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. Mr Porter QC for the Commissioner of Police went, as usual, to the essential point in the application. He submitted, as the ground and the only ground of the application, that there had been a failure of judicial fairness during the hearing of the matter such as warranted relief in the nature of certiorari: see Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; Craig v South Australia (1995) 184 CLR 163 at 175-6. The procedural defect on which he relied was that the Tribunal dismissed the proceeding upon the ground that, if the words complained of were used and if they were offensive, they could not be heard in the public place specified, namely, the foyer of the police station. The submission for the Commissioner of Police was that in the proceeding it had not been in issue 2 UNREPORTED JUDGMENTS but that the words, if spoken, could have been heard in the foyer of the police station and that to dismiss the proceeding upon the basis that they could not involved such procedural unfairness as warranted intervention in this way. The issue between the parties was not whether the Tribunal had dismissed the proceeding on that ground: clearly it did. The issue was whether it was relevantly unfair for it to have done so. In such a case as the present, the onus lies upon the applicant for relief to establish the facts constituting the procedural unfairness: see Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 at 167; cited in Craig v South Australia at 176. See also Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 at 631. In the Court of Appeal it is ordinarily to be expected that there will be no significant contest of facts. Accordingly, parties will be expected to establish factual matters by affidavit evidence filed prior to the hearing: see Pt51 r13A, Pt54. Where conflicts of fact are apt to arise, the Court will expect that counsel for the parties will, prior to the hearing, discuss the differences which would otherwise arise and will achieve, as far as possible, a resolution of such difficulties. In the, hopefully rare, cases in which agreement cannot be arrived at as to the facts, it will, after affidavits have been filed, be necessary for the Court to determine the procedure by which the factual issues are to be determined. In a complicated case it will obviously be undesirable for factual issues to be examined at length before a Court of three judges. Where appropriate the Court may direct the determination of fact to be made by procedures within s51 of the Supreme Court Act or otherwise. Where the issues of fact can be determined without undue delay, the Court may itself hear oral evidence and/or cross-examination upon affidavits. In the present case, the Commissioner of Police had, by affidavit filed prior to the hearing, detailed the facts as he claimed them to be. No affidavit had been filed on behalf of the respondents. At the commencement of the proceeding before this Court, Mr Gross QC for the active respondent sought leave to file an affidavit putting in issue some of the essential matters upon which the Commissioner's application depended. No explanation was offered for the failure to file affidavits or indicate the intention to do so prior to the hearing. It is obviously undesirable that evidence of important facts be produced in this way. In the circumstances of this case, the Court permitted the affidavit tendered by Mr Gross QC to be read and permitted cross-examination of the deponents of the Commissioner's affidavit and that affidavit. It is not to be inferred that the Court will permit evidence to be adduced in this way in other cases. 1. THE FACTUAL FINDINGS: The case for the Commissioner was essentially that the judge presiding at the hearing by the Tribunal gave the parties to understand that it was not in issue but that, if Sergeant Anderson had said what he was alleged to have said, what he said could be heard in the foyer of the police station. To establish this, the Commissioner relied upon the evidence of Mr Pemberton, the police sergeant who had had the conduct of the proceeding before the Tribunal. Mr Pemberton, in his affidavit, referred to what, as he contended, the presiding judge had said and referred generally to the transcript of the proceedings and the material in evidence before the Tribunal. I shall not detail all of the evidentiary material: reference to relevant parts is made in the judgment of Meagher JA which I have had the advantage of reading. The evidence did not establish that the presiding judge had, in terms, informed the parties that that fact was not in issue or that he was satisfied that what Sergeant Anderson had said could be heard in the foyer. URJ COMMISSIONER OF POLICE v ANDERSON (Mahoney ACJ) 3 Mr Pemberton, in his evidence, indicated that he had inferred from what had been said by the presiding judge that such was the case, and that for that reason he had not, by further evidence or in address, sought to support the fact that what was said could be heard in that place. Mr Gillett, who had appeared before the Tribunal as counsel for Sergeant Anderson, was the deponent of the affidavit tendered by Mr Gross QC. He was cross-examined. Mr Porter QC established from him, by a_ brief cross-examination, that at the hearing it had not been a part of Mr Gillett's strategy to establish that the words could not have been heard in the foyer; it was his strategy to suggest that if the words had been said they could have been heard by a number of other police officers in the police room, that those police officers had not heard the words said and that it should be inferred they were not said as alleged. In the cross-examination he conceded that, had he sought to prove that the words could not be heard in the foyer, he might have weakened his case that, if the words were said, they would have been heard by these police officers. Accordingly, Mr Gillett said, he had not submitted in address that the words could not have been heard in the foyer. I accept without reservation that what Mr Gillett said to this Court has been said honestly and in good faith. However, from a reading of the transcript of the proceedings in May 1995, it does not clearly appear that this was the course taken during the proceeding. In answer to a question by the presiding judge, Mr Gillett may be thought to have suggested that his "point" was that what was said could not have been heard in the foyer. Mr Porter QC sought to explain what is recorded in the transcript in another way. Without doubting the honesty of Mr Gillett's evidence, I am not satisfied that it appeared clearly from what Mr Gillett said or did at the trial that this matter was not in issue. If the matter be judged by reference merely to the written evidence, I would conclude that the "point" remained one which was open for decision by the Tribunal. Subject to that matter, I accept as a fact that the presiding judge said words to the effect of those to which Mr Pemberton in his affidavit referred: see para26 of the affidavit. It was there suggested that the trial judge "indicated to Mr Gillett...'the area of the police station is so small that the words, if found to have been used, would surely have been heard in the foyer area". 2. WAS THERE PROCEDURAL UNFAIRNESS?: Counsel were not able to refer the Court to any decision dealing directly with the precise point here at issue. I am not satisfied that the presiding judge intended to inform the parties that the relevant point was not in issue and that he would accept, for the purpose of decision, that what Mr Anderson said could be heard in the foyer of the police station. It may I think be accepted that if, whatever be the intention of the Court or the Tribunal, things be said or done during the course of the proceeding which would lead a reasonable person in the position of the party to conclude that a point was not in issue and if that party, believing it not to be in issue, acted to his detriment in the course of the proceeding, then there may be such procedural unfairness as could warrant quashing of the decision by certiorari. For this purpose it would not depend upon whether the presiding judge intended to convey that to the parties; if what was said or done in fact and reasonably conveyed that to the parties and the parties acted upon it, then procedural unfairness could exist. But the matter is not to be determined merely by whether in fact one or other of the parties drew that inference or formed that impression. I accept for purposes of this proceeding that Mr Pemberton in fact formed the impression that he did: 4 UNREPORTED JUDGMENTS there is, in my opinion, no reason to doubt the truth of his affidavit in this regard. But the matter cannot, I think, be determined by the mere fact that a party has formed a belief. For there to be procedural unfairness, it will ordinarily be necessary that, by reason of what was done by the Court or by a party during the proceeding, it was proper and reasonable for the parties to form that conclusion and to act upon it until the conclusion of the proceeding. But that alone is not satisfactory. as an exhaustive criterion of what will or may give rise to procedural unfairness. In the exigencies of a trial situation inferences can be drawn which, on reflection, are to be seen as not warranted in fact. But those who recall those exigencies, those who can appreciate the pressures on a trial advocate, will recognise that wrong inferences may be drawn at a trial; it is possible to be reasonable but wrong. Accordingly, it is necessary that the inferences be not merely reasonable but, in the judgment of the court of review, proper. I do not mean by this that no other cases can arise: the infinite variety of error is not contained by formulas of this kind. But in the present case I do not think that what was said or done ought reasonably have led the Commissioner of Police or those representing him to conclude that the presiding judge had indicated what is now suggested. For these reasons, I agree with the opinion of Meagher JA that the proceeding should be dismissed with costs. Meagher JA This is an application for prerogative relief brought by the New South Wales Commissioner of Police from a determination of Herron DCJ sitting as President of the Police Tribunal. In that matter, the first opponent, Sergeant NT Anderson was charged with two offences arising from a single incident. According to evidence led at the hearing before the tribunal, the Sergeant shouted to one of his constables, Constable Cowin, "Constable, fucking get over here!" When Constable Cowin then approached the opponent, the opponent shouted to the Constable, "Why aren't these fucking messages on the fucking pad?" Constable Cowin then explained to the opponent that she had not been the only person working in that room throughout the day and that the omission may have been the fault of one of a number of other constables. The opponent then allegedly said to Constable Cowin, "I don't fucking care. I want them on the fucking pad and you put them on at this time." The Constable then proceeded to type the messages on the pad. Constable Cowin claimed that, then, the opponent said to her, "How many fucking messages are you putting on?" Constable Cowin then said, "I don't know. You gave me about half a dozen." To this the opponent is alleged to have replied, "Well you put on three and fucking get someone else to put the others on." The original departmental charges alleged that the word 'cunt' was used by the opponent although Constable Cowin conceded that Sergeant Anderson's use of this word was not directed at her. The first charge, that Sergeant Anderson failed to show respect for his subordinates, was brought pursuant to cl9(4) of the Police Service Regulations, 1990 and was upheld by the Tribunal. For this offence, the opponent was reprimanded. The second charge was also a departmental charge but substantially followed s4(1)(b) of the Summary Offences Act, 1988. It was alleged by the Commissioner that the opponent used offensive language within hearing of a public place, namely, the foyer of Blacktown Police Station. In respect of this charge, Herron URJ COMMISSIONER OF POLICE v ANDERSON (Meagher JA) 5 DCJ found that the opponent had used the language as alleged. His Honour was not satisfied, however, that such language could have been heard in the public area. It is from this second finding that the claimant now seeks relief. The essential submission of the claimant is that the trial judge determined the matter on a point that was not in issue during the proceedings: that is, whether the language used by the opponent could possibly have been heard in the foyer of the station. The claimant has argued that certain conduct of the trial judge during the proceedings, as well as the manner in which the case for the opponent was conducted, led the claimant's legal representative to believe that this point was not in issue and that the Tribunal did not wish to hear submissions on it. As such, the claimant was denied the opportunity of addressing the Tribunal on this point and, thus, was denied procedural fairness. This submission relies upon the affidavit evidence of Sergeant Pemberton who prosecuted the matter before the Tribunal. According to this evidence, during the course of a discussion between bench and bar, his Honour stated that "the area of the police station is so small, that the words if used, would surely have been heard within the foyer area." Unfortunately, this alleged discussion was not recorded in the transcript of the proceedings. In a further passage that is recorded in the transcript, his Honour also asked a witness, "It is only a fairly small area, the whole place?" To this question, the witness replied, "Yes it is." As far as the manner in which the opponent conducted his case is concerned, the evidence of Sergeant Pemberton is that the opponent throughout the proceedings, similarly, did not address the question of whether the language used by Sergeant Anderson could be heard in the nominated public place. There was, then, a presumption by the claimant that the representative for the opponent had conceded that this point was not in issue. In response, the opponent has denied that the point of audibility was conceded by the opponent's representative at the hearing before the Tribunal. Further, it is submitted on behalf of the opponent that the issue was raised by counsel at the hearing and that the claimant's legal representative was labouring under a considerable misapprehension in presuming that there was no need for this point to be addressed. In support, the opponent has provided the affidavit evidence of Mr Garry Gillett, counsel for the opponent at the hearing before the Tribunal. In this affidavit, Mr Gillett indicates that he did not recall the trial judge making the statement alleged by Sergeant Pemberton, that "the area of the police station is so small, that the words if used, would surely have been heard within the foyer area." Mr Gillett's affidavit also denies having conceded the relevant point to the claimant. The deponents of both affidavits were cross-examined on their evidence. In my view, it is clear from counsel's cross-examination of Sergeant Pemberton that Sergeant Pemberton was genuinely under the impression that the question of audibility had been taken out of issue one way or another. I am also of the opinion, however, that such an impression was a mistaken one. One point raised in cross-examination of Sergeant Pemberton, for example. concerned the following passage from the transcript of the proceedings before the Tribunal: "Pemberton: If a person came into the police station and was standing at the enquires counter of the Blacktown Police Station and you were saying those words to Constable Cowin would they be able to hear the words, do you think, in your opinion? Anderson: They did not say anything. 6 UNREPORTED JUDGMENTS His Honour: There is no evidence that anybody was at the counter. Pemberton: I am not suggesting that. His Honour: Well, does it matter?" In cross-examination, Sergeant Pemberton suggested that when the trial judge asked "Well, does it matter?" his Honour was indicating that it did not matter whether the words used by Sergeant Anderson could be heard in the foyer of the police station, regardless of whether a member of the public was present there or not. I think, though, that the more likely interpretation of the trial judge's question is that suggested by counsel for the opponent: that is, that the relevant test for this particular charge did not revolve around the actual presence of a member of the public but the simple possibility that the language in question could be heard in a public place. That this was, at the very least, a possible interpretation of the passage, was not denied by Sergeant Pemberton. Most importantly, and as was admitted by Sergeant Pemberton in cross examination, it is usual that if concessions in relation to an elements of a charge are made by an accused person, then such concessions are made in a formal admission of the relevant element and are recorded in the transcript of the proceedings. The quite trenchant point was made by counsel for the appellant, both in cross-examination of Mr Gillett and in submission, that the opponent's case before the Tribunal, was that words alleged were not in fact used. Thus, Mr Gillett was concerned to make the point that, if the opponent had used the alleged words and with raised voice, then they would have been heard throughout the police station including the public area. To this end, Mr Gillett had called a number of witnesses, each of whom gave evidence to the effect that they had not heard the opponent use the words alleged. Further evidence was adduced to the effect that the station was small. I agree with counsel for the appellant that it probably did not suit Mr Gillet's tactics to raise the argument that the words, even if used, could not have been heard in a public place. This does not, however, amount to a concession on behalf of the accused in respect of that element of the charge. It certainly does not shift the onus borne by the prosecution, to establish all elements of the offence as charged. It is certainly not incumbent upon the accused to conduct his case in a fashion that will facilitate the prosecution's discharge of this onus. In all the circumstances, I believe that the claimant's representative before the Tribunal incorrectly guessed the issues that were outstanding at the hearing and that still remained to be proved. I do not believe that the trial judge denied procedural fairness to any party by deciding the matter upon a view that the prosecution had failed to prove a central element of the relevant charge. I would therefore dismiss the summons with costs. However, even if were minded to uphold the claimant's submissions, I would still dismiss the summons. Without coming to any conclusion on the question, the trial judge commented that the words used by the opponent are "probably not offensive". I would agree with his Honour. Undoubtedly, the behaviour of the opponent was unchivalrous and unbecoming of the office he occupies. This is, however, a long way from the language allegedly used being offensive in any legal sense. The evidence discloses that Sergeant Anderson habitually used the word "fuck" or its derivatives; that everyone else did also; that Constable Cowin herself did so regularly. It was, so a witness said, part of what oxymoronically is called "police culture". Likewise, the word "cunt" used from time to time, although Sergeant Anderson never used this word to Constable Cowin. There was URJ COMMISSIONER OF POLICE v ANDERSON (Beazley JA) 7 no evidence that persons in the public area were ever offended, nor that the public area was frequented by gentle old ladies or convent schoolgirls. Bearing in mind that we are living in a post Chatterly, post-Wolfenden age, taking into account all circumstances, and judging the matter from the point of view of reasonable contemporary standards, I cannot believe that Sergeant Anderson's language was legally "offensive". Beazley JA I have had the advantage of reading in draft the judgments of Mahoney ACJ and Meagher JA. I agree with their reasons as to why the proceedings should be dismissed. I do not consider it necessary to enter into the debate whether the language was offensive. By consent, the orders are: 1. Appeal dismissed. 2. Parties to approach the Registrar to list for hearing the issue of costs. Counsel for the appellant: CA Porter QC with P Saidi Solicitors for the appellant: Office of Solicitor, NSW Police Service Counsel for the respondents: B Gross QC with B Rowe Counsel for the respondents: Walter Madden Jenkins