CHIDGEY v COMMISSIONER OF POLICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL, COLE and STEIN JJA 28 April 1998, 28 April 1998 [1998] NSWCA 58 APPEAL from a decision of the Government and Related Employees Appeal Tribunal (GREAT) — appointment to a position of employment based upon merit — consideration by GREAT of integrity of police officer — consideration of onus of proof before GREAT. Held: appeal restricted to a question of law (s54 GREAT Act 1980) — GREAT correctly applied the relevant "real possibility" test regarding police integrity as outlined in Waters & Anor v Police Board of NSW (1989) 34 IR 146 — Police Service Act 1990 (NSW); Briginshaw v Briginshaw (1938) 60 CLR 336 followed. Held: GREAT correctly applied the test of: whether there was a real possibility that the officer had taken part in dishonest activity, or had known of it. And if so, it was reasonable to entertain a real suspicion of dishonesty affecting integrity — as outlined in Waters. Cole JA Detective Senior Sergeant Chidgey has appealed from the majority decision of the Government and Related Employees Appeal Tribunal (the Tribunal), which rejected his appeal against the decision of the Selection Committee which had determined that Detective Senior Sergeant Grimmond had the greatest merit for appointment to the position of Inspector, Co-ordinator, Major Crime Squad South. The appeal to this Court is restricted to an appeal from a "decision of the Tribunal on a question of law". BACKGROUND TO THE APPEAL S71 Police Service Act 1990 requires the Commissioner of Police to appoint to the relevant vacant position the police officer "who has the greatest merit". Merit" is defined in s3(1) Police Service Act to mean: "(a) the possession by the person of qualifications determined in respect of the position by the Commissioner, and (b) the aptitude of the person for the discharge of the duties of the position, and (c) the integrity, diligence and good conduct of the person." Pursuant to the requirements of s71 the Commissioner proposed to appoint Detective Senior Sergeant Grimmond. $81C(2) provides that an appeal from that decision lay to the Tribunal, the only ground of appeal permitted being that the appellant has greater merit than the officer proposed to be appointed by the Commissioner The Tribunal considered certain evidence advanced by Detective Senior Sergeants Grimmond and Chidgey and indicted that it considered that Detective Senior Sergeant Chidgey possessed greater merit than Detective Senior Sergeant Grimmond. The Commissioner of Police then indicated to the Tribunal that he wished to lead evidence relevant to the integrity and good conduct of Detective Senior Sergeant Chidgey as, in his view, such evidence gave rise to a real 1. S54 GREAT Act 1980. 2 UNREPORTED JUDGMENTS suspicion that Detective Senior Sergeant Chidgey was not a person of integrity, and thus could not be said to have greater merit than Detective Senior Sergeant Grimmond. The Tribunal received evidence on this integrity issue which comprised a Police Internal Affairs report pursuant to s94A Police Service Act now repealed, and transcripts of the evidence of Detective Senior Sergeant Haken given to the Police Royal Commission. The Commissioner for Police placed no reliance upon the complaints contained in the s94A report. Accordingly nor did the Tribunal. The evidence given to the Royal Commission by Detective Sergeant Haken which related to the appellant addressed four matters: 1. In the CIB Drug Squad, corruption, in the form of taking money from offenders, or when premises were searched, and in the form of manufacturing false evidence, was common place. Not everybody in the CIB Drug Squad actively partook in that corruption but there were very few in the CIB Drug Squad who were known not to partake in that corruption. Detective Senior Sergeant Chidgey was a member of the CIB Drug Squad. Detective Sergeant Haken had worked with Chidgey in 21 Division on gaming and betting. The two had spoken at length. Detective Sergeant Haken said: "T don't think there was any doubt in his (Chidgey's) mind that I would be party to whatever might be going to take place." 2. Detective Sergeant Haken gave evidence that two teams of police officers, one led by an officer called Ross and another by an officer called Knox engaged in the arrest of a man called Landini, that person having been "loaded up" by the police officers by planting drugs on him. Haken testified that all police who were involved in the Landini matter were aware of the fabricated search and arrest. Detective Senior Sergeant Chidgey was a member of the Ross team during the Landini matter.2 3. Detective Sergeant Haken gave evidence concerning the arrest of Mr "Abo" Henry. In essence he said that police officers dropped a pistol into Mr Henry's car when he was stopped to ensure that he was arrested when that pistol was found when the car was searched. Haken did not directly implicate Detective Senior Sergeant Chidgey in any wrong doing in respect of the arrest of Mr Henry but it was said to be an example of the common knowledge within the drug squad, of which Detective Senior Sergeant Chidgey was a member, of corruption by planting of evidence. 4. Detective Sergeant Haken gave evidence to the Royal Commission that Detective Senior Sergeant Chidgey paid him $1000 said to have been received from a person involved in a drug plantation near Putty. According to Haken, Chidgey telephoned him, he went to Chidgey's house and was there given $1000. According to Haken, Detective Senior Sergeant Chidgey told him that he had received the money from Knox, a police officer and team leader. Detective Senior Sergeant Chidgey denied each of the allegations against him. Regarding the Landini matter he further denied that Landini was "loaded up". Supporting this was the fact that Landini pleaded guilty and never contended that he had been "loaded up". Further, other police involved had denied Haken's allegations.3 Regarding the arrest of Mr Henry, he said he had only an observational role. Regarding the $1000 allegation, he additionally said he had 2. Appeal Book, p64T. 3. Appeal Book, p69-p70, p522-p523. URJ CHIDGEY v COMMISSIONER OF POLICE (Cole JA) 3 not spoken with the offenders, and tendered statements from Officers Ross and Knox denying the allegation of receipt of money. Further, Detective Senior Sergeant Chidgey submitted that Mr Haken was a self confessed criminal and liar, a person of ill-repute, a drug dealer, and extortionist, a thief and a perjurer, whose allegations were uncorroborated. Detective Senior Sergeant Chidgey in 1995 had made an affidavit denying Haken's allegations. He had never been contacted by the officers of the Police Royal Commission, and officers of that Commission had advised that no further evidence or action was intended to be taken in respect of Mr Chidgey by the Police Royal Commission. The majority in the Tribunal found: "Having paid due regard to the insufficiencies of Detective Sergeants Haken's evidence (for example, he alleges that it was common knowledge amongst all members of the Drug Squad that corrupt activity occurred without giving evidence as to how all members of the Drug Squad knew this) and having paid due regard to Detective Senior Sergeant Chidgey's denial that he has engaged in corrupt conduct or had any knowledge that corrupt conduct occurred whilst performing duties at the Drug Squad, the Tribunal finds at the very least that on the evidence of Detective Sergeant Haken one could reasonably conclude that if Detective Senior Sergeant Chidgey was not a party to corrupt activity he knew about it and did nothing about it. Detective Senior Sergeant Chidgey's denial of any knowledge of police corruption whilst performing duties at the Drug Squad does not ring true. Similarly, his evidence that all officers performing duties at the Drug Squad whilst he was there were officers of the highest integrity does not ring true. The Tribunal is not convinced that it is a sufficient explanation that Mr Landini was no "loaded up" because he did not complain of this to his solicitor or the court and because he pleaded guilty to the charges. This does not convince the Tribunal that Detective Senior Sergeant Chidgey had no knowledge that certain police officers may have fabricated evidence against Mr Landini. The Tribunal considers that Mr Landini's conduct may be explained on the basis that he considered it was in his better interests to plead guilty rather than to mount a defence to the charges brought against him based upon police fabrication of evidence. Similarly, Detective Senior Sergeant Chidgey's explanation concerning the arrest of Mr Henry and his involvement in the charging of offenders in relation to the plantation on the Putty Road at Windsor that he only had a minimal role to play does not convince the Tribunal that he had either no knowledge of any alleged fabrication of evidence by police officers or that he did not give $1000 to Detective Sergeant Haken. In respect of Detective Sergeant Haken's evidence that Detective Senior Sergeant Chidgey gave him $1000 the tribunal has paid due regard to his denial that he did not do this. However, this is specific evidence of corrupt conduct by Detective Sergeant Haken and notwithstanding Detective Senior Sergeant Chidgey's denials the Tribunal cannot say that it does not give rise to a real suspicion that Detective Senior Sergeant Chidgey might had been implicated in corrupt activity".4 In addition the majority said: 4. Appeal Book, p5300-p532F. 4 UNREPORTED JUDGMENTS "Tt may well be that Detective Sergeant Haken's evidence is not worthy of belief or proof, however, the Tribunal does not have to decide this issue and makes no positive funding as to whether Detective Senior Sergeant Chidgey engaged in any corrupt activity or had personal knowledge that other officers in the Drug Squad engaged in such activity. The issue for the Tribunal is whether the evidence before it is capable of giving rise to a real suspicion as to the lack of integrity of the appellant."5 Further, the majority said: "However, having considered this, Detective Sergeant Haken's evidence concerning Mr Chidgey giving him $1000, the widespread nature of corrupt activity amongst detectives illustrated by evidence to the Royal Commission and Detective Senior Sergeant Chidgey's denial that he had any knowledge of any form of corrupt activity occurring in the Drug Squad gives rise to a real suspicion on the part of the majority of the Tribunal concerning his lack of integrity."6 GROUNDS OF APPEAL The appellant contends the Tribunal reversed the onus of proof by, for instance, "requiring that the appellant convince the Tribunal", that he "had no knowledge that certain police officers may have fabricated evidence against Mr Landini", or Mr Henry, or that he did not give $1000 to Detective Sergeant Haken, or that "the Tribunal cannot say that it (being Haken's evidence of the receipt of $1000 from Chidgey) does not give rise to a real suspicion that Detective Senior Sergeant Chidgey might have been implicated in corrupt activity". In my view there was no reversal of the onus of proof. As the appellant before the Tribunal, the onus lay upon the appellant to persuade the Tribunal that he had greater merit than Detective Senior Sergeant Grimmond. He bore that onus and could succeed only if it was discharged. Material was placed before the Tribunal, apparently without objection, comprising sworn evidence of Detective Sergeant Haken to the Royal Commission. Once that material was received into evidence in the appeal, it was necessary for the Tribunal to give it such weight as it determined it should have in its assessment of whether the appellant had discharged the onus which lay upon him of persuading the Tribunal that he had greater merit than Detective Senior Sergeant Grimmond. In that consideration the denials of the appellant of the allegations made against him by Detective Sergeant Haken of improper conduct, together with all other evidence placed before the tribunal required to be considered. In Waters & Anor v Police Board of New South Wales? Priestley JA said: "The finding by the Tribunal on para2 set out above to the effect that the Tribunal did not have total confidence in the appellant's honesty, because the material in the file gave rise to real suspicion that the appellant acted dishonestly concerning the matter with which he was charged, must fall within the realm of factual findings, not the subject of appeal. The question of law which the appellant sought to raise in this Court was stated in various ways but was in substance, I think, as follows: para2 of the excerpt from the Tribunal's reasons above set out, when summarised, means that the Tribunal, after considering all the material concerning the charge of dishonesty against the appellant, were not satisfied that it was probable that he was guilty of the charge, but also were not satisfied that he was not guilty and thus considered it not a probability but a 5. Appeal Book, p532K-p532Q. 6. Appeal Book, p534H-p534N. 7. (1989) 34 IR 146 at 150-151. URJ CHIDGEY v COMMISSIONER OF POLICE (Cole JA) 5 possibility that he had acted dishonestly; it was a mistake of law in taking into account in consideration of the "merit" of the appellant a mere possibility of a disabling fact concerning the appellant; such a fact could only be taken into account when the Tribunal were satisfied of it in the way described in Briginshaw. Ido not think this argument should be accepted. What the Board had to decide in making the recommendation of Sergeant Edwards, was which applicant had merit greater than that of any other applicant. That decision had to be made with a view to promoting the improvement of the police force and ensuring the maintenance of an efficient and effective police service; s7, Police Board Act. The issue raised by the appellant in his appeal to the Tribunal was whether his merit was greater than that of Sergeant Edwards. That issue also necessarily had to be decided bearing in mind the obligation of the Board under s7 of the Police Board Act. It seems to me that the most important consideration both for the Board in deciding whether to make a recommendation in the first place, or the Tribunal in deciding, in an appeal, whether the appellant has greater merit than the person recommended, is the improvement of the police force and the maintenance of an efficient and effective police service. A promotion inconsistent with those objectives would not be a promotion envisaged by the Police Board In deciding the appellant's appeal, the Tribunal found as a fact that material before it gave rise to real suspicion that the appellant had acted dishonestly. That factual finding, in my opinion, was one the Tribunal were entitled to take into account in deciding the comparative merits of the appellant and Sergeant Edwards. The issue was not whether the charge in question against the appellant had been proved to any standard of proof, although had it been, that fact would have been relevant to the Tribunal's consideration; the issue was the comparative merit of the two sergeants. In regard to the appellant, the Tribunal believed that there was real possibility he had taken part in a dishonest activity. It seems to me that an authority charged with the responsibility of promoting the improvement of the police force and ensuring the maintenance of an efficient and effective police service, in choosing between two applicants for a position, and knowing that in regard to one of them it is reasonable to entertain a real suspicion of dishonesty, although not prepared to conclude positively that dishonesty has occurred, is acting reasonably and in accordance with its obligations, in taking into account the possibility that has been proved before it. Once that conclusion is reached, it seems to me that the appellant cannot succeed on any of the venous ways in which it was said on his behalf that the Tribunal had made an error of law in the way in which it dealt with the question raised by the tender of the Internal Affairs Branch file and the material put forward by the appellant in response to that file."8 Each of Mahoney JA and Hope AJA agreed with the judgment of Priestley JA. However, Mahoney JA addressed some obiter remarks concerning the standard of satisfaction required of the Tribunal when it was relying upon "suspicion" in relation to lack of integrity in weighing the competing merits of two persons. His Honour said: "There are cases, such as the case referred to by Priestley JA in argument: M v M (1988) 63 ALJR 108; in which suspicion alone may be operative but it is, I think, within the intendment of the principle explained in Briginshaw v 8. (1989) 34 IR 146 at 150-151 6 UNREPORTED JUDGMENTS Briginshaw (1938) 60 CLR 336 that where suspicion is to be raised and used in such a case, the proof of it and of the reasonableness of it should be of an appropriately high order''.9 In M v M the High Court said: "Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.10 A similar position pertains here. As Priestley JA made clear in Waters the question of which officer had the greater merit is to be determined against the background of the obligation under the Police Board Act of "promot(ing) the improvement of the police force and... ensur(ing) the maintenance of an efficient and effective police service". It is not necessary for the Police Commissioner, or the Tribunal, to determine whether an appellant has engaged in illegal or inappropriate activity diminishing his integrity. The Commissioner or the Tribunal should not make a finding of illegal or inappropriate activity unless satisfied to the Briginshaw standard. However it is sufficient if there be a "real possibility" of such conduct to cast doubt upon the integrity of the officer in weighing the question which officer has the greater merit. The question for the Tribunal was whether there was a real possibility that the officer had taken part in dishonest activity, or had known of it. If so, it was reasonable to entertain a real suspicion of dishonesty affecting integrity. The sworn evidence of Detective Sergeant Haken was placed before the Tribunal. Haken was not called or required to be called for cross-examination. Detective Senior Sergeant Chidgey filed a written response to the Haken allegations,!! but he also did not give evidence under oath concerning those allegations or his response. There was thus no basis upon which the Tribunal could make any finding against him of improper conduct flowing from Haken's allegations, and it did not do so. Nonetheless it found that the material placed before it did give rise to a "real suspicion as to the lack of integrity of the appellant". Grounds of appeal numbered 1, 5, 6, 8 and 9, allege, in essence, that there was no factual basis upon which the Tribunal could reasonably have reached the view that there was a real suspicion of lack of integrity of the appellant. In reality, they are each a challenge to the ultimate finding of fact made by the Tribunal that having regard to the real suspicion of lack of integrity found by the Tribunal which weighed with it in its determination that the appellant had not successfully demonstrated that he had greater merit that Detective Senior 9. (1989) 34 IR 146 at 147. 10. (1989) 63 ALJR 108 at 110. 11. Appeal Book, p338 and following. URJ CHIDGEY v COMMISSIONER OF POLICE (Powell JA) 7 Sergeant Grimmond. In reality these are challenges to findings of fact and do not give rise to questions of law.!2 Accordingly each of those grounds fail as being prohibited grounds of appeal. Grounds 2, 3 and 4, seek to assert that the Tribunal erred in law in not directing itself to apply nor applying the Briginshaw standard in relation to its consideration of whether there existed a real suspicion of lack of integrity in the appellant in accordance with the passage in the judgment of Mahoney JA in Waters. In my view the Tribunal correctly directed itself and applied the decision in Waters being that of Priestley JA with whom each of Mahoney JA and Hope AJA agreed. That test is whether the Tribunal on the material placed before it could reasonably hold a view that there was a real suspicion of lack of integrity in the appellant thus affecting its decision upon whether the appellant had satisfied it that he had the greater merit. It applied that test. Accordingly those grounds of appeal fail. The appeal should be dismissed with costs. Powell JA I agree with the orders proposed by Cole JA and with his Honour's reasons for so doing. However, against the possibility that this matter may go to another place, I would wish to record one particular matter in order that any thought that the Court has overlooked the matter to which I will refer should be raised in that other place. The members of the Tribunal constituted to hear the present Appellant's appeal to the Tribunal were Ms P Lynch (Chairperson), Mr P Chaplin (a person nominated on behalf of the Commissioner and selected pursuant to the provisions of s13(1)(6), s14 the Act) and Mr M Vaughan (a person nominated on behalf of the Police Association and selected pursuant to the provisions of the Act). The Act provides in s48(3) that the decision of the Tribunal in respect of an appeal shall, except as provided by Pt5 - that is the provisions of the Act providing for appeals to this Court on questions of law be final. The Act further provides in s48(4) that 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 decision. We have been informed and it appears to be accepted on all sides - that, after the completion of the hearing of the appeal, and after the Tribunal had reserved its decision, Ms Lynch suffered a stroke and was hospitalised and did not return to duties with the Tribunal. We have been further informed - and, again, it appears to be accepted - that Mr J L Lynn, the person appointed by his Excellency the Governor as Senior Chairperson of the Tribunal, "found a draft decision apparently prepared by Ms Lynch, formalised this and then published the decision under his own signature, with the concurrence of (Mr Chaplin who was said to be the other member of the majority of the Tribunal)". I would, with great respect, have thought that there was considerable doubt whether it was open to the Senior Chairperson so to act and, in consequence, that there was considerable doubt as to whether the document which was issued over the hand of Mr Lynn was such a decision as was contemplated by s48(4) of the Act. 12. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. 8 UNREPORTED JUDGMENTS That being so, when the list was called over this morning, the Court raised with Mr B J Gross QC, who appears today with Mr H W H Bauer for the appellant, the question whether any point was to be taken in respect of the matters to which T have just referred. At the time, Mr Gross informed the Court that the appellant did not wish to take any point based on those matters and the Court was invited to proceed upon the basis that the document issued over the hand of Mr Lynn was a decision within the meaning of s48(4) of the Act. The Court has accordingly proceeded on that basis at the invitation of the appellant and with the concurrence of the respondent. I record this only because, as I have earlier indicated, I would not wish it to be thought that the Court was unaware of the problem to which the action of Mr Lynn may have given rise. Stein JA I agree with Cole JA and with the additional remarks of Powell JA. GROSS: Your Honours, just one matter if I may with respect. Cole JA treated grounds 2 and 4 as dealing with a Briginshaw point. It's our application that your Honour deal with the point of ground 2 which is whether or not the suspicion has to be a reasonable one, as I think was extensively argued from the bar table here and discussed with the members of the Court. It would be of assistance to everyone and this litigation itself if we did have a ruling on ground 2 in relation to the particular matter of whether ground 2 is established. Cole JA Yes, I do not propose to add to what I have said. Powell JA Nor would I wish to add anything further on that question. The orders of the Court are accordingly those proposed by Cole JA. Appeal dismissed with costs. Counsel for the appellants: B J Gross QC/H W H Bauer Solicitors for the appellants: Walter Madden Jenkins Counsel for the respondent: T Anderson Solicitors for the respondent: Crown Solicitor