Industrial Relations Commission of New South Wales CITATION: Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409 APPELLANT: Bradley George Hosemans PARTIES: RESPONDENT: Commissioner of Police FILE NUMBER(S): IRC 3095 of 2005 CORAM: Wright J President; Walton J Vice-President; Backman J CATCHWORDS: Appeal - Police officer - Application for leave to appeal and appeal - procedural fairness - natural justice - physical impossibility evidence - physical evidence not "objective and unassailable" - application of the rule in Browne v Dunn - findings of fact challenged on appeal - assessment of credit - weighing of evidence - no important question of practice and fairness in proceedings - introduction of new evidence under the Police Act - approach to rules of evidence in Commission proceedings - issues raised on appeal already subject of authoritative pronouncement - no substantial issues of law or principle warranting the grant of leave - leave to appeal refused - appeal dismissed Industrial Relations Act 1996 LEGISLATION CITED: Police Act 1990 formerly the Police Service Act 1990 Austin v NF Importers Pty Limited [2005] NSWIRComm 353 Bigg v New South Wales Police Service (No 2) (1998) 80 IR 434 Box Valley Pty Ltd v Price (2000) 97 IR 484 Browne v Dunn (1893) 6 R 67 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 CGEA Transport Ltd t/a Southtrans v Transport Workers Union of Australia (2001) 110 IR 211 De Simone Consulting Pty Limited v Ison (2000) 97 IR 478 Fox v Percy (2003) 214 CLR 118 Hosemans and NSW Police Service (No 1) (2003) 136 IR 376 Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 CASES CITED: Hosemans v NSW Police Service (No 3) [2005] NSWIRComm 161 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37 King v State Bank of New South Wales (No 2) (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Newton v NSW Police Service (No 2) (1999) 87 IR 66 Oswald v New South Wales Police Service (1999) 90 IR 42 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 2) (1990) 35 IR 60 Starr v Commissioner of Police [2001] NSWIRComm 226 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Van Huisstede v Commissioner of Police (2001) 106 IR 56 HEARING DATES: 10/27/2005 DATE OF JUDGMENT: 11/14/2005 APPELLANT: Mr B Docking of counsel SOLICITORS Walter Madden Jenkins LEGAL REPRESENTATIVES: RESPONDENT: Mr R Kenzie QC and Mr R Reitano of counsel SOLICITORS: New South Wales Police Legal Services JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH Coram: Wright J, President Walton J, Vice-President Backman J Monday 14 November 2005 Matter No. IRC 3095 of 2005 BRADLEY GEORGE HOSEMANS v COMMISSIONER OF POLICE Application by Bradley George Hosemans for leave to appeal and appeal against the decision of Justice Boland given on 27 May 2005 in matter no IRC 1820 of 2003. JUDGMENT OF THE COURT [2005] NSWIRComm 409 1 The appellant, Bradley George Hosemans, has applied for leave to appeal and, if leave be granted, appeals pursuant to s187 of the Industrial Relations Act 1996 from the decision of Boland J given on 27 May 2005 in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161. 2 For reasons which follow, we do not intend to grant leave to appeal. 3 In his judgment, Boland J considered an application made by Mr Hosemans for a review, pursuant to s181G of the Police Act 1990, of an Order made by the Commissioner of Police under s181D(1) of that Act which declared that, having regard to Mr Hosemans' conduct and integrity, the Commissioner of Police did not have confidence in Mr Hosemans' suitability to continue as a police officer. The effect of that Order was that Mr Hosemans was removed from his position of Detective Sergeant with the NSW Police Service. Mr Hosemans alleged that his removal was harsh, unreasonable and unjust. That application had been the subject of earlier proceedings before Haylen J in Hosemans and NSW Police Service (No 1) (2003) 136 IR 376. In those proceedings, Haylen J determined that the removal of Mr Hosemans from the Police Service was not harsh, unreasonable or unjust, and he dismissed the application. On appeal, the Full Bench held that Haylen J erred in the approach he took to the review process that he was required to undertake, and the matter was remitted to Boland J for re-hearing: Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159. 4 On re-hearing, Boland J also held that the removal was not harsh, unreasonable or unjust, and refused to grant relief, stating (at [206]-[208]): It will be apparent that the Commissioner has not made out all of his grounds upon which he relied for loss of confidence in Mr Hosemans. In my opinion, however, they have been sufficiently made out so as to preclude any intervention by this Commission in relation to the Commissioner's removal order. In particular, Mr Hosemans untruthfulness in the witness box is inimical to his role as a police officer and in balancing the interests of Mr Hosemans and the public interest as I am required to do under the statute, the public interest prevails. Accordingly, I find that the removal of Mr Hosemans was not harsh, unreasonable or unjust. I have come to that conclusion with considerable regret because in terms of Mr Hosemans competence and performance as a member of NSW Police it was never put in question and, indeed, Mr Hosemans was a good officer. The irony, I think, is that if Mr Hosemans had not been untruthful in giving his version of the various incidents that occurred on 20 and 21 October 2001 it may have been that his misconduct would not have attracted the sanction of removal because as I have found, there was no assault or attempted indecent assault, although exposure of his penis and his manhandling of a female would have made a less severe penalty problematic. 5 The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. 6 The appellant's principal submission was that leave to appeal should be granted having regard to the "potential denial of procedural fairness ... and the possibility of a miscarriage of justice", citing CGEA Transport Ltd t/a Southtrans v Transport Workers Union of Australia (2001) 110 IR 211 at 220. It was the appellant's submission that Mr Hosemans raised a "physical impossibility" defence to the exposure allegation, and his unchallenged evidence was not only improperly ignored by Boland J, but contrary to the rule in Browne v Dunn (1893) 6 R 67, it was never put to Mr Hosemans, that (as was suggested by Boland J in Hosemans v NSW Police (No 3) at [111]) Mr Hosemans may have stretched his flaccid penis to enable it to be exposed as alleged. 7 The appellant's submission regarding procedural fairness and natural justice contended that Boland J failed to give proper weight to the uncontradicted evidence given by and on behalf of Mr Hosemans, thereby demonstrating error and raising an issue of sufficient importance to warrant the grant of leave to appeal. Specifically, the appellant contended that Boland J improperly rejected affidavit evidence of witnesses who supported Mr Hosemans (such as Farmer and Kelly) which, contrary to the rule in Browne v Dunn, was not challenged in cross-examination, as well as evidence given by Mr Sloan which corroborated Mr Hosemans' evidence, in circumstances where the respondent had called Mr Sloan as a witness and had neither sought to declare the witness hostile or submitted that his evidence should be rejected. 8 Three additional submissions were advanced in support of the appellant's application for leave to appeal. First, the appellant submitted that the questions of law raised by the appeal and the grounds of the appeal "raise serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal". Secondly, the appellant contended that the appeal raised important question of practice and fairness in unfair dismissal proceedings generally and in s181E reviews specifically. Finally, the appellant submitted that leave to appeal is warranted as the grounds on which Mr Hosemans was dismissed and the factual findings at first instance are "serious matters vis a vis the appellant's future employment prospects and could well leave a stigma": Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325. 9 The appellant's submission regarding "physical impossibility" turns on the following finding made by Boland J at paragraph 111(c) in relation to the dimensions of Mr Hosemans' penis and his hand, and his actions with one or the other at the Golf Club: There was evidence about the length of Mr Hosemans' flaccid penis and the width of his hand. It was submitted that it would have been impossible for Ms Parkes to have seen Mr Hosemans' penis out and him "holding it in one hand and flopping it about" because his hand was wider than the length of his flaccid penis. I do not accept this submission. It is quite possible for Mr Hosemans to have held his flaccid penis in his clenched fist with the penis stretched to the extent it was visible in the manner claimed by Ms Parkes. 10 The appellant asserted that the operation of the rule in Browne v Dunn demands that the physical impossibility argument should prevail. There are two aspects to the evidentiary rule in Browne v Dunn: first, it is a rule relating to procedural fairness, that is, that if the evidence of a witness is to be contradicted he or she must be given an opportunity to explain that contradiction. Secondly, it is a rule relating to the weight to be given to evidence not challenged by cross-examination. According to the appellant, both aspects are offended in the present matter: Mr Hosemans was not questioned about whether he stretched his penis; neither was he challenged regarding the measurements he gave in evidence. It was the appellant's submission that the physical evidence was objective and unassailable, and consistent with the principles in Fox v Percy (2003) 214 CLR 118, provided incontrovertible evidence that Mr Hosemans could not have exposed himself. 11 There is no suggestion that his Honour rejected the evidence regarding the length and width of Mr Hosemans' penis and hand respectively. However, it is clear that Boland J rejected the suggestion, properly in our view, that those dimensions wholly excluded the possibility that Mr Hosemans exposed his penis in the manner described. We agree with the respondent that Boland J referred to the appellant's submission regarding physical impossibility and rejected it. In commenting that "it is quite possible for Mr Hosemans to have held his flaccid penis in his clenched fist with the penis stretched to the extent it was visible", Boland J was rejecting the physical impossibility submission, not constructing a new scenario or making an active finding of what occurred. It was open to his Honour to consider the many different ways Mr Hosemans may have positioned his hand vis a vis his penis. To adopt an inflexible approach to the evidence as is proposed by the appellant is, in our view, contrary to the express provisions of the Industrial Relations Act, beyond what is required in unfair dismissal proceedings (and in reviews pursuant to s181E of the Police Act), and sits uncomfortably with notions of common sense and equity. We are satisfied that Boland J weighed the evidence, having regard to the appropriate application of the rules of evidence. 12 We do not consider the argument advanced by the appellant as to physical impossibility to be comparable with that in Fox v Percy. In that case the relevant physical impossibility was confirmed by incontrovertible, objective facts. The same cannot be said in the present matter, where the nature and quality of the evidence is tangibly different to the objective evidence in Fox v Percy. The accuracy of the measurements taken of Mr Hosemans was by no means determinative of his actual behaviour or actions on 20 and 21 October 2001. 13 Further, we do not accept that the rule in Browne v Dunn, to the extent applicable, was misapplied in the present matter. It is clear from s163 of the Industrial Relations Act that the Commission is not bound to act in a formal manner, is not bound by rules of evidence, and is to act according to "equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". The proper application of the rule in Browne v Dunn was discussed in Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 2), where Hungerford J stated (at 69): I respectfully agree that it is appropriate in proceedings before industrial tribunals under the Act to apply the rule in Browne v Dunn , but being careful not to apply it in any absolute or inflexible way, and having very much in mind its true nature according to the authorities. See also Van Huisstede v Commissioner of Police (2001) 106 IR 56 at [131]-[134]. 14 In particular, we are satisfied with the application by Boland J of the rule in Browne v Dunn in relation to the evidence which lent support to Mr Hosemans, including evidence given by Mr Sloane. In rejecting that evidence it is clear, as will be discussed later, that his Honour made an assessment as to the credit and demeanour of witnesses on which his findings were in part based. 15 We are not satisfied that the grounds of appeal advanced by the appellant raise serious issues to be tested such that leave to appeal is warranted. The appellant's Notice of Appeal identifies fifteen grounds of appeal which, in summary, encompassed the acceptance of unreliable evidence (ground 1); the rejection of reliable evidence (ground 9); factual errors (grounds 4, 5, 6, 7, 10 and 11); procedural unfairness and the possibility of a miscarriage of justice (grounds 8, 9 and 12); and misapplication of principle (grounds 2 and 3). 16 The appellant also identified as a ground of appeal (ground 14) that "the Commission made a slip in stating that the appellant tendered the evidence referred to at J[17] sub par (1)", however in his submission noted that the error "is not determinative of the appeal and is mentioned only for clarification". 17 In our view, Boland J made findings that were reasonably open to him on the evidence, in circumstances where his Honour's assessment of the credit of witnesses clearly formed part of the process of weighing that evidence. For instance, of Ms Parkes' evidence, Boland J said "because of the inconsistencies, and some exaggeration, I have been careful in my approach to Ms Parkes' evidence, but I essentially agree with the Deputy Chief Magistrate's view of her overall credit as a witness of truth..." and "I generally accept Ms Parkes as a truthful witness". Of Mr Kelly, his Honour held "I did not find Mr Kelly to be an impressive witness" and "Mr Kelly was an unreliable witness". Of Mr Sloane, Boland J stated "I regard Mr Sloane as an unreliable witness". We are satisfied that his Honour has properly undertaken a balancing process and balanced approach in his consideration of the evidence. 18 We have indicated that we do not accept that there has been procedural unfairness or a denial of natural justice. We are similarly unconvinced by the appellant's submissions regarding misapplication of principle. Specifically, no error is demonstrated in relation to Boland J's assessment of the truthfulness or otherwise of witnesses. The appellant put a lengthy and elaborate submission as to the proper test to be applied for perjury. However that submission was misguided. Boland J did not undertake, and was not required to undertake, an assessment of whether Mr Hosemans perjured himself during proceedings in the Bathurst Local Court. His Honour made an assessment of the believability of witnesses, including Mr Hosemans, based on evidence given before him with a view to weighing evidence and making findings of fact. His Honour made those findings based on the appropriate standard of proof. There are no grounds for disturbing that assessment. 19 Further, no error is demonstrated in the "application and consideration of principle as to the motives for the complainant to lie". Ms Parkes' motives to lie were extraneous to the decision reached by Boland J who held (at [78]): The absence of motive is not determinative of whether Ms Parkes lied about the events of 20 October 2001 but because the applicant squarely raised motive it is necessary to deal with those submissions. 20 What remains is largely a factual controversy. It is not appropriate that leave to appeal be granted to enable the appellant to once again seek to argue his case on the facts. We concur with what was said by the Full Bench of the Commission in Austin v NF Importers [2005] NSWIRComm 136 (at [5]): If an appeal seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, it will face a significant hurdle obtaining leave to appeal. In Box Valley Pty Ltd v Price (2000) 97 IR 484, the Full Bench stated at [4]: In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave. 21 In our view, many of the matters advanced by the appellant as grounds of appeal turn on semantics - for instance whether a witness was intoxicated, moderately affected by alcohol, well intoxicated or highly intoxicated. The fact of a witness's intoxication, however described, formed part of the overall evidence properly weighed at first instance and appropriately so. It is not for the Full Bench on appeal to attempt, by dissecting the evidence in its minutiae, to unravel the process which led to a trial judge's determination. We agree with the respondent's submission that "the nitpicking attack on findings of fact fails completely to come to terms with the totality of those findings which involves gross misconduct on behalf of a police officer of a disgraceful kind which has been the subject of determination by at least two different tribunals of fact". 22 We find little merit in the appellant's submission that the appeal raises important questions of practice and fairness in unfair dismissal proceedings generally and in s181E reviews specifically. It was the appellant's submission that the relevant questions of practice and fairness related to the introduction of evidence as to physical impossibility was new evidence adduced after a successful application under s181G(1)(f) and (2) of the Police Act. 23 It is well established that leave will not usually be granted where the issues in the appeal have already been the subject of authoritative pronouncement: De Simone Consulting Pty Limited v Ison (2000) 97 IR 478 at 482. 24 The proper application of the rule in Browne v Dunn in this jurisdiction is well established: CGEA Transport Ltd t/as Southtrans; Pastrycooks v Gartrell White (No 2) (1990) 35 IR 60. Further, questions of practice and procedure in s181E reviews have been the subject of clear and authoritative determination: Bigg v New South Wales Police Service (No 2) (1998) 80 IR 434; Oswald v New South Wales Police Service (1999) 90 IR 42; Van Huisstede v Commissioner of Police (2000) 98 IR 57; Starr v Commissioner of Police [2001] NSWIRComm 226; Newton v NSW Police Service (No 2) (1999) 87 IR 66 at 80; and significantly in this case, Hosemans v NSW Police Service (No 2). We are satisfied that there has been a proper application of those principles in the present matter. 25 We are not convinced that the present appeal raises substantial or important issues of practice, procedure or principle beyond those which are already settled. 26 There is little doubt that the circumstances surrounding Mr Hosemans' removal from the Police Service may leave a stigma. If there were other sustainable bases to grant leave to appeal that would be significant. However, in the absence of other grounds warranting the grant of leave to appeal, Mr Hosemans' compromised future employment prospects cannot of themselves warrant the grant of leave. In that regard, we concur with Boland J in expressing our regret over the removal of a competent member of the Police Service, but also in reflecting that had Mr Hosemans not been untruthful in giving his version of the events of 20 and 21 October 2001, his misconduct may not have attracted the sanction of removal. 27 The appellant did raise procedural fairness issues in his written submissions. They did not feature significantly in oral addresses. The issues raised do not, of themselves, warrant the granting of leave, having regard to the substantive issues under consideration. However, in adopting this approach we should not be taken as necessarily accepting his Honour's approach to procedural fairness issues in unfair dismissal proceedings and, in particular, his Honour's approach to the appropriateness of providing documents which may assist the officer in properly understanding any allegations made against the officer. In this respect we adopt the approach of the Full Bench in Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37: where serious allegations of misconduct are made against an employee based in whole or part upon source documents said to found those allegations, then it will be essential to notions of procedural fairness that an employee be given access to that material in order to answer any allegation or charge. Orders 28 We make the following orders: 1 Leave to appeal refused; 2 Appeal dismissed. 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