Becke and Commissioner of Police (No 3) [2009] NSWIRComm 223

Industrial Relations Commission of New South Wales

CITATION: Becke and Commissioner of Police (No 3) [2009] NSWIRComm 223 This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: Samuel James Alan Becke (Applicant) Commissioner of Police (Respondent)

FILE NUMBER(S): IRC 567 of 2009

CORAM: Staff J

CATCHWORDS: PRACTICE AND PROCEDURE - application for evidence to be given in closed court - public interest - discretion - application granted - Section 162 Industrial Relations Act

Criminal Procedure Act 1986 LEGISLATION CITED: Evidence Act 1995 Industrial Relations Act 1996 Police Act 1990

CASES CITED: A and The Commission for Children and Young People (No 4) 2000 NSWIRComm 220 PDS Rural Products Ltd v Corthorn (1987) 19 IR 153

HEARING DATES: 30 November 2009, 1 - 4 December 2009 EXTEMPORE JUDGMENT DATE: 3 December 2009

Mr D Nagle of counsel Walter Madden Jenkins solicitors LEGAL REPRESENTATIVES: Mr P Skinner of counsel Commissioner of Police

JUDGMENT:

- 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: STAFF J

Thursday 3 December 2009

Matter No IRC 567 of 2009

SAMUEL JAMES ALAN BECKE AND COMMISSIONER OF POLICE

Application by Samuel James Alan Becke for review of an order under section 181E of the Police Act 1990

DECISION EX TEMPORE

[2009] NSWIRComm 223

1 Mr P Skinner of counsel, who appears for the Commissioner of Police ("the respondent"), has made application that Ms "H", the respondent's first witness, give evidence in closed court. Ms H's evidence, according to statements provided by her to the police and tendered in these proceedings, is that the applicant, Mr Becke, sexually and indecently assaulted her in the early hours of 1 January 2008. Mr Becke, in evidence given to the Commission, has denied any wrong doing and in particular that he committed either a sexual assault or an indecent assault on Ms H on the morning of the 1 January 2008. Perhaps for completeness, I should observe in giving this ruling, that criminal charges were initially brought against Mr Becke for sexual assault and an act of indecency, but withdrawn. 2 Mr Skinner, naturally, did not object to the applicant being present whilst Ms H gave her evidence but submitted that the presence of his family could potentially intimidate Ms H. Mr Skinner further submitted that if this was a criminal trial, which he readily recognised it was not, s 291 of the Criminal Procedure Act would apply. That section relevantly provides that any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant is to be held in camera unless the Court otherwise directs. 3 Mr D Nagle of counsel, who appears for the applicant, submitted in opposing the application that firstly the allegations were known to the Commission, and secondly, that the case was proceeding as a criminal trial. I should immediately observe that I reject such a submission. I have been at pains to ensure this hearing proceeds fairly and in accordance with and consistent with the overall requirements of the administration of justice. I am acutely conscious that s 173 of the Industrial Relations Act 1996 ("the Act") provides that the Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form. 4 In an earlier ruling I referred in particular to the observations of the Full Bench in PDS Rural Products Ltd v Corthorn (1987) 19 IR 153, where it was observed at 155, that although the rules of law governing the admissibility of evidence did not apply, commonsense as well as the rules of evidence dictates that only evidence relevant to an issue which requires determination in order to decide the case should be received. 5 Mr Nagle submitted that he was taken by surprise by the application which came some 20 minutes before the normal time to adjourn for the day. I asked Mr Nagle if he wished to consider the application overnight. Mr Nagle accepted this invitation. This morning Mr Nagle submitted that the public interest would not be served, particularly in hearing an application brought pursuant to s 181E of the Police Act 1990 ("the Police Act"), if such proceedings were held in camera or closed court. Furthermore, he submitted that the applicant was entitled to have his family in court to provide support to him. Mr Nagle did not contend that I lacked the power to deal with this application. 6 The relevant section (which neither counsel drew to my attention) applicable in determining this application is s 162 of the Act which is found in Chapter 4 Pt 5 Procedure and Powers of the Commission. Section 162(1) provides the Commission may, subject to this Act, determine its own procedure. Section 162(2) provides, that the Commission is to conduct its proceedings publicly or, if it considers it necessary, privately. In A and The Commission for Children and Young People (No 4) 2000 NSWIRComm 220, Wright J President, dealt with an application by certain media companies for the setting aside of non-publication orders made by the Commission. His Honour determined at [29] - [30] that the Commission's broad powers found in s 162(1) should not be read down. It is clear that s 162 provides the Commission with a very wide discretion in respect of its procedures generally. The legislature has made provision for the Commission to conduct proceedings privately if it considers it necessary. 7 In my view, in determining this application, guidance can be taken, firstly, from the provisions of s 291 of the Criminal Procedure Act 1986, noting, of course, that this is not a criminal trial and is not being conducted as such. It would seem to me to be a curious result if a less restrictive approach was adopted in civil proceedings to giving the type of evidence foreshadowed by Ms H than in other proceedings. The reasons protections are available in criminal proceedings, are obvious. Although Ms H is not a complainant in these proceedings, her evidence goes to alleged sexual misconduct. Section 291(4) of the Criminal Procedure Act provides: The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the part of the proceedings to be held in open court. 8 Secondly, it can be assumed that, like most witnesses, Ms H will find her experience of giving evidence traumatic and harrowing. This will be more so because of her evidence and who she is giving evidence about. 9 In balancing the overall interests of justice between the parties and taking all of the factors into account that I have mentioned in these reasons, I propose to grant the application. Pursuant to s 162(2)(b) I exercise my discretion and order that Ms H give her evidence in private. ----------------------------