Industrial Relations Commission New South Wales Medium Neutral Citation: Beck v Commissioner of Police (No 3) [2015] NSWIRComm 1023 Hearing dates: 16, 17 November 2015 Date of orders: 27 November 2015 Decision date: 27 November 2015 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: POLICE – removal of police officer - s.181D Police Act 1990 – review under s.181E Police Act - statutory scheme – powers of Commission – whether hearing de novo ONUS – Onus on applicant to demonstrate decision 'harsh, unreasonable or unjust' – disjunctive terms – each to be considered – onus not carried ­– application dismissed. PRACTICE AND PROCEDURE – self-represented litigant – duty of the court to prevent disadvantage to unrepresented litigant CONTEMPT – whether initiation of civil proceedings acts as a stay on disciplinary or administrative matters within the Police Force – whether administrative action while a civil case is proceeding constitutes contempt of court – held, no contempt. POLICE – discipline – person accepting role of police officer necessarily accepts obligation to obey orders – not open to a police officer to refuse a lawful direction – Commissioner of Police not obliged to accept an officer who resists authority PRACTICE AND PROCEDURE – s.181F Police Act - Commissioner to 'reply to Applicant's case' - whether Commissioner required to put on evidence in reply – no requirement to go into evidence if not necessary to the reply. PUBLIC INTEREST – in each case a matter of fact and degree – public interest in disciplined police force Legislation Cited: Evidence Act 1995 s.140 Industrial Relations Act 1996 Part 6 Police Act 1990 s.181D, 181E, 181F, 181G Cases Cited: Attorney-General v Times Newspapers Ltd (1974) AC 299 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner of Police v Sewell [2008] NSWIRComm 147 Commissioner of Police v Reid-Frost [2010] NSWIRComm 2 Commissioner of Police v Collins [2008] NSWIRComm 162 Hamod v State of New South Wales & Anor [2011] NSWCA 375 Hosemans v Commissioner of Police [2004] NSWIRComm 253 Little v The Commissioner of Police (No 2) (2002) 112 IR 212 McGhee v Commissioner of Police (No 2) [2010] NSWIRComm 165 Neil v Nott [1994] HCA 23; (1994) 121 ALR 148; 68 ALJR 509 Police Service Board v Morris and Martin [1985] HCA 9; (1985) 156 CLR 397 Reid-Frost v Commissioner of Police (No 2) [2010] NSWIRComm 86 Sankey v Whitlam (1978) 142 CLR 1 Victoria v Australian Building Construction Employees' & Builders Labourers' Federation (1982) 152 CLR 25 Vouden v Commissioner of Police [2014] NSWIRComm 25 Category: Principal judgment Parties: Aaron Beck – Applicant Commissioner of Police – Respondent Representation: Mr A Beck in person Mr M T Hutchings (Counsel) File Number(s): IRC 1457 of 2010 Judgment 1. This is an application brought under s.181E of the Police Act 1990 ('the Act') by Mr Aaron Beck. Mr Beck seeks a review of an order made by the Commissioner of Police pursuant to s.181D of the Act removing Mr Beck from the Police Force. He does so on the grounds that the Order providing for his removal was harsh, unreasonable or unjust. 2. Mr Beck has a deep and abiding sense of injustice over a series of events that began in 2006. That sense of injustice and Mr Beck's desire to correct the allegations then made against him, or at very least properly to test the evidence of those who made them, has guided a great deal of his relevant conduct since that time. Indeed, that conduct can properly be seen to have ultimately led Mr Beck to this application before the Commission. 3. That being so, it is appropriate to set out in a succinct form how Mr Beck's sense of injustice has arisen. 4. On 25 September 2006 Mr Beck was, while off duty, seen to be urinating in a public place by two police officers from Kings Cross Local Area Command, of which LAC Mr Beck was a member. Those officers, Sergeants Sullivan and Deas, reported that conduct, first orally and then in writing. Mr Beck has never denied the actual conduct, although he denies the truth of some aspects of the report that was made. 5. An investigation was carried out which did not involve Mr Beck being interviewed. 6. A decision was taken by the Professional Standards Command of NSW Police to institute criminal proceedings against Mr Beck about the matter. Mr Beck became aware of this on 16 November 2006 when he was furnished with a Court Attendance Notice. When Mr Beck read the fact sheet that accompanied the CAN he formed the view that the reporting officers had made false statements. 7. On 20 February 2007 the DPP directed that the criminal proceedings would not be pursued, for reason of the unlikelihood of conviction. On 21 February 2007 the charge was withdrawn and dismissed in the Local Court. 8. On 12 October 2007 Mr Beck was served with a Commissioner's Confidence Submission. That had annexed to it documents relating to the by-then-dismissed criminal proceedings, including the statements made by the two reporting officers. Mr Beck had not seen these before; they had not been served on him with the brief of evidence in the criminal proceedings. The materials strengthened Mr Beck's view that the reporting officers had fabricated and manipulated evidence against him. 9. In February 2008 Mr Beck made a formal complaint against the two officers who had reported the 2006 conduct. In essence, Mr Beck complained that these officers had lied, fabricated evidence, and maliciously prosecuted him. That complaint was referred to the Ombudsman. Mr Beck's complaint was, however, never the subject of proceedings requiring evidence to be given. 10. In September 2008 Superintendent Crandell determined to exercise powers under s.173(2) of the Act to reduce Mr Beck in rank in relation to the conduct. 11. On 9 October 2008 Mr Beck commenced proceedings in the NSW Supreme Court against the State of New South Wales alleging unlawful arrest, unlawful detention and malicious prosecution on the part of the two officers. He also sought prerogative relief against the Commissioner of Police in respect of Superintendent Crandell's decision to reduce him in rank. 12. Mr Beck commenced those proceedings, as he gave evidence before me, in order to 'get to the truth' and 'clear his name'. 13. Unhappily for Mr Beck, both the malicious prosecution proceedings and the application for prerogative relief were initially wrongly decided in his favour by the Supreme Court and damages awarded to him. I say unhappily because Mr Beck was then obliged to go through the process of having the Court of Appeal correct the erroneous decision, with costs against him. 14. In none of the proceedings or investigations, including the Supreme Court proceedings, was Mr Beck afforded an opportunity to test the evidence of the two officers who arrested him and reported him. Given that Mr Beck is convinced that these officers lied and fabricated evidence and that he can prove that if he could only question them, that has rankled bitterly with Mr Beck. 15. Indeed, Mr Beck expressed the view to the Commission that a range of officers within NSW Police, from the Commissioner down, had in different ways deliberately contrived events, including determining disciplinary proceedings so as to provide non-reviewable outcomes, in order to prevent Mr Beck ever getting a chance to examine the two reporting officers. 16. It must be said that the opinion that Sergeants Sullivan and Deas had lied was not one to which Mr Beck alone, in some eccentric singularity, came. Adams J expressed the view that the actions of those officers were 'reprehensible and contumelious' and involved 'the making of false statements.' His Honour's decision was of course wholly overturned by the Court of Appeal, so that finding of fact has no legal force, but the point is that at least one independent observer formed the same view as Mr Beck. 17. Had the 2006 conduct been the conduct for which Mr Beck was removed from the NSW Police, these proceedings might well, depending of course on the evidence advanced, have been different in outcome. But it was not. It must be emphasised that the removal with which this application for review is concerned was not effected for reason of the 2006 conduct, but for other, subsequent conduct of Mr Beck's, which I turn to examine below. Powers of the Commission on review 1. It is useful at the outset to set out the Commission's powers and jurisprudence in a matter of this kind. 2. Section 181D of the Act gives the Commissioner of Police power to remove an officer where the Commissioner no longer has confidence in the officer's suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct. 3. A person who is the subject of a decision to remove him from the Police Force may apply for a review of that decision of the Commission pursuant to s.181E of the Act. 4. Section 181E relevantly provides: 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission… for a review of the order on the ground that the removal is harsh, unreasonable or unjust. 1. A statutory code prescribing in mandatory terms the manner in which the Commission is to conduct the review is set out at s.181F of the Act: 181F Proceedings on a review 1. In conducting a review under this Division, the Commission must proceed as follows: 1. firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, 2. secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, 3. thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. 1. The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. 2. Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: 1. the interests of the applicant, and 2. the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 1. The jurisprudence of the Commission has been developed in a number of decided cases. The approach as it was set out in Little v The Commissioner of Police (No 2) (2002) 112 IR 212 has repeatedly been followed. The proper approach may be summarised in this way. 2. To begin with, the hearing before the Commission is a hearing de novo, not a review of an administrative act: Hosemans v Commissioner of Police [2004] NSWIRComm 253 at [134]. 3. As to the process to be adopted, s 181F requires the Commission to consider sequentially the reasons for the Commissioner's decision to remove an applicant from the Police Service and the cases respectively for the applicant and the Commissioner as to whether the removal was harsh, unjust or unreasonable. 4. The requirement of s 181F(3) that the Commission, amongst other matters, is to have regard to the interests of the applicant and the public interest (taken to include the interests of maintaining the integrity of the Police Force and the fact that the Commissioner has made an order pursuant to s 181D(1)) does not diminish the obligation on the Commission to determine whether the removal of a police officer was harsh, unreasonable or unjust having regard to the principles ordinarily applied in unfair dismissal matters: s.181G has that effect. 5. It follows that even if, on the initial consideration of the Commissioner's reasons required by subs.181F(1)(a) it appears that a decision to remove may have been based on a proper chain of reasoning, the matter does not end there. The Commission is still required to consider the statutory tripartite test, that is, whether the removal was harsh, unreasonable or unjust. 6. The obligation to make out that the decision was harsh, unreasonable or unjust is laid squarely on the applicant, as subs.181F(2) makes expressly clear. If the applicant cannot demonstrate that the order to remove was harsh, unreasonable or unjust, the application cannot succeed. I proceed on the basis that the effect to be given to the words 'harsh, unreasonable or unjust', which are disjunctive terms, is the same as the effect to be given to them in proceedings under Part 6 of the Industrial Relations Act 1996, noting of course the other matters bearing on the conduct of proceedings and the exercise of discretion prescribed in the Act. As it was held in Hosemans, these proceedings are 'essentially the same as the unfair dismissal regime subject to specified modifications.' (at [97], [104]) 7. The Act then sets out prescriptions as to matters the Commission must consider in determining whether an order to remove was harsh, unreasonable or unjust. The Commission must have regard to the interests of the applicant, and must further have regard to the public interest. The interests of the applicant include, but are not limited to, the consequences for the applicant of his dismissal. 8. The public interest is prescribed to include the public interest of maintaining the integrity of the NSW Police Force, and also to include the fact that the Commissioner made the order pursuant to section 181D (1). Considering the public interest will often depend on a balancing of interests, including competing public interests, and will be very much a matter of fact and degree: Commissioner of Police v Collins [2008] NSWIRComm 162 at [58]. 9. It is clear that the requirement to consider the Commissioner's reasons necessarily includes in it a consideration of the processes followed by the Commissioner in coming to the decision to issue the Order: Commissioner of Police v Reid-Frost [2010] NSWIRComm 2; Vouden v Commissioner of Police [2014] NSWIRComm 25 at [508]-[509]. However, it is rare that analogous proceedings under Part 6 of the Industrial Relations Act are determined by procedural matters alone, and it will not be every failure to adhere to the procedures specified by the Act that will require the Commission's intervention. 10. As it was held in McGhee v Commissioner of Police (No 2) [2010] NSWIRComm 165), whilst a procedural failure may of itself render a removal order harsh, unjust or unreasonable, this is only likely to be so in circumstances where there have been very serious procedural failures of some gravity. 11. With all that in mind I turn to the instant matter. Conduct of the proceedings 1. Mr Beck represented himself throughout the proceedings before the Commission. Mr Beck is, with respect to him, an intelligent and articulate man and was able to set out his arguments with clarity. Nevertheless I regarded myself as bound to follow the guidance given by the Court of Appeal in Hamod v State of New South Wales & Anor [2011] NSWCA 375: 'Courts have an overriding duty to ensure that a trial is fair… In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented…' at [309]. 1. In these proceedings that approach led me to admit all of Mr Beck's affidavit evidence over objection, even though throughout it fact and argument were mixed, and to allow him, after he had finished his own case, to be heard at length at different points throughout the Commissioner's case in reply. I then allowed Mr Beck a further reply after the Commissioner's case had been put, a process which is not contemplated by the Act. I took these procedural steps because I wished to be certain that Mr Beck had every opportunity to put his case in full, and to be certain that I had understood his case in full. 2. To his credit, counsel for the Commissioner accepted this approach without demur. Consideration 1. I first turn, as the Act requires, to the Commissioner's reasons for having come to a view that he had lost confidence in Mr Beck as a police officer. 2. They are set out in a Statement of Reasons accompanying the Order. 3. The Statement first sets out a number of matters which occurred between 2003 and 2008 but expressly excludes them from consideration of any loss of confidence. 4. The Commissioner then, beginning at page 12 of his Statement of Reasons, identifies 8 matters which had some bearing on the view that he ultimately formed. He divides them into two groups of 4 matters. 5. The first four are, one, that Mr Beck failed to secure his baton and handcuffs, resulting in their loss. Mr Beck says that these appointments were in fact stolen from his locker at Kings Cross Police Station, not lost. Two, that Mr Beck failed to wear full appointments on operational duty on three days in November 2009; three, that Mr Beck failed to submit a full and timely report about the loss of his appointments, and four, that Mr Beck failed to comply with the Remedial Performance Plan in two regards, the latter of which, the Commissioner says, may be understandable in the light of Mr Beck being confined to his station. 6. The Commissioner then goes on to address four further matters he identifies as Issues 5 to 8. 7. The first is that Mr Beck deliberately filed to comply with his Remedial Performance Plan, refused to comply with direction to follow it, and refused to comply with a subsequent interim management plan. In addressing these matters the Commissioner refers to a number of occasions on which Mr Beck stated that he 'would not be cooperating' and 'would not be participating' in the plans. 8. Issue 6 is that Mr Beck refused to comply with several directions to attend the Region Commander's office in December 2009. 9. Issue 7 is that Mr Beck refused written directions by Inspector Fairfax to attend directed interviews in February 2010. 10. Issue 8 is that Mr Beck failed to comply with directions, including a written direction, to return police notebooks in his possession. 11. In relation to these four latter matters Mr Beck does not, essentially, deny the facts asserted. In his response to the Commissioner dated 5 October 2010 he addresses in detail each of the Commissioner's concerns. 12. He readily agrees, for example, that on 16 December 2009 he told Sergeant Janjic 'I won't be complying with any directions relating to the Remedial Performance Program and I will not be attending the Region Commander's Office,' and when asked to show Sergeant Janjic his work off and duty book, he said that he would not be cooperating and would not provide the book if the Sergeant's request was 'in accordance with the Remedial Performance Program.' He goes on to concede the facts of his refusal to follow the other directions to which the Commissioner has had regard. Indeed, he brought evidence in the Commission to confirm that conduct. 13. Mr Beck says that he was not obliged to follow the several directions raised in these four matters because of the proceedings on foot in the Supreme Court. He held the view that the instructions he was given by police officers supervising him were, given that proceedings were before the Supreme Court, a contempt of court. I return to that proposition below. 14. Mr Beck also says that the four matters to which the Commissioner particularly had regard are relatively minor matters which should have been dealt with at Local Area Command level, and did not warrant the Commissioner's attention. 15. The Commissioner expressed a different view. He said, in his Statement of Reasons: 'Your conduct in relation to issues 5 to 8 appear to have been entirely disrespectful to those tasked to supervise you. As stated in my Notice to you, I expect every officer of the NSW Police Force to act at all times with utmost respect for directions given by those with authority to do so. Your attitude towards senior officers is unacceptable. You have resisted authority, been unable to accept advice or criticism, and caused disruption in the workplace. I now find Issues 5 to 8 to be established; your conduct is deliberate insubordination warranting your removal from the NSW Police Force." 1. I have considered the Commissioner's reasons. What is required of the reasons is that they explain why the decision has been taken: Baker v Commissioner of Police [2015] NSWIRComm 14 at [98]. On their face the reasons here given comply with the requirements of s.181D(4) of the Act, in that they provide a basis for the removal action taken. The matter, as I say above, does not however end there. Mr Beck's case 1. Mr Beck has, as I set out above, and for the reasons I set out above, a strong view that he has been unjustly dealt with from the 2006 incident on, and that he has been deliberately prevented from going behind the reports made about him in 2006. I do not make light of this. I understand Mr Beck's frustration in that regard; to believe that one has been falsely accused, to have that view supported by some anecdotal suggestions, at least, to have suffered damage as a result, and then to be unable by any means to bring to any account those whom one believes has made the false or malicious accusation, is unsurprisingly a very hard thing to accept. 2. Mr Beck's case involved consideration of all of that chain of events, but the focus of Mr Beck's case as to why the decision to remove him was itself harsh, unreasonable or unjust – which is the question that the Commission has to consider - was advanced on two central bases. 3. First, he said that the s.181D referral in 2007 was made to Mr Andrew Scipione not when he was Commissioner of Police, but when he held another rank. He said that Mr Scipione necessarily considered that referral while not the Commissioner, and that as only the Commissioner has the power to form a view that he has lost confidence in an officer, the consideration in his case was necessarily invalid and wrong. 4. It was not said that Mr Scipione issued the s.181D Order which is ultimately the subject of this review when he was not the Commissioner; Mr Scipione was, on the evidence, Commissioner of Police on and from 1 September 2007 and the Order was issued on 30 November 2010. 5. Nor is it said that the show cause notice under s.181D(3)(a) of the Act issued by Mr Scipione on 12 October 2007 was issued when Mr Scipione was not Commissioner of Police. 6. Rather, Mr Beck submits that the referral to Mr Scipione of a 181D notice for consideration necessarily occurred on a date before 1 September 2007, and that therefore Mr Scipione considered the 181D referral when he had no power to do so, not being the Commissioner, who exercises in that regard a non-delegable power. Mr Scipione, Mr Beck said, 'waited until he was Commissioner' before issuing Mr Beck with the show cause notice. 7. It was, accordingly, Mr Beck's case that the statement by Mr Scipione in his Statement of Reasons that Mr Beck was 'referred to me, as Commissioner, for consideration of removal under section 181D of the Police Act' was a false statement, because the referral had not been made to Mr Scipione 'as Commissioner' but at an earlier time. To accept this argument I must find that Mr Scipione has at best recklessly, or otherwise deliberately, misstated the true position in his Statement of Reasons. 8. The s.181D decision to remove which is being reviewed in the instant proceedings before this Commission is not that in relation to which the show cause letter in 2007 was served on Mr Beck. But, he submits, the first s.181D notice was bad for reason that the Commissioner had it referred to him, and therefore considered it, when he was not the Commissioner. Each of the other s.181D notices served on Mr Beck, including that leading to the November 2010 Notice with which the Commission is concerned here, is therefore bad, as each of the s.181D notices sprang from the one before it, so forming an interlocking chain of administrative action. 9. The basis on which it was said that Mr Scipione did not receive the referral when he was Commissioner is as follows. 10. In January 2007 a Commissioner's Advisory Panel was convened with respect to Mr Beck. The relevant commander was A/Superintendent Hayes. At that time there were still criminal proceedings on foot. There was therefore a mandatory s.181D notification to the Commissioner. The Panel recommended that if the Commissioner did not proceed to s.181D action, that there be certain reviewable actions under s.173 of the Act. 11. A/Superintendent Hayes participated in that panel decision; she signed off on the recommendation form on 2 February 2007. 12. In August 2007 Mr Beck was eligible for consideration of promotion to the rank of Senior Constable. A/Superintendent Hayes completed the relevant Senior Constable Promotion Form. She wrote on it, "Has had conduct issues which are now the subject of 181D recommendation", "Constable Beck is awaiting outcome of 181D nomination. This matter is outstanding" and further, "Not recommended at this time pending finalisation of IRP/181D nomination." 13. As I observe above, Mr Scipione, in his Statement of Reasons, asserts that the 181D notification 'was referred to me, as Commissioner'. Mr Scipione became Commissioner on 1 September 2007. 14. Mr Beck's point is that A/Superintendent Hayes has indicated on Mr Beck's Senior Constable Promotion Form that a s.181D 'recommendation' or alternatively 'nomination' was said to be outstanding in August 2007, when the criminal proceedings that gave rise to a mandatory s.181D nomination had been dropped six months before. Someone must have been considering a s.181D in August 2007; A/Superintendent Hayes says so. Mr Scipione says the s.181D nomination was 'referred to me as Commissioner'. He was not Commissioner until 1 September 2007. Accordingly, if it was referred to Mr Scipione in or before August 2007 when he was not Commissioner, his consideration of it was invalid and that rendered the s.181D notice he subsequently issued on October 2007 invalid. As I set out above, the proposition was then that that first invalidity necessarily rendered the s.181D decision to remove taken in 2010 invalid. 15. I understand the argument but I cannot draw the conclusion I am invited to draw. 16. First, there is insufficient evidence to do so. 17. A mandatory s.181D notification was made in January 2007. I do not know how quickly it was attended to. I do not know if it had been formally extinguished in August 2007, although it ought to have been, given that the criminal proceedings were dropped in February 2007. I do not know whether the matter was first referred to the officer who was Commissioner before Mr Scipione and then referred by him on to Mr Scipione when he became Commissioner. There is simply no evidence about any of this. Lacking that knowledge I cannot come, by inference, to the view that Mr Scipione had the s.181D nomination referred to him at a time when he was not Commissioner, in apparent contradiction to his assertion in his Statement of Reasons. 18. I observe that to hold that the argument was made out would be to find that Mr Scipione had misstated the position in his Statement of Reasons. That would be a serious finding. No court could come to such a finding based on mere inference from the materials to which I have referred above: Evidence Act 1995 s.140; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2. 19. But second, there is this. Even if Mr Scipione had a s.181D nomination referred to him when he was not Commissioner and it was not known whether he would be Commissioner – which would appear a very curious, indeed useless thing for anyone to do – the Commissioner's first non-delegable power under s.181D is to issue a Notice to a police officer: subs.181D(3)(a). Mr Scipione did that, it is not in contest, at a time when he was Commissioner. If he had, for the sake of argument, had the nomination referred to him in August 2007, when he held another rank altogether, and then issued a Notice under subs.181D(3)(a) in October 2007 when he was Commissioner, he has committed no invalid act. 20. And it must be said that even if it were the case that the first s.181D notice were bad for administrative invalidity, that would not in my view render the decision to remove in November 2010 bad. In my view the decision taken pursuant to s.181D of the Act in November 2010 was an administrative act which stood alone, and was made for the stated reasons attached to it. It, and the reasons for it, stand to be assessed alone pursuant to the criteria established in the Act and in the Commission's jurisprudence. 21. I have considered whether, independent of Mr Beck's argument, there is any other basis for seeing the November 2010 s.181D notice to be bad. I cannot see a ground on which that could be said to be so. 22. The first line of argument must fail. 23. Mr Beck's second central line of argument in support of the proposition that the removal was harsh, unreasonable or unjust was that the directions that he refused, and which make up the substance of issues 5 to 8 of the Commissioner's reasons, were all actions taken in contempt of court, because of the proceedings on foot in the Supreme Court at that time. It followed that he was not at fault by refusing those directions as they were unlawful directions. 24. Mr Beck, as I say above, also submitted that the four matters comprising matters 5-8 in the Commissioner's statement of reasons were relatively minor and should properly have been dealt with at LAC level. I return to that below. 25. The proposition that the directions given to Mr Beck were in contempt of court or otherwise unlawful, is advanced both on the basis of a Complaint Practice Note issued by NSW Police and on the basis of the common law as to contempt. 26. However, consideration of both the Complaint Practice Note and the common law as to contempt disclose that this contention is simply, with respect, not correct. 27. The complaint Practice Note addresses, as Mr Beck correctly submitted, the conduct of internal investigations while criminal and civil court proceedings are in progress. 28. However, it prescribes very different courses of action in relation to the two types of proceedings. 29. As to criminal proceedings, the Note provides: 'However, when interviewing an officer against whom criminal charges are pending, or being investigated, the officer should not be required, whether by directive memoranda or otherwise, to supply information or documentation in circumstances where the internal investigation is inquiring into the same matter and circumstances surrounding the criminal offences. If an officer is required to do so, this may be a contempt of court where charges are pending of an unlawful direction where the matter is still under investigation.' 30. It is not, of course, the case that Mr Beck was being asked to supply information about the proceedings then on foot. But that is not the issue, because the Note is in referring to contempt or unlawful actions referring to circumstances where criminal proceedings are on foot. The directions Mr Beck declined to follow began in 2009. There were no criminal proceedings on foot. There were civil proceedings in the Supreme Court. 31. And those civil proceedings are dealt with very differently in the Note. Under the rubric 'How is a complaint investigation affected where there is (sic) concurrent civil proceedings?' the Note provides 'There is no legal basis to prevent or suspend an investigation from taking place or being completed. In fact, any such action may be contrary to Part 8A of the Act.' 32. The Note give no basis on which Mr Beck could decline to obey directions. 33. Further, it is clear in my view that the directions given to Mr Beck by supervising officers were not a contempt of court at law. 34. Contempt, in the context it is here to be considered, arises only when there is an actual interference with the administration of justice, or a real risk, as opposed to a remote possibility, that justice will be interfered with: Victoria v Australian Building Construction Employees' & Builders Labourers' Federation ('the BLF case') (1982) 152 CLR 25 at 56; Attorney-General v Times Newspapers Ltd (1974) AC at 299. 35. The essence of this kind of contempt is a "real and definite tendency to prejudice or embarrass pending proceedings": John Fairfax & Sons Pty. Ltd. v. McRae (1955) 93 CLR 351 at 372. 36. Here there were proceedings, not before a jury, but before a Judge of the Supreme Court. The notion that a judge would be influenced in his decisionmaking by even significant media comment, let alone administrative action taken by the NSW Police, is untenable: BLF Case at 58 per Gibbs CJ. Accordingly, there was no risk of justice being interfered with, and there was no contempt. I observe that contempt of court falls to be made out at the criminal standard of proof. 37. In no way could it be said that the giving of a direction to Mr Beck at a time when he had proceedings in tort and seeking prerogative relief before a civil court was a contempt of that court. 38. I have considered, although it was not an argument advanced by Mr Beck, whether he might have been justified in declining to follow certain directions on the basis, not of contempt, but that the Supreme Court proceedings operated as a stay of administrative action by the Police Force. However, that proposition is equally unsustainable. It is not the law that initiating civil proceedings brings a halt to the affairs of an organisation, even if they touch on the subject matter before the court, without injunctive relief to that effect being granted. That was neither sought nor granted here. 39. It is only in a very limited circumstance - where there are criminal proceedings on foot or contemplated and orders are sought in a civil court directly and intentionally affecting the conduct of the criminal proceedings - that a stay, even if sought, would be granted: Sankey v Whitlam (1978) 142 CLR 1. That statement of the law itself reveals how far the present matter is from that position. Even had Mr Beck sought a stay in the Supreme Court of the conduct of the remedial programme, it would not have been granted. Gravity of matters considered by the Commissioner 1. I now turn to the proposition that the four matters which the Commissioner stated to be determinative of his decision to remove – the matters which the Commissioner characterised as 'insubordination' - were in fact minor matters which should have been dealt with locally, and did not warrant the Commissioner's consideration. 2. I am unable to agree with that proposition. As it has frequently been observed, the Police Force is a disciplined force. A person who accepts the role of a police officer also necessarily accepts the levels and standards of discipline that apply within the Force: "The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency." Police Service Board v Morris and Martin [1985] HCA 9; (1985) 156 CLR 397 at 412 per Brennan J. 1. It was not open to Mr Beck to refuse to comply with the directions he was given and which comprise the matters in 5 to 8 of the Commissioner's reasons. The refusal of a lawful direction by a police officer is a serious matter. For Mr Beck to decline to accept the steps in a disciplinary process was in practical terms to invite the Commissioner to lose confidence in him. 2. The Commissioner was entitled to come to the view that Mr Beck had resisted authority, and was entitled to come to the view that Mr Beck's conduct was deliberate insubordination. Having formed those views the Commissioner was entitled to take the step of removing Mr Beck form the NSW Police Force. As Boland J held in Reid-Frost and Commissioner of Police (No 2) [2010] NSWIRComm 86, the Police Commissioner should not be obliged to continue to accommodate an officer who resists authority. The Commissioner's case 1. Having heard Mr Beck's case, counsel for the Commissioner did not proceed to call in evidence the witnesses whose statements had been filed. That is a matter for the Commissioner. The Act does not require the putting on of evidence; it requires that the Commissioner reply to the Applicant's case. That reply was effected in this case by submissions pointing out, correctly in my view, that the case advanced by Mr Beck could not succeed on its own evidence. 2. While there is a 'shifting evidentiary burden' in these cases (Hosemans at [131]), if an applicant's evidentiary case does not require rebuttal by evidence, there is no requirement on the Commissioner to bring evidence. He must, under the Act, reply to the applicant's case. In some cases, such as this one, that is properly done wholly by argument, and by reference to materials put in evidence by the applicant. It may perhaps be noted that the two officers whom Mr Beck has been anxious all along to cross-examine were not among those persons from whom the Commissioner had filed statements. Public interest 1. In assessing whether the decision to remove was harsh, unreasonable or unjust I am obliged to consider the public interest, including the fact that the Commissioner has made the order he has made. In that regard it is useful to bear in mind the comments of the Full Commission in Commissioner of Police v Sewell [2008] NSWIRComm 147: "There is no warrant for elevating the Commissioner's loss of confidence (based on misconduct), or according it some higher status, or place of prominence, or priority, above any other factor, or factors, which might fall for consideration as part of the balancing exercise between competing interests under s 181F(3) of the Act." (at [7]) 1. I do not do so. I nevertheless have the view that the public interest is properly served by the maintenance of a police force of a kind in which the Commissioner can expect that officers will as a matter of course be subject to discipline and will as a matter of course obey lawful directions. Conversely, the public interest is not served by requiring the Commissioner to maintain in the Force an officer who resists authority, certainly to the degree demonstrated here. Summary and disposition of the matter 1. I am obliged to find that the two central pillars of Mr Beck's case cannot stand scrutiny. He does not carry the onus the Act places upon him to show the decision to dismiss harsh, unreasonable or unjust. 2. I add that if I were of the view that there was a basis on which, on the evidence, it could properly be concluded that the decision to remove was harsh, unreasonable or unjust, even if Mr Beck had not adverted to that matter in submissions, I would be nevertheless entitled to make a finding of harshness, unreasonableness or unjustness. I am not confined to Mr Beck's arguments. On the contrary, in the case of an unrepresented applicant I would make such a finding if I determined that it was available, even if the litigant did not raise the argument himself, on the basis that the court has an obligation to ascertain the rights of parties even if their own advocacy does not articulate them: Neil v Nott [1994] HCA 23; (1994) 121 ALR 148; 68 ALJR 509. 3. However, I could not see in this matter any other basis for determining the decision to remove to be harsh, unreasonable or unjust that Mr Beck did not himself advance. 4. In coming to the view that the decision to remove was not harsh, unreasonable or unjust I have had regard, as the Act requires me to have regard, to the effect of the decision on the applicant. I have some sympathy for Mr Beck in the circumstances in which he now finds himself. He has staked a great deal on being able to 'prove his innocence', as he put it, of the charges brought against him in 2006 as they were actually framed, and has not once been able to come to grips with that matter anywhere. I do not know what legal advice Mr Beck was given, and I do not know whether, if given advice, he accepted or rejected it. But the decision to refuse to participate in the disciplinary process, whether on advice or no, was fundamentally unwise. 5. As is now apparent from the Commissioner's reasons, had Mr Beck not adopted that course – which comprises the matters at 5-8 of the Commissioner's reasons – he may well not have been removed from the Force. 6. I have also had regard, as the Act requires me to have regard, to the fact that Mr Beck has been seriously affected by the decision to remove him. Any career police officer would be seriously affected by such a decision, and because Mr Beck expended his resources, as I understand it, in lengthy court proceedings without result, his personal position is now difficult. 7. However, even weighing all that in the balance as I do, and even giving it as much weight as I possibly can, Mr Beck has not carried his onus to prove, on review, the removal to be harsh, unreasonable or unjust. It follows that I must, having reviewed the decision to remove by a fresh hearing, decline to come to any different decision. The application is dismissed. The Commissioner's order stands. PETER NEWALL Commissioner ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2015