Industrial Relations Commission New South Wales Medium Neutral Citation: Konopka v Commissioner of Police [2017] NSWIRComm 1014 Hearing dates: 10 February & 15 March 2017 Date of orders: 31 March 2017 Decision date: 31 March 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: 1. The material which was seized from the applicant during the execution of a search warrant granted by a Local Court in relation to a criminal investigation, and then used by the respondent during the disciplinary investigation which led to the applicant's removal from the NSWPF, will be admitted into evidence in these proceedings. 2. The affidavits of Detective Sergeant Long and Detective Sergeant Mellor will be admitted into evidence in these proceedings. 3. The application by the applicant for a non-disclosure order prohibiting the disclosure of the applicant's name in connection with these proceedings is rejected. Catchwords: POLICE – removal of police officer – s. 181D Police Act – application for review of order of Commissioner of Police – application for interlocutory orders – order excluding as evidence material seized during execution of a search warrant – order excluding opinion evidence of police witnesses on ground that they are not expert witnesses – order suppressing publication of applicant's name Legislation Cited: Industrial Relations Act 1996 Cases Cited: ASIC v Rich [2005] NSWSC 62 Flori v Commissioner & another [2014] QSC 284 Doctor A and Health District [2014] NSWIRComm 28 McDonald v Commissioner of Police [2016] NSWIRComm 1023 R v Cox (1898) 1 QB 179 Category: Procedural and other rulings Parties: Mischa Konopka (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr J Darams (Respondent) Solicitors: Ms C Lenard, K&L Gates (Respondent) File Number(s): 2016/236511 INTERLOCUTORY DECISION 1. The applicant, Mischa Konopka, who is representing himself in these proceedings, was a serving member of the NSW Police Force ('NSWPF') until he was removed from his position as a police officer by order of the respondent, the Commissioner of Police, on 22 July 2016. These proceedings were commenced by the applicant by filing in the Industrial Registry, on 5 August 2016, an Application for Relief in relation to Unfair Dismissal under section 84 of the Industrial Relations Act 1996 ('the IR Act'). That application has been treated as an application under section 181E of the Police Act 1990 ('the Act') for a review of a removal order made under section 181D of the Act. 2. The application came before Tabbaa C on a number of occasions for conciliation but did not settle. Following the filing and serving of witness statements by the parties, the matter came before me on 10 February 2017 for directions. At the directions hearing it emerged that there were a number of interlocutory issues which required resolution before the substantive hearing of the matter, which is listed before me on 18 and 19 April 2017. These interlocutory issues have been formulated as follows: 1. Should material which was seized from the applicant during the execution of a search warrant granted by a Local Court in relation to a criminal investigation, and then used by the respondent during the disciplinary investigation which led to the applicant's removal from the NSWPF, be admitted into evidence in these proceedings? 2. Should the affidavits of Detective Sergeants Long and Mellor be admitted into evidence in these proceedings? 3. What weight should be attributed to the evidence of Detective Sergeants Long and Mellor if their affidavits are admitted into evidence? 4. An application by the applicant pursuant to section 164A of the IR Act for a non-disclosure order prohibiting the disclosure of the applicant's name in connection with these proceedings. 5. An application by the applicant for orders that the respondent produce certain classes of documents. 1. During the hearing of these interlocutory applications, it emerged that issue number 5 had been resolved between the parties and, on that basis, I do not propose to deal further with that matter. I deal with each of the remaining interlocutory issues in turn. The material seized from the applicant during the execution of a search warrant 1. According to the respondent, in 2013 police were investigating an alleged assault involving the applicant and his then partner. Investigating police were aware that the applicant had taken photographs of injuries which he alleged he had suffered during the course of an assault upon him by his former partner. The police sought, obtained and executed a search warrant for the purposes of seizing the photographs and any other evidence relevant to the alleged offence. 2. On 26 September 2013 the search warrant was executed at the applicant's residence. During the course of the execution of the search warrant, the police seized and/or examined computers and hard drives located at the premises. In addition to the photographs being sought in connection with the alleged assault, the police discovered what they suspected to be child abuse material on a computer and hard drive in the applicant's possession. Despite the seizure of this material, criminal charges were not pursued against the applicant relating to his possession of alleged child abuse material. 3. However, the images and videos that were seized were subsequently used by the NSWPF in conducting a disciplinary investigation into the applicant's conduct. This investigation culminated in the respondent making an order pursuant to section 181D of the Act removing the applicant from the NSWPF. That removal order is the subject of these review proceedings. 4. The removal order was based on two findings by the respondent: (a) That the applicant was in possession of child abuse material/child exploitation material/child pornography; and (b) That the applicant downloaded and/or transmitted child abuse material/child exploitation material/child pornography to himself. 1. On 2 February 2017, lawyers for the respondent wrote to the applicant to alert him to the judgement of the Supreme Court of Queensland (per Atkinson J) in Flori v Commissioner & another [2014] QSC 284. That case involved the question as to whether or not material seized during the execution of a search warrant in connection with a suspected criminal offence, could be used in disciplinary proceedings against the person from whom the material had been seized, being Sergeant Flori of the Queensland Police Force. 2. Atkinson J reviewed the authorities touching upon the issue and ultimately concluded as follows: Conclusion [41] The material obtained pursuant to the compulsion of a search warrant may only be used for the statutory purpose for which the warrant was granted, that is to obtain evidence of the commission of an offence. The evidence seized pursuant to the warrant may be used in the investigation and prosecution of criminal offences to which the seized things relate but cannot be used as evidence in disciplinary proceedings against Sergeant Flori. Order [42] Accordingly, I declare that the respondents are not entitled to use, rely on or otherwise take into account property seized pursuant to a search warrant issued by Magistrate Thacker on 14 March 2012 in respect of premises situated at 6 Carool Street, Ashmore in the State of Queensland or which is the subject of a post-approval order made by Magistrate Thacker on 19 March 2012 ("the seized property") or any data, evidence or information derived from the seized property in proceedings for disciplinary action against the applicant under s 7.4 of the Police Service Administration Act 1990 and commenced by Disciplinary Hearing Notice dated 30 July 2013. 1. On the basis of this judgement, the applicant objected to the admission into evidence in these proceedings of the material seized by police during the execution of the search warrant on his premises. In addition, the applicant made the following submission: I submit that as an employer, law enforcement agencies have a unique ability to conduct search warrants, which involve a significant breach of civil liberties. This is of course legal if compliant with legislation, which I submit is not the case in this instance, however do not rely on that in determination of this issue. This unique ability can create a unique situation where effectively a "departmental" search warrant is conducted if it is solely used for departmental purposes. It was never the intention of legislators that any employer should possess intrusive power. Whilst the public has a right to expect high standards from its police officers, it should not be, and is not, a condition of employment to forego such significant civil liberties. 1. The respondent submitted that the seized suspected child abuse material should be admitted into evidence in these proceedings. 2. The search warrant, which was executed on the applicant's premises, was issued in relation to the investigation of an alleged assault. However, subsection 49(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 ('LEPR Act') provides as follows: 49 Seizure of things pursuant to search warrant (1) A person executing a search warrant issued under this Division: (a) may seize and detain a thing (or thing of a kind) mentioned in the warrant, and (b) may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence. 1. There does not appear to be any dispute as to the legitimacy of the seizure of the suspected child abuse material, on the basis that the executing officers had reasonable grounds to believe that such material was connected with "any offence" (ss 49(1)(b) LEPR Act). 2. Despite the seizure of this material, no criminal charges were laid against the applicant in relation to his possession of it. 3. The material was subsequently used by the NSWPF in conducting a disciplinary investigation into the applicant's conduct. This investigation culminated in the respondent making an order removing the applicant from the NSWPF based on the findings set out at paragraph 7 above. 4. The respondent sought to distinguish the facts in the present case from those before the Supreme Court of Queensland in Flori. The primary point of distinction was that, in Flori, relief in relation to the seized material was sought and granted before that material was used in the disciplinary process involving Sergeant Flori. In the present matter, the seized suspected child abuse material has already been used by the respondent in the disciplinary proceedings against the applicant, and has formed the basis of the two findings made by the respondent upon which the removal order was grounded. 5. According to the respondent, the applicant, unlike Sergeant Flori, did not raise an issue with the use of the suspected child abuse material in the disciplinary process, which led to his removal from the NSWPF, during which the applicant was legally represented. Until now, the applicant has raised no issue in the relation to these materials of these materials in these proceedings. The respondent submits that the applicant has, in effect, consented to the use of these materials in these proceedings (ASIC v Rich [2005] NSWSC 62). 6. The starting point for consideration of this issue is the recognition that this Commission is a tribunal which is governed by, and limited by, statute. Unlike a state Supreme Court, the Commission has no power to grant injunctive or declaratory relief. 7. Section 163 of the IR Act provides as follows: 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) 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 (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 1. Section 163 of the IR Act applies to an application for review of a removal order under Division 1C of Part 9 of the Act. The present application brought before the Commission by the applicant is such a proceeding. 2. Section 181F of the Act, which governs the present proceeding, is in the following terms: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) 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. (3) 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: (a) the interests of the applicant, and (b) 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 first matter which the Commission must consider in a proceeding such as the present, is the statement of reasons for the decision of the respondent to remove the applicant from the NSWPF. Given that the suspected child abuse material was crucial to the respondent's reasons for removing the applicant, exclusion of it from this proceeding would frustrate this obligation. 2. The second matter which the Commission must consider is the case presented by the applicant as to why his removal was harsh, unreasonable or unjust. This is not a case where the applicant denies that he was in possession of the suspected child abuse material. It is the applicant's case that the material which was seized during the execution of the search warrant, and which formed the basis of the respondent's removal order, is not, as a matter of fact, child abuse material, but is "legal material". Bearing in mind that the applicant has, at all times, the burden of establishing that his removal was harsh, unreasonable or unjust, it is difficult to see how that burden could be satisfied if the suspected child abuse material, which he claims is not child abuse material, is ruled inadmissible in the proceedings. 3. I concur with the submission of the respondent to the effect that, by not objecting to the use of the seized suspected child abuse material by the respondent during the disciplinary process which led to the removal order, the applicant has effectively consented to its use for that purpose. The present proceeding is a review of that removal order which has been initiated by the applicant. The Commission, in order to conduct that review, must have before it the material upon which the removal order was based. 4. After the conclusion of the interlocutory hearing on 15 March 2017, the Commission received correspondence from the applicant which stated, in effect, that, if the seized material can be excluded at a point prior to the applicant's removal, with the onus then being on the respondent to prove his assertions through other means, then the applicant would seek its exclusion. If the Commission has no power, or is not minded to do so, then the applicant would consent to the admission of the material. 5. The Commission has no power to, in effect, retrospectively prevent the respondent from having regard to the material seized during the execution of the search warrant, in the course of the disciplinary process involving the applicant. Similarly, the Commission has no power to declare as unlawful, the use of that material by the respondent. 6. For the reasons set out above, I reject the applicant's objection to the admission into evidence of the suspected child abuse material which was seized during the execution of the search warrant at his premises on 26 September 2013. The affidavits of Detective Sergeants Long and Mellor 1. As part of its evidentiary case, the respondent has filed and served an affidavit sworn by Detective Sergeant Richard Long of the NSWPF and an affidavit sworn by Detective Sergeant Peter Mellor of the Australian Federal Police ('AFP'). 2. Detective Sergeant Long is a Team Leader of the NSWPF Child Exploitation Internet Unit, which sits within the Child Protection and Sex Crimes Squad, State Crime Command. 3. On 21 August 2014 Detective Sergeant Long was asked to review 339 images which had been found in the possession of the applicant. He was asked to provide his opinion on whether or not any of those images met the definition of "child abuse material" as set out in section 91FB of the Crimes Act 1900, which is in the following terms: 91FB Child abuse material-meaning (1) In this Division: "child abuse material" means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The "private parts" of a person are: (a) a person's genital area or anal area, or (b) the breasts of a female person. 1. Section 91FA of the Crimes Act defines "child" to be a person under the age of 16 years. Importantly, in the context of the present proceeding, section 91FB includes within the definition of "child abuse material", the depiction of "a person who is, appears to be or is implied to be, a child" (emphasis added). 2. On 9 September 2014, Detective Sergeant Long prepared a Statement of Police in which he expressed the opinion that 16 of the 339 images which he examined were captured within the definition of child abuse material pursuant to section 91FB. Detective Sergeant Long's opinion was relied upon by the respondent in determining to remove the applicant from the NSWPF. The Statement of Police made by Detective Sergeant Long is annexed to his affidavit filed in these proceedings and is the focus of the applicant's objection to the admission into evidence of that affidavit. 3. Detective Sergeant Peter Mellor is a member of the AFP with experience in the investigation of child exploitation and child sex offences. For around seven years he was the Team Leader of the Victim Identification Team, Child Protection Operations, High Tech Crime Operations, within the AFP. 4. On 5 January 2015, Detective Sergeant Mellor prepared and signed a statement regarding 74 images and 10 videos which had been briefed to him by Detective Senior Constable Susie Watkins of the NSWPF. These images and videos were amongst those found in the possession of the applicant. 5. Detective Sergeant Mellor used the Australian National Victim Image Library ('ANVIL') database which classifies Child Exploitation Material ('CEM') into 6 categories. He satisfied himself that 37 of the images and seven of the videos briefed to him constituted child abuse material or CEM category 1 or 2. 6. The respondent also relied upon the opinions expressed by Detective Sergeant Mellor in determining to remove the applicant from the NSWPF. 7. The applicant strongly refutes that any of the material which was found in his possession is child abuse material. The applicant does not accept that any of the females depicted in that material are under the age of 16 years. 8. The basis of the applicant's objection to the admission into evidence of the affidavits of Detective Sergeants Long and Mellor appears to be that their affidavits, and the annexed statements and reports, constitute opinion evidence, and that neither officer is qualified to give opinion evidence. 9. Section 76 of the Evidence Act 1995 is in the following terms: 76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. (2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. 1. However, section 79 provides an exception to the opinion rule in these terms: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. (2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences. 1. The applicant contends that neither Detective Sergeant Long nor Detective Sergeant Mellor are "experts" who are qualified to give opinion evidence as to whether or not a particular image or video constitutes child abuse material. 2. I disagree. Both officers have considerable experience in investigating matters involving the possession of child abuse material which has equipped them with specialised knowledge such as to enable both of them to give opinion evidence based upon that knowledge. 3. In any event, as pointed out at paragraphs 19-24 above, pursuant to section 163 of the IR Act, this 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. Further, the Commission is obliged to consider the respondent's reasons for making the removal order. As stated above, that obligation would be frustrated if the Commission did not have before it all of the material upon which the respondent based his decision to remove the applicant from the NSWPF. 4. The ability to make an estimation of a person's age is not a matter which requires any particular expertise (R v Cox (1898) 1 QB 179). However, I also bear in mind the reference in section 91FB of the Crimes Act to "a person who… appears to be or is implied to be, a child". I consider that the experience of both Detective Sergeants will have equipped them with a level of "specialised knowledge" which will enable both officers to give probative evidence as to whether any of the material which was seized from the applicant comes within the terms of section 91FB. 5. Ultimately, the determination as to whether the removal of the applicant by the respondent, for possession of alleged child abuse material, was harsh, unreasonable or unjust, is a matter for this Commission. However, in making that determination, the Commission should not exclude from consideration, the evidence of two experienced officers who have worked for considerable periods of time in the investigation of such matters. 6. I consider that it would not be just to refuse to admit into evidence the affidavits of Detective Sergeant Long and Detective Sergeant Mellor. The weight that the Commission should attach to this evidence is a matter which will, no doubt, be the subject of further debate during the course of the proceeding. 7. The application to exclude from evidence in this matter, the affidavits of Detective Sergeant Long and Detective Sergeant Mellor, is rejected. The application by the applicant for a non-disclosure order 1. The applicant seeks a non-disclosure order pursuant to section 164A of the IR Act suppressing publication of his name in connection with this proceeding in the "interests of justice". 2. Section 164A of the IR Act is in the following terms: 164A Powers of Commission as to the disclosure of matters before the Commission (1) A "non-disclosure order" is any of the following orders: (a) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission, (c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings. (3) The Commission may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice. (4) The Commission may from time to time vary or revoke an order it has made under this section. 1. The applicant referred to the 2016 annual report of the NSW Ombudsman which contained "case study" entitled "1. Investigating child abuse material". This "case study", according to the applicant, detailed the facts of his case up to the point where he had been served with the removal order by the respondent. The applicant's name was not mentioned in the report. 2. The applicant also referred to a newspaper article reporting on this "case study", which appeared in the Daily Telegraph on the day after publication of the Ombudsman's report. Again, this article did not refer to the applicant by name. 3. Nevertheless, the applicant claimed that any person reading the newspaper article and/or the Ombudsman's report would have no doubt that the person, who was the subject of those two publications, frequented South East Asia for sex tourism or child sex tourism, and that he was guilty of possessing child pornography, but was not charged based only on a technicality. The applicant maintains that both of these allegations are false and were withdrawn as evidence prior to the publishing of the Ombudsman's report. 4. The concern of the applicant is that, if publication of his name is not suppressed in relation to these proceedings, and these proceedings are then reported on in the press, that report would directly link the applicant to the already published Ombudsman's report and Daily Telegraph article which, according to the applicant, presume his guilt in relation to "child sex/sex tourism". 5. The applicant submitted as follows: I submit that it is not in the interests of justice that such defamatory claims be associated with any person. The claims in this instance are not mere allegations, but conclude guilt. I submit this is an exceptional circumstance, in that such assumption of guilt would be a very rare event and could only be done without attaching a name, however my name would automatically be associated if published. 1. The respondent opposes the application for a non-disclosure order. 2. The correct approach to an application for a non-disclosure under section 164A of the IR Act is set out in the decision of the Full Bench of this Commission in Doctor A and Health District [2014] NSWIRComm 28. After citing a number of authorities, the Full Bench in that matter (Boland AJ, Acting President, Stanton C, Newall C), stated as follows (but omitting references to the authorities): [47] In referring to these authorities the main points sought to be made by the respondent were that: (1) the principle of open justice is a fundamental aspect of the legal system and the conduct of proceedings in public is an essential quality of an Australian court of justice: (2) exceptions to the principle of open justice are strictly defined and applied sparingly: (3) the test in s 164A(3) of the IR Act is the common law test: (4) according to the common law test mere embarrassment or distress is not sufficient to warrant the making of a non-disclosure order. Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress, would be inimical to the ordinary rule that courts should conduct their proceedings publicly and in open view: (5) the "necessary" requirement in s 164A(3)(b) of the IR Act reinforces the legislative intention that non-disclosure orders should only be made in exceptional circumstances. [48] The appellant did not demur from these principles and for our part we respectfully consider they are correct. 1. In this matter, the basis upon which the applicant seeks a non-disclosure order does not satisfy the above tests. The possibility of a future media report linking the applicant's name with past publications alleging certain things, but not identifying the applicant, is "far too tenuous" to support a non-disclosure being made in this case (see McDonald v Commissioner of Police [2016] NSWIRComm 1023). 2. In essence, the applicant seeks the suppression of his name in order to protect himself from "injury, hurt, embarrassment or distress". The grant of such an order in such circumstances "would be inimical to the ordinary rule that courts should conduct their proceedings publicly and in open view". 3. The application for an order under section 164A of the IR Act is refused. Orders 1. The Commission makes the following orders: 1. The material which was seized from the applicant during the execution of a search warrant granted by a Local Court in relation to a criminal investigation, and then used by the respondent during the disciplinary investigation which led to the applicant's removal from the NSWPF, will be admitted into evidence in these proceedings. 2. The affidavits of Detective Sergeant Long and Detective Sergeant Mellor will be admitted into evidence in these proceedings. 3. The application by the applicant for a non-disclosure order prohibiting the disclosure of the applicant's name in connection with this proceeding is rejected. John Murphy 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: 31 March 2017