=== REASONS FOR DECISION === [WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION] CITATION : 2019 WAIRC 00758 CORAM :Chief Commissioner P E Scott Senior Commissioner S J Kenner Commissioner D J Matthews HEARD : Thursday, 17 October 2019 DELIVERED : TUESday, 22 October 2019 FILE NO. : APPL 42 OF 2016 BETWEEN : Adib Abdennabi ¶1 Appellant ¶2 AND The Commissioner of Police, WA Police ¶3 Respondent Catchwords : Industrial law (WA) – Removal of Police Officer – Loss of confidence by Commissioner of Police - Application to tender new evidence – Police Act 1892 (WA) s 33R(3), s 33R(4), s 33R(11) – Material does not constitute new evidence – Submission that it would be in the interests of justice to receive material not made out – Application dismissed Legislation : Industrial Relations Act 1979 Criminal Code Act Compilation Act 1913, s 378 Police Act 1892, s 33R(3), s 33R(4), s 33R(11) Result : Application dismissed Representation: Counsel: Appellant : Mr R Yates of counsel Respondent : Ms C Chapman of counsel ¶4 Case(s) referred to in reasons: ¶5 Laurent v Commissioner of Police [2009] WAIRC 839 ¶6 Case(s) also cited: ¶7 Carlyon v Commissioner of Police [2004] WAIRC 11428 ¶8 Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 ¶9 Moran v The Commissioner of Police [2015] WAIRC 00464 ¶10 R v Hunt; Ex Parte Sean Investments Pty Ltd [1979] HCA 32 ¶11 Tobacco Institute of Australia Ltd & Ors v National Health & Medical Research Council & Ors [1996] FCA 1150 ¶12 Reasons for Decision ¶13 CHIEF COMMISSIONER SCOTT: ¶14 Introduction The appellant seeks leave to tender new evidence in his appeal against the decision of the Commissioner of Police to take removal action, pursuant to s 33R(3) of the Police Act 1892. Background On 9 March 2016, the appellant was charged with stealing bakery production line equipment to the value of $50,000 pursuant to s 378 of the Criminal Code. On 2 May 2016, the Commissioner of Police issued a Notice of Intention to Remove from the Police Force of Western Australia (NOITR) to the appellant. The NOITR set out that the Commissioner intended to take this action because he was not satisfied that the appellant’s honesty, integrity, performance and conduct were of a standard expected and required of a member and of a standard necessary to maintain public confidence in the WA Police. Accordingly, the Commissioner advised, he had lost confidence in the appellant’s suitability to continue as a member of WA Police. This loss of confidence was said to be based on the matters set out in a summary of investigation, and related allegations, that between 9 April 2015 and 3 March 2016 the appellant had done a number of things. They were that he: wilfully lied to Detectives and was deceptive when they challenged him in relation to the theft of bakery equipment; stole bakery equipment valued at between $50,000 and $265,000; disobeyed a lawful order by continuing his secondary employment; on a number of occasions whilst on-duty and in police uniform, attended business premises in Northbridge and collected monies owed to him through his secondary employment; and lied to internal investigators during his managerial interview. The Commissioner attached to the NOITR a list of the documents and materials that he had examined and taken into account in making his decision and the documents themselves, including the summary of investigation. The appellant was invited to respond to the NOITR within 21 days. On 23 May 2016, the appellant responded to the NOITR. He denied and disputed each of the allegations. He noted that he was facing a trial of the criminal charge and indicated his intention to plead not guilty and defend himself. He said that any submission he would make to the Commissioner may prejudice him in his defence, and that to require him to respond would therefore be unfair, and would require that he waive his right to silence. Therefore, he said, he could not appropriately or comprehensively respond to the allegations at that time. He requested that the Commissioner cease the then process of removal until the criminal charge had been resolved and he was able to respond to the allegations. Beyond those responses, the appellant did not address any of the issues in the NOITR or the summary of investigation. By letter dated 14 June 2016, the Commissioner notified the appellant that he had considered the appellant’s response and continued to have lost confidence in the appellant’s suitability to remain a member of WA Police. He had sought the approval of the Minister for Police to remove the appellant. The Minister approved the appellant’s removal on 20 June 2016. On 13 July 2016, the appellant appealed to the WAIRC against the decision to take removal action. The only ground for the appeal is that the appellant is not guilty of the wrongdoing alleged of him. The charge was first heard in the District Court of Western Australia commencing on 23 April 2018. The jury was unable to reach a verdict. The charge was re-tried before the District Court commencing on 5 March 2019, after which the appellant was found not guilty. Application to Tender New Evidence The transcripts of the trials before the District Court of the criminal charge against the appellant are before us by consent. The appellant also seeks to tender new evidence which is a statement by him dated 7 June 2019. It is said to support his appeal against removal. Grounds for the Application The appellant says that his statement is likely to be able to show new evidence which might materially have affected the Commissioner’s decision to take removal action, and it is in the interests of justice that it be admitted. He says that the Commissioner acted upon wrong or mistaken information in that in the summary of investigation, at [15], it says that the equipment allegedly stolen by the appellant amounted to between $50,000 and $265,000. He says that the significant cost in the report would have influenced the Commissioner’s decision to take removal action as it increased the seriousness of the matter. He says the value was eventually less than $50,000. Secondly, the appellant says that the Commissioner acted in a mistaken belief that the alleged stolen property was in the appellant’s possession and that he lied to detectives about not knowing its whereabouts. Statement - the New Evidence The appellant says that the new evidence arose at the trial of the charge before the District Court. He says he had been unable to communicate in his letter to the Commissioner of 23 May 2016, what that evidence was. Had he been able to do so, it would have demonstrated that he was not guilty of wrongdoing and proved that he did not lie when questioned. He says that he was not able to provide that new evidence to the Commissioner before his criminal trial, but is now able to do so, as the criminal proceedings have been finalised. The appellant’s statement is made up of 138 paragraphs. The Commissioner does not object to [1] in which the appellant identifies himself as such, and [64] onwards. However, he objects to the remainder of the paragraphs. The first of the two groups of paragraphs opposed by the Commissioner set out the appellant’s personal and service background. The appellant says that these are matters going to his aptitude as a serving police officer and matters to his credit in determining his suitability for the office he held until his removal, and mitigate against his removal. The Commissioner says it has no bearing on the ground of appeal, being that he was not guilty of the wrongdoing alleged of him, that is the five allegations. The Commissioner also objects on the grounds that the material could have been put to him by the appellant in the appellant’s response to the NOITR, however he chose not to do so. The second issue dealt with in the disputed paragraphs is an allegation by the appellant that the investigation process is infected by apprehended bias. The appellant says that Acting Inspector Ellery bullied and discriminated against him while he worked at the State Security Investigation Group. Acting Inspector Ellery was an author of the Investigation Final Report which was included in the matters considered by the Commissioner in deciding to take removal action. Consideration and Conclusions The WAIRC is required to consider a range of factors in deciding whether to grant leave to an appellant to tender new evidence. Section 33R(3)-(4) of the Police Act 1892 provides: [“33R. New evidence on appeal] (3) The WAIRC may grant the appellant leave to tender new evidence if — (a) the Commissioner of Police consents; or (b) the Commission is satisfied that — (i) the appellant is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information; (ii) the new evidence might materially have affected the Commissioner of Police’s decision to take removal action; or (iii) it is in the interests of justice to do so. (4) In the exercise of its discretion under subsection (3) the Commission shall have regard to — (a) whether or not the appellant was aware of the substance of the new evidence; and (b) whether or not the substance of the new evidence was contained in a document to which the appellant had reasonable access, before his or her removal from office.” The WAIRC needs to be satisfied about any one or more of the matters in s 33R(3)(b). In accordance with Laurent v Commissioner of Police [2009] WAIRC 839 at [12] and [13], this means that leave will be refused unless the WAIRC is satisfied of one or more of those three matters, that is if the WAIRC is satisfied on one or more of those matters, the WAIRC will have discretion to grant leave. In exercising that discretion, the Commission is to have regard to the matters in s 33R(4) of: whether or not the appellant was aware of the substance of the new evidence; and whether or not the substance of the new evidence was contained in a document to which the appellant had reasonable access, before his removal from office. “New evidence” is defined in s 33R(11) of the Police Act 1892 as follows: “(11) In this section — new evidence means evidence other than evidence of — (a) any document or other material that was examined and taken into account by the Commissioner of Police in making a decision to take removal action; (b) the notice given under section 33L(1); (c) a written submission made to the Commissioner of Police by the appellant under section 33L(2); (d) the notice given under section 33L(3)(b); and (e) a notification of the removal from office. [Section 33R inserted: No. 7 of 2003 s. 6.]” I note firstly that the appellant’s background information is not relevant to the sole ground of appeal, that he is not guilty of the wrongdoing alleged against him. Secondly, according to the NOITR, much of the material was before the Commissioner in the Investigation Final Report which was considered by the Commissioner. Therefore it is not new evidence in accordance with the definition contained in s 33R(11). Further, it does not meet the test of showing that the Commissioner acted upon wrong or mistaken information. Thirdly, had the appellant wished to draw particular attention to that material, he had an opportunity as part of responding to the NOITR. There is no suggestion that putting this material to the Commissioner at that time could have adversely affected his rights in the trial, which was the basis of his limited response to the Commissioner. In these circumstances it is not new evidence, nor is it otherwise justified to receive it now on the ground that it would be in the interests of justice to do so. As to the issue of apprehended bias because of Acting Inspector Ellery’s involvement, the appellant knew of this when he received the NOITR and the attached documents. He did not explain why he did not address this issue at the time he made his response to the Commissioner. There is no suggestion that it was a matter that would have affected his rights in defending the criminal charge. Therefore, it too is not new evidence and the appellant was aware of it and had access to the relevant documents before his removal. I am not satisfied that the matters contained in the disputed paragraphs demonstrate the matters set out in s 33R(3). Although the appellant says in his grounds in this application that there were matters that arose in the trial, and the transcript of both trials is before us, no reference was made to where in the trials they came to light. In fact, they were known before the trial, and before the appellant responded to the NOITR. I would dismiss the application. --- KENNER SC: --- I agree with the reasons for decision of Scott CC and have nothing to add. --- MATTHEWS C: --- I agree with the reasons for decision of Scott CC and have nothing to add.