Aldrich v Ross [2000] QCA 501 [2001] 2 Qd R 235

SUPREME COURT OF QUEENSLAND CITATION: Aldrich v Boulton & Anor [2000] QCA 501 PARTIES: WILLIAM GRANT ALDRICH (applicant/respondent) v KERRY FRANCIS BOULTON (first respondent/not a party to the appeal) CALLUM GRANT ROSS (second respondent/appellant) FILE NO/S: Appeal No 2861 of 2000 SC No 8825 of 1999 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 12 December 2000 DELIVERED AT: Brisbane HEARING DATE: 6 September 2000 JUDGES: Pincus and Thomas JJA, Muir J Separate reasons for judgment of each member of the court, each concurring as to the orders made ORDER: Appeal allowed. Set aside the judgment of the Supreme Court dated 6 March 2000 and in lieu thereof order that the respondent’s application for a statutory order of review is dismissed. Respondent to pay the appellant's costs of the appeal to be assessed. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – GROUNDS FOR REVIEW OF DECISION – ERROR OF LAW POLICE – MISCONDUCT AND DISCIPLINE – QUEENSLAND POLICE – TRIBUNALS AND OTHER AUTHORITIES – nature of appeal available from the decision of a prescribed officer to dismiss a police officer from the Queensland Police Service under the Police Service Administration Act 1990 – where prescribed officer determined that the appellant should be dismissed from the force – where decision of prescribed -- 1 of 25 -- 2 officer overturned by Misconduct Tribunal – whether principles from House v The King (1936) 55 CLR 499 applied to the appeal to the Misconduct Tribunal – whether the Misconduct Tribunal erred in overturning the decision of the prescribed officer in the absence of a demonstrable error of law by the prescribed officer – prescribed officer under no obligation to give reasons for decision – weighing up of indicia as to nature of the appeal – Brideson [No 2] (1990) 170 CLR 267 and Coal & Allied Operations v AIRC (2000) 74 ALJR 1348 discussed – Misconduct Tribunal required to make its own decision on the evidence available - whether Misconduct Tribunal exceeded or misapplied its powers on the appeal – relevant criteria when appeal against penalty is heard upon same material as that before prescribed officer Judicial Review Act 1991 (Qld), s 20(2) Misconduct Tribunals Act 1997 (Qld), s15, s 16, s 20, s 21, s 23, s 24, s 26, 27, s 28 Police Service Administration Act 1990 (Qld), s 7.4 Police Service (Discipline) Regulations 1990 (Qld), reg 9 Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, considered Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322, referred to Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, considered Coal & Allied Operations Pty Ltd v AIRC (2000) 74 ALJR 1348, considered Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, considered Cranssen v The King (1936) 55 CLR 509, referred to Ex parte Australian Sporting Club Ltd; Re Dash (1947) SR(NSW) 283, cited Federated Carters and Drivers’Industrial Union of Australia v Motor Transport and Chauffeurs’Association of Australia (1912) 6 CAR 122, cited Hardcastle v Commissioner of Police (1984) 53 ALR 593, referred to Horne v Locke [1978] 2 NSWLR 88, cited House v The King (1936) 55 CLR 499, considered Police Service Board v Morris (1985) 156 CLR 397, referred to R v Ludecke; ex parte Queensland Electricity Commission (1985) 159 CLR 178, cited R v McIntosh [1923] St R Qd 278, cited R v Williams; ex parte Australian Building Construction Employees and Builders Labourers Federation (1982) 153 CLR 402, cited -- 2 of 25 -- 3 Re Bowen [1996] 2 Qd R 8, referred to Re Coldham; ex parte Brideson [No 2] (1990) 170 CLR 267, considered Re Hodgekiss (1959) 62 SR(NSW) 340, referred to Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, referred to Strange-Muir v Corrective Services Commission (1986) 5 NSWLR 234, considered COUNSEL: W Sofronoff QC for the appellant P A Keane QC with P J Flanagan for the respondent SOLICITORS: Gilshenan & Luton for the appellant Queensland Police Service for the respondent [1] PINCUS JA: I agree with Thomas JA. [2] THOMAS JA: This case raises questions as to the nature of the appeal that is available from a decision to dismiss a police officer from the Queensland Police Service. [3] The appellant (Mr Ross) was a serving police officer holding the rank of senior constable. In February 1999 two charges of misconduct were brought against him. The respondent, Deputy Commissioner Aldrich, was the "prescribed officer"1 for the purpose of hearing the charges. The charges were: "(1) That between 2 and 10 July 1998 the [appellant’s] conduct showed unfitness to be or continue as a police officer in that he: (a) on 5 July 1998 disclosed to his brother confidential information contained in a document classified as secret and which had come into his possession in the performance of his duties as an intelligence analyst. The information was that one Dennis Allen was suspected of being involved in the commission of drug related offences and it was proposed to conduct a covert operation to investigate this suspicion; and (b) on 9 July 1998 disclosed to Dennis Allen confidential information contained in the document. The information was that Allen was suspected of involvement in offences drugs (sic). (2) That between 31 December 1995 and 31 March 1998 the [appellant’s] conduct was improper in that he unlawfully possessed supplies of steroids, a restricted drug, which he had unlawfully obtained from Dennis Allen for his personal use and he assisted his brother Lachlan Ross to obtain supplies of the drug.” 1 Police Service Administration Act 1990 s 7.4. -- 3 of 25 -- 4 [4] The charges were of a disciplinary nature. They did not involve any allegation of official misconduct.2 [5] The appellant was directed by Deputy Commissioner Aldrich to appear before him at a stated time and place "for consideration of what action in relation to the interests of the discipline of the Police Service, if any, should be taken under the provisions of s 7.4(3) of the Police Service Administration Act and s 10 of the Police Service (Discipline) Regulations 1990". The appellant was informed at the outset that he was required to answer the Deputy Commissioner's questions and to answer them truthfully3, and that the matter would be dealt with "as a hand-up brief". That was a reference to documentary evidence which had already been supplied to the Deputy Commissioner and to the appellant. Those documents were kept and a transcript was made of the "police disciplinary hearing" that occurred on 7 April 1999. The evidence [6] The following is a short summary of the facts upon which the appellant fell to be disciplined as revealed by the relevant materials – (i) At the relevant time the appellant was attached to the Bureau of Criminal Intelligence performing duty as an intelligence officer of the Property Crimes Squad. (ii) On 3 July 1998 a document described as a "target application", classified as secret, was given to the appellant by his senior officer Detective Senior Sergeant Costello. It proposed an investigation into alleged cannabis and amphetamine distribution and named three targets, one of whom was Dennis Allen. No actual investigation was contemplated as a police operation. The proposal was an "integrity test" directed to the appellant. (iii) The appellant, who engaged in weightlifting, and the appellant's brother had been supplied steroids by Allen over a number of years. (iv) Upon initiation of the test the appellant became the object of police surveillance. His telephone calls were intercepted and recorded and a listening device was placed in his car. (v) Within minutes of receiving the document the appellant approached Costello and mentioned that he had a problem in that Allen was known to him, and that he would like not to take any further part in the matter. Costello responded by telling him to "just avoid any contact with Allen". (vi) The appellant also sought advice from others including a peer support officer (Weightman) as to what he should do. 2 Charges of official misconduct are the subject of a different statutory scheme. See Criminal Justice Act 1989; Misconduct Tribunals Act 1997 ss 12, 13, 14, 17, 19, 20-25, 27, 28 and 29-36. 3 Such procedure is authorised by Commissioner's directions under s 4.9 of the Police Service Administration Act 1990; see Human Resource Management Manual s 18.4.3 and Police Service (Discipline) Regulations 1990 reg 9(1)(c). -- 4 of 25 -- 5 Most advised him to stay away from Allen and/or not to disclose the contents of the target application. (vii) The appellant was obviously concerned that his acquisition of steroids from Allen might be discovered. (viii) On 5 July 1998 the appellant spoke to his brother when the two men were in the appellant’s car. The appellant discussed the proposed investigation of Allen as it appeared in the target application and expressed concern that Allen might reveal the fact that he had supplied steroids to him and his brother. (ix) On 8 July 1998 the appellant was interviewed by staff employed by the Criminal Justice Commission. He (truthfully) denied that he had disclosed any information to Allen, but did not mention that he had spoken with his brother about the target application. (x) On 9 July 1998 the appellant met Dennis Allen at the Sunnybank Rugby Union field. There was no recording of the conversation that then took place, but the appellant subsequently admitted that he had then disclosed to Dennis Allen that he (Allen) was mentioned in the target application. (xi) The appellant was interviewed by staff of the CJC on 1 September 1998. At that time, the appellant admitted that Dennis Allen had provided him with steroids over a number of years. The appellant admitted that the steroid he got from Allen was Stanozolol, and that he used that steroid to assist with his body building activities. (xii) Stanozolol is listed in the Health (Drugs and Poisons) Regulations 1996 as a Schedule 4 poison restricted drug. It is an offence for a person, other than a medical, dental or veterinary practitioner or pharmacist to sell or have possession of Stanozolol. The maximum penalty is a fine of 60 penalty units ($4,500). (xiii) At the interview on 1 September 1998 with staff of the CJC, the appellant admitted that he had used steroids until early in that year. He also admitted that he had obtained Stanozolol for his brother. Proceedings [7] The appellant was not legally represented in the proceedings before Deputy Commissioner Aldrich who had earlier declined the appellant's request that he be permitted to appear with a legal representative. He was however assisted by a fellow police officer. He admitted the particulars of the charges and made submissions directed towards explaining his activities and mitigating the severity of the disciplinary action that should follow. The respondent found both matters substantiated and made the following order: "I find, after consideration of all the material, that due to your conduct it is in the interest of the discipline of the Queensland Police Service, the community and the efficient and proper discharge of my -- 5 of 25 -- 6 responsibilities under the Police Service Administration Act 1990 that the following sanctions are imposed: Matter 1. You are dismissed from the Queensland Police Service as from termination of duty today 7 April 1999. Matter 2. You are reduced in rank to Constable Pay Point 1." [8] From those orders the appellant brought an appeal to the Misconduct Tribunal, constituted by a barrister, Mr Kerry Boulton. The appeal was allowed and the disciplinary action in respect to both complaints was varied. With respect to the first matter Mr Boulton ordered that the dismissal be suspended for a period of 12 months. This meant that if by the end of the 12 months' period the appellant had committed no further disciplinary breach he would remain a member of the police force.4 This particular power of suspension which is conferred upon the Misconduct Tribunal was not available for exercise by the original decision-maker. Mr Boulton further ordered with respect to the second matter that the appellant be demoted to the rank of constable pay point 5 (rather than pay point 1 as originally ordered). [9] The respondent, Deputy Commissioner Aldrich, then brought an application to the Supreme Court for judicial review of the decision of the Misconduct Tribunal on the ground that the decision was "wrong in law".5 That application was in due course determined by Chesterman J, from whose judgment this appeal has been brought. His Honour's conclusions are contained in the following passage, in which I have substituted the names of the parties in order to avoid what is at this stage the confusing designation of "applicant" and "respondent": "I conclude that Mr Ross in his appeal to the Tribunal did not satisfy any of the preconditions necessary if a discretionary judgment is to be altered. Mr Aldrich's decision did not rest upon a wrong principle of law nor upon a mistake of fact as explained in the authorities. Mr Aldrich did not fail to take account of relevant factors. His decisions are not themselves demonstrative of some hidden error. It follows that in replacing Mr Aldrich's opinion that Mr Ross was not fit to remain a police officer with its own contrary opinion the decision of the Tribunal involved an error of law. Mr Aldrich has, accordingly, made out his ground for a statutory order of review." [10] His Honour considered that the nature of the appeal to the Misconduct Tribunal against the original disciplinary determination was of a strictly limited kind, and that such an appeal could not succeed unless an error of the kind described in House v The King6 could be demonstrated. His Honour also considered Kitto J's words in Australian Coal and Shale Employees’ Federation v The Commonwealth7 to be apposite – 4 See Misconduct Tribunals Act 1997 s 28(2) and s 28(5). 5 Judicial Review Act 1991, s 20(2)(f) and s 20(2)(i). 6 (1936) 55 CLR 499, 504-505. 7 (1953) 94 CLR 621, 627. -- 6 of 25 -- 7 "… the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that the decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law opposes in the court of first instance: House v The King (1936) 55 CLR 499 at 504, 505." [11] That decision concerned the principles applicable to an appeal against the exercise of a discretion of a taxing officer. The nature of the review in a situation like the present of course depends on such indications as appear in the relevant legislation, particularly the Misconduct Tribunals Act 1997 and the Police Service Administration Act 1990. "In every case where the issue is that of the duty and function of an appellate court or tribunal, the only safe starting point is a careful examination of the language and context of the statutory provisions affording the appellate right, together with a consideration of the powers enjoyed by, and duties imposed on, the body to which the appeal lies."8 The original disciplinary decision [12] The initial determination in such a matter is provided for by the Police Service Administration Act 1990. It may be described as an internal procedure. Such a procedure is available for matters ranging from the quite trivial to very serious. Serious "disciplines" may be imposed including penalties carrying serious financial and other consequences. These include dismissal from the force. The appeal to the Misconduct Tribunal is the only avenue of appeal from such a decision. [13] The statutory prescription for the original determination is minimal. It is essentially contained within s 7.4 of the Police Service Administration Act 1990. "Disciplinary action 7.4 (1) In this section – "officer", in relation to a person liable to disciplinary action, includes a police recruit; 8 Coal & Allied Operations Pty Ltd v AIRC (2000) 74 ALJR 1348, 1364 per Kirby J at para 69. Although his Honour's decision was in dissent, there was no difference of view on this fundamental requirement. -- 7 of 25 -- 8 "prescribed officer" means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question. (2) An officer is liable to disciplinary action in respect of the officer's conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations. (2A) If the prescribed officer – (a) decides a disciplinary charge of misconduct brought against the officer; or (b) when deciding a charge of breach of discipline brought against the officer, finds the officer is guilty of misconduct; the commissioner must give written notice of the decision, including the discipline imposed on the officer, or the finding and the discipline imposed on the officer to the criminal justice commission and the officer within 14 days after making the decision or finding; (3) Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of – (a) dismissal; (b) demotion in rank; (c) reprimand; (d) reduction in an officer's level of salary; (e) forfeiture or deferment of a salary increment or increases; (f) deduction from an officer's salary payment of a sum equivalent to a fine of 2 penalty units; (4) Every order made by way of disciplinary action takes effect in law and is to be given effect." [14] The grounds prescribed by the regulations9 are themselves very broad. Thus regulation 9(1) states: "9. Grounds for disciplinary action. (1) For the purposes of section 7.4 of the Act, the following are grounds for disciplinary action: (a) unfitness, incompetence or inefficiency in the discharge of the duties of an officers' position; (b) negligence, carelessness or indolence in the discharge of the duties of an officer's position; (c) a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the Commissioner; 9 Police Service (Discipline) Regulations 1990. -- 8 of 25 -- 9 (d) a contravention of, or failure to comply with, a direction, instruction or order given by any superior officer or any other person who has authority over the officer concerned; (e) absence from duty except – (i) upon leave duly granted; or (ii) with reasonable cause; (f) misconduct; (g) conviction in Queensland of an indictable offence, or outside Queensland of an offence which, if it had been committed in Queensland would have been an indictable offence." [15] In most instances the system will permit the charging an officer by means of a broad allegation such as most of those specified in regulation 9, followed by particulars of the actual conduct on which it is based. The present charges are of this kind. This is in some respects reminiscent of disciplinary systems in the armed forces under which a broad allegation such as "conduct to the prejudice of good order and discipline" is alleged, followed by a relevant particular. That of course is not necessarily the case but it will commonly be so. The appeal to the Misconduct Tribunal: its statutory structure [16] Apart from the availability of an internal police review which is described as "non- adversarial"10, the only appeal from such a decision is that given by ss 15 and 16 of the Misconduct Tribunals Act. These sections give a Misconduct Tribunal "appellate jurisdiction" to hear and to decide an appeal against a finding of misconduct under s 7.4(2A)(b) of the Police Service Administration Act, and against decisions in relation to disciplinary charges of misconduct. [17] Part 4 (ie ss 17 to 36) of the Misconduct Tribunals Act deals with proceedings of Misconduct Tribunals both when exercising what is called original jurisdiction to hear and determine charges of official misconduct, and also when exercising its appellate jurisdiction in respect of matters arising under the Police Service Administration Act. Sections 20, 23, 27 and 28 of the Misconduct Tribunals Act prescribe powers and duties which are applicable to a Misconduct Tribunal in both types of jurisdiction although some parts of those provisions are obviously applicable only to one or other of those functions. Other sections such as ss 15, 16, 18 and 26 deal with the exercise of "appellate jurisdiction" only. It is desirable that sections 20, 23 and 27 be set out: "Misconduct tribunal's powers 20.(1) A misconduct tribunal may give the orders about a proceeding it considers appropriate. (2) A misconduct tribunal may order a person to do 1 or more of the following – (a) attend a hearing until excused; (b) give evidence, on oath or affirmation; (c) give to the tribunal, in the way the tribunal orders – (i) a stated document or class of document; or 10 Police Service Administration Act 1990 s 9.3. -- 9 of 25 -- 10 (ii) a stated thing; or (iii) specified information. (3) Without limiting the ways the tribunal may order a document, thing or information to be given, the tribunal may order that the document, thing or information be given to the tribunal at a stated reasonable place and time; (4) A person to whom a tribunal order applies must comply with the order, unless the person has a reasonable excuse; (5) It is a reasonable excuse for a person to fail to answer a question or to produce a document if answering the question or producing the document – (a) might tend to incriminate the person; or (b) would disclose a communication to which legal professional privilege attaches. (6) The tribunal may enforce its order by filing a copy of it in a registry of the Supreme Court; (7) On filing, the order is enforceable as if it were an order of the Supreme Court; (8) The tribunal may give leave to amend a written charge of official misconduct if satisfied – (a) the amendment is of a minor nature; and (b) giving leave to make the amendment would not be unfair to the prescribed person. Conduct of proceeding 23.(1) When conducting a hearing in a proceeding, a misconduct tribunal must – (a) observe natural justice; and (c) act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before it. (2) In conducting the hearing, the tribunal – (a) is not bound by the rules of evidence; and (b) may inform itself of any thing in the way it considers appropriate; and (c) may decide the procedures to be followed for the proceeding. (3) However, the tribunal must comply with this division and any procedural rules. (4) If the tribunal is exercising appellate jurisdiction, the appeal is by way of rehearing on the evidence ("the original -- 10 of 25 -- 11 evidence") given in the proceeding before the original decision-maker ("original proceeding"). (5) However, the tribunal may give leave to adduce fresh, additional or substituted evidence ("new evidence") if the tribunal is satisfied – (a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or (b) in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence. (6) If the tribunal gives leave under subsection (5), the appeal is – (a) by way of rehearing on the original evidence; and (b) on the new evidence adduced. (7) A person nominated by the tribunal for the purpose may administer an oath or affirmation, or take a statutory declaration, required by the tribunal. (8) The tribunal may conduct a proceeding in the absence of the prescribed person who is the subject of the charge if – (a) for a proceeding in original jurisdiction – it is satisfied the prescribed person has been – (i) given a copy of the charge; and (ii) notified of the date, time and place of the proceeding; and (iii) given the opportunity to be present or to be legally represented at the proceeding; and (b) for a proceeding in appellate jurisdiction – it is satisfied the prescribed person has been – (i) notified of the date, time and place of the proceeding; and (ii) given the opportunity to be present or to be legally represented at the proceeding. Misconduct tribunal may refer matter for investigation 27.(1) A misconduct tribunal exercising original or appellate jurisdiction may, by order, refer a matter for investigation, or further investigation, with a view to the taking of a criminal proceeding or for another purpose. (2) The matter may be referred to – (a) the commission; or (b) the principal officer for the unit of public administration in which the prescribed person is employed. -- 11 of 25 -- 12 (3) The tribunal may adjourn its proceeding until the investigations are completed.” [18] In determining the approach that an appellate tribunal should take in performing its task the courts have often sought indicia that tend to identify it as a recognised type. In 1976 Glass JA11 was able to identify six distinct types of appeal. That classification, with respect, remains helpful, but it is not comprehensive, and sub- categories and differences in the principles to be applied may be found within the types that his Honour identified. The spawning of multiple administrative and quasi-judicial tribunals to serve particular purposes has made it increasingly difficult to make general statements or to identify determinative criteria that characterise a given appeal. It is natural that counsel and courts search for such features and in some of the cases to which reference will be made it was possible in the end to identify the essential nature of the appeal by reference to one or two defining features. However I have not found any such features in the present case as would permit the necessary analysis to be a short one. "[I]n the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing." 12 [19] In Sperway Mason J contrasted two situations which might be thought to represent opposite ends of the spectrum in an exercise of the present kind. Firstly his Honour referred to proceedings where it is difficult to think that an appeal in the strict sense could be feasible – "The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo."13 [20] His Honour then contrasted cases where a tribunal's procedures are much closer to those of courts – 11 in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297. 12 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 621-622 per Mason J ("Sperway"). 13 Ibid at 621. -- 12 of 25 -- 13 "The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance."14 [21] The legislation in the present matter does not readily satisfy either of these descriptions. It is necessary then to understand the structure powers and duties of both the original and the appellate tribunal. [22] The initial disciplinary procedure before the senior police officer would, of course, be subject to rules of natural justice. There is however no express requirement for the officer to hold a hearing or to keep a record of any hearing or other inquiry. He or she is not obliged to hear witnesses or to conform to any particular procedure. In the present case the commissioned officer kept a transcript of the interview that he had with the appellant and the appellant's assistant, but that is irrelevant to the character of the legislative scheme that is now being assessed. There is no requirement that the authorised officer give reasons for the decision.15 The only requirement is that the decision itself be in writing.16 It is therefore lawful for a decision to be made without exposing reasons, without mention of findings of fact and without mention of the matters taken into account in deciding upon the particular order that is made. [23] The appellate procedure in the Misconduct Tribunal is more carefully regulated. It is described as an appeal "by way of rehearing on the evidence … given in the proceeding before the decision-maker". Further evidence may be received, described as "new evidence" but the circumstances in which it may be admitted are restricted. The relevant subsection17 could be described as a liberal statement of rules which are familiar to appellate courts concerning the reception of fresh evidence. The Tribunal is for example given the power to receive such evidence if "in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence". A party is entitled to be represented by a lawyer.18 The tribunal has powers to compel the production of evidence19, and hearings are to be conducted in public unless the tribunal, for good reason, directs otherwise.20 The tribunal has express powers to confirm the original decision, set it aside and substitute a different decision, or set it aside and remit the matter to the decision- maker.21 Its decision is said to be "final and conclusive".22 14 Ibid at 621. 15 Reasons for this conclusion appear below at paras [30] and [31]. 16 Police Service Administration Act 1990 s 7.4(2A). 17 Misconduct Tribunals Act 1997 s 23(5). 18 Ibid s 21. 19 Ibid s 20(2). 20 Ibid s 24. 21 Ibid s 26. 22 Ibid s 26(3). -- 13 of 25 -- 14 [24] Section 28 confers an additional power over and above those of the original decision-maker under s 7.4 of the Police Service Administration Act. The tribunal has the express power to order that a punishment imposed by the original decision- maker be suspended. The original decision-maker has a limited power of suspension of disciplinary sanctions23 but that power is considerably fettered. The power of suspension (under s 28(2)) was actually exercised by Mr Boulton in the present case when he suspended the operation of the dismissal for 12 months. Such a difference in the powers of the respective tribunals is recognised in s 26(2) which states: "In substituting another decision, the misconduct tribunal may impose any punishment provided for on a finding of the charge being proved even though the original decision-maker's power to impose the punishment may have been restricted." [25] A Misconduct Tribunal exercising appellate jurisdiction may refer a matter for investigation or further investigation.24 It would seem that this power is not conditioned upon a finding of error. Basis of decision in Supreme Court [26] Chesterman J, in exercising the power of judicial review under the Judicial Review Act 1991, decided that Mr Boulton had committed an error of law. In reaching that view his Honour favoured what might be termed a minimal view of justifiable intervention by a Misconduct Tribunal in its appellate jurisdiction. His Honour referred to House v The King25, Cranssen v The King26, Stalling v Blizzard27, Re Hodgekiss28, and Bradshaw v Medical Board of Western Australia29. His Honour stated, with reference to the role of Misconduct Tribunals as he saw it: "Their role is the more limited one of reviewing the impugned decision to see whether it was erroneously made. Its role is not to substitute its own judgment for that decision. It is, I think, particularly important that the Tribunals not do so. Their function and that of the Commissioners of the Police Service are very different. The latter have the important and difficult task of managing a large institution whose officers play an important part in society and who are given substantial powers and responsibilities for their task. They must be kept honest, efficient and conscientious. The Misconduct Tribunals do not have particular experience in managing the Police Service. Their function concentrates, as it must, upon particular instances of management. The Tribunals should, I think, be astute not to increase the difficulty of management by undue interference in the process. Interference will be undue if the Tribunals do not bear in mind the restraint imposed 23 Regulation 12 of the Police Service (Discipline) Regulations 1990. 24 Section 27 . 25 (1936) 55 CLR 499, 504-505. 26 (1936) 55 CLR 509, 519-520. 27 Appeal No 2/1990 – a decision of Chesterman QC as he then was in constituting a Misconduct Tribunal. 28 (1959) 62 SR(NSW) 340, 343. 29 (1990) 3 WAR 322, 328. -- 14 of 25 -- 15 on their function by the need for error to be shown before a decision can be overturned. When the error is said to be that a sanction imposed was excessive particular caution is needed. The appellate process focuses on one individual, in a particular circumstance. The management decision is made in a wider context of what is necessary for the service as a whole and the public it protects." [27] These are policy considerations which may make it easier to think that the legislature would have good reason for introducing a system which, in effect, places primary trust and reliance upon the decision made within the police force itself. Indeed, his Honour placed weight upon the fact that under the earlier regime appeals from such decisions had been new hearings in which charges were determined afresh by the tribunals.30 That system was replaced in 1997 by the more limited appeal by rehearing conferred by part 4 of the Misconduct Tribunal Act and in particular s 23. His Honour observed, "The change in description of the jurisdiction from that found in the Criminal Justice Act is surely deliberate". That may be accepted, but it does not follow that there are only two possibilities – determinations de novo and appeals limited by the principles of House v The King. Indeed, the reason for the alteration of the previous system is given in the explanatory notes to the Misconduct Tribunals Bill 199731. It was to increase the independence of Misconduct Tribunals in view of certain concerns that as an organisational unit of the Official Misconduct Division of the Criminal Justice Commission they might be perceived to be under the direction of the director of that division. Various reports from the Parliamentary Criminal Justice Committee were made suggesting a separation of the Tribunal from the Commission. One such report (Report No 13) expressed concern "about the limitations in the tribunal only having the capacity to review disciplinary decisions by hearing matters afresh". The explanatory notes state that that report "recommended that, so that internal disciplinary proceedings were not irrelevant, the tribunal itself should have the power to determine whether a matter should be heard afresh, or on the basis on the record of proceedings below". The explanatory note further states: "The Bill provides an independent mechanism for disciplinary decisions to be made and reviewed in a manner which is consistent with principles of natural justice. The Bill protects the rights of persons who are the subject of disciplinary charges." In my view there is nothing in this explanatory history of the Misconduct Tribunals Act that suggests any intention to curtail the powers of Misconduct Tribunals. On the contrary, so far as there are any indications, the objective was to confer upon them an additional discretion. Nature of appeal to Misconduct Tribunal [28] The sanctions that can be imposed by the original tribunal are far-reaching. The appeal to the Misconduct Tribunal is the only means of external review that has been provided. Counsel were unable to supply any authority in which the principle 30 Criminal Justice Act 1989 ss 40(2) and 49(2). 31 Queensland Acts Explanatory Notes 1997 Vol 2 p 1561 et seq. -- 15 of 25 -- 16 of House v The King has been applied to an appeal from one administrative body to another. However a deal of authority exists on the question whether an appeal is to be determined on the facts that exist at the time of the original decision or at the time of the appeal.32 On this question it has been said that when a court is given the power to hear an appeal from the decision of an administrative body there is a presumption that the court exercises original jurisdiction and should determine the matter on the evidence and law applicable as at the date of the appeal.33 However in Strange-Muir34 McHugh JA considered that the position would be prima facie otherwise in the case of an administrative appeal to an administrative body.35 In Brideson [No 2], which was an appeal from an Industrial Registrar to the Full Bench of the Australian Industrial Relations Commission, the powers of the Commission to "take further evidence" and to "make such order as it thinks fit" were held to point irresistibly to the conclusion that the Commission should decide the case on the facts and law which existed at the date of its decision.36 Deane, Gaudron and McHugh JJ observed: "… it is well settled that, when the legislature gives a court the power to review or hear an 'appeal' against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Ex parte Australian Sporting Club Ltd; Re Dash. Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd."37 [29] In the cases to which reference has been made in which the principles of House v The King have been held applicable, there seems to be an underlying assumption that examinable reasons exist for the decision, or that there exists a right to have reasons that can be scrutinised and to which due respect can be paid. Different principles may well be called for when that underlying assumption is absent. [30] On this last point Mr Keane QC for the respondent submitted that although the original decision-maker had no primary duty to give reasons, the Misconduct Tribunal has power to require reasons to be supplied, namely under s 20(2)(c)(iii) of the Misconduct Tribunals Act. The relevant part of that provision is: "20.(1) A misconduct tribunal may give the orders about a proceedings it considers appropriate. (2) A misconduct tribunal may order a person to do 1 or more of the following – 32 Horne v Locke [1978] 2 NSWLR 88; Strange-Muir v Corrective Services Commission (1986) 5 NSWLR 234; Ex parte Australian Sporting Club Ltd: Re Dash (1947) 47 SR(NSW) 283; Re Coldham; ex parte Brideson [No 2] (1990) 170 CLR 267, 273 – "Brideson [No 2]". 33 Brideson [No 2] above at 273. 34 Stange-Muir v Corrective Services Commission above. 35 Strange-Muir v Corrective Services Commission above at 250. 36 Brideson [No 2] above at 274. 37 Brideson [No 2] above at 273. -- 16 of 25 -- 17 (a) attend a hearing until excused; (b) give evidence, on oath or affirmation; (c) give to the tribunal, in the way the tribunal orders – (i) a stated document or class of document; or (ii) a stated thing; or (iii) specified information." [31] The term "specified information" is not defined. At first glance the orders referred to in s 20(2) would seem to be concerned with the tribunal's fact finding powers. Section 20 is one of those sections which applies not only to the appellate jurisdiction but also to the original jurisdiction of the tribunal. If the "information" in s 20(2)(c)(iii) is meant to include reasons for the decision, then the legislature could certainly have used clearer words. I do not think that in the context of this section that the compulsory provision by the original tribunal of reasons for the decision under appeal at the behest of the Misconduct Tribunal is contemplated. As mentioned above38 there is an express statutory requirement that the officer give "written notice of the decision including the discipline imposed on the officer",39 but there is no similar requirement to give reasons. The better construction would seem to be that "specified information" is information required by the tribunal for the determination of factual issues before it. [32] A number of submissions were made in relation to the significance or otherwise of the use of the words "appeal by way of rehearing" in the relevant legislation. While differing statements may be found in the authorities, the position in my view is now helpfully stated in the following passage from Halsbury's Laws of Australia: "Characterisation of an appeal as in the nature of a rehearing as opposed to an appeal in the strict sense does not necessarily resolve how the appeal will be heard if the appeal raises a question of fact. 'Appeal by way of rehearing' does not have a single well established meaning. Primarily, the meaning of the expression is determined by elucidating the legislative intent. The uncertainty concerns the extent to which the appeal court is restricted to the evidence given in the court below. A rehearing may be a trial over again based solely on the evidence before the lower court or a trial which may include additional evidence admitted by leave of the appeal court essentially to bring the court up to date, or it may be a rehearing in the full sense of the term, a hearing sometimes described as a 'hearing de novo', that is, a hearing at which the parties may adduce fresh evidence as of right. The expression 'appeal by way of rehearing' is ordinarily employed to indicate that the appeal court is not confined to the law and facts at the time the decision appealed from was made and that, in addition, the court has power to receive further evidence. Standing alone, however, the words are not to be lightly taken to mean that there is in effect a retrial of the issues between the parties."40 38 See para [22]. 39 Police Service Administration Act 1990 s 7.4(2A). 40 Halsbury's Laws of Australia par 325-11110. -- 17 of 25 -- 18 However, those observations should be read subject to the recent observation of Gleeson CJ, Gaudron and Hayne JJ that "There is, … no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another."41 [33] The problems attending the characterisation of appeals and the various factors that may call for different approaches to be taken and principles to be applied were considered by the High Court in Coal & Allied Operations v AIRC42, especially by Gleeson CJ, Gaudron and Hayne JJ at pars [12] to [14], by Kirby J at pars [68] to [72] and by Callinan J at pars [116]-[120]. Further reference will be made to that decision a little later. [34] At this point it is enough to note that the use of the words "appeal by way of rehearing" cannot resolve the present matter. It has a limited relevance, but the identification of the nature of the appeal and the principles upon which it is to be conducted must be decided by a variety of other factors that are to be inferred from the legislation. [35] There is some force in the submission of Mr Sofronoff QC for the appellant that in the absence of any obligation to give reasons it is difficult to see a legislative intention that the appeal be of a kind that requires the principles of House v The King to be applied. An absence of reasons would deny proper scrutiny of the manner in which the discretion was exercised. [36] In the present case the interview between the appellant and the respondent was recorded. Immediately preceding the announcement of the findings Mr Aldrich made some remarks which may fairly be regarded as intended to be a limited statement of reasons. However on a material point there was some ambiguity. The following passage was relied on by counsel for the respective parties for quite different submissions: "You took the advice of your superiors to a certain degree and, unfortunately, chose not to follow that advice to its fullest. I can't excuse your actions in disclosing that information to Ross and to your brother, Lachlan, and to Allen and whilst I note the matters in your submission about what you see as mitigating circumstances I can't see any such circumstances and I direct that you be dismissed from the Queensland Police Service and I'm not prepared to suspend that sanction – either sanction." (My emphasis) The difficulty arises from the words "I can't see any such circumstances". This led to differing submissions before us as to whether an error of the kind recognised in House v The King was thereby exposed. There certainly were mitigating circumstances, and if Mr Aldrich gave no weight at all to them then an error would be revealed. His earlier statements indicate that he was aware of such factors. Perhaps he meant that although aware of such factors he did not think they were sufficient to dissuade him from imposing the dismissal, but he did not say so. An 41 Coal & Allied Operations v AIRC (2000) 74 ALJR 1348, 1353 per Gleeson CJ, Gaudron and Hayne JJ at para [11]. 42 above. -- 18 of 25 -- 19 alternative submission was that the statement reveals at least that insufficient weight was placed upon these factors. However an immediate difficulty confronts that submission if indeed the tribunal is governed by the principles of House v The King. A further question was then raised as to whether it was reasonably open to Mr Boulton to take the view which he apparently took of that statement, namely that it revealed an error. If such a view was reasonably open to Mr Boulton it was submitted that it could not be shown that he erred in allowing the appeal. These questions exemplify the types of difficulty that are prone to arise if, as the respondent contends, the appeal to the tribunal is limited to an appeal in the strict sense. [37] For reasons which will be further developed I have concluded that the appeal to the Misconduct Tribunal should not be taken to be limited by the principles of House v The King, or by the need to identify some error that the original decision-maker had committed. It is an appeal in which the appellate tribunal is entrusted with making its own determination on the evidence before it whether or not new evidence is received. Mr Sofronoff did not in the end submit that the appeal is a rehearing de novo, and limited himself to the submission that it is an appeal in the nature of original jurisdiction. Without dissenting from that description I would prefer to describe it as the members of the High Court described the appeal in Brideson [No 2], namely as an appeal in which the tribunal "was bound to make its own decision on the evidence before it."43 Their Honours considered the words of Higgins J in the Federated Carters case44 to be apposite: "the appellant is entitled to have … a re-hearing, a 'review' of the decision … He is entitled to such judgment as I can bring to bear upon the question, independently of the Registrar, although, of course, I should attach a good deal of weight to the Registrar's view."45 The High Court concluded in Brideson [No 2] that it would be inappropriate to confine such an appeal to the principles that relate to the function of a tribunal sitting on appeal from the exercise of a discretion. The court observed that "once leave was granted, the Commission was bound to make its own decision on the evidence before it, including any further evidence admitted … ".46 The appeal in Brideson [No 2] was from the Registrar to the Australian Industrial Relations Commission under s 88F of the Conciliation and Arbitration Act 1904. [38] In Coal & Allied Operations v AIRC47 a different view was taken as to the nature of the appeal provided by s 45 of the Workplace Relations Act 1996 (Cth) from a decision of the Australian Industrial Relations Commission to the Full Bench of that Commission. Brideson [No 2] was distinguished in this way: 43 (1990) 170 CLR 267, 274. 44 Federated Carters and Drivers' Industrial Union of Australia v Motor Transport and Chauffeurs' Association of Australia (1912) 6 CAR 122, 123. 45 Cited in Brideson [No 2] above at 275; The Federated Carters case was an appeal from the registrar to the President of the Commonwealth Court of Conciliation and Arbitration, under the Commonwealth Conciliation and Arbitration Act 1904-1911. 46 Brideson [No 2] above at 275. 47 (2000) 74 ALJR 1348. -- 19 of 25 -- 20 "[15] The provision considered in Brideson [No 2] conferred power on the Commission to take further evidence, a provision which is indicative of an appeal by way of rehearing. It also required the Commission to 'make such order as it [thought] fit’.48 The latter requirement indicated that the Commission's appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it. [16] The terms of s 45 of the Act are different from the terms of the provision considered in Brideson [No 2]. Unlike that provision, s 45 does not require a Full Bench of the Commission to 'make such order as it thinks fit'. Nor is there anything else in the terms of s 45 to suggest that the powers of a Full Bench are exercisable or, as in Brideson [No 2], are required to be exercised in the absence of error on the part of the primary decision-maker."49 [39] In contrast to the legislation reviewed in the Coal & Allied Operations case, in the present case the Misconduct Tribunal "may give the orders about a proceeding it considers appropriate",50 and may "set aside the decision and substitute another decision".51 The decision in the Coal & Allied Operations case was to the effect that the Full Bench of the AIRC had not misconceived its role or duty in identifying the appeal to it under s 45 as dependent upon error being shown in the decision making process of the primary tribunal, and it was acknowledged that House v The King states the principles concerning identification of error in the decision making process in relation to judicial discretions.52 The High Court rejected the notion (which had been expressed in the Full Court of the Federal Court) that because s 45 contemplated appeals from various different types of decision some of which involve discretionary powers and others of which do not, several types of appeal were created depending upon the power, act or function against which the appeal was brought. The majority judgment states "The Full Court was in error in thinking that the nature of an appeal under s 45 differs according to the nature of the decision under appeal".53 It may also be inferred that although the power of the appellate tribunal to receive further evidence is a relevant matter in determining the nature of the appeal, it is not necessarily an overpowering factor. [40] On my analysis the relevant indicia applicable to the present appeal to the Misconduct Tribunal fall much closer to those in Brideson [No 2] than they do to those in the Coal & Allied Operations case. The legislation here however does not 48 Brideson [No 2] above at 272. 49 Per Gleeson CJ, Gaudron and Hayne JJ at 1353, 1354. 50 Misconduct Tribunals Act 1997 s 20(1). 51 Ibid s 26(1)(b). 52 Coal & Allied Operations case above pars [21], [25], [31], [32]. Callinan J regarded a s 45 appeal as more broadly based – see pars [126], [132]. Kirby J considered that the appeal was by way of rehearing, but not de novo, and that absent a demonstration of error on the part of the primary tribunal, it was not open to the Full Bench to vary the original decision – pars [75],[ 77]. 53 Ibid para [18]. -- 20 of 25 -- 21 as clearly favour the conclusion that the appeal is in the nature of original jurisdiction as the legislation in Brideson [No 2]. The Misconduct Tribunal is given only a qualified power to receive further evidence, although it has a liberal discretion in this respect. Standing alone that factor would tend to favour an appeal in the strict sense. That tendency however is outweighed in my view by many others. These include the absence of obligation on the original decision-maker to keep a record; the absence of any right to legal representation for the police officer; the requirement that the police officer answer questions and do so truthfully; the seriousness of the orders that the original decision-maker may make; the recognition by the legislature of the need for an external review which it is unlikely to have intended to be ineffectual; the absence of obligation upon the original decision-maker to give reasons; the wide range of issues that come before the original decision-maker, ranging from findings of misconduct to discretionary matters such as determination of the appropriate sanction; the breadth of the Misconduct Tribunal's power to find facts and investigate54; its power to make orders that could not be made by the original decision-maker55; its power to "give the orders about a proceeding it considers appropriate" and to set aside the decision and substitute another decision; 56and the finality of its orders.57 [41] In the end, although there are countervailing factors, I consider that the Misconduct Tribunal is required to make its own decision on the available evidence rather than merely to determine the correctness of the original decision in the limited manner permitted by an appeal in the strict sense against the exercise of a discretion. [42] Some further matters deserve mention. There is considerable force in the observations of Chesterman J concerning the role of the Commissioners of the Police Service, their managerial role and their knowledge of the needs of the police force58. However it does not follow that a Commissioner would bring to bear the same perception of public interest as that of an outsider. The purpose of misconduct and discipline proceedings within the Police force has been identified in a number of decisions including Hardcastle v Commissioner of Police59, Police Service Board v Morris60 and Re Bowen61. The protection of the public, the maintenance of public confidence in the Service and the maintenance of integrity in the performance of police duties are the primary purposes of such proceedings. The provision of some outside surveillance is hardly surprising in such a context. [43] Some similarity is noticeable between the system of police discipline and the traditional disciplinary procedures in the armed forces. There are many merits in Orderly Room discipline but it has its limitations. Even in the armed forces if a person is to be cashiered he or she is entitled to the benefit of a full court martial. The provision of a system which permits one external public review of the disciplinary decision is not only the protection against a wrong or unacceptable decision, it is also the provision of a source which can be expected to bring a 54 Ibid ss 20(2), 23(2), 27. 55 Ibid s 28, s 26(2). 56 Ibid ss 20(1) and 26(1)(b). 57 Ibid s 26(3). 58 See above paras [26] and [27]. 59 (1984) 53 ALR 593. 60 (1985) 156 CLR 397, 411. 61 [1996] 2 Qd R 8. -- 21 of 25 -- 22 perspective to bear from the public point of view. That is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the Misconduct Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force. To do so would be consistent with the observations of Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission62 at least so far as non-jurisdictional questions are concerned, and particularly when the evidence upon which the appeal tribunals act is essentially the same as the evidence below.63 [44] In the present case Mr Boulton can be seen to have conducted a thorough review of the evidence and to have brought relevant considerations to bear in determining an appropriate penalty. He attempted to do so after conducting a comparative survey of other known cases of the imposition of discipline. No similar exercise appears to have been attempted by the Deputy Commissioner in the original hearing. He may well have been aware of what had happened in other disciplinary cases, but if this was taken into account no mention was made of it. It would, I think, be surprising if the legislature intended that a person could be dismissed from the force without any of the trappings of a recognised judicial procedure, and without an effective form of external review. For the reasons which have been set out at some length above I do not think that effective review would be achieved by an appeal limited to the principles of House v The King. Relevant considerations in appeal to Misconduct Tribunal against severity of penalty [45] The issue on appeal to the Misconduct Tribunal in the present matter was expressed by the appellant as whether the penalties were manifestly excessive in all the circumstances. For the reasons which have been given, the first duty of a Misconduct Tribunal is to make up its own mind as to the facts that are proved by the evidence and the inferences that should be drawn from those facts, giving appropriate weight to the opinion of the original decision-maker. If the materials are inadequate, there is adequate power to obtain further information under ss 20 and 23(5). If further evidence were received the proceeding would necessarily become a rehearing de novo. If there is no serious contest as to the primary facts (as was essentially the position here), it is still necessary for the Misconduct Tribunal to make up its own mind on the facts and on the inferences to be drawn from them, though it might well see them the same way as the original decision- maker if that person's view of the facts is ascertainable. The exercise is quite different from that which takes place in this court in sentence appeals against the exercise of a judicial discretion, where the principles of House64 and Cranssen65 apply, and where the essential issue is often compendiously reduced to whether the 62 (2000) 199 CLR 135, 154-155. 63 Compare R v Ludeke; ex parte Queensland Electricity Commission (1985) 159 CLR 178, 184; R v Williams; ex parte Australian Building Construction Employees and Builders Labourers Federation (1982) 153 CLR 402, 411. 64 (1936) 55 CLR 499, 505. 65 (1936) 55 CLR 509, 519. -- 22 of 25 -- 23 sentence is manifestly excessive.66 If the Misconduct Tribunal has the same view of the facts and inferences as the original tribunal, it would again be appropriate to give considerable respect to the views of the original tribunal as to the appropriate disciplinary sanction67, but the ultimate determination must be that of the Misconduct Tribunal. Did the tribunal err in allowing the appeal? [46] Mr Boulton referred to a number of matters that were advanced in mitigation. These may now be re-stated: "A number of matters were advanced in mitigation. It was pointed out that the appellant had initially acted quite properly when he became aware of a target application which named a person who was personally known to him. What the appellant then did was to approach Senior Sergeant Weightman and contact Mr Costello with a view to having himself disqualified from or relieved of the task of handling that particular application. It was further submitted on behalf of the appellant that within a short time of his becoming aware of the application, the appellant began to suspect that he was the target of the investigation rather than Allen. His suspicion placed him under considerable stress. It was submitted to the respondent that as time went on, the appellant was "virtually convinced" that the target application was not a genuine one. Another matter raised was that the disclosure to his brother, Lachlan, was brought about by immaturity, uncertainty and possibly a degree of panic. It was said that the appellant "needed" to discuss the matter with someone and, accordingly, he spoke to his brother with whom he had a very close relationship. It was submitted that that disclosure was, in the circumstances, understandable, if not excusable. As far as Allen is concerned, it was submitted that the disclosure to Allen occurred at a time when the appellant was at least reasonably convinced that Allen was not a target of the investigation at all. It was further submitted that the disclosure to Allen was extremely limited and was made with a view to confirming the appellant's suspicions that Allen was not in fact a genuine target of investigation. It was further submitted that the appellant had no corrupt motive in making the disclosure either to his brother or to Allen. He was not attempting to warn Allen about any potential investigation; he did not seek to induce Allen or his brother, Lachlan, to lie about his own 66 R v McIntosh [1923] St R Qd 278. 67 Corporation of the City of Enfield v Development Assessment Commission above at 155. -- 23 of 25 -- 24 involvement with steroids; he did not actively try to prevent disclosure of his own unlawful activity. It was further submitted that the appellant's past service as a police officer was commendable with only one relatively minor blemish on his record of over seven years. It was submitted that the appellant had been willing to serve in difficult, and possibly unpopular, areas. He had made a timely acknowledgment of his guilt, both in relation to the disclosure of information and in relation to his use of steroids for "body building" purposes in the past. He had also shown genuine remorse for his behaviour." [47] Mr Boulton proceeded to recognise the seriousness of what the appellant had done, and considered that it was a matter of considerable importance that at the time of the disclosures the appellant was an intelligence analyst dealing with highly secret and sensitive material in the Bureau of Criminal Investigation. Mr Boulton's essential reasoning included the following: "Although the disclosures in the present case were serious instances of misconduct, particularly for a police officer holding the position that the appellant then held, there were a number of mitigating circumstances which ought to have been, but were not, given appropriate weight, by the respondent." and "In my opinion, the sanction of dismissal that was imposed by the respondent in relation to the first matter was manifestly excessive. Accordingly, the appeal is allowed. In my opinion, a proper sanction in relation to the first matter is a suspended dismissal. Accordingly, I propose simply to order that, pursuant to s 28 of the Act, the punishment of dismissal imposed by the respondent on the 7 April 1999 be suspended for a period of 12 months from the date of this order." He was entitled, indeed obliged, to consider the matter afresh, and if he thought necessary to use a power not possessed by the original decision-maker. [48] The view which Mr Boulton took of the relevant conduct of the appellant was open to him. I am satisfied that this is so after having been taken rather extensively to the facts by Mr Sofronoff on behalf of the appellant. Without expressing any concluded opinion on the best view or interpretation of the evidence, I am content to say that the view taken by Mr Boulton was open to him. On such a view, the disciplinary sanction of dismissal from the force was excessive, and in the exercise of his function Mr Boulton was entitled to conclude that it was manifestly so and that the decision should be set aside and replaced with the lesser sanction that he imposed. [49] It follows that I do not think that Mr Boulton exceeded or misapplied the powers that the relevant legislation required him to exercise. -- 24 of 25 -- 25 [50] There was therefore no valid basis upon which Mr Boulton's decision could be set aside upon judicial review. No error of the kind mentioned in s 20 of the Judicial Review Act 1991 was revealed. [51] It is fair to say that if the appeal were of the limited kind contended for by the respondent, I would hold that Mr Boulton did misapprehend his powers and that an error of law would be apparent in the approach which he took to the matter. It is clear enough from his reasons that he did not regard the appeal as an appeal in the strict sense against a discretionary decision of an original tribunal, or as one in which he could set aside the original decision only if error of the kind recognised in House v The King could be demonstrated. Orders [52] In the result the appeal should be allowed. The judgment of the Supreme Court dated 6 March 2000 should be set aside and in lieu thereof the respondent's application for a statutory order of review should be dismissed. The respondent should pay the appellant's costs of the appeal to be assessed. [53] MUIR J: I have read the draft reasons for judgment of Thomas JA. I agree that the appeals should be allowed for the reasons given by his Honour. -- 25 of 25 --