Commissioner of Police v Moore CA138/01 [2001] NZCA 403; [2002] 2 NZLR 83; [2001] ERNZ 638 (28 November 2001)

Last Updated: 18 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 138/01

	BETWEEN	THE COMMISSIONER OF POLICE
		Appellant

	AND	CHRISTOPHER JOHN MOORE
		Respondent

Hearing:	6 November 2001
Coram:	Richardson P Blanchard J Anderson J
Appearances:	P J Dymond and C K Treadwell for Appellant R M Crotty and K M Drysdale for Respondent
Judgment:	28 November 2001

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1] This is an appeal from a judgment of the Employment Court in respect of a personal grievance by a police constable who had purportedly been removed from his employment as such by an Assistant Commissioner of Police on the grounds of serious misconduct. It is accepted that Assistant Commissioner Trendle was acting as the authorised delegate of the Commissioner of Police.
[2] The principal question of law on the appeal is whether the power to remove a member of the Police from employment, accorded to the Commissioner by s5(4) of the Police Act 1958 is, in the case of alleged misconduct, fettered by the necessity for an inquiry pursuant to s12 of the Act. In the present case no such inquiry took place.
[3] The Employment Court held that the Commissioner’s power to remove a police officer is subject to the disciplinary procedures under the Act and in view of the failure to follow those procedures there was doubt whether the decision to dismiss the respondent was reasonable. Accordingly there was an order directing that the respondent be reinstated as a member of the New Zealand Police.

The factual background

[4] The case arose from an incident in a car park of a hotel where Mr Moore, being off duty, was attending a colleague’s party. He was considerably affected by alcohol when, shortly after midnight, he went out to the car park and formed the impression that an elderly man at the wheel of a car was unfit to drive. Mr Moore tried to take the keys to the car. When the man resisted, Mr Moore assaulted him by striking him on the side of the face, causing bruising and a small cut to the inside of the mouth.
[5] The victim of the assault, far from having been affected by liquor, was a long-standing teetotaller. He had been a guest at the hotel and had decided to shift his car from the car park for security reasons. Understandably distressed and angry at the incident he complained to the Police with the result that Mr Moore was subsequently suspended and charged with assault.
[6] The charge was defended in a summary hearing in the District Court but found to be proved. Being anxious not to pre-empt Police disciplinary procedures in relation to Mr Moore’s future, the District Court Judge came to the conclusion that there should be an order for discharge without conviction under s19 of the Criminal Justice Act 1985 on payment of witness expenses of $682.70, $500 costs and $500 reparation payable to the complainant.
[7] On 29 May 1998, the day following the District Court sentencing, Mr Trendle wrote to the respondent to advise that because of the seriousness of the matter he was giving consideration as to whether or not Mr Moore should be removed from the New Zealand Police pursuant to s5(4) of the Police Act 1958. The Assistant Commissioner made it plain that he had not formed any opinion at that stage as to Mr Moore’s suitability to remain a member of the Police and that he was providing an opportunity for submissions to be made to him on that issue. On 22 June 1998, with the benefit of assistance from an Industrial Officer for the New Zealand Police Association, Mr Moore wrote to Mr Trendle at some length setting out mitigating factors.
[8] On 7 July 1998 the Assistant Commissioner wrote to Mr Moore informing him that he was removed from employment in the New Zealand Police and that removal took effect immediately. The letter set out, fairly extensively, the Assistant Commissioner’s reasons for that decision.
[9] Mr Stuart, the Industrial Officer assisting Mr Moore, met with Mr Trendle on 14 July and followed this with a letter of 21 July 1998 setting out the personal grievance which was later tried by the Employment Court. Mr Trendle replied at some length on 10 August 1998. He reiterated his view that Mr Moore’s actions in assaulting the complainant were, in the circumstances, fundamentally incompatible with the office he held and amounted to an abuse of authority and office of a very serious kind.
[10] Assistant Commissioner Trendle responded to a complaint that Mr Moore’s denial of the charge was held against him by explaining that because Mr Moore denied the assault the Assistant Commissioner was unable to give him credit for a prompt and unequivocal acknowledgement of his actions.

The Employment Court judgment

[11] The litigation of the dispute began in the Employment Tribunal on a statement of claim which alleged that the decision to dismiss Mr Moore was flawed and unjustified in various respects largely concerned with alleged deficiencies of process. The issue of a fetter on the Commissioner’s power to remove from employment was not indicated on the pleadings but emerged inchoately in questions of law for the consideration of the Employment Court, to which the dispute had been transferred from the Employment Tribunal. The questions were in the following forms:

• (1) Whether the Commissioner, before he made the decision to dismiss the applicant, had to consider and take account of the District Court’s deemed acquittal of the applicant, either (a) as a comment from the Judge in favour of the applicant not being dismissed, or (b) as if it were a comment of the Police Disciplinary Tribunal under reg 26(2) of the Police Regulations 1992 in favour of the applicant not being dismissed.
• (2) Whether the Commissioner, before he made the decision to dismiss the applicant, if he decided not to consider the deemed acquittal either (a) as a comment from the Judge in favour of the applicant not being dismissed, or (b) as if it were a comment of the Police Disciplinary Tribunal under reg 26(2) in favour of the applicant not being dismissed, had to obtain and take account of the comments of a Police Disciplinary Tribunal, under reg 26(2).

[12] The Employment Court Judge answered those questions in a way which underlined the necessity for the Commissioner to make his own assessment of the matters relevant to the question of removal and to decide in accordance with that assessment. In short, the answer to both limbs of the first question was in the negative and the answer given by the Court to the second question was as follows:

It is inappropriate for the Commissioner to treat the District Court’s decision to grant a s19 discharge as an indication of the action to be taken. However it was encumbent on the Commissioner faced with a finding of guilty but no conviction to convene a Police Disciplinary Tribunal to inquire into the matter and take account of its report.

[13] But, as often happens, the crucial question became more evident as the case progressed. The issue whether Mr Moore’s removal from employment was reasonable necessarily required a consideration whether there were statutory constraints on the exercise of the Commissioner’s power to remove from employment accorded by s5(4) of the Act.
[14] The Employment Court held that a Commissioner’s power to remove was subject to the provisions of the Police Act 1958 which included s5A and s12; that the Commissioner had failed to follow the statutory disciplinary procedure provided for in the Police Act and regulations; and that Mr Moore had accordingly been deprived of potentially beneficial opportunities which would have been available if the statutory procedure had been followed. Accordingly the removal from employment was not shown to have been reasonable. We will examine the nature of those opportunities later in this judgment, it being sufficient at this stage to note our concurrence with the Employment Court Judge’s approach to the statutory regime.

Principal arguments for the appellant

[15] Counsel for the appellant submitted that the Employment Court erred in law in the following respects:

• (1) in holding that the Commissioner was required to appoint a Tribunal under s12 of the Police Act in circumstances where Mr Moore had been found guilty of assault in the District Court;
• (2) in holding that the discharge without conviction under s19 of the Criminal Justice Act 1985 made it incumbent on the Commissioner to hold a s12 inquiry;
• (3) there was no basis for finding that the lack of a disciplinary inquiry rendered the dismissal process unfair;
• (4) the Judge was wrong to conclude that the absence of a disciplinary inquiry rendered the removal process unreasonable and had cast doubt on whether the decision to dismiss was reasonable;
• (5) the Judge substituted her view for that of the Commissioner as to whether Mr Moore had unreservedly accepted responsibility for the assault; (We note that in the course of argument counsel did not press this submission after acknowledging that the Judge was really giving an example of the significance of the implications of the statutory process, rather than substituting her own view on that point.)
• (6) if the dismissal was unjustified, nevertheless the Judge erred in failing to consider Mr Moore’s conduct when ordering reinstatement. It was submitted that if such conduct had been considered, reinstatement would not have been open and any monetary compensation would have been reducible pursuant to s40(2) and s41(3) of the Employment Contracts Act for the contributing actions and fault on the part of Mr Moore.

[16] The first of those submissions concerns the crucial issue in this case, the other matters being subsidiary. As the argument developed in this Court attention was focused, more keenly than had been the case in the Employment Court, on the validity rather than the reasonableness of the decision to dismiss Mr Moore.
[17] Mr Dymond submitted that s 5A is permissive and does not stipulate an inquiry as a condition of the exercise of the removal power. He submitted that it was entirely a matter of discretion for the Commissioner whether an inquiry were held in a particular case, and relevant to that discretion was the question whether a fact finding process was necessary. In the present case misconduct had been proved to a criminal standard in the District Court and that rendered it unnecessary for the Commissioner to hold an inquiry and reasonable for him not to do so. Once the facts have been established the question of dismissal becomes one of fair procedure having regard to those facts. The Employment Court Judge had approached the matter in terms of the reasonableness of the dismissal but was wrong in her conclusions on that point for the various reasons referred to above as subsidiary.

Principal arguments for respondent

[18] Counsel for the respondent submitted that the Employment Court did not err in law in holding that the Commissioner was required to appoint a Tribunal under s12 of the Act. The indications for this were that an inquiry is the Commissioner’s own process for investigating alleged misconduct; the District Court trial was concerned with the issue whether an assault occurred, not the circumstances of the assault which might be relevant to an employer’s decision; and such a view is consistent with the decision of this Court in Commissioner of Police v Carrington [1996] 1 NZLR 135.

Relevant provisions of the Police Act

[19] The Commissioner’s power to dismiss is founded in the Police Act. Section 5(4) of the Act provides as follows:

(4) Subject to—

(a) The provisions of this Act, any general instructions issued under section 30 of this Act, and any regulations made under section 64 of this Act; and

(b) The conditions of employment set out in any agreement under section 67 or section 75 of this Act; and

(c) The conditions of employment set out in any individual contract of service under this Act,—

the Commissioner may at any time remove any member of the Police from that member's employment

[20] Section 5(4)(a) requires a consideration of the provisions of the Act, any General Instructions and Regulations to which the general power may be subject.
[21] Section 5A provides:

5A Members may be removed for incompatible behaviour

(1) The Commissioner may institute the removal of a member of the Police from that member's employment if, following an inquiry under section 12 of this Act into alleged misconduct (in the case of a sworn member of the Police), or following an investigation into alleged serious misconduct (in the case of a non-sworn member of the Police), the Commissioner has reasonable grounds for believing—

(a) That the member has behaved in a manner which is incompatible with the maintenance of good order and discipline within the Police or which tends to bring the Police into disrepute; and

(b) That the removal of the member is necessary to maintain good order and discipline within the Police or to avoid bringing the Police into disrepute.

(2) Subsection (1) of this section applies to behaviour of any kind including, but not limited to, sexual behaviour of a heterosexual, homosexual, lesbian, or bisexual kind.

[22] Relevant parts of s12 provide:

12 Inquiry into misconduct

(1) Where any misconduct or neglect of duty is alleged against any sworn member of the Police, the Commissioner may appoint one or more persons to inquire into the alleged misconduct or neglect of duty and to report to the Commissioner on that matter.

(2) Where such an allegation is made against any sworn member of the Police, the Commissioner may suspend the member from duty under section 32 of this Act, but shall not take any other action against that member in respect of a matter being investigated under this section until the Commissioner has considered the report to be provided under this section.

(3) The person or persons holding the inquiry shall—

(a) Take all reasonable steps to ensure that the member against whom the allegation is made is given notice of the reasons for the inquiry; and

(b) Give the member or his or her counsel or agent a reasonable opportunity to make submissions and be heard in respect of the allegation.

(4) The person or persons holding the inquiry shall follow the procedure prescribed in regulations made under section 64 of this Act, but may receive any relevant information whether or not the same information would be admissible in a Court of law.

(5) For the purposes of this section the person or persons holding any such inquiry shall have the same powers and authority to summon witnesses and receive evidence as are conferred upon Commissions of Inquiry by the Commissions of Inquiry Act 1908, and the provisions of that Act, except sections 11 and 12 (which relate to costs), shall apply accordingly.

Relevant provisions of the Police Regulations 1992

[23] Regulation (9) contains 42 clauses defining offences of misconduct or neglect of duty constituting, along with the Act, what this Court described in Commissioner of Police v Carrington (at p138) as:

... a comprehensive code covering any action against members in respect of the broadest description of misconduct and neglect of duty.

[24] Of particular relevance in the present case are the offences of “treating any person ... with unnecessary force or violence” (reg 9(5)); “being guilty of disgraceful conduct or conduct tending to bring discredit on the Police” (reg 9(12)); “any act, conduct, disorder, or neglect to the prejudice of good order ... or discipline of the Police, though not specified in these regulations”. (reg 9(42)).
[25] The regulations also stipulate procedures of considerable potential benefit to persons charged. These include a right under reg 14(3) to request the Commissioner to give an indication as to penalty. Pursuant to reg 14(7) any indication which might be so given is binding on the Commissioner if the member of Police admits the charge. Regulation 21 defines a procedure for the Tribunal to receive oral or written submissions as to penalty both from the prosecutor and from the member charged where a charge is admitted or established. Regulation 26(2) provides that in reporting to the Commissioner:

... the Tribunal shall forward all submissions as to penalty and all replies to those submissions made by the prosecutor and the member respectively. In addition, the Tribunal may itself make any comment as to penalty based on any evidence, or arising from submissions or replies heard or received by it.

[26] Section 30(1) of the Police Act provides:

30 General instructions

(1) The Commissioner may from time to time issue general instructions, not inconsistent with the provisions of this Act or regulations made thereunder, and all members of the Police shall obey and be guided by those instructions.

Police General Instructions

[27] The Police General Instructions IA 127 9e, 9f, and 10b, are applicable where it is intended that a sworn member of Police is to face disciplinary charges. They provide for the forwarding to the Commissioner of submissions as to penalty and require the Commissioner to consider the Tribunal’s findings.
[28] Police General Instructions IA 128 2 apply in any case where a sworn member pleads guilty to or is found guilty of any criminal charge in any Court. Under General Instruction IA128 2b, where the Commissioner considers that the circumstances are such that serious consideration should be given to dismissing that member the Commissioner shall invite that member to make submissions. No requirement to convene a Tribunal is indicated.
[29] It is clear that Assistance Commissioner Trendle applied the General Instructions IA128 in the present case but for the reasons set out hereunder we have to conclude that to the extent that General Instruction IA 128 purports to obviate the s12 inquiry procedure it is inconsistent with the Act and therefore invalid.

Was the Commissioner lawfully able to dismiss Mr Moore without a section 12 Inquiry being conducted?

[30] The short answer is no. The power of removal accorded by s5(4) is expressly subject to the Act, Regulations and General Instructions. Mr Moore was dismissed for behaviour which on any view amounted to alleged misconduct and therefore came within the contemplation of s5A(1).
[31] This Court held in Carrington that the Commissioner’s power under s5(3) of the Act to assign rank could not be exercised to reduce a member in rank without there first being a s12 inquiry. There can be no less a fetter on a power to remove from employment for misconduct, particularly when that power of removal is expressly subject to other provisions in the Act, including s5A.
[32] Counsel for the appellant submitted that the terms of s5A(1) were merely permissive and that the Commissioner had a discretion whether to invoke the inquiry procedure. That submission misconstrues s5A. The discretionary element is the decision to remove following an inquiry under s12 and if the stipulated reasonable grounds for belief are present. The Commissioner may no more take a discretionary side-step around the precedent condition of an inquiry than he could elect to exercise the power in the absence of the mandatory grounds for belief.
[33] Counsel for the appellant submitted that it was unnecessary for the Commissioner to instigate an inquiry because he had relevant information, including the findings and sentencing response of the District Court. That of course explains the Commissioner’s reasons but cannot justify them in the face of the statutory fetter on the exercise of the power to remove. And as well as the respondent’s entitlement to procedures potentially beneficial in the ways discussed, it also overlooks the benefit to the Commissioner, when making a decision, of the Tribunal’s independent report reached after a hearing including as to penalty. In short, those indications for the mandatory fetter which lie in fairness and good governance were bypassed.
[34] Mr Dymond expressed a concern that long and expensive inquiries might be needed even in obvious cases of serious criminality. The potential for the iteration of a criminal trial before a Tribunal was suggested as an indication against a mandatory fetter.
[35] The statutory scheme is clear however and we think there is little realistic risk of an inquiry acquiring the character of a complex criminal trial. We would expect a Tribunal to receive proof of a conviction and not allow relitigation of issues central to the proven criminal charge. A Tribunal’s power under s12(4) of the Act to receive any relevant information whether or not the same information would be admissible in a Court of law would be an effective counter to unjustified pedantry or prolixity on the part of a member charged. The theoretical prospect of disruptive behaviour would be a poor reason for reading down a mandatory provision for a fair and informing procedure.

Conclusion

[36] The Assistant Commissioner purported to exercise a statutory power of decision, namely to remove Mr Moore from his employment as a member of the Police, pursuant to s5(4) of the Police Act 1958. That power could not lawfully be exercised without there first being an inquiry under s12 of the Act and the Commissioner having reasonable grounds for belief in terms of s5A(1)(a) and (b). Such an inquiry was not held. The purported exercise of the power of removal was therefore invalid. For these reasons the appeal must be and is dismissed. The appellant must pay the respondent’s costs in the sum of $5,000, together with his reasonable disbursements.

Solicitors
Crown Law Office, Wellington for Appellant