COP APPEALS DECISION DENYING REAPPOINTMENT AS A POLICE OFFICER AFTER BEING ACQUITTED OF THE CHARGE OF UNLAWFUL ASSAULT
This case involves the defendant denying plaintiff’s application for reappointment as a member of the Victoria Police on the ground that he was not satisfied that the plaintiff was of good character and reputation.
Facts:
The plaintiff was a member of Victoria Police. He was charged with unlawful assault contrary to s.23 of the Summary Offences Act 1966. He was found guilty in the County Court of Victoria, and imprisoned. Following this, the plaintiff was dismissed from Victoria Police. The plaintiff successfully appealed his conviction and was acquitted. He then sought reappointment to Victoria Police, relying on a section of the Victoria Police Act 2013 (‘the Act’) which expressly refers to reappointment in the event a conviction is set aside, namely s.136(3). A delegate of the defendant decided not to reappoint the plaintiff.
On the plaintiff’s construction of s.136(3), the Chief Commissioner would have no option but to reappoint the plaintiff in circumstances where members of the public have seen his actions leading to the charges. On the other hand, the decision-maker refused the plaintiff’s application for reappointment pursuant to s.136 on the basis that he was not satisfied that the plaintiff was of good character and reputation. Despite repeated opportunities, at no point during the process of applying for reappointment, or in these proceedings, has the plaintiff responded to the factual matters from which the decision-maker concluded that he was not of good character and reputation.
Issue: Is the Chief Commissioner’s delegate correct in not reappointing the plaintiff?
Law:
- Victoria Police Act 2013 ss.19, 27,136 and 137
Analysis:
Section 136(3) should be construed beneficially for the police officer (or protective services officer) to whom it applies. It applies to a police officer who is dismissed pursuant to s.136(1)(f) as a consequence of a criminal conviction punishable by imprisonment and is subsequently pardoned or where the conviction, as is the case here, is subsequently set aside.
The Chief Commissioner’s delegate made an election not to bring charges and conduct a disciplinary inquiry in a process in which the Act mandates there must be natural justice. Moreover, there were rejections of the plaintiff’s applications to adjourn the hearing and determination of the s.136 Inquiry and later the Board’s review of it until after the determination of his appeal of the criminal conviction. Rather, the Chief Commissioner’s delegate elected to rely upon the conviction and the plaintiff was dismissed pursuant to s.136(1) and the Board’s review upheld the dismissal.
Conclusion:
By misconstruing s.136(3), the defendant made a jurisdictional error. Consequently, their decision not to reappoint the plaintiff will be quashed. The plaintiff’s application to be reappointed will be remitted to be determined according to law.
