Plaintiff Opposes Board's Refusal to Receive Evidence

Turner v Northern Territory of Australia & Anor [2021] NTSC 55 (30 July 2021)

The plaintiff police officer arrested a youth whom he suspected as armed.  During his arrest, he drew his firearm.  He applied for the Board to receive material related to whether or not there should be disciplinary action against him.  The Court, in determining whether or not there was an error of law, was guided by the Police Administration Act 1978 (NT).

Facts:

The plaintiff (‘Turner’) as an Acting Senior Sergeant of the Northern Territory Police Force, arrested a youth suspected with an offense.  During the arrest, Turner pulled his firearm and pointed it at the offender. Senior Sergeant Robert Jordan (‘Jordan’) concluded that Turner’s deployment of his firearm was appropriate in the circumstances.  Acting Superintendent Glenn Leafe (‘Leafe’) of Professional Standards Command (‘PSC’) prepared a memo to the Commander, PSC recommending that Jordan be provided remedial advice regarding his view that Turner’s use of force was appropriate. 

Turner was issued with a s.79 notice that a prescribed member believes on reasonable grounds that Turner had committed four breaches of discipline, namely disgraceful or improper conduct within s.76(a) of the Act, a failure to obey use of force principles in a General Order contrary to s.76(d) of the Act, a failure to obey body worn video instructions contrary to s. 76(d) of the Act and a failure to comply with the Code of Conduct and Ethics General Order contrary to s.76(c) of the Act. 

Turner’s response was essentially that his use of force was appropriate in the circumstances because the suspect had exited a stolen vehicle, the occupants of which had been throwing ‘missiles’ at police, there was poor lighting, the suspect was coming towards him rather than running away, the suspect did not obey directions to stop, Turner did not know whether or not the suspect had a weapon and Turner had only seconds to decide what to do. 

Leafe provided Turner with notice of his intention to investigate the alleged breaches of discipline pursuant to s.81(3) of the Act.  That investigation was undertaken by Detective Acting Senior Sergeant Wade Jeremiah (‘Jeremiah’).   Turner applied for the Disciplinary Appeal Board (‘Board’) to receive Sergeant Andrew Bedwell's expert opinion as to the appropriateness of Turner’s use of force.  However, the Board refused to receive additional material responsive to adverse material.  Turner then sought an order in the nature of certiorari quashing the decision, and an order in the nature of mandamus compelling the Board to decide the application according to law. 

Issues:

I. Whether the investigating member had the obligation to provide Police members who were subject to investigation via a breach of discipline notice, an opportunity to respond to adverse material.

II. Whether the Board was obliged to consider the content of proposed additional material in determining whether to receive it.

Applicable law:

Police Administration Act 1978 (NT) s.81(3)  - provides for the disciplinary power of the member of a police force to respond to notice for alleged breach of discipline.

Analysis:

A material is considered necessary if without the additional material, the investigation could not, or the Board’s decision on the appeal cannot, take place or exist.  However it would be difficult to apply such a test because no such threshold is applied in relation to the receipt of further evidence on an appeal by way of rehearing, which ultimately turns on whether to do so would be in the interests of justice.  To balance the competing interests of the parties in determining which course best advances the interests of justice, it is common practice, if not universal, to place the proposed further evidence before the court in the making of the application that it be admitted, and for the court to consider the further evidence in determining the application.  It is difficult to conceive of how the Board would properly determine an application to admit additional material on appeal without itself considering the nature and content of the material.

Conclusion:

The Court declared that the Board’s decision was infected with jurisdictional error and also denied Turner procedural fairness.  The Court issued an order in the nature of certiorari quashing the decision and an order in the nature of mandamus compelling the Board to decide Turner’s application to admit that material according to law.  In regards to the Board’s decision to refuse to allow Turner to cross-examine Scott and Jeremiah, the Court declared an order in the nature of certiorari quashing the decision and an order in the nature of mandamus compelling the Board to decide Turner’s application to cross-examine Scott according to law.