Application to review DISMISSAL –– s.146(1)(m) of the Victoria Police Act 2013 ––Dismissed s.132(1)(h) in respect of breach of discipline (fail to comply Chief Commissioner’s instructions) –– Applicant had sex with Ms M who was under investigation for a minor assault and was a witness in related matters where Applicant was the informant; Applicant declared conflict of interest immediately and files were re-allocated.
Particulars of charge: ‘contravened the organisational Values’ in VPM – Professional and Ethical Standards (P&ES). However, the values are descriptions of desirable attributes and organisational beliefs, goals, ‘context’, vague and uncertain in application; not expressed in directive terms - this aspect of the DCN must fail.
DCN deficient in that it does not reference the version nor terms of instructions (VPMs) –– Conflict of Interest (COI) covered in VPM-P&ES (cl.7) and standalone VPM-COI. Under both, the existence of a potential conflict of interest is not a breach. It is only exercising police decision-making or other functions at the same time as having a personal interest that is a breach. Applicant rapidly declared contact with Ms M and divested himself of professional functions; thus identified, declared and managed a potential COI as required. Applicant did not breach VPM-P&ES nor (old or new) VPM-COI.
Inquiry Officer applied new version of the VPM-COI not in force - substantial error and a breach of natural justice, not alleged in DCN nor raised in inquiry, consideration outside scope of authority for the inquiry.
(New) VPM-COI includes provisions about sexual relationships with people a police officer met through their duties, gives primacy given to freedom to engage in lawful sexual relationships does not direct or require that relationships with any person police officer met through work must be avoided, only with ‘vulnerable’ persons – VPM does not adequately describe ‘vulnerability’ or what it means to ‘misuse the police position’, only refers to victims of crime as vulnerable.
Inquiry Officer assumed Ms M was vulnerable by reason of being under investigation – if this was CCP’s direction then the VPM could state this, but does not – Accompanying guidance includes an example similar to Applicant’s conduct as acceptable.
Board notes relationship with a suspect could be improper. Here, no vulnerability, manipulation, exploitation; no misuse of authority, power, information or knowledge.
Board considers statements about harm to administration of justice greatly over-stated; the Applicant’s rapid declaration and management of the COI prevented any adverse consequences.
Harsh, unjust and unreasonable to judge the Applicant’s conduct as serious misconduct, contrary to values when his conduct does not breach the VPM.
Public interest: a) encouraging police to disclose and manage conflicts of interest is essential to police integrity, need for trusted and effective COI management; this decision has serious perverse outcome of sending a strong signal to conceal; b) retaining suitable officers; c) judging conduct by reference to whether requirements are clear, d) objective decision-making and outcomes; e) parity and predictability of outcomes.
Applicant’s interests: serious impact of unexpected decision to dismiss, financial, social and career impacts, stress of proceedings.
In the circumstances, decision and dismissal was manifestly harsh, unjust and unreasonable.
Board concludes the charge of breach of discipline (s.125(c)) was not proven –– decision that charge proven and determination of dismissal set aside.
Order
The Board orders that the decision of Ms Berkovic dated 2 June 2023 to find proven the charge of fail to comply with the Chief Commissioner’s instructions, as particularised in the Discipline Charge Notice dated 8 March 2023 be set aside pursuant to s.152(3)(b)(i) and in substitution for it, the following decision is made:
That the charge of breach of discipline (s.125(1)(c) is not proven.
These link(s) will open in a new browser window.
You may need Adobe® Acrobat® Reader or Libre Office to view the document(s) on this page.