Application to review DISMISSAL made ­­under s.146(1)(m) of the Victoria Police Act 2013 ––Determination of inquiry to dismiss under s.132(1)(h) in respect of breach of discipline (fail to comply Chief Commissioner’s instructions) –– Applicant engaged in sex with M who was at the time under investigation for a minor assault and was a witness in related matters in which the Applicant was the informant; Applicant self-disclosed a conflict of interest to a supervisor the following morning with a consequence that the relevant files were necessarily re-allocated.

Board conducted a review and determined on 5 September 2023 that the decision to dismiss the Applicant was harsh, unjust or unreasonable and substituted a finding that the relevant charge of breach of the Victoria Police Manual (VPM) on Conflict of Interest was not proven. A judicial review of the Board’s decision was sought by Victoria Police. The Board’s order of 5 September 2023 was quashed by order of McDonald J of the Supreme Court of Victoria on 8 August 2024, and the matter was remitted to a differently constituted Board to be determined according to law.

The Court found the Board is required to conduct the further review on the basis that:

• Firstly, on the evening of February 14, 2022, the Applicant breached the June 2021 VPM (conflict of interest) by failing to take steps to avoid placing himself in a position of actual conflict of interest.

• Secondly and in upholding the Board’s original finding, the dismissal decision was unjust because the DIO failed to comply with the statutory exercise of the power of dismissal by failing to inquire into and determine the charge that HDB breached the June 2021 policy.
• Thirdly and in upholding the Board’s original finding, the dismissal decision was unreasonable because the DIO took into account an irrelevant consideration, namely clause 7 of the August 2022 policy (because the conduct of the Applicant occurred prior to that policy becoming operative).

Procedural fairness

Public interest (community confidence; encouraging self-reporting, parity and consistency, retaining suitable officers/remorse/reflection)

Interests of the Applicant

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:

The Applicant is reprimanded [s.132(1)(a) of the Act]

The Applicant will not be eligible for promotion or transfer for a period of 12 months from the date of this Decision [s.132(1)(d) of the Act]