Friday, 18 September 2015

GETTING INVESTIGATIONS RIGHT ......... ( Article by Professor Hu Chi Ku Chi )

Procedural fairness in a club's disciplinary process involves , amongst other things , ensuring that a proper investigation of alleged misconduct occurs, and that all parties are heard and relevant submissions considered. It is not enough to say " we carried out an initial investigation as required under the Constitution " : it has to be done in a manner and way which satisfies the requirements of natural justice.
What is established as a point of law is that clubs are not bound by strict rules of evidence. Nevertheless, investigating officers must recognise there are certain guidelines which need to be followed.
Firstly , no investigating body should employ or resort to methods of inquiry , which favour the complainant and in doing so disadvantage the member accused of misconduct. In such circumstances there is a grave danger of an injustice being committed. In other words every attempt must be made to administer " substantive justice ". Therefore investigations must not accept gossip or hearsay. Nor must they attach weight to evidence provided by the complainant , simply because that person believes that their evidence should carry more weight.
Moreover , given that the standard of proof for investigations in not-for-profit organisations is " on the balance of probabilities , it would be far more prudent for investigators to attach an extra dimension where the offence under consideration is considered as serious. If certainty can not be established for a more serious offence , then a lesser offence must be substituted accordingly in any published findings.
Any allegation of misconduct , where the gravity of the consequences are serious indeed , then the case against the accused member must be proved to a reasonable satisfaction.  In such instances reasonable satisfaction should not be produced by inexact proofs , indefinite testimony or indirect references. To report back with a statement that the misconduct was inappropriate at best and aggressive and offensive at worst is wholly unsatisfactory. If the latter cannot be established or proved , then the former view is the only conclusion which can be safely arrived at. 
It is also very important for all available witness evidence to be obtained. So if a key witness , especially an impartial and objective observer , refuses to make a statement , then this huge absence of evidence seriously compromises the investigation. To proceed without his/her neutral evidence is dangerous , given that evidence submitted by the complainant and the accused are likely to be tainted with subjectivity and personal bias. For example , in one Australian case an investigator was criticised because she failed to interview any of the witnesses , who could have given a contrary view of events to that put forward by those making the allegations.
Finally, the investigators themselves should be neutral , as with the decision makers . This means that they have to be , and also seen to be , objective and impartial. So if either one , or both , have declared their intent and desire to see the accused member slung out of the club , long before the alleged misconduct took place , then serious questions about their objectivity and impartiality are bound to be raised. The duty to remain impartial is a basic requirement in any disciplinary process , and those who harbour bias and prejudice need to step down ......or otherwise be accused of having a conflict of interests. Such unfortunate circumstances might just convince a court that natural justice  has been cruelly denied to the accused member.

Postscript : An illustrative case from the world of sport :

Carter v New South Wales Netball Association 2004

When a complaint is made about the conduct of a coach, spectator, player or official, the sporting body must follow a proper process in handling the matter. Otherwise the decision arrived at may be held to be null and void.
Ultimately, those involved in sport need to behave in an appropriate manner and in accordance with these policies. However, as the following case will illustrate, there can be a fine line between what constitutes “abuse” and what does not, such as “excessively enthusiastic coaching”.
This case involved the conduct of a volunteer junior netball coach and life member of the Mount Druitt Netball Association, Sandra Carter. Dissatisfied parents who formed the group “No Excuse for Abuse Committee” wrote to the New South Wales Netball Association (NSWNA) and alleged that Ms Carter was guilty of “physical and psychological (abuse), gross neglect of duty of care, medical mismanagement, deprivation of prescribed medicine and basic human rights, deception and cheating”. This letter was forwarded to Ms Carter for a response. The letter did not particularise any person alleged to have been abused and was therefore hard to refute in any detail.
The NSWNA appointed an Investigator to investigate the allegations and conclude whether or not Ms Carter had breached the NSWNA’s Anti Harassment Policy (the Policy). After what was a poorly conducted investigation, the Investigator concluded that Ms Carter had breached the Policy. The NSWNA’s Disciplinary Committee then proceeded to ban Ms Carter as a member of Netball NSW for a period of five years. As per the Policy, the NSWNA then notified the Commissioner under section 39 of the Commission for Children and Young People Act 1998 (NSW) of this finding of guilt.
The Court overturned the decision and noted that the Disciplinary Committee was required to afford Ms Carter procedural fairness. Further, the Court held that the Disciplinary Committee should have amongst other things:
  • Informed Ms Carter with sufficient particularity of what she was accused and by whom;
  • Given Ms Carter a reasonable opportunity to consider the specific accusations in advance of her interview with the investigator, so that she could consider her position and obtain legal advice if she thought it necessary;
  • Afforded Ms Carter an unbiased, fair and reasoned decision on the part of the Disciplinary Committee of NSWNA, after conducting a fair hearing and impartially considering the evidence on both sides.
The community rightly demands serious penalties for those who breach policies designed for the protection of children. However, club officials must not give in to community pressures at the expense of the rights of individuals. “Officials responsible for the application of these policies should exercise caution to ensure that legitimate concerns do not manifest themselves in a blinkered and zealous crusade, where natural justice and the rights of the individual are sacrificed in order to achieve an expedient Machiavellian outcome”.
We have seen in Carter that innocent parties can be wrongly found guilty if officials do not conduct a fair investigation or unbiased hearing. In the case of Carter, the conduct which was construed by some as “child abuse” was construed by the Court to be “excessively enthusiastic coaching”.

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