Alexander v Commissioner o - [2010] NSWIRComm 86 - NSWIRComm 2010 case summary — Zoe

NSWNSWIRComm

Alexander v Commissioner o

[2010] NSWIRComm 86

Industrial Relations Commission (NSW)|2010-05-21|Before: Boland J, Marks J, Walton J, Kavanagh J, Haylen J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2010-05-21

Before

Boland J, Marks J, Walton J, Kavanagh J, Haylen J

Source

Original judgment source is linked above.

Judgment (166 paragraphs)

[1]

CITATION: Reid-Frost and Commissioner of Police (No 2) [2010] NSWIRComm 86

[2]

PARTIES: Alyson Reid-Frost (Applicant) Commissioner of Police (Respondent)

[3]

CATCHWORDS: POLICE - Removal of police officer - Removal held to have been harsh, unjust and unreasonable on procedural grounds - Appeal - Held on appeal procedural deficiencies found to have existed at first instance, of themselves, did not constitute a proper foundation upon which a determination could be made as to whether the removal was harsh, unjust or unreasonable - Appeal upheld - Matter remitted for retrial - Consideration of merit issues on remittal - Allegations against police officer regarding conduct, integrity, performance and competence - Allegations that over a lengthy period police officer engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct - Allegation that police officer demonstrated an unwillingness or inability to improve her performance, conduct and competence - Allegation that police officer failed to accept any guidance or assistance from her mentor and had an attitude that was aggressive and dismissive - Allegation that police officer worked in secondary employment that was not authorised or approved - Public interest and interests of police officer considered - Held applicant demonstrated an unwillingness to conform to standards of conduct and performance required in a disciplined force - Held applicant's attitude, particularly toward superior officers, was unacceptable - Held removal of the applicant from the Police Force was not harsh, unjust or unreasonable - Application for relief dismissed

[8]

1 On 15 May 2008, the Commissioner of Police removed Detective Senior Constable Alyson Reid-Frost ('DSC Reid-Frost' or 'the applicant') from the NSW Police Force, acting in accordance with Div 1B, Pt 9 of the Police Act 1990. DSC Reid-Frost had been a member of the NSW Police Force for over 11 years and had progressed to her present rank. 2 DSC Reid-Frost sought a review of the Commissioner's decision to remove her on the grounds that the removal was harsh, unreasonable or unjust. In Reid-Frost and Commissioner of Police [2009] NSWIRComm 43, a decision given on 3 April 2009, Marks J found that the removal of the officer was harsh, unreasonable and unjust and ordered her reinstatement with payment for lost remuneration. 3 The Commissioner of Police appealed the decision of Marks J and a stay of his Honour's decision was sought and granted. In Commissioner of Police v Reid-Frost [2010] NSWIRComm 2, the Full Bench (Walton J, Vice-President and Kavanagh J; Haylen J dissenting) found that Marks J had erred. In this respect, the majority formed a view that the procedural deficiencies found by Marks J, of themselves, did not constitute a proper foundation upon which a determination could be made as to whether the removal was harsh, unjust or unreasonable. 4 The majority observed that whilst the Full Bench would usually endeavour to reconsider the matter for itself so as to avoid the consequences of a new trial, there were significant areas of contest, which had not been the subject of findings by the trial judge in relation to merit. The majority noted that the case was argued before the Full Bench, 'effectively on technical grounds, only peripherally canvassing the merits of the case when it was necessary to pursue the challenges to the decision at first instance based on errors of law'. 5 Consequently the matter was remitted for hearing by a judge other than Marks J. In remitting the matter, the majority stated: [61] Given the history of this matter, however, we do not propose to simply remit the matter for a retrial. The retrial should proceed upon the basis of the record of the proceedings before Marks J and, by leave, with any further evidence admitted by the trial judge.

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[65] We consider that the remitter proceedings should be given expedition and, for these reasons, we do not consider that the matter should be reallocated to Marks J for hearing. 6 The orders made by the Full Bench were that (at [68]): 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The orders of Marks J made on 3 April and 25 May 2009 are quashed. 4. The matter is remitted for hearing before a Member of the Commission allocated by the President to be dealt with in accordance with this decision and upon a direction made pursuant to s 191 of the IR Act, that the record of the proceedings before Marks J in Matter No IRC 582 of 2009 (sic - IRC 814 of 2008) shall form the record of the review proceedings conducted under s 181E subject to, upon leave, additional evidence being admitted and/or adduced in the proceedings and the proceedings be heard with expedition. 7 The remitter was listed before me for directions when it became evident there was a difference of opinion between the parties as to what the Full Bench had intended as to any rehearing. The applicant submitted the rehearing should be conducted 'on the papers', that is, on the basis of the record of the proceedings before Marks J and, by leave, with any further evidence admitted by the trial judge, such leave being granted only sparingly. The respondent submitted that the Full Bench had 'quashed' the orders of the trial judge but not the decision. Accordingly, there was no proper basis for concluding that there was to be a full rehearing of all issues, including those determined by the trial judge and unchallenged by the parties on appeal. In ruling on the issue on 19 February 2010, the Commission said it intended to proceed upon the basis of the record of the proceedings before Marks J and, by leave, which was to be granted sparingly, admit any further evidence where it was considered appropriate to do so, having regard to any relevant observations in that respect made by the majority. The parties subsequently advised that neither side intended to call any further evidence. Relevant Legal Principles

[98]

I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer. 17 The matters that constituted the basis of the Commissioner's decision to remove the applicant may be summarised in the following terms:

During 2004, issues were identified regarding the applicant's performance, specifically in the areas of record keeping, case management, teamwork and criminal investigation.
22 November 2004 - the applicant was served with a Commander's Warning Notice ('CWN'), which she declined to sign.
24 January 2005 - the applicant was placed on a Remedial Performance Program ('RPP') (which the applicant declined to sign) and was allocated a mentor.
Between 1 February 2005 and 27 February 2007 the applicant engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct.
That 'over a lengthy period' the applicant continually failed to demonstrate 'the standards of conduct, performance and competence expected of a police officer …' in particular regarding 'record keeping, teamwork skills, technical and professional skills in the area of criminal investigation and prosecution, customer service, decision-making, and planning and organisation/work management'.
That 'over a lengthy period' the applicant failed to demonstrate certain competencies related to an investigator, namely 'technical professional knowledge, decision-making, teamwork/collaboration, customer service, planning and organising/work management'.
The applicant demonstrated an 'unwillingness or inability, to improve her performance, conduct and competence'.
The applicant failed to meet certain standards described in a police code of conduct and ethics.
10 March 2005 - the applicant failed to demonstrate standards of integrity by not initially recording taking time off in lieu ('TOIL').
The applicant inadequately prepared witness statements in mid to late February 2005 with the Commissioner finding that Detective Evatt's involvement was necessary and he did not elevate his involvement to cast the applicant in a bad light.
Throughout the RPP period the applicant failed to accept any guidance or assistance from her mentor and had an attitude that was aggressive and dismissive.
The applicant criticised both Detective Inspector Jubelin in his report to the Police Medical Officer and the findings of Dr Kirby, the police medical officer. The Commissioner accepted these reports.
The applicant's response to the CWN provided further evidence of an inability to be consulted or to accept advice and directions. She failed to comprehend the importance of the CWN served on her in November 2004 and failed to meet the requirements of the RPP.
The applicant worked in secondary employment as a credit controller from 4 June 2007 to 6 July 2007. This secondary employment was not authorised or approved. 18 The Commission's task in these proceedings is to determine whether the Commissioner's decision to remove the applicant was harsh, unreasonable or unjust. In undertaking that task the Commission is required to consider, in the following order: (i) the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force;

[99]

(ii) the case presented by the applicant as to why the removal is harsh, unreasonable or unjust; and (iii) the case presented by the Commissioner in answer to the applicant's case. 19 In carrying out its task, the Commission as presently constituted is doing so in a somewhat unusual context. Marks J has already heard the applicant's claim for relief. His Honour determined, on procedural grounds, that the dismissal was harsh, unjust and unreasonable. Whilst the Full Bench found the trial judge did not make a decision as to the 'merits' of the respective parties' cases (save in some limited respects), his Honour did make a number of significant merit findings and in doing so had the advantage of assessing the reliability and credibility of the witnesses in the proceedings, having seen them give evidence and be cross-examined with respect to it. 20 Given that in this remitter hearing the witnesses are not to be recalled on matters of merit (or otherwise), it is inevitably very difficult to reach fundamentally different conclusions to those reached by Marks J about that oral evidence, given that, as the respondent submitted, such conclusions were undoubtedly substantially based upon the trial judge's assessment of the reliability and credit worthiness of the witnesses. There is no doubt that his Honour's assessment of the credibility and the reliability of the applicant as opposed to that of the witnesses for the respondent, was central to his Honour's consideration of the 'merit' cases pressed by the parties. 21 Although I am not sitting as an appeal tribunal, I consider the appropriate course is that I should accept the trial judge's findings unless I consider they are 'clearly wrong'. I could find no instance where his Honour was clearly wrong in respect of his assessment of the reliability and credit worthiness of the witnesses. 22 In his submissions, the respondent referred to the statutory context in which this matter is required to be determined and the nature of the work and work environment of a police officer. I accept these are important matters to be taken into consideration in proceedings such as these, especially in the context of the requirement placed on the Commission, when considering applications for relief under Div 1C of Pt 9 of the Police Act, to have regard to 'the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1))'. The matters raised bring to light the powers of the Commissioner and obligations on him in managing a disciplined force, the special nature of policing and the obligations imposed on police officers and accepted by them in swearing an oath or affirmation, in carrying out their duty. One will not normally find such special obligations on employees in the private sector, nor in most branches of public sector employment. 23 The matters raised that I consider relevant were as follows: (a) The State and Commonwealth Parliaments of Australia all saw fit, many years ago, to introduce separate, special purpose legislation for the establishment, regulation and management of their respective police forces. In New South Wales that legislation is currently the Police Act 1990, said to be an act "to establish the New South Wales Police Force, to provide for the management of the New South Wales Police Force and for the employment of its members of staff; and for other purposes". (b) The Police Act has the following express provisions of relevance to the Commission's consideration of this matter, namely:- (i) In s3 "Definitions" the term "merit" in relation to a decision of the Commissioner to appoint or recommend for appointment a person to a position in the New South Wales Police Force or rank or grade within a rank of police officer, means: i. "The possession by the person or qualifications determined in respect of the position or rank or grade by the Commissioner, and ii. The aptitude of the person for the discharge of the duties of the position or rank or grade; and iii. The integrity, diligence and good conduct of the person." (underlining added) (c) Section 8 of the Police Act provides, inter alia, that: i. "The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the New South Wales Police Force. ii. The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the New South Wales Police Force." (underlining added) (d) Section 13 of the Police Act provides that an oath is to be taken by persons exercising police functions. The terms of that oath are found in the Police Regulation 2008, as follows: "7 Oath or affirmation of office for police officers (1) The form of the oath required to be taken by a police officer under section 13 of the Act is as follows: I do swear that I will well and truly serve our Sovereign Lady the Queen as a police officer without favour or affection, malice or ill-will until I am legally discharged, that I will cause Her Majesty's peace to be kept and preserved, and that I will prevent to the best of my power all offences against that peace, and that while I continue to be a police officer I will to the best of my skill and knowledge discharge all my duties faithfully according to law. So help me God. (2) The form of the affirmation is the same as the form of the oath , except that: (a) the words "solemnly, sincerely and truly declare and affirm" are to be substituted for the word "swear", and (b) the words "So help me God" are to be omitted." (e) Regulation 8 (previously in exactly the same terms as reg 9 in the Police Regulation 2000) provides: " 8 Performance of duties by police officers (1) Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them. (2) In particular, a police officer is required: (a) to serve wherever the officer is duly directed , and (b) to perform such police duty as may be duly directed , whether or not during the officer's rostered hours of duty." (underlining added). (f) Section 64 of the Act bestows a power on the Commissioner to appoint persons (whether by way of transfer or promotion or otherwise) as non-executive police officers and s66(2) requires the Commissioner (other than in the context of promotions) to select the person for any such appointment "who has, in the opinion of the Commissioner, the greatest merit" and, in deciding on such "merit", the Commissioner is required to take into account, inter alia, the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties: see s66(3)(b) of the Act. (underlining added) (g) Section 69(1) of the Police Act bestows a power on the Commissioner, if he considers it to be "in the interest of the New South Wales Police Force to do so", to transfer a non-executive police officer from one "position" to another position: see Commissioner of Police v Skelly [2010] NSWIRComm 18 (Skelly). (h) Part 8A of the Police Act is an exhaustive code dealing with complaints about the conduct of police officers (unless made by the Respondent), with s26 enshrining the right of any person to make a complaint about such conduct. Obviously, the Commissioner must endeavour to manage the Police Force so as to minimise the incidents of such complaints: see also s171(2) of the Act. (underlining added) (i) Part 9 of the Police Act "Management of Conduct within New South Wales Police Force" is divided into two divisions namely Division 1 "Misconduct and Unsatisfactory Performance"; sections 173-181 (dealing with circumstances wherein removal is not seen as appropriate, as discussed fully in Skelly) and Division 1B "Summary Removal of Police Officers in whom Commissioner does not have confidence": s181D. That section relevantly provides in sub-section (1) that: " The Commission may, by order in writing, remove a police officer from the New South Wales Police Force if the Commissioner does not have confidence in the Police Officer's suitability to continue as a police officer, having regard to the police officer's competence , integrity , performance or conduct " (underlining added). It is to be noted that the Police Act contains no other provision that authorises the Commissioner to terminate a police officer's services for poor performance, unsatisfactory conduct or unacceptable attitude etc. 24 As it has been observed, the Police Force is a disciplined force. If a person accepts the role of a police officer one must presume they do so also accepting the obligations that imposes upon them and the levels and standards of discipline that apply. 25 The importance of maintaining police discipline was referred to by Brennan J in Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397 at 412: The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. 26 These proceedings involve allegations of unacceptable conduct by a police officer over a substantial period of time relating to competence, performance and conduct. It may be distinguished from the 'loss of confidence' removal order cases involving a discrete act(s) of 'misconduct'. As the respondent submitted, it would appear the first such case of its kind to come before the Commission where the Commissioner has lost confidence in a police officer because the officer was allegedly not competent, under-performed and had a poor attitude towards authority. Nevertheless, it cannot be doubted that if his case is made out and the officer has not met the standards required, the Commissioner was entitled to remove the officer. The Commissioner, however, has the onus of proving that he was justified in dismissing the applicant. 27 Whilst I have given some emphasis to the Commissioner's powers, his responsibilities in managing a disciplined force and the strict obligations on a police officer to maintain a high standard of performance, integrity and competence, these are not the only relevant considerations. What must also be weighed in the balance in determining whether a dismissal was harsh, unjust or unreasonable are the interests of the applicant. It has been my experience that very many police officers do not regard what they are doing as just another job, but a calling. And to lose the opportunity of pursuing that chosen career can have a crushing effect on them and their families. That is why, in cases involving a one-off - usually serious - error of judgment by an officer, the Commission might ask itself whether it is truly a case attracting the condign punishment of dismissal or is it an aberration that may be excused in the interests of a valuable, ongoing career and where reinstatement or re-employment can be sustained by the Police Force without causing damage to the Commissioner's authority, to police discipline and public confidence. This is not to establish a new test; it is simply to illustrate how issues of removal and the balancing exercise that must be undertaken might be approached. 28 As I have already stated, this is not a case involving a one-off episode of serious misjudgment. Rather, it allegedly involves an unacceptable course of conduct over a considerable period of time and raises the question of whether the applicant is suited to the work of a police officer and the disciplinary environment that necessarily goes with that role. Nevertheless, after undertaking the tasks laid down in s 181F(1) of the Police Act, one must still carry out the balancing exercise.

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[W]ould constitute a prima facie denial of natural justice to the applicant because there was insufficient specificity to allow her to understand what they were and they were not raised with any specificity in the Notice to which the applicant responded. 35 However, it was not denied by the applicant that there were issues in 2004 regarding her performance in record keeping, case management, teamwork and criminal investigation. Indeed, the applicant acknowledged in her evidence such issues did arise. Whilst not much can be made of these matters, the fact that there were issues in 2004 does tend to suggest that such issues were not confined to the period the applicant was at Chatswood and were not limited to her fraught relationships with Detective Sergeant Evatt and Detective Inspector Jubelin. 36 As noted, the applicant did spend a period at Hornsby before moving to Chatswood. In this respect the applicant stated: It is noted that while I joined the New South Wales Police Force in May 1997 I incurred no adverse mention until 2004 when I transferred to Burwood Local Area Command and later attached to Chatswood Local Area Command. In the interim, I performed duty at, among other places, Hornsby under now Assistant Commissioner Gallagher and not only were there no complaints but I was the recipient of complimentary remarks about my performance and dedication to duty. 37 The question was asked of Mr D Nagle, counsel for the applicant, why the applicant had not called Mr Gallagher, who, apparently, had been the applicant's supervisor at Hornsby for five months and who had reportedly stated the applicant was 'progressing well'. Mr Nagle submitted that the applicant did not bear the burden of calling Mr Gallagher. 38 There were only two witnesses for the applicant: herself and Sergeant Gooley. Given the number and quality of the witnesses called by the respondent about the applicant's lack of skills and abilities in certain areas and the numerous complaints made against her, one would have thought that Mr Gallagher's evidence would have been critical to her case. Rather than rely on an email and a second hand statement that Mr Gallagher had said the applicant was 'progressing well', his evidence, if it was to be consistent with the tenor of the email and the 'progressing well' comment, would have been invaluable. There was no explanation as to why Mr Gallagher could not have been called by the applicant other than the applicant did not bear the burden. 39 It was submitted for the respondent that I should draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference that Mr Gallagher's evidence would not have assisted the applicant's case: see Cook's Construction Pty Ltd v Brown [2004] NSWCA 105; (2004) 49 ACSR 62 at [32], per Young CJ in Eq; and Paino v Paino [2008] NSWCA 276 at [74]. I think the respondent is correct. But even if he is not, all I am left with is some indication that at Hornsby the applicant was, according to Mr Gallagher, 'progressing well'. The weight I would be able to place on what is a general comment at best is substantially diminished by the fact I do not know what was the precise working relationship between Mr Gallagher and the applicant, including how close Mr Gallagher was involved in the supervision of the applicant. I do not know whether Mr Gallagher was truly in a position to know how the applicant was performing: was it merely a general impression or the result of a mentoring relationship similar to that with Detective Sergeant Evatt or a supervisory relationship akin to that of Detective Inspector Jubelin? Commander's Warning Notice

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h. the applicant should be placed before an Internal Review Panel ('IRP') whereby her suitability to operate in plain clothes be re-assessed. 47 Having considered all of the material regarding the traffic infringement notice issue, I can understand why the investigator concluded that, on the balance of probabilities, the applicant was untruthful. 48 Counsel for the applicant complained that: The investigator's findings as to untruthfulness require an evidentiary 'quantum leap' from a hypothesis that the applicant was driving the vehicle to the applicant must be lying because she says she cannot remember the events of the day even though she remembers the route she would have taken when she drove to the station at Balmain. 49 The applicant gave evidence that she did not have any independent recollection of the day, 8 May 2003, at the time that she was giving evidence. The applicant also gave evidence that she probably did not have a proper recollection of what happened on 8 May 2003, even at the time that she was creating her duty book entry for that day sometime later in August 2003. Nevertheless, the applicant was adamant about the route she travelled from her home at the Central Coast to Balmain Police Station, about conducting a suspect identification in the morning of 8 May 2003 at Burwood and her travel from Burwood back to Balmain on that day. 50 The relevant objective facts regarding 8 May 2003 were as follows: (i) the applicant had use of the police vehicle XQC-661 from the afternoon of 7 May 2003 and garaged it overnight; (ii) the applicant's mobile phone was activated at the Central Coast at about 0831 hours. The applicant gave evidence that she may have loaned it to one of her daughters. There was an inconsistency in her evidence in that regard: at first the applicant said she probably raised with her daughters 'quite some time ago' whether she loaned her phone to one of them and they probably said 'No, mum, I didn't touch it'; then she said she did not know whether she raised it; then she said she probably mentioned it to them; then she said emphatically she did not raise it with them; (iii) the applicant said she was at Burwood at 0700 hours, but if she had made a phone call from the Central Coast at 0831 hours she could not have been at Burwood at 0700 hours; (iv) the speed camera at Lane Cove was activated at 1117 hours; (v) the distance from the speed camera location to Balmain Police Station was 8.5 km, a journey that was estimated to take about 13 minutes in peak traffic conditions; (vi) the car diary entry indicates the car was at Balmain at 1100 hours; (vii) the applicant's first log-on to memo was 1140 hours; the first log-on to COPS was 1147 hours; (viii) the applicant was taken to Burwood Police Station by Detective Sergeant MacNamara in the afternoon of 8 May 2003; (ix) the applicant obtained a statement and conducted an identification procedure at Burwood that concluded about 1721 hours; (x) there was a phone call from the applicant's mobile phone about 1931 hours on 8 May 2003 at Burwood; (xi) the duty book entry for 8 May 2003 was constructed by the applicant in August 2003 and the entry was consistent with the applicant's version of events notwithstanding that the applicant did not have a clear recollection of her movements on 8 May 2003. 51 Thus, the position was that, according to the applicant, she did not have a proper recollection of what occurred on 8 May 2003 when giving evidence or even when creating the duty book entry three months after the incident. In that respect, the applicant was correct: she said she was at Burwood in the morning when in fact she was not there until the afternoon and said she returned to Balmain at about 1100 hours when in fact she was still at Burwood at 1721 hours. It is perfectly understandable that after 12 months (which is when the directed interview of the applicant occurred) events may not be able to be accurately recalled. However, it is difficult to believe the applicant can be so firm about recollecting certain matters that would be otherwise adverse to her (such as she was at Burwood by 0700 hours) and not recollecting, or wrongly recollecting, others (such as where she was on the morning of 8 May 2003), and when no satisfactory explanation was provided for a retrieval from her mobile phone at 0831 hours near her home in Springfield on the Central Coast when the applicant said by this time she was at Burwood, and a call from the same mobile phone at Burwood at 1931 hours the same day when the applicant said she had returned to Balmain. 52 There is a major inconsistency in the applicant's version that she first went to Burwood at 0700 hours on 8 May 2003 and performed certain functions there and returned the vehicle at 1100 hours to Balmain, and the fact that she was at Balmain in the morning and taken to Burwood by Detective Sergeant MacNamara in the afternoon of 8 May 2003, where it is clear she remained until at least 1721 hours, if not 1931 hours. That the vehicle was logged in at 1100 hours at Balmain is more consistent with the applicant having arrived first at Balmain at 1100 hours after travelling from the Central Coast.

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[50] The document set out by way of background the fact that there had been a number of "issues" concerning the applicant during 2004, specifically in the areas of record keeping, case-management, teamwork and criminal investigation. It referred to meetings in October and November 2004 where these issues had been discussed. [51] A number of strategies were set out in the Program document. It was noted that the applicant would be assigned to Detective Sergeant Evatt as a mentor who would meet with her weekly "to provide feedback regarding her current performance, assess the officer's current workload, progress and provide support for the officer on an ongoing basis." The mentor was to provide the Local Area Commander with monthly written feedback. A second strategy was a requirement for the applicant to produce her completed duty book entries and other material to the "Investigations Manager" on a weekly basis, which would then be reported to the mentor who would provide feedback. A third strategy required the applicant to "provide all briefs of evidence to the Investigations Manager who will act as the brief handling manager for review prior to the time of service." A fourth strategy was the placement of the applicant in Detective Sergeant Evatt's team within the detectives' office, to review "her ability to work effectively with the team to accomplish workplace goals." [52] A series of "outcomes" were set out with respect to each of the strategies. [53] The document included a warning that failure to complete the outcomes as described might lead to action being taken against her including her removal under s 181D. [54] The applicant was required to sign the Program as having received, read and concurred with the contents of the document. She declined to do so, explaining in a memorandum that she did not concur with its contents. That memorandum contained a lengthy recitation about the applicant's "rights" as a police officer which traversed a number of matters, about which she complained, which occurred during her period as a police officer. The fact that the applicant declined to sign the document was a ground noted by the Commissioner in his Statement of Reasons for her removal.

[129]

You have thus far, completed approximately three (3) months of the original Remedial Performance Program and you will have the remaining three (3) months to complete when you resume full duties. 63 Sergeants Bear and Taylor replaced Detective Sergeant Evatt as mentors. The Annexure outlined four strategies to be followed relating to improving the applicant's performance and conduct including record keeping, teamwork and compliance with lawful directions and the expected outcomes for each of these strategies. 64 The Annexure, completed by Detective Inspector Jubelin, outlined a number of further incidents, which had occurred while the applicant was on the RPP. The incidents were all referred to in the Commissioner's Confidence Submission attached to the Commissioner's Notice. The incidents referred to were as follows: · On the 10th February 2005, as per Strategy 2 of your Remedial Performance Program, a repeated request was made from D/Sgt EVATT that you provide a list of your current work commitments. You supplied this list approximately one hour later and displayed a dismissive and defensive attitude. It was apparent that you were reluctant to supply the list from the initial request, which took you ten days to fulfil. · On the 1st March 2005, you were required to serve outstanding brief items for a malicious wounding charge (Kurin Gai (sic) LAC). As a result of you availing yourself of sick leave in the week leading up to the 1st March 2005, D/Sgt Evatt was required to compile the outstanding brief items and arrange service. Improved time management and organisation by you, would have ensured that all the required documents were prepared and available for service on the defence to negate the need for another officer to follow this up for you on your behalf. · On the 1st March 2005, you sought advice from D/Sgt Evatt regarding a fraud matter. D/Sgt Evatt provided advice which was contrary to your own view regarding sufficiency of evidence. Your response to D/Sgt Evatt was indignant, dismissive and aggressive. You demanded that you be given respect considering your experience. D/Sgt Evatt attempted to placate your response by explaining the benefits of discussion amongst Criminal Investigation staff however you walked off upset, stating that you were not given the respect your experience demanded. · On the 7th March 2005 during a weekly meeting with D/Sgt Evatt you stated that you had another 'aggravated sexual assault on your plate'. In making this statement you implied that you had carriage of the matter. D/Sgt Evatt asked why you had not included the matter on your list of outstanding work and in doing so, he identified that in fact you were only required to supply a statement for the matter. When Evatt spoke to you about this matter, you showed great indignation and appeared aggressively resentful at being queried. It has become necessary for Supervisor's to examine all information supplied by you, to establish its veracity. · On the 17th March 2005, you discussed a fraud brief with another member of staff during which, this officer indicated a view contrary to your own. As a result, you reacted in an aggressive tone telling the other officer to give you "some credit" whilst rolling your eyes and then walking off. · In early March 2005, Sergeant Williams had cause to speak with you regarding inaccurate recording of times/duties in your duty book. This type of conduct is a repeat behaviour of what was a significant component, for the reasons as to why you were served with a 173 Non-reviewable Warning Notice on 22nd November 2004. · On the 1st April 2005, you attended the Commuter Crime Unit at Chatswood prior to 10am, even though you were advised that the staff attached to the unit don't normally commence their shift until 10am. You returned to the Detectives office at 10.45am carrying a large parcel. You then recorded in your duty book (as a 'note' below the finished entry) that you contacted the supervisor, D/A/Sgt Burns to inform him that the office was unattended. D/A/Sgt Burns has indicated that he never received such a call. · On the 5th April 2005, you were spoken to by the Local Area Commander in regards to your request to access your personal file. During this meeting you continually interrupted the Superintendent whilst she was speaking and you were contemptuous and dismissive towards the Commander by huffing and sighing. You were also spoken to about the incident, as mentioned above on April 1st where you initially denied having gone shopping until it was pointed out to you that you were seen carrying parcels back to the police station. · In March 2006, you were dismissive and defensive towards Sgt EVATT when being provided with advice and guidance regarding a witness statement that you had taken. It is apparent that you have difficulty accepting advice where improvements can be made and you respond inappropriately to senior officers by using sarcasm, aggression and patronising dismissive comments. · On numerous occasions you have been reluctant to accept advice or guidance from supervisors or peers. You become defensive, emotional and aggressively sarcastic. These outbursts have been described by colleagues as volatile and irrational behaviour. You often make continual reference to your past experience and investigations in an apparent attempt to justify your behaviour, decisions and opinions. 65 The parties each responded to the foregoing matters and I have had regard to their submissions and to the relevant evidence. It does not seem to me that any one of the incidents identified by Detective Inspector Jubelin in the Annexure and taken in isolation would justify the applicant's removal. Some of the incidents are relatively minor and did not deserve the weight placed on them by the respondent. Indeed, one could say the interpretation by the respondent of some of the incidents, or aspects of them, portrayed the applicant in an unfairly harsh light because they arose through mis-communication or misunderstanding between the applicant and her mentor; problems that could not reasonably be wholly attributed to the applicant. 66 However, one must view the incidents and others that I later describe in the context of a course of conduct that occurred whilst the applicant was in a program to remedy shortcomings in her performance and conduct. In that circumstance, the applicant was under scrutiny in a disciplinary environment with a strict hierarchy of authority. Whilst the applicant felt she should not have been subject to the Program and was undoubtedly highly resentful about it, she was required to comply with both the spirit and the letter of the Program. 67 It was, therefore, necessary for the applicant to comply with the obligations imposed upon her under the RPP and to apply herself to achieving the objectives of the Program. Instead, there is more than sufficient substance in the respondent's complaints about the incidents to demonstrate that the applicant continued to harbour resentment about being placed on the Program. That resentment was reflected in a lack of unqualified commitment by the applicant in applying herself to the tasks assigned to her in the Program and completing them with expedition and diligence or, if she was not able to do so, seeking advice about them, which on some matters she failed to do. The resentment was most particularly reflected in the applicant's inability to accept criticism, constructive or otherwise, and her difficulty with authority where she could be dismissive, disrespectful, querulous and resistant to suggestions as to how she might undertake a task. The applicant's objective in the Program should have been to avoid coming under further adverse notice, but her conduct including her attitude produced precisely the opposite result. 68 I have had regard to that evidence of the applicant favourable to her. There was her own evidence, of course, and the evidence she called from Sergeant Gooley. Sergeant Gooley said that during the period from March 2004 until September 2006 he was required to supervise the applicant and to monitor and verify her work 'including COPS events, radio messages created, General Station Pad Entries and general paperwork …'. Sergeant Gooley said: Alyson performed the tasks required of her and I had no reason to either reprimand or praise her. I found in this environment Alyson was competent, efficient, respectful and responded to direction.' 69 Surprisingly, given the applicant had been with the Police Force since 1997, Sergeant Gooley was the only witness called by the applicant. This may be contrasted with the 12 supportive witnesses called by the appellant in McCabe v New South Wales Police Service [1996] NSWIRComm 105; (1996) 99 IR 361 and the support the applicant received from fellow officers, including the officer put at risk by the applicant's conduct, in Alexander v Commissioner of Police [2009] NSWIRComm 3. In that case at [54] it was said: [M]ost significantly, police officers up to the rank of sergeant and including SC Borg (who was the officer who may have been placed at risk by Mr Alexander's failure to challenge Mr L), indicated their preparedness to work with him despite knowing Mr Alexander had lied. Whilst I would accord more weight to the Police Commissioner's view about the implications of a lack of integrity for his Force than how individual officers might feel towards an officer who lied, the fact that these experienced officers have volunteered to give evidence in the applicant's favour is a significant consideration given it is they who would have to work with Mr Alexander on a day to day basis if he were to be reinstated. 70 The applicant referred to pre-Police Force character references and some 'complimentary remarks' from serving members of the Police Force, but these were of little probative value: see Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420. Reference was also made by the applicant to favourable evidence given by witnesses for the respondent. These included Acting Detective Sergeant Burn, Sergeant Taylor, Senior Constable Hawkins, Sergeant Bear and Mr Gallagher. I dealt with Mr Gallagher's comments earlier and I will deal with Sergeant Bear's evidence in another context later. 71 As for Acting Detective Sergeant Burn, this related to the shopping incident. Acting Detective Sergeant Burn was one of the applicant's supervisors during the period she was in the Detective's office at Chatswood LAC. He directed the applicant to pick up some material from the Chatswood Transit Office. Despite his direction that the applicant telephone ahead before she set off, the applicant did not do so. The office was closed when she got there, with the result being that she did not retrieve the material she was supposed to collect. Thereafter, when she returned she was carrying a shopping bag. Later that day when Acting Detective Sergeant Burn tried to find the applicant, she was not present in the station, as she had gone shopping again at a sale. When he raised this with her, she became 'emotional and a little teary'. She then 'became angry for the barest moment, stating that the police would not run her out of her job.' The meeting ended with the applicant stating she would 'get even with the Command.' 72 Acting Detective Sergeant Burn was asked to speak to the applicant about her shopping trip because Acting Superintendent Cruikshank had seen the applicant returning to the station with shopping bags. In his evidence Acting Detective Sergeant Burn stated: I think my Ma'am asked me to speak to Alyson about her being away from the office but I think the catalyst for it all was the fact that Ma'am saw her out her office window and she had shopping bags. Basically I think Alyson was flagged was because she was on this programme, and I think that was the only reason she was flagged because Ma'am saw her. Like from a supervisor's perspective in the six months I was acting I never had an issue with Alyson, not a problem and I think she was flagged for that and Ma'am asked me to speak to her about it just the fact she had been away from the office. 73 The applicant's reliance on Acting Detective Sergeant Burn was in relation to his evidence that the applicant had been 'flagged' and that he never had any issue or problem with the applicant. I agree with the respondent that it is not surprising the applicant was 'flagged'. She was, after all, on an RPP and subject to closer scrutiny than what otherwise would be the case. I can find no suggestion out of this incident that the applicant was being deliberately targeted or harassed. I take into account that Acting Detective Sergeant Burn did not have any problem with the applicant but I also note his other observation that 'I couldn't comment on her, though, in relation to being a police officer, only that I never had a drama with her.' 74 It was submitted by the applicant that Sergeant Taylor 'was positive about the applicant's ability and competency whilst she was under his supervision.' Sergeant Taylor was effectively the applicant's mentor only during the month of June 2006 in circumstances where the applicant's direct supervisor was Senior Constable Hawkins. Sergeant Taylor had very little direct contact with the applicant. Sergeant Taylor's assessment of the applicant was essentially based on what Senior Constable Hawkins told him. Sergeant Taylor's view of Senior Constable Hawkins was that he was a hard-working, honest officer, although he had not supervised Senior Constable Hawkins directly. Detective Inspector Jubelin's opinion of Senior Constable Hawkins was that he was not strong-willed and avoided conflict. 75 Senior Constable Hawkins had reported to Sergeant Taylor that the applicant 'was progressing well and doing everything asked of her' and that he was very happy with her work performance; that the applicant was able to complete all tasks allocated to her in a timely manner and that 'she has carried out her specific tasks to a satisfactory manner'. Senior Constable Hawkins was not called to give evidence. I note that it was only for a short period that Senior Constable Hawkins supervised the applicant in the exhibits section. 76 Part of the applicant's duties involved working on briefs. Senior Constable Harridge was the Brief Manager. There was in evidence a report by Senior Constable Harridge. The report indicated that the applicant was assigned to assist Senior Constable Harridge in August 2006 in the archiving of briefs of evidence. The report stated: Detective Senior Constable Reid-Frost has filed 216 briefs of evidence, thus updating the COPS entries. Of these entries 46 were error free. In the remaining 171 entries errors were detected, these being: wrong offender or victim name, wrong offence and where Case File Filed was closed, no Action being recorded in Action Field. Of these COPS entries 49 had multiple errors. 77 The applicant submitted, however, that: Sgt Gooley gave evidence of the required training brief handlers go through and that the process takes some time. Sgt Gooley was of the understanding that the course to become a brief handler is "undertaken over some months by both attending Parramatta and by course work". The applicant has never had the opportunity to review the errors said to have been made in the brief handling area at Chatswood LAC. There is not detail given of what the errors consist of. The applicant's position is that this incident was never properly proven and that the lack of detail renders it useless in an evidentiary sense in the case against the applicant. 78 I do not consider I am able to regard the alleged brief handling errors as a matter adverse to the applicant. District Court trial

[130]

79 The applicant was involved in preparing a brief in relation to a matter that went to trial in the District Court in August 2006. There was a complaint about the quality of the brief by an officer of the Director of Public Prosecutions. The officer spoke to the applicant about the complaint. The officer apparently indicated to Sergeant Baker, who had accompanied the applicant to the Court that 'it was the worst case that he had been involved in and blamed Reid-Frost for the stuff up, as he put it'. The applicant reacted emotionally and it appeared to Sergeant Baker, who had accompanied the applicant to the Court that the applicant 'was on the verge of a breakdown'. Sergeant Baker stated in his report on the matter: She [the applicant] blamed Burwood for the problems associated with the trial, including lack of support, the lack of a vehicle and that she had to attend the trial whilst on restricted duties. Because she was in such an uncontrollable state I could not calm her down. 80 On 21 August 2006, after the first day of the trial, the applicant spoke with Sergeant Bakos, a Team Leader at Chatswood Police Station. Amongst other matters, the applicant said to Sergeant Bakos: I need help with this bloody trial and I'm not getting any help. The DPP are asking for things to be done and I just can't do it all myself. I'm on restricted duties and I can't wear my appointments or drive a police car. How can I be expected to get things organised for this trial. 81 Sergeant Bakos said the applicant appeared flustered and on the verge of tears. He said he asked the applicant whether she had asked for help and whether she had asked Detective Inspector Jubelin. Her answer was 'no' because 'every time I go up there he screams at me'. Sergeant Bakos said to the applicant that she should have spoken to Detective Inspector Jubelin about getting help for the trial before now and the applicant replied: Yeah, I know. I'm the one who has kept putting my hand up to do everything. It's probably my fault for not asking … 82 As I have indicated later in these reasons it was Detective Inspector Jubelin's evidence that the applicant had spoke to him about the trial and his response was that 'the offer was there if she needed any assistance we would provide assistance or if there were problems let me know …'. Detective Inspector Jubelin stated that the applicant chose not to seek that assistance. Insofar as a vehicle was concerned, it was the evidence of Sergeant Bear and Detective Inspector Jubelin that the applicant would have been able to have access to a vehicle if she needed to. 83 The applicant said in her evidence she was under significant stress at the time of preparing the brief because of an illness in her family. The problem was, however, based on the evidence I have been taken to, the applicant simply did not seek the help that she so obviously needed and proceeded to provide a brief that was deficient. TOIL

[132]

85 There was undoubtedly a significant conflict in the evidence as to whether the fault lay with the applicant and her inability to meet proper standards of performance and conduct as a member of the Police Force, or whether she was a victim of the system, and more particularly the treatment she received at the hands of senior officers, including Detective Sergeant Evatt and Detective Inspector Jubelin. 86 On the one hand, senior officers claimed there were considerable shortcomings in the applicant's conduct, performance and attitude such that the applicant continually failed to demonstrate 'the standards of conduct, performance and competence expected of a police officer …'. in particular regarding 'record keeping, teamwork skills, technical and professional skills in the area of criminal investigation and prosecution, customer service, decision-making, and planning and organisation/work management'; failed to demonstrate certain competencies related to an investigator, namely 'technical professional knowledge, decision-making, teamwork/collaboration, customer service, planning and organising/work management'; demonstrated an 'unwillingness or inability, to improve her performance, conduct and competence'; failed to meet certain standards described in a police code of conduct and ethics; failed to accept any guidance or assistance from her mentor; and had an attitude, which was aggressive and dismissive. 87 On the other hand, the applicant claimed that she was personally disliked by her supervisor/mentors, harassed and deliberately targeted by them and generally cast in a negative light. The applicant, in her response to the Commissioner's Notice under s 181D, described Detective Sergeant Evatt and Detective Inspector Jubelin as 'bullying' and 'harassing' her. She described Detective Sergeant Evatt as 'always confrontational' with 'limited interest in my wellbeing.' The applicant criticised Detective Inspector Jubelin for his report to police medical officer Dr Kirby about her behaviour as unsubstantiated, and criticised Dr Kirby for diagnosing her with a personality disorder without examining her personally and without possessing a degree in Psychiatry. 88 Having reviewed the evidence before Marks J and considered the submissions before me, I am unable to conclude in the applicant's favour regarding her treatment by senior officers. In that regard, as I stated earlier, I must acknowledge the advantage the trial judge had in assessing the reliability and credibility of witnesses, having seen them give evidence and be cross-examined with respect to it. 89 Marks J, with respect, well understood the tension in the relationship between the applicant and Detective Sergeant Evatt. At [83]-[84] his Honour stated: [83] As is patently clear, the relationship between Detective Sergeant Evatt and the applicant was rapidly deteriorating. The applicant, in her evidence and in her submission to the Commissioner, accused Detective Sergeant Evatt of harassing her to such an extent that she was emotional and unable to deal with him. As will be seen, there is no doubt that the applicant was unable to cope in her dealings with Detective Sergeant Evatt, as was readily apparent to a number of officers working in the Command, including those at the highest level.

[138]

In respect of her work, I have spoken to her supervisors that are directly responsible for her day to day supervision. I have been informed she has carried out her specific tasks to a satisfactory manner." 91 At [124] Marks J described Sergeant Bear as 'a most impressive witness who, in the manner in which he addressed himself to informing the Commission about the applicant, appeared to me to be completely honest, objective and sincere': [124] Sergeant Bear gave oral evidence which consisted predominantly of cross-examination. Whilst one must be careful in assessing witnesses from a brief opportunity only of observing them in the witness box, having regard to the evidence which he gave, I found Sergeant Bear a most impressive witness who, in the manner in which he addressed himself to informing the Commission about the applicant, appeared to me to be completely honest, objective and sincere. In making these comments, I should not be thought to have assessed any other witness as lacking in any of these qualities. Rather, I regard the evidence of Sergeant Bear as being untainted in any way by any suggestion, as maintained by the applicant during the course of the proceedings, that there was in some way a conspiracy to remove her from the New South Wales Police Force and to adduce evidence in support of such a conspiracy. 92 At [129] Marks J referred to Detective Inspector Jubelin's evidence regarding his dealings with the applicant: [129] Detective Inspector Jubelin was principally concerned in the determination that the applicant had failed to satisfactorily complete the RPP's established for her, as referred to in the Commissioner's Statement of Reasons. He was cross-examined extensively concerning the opinions that he had formed about the applicant and the basis for those opinions. With respect to a number of incidents, he conceded that he relied solely on information provided to him by others, for example Detective Sergeant Evatt in whom he had complete confidence, GSO Fallon with respect to the "road rage" incident and other incidents of a similar kind in which Detective Inspector Jubelin was not personally involved. However, it is clear that he did have contact with the applicant from time to time and that he found such contact unsatisfactory. This commenced with her refusal to acknowledge the initial RPP that was created for her and what he perceived to be her reluctance to participate in it. Furthermore, he found the applicant dismissive of him and other officers in authority and he found it difficult to communicate with her because of the emotional way in which she reacted to any criticism or attempt by him to deal with any difficulty which had arisen. There is included within the evidence a memorandum from Detective Inspector Jubelin to the Employee Management Branch in which he complained of not having taken any sick leave over the last 10 years, but being concerned that he would be forced onto sick leave by reason of his dealings with the applicant. 93 At [154], in quoting from a note of a conversation Constable Moscatelli of the Employee Management Branch had recorded with Detective Inspector Jubelin, his Honour referred again to the difficulty Detective Inspector Jubelin experienced in dealing with the applicant: [154] ... "Insp Jubelin was unhappy with this information due to his frustrations in feeling the organisation was not assisting the North Shore LAC ... I believe he is simply extremely overwhelmed and frustrated that (it appears) nothing can be done with Reid-Frost. He stated he felt like the organisation has and continues to bend over backwards for people like Reid-Frost at the expense of good hard working staff members, such as himself. He stated that he felt like he was getting flicked passed between the PMO and the organisation because neither wanted to make a decision. Insp Jubelin appears at his wits' end in managing Reid-Frost." 94 Further reference was made by his Honour at [157] to Detective Inspector Jubelin's difficulties with the applicant, including her refusal to see him unless an independent person was present: [157] Detective Inspector Jubelin forwarded an email to Constable Moscatelli on 27 June 2006 after obtaining a further report from Dr Kirby. That report had confirmed his opinion that the applicant had an ingrained personality disorder and that her behaviour was unlikely to change. He rejected a suggestion that there should be perseverance with the applicant's RPP. Firstly, she openly resisted being on it and her attitude to it was hostile. Secondly, she was unable to complete the RPP as originally formulated because she was on restricted duties. She was on restricted duties because she reacted unduly emotionally to any attempt to apply the RPP to her. It was this that caused the need to put her on restricted duties. This in turn resulted in an assessment that the applicant would not be able to return to duties as a detective carrying out criminal investigations even if she were declared fit to return to full duties. Furthermore, Detective Inspector Jubelin said: "Alyson through her behaviour and personality has alienated herself from the majority of the officers attached to the Detectives' Office. This is to the extent where she has stated that she does not trust the two Senior Officers in the Office and is not prepared to talk to them unless the conversation is recorded or an independent person is present. These Officers are her supervisor and mentor. The issues Alyson has with these Officers are a direct result of them managing her in their appointed roles. I feel as an organisation we have a responsibility to all our employees to create an acceptable work environment. I think it would be unfair to the other Officers if Alyson was returned to the office. Could you also consider my position as Crime Manager and Reviewing officer for Alyson at this LAC. My last communication with Alyson was through her new mentor scheduling a meeting with Alyson to discuss an issue she has raised. Alyson indicated that she would not see me unless an independent person was present. This makes my position difficult. I am now on Alyson's list of people she does not trust. This again is direct result of my performing duties in managing Alyson." 95 At [187] Marks J described what his Honour considered to be aspects of the applicant's inappropriate behaviour: [187] On the other hand, however, there is material that is indicative of the applicant displaying an attitude that rejects authority and that endeavours to reject the systems and processes within the New South Wales Police Service. In my opinion, the applicant acted inappropriately in the manner in which she dealt with a number of her superior officers. The documentation and evidence is replete with examples of this, many of which I have referred to earlier in these reasons for decision. She resisted the authority of the Local Area Commander, of Detective Inspector Jubelin, of Detective Sergeant Evatt, and many others. She was unduly argumentative and unduly resistant to directions and suggestions made to her on many occasions. Her professed refusal to speak to Detective Inspector Jubelin and others without an independent witness being present concerning matters which clearly related to the carrying out of her work duties was inappropriate and, arguably, ludicrous. 96 Marks J at [191] explained why he was not persuaded that Detective Inspector Jubelin's assessment of the applicant's personality was incorrect: [191] The other difficulty that seems to me to arise in the circumstances of these proceedings is that the failure to comply with the spirit of the RPP was but one element of what was troubling Detective Inspector Jubelin and others about the applicant. It is clear, in my opinion, from the evidence of Detective Inspector Jubelin that his principal concern with the applicant was not as a person but as a personality type. Detective Inspector Jubelin set out eloquently and clearly his assessment of the applicant and her circumstances in a memorandum, the relevant extract of which I have earlier set out and which was made on 23 March 2006 (see [98]). Accordingly, it is the applicant's temperament, her manner, and all of the other matters which go to make up her personality which, in the opinion of Detective Inspector Jubelin, constitute the difficulties which he foresaw with the applicant's continued presence in the New South Wales Police Service. I readily acknowledge the applicant's submission that Detective Inspector Jubelin's assessment of her must have been based in part on what he had been told by Detective Sergeant Evatt and which was not either necessarily completely accurate or had been exaggerated, but nevertheless there are other matters which Detective Inspector Jubelin could have used as the basis for forming his opinion. Included within these are, of course, his own dealings with the applicant. Included within Detective Inspector Jubelin's assessment is a professed concern by other staff in the Local Area Command about working with the applicant. Of course, on one basis, the only means of litigating an assertion of this kind would be to engage in some evidentiary process involving all of the members of staff who worked with or who interrelated with the applicant and taking some form of evidence from them. To state such a proposition is to demonstrate that it would be counterproductive both to the Local Area Command and especially to the applicant. Having had the benefit of evidence from Detective Inspector Jubelin whilst he was principally subjected to cross-examination over some days, I accept that he fervently believes that his assessment of the applicant is correct and that the applicant was a most difficult person to deal with. On the basis of such evidence as has been elicited for the purpose of these proceedings, I am not persuaded that Detective Inspector Jubelin's assessment of the applicant's personality is incorrect. In view of the decision that I have reached as to the determination of these proceedings, I have deliberately stated my conclusion in this manner. There is, in my opinion, sufficient corroborative evidence from other witnesses to allow such a conclusion to be reached. 97 The specific assessment of Detective Inspector Jubelin that his Honour referred to was that: s the applicant demonstrated what appeared to be disproportionate emotional response to situations; s the applicant's emotional outbursts were demonstrated in tears, anger, frustration through body language and words; s the applicant had an inability to accept criticism of any of her past actions; s the applicant refused to accept she should be on the Remedial Performance Program; s the applicant demonstrated what appeared to be a need to be respected in regards to her policing experience by her work colleagues; s the applicant conducted herself in a way that was disruptive to her work colleagues. 98 Additionally, at about the same time Detective Inspector Jubelin made the foregoing assessment, he also expressed the opinion that (see [114]): s emotions displayed by the applicant were volatile and her reactions were disproportionate to situations; s the applicant appeared through her conversations and actions to crave recognition; s the applicant cannot and will not accept advice from more senior and experienced officers; s the applicant alienated herself from her work colleagues and did not appear capable of working in a team environment; s the applicant was totally disruptive in a work environment; s despite all efforts to manage the applicant appropriately, her personality type prevented even the slightest of progress being made. 99 Marks J did not accept that all of the complaints made against the applicant were legitimate and regarded some as falling into the category of trivial. Nevertheless, his Honour accepted that Detective Inspector Jubelin's assessment of the applicant's personality was not incorrect and accepted that the applicant: s displayed an attitude that rejected authority and endeavoured to reject the systems and processes within the New South Wales Police Force; s acted inappropriately in the manner in which she dealt with a number of her superior officers; s was unduly argumentative and unduly resistant to directions and suggestions made to her on many occasions; and s failed to comply with the spirit of the RPP. 100 In February 2005, Detective Inspector Jubelin had referred the applicant to the senior police medical officer, Dr W Kirby. As Marks J observed at [98]: [98] ... The referral document noted that the applicant became very emotional, cried frequently and presented herself in a distressed state when discussing the fact that she had been placed on the RPP. She was given restricted duties on 10 February 2005 and her firearm was secured. ... 101 Detective Inspector Jubelin made a further referral on 23 March 2006 and on 9 June 2006 Dr Kirby provided a report that was referred to by Marks J in the following terms: [99] ... Dr Kirby concluded from a review of certain material, which appears to have been forwarded to him by the Local Area Commander, that the applicant:

[145]

[100] Dr Kirby from his review of what appear to be opinions and reports of health professionals, who are unnamed, expressed the opinion that there was no evidence that the applicant was "delusional or suffers a psychological or psychiatric disorder. Therefore, her behaviour can only be explained on the basis of her personality type." He thought that the applicant's behaviours were "a product of her personality, are deeply ingrained, she does not have the capacity to control them and there is minimal or no chance at this stage that they can be changed by therapy." Dr Kirby recommended that the applicant remain on restricted duties. 102 On 3 July 2006, Dr Kirby recommended that the applicant (see decision of Marks J at [120]): [120] ... by reason of her conduct and behaviour, be permanently restricted from access to her appointments. This recommendation entailed not wearing a uniform in public, not driving a marked police vehicle, being limited to station duties and, obviously, an inability to have access to the usual appointments. 103 I note that Dr Kirby, who was not a psychiatrist or psychologist, was not required for cross-examination. I note also that in the evidence was a Statement by Dr Julian Short, a psychiatrist, who examined the applicant on 13 September 2006, 7 November 2006, 2 October 2007 and 21 July 2008. Attached to Dr Short's Statement was a report provided to the applicant's solicitors. Dr Short was not required for cross-examination. 104 Dr Short indicated in his report that he did not believe the applicant attracted a psychiatric diagnosis; that she was not 'psychologically disordered' and there was no indication of a requirement for continuing treatment. Dr Short expressed the opinion that 'Mrs Reid-Frost would be capable of discharging her duties as a police officer at a level significantly superior to the average.' That opinion was expressed in the context of advice from the applicant's solicitors regarding the range of duties a police officer may be called upon to perform and whether the applicant was incapable of performing those duties. The duties listed included: getting in and out of cars; liaising with the public and third parties; making effective observation and recording the same in statements that are in admissible form to a court process; sitting at a desk; and exercising a range of technical options from mere presence to lethal force. 105 It was not part of the respondent's case that the applicant was suffering from a psychiatric disorder and it was not Dr Kirby's opinion that the applicant was afflicted by such a disorder. Dr Kirby said there was no evidence that the applicant was 'delusional or suffers a psychological or psychiatric disorder'. It was also not the respondent's case that the applicant was incapable of performing what were largely duties of a physical nature.

[147]

107 The Commissioner's Confidence Submission stated: On 21 June 2006, Sergeant Taylor (the new mentor under the amended RPP) states that he told Detective Senior Constable Reid-Frost that she could carry out tasks in regard to a brief … but informed her that Detective Inspector Jubelin had asked that she not contact the victims as he wished to speak with the Department of Public Prosecutions first to see if they had already informed the victims of the accused's release. 108 The applicant reacted adversely and became both angry and upset, claiming that Detective Inspector Jubelin was questioning her integrity. In her response to the Commissioner's Notice, the applicant stated: Up until that point I was unaware that Detective Inspector Jubelin had any interest in the ... matter ... It was inexplicable to me why Detective Inspector Jubelin would think that the Director of Public Prosecutions would telephone the victims and inform them of the accused's release. In my experience that type of task is delegated to the informant. … I thought Detective Inspector Jubelin was micromanaging me even though as crime manager he no longer had direct supervision of me. 109 When the applicant was informed later that day that Detective Inspector Jubelin would speak with her, she refused, saying, 'No he won't. I want to have an independent person present when speaking to him.' Detective Inspector Jubelin's evidence was that '[the applicant] said she wanted not only a third person present when she spoke with me, but not any police officer, it had to be a member of the public.' 110 In cross-examination, the applicant conceded that the position she took in refusing to speak with her superior officer without an 'independent person' was 'extreme'. However, she stated, 'that was the advice I had, that I could have a person' and further that she was not only advised that she could have an independent person, but 'that I could and I should.' However, the applicant did not identify the source of this 'advice'. 111 I note that on 15 March 2006 the applicant refused to speak with Detective Sergeant Evatt or Detective Sergeant Williams without an independent person present.

[149]

113 Sergeant Bear was one of two new mentors assigned to the applicant in the amended RPP. He said that his relationship with the applicant was 'amicable'. There was an exchange between the applicant and Sergeant Bear on 20 July 2006. Of that exchange, Sergeant Bear said in his evidence: What I recall is - and it wasn't the first time I sort of mentioned the time management issues or at least the perception and how to get over it. I mean, and when we had the meeting with the boss and there was a bit of an argumentative nature between the boss and Alyson and I felt afterwards she didn't do herself any favours by having an attitude towards the senior officer and I said this at the beginning of when I was mentoring her for want of - I said, shut up, three bags full sir, do what needs to be done, we will get you off this, then you can go on with your career. I said after that meeting, Alyson if you calm down and took it all in we will get on with it and continue on. That was the nature of that. She then would say things like I should not be doing this again, referring back to three or four of the same routines all the time, I was being undervalued in the position I am in, I have the brief to do, no-one is helping me. Especially after that meeting I again looked at her and said you are complaining all the time about not having any help with the brief, why. In that meeting was a perfect opportunity for you to say I am not getting any help, I need help and I was there. Go in and do it and she didn't do it in that meeting. Her excuse was "they wouldn't give it to me. Anyway, I have people working on this, mates at State Crime, they will help me out." 114 I have already referred to what Marks J found in relation to Sergeant Bear as a witness, namely that he was 'completely honest, objective and sincere' and 'untainted' by any suggestion of a conspiracy against the applicant and one who reflected matters accurately and 'without bearing any malice or ill will of any kind to the applicant.' 115 His evidence confirms the applicant's querulous nature, her continuing resistance to authority and her resentment at being placed on the RPP. The applicant's inability or refusal to take advice or instruction from Sergeant Bear, a supervisor with whom she had an amicable relationship and who was completely objective and honest, only serves to strengthen the respondent's case that the applicant was unsuitable to continue as a police officer. 116 The reference to 'the brief' in the extract from Sergeant Bear's evidence was a reference to the brief handling matter that the applicant had been assigned, which I referred to earlier in relation to the District Court trial. As it will be recalled, the applicant's complaint was that she was not receiving any assistance with the matter. But it appears from Sergeant Bear's evidence that despite claiming to require assistance with the brief matter (the only matter for which she had carriage), she refused to ask for any assistance and/or she was receiving it from 'mates' in State Crime. Detective Inspector Jubelin gave evidence, however, that the applicant was given significant assistance with this matter and never asked for help. Further, despite claims by the applicant that she was impeded in preparing the matter for trial by her restrictions that prevented her from driving a police vehicle, the evidence of Sergeant Bear and Detective Inspector Jubelin was that she would have been able to have access to a police car if she needed to. 117 The applicant's claim that even if she asked for assistance with the brief she would not have received it is quite at odds with the other evidence. The claim is indicative of a siege mentality on the part of the applicant that was not justified.

[150]

118 The Commissioner alleged, and the applicant conceded, that she worked in secondary employment as a credit controller from 4 June 2007 to 6 July 2007. This secondary employment was not authorised or approved. 119 The applicant submitted a secondary employment application on 29 March 2007 and, after making various enquiries, did not receive any further communication for three and a half months at which time, upon being informed that her application had been refused, she immediately resigned from her secondary employment. 120 The applicant said that she had applied for secondary employment with the goal of restoring her self-image and her feelings of self-worth. The secondary employment was not undertaken in an attempt to secure a better financial position. The applicant submitted that her frank admission relating to undertaking secondary employment should be taken into account by the Commission in assessing the seriousness of her conduct when determining whether this incident is grave enough to satisfy the Commission that her removal was not harsh and unjust in the circumstances. Furthermore, the fact that the applicant had applied to undertake the work should serve to mitigate the seriousness of the actions of the applicant. 121 It was also submitted the Commission should have regard to the recommendation of Detective Inspector Peter Yeomans that the secondary employment be approved along with the recommendation of the applicant's regional Commander that approval be given pending approval from the Director of Human Resources. Counsel for the applicant submitted that neither of these senior officers could identify any conflict of interest and in the normal course of events if these two officers had approved secondary employment then an officer would be eligible to undertake it. Detective Inspector Yeomans described accountancy as not being a high-risk industry for the purposes of the secondary employment criteria; as is disclosed in the guidelines, where the employment is not in a high risk industry the LAC Commander is the usual person to authorize the employment and if there are extraordinary features the application then goes to the Regional Commander. Both these officers approved the application. 122 Mr Nagle further contended that it was arguable that cl 5 of the Police Force's 'Secondary Employment Policy and Guidelines' was not applicable as the applicant had already commenced approved leave, being long service leave, and did not require leave to be authorized in order to undertake the secondary employment. 123 The respondent submitted that the applicant's acceptance of secondary employment without approval was undoubtedly a serious breach of well-known rules and was a further demonstration of the applicant's poor attitude towards the rules and respect for authority. 124 It was further submitted for the respondent that it was significant the applicant disclosed that she applied for secondary employment 'with the goal of restoring her self image and her feelings of self worth'. This suggested senior counsel submitted, that the applicant's time with the Police Force (especially since 2004) had, in her belief, undermined her 'self image and her feelings of self worth' and that, in effect, she 'felt much better' when she took up secondary employment in the field of accountancy. 125 Senior counsel submitted that: [T]he Applicant's level of comfort whilst working in accountancy, sits happily with the evidence contained in the numerous pre-Police Force character references that she put before the Commission the majority of which demonstrated that when the Applicant was working in a volunteer/support role to the Police Force she had no difficulty. Such accountancy and volunteer positions were/are undoubtedly in stark contrast to the complex, stressful, and critical investigative work conducted by Detectives in the NSW Police Force, where strict compliance with all "rules" are important and where the level of rigour and adherence to direction is probably more critical than in any other area of the Police Force. 126 Consequently, it was submitted: [I]t would be difficult for the Commission to be satisfied that putting the Applicant back into the Police Force ( even if , contrary to the Respondent's submissions, the Commissioner is satisfied that her removal from the Force was "harsh"), would be in her own best interests , quite apart from the Respondent's firm contention that her return to the Force would not be in the broader "public interest" (viz, the "integrity" of the Police Force). (emphasis in original) 127 Although it was not authorised, the taking up of secondary employment by the applicant would not, in the circumstances, constitute a basis, of itself, to remove the applicant. However, it was on 29 March 2007 when the applicant made an application for secondary employment. In about mid-May 2007 the applicant applied for employment through an employment agency and she commenced her secondary employment on 4 June 2007. On 6 July 2007 the application for secondary employment was declined and the applicant immediately resigned her secondary employment. 128 In the prevailing circumstances, the applicant's decision to take up secondary employment without approval demonstrated a serious lack of insight on the part of the applicant into her shortcomings and the possible consequences. Dog handling incident

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(iv) the fact that his or her performance will be closely monitored during that period. 150 It was contended for the applicant these formal sessions were not conducted. The applicant submitted: [A]d hoc meetings were held generally not in a formal sense where the applicant would be questioned at length as to events alleged to have occurred. There appears to have been no real effort during the RPP for the applicant to be provided with constructive feedback. Whilst D/S Evatt may point to conversations relating to playing "devil's advocate" or where he told the applicant that a jury may not understand certain terms there is a real failure on behalf of D/S Evatt as a mentor to undertake formal sessions and provide formal feedback. Perhaps feedback may have been forthcoming if any of the monthly mentor's reports had actually been provided to the applicant but it appears that this did not occur. Finally, and perhaps most tellingly, D/S Evatt had no idea what the details of Regulation 26 were at the time he was appointed as the applicant's mentor. 151 This is not a case where the applicant was dismissed because she failed to satisfactorily complete the RPP. It does seem, however, there was a failure on the part of Detective Sergeant Evatt and Detective Inspector Jubelin to follow the process of reg 26 and conduct formal counselling sessions. The question is whether this deficiency in procedure rendered the applicant's removal harsh, unjust or unreasonable. 152 There were a number of meetings between the applicant, Detective Sergeant Evatt, Detective Inspector Jubelin, Sergeant Taylor, Sergeant Bear, Acting Detective Sergeant Burn and others in the context of the RPP regarding the applicant's conduct, performance and attitude. It is evident that these meetings had little impact on the applicant in terms of achieving an improvement, particularly in relation to attitude. Detective Sergeant Evatt and Detective Inspector Jubelin found it difficult to communicate with the applicant. Detective Inspector Jubelin, in his report to the PMO on 23 March 2006, stated: However, now 18 months after first coming into contact with Alyson I am of the firm belief that there has been absolutely no progress made in these lengthy time consuming discussions with Alyson.