Allison v Commissioner of Police

Allison v Commissioner of Police - [2018] NSWIRComm 1005 - NSWIRComm 2017 case summary — Zoe

[4]

Applicable law

Section 181D of the Police Act gives the Commissioner of Police power to remove an officer where the Commissioner no longer has confidence in the officer's suitability to remain a police officer, having regard to the officer's competence, integrity, performance or conduct.
An officer who is the subject of a removal order may apply for a review of the decision of the Commissioner of Police pursuant to s 181E of the Police Act, which relevantly provides: 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission… for a review of the order on the ground that the removal is harsh, unreasonable or unjust.
Section 181F of the Police Act prescribes how the Commission is to conduct the review: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) 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 hearing before the Commission is a hearing de novo, not a review of an administrative act: Hosemans v Commissioner of Police (2004) 138 IR 159 at [134]; Commissioner of Police v Reid-Frost (2010) 192 IR 363 at [11]. The Commission undertakes a fresh and independent review of the decision, based on the material before the Commissioner of Police as well as any new evidence admitted. The Commission can agree with the findings and order made by the Commissioner of Police, or make different findings and orders.
Commissioner Newall summarised the approach to be adopted on an application for review of a removal order in Morris v Commissioner of Police [2016] NSWIRComm 1034 at [11] - [17]: 11. As to the process to be adopted on application for review, s 181F requires this Commission first to 'consider' the Commissioner's reasons for the decision to remove the applicant from the Police Service. The Commissioner's reasons are those set out accompanying the Order the Commissioner has made under 181D. It is then for the applicant to make out a case that the decision to remove him from the Police Force was harsh, unreasonable or unjust: Act, s.181F(2). 12. It follows from the statutory structure that if an applicant cannot advance a case that has a capacity to establish that the order to remove was harsh, unreasonable or unjust, the application for review cannot succeed. In that circumstance an applicant has not carried his onus. I here observe that the meaning of the words 'harsh, unreasonable or unjust', which are disjunctive terms, in review proceedings under the Act must be the same as the meaning to be given to them in proceedings under Part 6 of the Industrial Relations Act 1996. ('the IR Act') As it was held in Hosemans, these proceedings are 'essentially the same as the unfair dismissal regime subject to specified modifications.' (at [97], [104]) 13. However, notwithstanding what was said in Hosemans, the test in coming to a view as to whether a given removal was harsh, unreasonable or unjust is not identical to that test in the IR Act. That is because the Commission in proceedings under s.181E must take into account matters, set out in s.181F(3)(b), which the Commission in an application brought under s.84 of the IR Act does not have to consider in addressing that question. Amongst other things, the Commission is to have regard to a 'public interest' which, because it is partly defined at s.181F(2)(ii), is not the same as the 'public interest' in the IR Act: Commissioner of Police v Eaton (2013) 87 ALJR 267; 294 ALR 608 at [27] per Heydon J. 14.To return to the question of onus, if the applicant advances any evidence or argument that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that case, including that evidentiary case, then falls on the Commissioner. 15. As the Full Bench held in Hosemans: "The issues of onus of proof and evidentiary burdens in matters relating to the removal of a police officer under s181B of the Police Act was [sic] discussed at length in Starr and it is not necessary for us to explore those issues in detail in the present matter. However, it is worthy of repetition that the legislative stipulation in s181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s181F and does not offend s181F(2)." (at [131]) To the same effect is Starr v Commissioner of Police [2001] NSWIRComm 226. The purpose of the Commissioner's case is, as the Act expressly provides, and as the Full Bench in Hosemans held, to make answer to the applicant's case. 16. In all this it must be borne in mind in every case that, as was held in Starr, 'each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case.' (at [140]) 17. To be specific, in each case the matters advanced by both the applicant and the Commissioner must be examined in their context. There would be, no doubt, some kinds of conduct by a police officer which would render a decision to remove him or her from the Force not open to any practical challenge regardless of the context in which they occurred, but those kinds of conduct would be few. In general there must be an assessment of the context in which the conduct which has caused the Commissioner to lose confidence in an officer occurred for a fair review to be carried out, and such an approach is mandated by the relevant provisions of the Act and the IR Act.

[7]

Summary of incident

On 14 November 2014 Mr Allison attended a meeting with (now) Inspector Gligorevic and Superintendent Talbot, in which Superintendent Talbot advised Mr Allison of a s 173 Notice issued to him in respect of four disciplinary matters that occurred in a prior period. Inspector Gligorevic and Mr Allison were in an office in Narrabri. Superintendent Talbot was at another location and dialled in and participated on speaker phone.
Mr Allison admits recording the conversation that occurred at this meeting on his mobile phone and that at no stage did he advise either participant that he was making a recording. However he asserted in his s 181D Show Cause Response that Inspector Gligorevic became aware of the recording at or about the outset of the conversation and therefore impliedly gave his consent to Mr Allison recording the conversation.
Detective Inspector Silversides was responsible for investigating this incident, as constituting a potential breach of s 7(1)(b) of the Surveillance Devices Act 2007 ('Surveillance Devices Act'). He arrested Mr Allison to obtain the mobile phone and preserve evidence of the alleged offence. He directed Mr Allison to hand the phone over, which he did, however the phone could not be unlocked without a PIN number. Detective Inspector Silversides requested the PIN number from Mr Allison, who declined to provide it, offering instead to turn it on. Detective Inspector Silversides did not accept that offer due to concerns about Mr Allison destroying or deleting records on the phone. The phone was subsequently sent away for analysis.
The Show Cause Notice alleged as follows: 1. Allegation 1 - Mr Allison recorded a conversation with Inspector Gligorevic and Superintendent Talbot without their knowledge or permission; and 2. Allegation 2 - Mr Allison failed to comply with a direction by Detective Inspector Silversides to provide his PIN number for his mobile phone.
The Commissioner of Police found Allegation 1 to be proven and that this breached the Police Act (place integrity above all; uphold the rule of law); the Code of Conduct (behave honestly and in a way that upholds the values and good reputation of the NSW Police; comply with the law); and the Surveillance Devices Act. In the Statement of Reasons, the Commissioner stated he considered Mr Allison's actions to be an 'extreme impropriety'.
The Commissioner of Police found Allegation 2 to be not proven, on the basis that Mr Allison was exercising a right against self-incrimination. However the Commissioner of Police noted he was 'disappointed' by Mr Allison's conduct in his dealings with Detective Inspector Silversides and Sergeant Falkiner in relation to his mobile phone.

[9]

Allegation 1 - Mobile phone recording - breach of Surveillance Devices Act

Mr Ryan submitted that Mr Allison's actions were not in breach of the Surveillance Devices Act and there was no basis on which the Commissioner of Police could have found that Mr Allison failed to uphold the rule of law. He agreed that while the meeting was a private conversation, the only person whose privacy was at risk was Mr Allison's, as Superintendent Talbot read from a script and Inspector Gligorevic had almost nothing to say during the meeting.
Mr Ryan further submitted that Mr Allison had a valid explanation for why he recorded the meeting. He was under enormous stress, experienced anxiety at such meetings and wanted a record for his own use to help recall and reflect upon what was said. While it was acknowledged that Mr Allison was unwise to record the meeting, the Commission could not be satisfied that his actions were unlawful. It was noted that Mr Allison was not charged on the basis of advice from the DPP that he had a lawful defence open to him.
Mr Chin submitted that, while it was not necessary for this Commission to decide, the recording was in breach of the Surveillance Devices Act as no statutory defence could be made out.
Section 7(1) of the Surveillance Devices Act provides as follows: A person must not knowingly install, use or cause to be used or maintain a listening device: … (b) to record a private conversation to which the person is a party.
The potentially relevant defence is contained in s 7(3): (3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if: (a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or (b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation: (i) is reasonably necessary for the protection of the lawful interests of that principal party, or (ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
There was no dispute that it was relevantly a 'private conversation'. In my view, there is no doubt that ss 7(3)(a) did not apply, as even if (on Mr Allison's account) Inspector Gligorevic consented to the recording, Superintendent Talbot did not and she was a 'principal party' to the conversation.
The question therefore is whether ss 7(3)(b) had potential application. 'Principal party', in relation to a private conversation, is defined as 'a person by or to whom words are spoken in the course of the conversation'. Mr Allison was a 'principal party' to the conversation. However I do not consider either defence is made out.
It was not reasonably necessary for Mr Allison to record the conversation to protect his lawful interests under s 7(3)(b)(i). The meeting was essentially procedural. Its purpose was to inform Mr Allison of the steps that would be undertaken in a disciplinary process. He was provided with a show cause notice as the first step in that process. He was not required to respond to that notice or address any allegations in the meeting, but rather advised he would be given an opportunity to do so and of his rights to review any subsequent order.
It was a preliminary management meeting that had no direct consequences. If recording of such a meeting was determined to be reasonably necessary to protect an employee's lawful interests, the defence would potentially be available in virtually any meeting between an employee and their manager. It would undermine the purpose of the legislation which is to prohibit covert recordings being made without knowledge and permission, except in limited circumstances.
Mr Allison's evidence in his witness statement was that he made the recording to enable him to "listen to it at a later date, to familiarise myself with its contents in the privacy of my home". However under cross-examination Mr Allison conceded he made the recording for the purpose of creating an "independent record" of the meeting for self-protection if there was any disagreement about the substance of the conversation. He further accepted that he adopted this practice of covertly recording meetings with management because he felt the outcome of the meetings was different to what was said in the meetings. Mr Allison revealed he had made secret recordings of other internal management meetings, with Inspector John Ridley and Commander Jenny Hayes, for the same purpose of self-protection.
In my view, the purpose of Mr Allison recording the meeting with Inspector Gligorevic and Superintendent Talbot was to create a record of the conversation that he could disclose to persons who were not parties to it in the event of a dispute about the content of the conversation.
I therefore find to the relevant civil standard (and applying the Briginshaw test) that the recording was contrary to the Surveillance Devices Act. The fact that the DPP did not proceed to charge Mr Allison is not determinative. The DPP noted there were 'reasonable prospects of a conviction' to the criminal standard however 'discretionary factors' dictated proceedings should not be instituted. It was not the case that the DPP considered a criminal charge was doomed to fail.
Accordingly there were reasonable grounds upon which the Commissioner could find Mr Allison's conduct was unlawful. I similarly find Allegation 1 to be a proven incident of misconduct in breach of the Police Act (place integrity above all, uphold the rule of law); and the Code of Conduct (behave honestly and in a way that upholds the values and good reputation of the NSW Police; comply with the law whether on or off duty).

[10]

Impropriety

In any event, I consider that Mr Allison's actions were a serious impropriety constituting misconduct, consistent with the opinion of the Commissioner of Police expressed in the Statement of Reasons.
Mr Chin submitted that even if the recording was not a breach of the Surveillance Devices Act, it was an act of serious impropriety constituting serious misconduct, as found by the Commissioner of Police. I note that the Commissioner of Police's view was expressed in terms of an 'extreme impropriety'. I do not consider anything turns on whether the impropriety was expressed as 'extreme' or 'serious'.
Mr Ryan acknowledged that Mr Allison's conduct was unwise, however not at the level of seriousness asserted by the Commissioner of Police. He referred to the opinion evidence of Superintendent Talbot and Detective Inspector Silversides, that the recording was merely 'inappropriate'. Accordingly, the Commissioner of Police's view was an 'exaggeration'.
I do not agree. I consider that a covert recording, by mobile phone or other means, of internal conversations between employee and employer to be a serious matter. The issue of concern is a person making a recording of colleagues in the workplace without their knowledge or consent. The same concern would arise if a manager were to make a recording of a private conversation with a subordinate without their knowledge or consent. In my view, it is self-evident that a practice of any workplace participant making recordings of internal workplace conversations without disclosing they were doing so and seeking the consent of the other participants is destructive of workplace relationships and fundamentally undermines trust and confidence.
The principle that the secret recording of private workplace conversations is a notorious breach of trust and confidence is well established. In Harrison v Commissioner of Police [2006] NSWIRComm 319 at [89]-[90], Justice Bryson relevantly stated: "In ordinary business and social behaviour there is, in my understanding, a very strong expectation that there will not be a secret recording of a conversation but that any process of recording will be revealed, so as to give those recorded an opportunity to decide whether or not they will participate. … I feel no doubt that discovery in the course of a meeting that a secret recording was being made would disrupt proceedings, with a high likelihood that the discovery would lead to the immediate withdrawal of those not involved in the making of the recording. The view of ordinary reasonable people in Australian society that behaviour of a particular kind is an impropriety is what makes it an impropriety. What the community thinks about secret recordings is, in my view, altogether clear and furnishes the explanation for the enactment of legislation such as the Listening Devices Act, notwithstanding the availability of a quite different view of the significance of making secret recordings. I understand, both from such events as the enactment of the Listening Devices Act and also from my general understanding of values and behaviour in the community of which I must take notice, that such conduct is not tolerated and is regarded as an extreme impropriety…
See also Lever v Australia Nuclear Science and Technology Organisation [2009] AIRC 784 at [103]; Thomas v Newland Food Company Pty Ltd [2013] FWC 8220 at [185].
Mr Allison admitted under cross-examination that this was not the first or only time he had secretly recorded a conversation with management. He had covertly recorded one meeting between himself and Inspector Ridley and one meeting between himself and Superintendent Hayes. There is no suggestion that NSW Police knew of this practice prior to these proceedings, and this evidence may therefore be admitted in these proceedings: see Commissioner of Police v Collins [2008] NSWIRComm 162 at [39]-[41], adopting Starr v Commissioner of Police [2001] NSWIRComm 226 at [320]-[321]. Superintendent Talbot stated that if she had known of these prior secret recordings they would similarly have been the subject of disciplinary investigation.
I therefore find that, on Mr Allison's own evidence, he secretly recorded internal meetings with management without their knowledge or consent on three occasions. In addition and separately to a contravention of the Surveillance Devices Act, I find it is an impropriety constituting serious misconduct in breach of the Police Act (place integrity above all); and the Code of Conduct (behave honestly and in a way that upholds the values and good reputation of the NSW Police).

[14]

Alleged Recording by Detective Inspector Silversides

Mr Allison advanced in his statement in these proceedings that he believed Detective Inspector Silversides had recorded a conversation with him on 17 December 2014 as part of an investigation of the mobile phone recording Mr Allison made on 14 November 2014. This belief was based on Sergeant Bell alerting Mr Allison to the alleged recording, which Mr Allison did not personally observe. Sergeant Bell stated that he thought he saw the recording icon on the Detective Inspector's mobile phone lit. Sergeant Bell also stated that Detective Inspector Silversides made no notes during the meeting, however his subsequent statement was extremely detailed.
This is a serious allegation to make. In closing submissions, Mr Ryan clarified that regardless of what Sergeant Bell and Mr Allison believed, a submission that Detective Inspector Silversides secretly recorded the conversation with Mr Allison was not pressed. A submission was put only to the extent that aspects of Detective Inspector Silversides' conduct on the day of the arrest were irregular, this caused stress and anxiety to Mr Allison and should therefore be taken into account in assessing harshness. For example, it was said that not taking Mr Allison to the charge room as would be the normal practice but rather to the Inspector's office was irregular.
While this was the proper course for Mr Ryan to take on the evidence that emerged in the proceedings, I am not convinced that was the basis on which Mr Allison originally raised the matter in his statement. Further, I do not see how a mere belief that Detective Inspector Silversides made the recording operates to justify Mr Allison's conduct. It would only do so, it seems to me, if Detective Inspector Silversides had in fact made the recording. If it is not put on that basis, it is not relevant to a determination of the seriousness of Mr Allison's conduct in recording the conversation on 14 November 2014.
Detective Inspector Silversides denies recording any conversation with Mr Allison on his mobile phone. His evidence was that at that time (in 2014), he did not know how to use his mobile phone to record conversations. He further says that it 'beggars belief' that he would use his mobile phone to covertly record a conversation as part of an investigation into that very matter.
I agree. I prefer the evidence of Detective Inspector Silversides in respect of his account of the events and his actions. He emphatically denied making any recording of a conversation with Mr Allison, at that or at any other time. His evidence was clear and consistent. He indicated that his notes were detailed because he took short scribbled notes during the course of the day, during breaks in the meetings with Mr Allison and Sergeant Bell. He then wrote up those scribbled notes at the end of the day. He no longer had those scribbled notes. I accept this account. Detective Inspector Silversides presented as a witness of truth. He frankly conceded under cross examination that it would have been prudent to keep the scribbled notes. However his denial that he recorded any conversation remained unchallenged. In contrast, Sergeant Bell's evidence under cross-examination about the relevant events was confusing, inconsistent and not persuasive.
Mr Allison and Sergeant Bell also gave evidence that Inspector Dunn, who was present at the meeting in the capacity as custody manager, had acknowledged Detective Inspector Silversides was recording the conversation. This was denied by Inspector Dunn in his witness statement and this evidence was not challenged under cross-examination. Inspector Dunn states that he does not recall seeing Detective Inspector Silversides place his mobile on the Inspector's desk at any point during the conversation and that he did not see Detective Inspector Silversides in possession of any mobile telephone throughout the various conversations between Mr Allison and Detective Inspector Silversides.
I do not consider there is a proper foundation for the stated beliefs of Mr Allison and Sergeant Bell that Detective Inspector Silversides recorded the interview. Neither of them raised the allegations against Detective Inspector Silversides at time prior to these proceedings. Mr Allison in his s 181D Show Cause Response provided extensive reasons for his conduct but at no stage raised this allegation against Detective Inspector Silversides. Both Mr Allison and Sergeant Bell conceded under cross-examination they had recently discussed their evidence in respect of the alleged recording by Detective Inspector Silversides. I reject their evidence as unreliable.
I accept the submission made on behalf of NSW Police that the Commission should consider the allegation made by Mr Allison against Detective Inspector Silversides as an example of Mr Allison's willingness to tailor his evidence to seek to mitigate the seriousness of his misconduct.

[15]

Allegation 2 - Declining to provide PIN

It was alleged that on 20 December 2014, Mr Allison declined to provide the PIN of his mobile phone to Detective Inspector Silversides during the investigation of Allegation 1. If proven this could constitute a breach of the Police Act (place integrity above all); Police Regulation (comply with lawful orders); and Code of Conduct (comply with lawful and reasonable directions).
This allegation was not sustained by the Commissioner of Police. Mr Ryan nevertheless submitted it was unreasonable for the Commissioner to express in his Statement of Reasons 'disappointment' in Mr Allison for exercising his legal rights. It was also unreasonable for the Commissioner of Police to fail to identify that Mr Allison offered to open his phone for Detective Inspector Silversides, who declined that offer.
Mr Ryan submitted that the Commissioner of Police further erred by including in his considerations in the s 181D Removal Notice a reference to Mr Allison 'playing games' with Sergeant Falkiner, by leaving a message with a Constable for Sergeant Falkiner to ring him on his mobile phone (which Mr Allison no longer had). In the absence of evidence from Sergeant Falkiner or the Constable who relayed the message there was an inadequate basis to conclude that Mr Allison was 'playing games'. Even if Mr Allison was found to have been 'playing games', it was so trivial no reasonable decision maker would take it into account.
The Commissioner of Police did in fact note in the Background to the incident in his Statement of Reasons that Mr Allison offered to open his phone and was not therefore ignorant of the circumstances. The context in which the Commissioner of Police expressed his disappointment about the way in which Mr Allison dealt with Detective Inspector Silversides and Sergeant Falkiner in the investigation was that 'the NSW Force is a disciplined force'. It appears to me that the 'disappointment' was not that Mr Allison had exercised his legal rights but rather that he had not interacted with fellow officers in a co-operative and professional manner in doing so. Further, the refusal to provide the PIN and the message left for Sergeant Falkiner were not relied upon as instances of misconduct.
In order to avoid confusion arising from the Statement of Reasons, it is preferable for the Commission of Police to refrain from making comments about matters outside the substantiated findings directly relied upon in making the disciplinary decision. However I do not consider in the circumstances of this matter that the comments vitiate the Commissioner's decision as manifestly unreasonable.

[17]

Summary of incident

On 18 December 2015, Mr Allison became aware that his wife's handbag had been stolen, containing her mobile phone and wallet. At 10am on 19 December 2015, Mr Allison and/or his wife reported the matter to the police.
On 19 December 2015, various purchases were made in Narrabri and on-line using Mrs Allison's credit card at Video Ezy, Woolworths, Telstra and Tapscotts Service Station. An attempted purchase was declined at Target Country and staff reported the suspicious behaviour of the person to the police. That same day, Mr Allison took various steps to retrieve his wife's possessions. He visited Video Ezy, Tapscotts Service Station and Target Country to review CCTV footage (or screen shots of such footage), during which his wife identified the relevant individual from a screen shot as being Thomas Lyons.
On the morning of 20 December 2015, Mr Allison used the 'Find My Phone' app which showed his wife's mobile telephone at a particular location. Mr Allison drove with his daughter's boyfriend Mr Anderson to that location and spoke with a resident there, then drove to the home of Clint Ferguson and Mandy Morgan to look for Thomas Lyons and the phone, arriving about 7:00 am.
The Show Cause Notice alleged as follows: 1. Allegation 3 - Mr Allison improperly used his authority as a police officer in a situation where a conflict of interest existed; 2. Allegation 4 - Mr Allison interfered in an investigation by another police officer; and 3. Allegation 5 - Mr Allison conducted an improper search of the premises occupied by Mr Ferguson and Ms Morgan.
The Commissioner of Police found Allegations 3 and 4 to be proven and that this breached the Police Act (place integrity above all; ensure that authority is exercised responsibly); the Code of Conduct (comply with all policies procedures and guidelines; take reasonable steps to avoid a conflict of interest; not make improper use of position, police information or resources); and the Conflicts of Interest Policy and Guidelines.
The Commissioner found Allegation 5 to be proven and that this breached the Police Act (place integrity above all; ensure that authority is exercised responsibly); and the Code of Conduct (comply with the law whether on or off duty). It was also found that the search was contrary to the Law Enforcement (Powers and Responsibilities) Act 2002.

[18]

Allegation 3 - Conflict of interest

In his Show Cause Response, Mr Allison: 1. admitted a conflict of interest existed and that his personal interest in retrieving the mobile phone was in conflict with his duties as a member of the NSW Police, although he says he did not appreciate it at the time; 2. acknowledged after reading the statements of the members of the public involved that they did not appreciate he was present at their homes in a personal capacity and that in a small town like Narrabri the public is likely to view him as a police officer regardless of whether he was rostered on duty; 3. admitted he did not comply with policies, procedures and guidelines; but 4. denied that he failed to place integrity above all or exercised his authority improperly.
In these proceedings, Mr Ryan acknowledged that Mr Allison's actions constituted a breach of policies and procedures and a conflict of interest between his personal interest in retrieving his wife's belongings and his position as a police officer. However it was submitted that the policy breach was 'very minor' and the conflict of interest was 'about as trivial as it gets'. He also pointed to the fact that Mr Allison was not confident the police were going to energetically track down the phone, and that Mr and Mrs Allison experienced 'anxiety' about the missing phone.
I do not agree that the conflict of interest was minor, particularly in light of the extent and nature of actions taken by Mr Allison arising from his failure to identify and manage the conflict. In my view, Mr Allison as a police officer was not in the same position as a member of the public whose spouse suspected their property had been stolen. It was a clear conflict for him in the circumstances to take the steps that he did in a private capacity, after the matter had been reported to the police. His personal feelings about the situation do not justify or excuse his actions.
The relevant circumstances are that Narrabri is a small town and, as Mr Allison acknowledged, members of the public know him as a police officer. This has the potential to influence how they respond to questions and requests by him, as opposed to someone who does not hold the position of police officer. This applied to the proprietors of the businesses whose CCTV Mr Allison viewed as well as the home owners whose residences he visited, in particular Ms Morgan and Mr Ferguson (discussed specifically in Allegation 5 below). These are matters Mr Allison ought to have been aware of, given his 11 years' experience and his position as a Senior Constable. On the same basis, I consider that in respect of this conflict of interest situation Mr Allison failed to exercise his authority as a police officer responsibly and that such exercise was improper.
I find Allegation 3 to be a proven incident of misconduct that constituted a breach of the Police Act (place integrity above all; ensure that authority is exercised responsibly); the Code of Conduct (comply with all policies procedures and guidelines; take reasonable steps to avoid a conflict of interest; not make improper use of position, police information or resources); and the Conflicts of Interest Policy and Guidelines.

[19]

Allegation 4 - Interference with police investigation

In his Show Cause Response, Mr Allison admitted that his conduct amounted to interfering in the investigation into his wife's stolen wallet and phone, although he denied breaches of the Police Act and the Code of Conduct.
Subsequently, in his statement filed in these proceedings, Mr Allison explicitly disagreed that he interfered with the police investigation. Under cross-examination he initially maintained that he did not 'impede' the Police investigation, then resiled from that position when reminded that his Show Cause Response admitted the conduct. He then conceded that at the time of making his statement in these proceedings, he did feel he had not interfered with the investigation. He then claimed that his denial of any interference in his witness statement was incorrect and he did accept he had interfered with the investigation. I consider that Mr Allison's inconsistent and vacillating answers demonstrate he does not genuinely accept that his actions in respect of retrieving his wife's mobile phone were wrongful.
In the original investigation of the allegation by Inspector Dunn in 2015, Mr Allison said he found out on 19 December 2015 that the missing credit card had been used at Target Country (in addition to Video Ezy and Tapscott's Service Station) as a result of his wife checking her bank statements "and noticed that money had been taken out of, or been used from her…credit card". Mr Allison also gave this explanation in cross-examination in these proceedings, that his wife had looked at her bank statements online and informed him that transactions had occurred at Video Ezy, Tapscott's and Target Country.
However during cross-examination, upon being shown his wife's credit card statement produced under summons, Mr Allison admitted that there was no possibility the information about the Target Country transaction was obtained from his wife looking at the bank transaction record. Mr Allison further admitted that Senior Constable Watt, one of the investigating officers, told him there had been an attempted use of the card at Target Country and that Mr Allison proceeded to Target Country based on that information. Despite these admissions, Mr Allison continue to assert he did not know whether the information about Target Country was obtained from his wife or from Senior Constable Watt.
I find that the information regarding the attempted Target Country purchase came from Senior Constable Watt not from Mrs Allison, as Mr Allison previously claimed. Mr Allison's evidence, as summarised above, was contradictory and evasive. He did not impress me as a credible witness and I have taken this into account in making my findings in respect of this allegation, and in assessing his credit generally.
Mr Ryan conceded, quite properly, that as the evidence emerged in these proceedings (as outlined above) there was an interference in the investigation by Mr Allison. However he submitted that it was a minor interference that had no actual adverse impact on the investigation. With respect, I cannot accept this submission: 1. the nature and degree of risk that Mr Allison's interference posed to the investigation is a relevant consideration, regardless of the ultimate impact on the investigation. I have found that Mr Allison used information from the police investigation (Senior Constable Watt) to continue to pursue his own private inquiries. Mr Allison also provided screen shots of the CCTV footage to Senior Constable Watt that he obtained when acting in his private capacity and was the first to obtain and view that footage from the stores. There was an intermingling of Mr Allison's private inquiry and the police investigation that is self-evidently undesirable, in terms of preserving the integrity of the process against legal challenge and maintaining public confidence in NSW Police processes; and 2. Mr Allison's actions improperly interfered with the police investigation in respect of the potential apprehension of the person of interest, Mr Lyons. Mr Allison initially stated in his Show Cause Response that his intention was not to lay charges against Mr Lyons "to try and trade the return of the phone for the promise no criminal charge would be laid with respect to the fraud offence(s)". This is clearly in conflict with Mr Allison's duties as a police officer and in my view, seriously improper. Mr Allison subsequently gave inconsistent evidence in his statement in these proceedings that he had a plan to call NSW Police if he had found Mr Lyons at the residence of Ms Morgan when he attended her home (discussed in Allegation 5 below). However this would have given Mr Lyons an opportunity to avoid apprehension by the police, which Mr Allison himself ultimately acknowledged under cross-examination. His inconsistent explanations of his actions are again of concern.
Accordingly, I find that in seeking to retrieve his wife's property, Mr Allison did interfere with a police investigation and that this constituted a breach of the Police Act (place integrity above all; ensure that authority is exercised responsibly); the Code of Conduct (comply with all policies procedures and guidelines; take reasonable steps to avoid a conflict of interest; not make improper use of position, police information or resources); and the Conflicts of Interest Policy and Guidelines.

[20]

Allegation 5 - Improper search at home of Mandy Morgan and Clint Ferguson

In his Show Cause Response and in these proceedings, Mr Allison consistently denied that he conducted an improper search of Ms Morgan's home.
Ms Morgan stated that Mr Allison attended her home on the morning of 20 December 2015. She says Mr Allison knocked on her door, waking her up. She acknowledged he informed her he was not there as a policeman but was looking for Mr Lyons who he believed had his wife's mobile phone. She said that Mr Lyons was not there. As Ms Morgan only knew Mr Allison as a policeman, she says she agreed to let Mr Allison into her home. Mr Allison stepped inside and woke up her 6 year old daughter who was sleeping on a mattress in the lounge room. He then walked up and down her hallway, opening doors looking for Mr Lyons, then left.
In her statement in these proceedings, Ms Morgan reaffirms the evidence given in her police statement in the original investigation of the incident in January 2016. She says that she knew Mr Allison was a police officer and therefore opened her door when he knocked. It was only after he entered the house that Mr Allison said to her his visit was "not about work" and she felt she "had to" let the Applicant inside her premises "because he was a police officer". Mr Allison then walked down the hallway, opened each door and looked into each room.
Mr Allison says that he did not walk up and down the hallway opening doors. His evidence was that he only took two or three steps inside. When he realised that Ms Morgan's daughter was asleep on the mattress on the floor, he left. He says he was inside the house for a few seconds only.
The evidence on this point is directly inconsistent. Mr Ryan submitted that the Commissioner of Police could not have been persuaded to the relevant standard that any search occurred, as Ms Morgan and Mr Ferguson were not honest and reliable witnesses. Mr Ryan further submitted that Ms Morgan's evidence in these proceedings should not be accepted. Her credit was challenged on the basis that her account given at the time the incident was investigated was inconsistent with the account of Mr Ferguson. These inconsistencies relate to the initial appearance of Mr Allison at the home. For example, in his police statement Mr Ferguson indicated that he answered the door not Ms Morgan. There were also discrepancies in where persons were located within the home when Mr Allison arrived.
Mr Ferguson was not a witness in these proceedings. Ms Morgan was. Importantly, their evidence is consistent in the critical respect, namely that Mr Allison entered the house and walked up and down the hallway, opening doors. Mr Ryan submitted that the fact that the earlier part of Mr Ferguson's and Ms Morgan's accounts differ means the latter part should not be accepted. I do not agree for the following reasons: 1. the inconsistencies are not outside the range of what may reasonably be expected from individuals seeking to recall an event; 2. Ms Morgan's account under cross-examination was entirely consistent with her statement in these proceedings and her original police statement. She was adamant that to the extent her account differed from Mr Ferguson's, his account was wrong; and 3. critically, Ms Morgan's account was consistent with the police recording of the contemporaneous '000' call she made after Mr Allison left. In that call, which was played in full at the hearing, Ms Morgan sounded extremely upset and stated twice that Mr Allison had 'walked through her house'.
Ms Morgan presented as a witness of truth and I accept her evidence. I do not consider it is unreliable or should be discounted in view of the evidence of Mr Ferguson. I do not consider it necessary to have regard to other evidence to resolve the inconsistency between the accounts of Ms Morgan and Mr Allison. However, if I did, I consider such other evidence casts further doubt on Mr Allison's account as follows: 1. according to Mr Anderson, Mr Ferguson was angry and upset when Mr Allison left the house after being inside for "less than a minute". Further, Ms Morgan made a complaint about Mr Allison by the "triple zero" phone call referred to above in which she was clearly upset. These aggrieved reactions are difficult to reconcile with Mr Allison's account that after entering on Ms Morgan's invitation, he took only two or three steps inside, was there for a few seconds then left; and 2. it is similarly implausible in all the circumstances that Mr Allison would have abandoned the search of the house for Mr Lyons after just a few seconds inside the front door. The evidence established he was highly motivated to find the mobile phone because it contained "sensitive material", being his daughter's photographs. He had taken a number of investigatory steps in his quest to recover the phone prior to attending at Ms Morgan's home, including visiting other homes and business premises. Mr Allison also gave evidence that he did not believe Ms Morgan's and Mr Ferguson's assertion that Mr Lyons was not inside their house, stating he had been "lied…by them before" so he wanted to check for himself.
Accordingly, I find that after Mr Allison entered the home of Ms Morgan he walked up and down her hallway opening doors. He did not remain at the door and leave after two or three seconds. I consider this to be a search and that Mr Allison's actions were seriously improper in circumstances where he was not carrying out a police investigation but rather acting in a private capacity in a situation of a conflict of interest. This constituted a breach of the Police Act (place integrity above all; ensure that authority is exercised responsibly); the Code of Conduct (comply with all policies, procedures and guidelines; take reasonable steps to avoid a conflict of interest; not make improper use of position, police information or resources); and the Conflicts of Interest Policy and Guidelines.
In the s 181D Removal Order, the Commissioner of Police also determined that the improper search was a breach of the Code of Conduct (comply with the law whether on or off duty) and the Law Enforcement (Powers and Responsibilities) Act 2002. I do not consider there was sufficient evidence before me to make a finding that there was a breach of any law. The evidence was that Mr Allison had sought and received permission to enter the premises from Ms Morgan (albeit because she felt obliged because of her knowledge of his position as a police officer). Mr Allison was not exercising powers under the Law Enforcement (Powers and Responsibilities) Act 2002 as he was undertaking a private inquiry, which is the essence of the concern about his conduct as being improper.
Arising from the findings I have made, I consider that Mr Allison has intentionally sought to downplay the extent of his actions within Ms Morgan's home in terms of his search of the premises and his evidence in this regard is dishonest. I have taken this matter into account in assessing Mr Allison's overall credit, as well as a factor impacting his fitness to serve as a police officer.

[21]

Allegations 6 - 7 - Conversation with Mitchell Lane - 12 November 2014

On 12 November 2014, Mr Allison received a phone call from a member of the public, Mr Mitchell Lane, while Mr Allison was on duty at Narrabri Police Station. Mr Lane, a tradesperson, called to inquire about some property of his (tools) that had previously been seized by police in a search of his truck. After that conversation on the same day, Mr Lane made a complaint to Sergeant Nikki O'Neill that a police officer had called him a 'grub' or words to that effect.
Allegation 6 in the Show Cause Notice was that Mr Allison was rude and abusive towards a member of the public. In his Show Cause Response Mr Allison asserted that he did not tell Mr Lane that "we just pull over shit bags". Rather he told Mr Lane "we pull over shit bags as well". He contended that the difference is subtle, but important.
Mr Allison admitted in his Show Cause Response that it was rude of him to use the phrase "shit bags", but denied that he was abusive towards Mr Lane. He admitted he breached the Code of Conduct by not treating Mr Lane with respect and courtesy. He admitted he made an error of judgment in using a colloquial expression in the conversation but denied he breached the Police Act by failing to 'strive for citizen and police force satisfaction'.
The Commissioner found Allegation 6 to be proven and that it constituted a breach of the Code of Conduct (treat everyone with respect, courtesy and fairness) and the Police Act (strive for citizen and police force satisfaction).
Allegation 7 in the Show Cause Notice was that Mr Allison was untruthful when subsequently questioned by Sergeant O'Neill about his conversation with Mr Lane. In his Show Cause Response Mr Allison denied being untruthful to Sergeant O'Neill. The Commissioner of Police found Allegation 7 to be proven and that it constituted a breach of the Code of Conduct (behave honestly and in a way that upholds the values and reputation of the NSW Police) and the Police Act (s 167A - offence of giving false information to a member of police force in the investigation of a complaint about conduct of police officer).

[22]

Allegation 6 - Use of word 'shitbags' - abusive conduct

Mr Allison admitted that he used the word 'shitbags' in his conversation with Mr Lane. However he denied that he used the word in an abusive manner towards Mr Lane. In answer to a question by Mr Lane whether the police just pull over tradies, Mr Allison says he replied 'no, we pull over shitbags as well' - meaning 'as well as tradies'. On this account, he was therefore not directly calling Mr Lane a shitbag. Mr Allison was consistent and adamant in his evidence in this regard.
In Sergeant O'Neill's statement filed in the proceedings, she deposed that Mr Allison told her that in the telephone conversation Mr Lane said to him "'What do you just pull over tradies and take their tools?' and he said 'Nah mate, we just pull over shit bags'". Sergeant O'Neill herself only heard Mr Allison say the word 'shitbags', not the context in which Mr Allison said it. Further, Sergeant O'Neill's recollection was restricted to the contemporaneous notes she made in the conduct management plan for Mr Allison that she was conducting at the relevant time. She did not have an independent recollection of the conversation with Mr Lane or Mr Allison at the time of giving evidence.
In relation to exactly what was said to Mr Lane, the conflict in the evidence is over three words - 'just' and 'as well'. No evidence was called from Mr Lane, the party who made the complaint that he had been called a 'grub' by a police officer (who turned out to be Mr Allison) as to whether Mr Allison said 'we just pull over shitbags' or 'we pull over shitbags as well [as tradies]'. While Mr Lane's complaint was that a police officer had called him a 'grub', which is a derogatory term, there were no further details or precisely what words were used by Mr Allison to create this impression.
I consider there is insufficient evidence that Mr Allison said to Mr Lane 'we just pull over shitbags'. Even taking into consideration my adverse findings as to Mr Allison's credit generally, I cannot be comfortably satisfied on the evidence that Mr Allison admitted to Sergeant O'Neill that he had implied in the conversation that Mr Lane was one of the "shit bags" that the Police "pull over".
This is not to say that Sergeant O'Neill's notes made at the time were untruthful. However I cannot discount that they may not be a word for word translation of what Mr Allison said to her at the time. Sergeant O'Neill was frank in acknowledging she no longer had an independent recollection of the exchange with Mr Allison. I cannot safely reconcile the conflict on the evidence before me to the relevant Briginshaw standard of proof and therefore make no finding that Mr Allison engaged in abusive conduct towards Mr Lane in the telephone conversation, in the sense of inferring that Mr Lane was a 'shitbag'.

[23]

Allegation 6 - Use of word 'shitbags' - inappropriate conduct

It was not disputed by Mr Allison that he used the word 'shitbags' in the conversation with Mr Lane. Mr Ryan, again quite properly, acknowledged that in doing so Mr Allison was rude, his frustration got the better of him and he failed to deal with Mr Lane in a courteous manner in the phone call. However this constituted a minor breach of the Police Act (striving for citizen and police force satisfaction) amounting to poor performance, not misconduct.
Mr Allison did not give similar clear and frank acknowledgments. In his statement filed in these proceedings, Mr Allison disagrees that he was 'rude and abusive' towards Mr Lane. Further, under cross-examination Mr Allison made statements which I consider indicate that he does not truly accept that using the word 'shitbags' in the conversation with Mr Lane was inappropriate. He initially disagreed that it was rude. It was only when further questioned and shown his Show Cause Response, in which he made the admission and accepted he should not have said it, did he acknowledge it was rude. Further, when asked if it was ever appropriate to use the words "shit bags" in a conversation with a member of the public, Mr Allison was equivocal, saying it "depends on the context". He also stated that "police swear every day to members of the public".
Mr Chin submitted that the conduct must be considered in context. Mr Allison used the term "shit bags" in a telephone conversation with a member of the public after having been warned that further bad language may result in his removal. There was evidence that Mr Allison had received a prior warning for calling a member of the public a "scumbag" and for swearing at a superior officer. He was also disciplined for saying to a mother of a person in custody "well you can go and make a fucken complaint like the rest of these cunts". The use of the word 'shitbags' also occurred while Mr Allison was on an interim risk management plan which had commenced on 8 July 2014, during which it would reasonably be expected he would be on particularly good behaviour. In this sense, the Commission ought to be satisfied that Mr Allison misconducted himself.
In McDiarmid v Commissioner of Police [2012] NSWIRComm 100, Justice Boland considered the meaning of 'misconduct': [124] The applicant relied on the definition of misconduct provided by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201 where his Honour stated: In the 1988 supplement to the Corpus, reference is made to Beaunit Mills Inc v Board of Review, Division of Employment Security, Department of Labor and Industry128 A 2d 20 (1956). In that case, the New Jersey Superior Court held that "misconduct" does not mean mere mistakes, errors in judgment or in the exercise of discretion or minor but casual or unintentional, carelessness or negligence. It did not mean mere inefficiency, unsatisfactory conduct, failure of performance as a result of inability or incapacity inadvertent in isolated instances or errors of judgment which were not made in bad faith or some other ingredient. Numerous other recent cases are cited to support the proposition that, in the United States, "misconduct" generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. Similar approaches to the meaning of the word "misconduct" have been taken in Australia, outside the context of professional discipline: see, eg, O'Connor v Palmer (No 1) (1959) 1 FLR 397. The primary dictionary meanings confirm that this is also the way "misconduct" is used in everyday speech. [125] Subject of course, to the statutory context in which I am required to consider the question of misconduct, I am prepared to accept Pillai v Messiter (No 2) helpfully distinguishes between what is and what is not misconduct. Misconduct does not mean, "mere mistakes, errors in judgment or in the exercise of discretion..." or "unsatisfactory conduct", but rather "wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts." I would not place too much weight on the word "obstinate", however. If the misconduct was reckless or careless indifference I think the test in Pillai v Messiter (No 2) would be met.
If this was an isolated incident of bad language used by a police officer in conversation with a member of the public, I would agree that the conduct would be a performance matter. However in the relevant context in which it occurred, I consider that Mr Allison's inappropriate use of the word 'shitbags' in the conversation with Mr Lane was an instance of reckless or careless indifference constituting misconduct, albeit at the lower end of the scale of seriousness. I find Allegation 6 to be a proven incident of misconduct that constituted a breach of the Code of Conduct (failure to act with respect and courtesy) and the Police Act (failing to strive for citizen and police force satisfaction).

[24]

Allegation 7 - Untruthfulness to Sergeant O'Neill

Mr Allison denies being untruthful to Sergeant O'Neill. In his Show Cause Response, he stated that at the time Sergeant O'Neill asked him about the conversation, he believed he had not been inappropriate with Mr Lane. He further states that he subsequently developed an appreciation that the use of the phrase 'shitbags' in that particular context was inappropriate.
In her statement filed in these proceedings, Sergeant O'Neill sets out her recollection of her conversation with Mr Allison. She overheard Mr Allison use the term "shit bags". After becoming aware that a complaint had been made by Mr Lane, she asked Mr Allison whether his language during the conversation had been "inappropriate". Mr Allison said he had not said anything to Mr Lane that was inappropriate. She reminded Mr Allison that she had been in the room when he had the conversation, and told him not to "play games" with her. Mr Allison then told her that Mr Lane said "'What do you just pull over tradies and take their tools?' I said 'Nah mate, we just pull over shit bags'". She informed Mr Allison that this was inappropriate, to which he replied "But it's not in writing so it doesn't matter". She told Mr Allison that she did not appreciate him lying to her.
Mr Ryan submitted that the Commission could not be satisfied that Mr Allison was deliberately untruthful to Sergeant O'Neill when she questioned him about the call. Mr Chin submitted that given Mr Allison's prior history and warnings in relation to his conduct with members of the public, it was highly unlikely that he genuinely believed the use of the word 'shitbags' was not inappropriate.
However I consider that, on the evidence before me, this is a plausible explanation. Mr Allison's evidence in these proceedings, as noted above, suggests that he does not appear to genuinely accept that the use of the word 'shitbags' was inappropriate. In my view it is certainly possible that he held that same view at the time of the conversation with Sergeant O'Neill.
While it may be (and was) submitted that what Mr Allison said was inappropriate and he should have known it was inappropriate, it must be separately proven that in fact knew it was inappropriate, to constitute intentional dishonesty to Sergeant O'Neill. I do not consider this has been proven to the relevant standard (applying the Briginshaw test). Indeed, in the s 181D Removal Order the Commissioner of Police himself acknowledges this alternative explanation, noting that even if he were to accept that Mr Allison was not intentionally untruthful, he would consider it a 'remarkable lack of insight' on the part of Mr Allison.
Accordingly, I do not find that Mr Allison was untruthful to Sergeant O'Neill in asserting to her that he had not been inappropriate with Mr Lane. Rather, I find that he did not consider at the time that the use of the word 'shitbags' was inappropriate in the circumstances. No misconduct therefore arises in respect of Allegation 7.

[26]

Allegation 8 - Omission of second charge - 29 September 2015

On 29 September 2015, a failed prosecution resulted when Mr Allison omitted to notify the prosecutor and defence of an additional charge that he had created in respect of a charge of Take and Drive Conveyance Without Consent of Owner. The second charge of Steal Motor Vehicle was not advised to the prosecutor and not served on the defence.
In his Show Cause Response Mr Allison admitted this allegation and that he did not act diligently, in breach of the Code of Conduct. However he stated that he had 'simply made a mistake' and denied he had breached the Police Act by failing to 'strive for citizen and police force satisfaction'. He also apologised for his oversight. The Commissioner of Police found Allegation 8 to be proven and that it constituted a breach of the Code of Conduct and the Police Act.
In these proceedings Allegation 8 was similarly conceded. However Mr Ryan submitted that the error was not an incident of misconduct but rather a performance issue and the Commissioner of Police's characterisation of the incident should not be accepted.
Mr Chin quite properly acknowledged that if the omission of the second charge was a one-off it would not constitute misconduct. However he submitted that in the context of policing, an omission of this nature is negligent and can constitute misconduct. Reliance was placed on McDiarmid v Commissioner of Police, discussed above in relation to Allegation 6 (use of the word 'shitbags'). Mr Chin submitted that the omission of the second charge should be viewed in the context that Mr Allison was on a conduct management plan, a time when it would reasonably be expected that an employee would be on their best behaviour.
Mr Allison admitted that at the time of the omission he was on a conduct management plan and that his failure followed on from a number of counselling and warnings in relation to similar conduct as follows: 1. on 30 August 2012, failing to file a Court Attendance Notice prior to the expiration of the Statute of Limitations; 2. on 12 February 2013, failing to notify a witness and provide a court date; 3. on 8 October 2013, failing to attend court in respect of a domestic violence dispute that Mr Allison attended as an officer; and 4. on 3 December 2013, failing to attend court in respect of a domestic violence dispute that Mr Allison attended as an officer.
Mr Allison also acknowledged that he had previously been warned that further unsatisfactory conduct may result in removal under section 181D of the Police Act. He conceded that despite this background, he nevertheless compromised the prosecution in September 2015 by failing to properly undertake the duties of his position.
The omission of the second charge by Mr Allison is not an isolated incident. In the relevant context in which it occurred it can be considered an instance of reckless or careless indifference constituting misconduct. The reliance upon Allegation 8 as one of the matters impacting the Commissioner of Police's decision to remove Mr Allison was not, therefore, improper.
I find Allegation 8 to be a proven incident of misconduct that constituted a breach of the Code of Conduct (act with care and diligence when on duty) and the Police Act (strive for citizen and police force satisfaction). However I consider it very much falls at the lower end of the scale of seriousness.

[28]

Allegation 9A - Management of incident

Mr Allison admitted that, notwithstanding Mr Baker had informed him in his statement that Ms Barlow had a steak knife and had thrown it in the neighbour's yard, he did not arrest and charge Ms Barlow. He also admitted he did not detain her at the police station, nor did he direct her to go to the police station.
Mr Ryan submitted that officers attend hundreds if not thousands of domestic violence incidents each week and exercise their discretion based on each scenario they are confronted with. He contended that Mr Allison's decision-making was practical and appropriate. He exercised his powers to remove Ms Barlow and obtain an AVO. Mr Allison had dealt with both parties previously and took into account that Mr Baker did not want charges laid. He fairly formed the view that Mr Baker was unlikely to attend court and give evidence, and if there is no witness there is no case. Accordingly it was unreasonable for the Commissioner of Police to find that there was a breach of the Police Act and the Code of Conduct.
The approach of NSW Police to domestic violence matters is that the decision to charge perpetrators lies with the police, not the victim. Evidence was given by Sergeant Roberts that this was necessary because of the reluctance of victims to make complaints against perpetrators, for a variety of reasons. Reference was made to the Code of Practice for the NSW Police Response to Domestic Violence. The statement of Sergeant Roberts explains the steps he considers a reasonably competent police officer should have taken in the circumstances faced by Mr Allison, which Mr Allison did not take.
However Mr Ryan submitted that Sergeant Roberts and Detective Inspector Silversides, who both provided their professional opinions that Mr Allison's decision making was deficient in relation to this incident, did so 'with 20/20 hindsight'. He submitted that Mr Allison, using his experience of policing in country areas and specifically Moree and Narrabri, made a judgment call that Mr Baker would not participate in the prosecution of Ms Barlow. As such, proceeding to charge Ms Barlow would therefore be a waste of time and resources. In this regard Sergeant Roberts accepted under cross-examination that if a victim would not give evidence a prosecution would not succeed.
Mr Allison acknowledged that in domestic violence matters the victim is commonly reluctant to report instances of domestic violence or have the perpetrator charged. He stated he is aware of the Code of Practice for the NSW Police Response to Domestic Violence and that the NSW Police has taken a proactive approach giving the strongest consideration to arresting offenders for the last 10 to 15 years. He received training with respect to domestic violence and was encouraged to implement this proactive approach to arresting domestic violence offenders.
As submitted by Mr Chin, a statement of reluctance at the time of a domestic violence incident to have the offender charged does not inevitably lead to the conclusion that any subsequent charge and offence will fail for want of co-operation by the victim. Mr Baker may have changed his mind given proper guidance and support. I also note that Mr Allison's decisions were not subject to any oversight, given the manner in which he subsequently completed the COPS entry for the incident (discussed below), which I consider precluded any supervisor effectively reviewing the course of action he adopted.
It is also of concern that Ms Barlow was only issued with a direction to remain at another address which was approximately 15 minutes' walk from her residence at which the domestic violence incident occurred. Sergeant Roberts' evidence was that he did not know what the consequences were of failing to comply with such a direction by a police officer, they are so rarely given because of the need to mitigate the risk of further violence to the victim. The usual course is to charge the alleged perpetrator and detain them at the police station until the issuance of the AVO. This did not however occur, as a consequence of MR Allison's decision not to arrest and charge Ms Barlow.
Mr Ryan submitted it is noteworthy there was no evidence Senior Constable Lewis, Mr Allison's partner on the job, was disciplined over his role in the incident. Further, in his evidence, Mr Allison put forward an explanation that he had delegated the responsibility for management of the incident to Senior Constable Lewis because of perceived conflict of interest due to Mr Allison's family connection with Mr Baker.
I do not consider these matters abrogate Mr Allison's responsibility. He was actively involved in the incident response in a number of respects, taking statements, giving directions about where Ms Barlow was to be relocated and seeking the AVO. Mr Allison acknowledged that Senior Constable Lewis was the less experienced officer of the two, and in particular, less experienced in domestic violence matters. Mr Allison believed, and continues to believe, that the decision not to charge Ms Barlow was the correct course of action. Further, at the time of the incident on 17 May 2016, Mr Allison was subject to a conduct management plan. Any disciplinary action in relation to Senior Constable Lewis is a separate matter distinct from the circumstances of Mr Allison's employment with the NSW Police.
I consider Mr Allison's actions in the management of the domestic violence incident lacked appropriate care and diligence. His decision not to charge was not entirely without foundation, given the stated attitude of Mr Baker at the time of the incident. This is outweighed however by contextual considerations, including that he was on a conduct management plan, his clear knowledge of applicable NSW Police policy and the potential risks that could have been avoided by making different decisions consistent with that policy. Consequently, Mr Allison's actions are an instance of reckless or careless indifference constituting misconduct, albeit at the lower end of the scale of seriousness. I find it to be a proven incident of misconduct that constituted a breach of the Code of Conduct (act with care and diligence when on duty, comply with all policies, procedures and guidelines); and the Police Act (strive for citizen and police force satisfaction).

[29]

Allegation 9B - Completion of the COPS record

Of more serious concern is Mr Allison's subsequent conduct in respect of the COPS entry he made of the incident. If Mr Allison had returned to the station and reported the incident faithfully in the COPS system according to his own police notebook statement taken from Mr Baker, I would consider the matter solely as a minor instance of misconduct. That is not however what occurred.
Mr Ryan submitted that there was nothing misleading about the COPS entry and it was a fair and accurate summary of the job. With respect, I do not agree. It is evident on the face of the COPS entry, considered against the statement Mr Allison took from Mr Baker, that it is deficient in numerous material respects. Under cross-examination Mr Allison acknowledged as much, admitting as follows: 1. he had regard to Mr Baker's statement in his notebook, along with his memory, in drafting the COPS entry; 2. he omitted from the COPS entry details Mr Baker had told Mr Allison in his statement, including that Ms Barlow had picked up a steak knife in the kitchen, Mr Baker had thought Ms Barlow was going to stab him, Ms Barlow had followed Mr Baker outside while still holding the steak knife, Mr Baker had kept his distance and Ms Barlow threw the steak knife into the neighbour's yard; and 3. he wrote in the COPS entry "I don't think she was going to stab me" and this is contrary to what is recorded in Mr Barlow's statement that, "I was frightened and I thought she was going to stab me". The sentence in the COPS entry "I don't think she was going to stab me" was therefore false.
In my view, it is significant that the COPS entry states Mr Baker was not in fear for his safety. This is not merely an omission but directly inconsistent with Mr Baker's signed statement in which he clearly stated he feared for his safety.
Sergeant Roberts' evidence was relevantly as follows: 1. his understanding of the purpose of a COPS entry is to record what was reported to police and give an accurate summary of what occurred in the incident, not leaving out the 'important bits'; 2. the COPS entry made by Mr Allison was misleading because the crux is that at one stage the victim feared being stabbed and that was not in the COPS event; and 3. when reviewing whether to charge or not charge the COPS entry is 'pivotal' and, unless there is some reason to speak to the officer in charge, it is the sole source of information in making that decision.
Mr Chin submitted that the 'important bits' in the context of the Baker/Barlow domestic violence incident were the elements of the offence of intimidation and these were not included in the COPS entry. He further submitted that there was sufficient evidence for the Commission to be satisfied that Mr Allison knowingly created a misleading COPS event of the domestic violence incident. The relevant details that established a clear offence of intimidation, apparent on the face of Mr Baker's statement, were carefully removed by Mr Allison from the narrative of the incident. He did so to create the false impression that the incident did not justify an arrest or charge and that merely taking out an AVO (as Mr Allison did) was sufficient.
Mr Ryan submitted that Mr Allison was not deliberately trying to deceive any supervisor in respect of the COPS entry, but rather drafted it with 'one eye on the clock'. Mr Allison's explanation for the omissions and inconsistencies given under cross-examination was that the COPS entry was only intended to be a summary and he completed it quickly at the end of his shift while he was trying to complete other tasks relating to the AVO, without assistance from Constable Lewis.
I do not accept this explanation. The COPS entry does not present as a hasty summary. The level of detail about the nature of the argument that precipitated the incident is not repeated in respect of clearly more important matters relating to the type of knife, actions of Ms Barlow and reactions of Mr Baker. I also note that Mr Allison is an experienced senior constable with many years' service. It would reasonably be expected he would know the purpose of a COPS entry, that it include the 'important bits' and, even more critically, not be inaccurate.
Mr Allison was not ignorant of what the 'important bits' were in the context of the incident. He admitted under cross-examination that he was aware of the crime of intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and its elements, in particular the element of a victim having a reasonable apprehension of violence. He further accepted that Ms Barlow's conduct was a clear offence of intimidation and it might also have been an instance of common assault.
On the evidence before me I find that Mr Allison's conduct in respect of the COPS entry was intentionally to disguise the true nature of the incident, to justify the decision he had made (for the reasons discussed above) not to charge Ms Barlow. The result was a misleading COPS entry which prevented any supervisor properly reviewing and assessing the appropriateness of Mr Allison's decision. I consider this constituted misconduct in breach of the Police Act (place integrity above all and uphold the law); and the Code of Conduct (behave honestly and in a way that upholds the values and reputation of the NSW Police). I consider that this constitutes serious misconduct.

[30]

Summary of findings

The following is found to be misconduct: 1. Allegation 1 - Mr Allison's actions in recording a conversation on his mobile phone with other officers without their knowledge or permission was a serious impropriety, as well as a breach of the Surveillance Devices Act and consequently a breach of the Police Act (place integrity above all; uphold the rule of law); and the Code of Conduct (behave honestly and in a way that upholds the values and good reputation of the NSW Police; comply with the law). I consider this constitutes serious misconduct; 2. Allegations 3 and 4 - Mr Allison's actions in taking steps to retrieve his wife's mobile phone was a conflict of interest and interfered with a police investigation, constituting breaches of the Police Act (place integrity above all; ensure that authority is exercised responsibly); the Code of Conduct (comply with all policies, procedures and guidelines; take reasonable steps to avoid a conflict of interest; not make improper use of position, police information or resources); and the Conflicts of Interest Policy and Guidelines. I consider this constitutes serious misconduct; 3. Allegation 5 - in respect of the steps Mr Allison took in the home of Ms Morgan, I find that he did walk up and down the hallway opening doors, and this was an improper search, constituting a breach of the Police Act (place integrity above all; ensure that authority is exercised responsibly). I consider this constitutes serious misconduct; 4. Allegation 6 - Mr Allison's use of the word 'shitbags' in the conversation with Mr Lane was inappropriate and constituted a breach of the Code of Conduct (treat everyone with respect and courtesy); and the Police Act (strive for citizen and police force satisfaction). While it constitutes misconduct in the circumstances, it is at the lower end of the scale of seriousness; 5. Allegation 8 - the omission of the second charge by Mr Allison constituted a breach of the Police Act (strive for citizen and police force satisfaction); and the Code of Conduct (act with care and diligence when on duty). While it constitutes misconduct in the circumstances, it is at the lower end of the scale of seriousness; 6. Allegation 9A - Mr Allison's actions in respect of the management of the domestic violence incident constituted a breach of the Code of Conduct (act with care and diligence when on duty, comply with all policies, procedures and guidelines) and the Police Act (strive for citizen and police force satisfaction). While it constitutes misconduct in the circumstances, it is at the lower end of the scale of seriousness; and 7. Allegation 9B - intentionally creating a misleading COPS entry in respect of the Barlow domestic violence incident constituted a breach of the Police Act (place integrity above all and uphold the law); and the Code of Conduct (behave honestly and in a way that upholds the values and reputation of the NSW Police). I consider this constitutes serious misconduct.
No finding of misconduct is made in respect of Allegation 7, that Mr Allison was untruthful to Sergeant O'Neill. I find that Mr Allison did not consider at the time that the use of the word 'shitbags' was inappropriate. While I consider this demonstrates a lack of insight by Mr Allison, it is not misconduct.
In respect of the comment by Mr Allison that Mr Lane's complaint was 'not in writing so it doesn't matter', I find this demonstrates an unprofessional attitude on the part of Mr Allison.

[34]

Employment history

The Commissioner of Police considered Mr Allison's overall employment history in making the decision to remove him from the NSW Police. Mr Allison has what I would describe as a significant recent disciplinary record, including the following: 1. August 2010 - counselling for Breach of Code of Conduct and Disobey Reasonable Direction; 2. March and April 2011 - counselling for Unprofessional Conduct; 3. May 2011 - counselling for Breach of Code of Conduct and Unprofessional Conduct; 4. June 2011 - receiving a Local Area Commander's Warning Notice for Breach of Code of Conduct and Incivility/Rudeness; 5. August 2012 - counselling for having failed to file a Court Attendance Notice at court prior to the expiration of the limitation period (with subsequent training); 6. February or March 2013 - counselling for failure to notify witness/provide court date; 7. June 2013 - reprimand and record of adverse finding for Breach of Code of Conduct (x 2); 8. September 2013 - receiving a Region Commander's Warning Notice for Incivility/Rudeness/Verbal Abuse; 9. November 2014 - receiving a s 173 reviewable action order for a reduction in increment to Senior Constable Level 2, Step 2 (which following conciliation in the NSWIRC was reduced to a deferral of increment); and 10. April 2015 - receiving a Deputy Commissioner's Warning Notice for failure to attend court (x 2), failure to identify self, Incivility/Rudeness and Untruthfulness and Incivility/Rudeness.
It is evident from the above history that Mr Allison had received counselling, management and warnings in the areas forming the basis of the allegations in the s 181D Removal Order the subject of these proceedings. I consider that this history is relevant and I have given it some weight in my determination of the outcome of these proceedings.
It was submitted by Mr Ryan that the Commissioner for Police did not take into account the positive as well as the adverse aspects of Mr Allison's conduct and performance during his employment as a police officer. In the reasons for making the s 181D Removal Order, the Commissioner for Police noted the numerous references provided on Mr Allison's behalf which attested to positive matters. While the Order could have more clearly referenced the positive aspects of Mr Allison's employment history, it cannot therefore be said that he failed to consider such matters.
I have taken into account the references and the evidence of Sergeant Lyon, Senior Constable Skillicorn, Sergeant McWilliam and Sergeant Bell who speak highly of Mr Allison. I have also considered the positive material included in the spread sheet completed by Sergeant O'Neill during the period that she mentored Mr Allison while he was on a conduct management plan. It is said about Mr Allison that he is a hard worker, reliable, good with junior staff and contributes positively to the work environment.
While I have taken this evidence into account in my overall assessment, it does not outweigh the concerns about Mr Allison's misconduct, considered as a whole and in context, as discussed in these reasons. There are aspects of the misconduct that I consider to be serious. The less serious misconduct has occurred in circumstances where there are prior instances of conduct in respect of which Mr Allison was on management plans and warnings. The Commissioner of Police is entitled to expect a minimum standard of satisfactory conduct in all aspects of a police officer's duties and responsibilities, not just some of them.

[36]

Harsh, unreasonable or unjust

The concepts of harsh, unjust and unreasonable set out in Byrne v Australia Airlines Limited (1995) 185 CLR 410 at 465 are applicable to s 181E reviews. The removal of a police officer may be harsh, unreasonable or unjust, or a combination of all three.
Mr Allison did not contend the dismissal was procedurally unfair. The unfairness arose from the reasons for dismissal. In summary, Mr Ryan submitted it was harsh to dismiss Mr Allison after more than a decade of mostly excellent service, whilst he was labouring at times under the cloud of mental illness, on the basis of a string of generally minor incidents. More specifically, it was submitted the dismissal was harsh, unreasonable and unjust arising from the following considerations: 1. it was unjust to give no or scant consideration to the positive reference material Mr Allison put forward to the Commissioner of Police, the compliments he received over the years and his day to day service; 2. it was unjust to fail to give serious consideration to Mr Allison's diagnosis of PTSD and the potential impact it may have had on his performance; 3. it was unreasonable for the Commissioner of Police to rely on the evidence of Ms Morgan and Mr Ferguson to sustain adverse findings against Mr Allison in respect of Allegation 5 - the improper search; and 4. it was unreasonable for the Commissioner of Police to take into account 'game playing' and other such trivial matters.
I have considered each of the above matters in this decision and do not consider that the determination of the Commissioner of Police was unreasonable or unjust.
I do not consider that Mr Allison has discharged the onus of establishing his removal was harsh, unreasonable or unjust. I have found all but one of the allegations proven by the Commissioner of Police similarly proven on the evidence before me. The exception is Allegation 7 regarding untruthfulness to Sergeant O'Neill. I accept Mr Ryan's submission that the Commissioner of Police failed to consider the possibility it was a mistake by Mr Allison when denying the initial allegation of inappropriateness which was brought by Sergeant O'Neill. This is not sufficient in itself however to render the Commissioner of Police's decision unreasonable when weighed against the other proven allegations, having regard to their number, nature and the context in which they occurred.
I also do not consider the proven matters to be 'minor incidents'. In considering whether a dismissal is harsh, the Commission must take into account the gravity of the misconduct. I have found a number of the proven allegations before me to constitute serious misconduct. The remaining proven allegations, while at the lower end of the range or seriousness, nevertheless constitute misconduct in the context in which they occurred. In my view it is also appropriate in assessing whether the removal decision is harsh, unreasonable or unjust in the circumstances, to consider all of these proven matters as a pattern of conduct. When this is done, dismissal is not a disproportionate outcome.
Considering the public interest involves a balancing of interests and is a matter of fact and degree: Commissioner of Police v Collins (2008) NSWIRComm 162 at [58]. The public interest is prescribed by the Police Act to include the public 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 importance of maintenance of standards of discipline within the NSW Police Force was described by Brennan J in Police Service Board v Morris and Martin (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.'
In weighing Mr Allison's interest against the public interest, I have given careful consideration to all of the mitigating factors advanced on his behalf, including the totality of his employment history and the PTSD. I have also taken into account the findings I have made in these proceedings in respect of Mr Allison's credit and insight into his conduct, which have not been consistently demonstrated. In all of the circumstances, I do not consider the removal decision to be harsh.
Having considered all of the evidence and submissions, I have determined that the dismissal was not harsh, unreasonable nor unjust. I decline to interfere with the decision of the Commissioner of Police.
The Application for Relief in relation to Unfair Dismissal is dismissed. JANE SEYMOUR Commissioner

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