Q. But taking away the 181 D matters it wasn't an extensive sustained finding complaint record was it?
A. I suppose you could say that, yes.
186 As I understand this evidence of Superintendent Commins, there is a concession, on reflection, that apart from those matters which ultimately became grounds for the reasons for removal by the Commissioner, the remaining matters contained in the applicant's history did not indicate "an extensive sustained finding complaint record."
187 As is obvious from comments made by Superintendent Commins in each of the Panel Notification Forms, he was concerned about the applicant's continued lack of compliance with policies and procedures within the police force and that his "poor standards of conduct" did not justify his retention within the police force. This assessment by Superintendent Commins of the applicant's conduct, which obviously includes concerns about the applicant's overall record, must have been a compelling factor in the decision ultimately taken by him to recommend the applicant's removal from the police force. As I have previously indicated, Superintendent Commins conceded in evidence that his overall impression was arguably incorrect.
188 The decision of Superintendent Commins was also motivated by his understanding of the matters which had been investigated by Inspector Nicholson and Sergeant O'Brien and the other material which eventually formed the basis of the grounds contained within the Commissioner's reasons for removal. In this context, I have already determined that the processes used by Inspector Nicholson were inappropriate and that her conclusions and findings were, to a large part, either incorrect or not capable of being sustained. In making this observation, I acknowledge that in accessing the COPS system, the applicant breached the procedures and protocols established by the Commissioner governing access to that system. I also have concluded, for the reasons already set out, that there must be considerable doubt about either the findings made in connection with Grounds 1, 3, 4, 5 and 6 or as to whether they alone or in the aggregate would justify the applicant's removal from the police force.
189 The applicant sought to justify his access to the COPS system on the basis of the concerns that he expressed for his safety and for that of his family concerning the conduct of ES. The Panel Notification Form completed by Superintendent Commins does not make any reference to these fears or concerns other than to say that the applicant should have been aware that they created a conflict of interest when he accessed the COPS system. Perhaps this lack of any need to refer to the applicant's concerns was created by the endorsement by Superintendent Commins of the risk as described by Inspector Nicholson. However, as Superintendent Commins conceded whilst giving evidence, her assessment was patently wrong. This is again the result of what I assess as the poor and inappropriate investigation techniques used by Inspector Nicholson designed to procure a result, which she described as "outcomes based". This precluded her from making any enquiries at all about the basis for the several investigations that she was undertaking and about anything that the applicant told her. Furthermore, the opinion expressed by Inspector Nicholson is clearly coloured by what I regard as her inappropriate view of what constitutes a risk. I have referred in particular to her understanding that possession of an unlicensed firearm by a police officer was not regarded "as a particularly serious charge in the normal community." Furthermore, she declined to characterise the siege, malicious damage and intimidation of two police officers carried out by ES as acts of violence.
190 I do not know what was in the mind of the Commissioner when he determined that the material in the applicant's response did not justify resort to the COPS system. It is clear, however, that the Commissioner did not have available to him the evidence of Sergeant Pieper and Senior Constable Fookes. There is only one reference to this matter in the material that was provided to the Commissioner, which I have set out in tabular form at [111] above. Even that material should, in my opinion, have raised some concern about the applicant's response and at least have initiated the cause for further enquiries about these matters.
191 The evidence before me, which was not made available to the Commissioner, is that the applicant continued to voice his concerns about ES who was frequenting premises within the same apartment block as occupied by the applicant and his family, which appeared to have been considered by the applicant's superior officers against the context of the flawed risk assessment conducted by Inspector Nicholson. The applicant's request for a transfer, although supported by Superintendent Commins, was rejected by others in authority within the police force, which created a difficult situation for the applicant and those officers whose responsibility it was to manage his circumstances. Whether the applicant's fears were real or imaginary, they represented his understanding of his situation and had to be addressed in some manner.
192 The decision to remove an officer under s 181D is made by the Commissioner personally. His decision is based in part on material given to him by other officers within one of the Commissioner's branches dealing with matters of this kind. That material reflects, in turn, material given to the relevant branch by other officers. If any of the original or subsidiary material is incorrect or inaccurate, or omits information that is material or relevant to the decision to remove an officer, this may result in that decision being characterised as harsh, unreasonable or unjust. If the Commissioner determines to reject information provided by a police officer by way of written submissions without giving it proper consideration, this may also result in any decision to remove being characterised as harsh, unreasonable or unjust. Proper consideration may require, in appropriate circumstances, further investigations about what is contained within a police officer's written response submissions.
193 In the conduct of the independent enquiry that I have undertaken concerning this application, I have had available to me evidence that was not before the Commissioner. That evidence leads me to conclude that in the context of Grounds 1, 3 and 4, the decision of the Commissioner to remove the applicant was harsh, unreasonable and unjust because there was no proper factual basis for the establishment of those Grounds, for the reasons that I have earlier set out. In the context of Ground 5, I have concluded that the applicant was untruthful in describing the form which he had created as having been "approved". However, I am unable to agree that the Commissioner was justified in concluding that, in the context of this matter, the applicant was "deliberately misleading". I do not regard this as a matter that either alone or in the aggregate would justify the applicant's removal.
194 With respect to Ground 6, I have concluded that the Commissioner was in error in determining that this Ground was made out.
195 This leaves for consideration the remaining grounds. They revolve around the access by the applicant to the COPS system, whether the applicant had inappropriately disclosed any information so accessed to another person and whether the applicant had been appropriately truthful in what he had told Inspector Nicholson. It also involves consideration of the justification relied upon by the applicant when accessing the COPS system.
196 Having carefully considered all of the evidentiary material relating to Grounds 7 to 11 relied upon by the Commissioner in his reasons for removal, I conclude that the applicant has not established that the access which he gained to COPS on 8 April 2008 and on 1 March 2008 was authorised in the sense that such access was gained for a purpose consistent with the protocols and procedures established within the New South Wales police force to secure authorised access. On the basis of his evidence, I am of the opinion that the access gained by the applicant to COPS on these occasions was motivated by his concerns for his safety and that of his family with respect to the threats that he perceived might come from the police officer referred to in these proceedings as ES. I do not accept that the applicant was authorised by any other officer to access COPS, as asserted by him, nor do I accept that such access was gained for the purpose of the discharge of his duties as a police officer. This extends in particular to circumstances surrounding other apartments in the residential block in which the applicant resided. Furthermore, I am of the opinion that the applicant was not appropriately truthful in connection with the information that he gave to Inspector Nicholson on 18 April 2008 and during the course of the interview which she conducted on 14 May 2008.
197 In connection with the statement on 18 April 2008, I have already referred to the concession made by the applicant in the course of cross-examination that endeavouring to use an excuse that his memory on that occasion was incomplete because the COPS access had occurred some months previously was incorrect. The statement made by the applicant related to access that had occurred some 10 days previously. Furthermore, I am of the view that the explanation which the applicant sought to give to Inspector Nicholson during the course of the interview on 14 May 2008 concerning his access to COPS about ES was untruthful. When first referred to this matter, he said that he had read information on the computer from "previous jobs with ES and I had a conversation with the prosecutor …." When asked what the previous jobs were, the applicant referred to the last one which was "reviewing a siege that ES and I had done together for a job application …." He said that that access had occurred in 2008 "in the last three months for a teamwork competency." He said that he had accessed the computer using as a pathway a reference to the person involved in the siege. He was then confronted with a printout of his COPS accesses for 8 April 2008 and conceded that they were "all event accesses" on ES. When asked what lawful reason he had to access this information, he said: "Like I previously stated I was looking for an event and competency for a … job application." In answer to a further question, he said that he had originally intended to look at the particular event and "then I became concerned due to the ongoing problems that I have with ES …."
198 I conclude that, in making these statements, the applicant was being untruthful. It is clear from the totality of the evidence in the proceedings and from the remaining evidence given by him that the applicant was intent on accessing COPS to ascertain whatever information about ES was available to assist him in evaluating whatever threat was posed by ES to the applicant and his family.
Was the removal harsh, unreasonable or unjust?