Annetts v McCann

LEGISLATION CITED: Police Act 1990 - s 169A, s 181D, s 181E, s 181F

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198 CASES CITED: Hosemans v Commissioner of Police [2004] NSWIRComm 253 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52 Szbel v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

HEARING DATES: 17 - 20 August 2009 and 7 & 19 September 2009 (written submissions)

Mr T Edwards of counsel (Applicant) Solicitor: Harris Wheeler Lawyers LEGAL REPRESENTATIVES: Mr B Cross of counsel (Respondent) Solicitor: Deacons

Application by Jamie David Morgan for review of an order under s 181E of the Police Act 1990

1 These proceedings concern an application made by Jamie David Morgan ("the applicant") seeking certain relief under s 181E of the Police Act 1990 ("the Act") following his removal from the New South Wales Police Force by an order made by the respondent Commissioner of Police, such order having been made pursuant to s 181D of that Act. 2 S 181D is in the following terms: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.

(2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister.

(3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and

(b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and

(c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force.

(5) The removal takes effect when the order is made.

(7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and

(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, "tribunal" means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission.

(7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.

(7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section.

(8) For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force.

(9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 3 The powers and functions of this Commission are governed, in part, by provisions of Division 1C of Part 9 of the Act. Relevantly, ss 181E to 181I are in the following terms: 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 (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust.

(2) An application under this section does not operate to stay the operation of the order in respect of which it is made.

(3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1).

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)). 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted,

(b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted,

(c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review,

(d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted,

(e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made,

(f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information,

(b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously,

(c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. 181H Commissioner and members of Commissioner's Advisory Panels compellable witnesses only by leave (1) In any proceedings before the Commission under this Division, neither the Commissioner nor any member of a Commissioner's Advisory Panel is compellable to give evidence in relation to the exercise of the Commissioner's functions under section 181D unless the Commission gives leave.

(2) The Commission may give such leave only if it considers that extraordinary grounds exist that warrant leave being given.

(3) In this section, Commissioner's Advisory Panel means a panel established by the Commissioner to assist in the exercise of the Commissioner's functions under section 181D. 181I Matters relating to evidence (1) Section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 applies to a witness giving evidence before the Commission in proceedings under this Division in the same way as it applies to a witness giving evidence in proceedings before a court, and so applies as if a reference in that section to a court were a reference to the Commission.

(2) Subject to subsection (1) of section 163 (Rules of evidence and legal formality) of the Industrial Relations Act 1996, nothing in this Division limits or otherwise affects the admissibility in evidence in proceedings before the Commission under this Division of any transcript of the proceedings of any other court or tribunal. 4 The applicant was removed from the New South Wales Police Force by the respondent by order made on 19/11/2008. In removing the applicant, the respondent was required by s 181D(4) to set out the reasons for removal. Those reasons are contained within a "statement of reasons" which is in the following terms:

I am required to make a determination under section 181D(1) of the Police Act 1990, in respect of whether I have confidence in you as a member of the New South Wales Police Force.

In making the determination, and in accordance with the relevant legislation, I have taken into account the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990, together with the evidence contained in the supporting documentation, which were served on you on 12 September 2008. The grounds set out in my Notice to you refer to your conduct and integrity. I have also taken into account your written submission in response to the grounds set out in my Notice which was provided to me by your legal representative.

I have given careful consideration to all the material that has been presented to me in this matter, and I provide the following reasons for my determination:

Ground 1 - Disclosure of the identity of an Internal Police Complainant (IPC)

Senior Constable Kevin Grimble states that, in about early 2007, you told him that you had made a Freedom of Information (FOI) application to obtain all documents relating to departmental complaints you had been involved in, or subjected to, during your career. Senior Constable Grimble states that you told him that a large number of complaints made against you had been made by Senior Constable Foster. Senior Constable Grimble states that you indicated that you were aware that Senior Constable Foster was an ' internal police witness ', and that you would ' pay particular attention to Senior Constable Foster' and initiate complaints against him if you became aware of ' any issue or situation involving him.'

In or about July 2007, Senior Constable Grimble states that he passed this information to Senior Constable Foster, who, according to Acting Inspector Moore, then reported it to Acting Inspector Moore on 19 July 2007.

The NSW Police Force FOI Unit has no record of any relevant FOI request by you. An FOI request was made by Sergeant Anthony (Scott) Ide and documents were provided to Sergeant Ide.

In a directive memorandum dated 5 September 2007, you denied that you had made any FOI requests. You stated that you were aware that Sergeant Ide had made a request for his own file, but asserted that you had not seen any such documents. In a record of interview conducted by Inspector Nicholson on 5 September 2007, you stated that you believed Senior Constable Foster had been a complainant against you about a vehicle accident. You state that you had ' possibly ' had a conversation with another officer about Senior Constable Foster, during which you discussed that Senior Constable Foster may have been an IPC.

In your response to my Notice, you deny disclosing any information to Senior Constable Grimble. You admit that you did speak about matters that were ' general knowledge in the station' . You further state your understanding of the relevant legislation was that you could not disclose the identity of an IPC only while the investigation was current and that you did not know for sure that Senior Constable Foster was an IPC - it was only station scuttlebutt.

I am unaware of any evidence supporting your assertion that it was 'station scuttlebutt' that Senior Constable Foster was an IPC. I accept the statement of Senior Constable Grimble where, in his reply to a Directive Memorandum, he states he had ' no knowledge of any such complaints, as Senior Constable Foster had never mentioned them to me '. I therefore conclude that you believed that Senior Constable Foster was an IPC in a complaint against you and you deliberately disclosed this information to Senior Constable Grimble.

I consider that you disclosed the identity of a person whom you believed to be an IPC in contravention of section 169A of the Police Act 1990 and clause 46(1) of the Police Regulation 2000.

Section 169A of the Police Act 1990 relevantly states: A member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made:

(a) in accordance with guidelines established by the Commissioner, or

(c) in accordance with a requirement of or made under this or any other Act, or

(d) for the purposes of any legal proceedings before a court or tribunal.

Clause 46(1) of the Police Regulation 2000 states: A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone. Ground 2 - Threat against a person who you believed was an IPC.

Acting Inspector Moore states that Senior Constable Grimble told him that you also said that Senior Constable Foster ' would get his '. Senior Constable Grimble states that he does not specifically recall this being said by you. You stated that it was your view, ' that officers that make false complaints or malicious ones will be discovered eventually and investigated for making false complaints' . You denied that these words meant that you intended harm to any officer or that you intended to make a payback complaint against any officer. You stated that you believed that various malicious complaints had been made against you. You further said '[I have] stated openly to other officers during general conversation that officers who make false or malicious complaints will get their own and be found out and investigated themselves. This has and always will be my position in relation to officers making false, payback or malicious complaints about other officers '.

In your response to my Notice you deny telling Senior Constable Grimble that Senior Constable Foster ' would get his ' and point out that Senior Constable Grimble does not recall you saying those words.

I accept that the threat against Senior Constable Foster cannot be established.

Ground 3 - False complaint about a person who you believed was an IPC

On 12 September 2007, you made a written report alleging that you had been told by two highway patrol officers, later identified as Senior Constables McDonnell and Grimble, that Senior Constable Foster had said ' let's go out the [sic] eastern cluster and ping Morgan '. Senior Constables McDonnell and Grimble both deny that Senior Constable Foster said those words to them, and also deny that they made any such report to you. You maintain that the content of your report is true, although stating that the comments were made to you some time ago. However, you say that you had previously raised the matter with senior officers ' for their information '.

In your response to my Notice you deny making a false complaint, stating that Senior Constable Grimble's and Constable McDonnell's recall may have been better had the matter been investigated at the time it was reported verbally. I reject this assertion.

Senior Constable Grimble and Constable McDonnell are clear and forthright in their reply to a Directive Memorandum. Senior Constable Grimble states "at no time during the conversation I had with Constable Morgan in the rear yard of the Queanbeyan Police Station, or at any other time, did I inform Constable Morgan that Senior Constable Foster had suggested 'let's go out to the eastern cluster and ping Morgan". Constable McDonnell stated "I have never heard that conversation or said that to Morgan. I have known for years that Morgan and Foster don't get on but I have never hear (sic) Foster say anything about going after Morgan".

I consider that you made a complaint on 12 September 2007 about Senior Constable Foster, knowing the complaint to be false.

Ground 4 - Failure to report a conflict of interest

Your belief that Senior Constable Foster was an IPC in complaints against you created a conflict of interest once you made a complaint about Senior Constable Foster. You did not report this conflict of interest to your supervisor when obliged to do so.

In your response to my Notice you deny any conflict of interest. You assert that you made a complaint about a police officer whom you believed had committed misconduct and that you could not outline in your report that Senior Constable Foster was an IPC as this would "have been a formal disclosure of Senior Constable Foster's potential status".

I have determined that once you had formed the belief that Senior Constable Foster was an IPC against you, you failed to declare the conflict of interest in contravention of the NSW Police Conflicts of Interest Policy which relevantly states: It is the responsibility of NSW Police employees to identify actual, potential and perceived conflicts of interest and to remember that private interests and work obligations can never be in conflict.

NSW Police employees are required to take all reasonable steps to avoid conflicts of interest related to their NSW Police employment.

It is the responsibility of NSW Police employees to work cooperatively with their commanders, managers and supervisors to manage and resolve conflicts of interest if they arise. All conflicts of interest must be resolved in the public interest.

In addition to the breaches of legislation and NSW Police policy extracted under individual grounds above, I consider that your conduct in relation to Grounds 1, 3 and 4 has breached the NSW Police Force Code of Conduct and Ethics. Point 1 of the NSW Police Code of Conduct and Ethics relevantly states: All employees of the NSW Police must behave honestly and in a way that upholds the values and the good reputation of the NSW Police whether on or off duty.

Whether on or off duty your conduct will reflect on NSW Police. All employees must protect the reputation of NSW Police through appropriate behaviour.

You must always act lawfully and never in a way that brings, or is likely to bring discredit to NSW Police.

You must act honestly, truthfully and with integrity in all of your dealings with other employees and the public.

Point 3 of the NSW Code of Conduct and Ethics relevantly states: An employee of NSW Police must know and comply with all policies, procedures and guidelines that relate to their duties.

Point 4 of the NSW Code of Conduct and Ethics relevantly states: An employee of NSW Police must treat everyone with respect, courtesy and fairness.

In relation to ground 1 particularly, Point 8 of the NSW Code of Conduct and Ethics relevantly states: An employee of NSW Police must only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police policy.

On 26 April 2007, you submitted an application for a position in the Monaro Target Action Group. The application addressed various competencies. Under the heading 'Demonstrated Knowledge of Source Management Policy ,' you claimed that, in May 2005, you registered a source in relation to break and enter offences. You said that you registered the source as "on going" to provide an audit trail of your association, and that you recorded your contacts with the source on the source system.

The Source Management Unit has no record of the alleged source. It seems you only ever registered one source, which is not the one in question. On 30 May 2007, you told Detective Inspector Box that Senior Constable Chris Wallace had helped you with the source and that the source was probably registered under his name. Detective Inspector Box was unable to locate any source registered in May 2005 by Senior Constable Wallace.

On 4 June 2008, Senior Constable Wallace provided an e-mail about the matter. He says that information leading to the conviction of two women for break and enter offences was provided by a young male whom you had been cultivating as a source, but who had not been registered. He says he provided you advice about interviewing the source away from other members of the public, and also advised you ' numerous times to get the source registered ' as well as indicating that he would be happy to be co-handler. However, he says that you did not further involve him, leading him to believe either that the source had not been registered or that he had been excluded from the registration. He says that he never registered the source under his name.

Under the heading ' Initiative' you also state within your application that you ' collectively designed ' a standard form to be given to victims of break and enter offences, which was approved by the Crime Manager and used by Police in Queanbeyan.

It appears that you did propose a new form but the (then) Acting Crime Manager, Detective Sergeant Barclay, notified you in writing the form would not be used because an effective system was already in place.

In your response to my Notice you admit that you made errors within the application but deny that you were deliberately misleading or untruthful, stating "I operated on memory alone when preparing the notice".

I have concluded that your job application was untruthful, or at least deliberately misleading, in relation to your claim that you had registered a source.

I have also concluded that you were knowingly untruthful, or at least deliberately misleading, in your job application when you claimed that you had designed a standard form to be given to victims of break and enter offences which was approved and used.

I have determined that you lied to Inspector Box when further questioned about the truthfulness of your job application on 30 May 2007.

You have breached the NSW Police Code of Conducts and Ethics.

Point 1 of the NSW Police Code of Conduct and Ethics relevantly states: All employees of the NSW Police must behave honestly and in a way that upholds the values and the good reputation of the NSW Police whether on or off duty.

You must act honestly, truthfully and with integrity in all of your dealings with other employees and the public.

Ground 7 - Unauthorised COPS accesses on 8 April 2008

It appears that you live nearby Senior Constable (ES). You assert that, over early to mid 2008, you had bad dreams about Senior Constable (ES). You also assert that Senior Constable (ES) has previously telephoned and threatened you, and subjected you to ' ongoing harassment and threats '.

COPS records show that, at 3:15 am on 8 April 2008, you performed a 'perfind' search for '(ES)', and then viewed four linked charge and intelligence reports. At 3:24 am the same day, you performed a further 'perfind' search under the same name, and viewed two linked charge reports. One included information that Senior Constable (ES) had stated that he ' wants to go out like Ned Kelly '. I note at this stage, that this alleged conduct does not appear to have been the subject of any complaint by you.

On 14 May 2008, you participated in a directed interview. You initially stated that the last time you could recall accessing COPS in relation to Senior Constable (ES) was to review ' a siege that (ES) and I had done together for a job application '. When confronted with the COPS records for 8 April 2008, you maintained that those accesses were for the purpose of ' looking for an event and competency for a Bungendore job application '. You were asked why this required you to look at the intelligence and charge reports. You then stated that, although originally looking at the records for the purpose of preparing the job application, you then ' became concerned due to the ongoing problems that I have had with (ES) about firearms and I read the matters that involved the firearms '.

In your response to my Notice you state ' I rely on my records of interview and reports as being a truthful account of my reasons….to my access to that information '. You further state that (ES) was ' still engaging in what I considered to be intimidatory behaviour, driving slowly past my window and walking his dogs at 2:00 and 3:00am outside my bedroom window .'

While I agree that living in close proximity to (ES) would have been difficult for you, this does not justify your actions.

In the circumstances, I consider that you made a series of unauthorised COPS accesses on 8 April 2008.

Ground 8 - Failure to properly record or explain COPS accesses on 8 April 2008

In your directed interview on 14 May 2008 you admit that you had not recorded any reasons for accesses on 8 April 2008 on either the COPS system or in your notebook. You also agreed that a warning screen automatically pops up when COPS is accessed, warning you to only access COPS lawfully.

You have not addressed this ground in your response to my Notice. I therefore consider that you failed to properly record or explain the COPS accesses.

Ms Catherine Bell appears to be friends with both you and Senior Constable (ES). You admit that, on or around 16 April 2008, you had a discussion with Ms Bell. Ms Bell says that, during the discussion, you told her that Senior Constable (ES) had said that he ' wanted to go out like 'Ned Kelly"' . She says that she then passed details of this conversation to Ms Gina Marinceski, who appears to now be living with Senior Constable (ES).

On 17 April 2008, Senior Constable (ES) complained about your alleged comments to Ms Bell. Inspector Nicholson states that, on 18 April 2008, she asked you whether you had accessed any confidential information about Senior Constable (ES), and that you denied doing so. You seem to concede that your answer was incorrect, but say that, due to stress, you did not intend to be untruthful. You deny passing any information obtained from your COPS accesses to Ms Bell (other than matters about court dates, which you say were on the public record). You say that you do not recall talking to Ms Bell about the alleged "Ned Kelly" comments. While admitting that the "Ned Kelly" references were in the reports you accessed, you say that you heard that information "around the station", and suggest that Ms Bell may have found out about the comments through her family members who are also in the NSW Police Force.

In your response to my Notice you state you do not recall saying anything about Ned Kelly to Catherine Bell instead offering that she may have heard the information elsewhere, as it was common knowledge.

I accept Ms Bell's statement to Inspector Nicholson that you told her about the 'Ned Kelly' comments and that she "had not heard that before", therefore, I consider that you improperly released confidential information obtained by the COPS accesses to Ms Bell.

I note that you have not addressed this ground in your response to my notice. I consider that you were untruthful during your conversation with Inspector Nicholson on 18 April 2008 in denying the accesses to confidential information about Senior Constable (ES). I have also determined that you were deliberately evasive about the same matters during your interview on 14 May 2008.

Ground 11 - Unauthorised COPS access on 1 March 2008

After your directed interview on 14 May 2008 it was discovered that on 1 March 2008, you made a series of COPS enquiries in relation to (a particular address). At the time you were living within the townhouse complex at (a particular address).

These COPS enquiries were made without a reason for access being recorded. You then made a search of your own drivers licence details, your COPS profile and your firearms licence record. These COPS accesses appear to have been undertaken for reasons unrelated to your official duties.

In your response to my Notice you did not address these issues. I conclude that you made a series of unauthorised COPS accesses on 1 March 2008.

On the basis of the matters set out grounds 7 to 11, I consider that you have breached the following NSW Police Force policies and clause 46(1) of the Police Regulation 2000 as set out below. Point 3 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of NSW Police must know and comply with all policies, procedures and guidelines that relate to their duties.

In relation to ground 9 particularly, Point 8 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of NSW Police must only access confidential information if required by their duties and allowed by NSW Police policy…Employees must only access NSW Police information for purposes that are directly relevant to their duties.

Point 9 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of NSW Police must not make improper use of their position or NSW information or resources. You must not improperly use your position, or access NSW Police resources and information, for personal gain or the gain of any other person or organisation.

In relation particularly to grounds 7, 9, and 11, the NSW Police Force Code of Best Practice for Information Management relevantly states: 6.5 What can I access information for?

According to the Police Service Notice PSN 99/55, access to stored information is restricted to a "Need to Know" basis and officers and unsworn employees may only make an access for a purpose connected with their official duties. You are accountable for accesses made under your password and must prove that your access was lawful, or else you will face penalties. …

The practice of perusing information to gather intelligence and crime trends in connection with your duties is acceptable, however, 'drilling down' to obtain specific information should only be carried out for specific operational reasons, or on a 'Need to Know' basis. You may not drill down for general perusal or because of idle curiosity. You may not search and find information for personal reasons or to assist a colleague.

6.6 How can I safeguard against inadvertent access?

… As the onus is on you to prove that your access was lawful, you should always document your access to confidential fields and the reasons in your notebook or diary. Accesses to confidential fields are logged and subjected to audits. If you are audited, you must have a lawful reason for the access or you will face sanctions…

In relation particularly to ground 8, the NSW Police Force Handbook, relevantly states: Notebooks

As a minimum, record the matters listed below, and where possible, have the affected person sign it…

…access to the Service's computer system (not able to be justified by other means)…

…The NSWPF Code of Best Practice for Information Management will guide you in taking actions to make best use of the information in a manner that is consistent with the policy and legislative framework. …

In relation particularly to grounds 7, 9, and 11, the NSW Police Force Computerised Operational Policing System: User Guide relevantly states: Under no circumstance is the information provided by COPS to be used for a purpose other than official police business.

In the interest of public privacy and better policing, observe the following guidelines:

…Only access information in the normal course of your duty (do not access information for gratuitous or personal reasons)

Clause 46(1) of the Police Regulation 2000 also states: A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone. I note that on 17 May 2002, you signed and acknowledged your understanding of the NSW Police Force 'Statement of Responsibility: Information and Information Systems' which relevantly states: …Access [to] computers and computer systems is authorised for the performance of duties online. Information is not to be put to any personal use… I further note your acknowledgment of the COPS warning screen that appears whenever COPS is accessed. The warning, relevantly, states: No person is allowed access other than for a lawful purpose. Your access is being monitored to ensure it is lawful. The system contains personal, confidential and sensitive information. … Data on the system must NOT be disclosed to unauthorised persons and you are NOT authorised to access it for personal, demonstration or training reasons. … Unauthorised access, corrupt disclosure, unlawful use of personal information or offering to supply personal information carry criminal sanctions, ranging from a fine, imprisonment or both together with probable dismissal or managerial action. If you proceed to use this system, you acknowledge this warning and conditions. LOG OFF, if you do not accept them.

I am very concerned about your conduct in respect of each of the grounds set out above.

I am particularly concerned about the false complaint against Senior Constable Foster as well as your release of extremely sensitive and confidential information about a fellow officer to mutual colleagues. I believe that overall, these grounds cast serious doubt over your integrity and suitability to remain as a serving member of the NSW Police Force.

I am also particularly concerned about your overall truthfulness and integrity. I refer specifically to your conduct on 18 April 2008 when you denied accessing confidential information regarding (ES) and also your deliberate evasiveness when asked about the same matter during interview on 14 May 2008.

In your response to my Notice you asked that I take into consideration the circumstances surrounding the removal of Senior Constable (ES). You state that you were under considerable stress for a lengthy period of time. I have reviewed this matter and while I empathise with you, it does not excuse you from your responsibilities to act in a professional and ethical manner.

I have carefully reviewed all of the material associated with this matter and see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer.

I expect and the law demands that New South Wales police officers will uphold their Solemn Oath of Office at all times. Our Oath requires all New South Wales police officers will act: professionally at all times; with ethics and integrity; and in accordance with the law. This is our sworn duty.

I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Code of Conduct and Ethics.

I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer . The above extract has been edited so as to refer to a particular police officer by the initials "ES" and to delete reference to a particular address. 5 The order for removal was made following the process which is referred to in s 181D(3) of the Act. The respondent had given the applicant a notice setting out grounds on which he did not have confidence in the applicant's suitability to continue as a police officer. Those grounds were essentially the same as those contained in the statement of reasons for removal. A reading of the statement of reasons for removal will show that the respondent did not rely on ground 2 of the original notice given to the applicant. The applicant responded in writing to the respondent's original notice as contemplated by s 181D(3)(b). I am satisfied that the respondent took the applicant's written submissions into consideration when determining to issue the order for removal, in compliance with s 181D(3)(c). During the course of the hearing, the applicant's counsel sought to argue faintly that the respondent had not done so, but there was no appropriate evidentiary basis established for doing so, and given that the onus of demonstrating non-compliance falls on the applicant (s 181F(2)), I will proceed on the basis that there has been compliance by the respondent with this requirement. 6 Evidence was given in the proceedings by the applicant and a number of current or former serving police officers. Furthermore, there was tendered into evidence a great deal of documentation. Included within the documentation was a bundle of documents entitled "Commissioner's Confidence Supporting Documentation". These were documents which were made available to the respondent at the time that he determined to remove the applicant for the New South Wales Police Force. 7 Before commencing my consideration of the various matters with which I am required to deal as provided for in s 181F(1), I shall set out some background material concerning the applicant and his circumstances leading up to the events which in turn have given rise to these proceedings. The applicant was born on 21 August 1981. He became a probationary constable on 30 August 2002 and was attested into the New South Wales Police Force on 30 August 2003. He has always worked within the Monaro Local Area Command ("LAC") being stationed on 30 August 2002 at Queanbeyan, being transferred to Bungendore on 31 July 2005 and back to Queanbeyan on 15 April 2007. 8 I now deal with each of the grounds set out in the Commissioner's statement of reasons for removal.

Ground 1 - disclosure of the identity of an internal police complainant ("IPC"); Ground 3 - false complaint about a person who you believe was an IPC; Ground 4 - failure to report a conflict of interest

9 It is convenient to deal with the factual material relating to these three Grounds together.

10 In general terms, there were a number of distinct parts to these grounds. They are: 1) There was a conversation between Senior Constable Grimble and the applicant. 2) That the applicant said that he had made an FOI application about complaints concerning him. 3) That the applicant had said that Senior Constable Foster was an internal police witness. 4) That the applicant threatened a particular course of conduct. 11 The material included within the Commissioner's Confidence Supporting documentation and which was available to the Commissioner when he made his decision to remove the applicant contained a number of documents about this matter. 12 A memorandum from Acting Inspector Moore dated 23 July 2007 said that on 19 July 2007 Senior Constable Foster had informed him that Senior Constable Grimble had reported to Senior Constable Foster about a conversation that he, Grimble, had had with the applicant. The applicant is alleged to have told Senior Constable Grimble that he had applied for his own internal complaints record through the Freedom of Information Act which had identified Senior Constable Foster as a complainant in relation to an incident in which both the applicant and Sergeant Ide had been involved in a police pursuit. The police vehicle was involved in an accident and Sergeant Ide had been the driver. The applicant believed that Foster had complained that it was he in fact who was the driver and not Sergeant Ide. Senior Constable Foster, in relaying this information to Acting Inspector Moore did not say whether he was the complainant in the matter, he merely said that he was upset about what he believed the applicant had been saying to other police officers. 13 The following day, 20 July 2007, Acting Inspector Moore spoke to Grimble. Grimble said that in a conversation with the applicant in the rear yard of the police station at Queanbeyan, the applicant told him that he had obtained details of complaints made against him, such details being received under the Freedom of Information Act and these had identified Foster as the officer who had initiated a complaint against him to the effect that he was the driver of the police pursuit vehicle. Grimble also said that the applicant had told him "Senior Constable Foster will get his." Grimble told Acting Inspector Moore that he understood this to mean that the applicant "would be watching for anything (Foster) did wrong to make a payback complaint." 14 A comment at the foot of the memorandum indicated that Acting Inspector Moore had concluded that the applicant

has an intense dislike for Senior Constable Foster, apparently as a result of the internal investigation. Constable Morgan apparently continues to make this abundantly clear when speaking to other officers. … Initial enquiries show Constable Morgan's action may be a breach of the Police Service Act . 15 I note that the memorandum is headed "Complaint in relation to Constable Jamie Morgan identifying Senior Constable Foster as an internal police complainant to other police staff." I observe that it is abundantly clear from the contents of the memorandum that there is no indication that Senior Constable Foster was a "complainant". Indeed, the memorandum clearly states that Senior Constable Foster "did not confirm to me if he was the complainant in the matter …." 16 The next document is dated 5 September 2007. The applicant was directed by Inspector Marnie Nicholson to respond to her memorandum. That memorandum indicates that she was conducting an investigation, number PO703635, which comprised an allegation that, firstly, the applicant directly or through another person obtained information from a Freedom of Information file related to an internal police complainant in a complaint investigation numbered PO403443 "related to a police motor vehicle accident/pursuit where you were the passenger and Sergeant Ide was the driver." The second matter was "that you revealed an internal police complainant to another officer and made a threat that 'He will get his'." 17 The directive memorandum issued by Inspector Nicholson compelled the applicant to respond to the memorandum "and immediately submit a comprehensive report detailing your knowledge of these matters." The applicant was forbidden from collaborating with any other officer, was directed to retain and adequately secure any copies of his response including hard and electronic copies and not to show his response to any other officer without her authority. Finally, he was directed "not to disclose any information in respect to this memorandum to any other person, without my authority, until the completion of this enquiry." 18 The applicant responded in writing the same day. He said that he did not obtain any information through a Freedom of Information request, he was informed that such a request had been made by Sergeant Ide, that he had not seen nor read those documents. Furthermore, he could not understand why any complaint was being addressed to him in connection with the release of this information. 19 In terms of the second aspect of the memorandum, he said that the question of the police pursuit had been investigated, he had never been informed of the outcome of the complaints, he had been told that the investigation had been finalised by numerous officers, that he had never informed anyone that he had information as to the "true identity of the complainant", that since that complaint had been finalised "numerous other malicious complaints had been made against me", that he had stated openly to other officers in the course of general conversation that any officer who made a false or malicious complaint would get "their own and be found out and investigated themselves." He explained that this last remark was made "in the context of false complaints" which he said were "criminal, unethical and caused unwarranted stress on officers." He was unable to ascertain how such a comment could be interpreted or perceived as a threat. 20 Later that day, Inspector Nicholson interviewed the applicant for a little over one hour. He was told that he was compelled to answer the questions put. 21 The applicant was first asked who he believed were the police complainants in the investigation concerning the police pursuit. He said that he believed that it was one of two people who had some form of involvement and named Constables Howse and Foster. He said that this was based on rumours and a conversation with the offending driver who was being pursued who said that he had been harassed by another officer to name the applicant as the driver. He had later learned that the offender had made allegations that the applicant was the driver rather than Sergeant Ide. 22 The applicant said that he had possibly discussed with both Howse and Foster that they may have been an internal police complainant. He said that he could not remember the detail of any conversations because they occurred more than four years ago. He did state, however, that it was not discussed with either of them while the matter was being investigated. 23 The applicant was adamant in answers to questions put by Inspector Nicholson that it was his understanding that any prohibition on a discussion about a matter involving an internal police complainant could only take place after the investigation had concluded. 24 The applicant denied that he had made any threat to either officer. He said that the only comment that he had made was to the effect that "Officers that make false complaints or malicious ones will be discovered eventually and investigated for making false complaints." He denied that he had made any complaint arising from the matters associated with the pursuit incident. 25 At the conclusion of the interview, Inspector Nicholson gave the applicant a copy of s 169A of the Police Act. She said that he was prohibited from disclosing the identity of a police complainant at any time, even at the conclusion of the investigation. 26 On 12 September 2007, the applicant created a memorandum which was headed "Pursuant to a conversation with Inspector Nicolson (sic) on 5th September to report any issues of misconduct or breaches of police policy…." The memorandum consisted of a complaint by the applicant "in relation to ongoing attempts to form complaints and harassment by Senior Constable Foster towards Constable Morgan." It said that the applicant had been told by highway patrol officers on a number of occasions that Senior Constable Foster had threatened to "ping" him on radar in the police vehicle whilst working. The applicant said in the memorandum that he had reported his concerns to Inspector Eastham. He said he felt intimidated by the professed attempts by Senior Constable Foster which involved, in effect, testing his speed against the speed limit on each occasion that he was driving a police vehicle. 27 On 13 September 2007, the applicant was again required to submit to a directed interview by Inspector Nicholson. He was asked to divulge the names of the highway patrol officers who had informed him that Senior Constable Foster had wanted to "ping" him. The applicant responded in writing naming two officers, Constable McDonnell and Senior Constable Grimble. 28 Inspector Nicholson subjected Senior Constable Grimble to a directed memorandum on 13 September 2007 in relation to two matters. The first was the conversation that he had had with the applicant in which the applicant had told him that Foster was an internal police complainant and had made a threat that he would "get his". The second related to the allegation that Foster had told Senior Constable Grimble that they should "ping Morgan". 29 In relation to the conversation with the applicant, Senior Constable Grimble said:

I am unable to recall the exact time or date of the incident/conversation I had with Constable Morgan. All I can recall is that was a number of months ago, most likely the earlier months of the year 2007. I do recall that the conversation took place in the rear yard of the Queanbeyan Police Station during daylight hours. 30 Further, Senior Constable Grimble said:

I do not recall the exact content of the conversation and my memory of the conversation is very limited, considering the time that has passed since the time of the conversation. 31 Senior Constable Grimble then set out what he recalled of the conversation which was that the applicant asked him if Senior Constable Foster was working and he told him that he was not rostered for the day and did not know when his next shift was. He said that the applicant had asked him about when Senior Constable Foster was working previously. He did not ask the applicant why he was seeking this information. 32 He then said that the applicant told him that he had applied for Freedom of Information documentation about complaints which had been made against him or in which he had been involved, that he had received those documents and that Foster had been a complainant in a large number of complaints. The applicant had also informed him that Foster was "an internal police witness and that every complaint against him initiated by Senior Constable Foster was unsubstantiated." 33 There was then a conversation in which Senior Constable Grimble denied knowing why Senior Constable Foster may have disliked the applicant. 34 In terms of the "threat", Senior Constable Grimble recalled that the applicant said he would "pay particular attention to Senior Constable Foster and if he became aware of an issue or situation involving Senior Constable Foster he would initiate complaints against Senior Constable Foster." He formed the opinion that the applicant had a "strong dislike" for Foster and would engage in "tit for tat" behaviour with him. He denied any concern that there was a threat of physical harm and concluded that "I strongly believe that Constable Morgan was just emotionally upset by the apparent information he had received from the Freedom of Information office." 35 Senior Constable Grimble said that that conversation was

only a short conversation, no greater than five minutes. During the conversation I mostly listened and I barely responded to anything Constable Morgan had to say, solely as not to become involved in any incident involving both the mentioned officers. 36 Some weeks later, Senior Constable Grimble informed Senior Constable Foster of the conversation he had had with the applicant. 37 Senior Constable Grimble denied any conversation in which he informed the applicant that Foster would "ping" him and denied that Foster had ever made such a suggestion to him. 38 This report was dated 13 September 2007. 39 Constable McDonnell advised Inspector Nicholson verbally on 13 September 2007 that he had never had a conversation with the applicant about Foster "pinging" the applicant. 40 On 13 September 2007, Senior Constable Foster forwarded a handwritten memorandum to Inspector Nicholson in connection with the "ping Morgan" allegation saying that:

I am unable to say I have ever used words to this effect, or had a conversation in relation to 'pinging' Constable Morgan, with any person in this Command, or any other act targeting Jamie Morgan. 41 On 22 October 2007, Inspector Nicholson conducted a further interview with the applicant which, on this occasion, lasted almost two hours. The interview was directed to the complaint issued by the applicant on 12 September 2007 concerning Senior Constable Foster. The applicant was told that he would now be the subject of a complaint about this matter because his complaint "may constitute a payback complaint." 42 In answer to a question, the applicant complained that he had made the report because he understood that Inspector Nicholson had told him that he was obliged to report misconduct or other reportable incidents, that he had been so informed in the course of the last interview and that is why he had done so. In the course of the interview, there appears to have been no attempt by Inspector Nicholson to refute this. 43 The interview traversed the circumstances concerning the pursuit incident, a history concerning complaints made by the applicant and made against the applicant and explored what information had been given by Constables McDonnell and Grimble to the applicant about any professed desires of Foster to "ping" him. Some extracts from the applicant's diary appear to have been given to the Inspector. 44 This was the totality of the information made available to the Commissioner at the time that he considered the matter. The conclusion reached by the Commissioner was that the applicant had disclosed the identity of a person whom he believed to be an internal police complainant and that in doing so he had breached s 169A of the Police Act as well as Clause 46(1) of the Police Regulation 2000. 45 The applicant dealt with these matters in his Response, the document that the Commissioner had at the time that he determined to remove the applicant. 46 In his response, the applicant denied telling Grimble that he had made an FOI request. He said that the conversation was initiated by Grimble who wanted to obtain information under the FOI legislation. Grimble thought that the applicant had made such an application, but he had not. He was, however, aware, of the application made by Sergeant Ide and of the basic procedure and told Grimble about this. In his response document, the applicant denied that he disclosed to Grimble that Senior Constable Foster was an internal police complainant. He knew of no matter in which Senior Constable Foster was involved which concerned the applicant other than the pursuit complaint. The applicant asserted in his response document that it would be absurd that any such information to the effect that Senior Constable Foster was a complainant against him would be disclosed in an FOI release. 47 The applicant referred to the information that he had given to Inspector Nicholson in the interview conducted on 5 September 2007 and repeated this. He denied disclosing anything untoward to Grimble. He again referred to the involvement of Senior Constables Foster and Goodyear as being "scuttlebutt" around the station and reminded the Commissioner that the pursuit investigation had occurred some five years previously. 48 The applicant submitted in the response document that Grimble's version should not be accepted because it was part of a casual conversation, Grimble acknowledged that he did not recall the exact content of the conversation and that he had a limited memory of it and that the first time that he was required to consider it was on 13 September 2007. 49 The applicant also questioned the material in the report of Inspector Moore of 23 July 2007 and expressed concern that Inspector Moore had made conclusions based on hearsay about a dislike that the applicant had for Senior Constable Foster. The incident occurred in 2002. The applicant referred to work that he had undertaken with Senior Constable Foster in 2008 in which he had worked co-operatively with him. 50 The applicant denied that he had made a threat about Senior Constable Foster to Grimble and repeated that the words used by him were misconstrued, as referred to in his interview with Inspector Nicholson on 5 September 2007. 51 In rejecting any suggestion that the applicant had made a false complaint about a person whom he believed was an internal police complainant, the applicant referred to the information that he had given to Inspector Nicholson in his interview on 22 October 2007. 52 There is other material referred to in the response document about this matter, which it is not necessary for me to refer to. 53 In terms of the allegation that the applicant had a conflict of interest when he complained about Senior Constable Foster because he suspected that Senior Constable Foster was an internal police complainant, the applicant denied this in his response. 54 Having regard to the material which was before the Commissioner about these allegations, which included the material within the Commissioner's Confidence supporting documentation to which I have referred in some detail and the applicant's response, I am unable to understand how it is that the Commissioner felt comfortable in finding any of these grounds established. The Commissioner based his rejection of the applicant's response that he was not aware that Senior Constable Foster was an internal police complainant and that he only knew about it through station scuttlebutt on the basis of the information provided by Grimble who said that he had no knowledge of any such complaints. Whether and to what extent Senior Constable Grimble's knowledge represented some general understanding that may have been shared by a number of officers stationed at the Queanbeyan Police Station, is not known and was never explored. Furthermore, I am at a loss to understand how, based on the information and evidence to which I have referred, that it can be said that the applicant believed that Senior Constable Foster was an internal police complainant. At its highest, Senior Constable Foster may have been involved as a witness. There is simply no proof that there was any complaint. Such records as existed concerning the police pursuit, which occurred some years previously, were not made available to the Commissioner nor were there any records made available of any enquiry conducted. I repeat that I cannot understand how the Commissioner could have concluded that Senior Constable Foster was a complainant. 55 Inspector Nicholson swore an affidavit for the purpose of the proceedings and gave evidence. She referred to the interview that she conducted with the applicant on 5 September 2007, the details of which I have previously referred to. In her affidavit, the applicant said that she felt that the applicant "was not being forthright with his answers to me." Following her enquiries, she completed an investigation report at that stage and said that she "found seven sustained findings relating to code of conduct breaches" as a result of which she made certain recommendations to manage the further work of the applicant within the police force. She referred to some of the matters as being serious and involving issues of "political sensitivity". 56 The investigation report and the findings made by Inspector Nicholson did not find their way into the material provided to the Commissioner when he decided to remove the applicant. 57 In her oral evidence, Inspector Nicholson said that at the time that she commenced investigating the applicant in about July 2007, she was asked to investigate three issues, namely that the applicant had obtained information from a Freedom of Information file related to an internal police complainant who had complained about the applicant, that the applicant had breached s 169A of the Police Act by obtaining information on a suspected IPC (internal police complainant) through the Freedom of Information process and disclosing the identity of an IPC to another officer and that he made threats about a person he believed to be an internal police complainant. For the purpose of this enquiry, Inspector Nicholson issued directive memoranda to the applicant and interviewed him on a number of occasions. She then investigated the complaint made by the applicant on 12 September 2007 about Senior Constable Foster as to whether or not that involved a conflict of interest and whether it constituted a complaint about an officer who the applicant thought to be an IPC who had issued a complaint against him, that is whether it was a "payback" complaint. Upon concluding her investigations, Inspector Nicholson issued a report on 3 November 2007 in which she made adverse findings about the applicant with respect to all of these matters. Again, that report does not appear to be in the material that was made available to the Commissioner when determining to remove the applicant from the police service. 58 In conducting these enquiries, Inspector Nicholson said that she was involved in an "outcomes based investigation" which she distinguished from the type of investigation that would normally be conducted by a police officer. Accordingly, as I understand her evidence, she embarked upon an enquiry designed to prove the matters about which she was undertaking an investigation. Certainly, in her evidence Inspector Nicholson said that her adverse findings were probably based on a balance of probabilities approach. 59 When she commenced her several investigations into the applicant, Inspector Nicholson said that she did not have any complaints file or investigator's file about the original pursuit incident. She was told that Senior Constable Foster was an internal police complainant and she did not investigate further whether this was the case. When questioned in evidence about whether in fact there was any evidence that Senior Constable Foster was a complainant against the applicant, Inspector Nicholson said that at the least he was a witness and that in her opinion a witness was the same as a complainant in terms of the police policy and protocols. This understanding pervaded all of her enquiries about the applicant. 60 In terms of the enquiry concerning a breach of s 169A of the Police Act (the provisions of which are set out in the Commissioner's Statement of Reasons, which I have earlier reproduced), Inspector Nicholson was adamant that the word complainant where used in that section also included a person who was merely a witness. She was taken to the provisions of Regulation 24 of the Police Regulation 2000, which was then the applicable Regulation (it was repealed in 2008). That Regulation imposes, in general terms, a regime of secrecy where a senior officer is investigating, inter alia, the conduct of another police officer, which might lead to removal action under s 181D. The Clause also applies in circumstances where there is the possibility of criminal proceedings being commenced against a police officer. 61 There is a provision in sub-clause 3 of Regulation 24 to the effect that a police officer must not disclose to any person other than the Commissioner of Police the identity of a person who made such an allegation, but that applies "in the course of an investigation into the allegation." When this was put to Inspector Nicholson as having some application to the circumstances applying to the applicant into which she was enquiring, Inspector Nicholson remained adamant that the prohibition against disclosure of the identity of a police complainant and a witness extended beyond the completion of any investigation. 62 Inspector Nicholson said: "Even if you suspect someone to be an internal police witness you cannot say negative things about them." 63 When questioned further about her investigative techniques whilst enquiring about the applicant's conduct, Inspector Nicholson was asked whether she had given the applicant an adequate opportunity to explain his position. She said: "In our outcome based investigation that does not always occur but yes I would like that." 64 In terms of the disclosure of information gathered as a result of the Freedom of Information report, Inspector Nicholson said that she knew that the applicant had not made any application for the release of any information under the Freedom of Information Act. I note that there is no reference to this in her report. Notwithstanding this, Inspector Nicholson concluded that the applicant had obtained information about Senior Constable Foster from the reports which she conceded had been obtained by Sergeant Ide. She asserted this despite the applicant's denial that he had obtained any information from Sergeant Ide about the contents of the reports, nor had he seen them. Inspector Nicholson did not bother to speak to Sergeant Ide to confirm whether or not he had spoken to the applicant about the reports or shown them to the applicant. She formed the view:

You don't have to look at files to get information from files. There are various forms. There is communication, summary of files, there is verbal indications of it, there are conversations that can be had. There is a full range of ways that you can obtain information from a Freedom of Information file apart from direct access. 65 When reminded of the applicant's denial of having had any access to the files or any part of them, and asked whether she had made enquiries of Sergeant Ide, Inspector Nicholson responded: "I didn't see the need to in this form of outcome based investigation and I gained enough evidence from other sources." 66 There then follows the following exchange between counsel for the applicant and Inspector Nicholson:

Q. (Edwards) Which don't appear anywhere in this document, do they? A. (Nicholson) In which document?

Q. In your investigation document, or your affidavit for that matter? A. My investigation was completed to the standard of my organisation and went through various review processes.

Q. Where are the other sources you just told us that? A. They are sources as referred to in the investigator report.

Q. You were saying a minute ago that you had other sources? A. No, I was referring to ones that are documented in my investigation. 67 For my part, I am unable to ascertain from Inspector Nicholson's report whether she had any source or other information which would indicate in some way that the applicant had some knowledge about the fact that Senior Constable Foster was an internal police complainant or witness in connection with the pursuit matter or any other matter involving the applicant. 68 Based on the evidence of Inspector Nicholson and such documentation as is before the Commission, I cannot understand how Inspector Nicholson could have concluded that in some way the applicant had gained some information concerning Senior Constable Foster from any Freedom of Information reports made available to Sergeant Ide or, indeed, anyone else. 69 I now turn to the evidence of Senior Constable Grimble. I have earlier referred to the information which he gave to Inspector Nicholson as part of his directed memorandum. It was dated 13 September 2007. In particular, Senior Constable Grimble said, in relation to the conversation with the applicant, that he did not recall the exact content and his memory of it was very limited. 70 Notwithstanding his limited knowledge and recall of the conversation, Senior Constable Grimble was able to swear an affidavit on 30 July 2009 in which he expanded considerably on the details of the conversation. In his expanded version of the conversation, Senior Constable Grimble says that the applicant told him:

I have applied to the Freedom of Information unit to obtain all documentation of all the departmental complaints that I have every been involved in or subjected to in my career. I have received all of the documentation and a large number of complaints were from Foster. Foster is an internal police witness and every complaint made against me by him is unsubstantiated. I don't know why he has made so many complaints against me or what his motivation was for doing it…. 71 When cross-examined about this statement, Senior Constable Grimble said that he "would have to rely on the document before me." From this I understand Senior Constable Grimble to say that as at the date upon which he gave evidence, namely 19 August 2009, he had no independent recollection of the conversation. In these circumstances, I fail to see how he could have had a sufficiently independent recollection of the conversation at the date that he swore his affidavit, namely 30 July 2009, given the initial statement that he made to Inspector Nicholson on 13 September 2007 about the "very limited" memory of the conversation and the fact that he did not recall the exact content as at 13 September 2007. To the extent that Senior Constable Grimble has attempted to recreate a conversation, I simply do not believe him. In any event, the facts as they have emerged, and as was well known to Inspector Nicholson that the applicant did not make any application for any documents using Freedom of Information legislation, leads me to disbelieve the evidence of Senior Constable Grimble, and accept the evidence of the applicant in terms of what was said between them. 72 I repeat that there was nothing within the material made available to the Commissioner that would justify him in concluding that in some way the applicant had disclosed to anyone that Senior Constable Foster was a complainant in a matter against him. 73 Furthermore, I cannot find any material in the information provided to the Commissioner that would allow him to conclude that in some way the applicant had made a false complaint about Senior Constable Foster in terms of an allegation that he would be "pinged". 74 These conclusions destroy the assertion made by the Commissioner concerning the applicability of Ground 4, which is based on an allegation that the applicant had a conflict of interest when he made a complaint about Senior Constable Foster. 75 It is instructive to return to the form of the complaint lodged by the applicant on 12 September 2007 which is said to have created the conflict of interest and about which there is said to have been no disclosure. I have previously referred to the contents of the document in some detail. The applicant said that he lodged it solely because he was told by Inspector Nicholson to do so. Whilst Inspector Nicholson denies that she specifically advised the applicant to lodge the complaint, I accept that the applicant understood that Inspector Nicholson was telling him to do so. 76 The complaint document itself sets out the history of the tension between himself and Senior Constable Foster over a prior period of four years. It then refers to the "ping" allegations not made to the applicant by Senior Constable Foster, but by others. 77 I fail to understand how it can be said that the applicant has in some way omitted to refer to any conflict of interest with Senior Constable Foster in making this complaint. The document is replete with references to the tension between them. 78 If the material contained in the Commissioner's grounds is directed to disclosure of any conflict of interest at some other time, then it does so obliquely and in terms that are so subtle that I am unable to identify any occasion or occasions upon which there has been any failure as alleged. 79 For these reasons I conclude that the Commissioner was in error in determining that Grounds 1, 3 and 4 had been made out. Ground 5 - untruthfulness in TAG job application

80 As will be seen from the reasons for decision, which I have earlier set out, there are two aspects of the applicant's job application that attracted the concern of the Commissioner, namely the registration of a person as a police source and the creation of a form. 81 The evidence in the proceedings was to the effect that there is a procedure within the New South Wales Police Force that requires the registration of a person who is a source of information in connection with a matter or matters. 82 There was included in the documents before the Commissioner at the time that he determined to remove the applicant a copy of the applicant's application to be appointed to the vacant position in the Monaro Target Action Group ("TAG"). In that application, the applicant said that in May 2005 he had registered a community source in relation to a number of break and enter offences, whom he had actively recruited. He said that the source was

managed and used in full compliance with the NSWPF Source Management Policy. The source was rewarded for the information provided which led to the successful prosecution of the young persons. 83 That application was made on 26 April 2007. 84 On 31 May 2007, Detective Inspector Shane Box created a memorandum in which he indicated that both he and Detective Sergeant Grey had some doubts about whether the applicant had indeed registered a person as a source within the police force procedures. He carried out checks and could not locate any registration initiated by the applicant. Detective Inspector Box approached the applicant on 30 May 2007. The applicant told him that perhaps the source was recorded in the name of Detective Senior Constable Chris Wallace who was involved in the investigation. However, Detective Inspector Box could not locate any registration of any source in his name either. He recommended that the matter be investigated because he considered that the applicant had been untruthful in the information that he had provided. 85 In a memorandum, Detective Sergeant Grey supported the observations of Detective Inspector Box. 86 The matter was investigated by an officer from Yass Police Station, Sergeant F J O'Brien. He required the applicant to respond in writing, which the applicant did on 25 September 2007. In his response, the applicant seems to have inferred that Detective Inspector Box was concerned about the truthfulness of his application to deflect some attention from the selection process. In terms of the registration of a source, the applicant said that from the best of his memory he had registered the source. He also thought that the source had been paid for information provided. 87 There was also included in the Commissioner's documents a memorandum from (then) Detective Sergeant Wallace to Superintendent Commins of the Monaro LAC concerning this matter. He said that he became involved in an investigation recovering stolen property. The applicant had advised him that he had obtained certain information from a source that he had cultivated but who was still not registered at that stage. Acting on information provided by that person, Detective Sergeant Wallace went with the applicant to an address in Queanbeyan and recovered a large quantity of stolen items. Two persons were charged and later convicted. Detective Sergeant Wallace later spoke to the person who he had been told by the applicant was the source of information leading to the arrests. He said he advised the applicant on "numerous times to get the source registered, and that I would be happy to be the co-handler upon the registration." He heard nothing further about the matter and took no further involvement. In the course of the hearing of these proceedings, Detective Inspector Box gave evidence. In basic terms, he corroborated the course of events which I have outlined in dealing with the material which was considered by the Commissioner. A document annexed to Detective Inspector Box's affidavit indicates that Detective Sergeant O'Brien concluded that not only was the source not registered but that the applicant had lied to Detective Inspector Box when he suggested that perhaps Detective Sergeant Wallace had registered the source. This is material that was not placed before the Commissioner. Accordingly, I do not find it necessary to deal with it in any detail, save to observe that much depends upon the meaning one assigns to the words used by the applicant in his discussion with Detective Inspector Box. 88 In his affidavit filed in the proceedings, the applicant conceded that the source had not been registered and that no reward had been paid. His explanation was that he had furnished that information from memory and that the events had occurred some time prior to him making the application. The applicant made the same concessions whilst being cross-examined in the course of giving evidence in these proceedings. 89 The other matter concerning the allegation of untruthfulness in connection with the TAG job application arises from information provided by the applicant that he had designed and developed a form to record stolen property which was to be given to victims of break and enter offences. He said that the form was

approved and put into use as a trial to make the investigation process easier for officers whilst searching for stolen property. The form was later condensed into a flyer type of brochure which is currently being used in Monaro LAC. 90 This matter was also investigated by Detective Inspector Box. His investigations disclosed that whilst the applicant had prepared a form, its use within the Monaro LAC was rejected. In his report, which is included within the material made available to the Commissioner, Detective Inspector Box referred to an email from Detective Sergeant Grey prepared by Detective Sergeant Barclay, who was then the Acting Crime Manager, dated 25 May 2005, which was apparently addressed to the applicant, saying that the form would not be used. Detective Inspector Box concluded on this basis that the applicant had been untruthful in the manner in which he referred to the creation of the form in his application for the TAG position. 91 There is also included within the material given to the Commissioner a statement by Sergeant Rebecca Tranby dated 25 September 2007, made in connection with the use of the forms. Sergeant Tranby said:

I have not used this form as during this time I was on maternity leave from early May 2005. I can remember being shown this form and thought it was a good idea. This form was to be placed in a folder and referred to in relation to property offences. Eg goods in custody. Since returning from maternity leave in February 2006, I have not seen this form. 92 Furthermore, there is a statement of Scott Anthony Ide made on 25 September 2007. Mr Ide was formerly a sergeant of police but retired medically unfit on 22 September 2006. In his statement he said that prior to his retirement he was a team leader on general duties at Queanbeyan Police Station and that the applicant was a member of his team for some time. Mr Ide said:

I am aware that Constable Morgan designed the form to assist in obtaining details of property stolen during break and enters and similar offences. Constable Morgan presented that form to me and I congratulated him on the initiative he had shown on this occasion. To the best of my knowledge that form was presented to Management for implementation on at least a Queanbeyan level. I know for a fact that form was used by members of our team. I also aware that Constable Morgan designed several other types of forms to assist police in their day-to-day duties. I am not sure if the form went to the Crime Manager for approval. But I know we used it. Victims were requested to fax details of any other property they discovered missing and I can recall utilising some of these faxes to update COPS events already on the system…. 93 Also made available to the Commissioner was a copy of an email from Paul Barclay to the applicant dated 25 May 2005 that referred to the form designed by the applicant which had been tabled at a meeting the previous day and which the meeting had determined would not be used. A reason was given for declining to use it. The email concluded:

Jamie, you should not feel discouraged about making suggestions just because this one has not met with a positive result.

94 In his response document, the applicant asserted that he was given permission by his team leader, Sergeant Ide, to use the form and he said that Sergeant Ide had forwarded the form to the Crime Manager for his consideration. Further, he said:

At this time the form was being used by about 5 - 8 police who were part of Sergeant Ide's team. I and my team used this form for a number of weeks and a few months later the Crime Management Unit released a similar flyer to give it to the neighbours of break and enter offences. I understand in his response document that the applicant said that, in connection with this matter, he had overstated what he regarded as "technical matters". 95 It is clear from the information gathered by Detective Inspector Box that the applicant had, indeed, overstated the position concerning the form but it is not necessarily clear that he did so in a serious way. He said in his application that "the form was approved by the Crime Manager and used by police in Queanbeyan." There is no doubt that it was not approved by the Crime Manager but it can be said that the form was used at least by some police at the Queanbeyan Station. 96 In his reasons, the Commissioner concluded that the applicant had, in regard to the information about the form, been

knowingly untruthful, or at least deliberately misleading, in your job application when you claimed that you had designed a standard form to be given to victims of break and enter offences which was approved and used. There can be no doubt, in my opinion, that the applicant had designed a standard form and that it had been used by at least some officers at Queanbeyan Police Station, at least for a period. It is clear that it was not "approved" and that in saying this the applicant had been untruthful. However, it seems to me that there is little if any evidence upon which the Commissioner could have concluded that the applicant was "deliberately misleading" given the totality of the information available to the Commissioner. 97 During the course of the proceedings, Mr Ide and Sergeant Tranby gave evidence, as did the applicant and Detective Inspector Box concerning these matters. The evidence does not advance the material to which I have referred. Whether and to what extent the untruthfulness in this regard, either taken alone or when considered in the context of the totality of the circumstances applying to these proceedings, would result in any determination in favour of the applicant is a matter which I will need to consider later in these reasons for decision. Ground 6 - untruthfulness

98 The reason given by the Commissioner is stated succinctly as:

I have determined that you lied to Inspector Box when further questioned about the truthfulness of your job application on 30 May 2007. 99 The conclusions reached by Detective Inspector Box are contained within his report of 31 May 2007, which was part of the documentation made available to the Commissioner when considering the applicant's removal. That report clearly indicates that information contained within the applicant's application for the TAG position was incorrect in the manner to which I have previously referred. However, I can see nothing in that report that indicates that Detective Inspector Box was of the opinion that the applicant had been untruthful during the course of further questioning on 30 May 2007. If this had been the position of Detective Inspector Box one would think that that would have formed part of his report of 31 May 2007. This is the only documentation made available to the Commissioner in which I can find any reference by Detective Inspector Box to any information given to him by the applicant about these matters.

100 In circumstances where there is no indication in any document made available to the Commissioner at the time that he determined to remove the applicant that the applicant had lied to Detective Inspector Box and in circumstances where the Commissioner has not seen fit to particularise the manner in which he had determined that the applicant had lied to Detective Inspector Box, I cannot understand how the Commissioner could have concluded that the applicant had lied as determined by him in connection with Ground 6. In my opinion, the Commissioner was in error in doing so. Ground 7 - Unauthorised COPS accesses on 8 April 2008 Ground 8 - Failure to properly record or explain COPS accesses on 8 April 2008 Ground 9 - Disclosure of confidential information Ground 10 - Untruthfulness Ground 11 - Unauthorised COPS access on 1 March 2008

101 Before dealing with these grounds, it is necessary to make some brief reference to the COPS computerised database system operated by the New South Wales Police Service as disclosed in the evidence given in these proceedings. The database contains a great deal of personal, confidential and sensitive information about individuals and about incidents that relate to matters that are connected to the work of the police service. Access to the COPS system is restricted to police officers and others who have a lawful reason to do so. That, in general terms, confines access to matters involving investigations and enquiries being conducted by police officers for the purpose of their work. There was abundant evidence given in the proceedings to the effect that police officers are required to limit access to the COPS system to circumstances which are properly and appropriately related to work being undertaken by them. Indeed, this was acknowledged by the applicant. Furthermore, the police service monitors access to the system made by officers and conducts audits of that access. 102 When a police officer logs into the COPS database, he or she is informed in terms which are clear and unambiguous that not only is access restricted to lawful purposes connected to their work, but disclosure of any information gained by access to the system is limited to the purposes for which that information was obtained. There is a warning displayed on the screen to this effect. Not only is training about the use and misuse of the system given to persons who are attempting to qualify as police officers, but this training is also reinforced on a periodic basis to all police officers. 103 There can be no doubt on the evidence before the Commissioner contained in the documents which were available to him at the time that he determined to remove the applicant from the Force, that the applicant had gained access to the COPS system on a number of occasions. There is a narration in summary terms of this unauthorised access within the reasons applying to Grounds 7, 8, 9, 10 and 11, which I have earlier set out in these reasons for decision. 104 It is convenient first to refer to the documents that were before the Commissioner at the time that he determined to remove the applicant, which concern these grounds. There is contained within the documentation a printout that indicates the access made by the applicant to the COPS system over a period ending 8 April 2008 and commencing 2 March 2008. It is not necessary that any analysis be conducted of the printout because the records confirm the access which is the subject of comment by the Commissioner in his reasons for removal relating to both Ground 7 and Ground 11. The applicant did not deny the access that was identified, nor did he seriously attempt to deny that he ought not to have accessed this information. 105 Before referring to the remaining documents made available to the Commissioner, it is necessary to refer by way of background to some of the evidence given by the applicant concerning his relationship with another police officer who, for reasons which will appear obvious, has been referred to merely as ES in these reasons for decision. Some time before March 2007, and the evidence does not allow me to be more specific, ES is alleged by the applicant to have begun a relationship with a female who lived in the same unit block as the applicant, his wife and child. The estranged wife of ES was also a member of the police force. The applicant expressed concern that the resultant deteriorating relationship between ES and his estranged wife was having an effect on members of the Local Area Command and, in some way which was not specified in the evidence, the applicant thought that it was having an effect on his family. It was the understanding of the applicant that Sergeant Tranby informed Inspector Eastham of the concerns which he had expressed. Shortly thereafter, the applicant said he received a phone call from ES in which ES used words of an insulting and threatening nature. The applicant reported this matter to his duty officer and Inspector Varley was asked to investigate it. The applicant said he received a second phone call from ES, again using abusive language and threatening him. The applicant said that Inspector Varley had informed him that he had disclosed his complaint directly to ES. I should add that Inspector Varley denied this in his evidence. Subsequently, the neighbour with whom ES was said to be having an affair informed the applicant's wife that she was pregnant and showed a text message that the neighbour had received from ES, the effect of which was interpreted by the applicant as indicating that ES might be suicidal. 106 At the same time, the applicant had been advised by Inspector Varley that a recommendation had been made by him that he be transferred. This would have resulted in the applicant being transferred, and his family remaining living near the female friend of ES. Following representations made by the applicant, the transfer did not take place. 107 On 21 July 2007, ES was involved in a siege of a police residence. I shall refer to the evidence given in the proceedings concerning the siege later in these reasons for decision. 108 After the siege, ES continued his relationship with the applicant's neighbour and his presence in the unit block concerned the applicant not only for his own safety but also for that of his family. The applicant continued to draw his concerns to the attention of his superior officers from time to time throughout 2007. On 4 February 2008, he requested a transfer to Bungendore, which was addressed to Inspector Varley. That transfer was not approved. 109 The applicant said that on 11 March 2008, ES arrived at the unit block on a motorbike, seemingly very angry. The applicant was advised by Inspector Nicholson that ES had just been served with a notice from the Commissioner with respect to his removal from the police force. The applicant asserts, and Inspector Nicholson denies, that Inspector Nicholson mentioned something about guns to him, which caused him "significant fear" for himself and his family. He said he began having nightmares about ES going crazy and attacking him which he reported to a superior officer on 13 April 2008. On 17 April 2008, he overheard, during the course of a telephone conversation, ES threatening him. 110 Put shortly, it was the applicant's position that all of the unauthorised access made by him to the COPS system related to the circumstances surrounding the threats which he perceived had been made against him by ES and the potential of ES to carry out those threats. Furthermore, the applicant said that he was told by two superior police officers that he should check COPS records to ascertain whether there was anything in them that might assist in evaluating the extent of any threat that ES posed to him or his family. I should add that both police officers deny any such conversation. 111 I now return to consider the remaining material that was put before the Commissioner when he considered this aspect of the matter in determining to remove the applicant. On 13 May 2008, Inspector Nicholson accessed the COPS database and made an enquiry about ES in terms of "warnings". That access produced the following material, which I have set out below, albeit not verbatim: 30/12/07 to 30/12/08 Approach with caution will engage police in a pursuit and deny seeing or hearing police direction to stop 25/11/07 to 25/11/08 Has made continual threats to self-harm. Has stated "Wants to go out like Ned Kelly" and alleges he has a spear gun. Is associating with persons of interest with registered firearms and "goes pig-shooting" 15/08/07 Person of interest involved with "SPG TOU/NEGS …." 24/07/07 to 24/08 Approach with caution. Serving member … subject of siege at … 21-22/07/2007 following threats made to fellow officers. May be violent, possibly armed.

112 There is contained within the documentation a report made 18 April 2008 by the applicant. He said that on the previous day he had received a telephone call from a person who identified herself as the neighbour with whom ES was having an affair. She referred to a conversation between the applicant and Catherine Bell, the person referred to specifically in connection with Ground 9 in the Commissioner's reasons for removal. There was a discussion about disclosure of court proceedings involving ES. There was then a reference to "(ES) doing a Ned Kelly." The applicant said that he told her that he knew nothing about that. He said that he could hear ES in the background making abusive comments and threats, and assumed that they were directed to him. The applicant was told not to make any more comments about ES. The applicant said, in the memorandum, that he and his wife were "extremely upset and scared about the increasing adverse issues surrounding us living so close to …" ES and the person with whom he was having an affair. In the memorandum, he said that he had contacted Inspector Nicholson about the situation and that he could not sleep because ES drove out in a vehicle slowing down as he passed his house. He said that he was scared that ES was going to come back and harm him or his family. The memorandum said that the applicant had "a genuine concern for the safety of my family in respect to (ES) and his current situation." He did not wish to take out any apprehended violence orders because he thought that that would only make matters worse. He asked that consideration be given to removing him and his wife from the situation, that is, that he be transferred to another location. 113 There are two remaining documents concerning these Grounds that were available to the Commissioner. The first is a record of a conversation between Inspector Nicholson and Catherine Bell, who, as I understand it, was a person known to both the applicant and ES. Ms Bell was asked what was said by the applicant to her about ES. She said:

Jamie was uneasy about (ES). He had a bad dream. He said he was worried as (ES) had said he wanted to go out like 'Ned Kelly'. He said the court cases were coming up in a couple of weeks but didn't talk about the details. He talked about general gossip that I was generally aware of. Where I went wrong was telling (the female friend of ES) what Jamie said. She became overwrought and she said she rang Jamie and politely but firmly told him not to say anything more about her or (ES). Jamie rang me straight away and asked me what I said and was very angry and upset. I told him would be OK but don't ever talk to me about it again. As a result of a further question, Ms Bell described the discussion as "a general conversation mainly about his dream except for the Ned Kelly stuff. I had not heard that before …." 114 The final document of interest is a record of interview between Inspector Nicholson and the applicant conducted on 14 May 2008. The interview lasted almost two hours. The investigation purported to concern information regarding ES that the applicant had released to Catherine Bell between 8 April and 17 April 2008. In particular, the applicant was asked to outline the conversation he had with Ms Bell which led in turn to him being contacted by ES's partner. The applicant said that he told Ms Bell of his fears of ES and fears for his family. He was then asked about a reference to the applicant talking about a dream, the forthcoming court cases involving ES and that ES had wanted to go out "like Ned Kelly". In connection with the Ned Kelly reference, the applicant said that he had heard this "around the station". He agreed that he had obtained some information through COPS and that this had referred to a job that he had performed together with ES and in particular with reference to a job application which he wanted to make. He repeated that he had searched COPS "looking for an event and competency" with respect to a job application that he wished to make, after being confronted with a printout of his access to COPS on 8 April 2008. 115 When told that the applicant had accessed COPS with respect to ES concerning a number of other matters, the applicant responded by saying that originally he had looked at the event

and then I became concerned due to the ongoing problems that I have with (ES) about firearms and I read the matters that involve the firearms. The applicant sought to justify this access as being in the execution of his duty because it related to ongoing harassment and threats from ES. He disagreed that in accessing this information he created a conflict of interest for himself. He said that he believed that he had a right to know what was happening with ES because he felt threatened by him and he was now living "next door". 116 The applicant was confronted with the fact that there was a reference in the COPS material to ES stating that he wanted to "go out like Ned Kelly". Nevertheless, he denied that he had given this information to Ms Bell from material that he had gathered from COPS. 117 The applicant was later confronted with information that he had previously given Inspector Nicholson about his conversation with the partner of ES as to whether he had accessed information about ES. He said that he had answered incorrectly "because of the stress I was under that day just having to deal with it all." 118 In his response document, the applicant dealt with allegations 7 to 11 inclusive within the one lengthy narrative. It set out the history as the applicant understood it of his relationship with ES, which he described as "somewhat tragic". He said that he thought he had a good relationship with ES but that this soured after ES commenced a relationship with the person who became his partner and which created obvious tension between ES and his wife, also a serving police officer. He told of instances of hostilities between ES, his estranged wife and the person who became his partner. This was having an adverse impact on himself and his family. He then approached Sergeant Tranby, his peer support officer, expressing his concerns about the matter. He said that his conversation with Sergeant Tranby was overheard by another police officer who informed her husband, also a serving police officer, and that the husband in turn informed Mrs ES of the conversation on the basis that the applicant was reporting "disharmony" between Mr and Mrs ES. ES became aware of this and telephoned the applicant using abusive and threatening language. The applicant said that he informed the duty officer and that he understood Inspector Eastham had asked Inspector Varley to investigate the matter, that ES became aware of this and again abused and threatened the applicant by telephone. I should add that Inspectors Eastham and Varley deny their involvement in the matter as outlined by the applicant

119 There is an allegation made by the applicant that Inspector Varley refused to assist him in taking out an ADVO and that Inspector Varley said that he saw no problem in discussing the matter with ES. The applicant said he then complained about this directly to the Commander who did nothing about it. 120 A few weeks later, the partner of ES called at the applicant's home, informed his wife that she was pregnant and that she had received a text message from ES stating "The world, you and the baby will be better off without me." The applicant then instituted a search for ES and reported the matter to Inspector Davey. This also upset ES. 121 The applicant said that Inspector Varley recommended to his Commander that he be transferred to Queanbeyan as a "management initiated transfer". He resisted this because it would have left his wife and son alone in the apartment next door to ES. That decision was reversed. 122 The applicant then made application to be transferred to vacant positions in Macksville and the Far South Coast Local Area Command which applications were rejected. He also referred in his response to an alleged dissemination by Inspector Varley of a report about the applicant which was made to all senior management team members in the Monaro Local Area Command. The applicant raised concerns with Superintendent Commins about this report but he says that no action was taken other than to ask him how he obtained a copy of it. 123 ES was involved in a siege, which commenced on 21 July 2007 and ended the following day. He threatened self-harm and threatened to harm others using both firearms and physical force. 124 Following the siege, Superintendent Commins distributed an email throughout the Monaro LAC urging care in dealing with ES. Notwithstanding this, the applicant complained that his circumstances and those of his family were not taken into account. He lodged a report about the matter on 5 September 2007. 125 On 25 September 2007, the applicant applied for transfer within the Far South Coast LAC; this was declined. 126 On 30 October 2007, the applicant said that Superintendent Commins forwarded another LAC-wide email concerning ES. 127 On 11 March 2008, ES arrived near the applicant's home on a motorbike and appeared to be angry and that his anger was directed to the applicant. He said that later that day, he was telephoned by Inspector Nicholson who said that the applicant should be wary of ES as he had just been served with a notice concerning his future with the New South Wales Police Force. The applicant alleges, and Inspector Nicholson denies, that she told him that if he was aware that ES was involved in some suspicious activity that she should be informed. He said it was against this background that he checked the COPS records on 8 April 2008 and read information concerning ES. He said that at that stage, ES was engaging in what he "considered to be intimidatory behaviour, driving slowly past my window and walking his dogs at 2 and 3am outside my bedroom window." It was at this stage that he began having nightmares about ES going crazy and attacking them and he again requested assistance in being transferred from Monaro LAC. 128 The response document then refers to the discussion that the applicant had with Catherine Bell, another neighbour, on 16 April 2008. He said that the information discussed was "common knowledge" and denied saying anything about Ned Kelly to her. It was after this that the partner of ES telephoned him and abused him and that he could hear ES in the background screaming abuse and using threatening words about the applicant. 129 The applicant stated that he was then approached by ES on 27 May 2008 whilst using an ATM. He said that in doing this, ES had breached an undertaking to Inspector Nicholson not to approach the applicant or come near his unit complex. He said that he reported this to Inspector Eastham. 130 On 30 May 2008, the applicant said that ES again breached his undertaking when he spent the night with his partner. He said that his wife had to leave the unit as she was afraid because ES was next door. 131 The original notice served by the Commissioner on the applicant which initiated the s 181D proceedings, in dealing with allegation 9, which became Ground 9 in the Commissioner's reasons, referred to a statement by Inspector Nicholson to the effect that on 18 April 2008, she had asked the applicant whether he had accessed any confidential information about ES and that he had denied this. The material continues:

You seem to concede that your answer was incorrect, but say that, due to stress, you did not intend to be untruthful. The same material is repeated verbatim within Ground 9 of the Commissioners reasons for removal. 132 There was tendered into evidence, as an exhibit to the affidavit of Superintendent Merrywether, a bundle of documents that, I was informed, consisted of the totality of the material which was placed before the Commissioner when he determined to remove the applicant from the police force. I am unable to find any material within that bundle of documents that consists of, reproduces or refers to the statement of Inspector Nicholson referring to the question asked of the applicant by her on 18 April 2008, his asserted denial and his asserted concession that his answer was incorrect. I do not believe that this could be a reference to anything said within the interview conducted by Inspector Nicholson with the applicant on 14 May 2008 because there is specific reference to that matter in connection with Ground 10. 133 The reference to the conversation on 18 April 2008 is repeated in connection with Ground 10. 134 Notwithstanding this lack of supporting documentation about this matter, the applicant, in an affidavit filed in these proceedings, referred to the question asked by Inspector Nicholson saying that it

was asked early in the morning after I had not slept. … The question was asked at a time that I was not thinking clearly and was extremely upset and fatigued. I was not thinking back months about my COPS access merely thinking about that night and answered that in the moment. 135 In the course of cross-examination, the applicant was reminded that the conversation that occurred on 18 April post-dated his access to the COPS system on 8 April by only 10 days. He agreed that it was incorrect to make reference to "months back" as an excuse. Indeed, the applicant conceded that his answer was "grossly incorrect". 136 In circumstances where neither party has referred to the fact that the Commissioner's Statement of Reasons has seemingly been based on material that was not made available to the applicant, but having regard to the fact that the applicant seemingly had no difficulty in responding to that material, and raised no concerns about it during the course of the hearing, I propose to proceed on the basis of such evidence about the question asked by Inspector Nicholson and the answer provided by the applicant on 18 April 2008 as is referred to in the evidence. 137 A perusal of the Commissioner's Statement of Reasons indicates that he found each of the grounds established and that he rejected any excuse proffered by the applicant that was predominantly directed to the concern that he held for himself and his family about the conduct of ES. 138 I have previously set out in summary form the material contained in the documentation given to the Commissioner concerning such threats that were made by ES to the applicant and the circumstances in which they were made. In fact, Inspector Nicholson had some involvement in preparing a risk assessment report following the complaint made by the applicant on 18 April 2008 about a general threat of violence from ES. This followed the telephone call from the partner of ES to the applicant in which he overheard ES in the background using threatening and abusive language which he assumed was directed to him. 139 The risk assessment undertaken by Inspector Nicholson in conjunction with Sergeant Williams of the Shoalhaven LAC said that the applicant's fear was based on events over the preceding year. There is a reference to a number of incidents including the siege, which occurred on 21/22 July 2007. In connection with this siege, the report co-authored by Inspector Nicholson says: "During this siege, (ES) has made specific threats/hostility towards police of the Monaro Command. To whom these threats were directed towards is unknown." The report also refers to the siege as being "firearms related". 140 In describing the involvement of ES, the report says that "despite the suspect's aggressive and abusive actions towards police over the last year, he has not acted overtly on any threat …." The report assessed the "intent rating" of ES as "low". 141 In terms of assessing the threat capability rating of ES and concluding that it was "low", the report said that he had "no history of committing acts of violence either in his policing career or personally". It also said that there was no physical confrontation between ES and the applicant. 142 The report assessed "the overall likelihood rating" as possible, indicating that ES

has made no direct threat to (the applicant) and has taken a course of action by making a written complaint to the Commander that indicates that he is unlikely to take matters into his own hands. 143 There is reference in the report to a recommendation that the applicant be located to another Local Area Command to avoid living in the Queanbeyan area. 144 The report was approved by the Commander, Superintendent Commins. Superintendent Commins was formerly the Local Area Commander at Monaro LAC from 20 May 2005 to September 2008. The applicant came within his command. 145 The contents of that report are in stark contrast with evidence given in these proceedings, as part of the Commissioner's case, by Sergeant Timothy Pieper. In around June 2007, Sergeant Pieper was appointed to supervise the eastern cluster within the Monaro LAC, which included a number of remote police stations. He became aware that the applicant was fearful of ES and that ES lived next door to him. Sergeant Pieper gave evidence of a conversation in late June or early July 2007 with the applicant to this effect. When questioned in the course of giving evidence about the conversation, Sergeant Pieper agreed that it had happened after the siege. He agreed that the applicant was concerned that ES might "flip out" and that ES had "flipped out" on two occasions prior to the siege. 146 Sergeant Pieper then gave evidence about his involvement in the siege. He was the field supervisor and "was responsible for the deployment of the tactical police and the overall tactical plan … that was used during the operation." Sergeant Pieper then gave this evidence about the siege:

Q. (Edwards) You had actually been threatened by you personally had been threatened by Mr ES as part of the res gestae of this siege; is that right? A. (Pieper) I wasn't directly threatened by Mr ES. He had I had a couple of very sort of very he was very angry when, during the conversations I had with him on the phone, but didn't directly threaten to come out and assault me.

Q. All right. You may have misunderstood my question? A. Oh, sorry.

Q. Before the siege you had conversations with both Mr and Mrs ES; is that right? A. Correct.

Q. In the conversation had you with Mr ES, he said to you words to this effect:

"Fucking show yourself here, I'll kick your fucking head through the fucking ceiling, you cunt, you fucking back stabbing cunt." I apologise to the court. Can you remember him saying that to you? A. Yes, yes, yes, that were the words used.

Q. I think you describe him as being in a rage at that time? A. Yes, that's right.

"Get fucked. Come in here and I'll kill you, you cunt." A. Yes.

Q. And in the conversations with Mrs ES she described him as going off? A. Yes.

Q. And she said to you, 'He went off even more and took off saying he wanted to kill you'? A. Yes.

Q. And that, can I suggest to you, was then the catalyst for the implementation of your strategies for the siege after it went into the siege? A. It was more so that he was going to do harm to himself, is the reason for activation. The threat of violence against me was conditional that I had to go in there, but it was the fact that he was going to commit self harm is what brought us to the siege situation.

Q. But you realised at that time that he had a propensity to go into rage and threaten? A. That was quite obvious on the phone conversation I had with him, yes. 147 Evidence was also given in the proceedings by Senior Constable Fookes who was one of four negotiators at the siege. He said he believed that firearms other than police issue were found on the premises. He said that there were threats made to or against police officers of physical violence at the prospect of police intervention and:

Throughout the siege there were a number of threats made to various police about various police, and in particular if those armed police or anyone else came in to attempt to arrest him. He described the circumstances as representing "a high risk situation." 148 Sergeant Rebecca Tranby was the applicant's peer support officer. She recollected that after the siege she had a discussion with the applicant concerning his fears about ES and that she raised this with Inspector Eastham. It was her understanding that Inspector Eastham referred the matter to Inspector Varley who was the Inspector in charge of the eastern cluster of stations including those at which the applicant and ES were stationed. 149 In the course of cross-examination, Inspector Nicholson was asked about her knowledge of the events of the siege and their sequelae in the context of the material contained within her risk assessment report. She gave this evidence:

Q. (Edwards) As at April 2008, when you were doing this particular form, you knew there had been a siege? A. (Nicholson) Yes.

Q. Involving ES, is that right? A. Yes.

Q. That he had been charged with offences over this siege? A. Yes.

Q. Including the possession of unlicensed firearms? A. Yes.

Q. I would suggest as a police officer Mr ES's possession of unlicensed firearms was a serious matter? A. He was subsequently charged with the matter, yes.

Q. It is a serious matter for a police officer to have unlicensed firearms, isn't it? A. I don't have the basis of knowledge of his charge to know whether it is serious or not, but it is not regarded as a particularly serious charge in the normal community.

Q. He was then charged with malicious damage of a fence? A. Yes.

Q. He was charged with intimidating two police officers? A. I'm not aware of those charges.

Q. During the siege he made threats to kill various police officers? A. I'm not aware of those allegations.

Q. He made threats against various police officers during the siege? A. I'm not aware of what happened during the siege.

Q. As at that time, April 2008, when you did this risk assessment did you make any enquiries about what happened in the siege? A. No.

Q. Did you know that he had been attended to after the siege; ES had been taken to a mental institution and detained there for a number of weeks? A. We don't call them that. Yes. He had not been detained for a number of weeks; he had gone there overnight.

Q. As a layman you would expect detention in a mental health facility to indicate?

HIS HONOUR: The Inspector says she did not know a lot about the details or made inquiries about the details before she carried out this investigation; is that what you want?

Q. If you go to the second page of that risk assessment under the heading A. Can I correct myself? Sorry, I had accessed a COPS event in relation to ES prior to in relation to this matter prior to doing the risk assessment.

Q. At page 2 of this you will see there is a box headed Assessment of Suspect's Capability. It says the officer has no history of committing acts of violence either in his policing career or personally. That is an incorrect statement? A. He never assaulted or committed an act of violence upon another person.

Q. So you don't characterise the siege and malicious damage or intimidation of two police officers as acts of violence? A. Absolutely not.

Q. How would you characterise a siege where threats are made to other police officers? A. I was not aware of the threats made during that siege to other police officers, but normally sieges are for people that need help.

Q. That is, therefore, an incorrect assessment because you failed to have the full knowledge of the background and contents of the siege, is that right? A. No, I read the events in relation to the siege.

Q. If a person makes threats in a siege situation to kill or harm police officers that is an act of violence? A. I didn't read that in the COPS event. 150 I find it interesting that an Inspector of police should express the opinion that it is not a serious matter for a police officer to have unlicensed firearms in the sense that it is not so seriously regarded "in the normal community" whatever that may be. 151 I observe that it is quite clear from the report of Inspector Nicholson and the evidence that she gave upon it that she has particular views about the nature and extent of her investigations as required of her in completing a risk assessment of this kind. Furthermore, she has certain views about whether certain conduct constitutes acts of violence. These views, in my understanding, are thankfully not shared by other police officers who have given evidence in these proceedings. 152 In the course of cross-examination, Superintendent Commins, who it will be remembered signed the risk assessment conducted by Inspector Nicholson, was directed to the sequelae of the siege. He said that charges had been laid against ES as a result of the siege including partly destroying a fence, intimidating two police officers, having possession of unlicensed firearms and the making of threats. He agreed that on this basis, the assessments about the capability and extent of the risk referred to in the report of Inspector Nicholson were "totally incorrect". 153 All of the senior police officers about whom the applicant said that there had been a suggestion made that he should access COPS for the purpose of checking on ES denied any such conversation. I accept their evidence in this regard because of the very explicit and firm regime established by the New South Wales Police Force with respect to access to the COPS system and the audit process that accompanies it. Whilst it is clear from the evidence that in general terms the applicant has not conducted himself at all times in a completely open and truthful manner, in dealing in particular with Inspector Nicholson and the enquiries being made by her of him, it is also clear that at all relevant times he was under pressure because of his perceived concerns about the threat that ES posed to him and his family and his professed inability to do anything about it. In this regard I note also that because of what I regard as their personal dislike for the applicant as a police officer resulting from his general background as a complainant in a number of matters, he did not garner the support of a number of senior officers for a transfer to Shoalhaven. The failure of the police force to transfer him away from ES exacerbated the applicant's difficulties and created a background against which he breached clear policy by accessing the COPS system. Additional matters going to integrity

154 In the course of submissions, the respondent sought to attack the applicant's integrity by reference to his candour and demeanour as a witness in these proceedings. I shall deal with each of these areas in turn. 155 The first concerned an "Officer Service Summary" which he annexed to an affidavit. In doing so, he said in the affidavit:

To the best of my knowledge through examination of documents on my discipline file, produced pursuant to an FOI application by my solicitors, I have received no adverse findings from investigations into my conduct as Police Officer. He then annexed the document entitled "Officer Service Summary". 156 That document listed a number of summaries of "Complaint File" and then purported to provide a summary, by way of information, entitled "Complaint Detail". This lists a number of complaints, categories entered, criminal allegations and then under the heading "Adverse Findings" there is contained the number "0". 157 In the course of cross-examination about his service record, the applicant was taken to a number of incidents and denied that any adverse finding was associated with them. He conceded that with respect to one particular matter, he had received a warning. He was then asked whether it would be correct to say that he had received no adverse findings from investigations due to his conduct as a police officer and he replied in the negative. 158 I do not regard the statement made in the affidavit of the applicant that he had received no adverse findings from investigations into his conduct as a police officer as necessarily involving any deliberate attempt to distort the truth. The paragraph in the affidavit which contains this observation is prefaced by the introductory words: "To the best of my knowledge through examination of documents on my disciplinary file …." The assertion was based therefore on the contents of the document produced by the Professional Standards Command of the Commissioner of Police on 18 June 2009. I would rather characterise the reference to this document as something in the nature of "clutching at straws" rather than anything more sinister. 159 The second matter relied upon by the Commissioner related to evidence given by the applicant that in April 2007, he was subject to a management-initiated transfer. In an affidavit he said: "Inspector Varley informed me that he had recommended to the Commander that I would be transferred to Queanbeyan as a management-initiated transfer." He went on to say that this created difficulty for him because he would have to leave his wife and child behind. 160 In cross-examination, it was put to the applicant that in reality he had applied for a transfer to Queanbeyan so that, in the circumstances, it was incorrect to describe the transfer as management-initiated. The applicant's evidence was to the effect that he had at one stage applied for a transfer to Queanbeyan to a particular vacant position there but had been unsuccessful. What followed subsequently was something initiated by Inspector Varley. 161 In his affidavit Inspector Varley deposed to a conversation with the applicant on 21 February 2007 in which the applicant requested a transfer to Queanbeyan. As a result of this, Inspector Varley drafted a document that supported the applicant's transfer back to Queanbeyan. However, he was adamant that the suggestion for the transfer came from the applicant although it was "ultimately considered a management-initiated transfer as that was the only way in which it could take place." 162 It was the evidence of Superintendent Commins that he had acted upon a request for a transfer back to Queanbeyan made by the applicant in January 2007 but that it had been refused by the Human Resources Manager of the Southern Region. After receiving the email from Inspector Varley in February 2007, he had arranged for a management-initiated transfer which occurred in April 2007. He said that the applicant had informed him that he was happy for that to have occurred. 163 In a technical sense, it seems to me that what occurred was that there was a management-initiated transfer, but that this had been undertaken as a result of a request made by the applicant. To the extent, therefore, that the applicant's affidavit conveys an impression that the transfer was something that occurred without any input, request or discussion with him, that impression is simply incorrect. To this extent, it touches upon the applicant's integrity but not, in my opinion, to a significant extent. 164 The third matter relied upon was the fact that the applicant characterised in his evidence the transfer to Queanbeyan in April 2007 as one motivated by his desire to escape from ES. It was put to him that this was at a time when he had no particular difficulties with ES. The applicant denied that this was the case saying that his problems with ES were ever present. Given all the evidence in the proceedings concerning the applicant's interrelationship with ES and concerns about ES, I do not attach any significance to this matter in terms of the applicant's integrity. 165 The fourth matter related to the applicant's evidence about the form that he said had been approved by the Crime Manager. He said in evidence that it was his impression that this had occurred although it was clear from the evidence that this was not so, and, in particular, clear from an email that the applicant had received from Detective Sergeant Barclay, to which I have earlier referred, that this was not the case. 166 It was submitted on behalf of the applicant that this was a matter of a mistaken recollection. The respondent submitted that the applicant had been either deliberately untruthful or inappropriately careless with the truth. 167 Given all of the circumstances that related to the form, which I have earlier outlined, I do not attach great significance to this matter in terms of the applicant's credit. 168 The final matter relied upon by the respondent was said to be the applicant's "obdurate refusal to accept that he had seen the provisions of s 169A of the Police Act prior to his directed interview with Inspector Nicholson, notwithstanding that it was clearly outlined in a document that he confirmed was the source of his knowledge." I can see no merit in this submission. The controversy within the evidence related to the application of the provisions of that section to such disclosure about Senior Constable Foster as had been made by the applicant. Without again traversing whether or not there was any such disclosure, it is clear from the evidence of the applicant that it was his understanding that Senior Constable Foster was not a complainant and that furthermore s 169A did not apply in circumstances where an investigation had concluded. Having regard to the legislation, including the provisions of a Regulation to which I have earlier referred, I have some sympathy for the position advocated by the applicant. I cannot see how his defence of that position in the course of cross-examination could impact upon his integrity. The nature of these proceedings

169 I proceed on the basis that I am required, in determining these proceedings, to "make a fresh and independent review" of the Commissioner's decision based not only on the material before the Commissioner, but on any new evidence which has been admitted for the purpose of these proceedings. (See Hosemans v the Commissioner of Police [2004] NSWIRComm 253 (Walton J Vice-President, Boland and Staunton JJ) at [134].) 170 Furthermore, I am required by s 181F(1) of the Act to consider sequentially the three matters which are therein set out. 171 In proceeding, I am mindful also that the burden of demonstrating that his removal from the police force was harsh, unreasonable or unjust falls on the applicant (s 181F(2)). 172 I shall also have regard to the applicant's interests and the public interest as required by s 181F(3). 173 It is also well established at Full Bench level that this Commission, in considering applications brought under s 181E of the Act, is entitled to consider and take into account the processes and procedures adopted and undertaken by the Commissioner in determining to remove a police officer. If any authority is necessary in support of this proposition, I refer to the judgment of a Full Bench of this Commissioner in Little v Commissioner of Police (No 2) [2002] NSWIRComm 52, and in particular [75] of that judgment. 174 These observations include in particular a duty to accord, in appropriate circumstances, procedural fairness in circumstances where power is exercised by a decision maker that might adversely impact upon the "rights, interests or legitimate expectations" of a person. In Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, Mason CJ, Deane and McHugh JJ in the High Court of Australia said:

[2] It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: The Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383, at pp 395-396; Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at pp 109-110; Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, at pp 496, 500; J. v. Lieschke [1987] HCA 4; (1987) 162 CLR 447, at p 456; Haoucher v. Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, at p 680; 93 ALR 51, at p 73. In Tanos , Dixon C.J. and Webb J. said (at p 396) that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations". Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v. Parole Board of New South Wales (1986) 5 NSWLR 338, at pp 344-345, 347, 349. In Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, Mason J. said (at p 584) that the law in relation to administrative decisions:

"has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." In Haoucher (at p 653) Deane J said that the law seemed to him:

"to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making". 175 In Szbel v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, in a joint judgment, Gleeson CJ, Kirby, Hayne, Callinan and Heyden JJ, in discussing the circumstances in which procedural fairness is required to be followed, said:

[26] It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. As Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 503-504: "[T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity ['to correct or contradict any relevant statement prejudicial to their view' Local Government Board v Arlidge [1915] AC 120 at 133] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place ." (Emphasis added) In the present case, attention in argument, both in this Court and in the courts below, was directed more to the particular circumstances of the case than to the relevant statutory framework, but it is necessary to notice some aspects of that framework. Unless that is done, the argument proceeds at too high a level of abstraction and may proceed upon assumptions that are ill founded. 176 In the circumstances of these proceedings, it is obvious that the structure of the process established by s 181D of the Act, and in particular sub-s 3, mandates that the Commissioner must afford procedural fairness to a police officer in determining to remove him or her under s 181D. 177 The necessity to "make a fresh and independent review" of the Commissioner's decision, which is required of this Commission in considering applications brought under s 181E, extends to a consideration of material that was not placed before the Commissioner. As is clear from the evidence given in these proceedings, the initiation of a process which ultimately leads to a decision by the Commissioner to remove a police officer can be something that has as its genesis a decision made by another police officer. In this case, the disciplinary process was initiated by Superintendent Gary Commins. This is dealt with in some detail in an affidavit sworn by Superintendent Commins, which became evidence in the proceedings. 178 It was the evidence of Superintendent Commins that he became concerned about the applicant's work history and in particular a number of complaint files which were created and which he referred to an internal review panel on 21 February 2008. 179 For the purpose of this action, Superintendent Commins had prepared a complaint history which listed a number of complaints, the first of which occurred on 17 February 2003. It then listed 23 further complaints. Many of these were finalised on the basis that the complaints were not sustained or that they would be dealt with as a "local management issue". In these latter circumstances there is reference to the matter having been "conciliated". Included within the complaints were some of those that gave rise to the initiation of the processes brought before the Commissioner which ultimately led to the applicant's removal. 180 The Panel Notification Form which Superintendent Commins completed required him to indicate which of four designated reasons for his notification applied. Those reasons were integrity, performance, conduct and competence. In the Form, Superintendent Commins indicated that his reasons covered issues of integrity and conduct, but not performance or competence. The Form also required Superintendent Commins to indicate a recommendation as to what type of action should be taken and he indicated that it was "S 173 Reviewable action". 181 In his affidavit, Superintendent Commins said that "as a result of the complaints before the Internal Review Panel, and Constable Morgan's extensive complaints history …" he determined on 3 June 2008 that he would suspend him with pay. 182 On 5 June, also, it was necessary for Superintendent Commins to receive approval from the Professional Standards Command to suspend the applicant on pay. In completing his application for approval, Superintendent Commins commenced his consideration by stating

This officer commenced in NSW Police Force 03/09/01 and has since been subject to 24 complaints. On consideration of his complaints history there are 15 Notifiable matters, 7 of which had sustained findings ….

He then set out those seven matters which, as I have said, include some of those which were the subject of these proceedings. In undertaking a risk analysis, Superintendent Commins said:

With this officer there is continued evidence of lack of compliance with NSW Police Force policies and procedures. Particularly in regard to releasing information to community members. For the officer to remain in the workplace with access to information and information systems, there is a risk of further unauthorised accesses … these risks cannot be managed by imposing restrictions nor by changing his location or duty type and therefore requires the Officer's suspension from duty. I believe it would impact adversely on the integrity and reputation of NSW Police Force should this officer remain performing duties as an operational police officer and would send a clear signal to fellow staff that NSW Police Force not only tolerate but condone poor standards of conduct by members. This would have a significantly negative impact on the morale of staff in the command. 183 On 5 June 2008, Superintendent Commins completed a further Panel Notification Form which included within it material to the effect that the applicant had accessed the COPS database without authorisation. This Form contained one reason for notification only, namely that based on integrity. The recommendation for action was "S 181D Removal, loss of Commissioner's confidence." 184 That Form again set out a history of 24 complaints made against the applicant, the first being recorded on 21 February 2003. There is again a reference to the applicant having a "significant history when compared to his length of service …." There is a detailed reference to the unauthorised COPS access, which ultimately became the subject of Grounds 7 to 11 in the Commissioner's reasons for removal. There is also a reference in that Form to the prior Panel Notification Form, so that it may be assumed that the material in that prior Form was subsumed into the material to be considered in connection with the later Form. In this regard, the prior Form referred to the matters that ultimately became the subject of Grounds 1, 3, 4, 5 and 6 of the Commissioner's reasons for removal. Importantly, these matters were said in the Form to have been the subject of investigation predominantly by Inspector Nicholson as well as by Sergeant O'Brien and were based on adverse findings made in each of their reports. I have previously commented with respect to those findings, and in particular the methodology and conclusions reached by Inspector Nicholson, and shall again refer to these matters later in these reasons for decision. The later Panel Notification Form, which was confined to the COPS matters, is based upon adverse findings and evidence adduced by Inspector Nicholson, the nature of which I have previously set out. 185 During the course of cross-examination, Superintendent Commins was taken to a number of the matters that were referred to in the documents that he had prepared. With respect to some of the matters where either no adverse finding was made or no action was taken, Superintendent Commins gave this evidence:

Q. (Edwards) The matters on p 106, are matters that were never sustained is that right? A. (Commins) Yes, it would appear so.

Q. So, in terms of looking at any disciplinary action those matters should be totally disregarded? A. I cannot say that. I am not sure whether the Commissioners Advisory panel take those into account or not.

Q. In terms of your knowledge of the consequences of complaints if the complaint is not sustained, but, there cannot be any action taken? Is that right? A. As I indicated earlier my understanding is it does paint a picture.

Q. Paints a picture but it is not a matter where there has been a sustained finding; those matters on p 106? A. Yes I agree.

Q. If you turn to p 105 there is, about half way down the page, there is in fact an entry, "issue. Unnecessary speeding. The officer drove in excess of 140 kilometres per hour whilst conveying a defendant"? A. Yes.

Q. Mr Morgan says that that was never sustained. What happened was his commanding officer said to him: "Look, whatever you do, that is something that is not to be done: Driving at 140 K's". He was given a commanders warning so to speak? A. Yes.

Q. Did you look through that matter to see if he was in fact found guilty of driving at 140 kilometres per hour? A. I don't recall.

Q. Or did you take it off other people's paper work? A. Yes.

Q. So if he said that was never sustained you don't dispute that? A. That's correct.

Q. Similarly with all those matters where there were warnings or the like you do not really know the outcome of each matter do you? A. No not unless I was involved in it but then I would have to look at the documentation myself too.

Q. So, it is true to say, that part of the reason you sent this off to the Commissioner was you thought he had an extensive complaint record as opposed to an extensive sustained complaint record is that right? A. Yes combination of both.

Q. There is not taking aside the 181 he has an extensive complaint history? A. Yes.

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?

199 For reasons that I have given, I do not accept that, having regard to the evidence in these proceedings and the submissions by the parties, the Commissioner was justified in removing the applicant based on Grounds 1, 3, 4, 5 and 6 of the reasons for removal given by the Commissioner. To the extent that the Commissioner has relied upon those Grounds whether individually, in combination, or having regard to any other Grounds relied upon by the Commissioner or for any other reason, I would characterise the Commissioner's decision to remove the applicant as harsh, unreasonable and unjust. 200 However, the remaining grounds do not fall within the same category. They relate in the aggregate to the unauthorised access by the applicant of COPS on 8 April 2008 and 1 March 2008 and the untruthfulness, which I have found, about his explanation for such unauthorised access given to Inspector Nicholson on 18 April 2008 and 14 May 2008. I should qualify this, however, by stating that I do not regard the "Ned Kelly" reference, allegedly given by the applicant to Ms Bell referred to in connection with Ground 9, as falling within this category. 201 The unauthorised access to COPS on these two occasions and the untruthfulness during the interviews with Inspector Nicholson call into question the integrity of the applicant. The question of integrity is specifically referred to in s 181F(3)(b) of the Act. This requires that in considering my decision in these proceedings I "must have regard to" the public interest which is taken to include "the interest of maintaining the integrity of the NSW Police Force …." Of course, I am also required to take into account the other matters referred to in s 181F(3) and to strike a balance by having regard, as required, to each of them. 202 The requirement to "have regard to" these matters was referred to by Spigelman CJ in the New South Wales Court of Appeal in Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198. At [73], his Honour said:

[73] A statutory requirement to "have regard to" a specific matter, requires the Court to give the matter weight as a fundamental element in the decision-making process. ( R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333, 337-338; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [71]-[73]). An equivalent formulation is that the matter so identified must be the focal point of the decision-making process. (See Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Zhang supra at [73].) 203 In referring to the proper approach to the application of s 181F(3), Spigelman CJ said:

[77] The matters referred to in s 181F, most relevantly s 181F(3)(b), are entitled to weight as a fundamental element in the decision-making process. Indeed, the section, in its overall context, is an indication that these considerations are entitled to substantial weight. However, that does not mean that a failure to give them substantial weight, even if established and found to constitute a jurisdictional error, will constitute a violation of the Hickman principle. 204 In considering matters going to integrity in the context of this legislation, Spigelman CJ observed:

[69] The importance of integrity for members of the Police Force is well established in the authorities (see, for example, Police Service Board v Morris (1984-1985) 156 CLR 397 at [412]) and in the statutory regime.

[70] Section 7(a) of the Police Act , as reflected in the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Statement of Values, states that each member of the Police Force is to act in a manner which "places integrity above all".

[71] With respect to this matter it is pertinent to refer again to the Commission's obligation in s 181F(3)(b), which specifically states that the Commission "must have regard to the public interest", and that the public interest includes: "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)." [72] Although s 181F(3)(b) uses language of institutional integrity, rather than of personal integrity as identified in s 7(a) of the Police Act , in its particular context the reference to "integrity of the … Force" should be understood as encompassing any issues of integrity that arise with respect to the order for removal of the particular officer to which the review by the Commission relates. 205 Macfarlan and Young JJA agreed with his Honour's judgment. 206 In the course of submissions, the applicant urged that I should consider his application by reference to the totality of the circumstances applying to all of the grounds relied upon by the Commissioner. More specifically, it was submitted that the underlying investigative process undertaken by those officers responsible for gathering, collating and presenting material to the Commissioner for his consideration was so fundamentally flawed that the Commissioner's reasoning and grounds became, in the result, so tainted that they should not be allowed to stand or, alternatively, should be characterised as creating a removal which was harsh, unreasonable and unjust. Particular reliance was made, in the applicant's submissions, upon the flawed approach of Inspector Nicholson. I have already commented about the approach and attitude of Inspector Nicholson and about some of the value judgments which she professed to hold. I have also earlier commented on the fundamental importance to the processes to be undertaken by the Commissioner under s 181D of the Act that he be properly and appropriately informed of all material which is relevant to any decision that he is required to make. This in turn necessitates that those presenting it to him should have first undertaken some proper evaluative process to ensure that that which is provided has a sufficient factually accurate base and that there has not been an omission to provide information which is also relevant to the Commissioner's decision. The "results based" investigative technique employed by Inspector Nicholson is inconsistent with the proper and appropriate preparation and presentation of material to the Commissioner and the failure to properly inform the Commissioner concerning the nature and extent of the threat posed to the applicant by the particular police officer involved in the siege is a fundamental omission. 207 Nevertheless, I am entitled to approach the matter by way of a fresh and independent review of all of the evidence provided, of course, that I follow the processes mandated by s 181F(1) and have regard to the matters as mandated by s 181F(3). I note for completeness the burden of establishing entitlement to relief as set out in s 181F(2). The fundamental matter that needs to be considered to resolve these proceedings is that which concerns the unauthorised access to COPS on both occasions and the untruthfulness of the information about the access so gained given to Inspector Nicholson on the two occasions to which I have referred. I have already referred, in a general way, to the COPS system and the importance of confining access to it in circumstances that are authorised by reason of the processes and protocols that apply within the New South Wales police force. The information contained within the COPS system is obviously highly sensitive and access must be confined in the manner authorised by the Commissioner. 208 In essence, the applicant relies upon his concerns for his safety and security and that of his family posed by the threat that he feared from the conduct of the police officer ES. He asserts that he was not given sufficient support by fellow police officers and that some of them may have inappropriately downplayed that threat. These circumstances were said to have been exacerbated by the refusal to allow the applicant to transfer to another locality with his family. 209 Put shortly, the question for determination is whether or not the unauthorised access can be justified as a means utilised by the applicant to secure his protection and that of his family. If such justification could be accepted, it would also be necessary to justify, in the same way, the untruthfulness of the applicant in the information that he conveyed to Inspector Nicholson. 210 There are instances where police officers gain unauthorised access to COPS for matters of personal gain. These might include unauthorised access to check on a motor vehicle licence or other details concerning estranged partners or the new partners of an estranged spouse and the like. Such examples may include improper access to provide information about someone to a third party for monetary reward. There is no question of personal gain in the circumstances of these proceedings. There is no suggestion of any motivating factor for the unauthorised access to the COPS system gained by the applicant other than something done in the course of seeking to protect himself and his family from someone who the applicant assessed posed and continued to pose a significant threat. Such unauthorised access is, on the applicant's case, to be considered in the context of the applicant's perception of lack of adequate support from others within the New South Wales police force including the failure to transfer him to another locality. 211 I am required to take into account the applicant's interests. In the more usual proceedings brought under s 181E of the Act, the applicant's interest extends to matters such as his or her ability to remain a member of the New South Wales Police Service, his or her financial circumstances, loss of reputation and the like. All of these matters apply in the circumstances of these proceedings but there is the added element of the interests of the applicant represented by his concerns for his safety and that of his family. 212 On the other hand, the public interest in maintaining the integrity of the New South Wales police force dictates that police officers who deliberately and knowingly breach matters of fundamental importance, such as unauthorised access to COPS, and who are untruthful in the course of disclosing information to superior officers must run a grave risk that they will not discharge the burden of establishing that removal from the police force was harsh, unreasonable or unjust. 213 I regard this matter as being finely balanced. Notwithstanding the seriousness of the unauthorised access to COPS undertaken by the applicant, I have a great deal of sympathy for his circumstances, which, I accept, were motivated by his concerns for his safety and that of his family. However, I am unable to extend the same sympathy to the applicant with respect to the untruthfulness, which I have found has tainted the information given by the applicant to Inspector Nicholson on 18 April and 14 May 2008, which I have previously described. In determining these proceedings, I am required to undertake a weighting exercise, balancing the interests of the applicant and the public interest after taking into account the several matters referred to in s 181F(1). The process by which a decision of this kind is made involves the exercise of a value judgment that relies on the application of standards of conduct as part of the evaluative process that is undertaken. 214 Although the matter is finely balanced, in the end result I am not persuaded that the applicant has discharged the burden imposed upon him of establishing that his removal was harsh, unreasonable or unjust. The unauthorised access to COPS, when coupled with the untruthfulness of the information given by the applicant to Inspector Nicholson on the two occasions to which I have referred, does not permit me, in the circumstances, to conclude in the applicant's favour. Accordingly, I propose to dismiss the application. The application is dismissed accordingly.

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