Consideration
48 The question therefore is whether or not a conviction of a Police Officer for the offence of "Under the Influence - Dangerous Driving Occasioning Grievous Bodily Harm" warrants dismissal for conduct and whether any other circumstances could allow relief. The Commission must give weight to a number of factors as well as a consideration of the public interest in having such a person serve in the police force.
49 In this instance the nature of the criminal activity, while not one of abject violence, was most serious. This is conceded by the applicant.
50 In a review of the Commissioner's decision, the Commission assesses all the information placed before it including the Commissioner's Reasons, the applicant's case and the Commissioner's Reply (s181F of the Act). The Commission can take into account matters subsequent to the removal of an officer (Starr v Commissioner of Police (2001) NSWIRComm 226 at [322]-[324]; Little v Commissioner of Police (No. 2) (2002) 112 IR 212 at [74]; Van Huisstede v Commissioner of Police [2000] 98 IR 57 at [194]).
51 There are two separate instances pleaded before the Commission where the applicant has brought disgrace upon himself while under the influence of alcohol. Such poor behaviour legitimately raises questions about his suitability for the NSW Police Force.
52 The circumstances surrounding the applicant's driving offence are particular. The applicant was familiar with the road. The roadway was undergoing roadworks. A detour was in place and a curve placed in a normally straight stretch of road. The road was badly lit and the road surface was in poor condition. While none of these factors mitigate the crime he committed, they illustrate factors outside the applicant's control and, exacerbated by his intoxicated state, the accident occurred. Injuries were sustained in the accident, the most serious being a broken arm suffered by one of his friends. This friend has recovered. The judge said of the applicant in handing down sentence for the offence, that the charge reflected a "momentary reckless error of judgement".
53 The applicant was later involved in a fracas with a security guard at Penrith McDonalds on 5 October 2006 also while under the influence of alcohol. The applicant had worked for two and a half years in the NSW Police Force without blemish and had a good record as a Police Officer.
54 The applicant admits to binge drinking. This evidence persuades me this binge drinking was episodic. The statements of his friends with whom he was with that night celebrating reveal a culture where drinking a mix of beer and spirits over six hours in the hotel was considered an acceptable way a group of male friends welcome joyous news. The applicant's brother-in-law was with the applicant.
55 Even after the applicant was stood down from the Police Force and one year after the initial incident, the applicant remained in that culture of "binge" drinking as evidenced by the McDonald's incident, another episode but more than a year later. I accept he then "woke up to himself". He realised he was in trouble and sought professional help. He has changed his lifestyle. He holds a responsible job and has shown great promise in that capacity. Even if I accept the respondent's proposition he sought this "help" in the context of the assault charges, nonetheless I accept the counselling had a positive effect in altering the applicant's behaviour patterns.
56 I accept the applicant is not alcoholic. But within his cultural environment "binge drinking" was acceptable behaviour amongst young men. Notwithstanding that many of these young men come from fine family homes, they think it acceptable to binge drink to the point of stupor to celebrate, to drown their sorrows or in their quest to maintain mateship relationships. They then feel invincible, to sit drunk behind the wheel of a car or to respond aggressively in a social environment.
57 These attitudes are reflected in the applicant's past behaviour patterns.
58 I accept while that may have been a reflection of the applicant's past world it is no longer so. I accept he is now a responsible family man and a hard worker. Another child is due in February. He has huge debts mostly from legal expenses incurred in defending the assault charges and financing himself for this appeal. The $8,000 he and his wife had saved as a deposit on a house has now been converted to a debt of $40,000 - part of which is a high interest loan. He works two jobs in an attempt to become debt free. He has legal representation in this litigation and had independent counsel in the assault case. He has fought hard and within his rights to drag back some of his reputation.
59 In addition to the evidence of a criminal conviction arising from the driving offence, the respondent relies upon the proven unruly behaviour of the applicant after his suspension but before his removal. The Commissioner asserts such conduct makes the determination to remove the applicant reasonable. The respondent submits the two incidents prove the applicant's unsuitability to be a Police Officer - as a matter of public interest.
60 Evidence of the fracas with the security officer at McDonalds, again in the early hours of a Sunday morning, again with the applicant under the influence of alcohol, led to two assault charges being pressed against him. On 12 December 2006, he was found not guilty of both assault charges arising from the altercation. The Commissioner did not take this incident into account in his Statement of Reasons for the termination of the applicant's employment.
61 While the applicant did not reveal the second charges regarding the assault in his supplementary submissions to the Commissioner on 19 March 2007 there was an inference cast by the respondent, if not a direct submission, that he hid them. The McDonalds' incident was not relied upon by the Commissioner. The applicant gave evidence he had informed his Local Area Commander when the charges were laid. He fought hard against the assault charges. The Magistrate found the applicant had acted against the Security Officer in self defence. In evidence the applicant was asked:
Q. And there is no suggestion, either orally or written from the Commissioner of Police subject to that, that this matter was ever to be considered by him or taken into account in deciding to issue you with an order under s181D removing you?
A. That's correct.
Q. And yet these were public proceedings?
A. Yes.
62 I am satisfied the NSW Police knew of the two charges of assault and that they had been dismissed. Although the charges may have been laid by the Security Officer they were handled before the Magistrates' Court by the Director of Public Prosecutions. Police were called to give evidence. They were matters on the public record. The applicant had told his Commander of the pending charges. I therefore distinguish the facts in this matter from those considered in the authority of Concut Pty Ltd v Worrell and Anor (2000) 176 ALR 693 (at 707) and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (at 467) where circumstances not known of at the time were able to be used to justify dismissal. Cook J in Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 said (at 25):
... where an employer with a full knowledge of an act amounting to misconduct justifying summary dismissal does not exercise the right which he thereby possesses but elects to treat the contract as still subsisting, then he is regarded in law as having waived the right of summary dismissal for that offence, or of having "condoned" that offence, so that he cannot, therefore, in an action for wrongful dismissal based on misconduct, rely upon an offence which he has waived as justification for his action .
(See also Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 per Walton J, Vice-President; Hungerford J; Bishop C at [31]-[32].)
63 The assault charges against the applicant pre-dated the Commissioner's Order removing him from the NSW Police Force and the Police Force had knowledge of the charges and the resolution was on the public record and they were not referred to in the Commissioner's reasoning. I do not accept the assault charges (later dismissed) that were within the knowledge of the Commissioner and not relied upon as a ground of dismissal in the Statement of Reasons, can now be relied upon by the Commissioner as evidence to support his decision to remove the applicant from the NSW Police Force. As said in Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 (at 373), the question is whether such grounds and justification existed at the time of the Commissioner's determination. The dismissed assault charges were not seen as relevant by the Commissioner in his consideration and I do not view them any differently. They were, however, part of the chronology of the applicant's "binge drinking" history and are given consideration in that aspect of the case.
64 However, I must balance the interests of the applicant with those of the public interest in this consideration. I accept the applicant has attended counselling, has listened to the warnings delivered and has adopted the skills to ensure he avoids binge drinking. He has addressed his past behaviour as a matter affecting both his health and his standards of behaviour. He has proven his stability by holding down a well paid position since he has been terminated from the NSW Police Force. He has worked two jobs to meet his legal debts and in an endeavour to put his family back on a firm financial footing. Another child is expected.
65 The public interest in the integrity of the NSW Police must also be given consideration. In Van Huisstede v Commissioner of Police (2000) 98 IR 57, Walton J, Vice-President said of the public interest at [216]-[217]:
216. The intent of the subsection is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interest and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so.