In Minister for Aboriginal Affairs v Peko-Wallsend Limited, Mason J (at 44-45) reasoned from an obligation, implicit in the subject-matter scope and purpose of an Act, to take account of detriment to individuals, that the Minister's "consideration of that factor must be based on the most recent and accurate information that the Minister has at hand". He then said that this conclusion was "all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to new hazard or new jeopardy." And he went on to refer to specific provision made by the statute to ensure that the views of affected persons should be brought to the Minister's attention. Similarly here, the Act provides a mechanism by which the representations must go before the Minister himself. Not by implication, but expressly, it requires the Minister to consider those representations. As in the case Mason J was considering, the decision in question is one which may adversely affect interests and legitimate expectations - indeed it may do so even more directly - and the inference that the representations cannot be left out of account, to be replaced by an assistant's vague evaluation of the extent to which appropriate conclusions about them are contained in a report, is at least equally compelling.
If what I have written seems to impose a heavy burden on the Minister, it is necessary to emphasise that Parliament imposed this burden. Doubtless it did so because of the very great power to override the major interests and rights of citizens, and also governmental agencies, which is involved. Such an authority was not to be conferred on a public servant or ministerial assistant. It is a vast power, which Parliament plainly intended to be exercised at the highest level, with the restraint that great responsibility imposes. That indeed restraint was very much part of the legislative intention is made clear by ss. 7 and 13. The special nature of the power, and the severe consequences of its application, also suggest that its exercise would not have been seen as a common or ordinary task …
32 The observations by his Honour and the authorities extracted by him complement the definition of "consider" as contained within the Oxford English Dictionary online definition, namely: "to look at closely, examine, contemplate…". Accordingly, in order to comply with the statutory requirement imposed by s 181D(3), the Commissioner was required to not only have regard to the response made by the applicant, but also to look at that material closely, to examine it and to reflect on what was said by the applicant.
33 It was agreed between the parties that the Commission should assume for the purpose of these proceedings that the consideration of the applicant's written submissions under s 181D(3)(c) was undertaken by the Commissioner of Police personally within a period of one hour. Within the same period of one hour the Commissioner also considered and dealt with the response submissions of three other police officers. The material that the Commissioner considered with respect to those three other officers was tendered into evidence. The three submissions with respect to the three other officers consisted in total of 41 pages together with 100 pages of attachments. The applicant's submission consisted of 41 pages together with 28 pages of attachments. I should emphasise that this material contains only the submissions made by each of the police officers. It does not include any of the Commissioner's Confidence Submission documents which were relevant for the purpose of those proceedings. It may be deduced that the Commissioner had previously read the Commissioner's Confidence Submission documents with respect to each of the four officers for the purpose of determining to issue a Notice to each of them as required by s 181D(3). In my opinion, having regard to the material in the response submissions made by each of the four officers, it would be necessary in carefully considering them to refer back to the original material in the Commissioner's Confidence Submission documents. Whilst I have not seen those documents with respect to the other three officers, the Commissioner's Confidence Submission documents with respect to the applicant are voluminous and consist of 223 pages. It might be inferred that even though some of the details concerning each of the four officers had been retained by the Commissioner in his memory, a careful evaluation of the response submissions would require some recourse to the original documentation which formed the basis of the reasons set out in each of the s 181D(3) Notices. In approaching this matter, I shall, however, ignore the material contained in the Commissioner's Confidence Submission documents, including the reasons for the issue of the Notice set out therein. In my opinion, having regard to the totality of the material contained in the four bundles of response submissions made by each of the four officers, it would be impossible for any person to have read, absorbed and "considered" that material within a period of one hour. Furthermore, it is impossible to read the applicant's submissions in these proceedings without referring back to much of the material in the Commissioner's own submission document. This is because of the detailed references contained within the applicant's submissions to parts of that material.
34 The respondent made an order under s 181D(1) of the Act on 15 May 2008 in which he determined to remove the applicant from the New South Wales Police Force. The document which embodied that order said in part:
"In reaching my decision, I have carefully considered the matters raised in the submission prepared in relation to you and the Notice served upon you pursuant to s 181D(3)(a)…I have also taken into account your written response provided by your legal representative."
35 In my opinion, having regard to the volume, nature and content of the material and having regard to the other matters considered by the respondent within the period of one hour, which the respondent allocated for this purpose, I conclude that the respondent could not have considered the matters contained within the applicant's submission in conjunction with the Commissioner's own submission documents in any meaningful manner, let alone one which could be described as having been attended to "carefully".
36 To this extent, and for this reason, I conclude that the order made by the respondent is fundamentally flawed. In these circumstances, it is harsh, unjust and unreasonable that the order which the respondent purported to make should be considered as having an effect removing the applicant from the police force. (I deliberately refrain from making any finding about whether in law it is a nullity.)
The factual background
37 It is now necessary to have regard to some of the evidentiary material adduced in the proceedings. This material was said by the applicant to be relevant, firstly, to whether she is entitled to relief and, secondly, the nature of that relief. As will be clear, most of this evidence is contained within the material considered by the Commissioner when determining to remove the applicant.
38 The applicant was aged 57 as at September 2008. She joined the New South Wales Police Force in May 1997 and became a designated detective on 21 October 2002. No complaint was made about her conduct or performance in the police force until 2004 after she had been transferred as a detective to the Burwood Local Area Command. Whilst at Burwood, the applicant was issued with a Commissioner's Warning Notice and was placed under a RPP. The Warning Notice issued on 22 November 2004 arose out of allegations of unsatisfactory conduct on two occasions and findings that had been made against her as a result of investigations into those matters.
39 The first concerned the circumstances in which the applicant had adopted an interview for another police officer. She had given contradictory evidence about those circumstances which involved a breach of police procedures.
40 The next matter concerned information which the applicant had given to an investigating police officer arising out of an infringement notice that had been issued with respect to a police vehicle which had exceeded the speed limit on 8 May 2003. Information made available for the purpose of these proceedings, but which was not available to the Commissioner, consisted of a report into this incident by Acting Inspector Coffen dated 30 July 2004. It seems that there were no positive means available to identify who it was that drove the police vehicle on the day in question and at the time that the infringement notice referred to. The applicant was interviewed about the incident more than 12 months after it occurred. Acting Inspector Coffen concluded that it was likely that if a prosecution had been instituted against the applicant "an acquittal was more probable than not." Despite this, on the basis of all of the information gathered by Acting Inspector Coffen, he formed the opinion that there was "a high probability" that the applicant was driving the vehicle at the time. He relied on inconsistencies in information furnished by the applicant, on the fact that she had failed to complete a duty book immediately after the day's duties and that, in his opinion, the explanations given by the applicant as to where she was at the time of the incident and where she had been on the morning of the incident were not plausible or attracted considerable doubt.
41 It was submitted for the applicant that the conclusion reached by acting Inspector Coffen was logically flawed in that any inconsistencies which he found in information furnished by the applicant and the other matters set out did not necessarily result in a finding that it was the applicant who was the driver on the relevant day. Furthermore, the applicant relied on material which was produced during the course of the hearing of these proceedings which indicated firstly that if any "reviewable action" had been taken by the Police Service against the applicant as a result of this incident, advice had been given by the "legal services representative at the IRP" that "any reviewable action would be seen as harsh and unreasonable at the IRC." Furthermore, there was a file note produced by the Police Service indicating that there were "evidentiary deficiencies in investigation" about this matter.
42 As I have said, none of this material which the applicant asserted must cast some doubt upon one of the bases upon which the Warning Notice was issued was put before the Commissioner for consideration by him when determining to remove the applicant from the Police Service.
43 The final paragraph of the Warning Notice said: "You should clearly understand that continued unsatisfactory conduct and/or performance duties may result in further management action, which may entail consideration of reviewable action under s 173(2), Police Act 1990, or removal under s 181D, Police Act 1990."
44 There was a notation, presumably in the handwriting of Superintendent Burn, the Commander of the Burwood Local Area Command, to the effect that the applicant had "declined to sign for this document. She acknowledged the contents and implication. She understands her position with regard to possible further management action."
45 One of the reasons given by the Commissioner in deciding to remove the applicant from the police force was the fact that she had "declined to sign for this document" whilst acknowledging, however, its contents and the implications for her.
46 The applicant had been stationed at Hornsby between April and December 2004. Immediately before leaving that station, the applicant had received an email from now Assistant Commissioner Peter Gallagher which said, "Sorry I missed you mate. All the best for your future career. If you need any help or advice, please don't hesitate to call me. Thank you for your help to all my police, especially my young police. Pete."
47 Whilst at Hornsby, the applicant was advised that because of the findings made in the Commissioner's Warning Notice she was required to undertake an RPP and that she would be stationed at Burwood while this occurred. The applicant protested because of difficulties that she had encountered with certain officers at Burwood, after she had been transferred to that Local Area Command as a detective. These were said by her to have arisen as a result of an incident which occurred in July 1997 when she alleged that a fellow police officer had engaged in corrupt conduct. Her allegations were dealt with by the Police Integrity Commission, which recommended that the officer concerned be prosecuted. The applicant asserted that no prosecution was ever instituted. The fact that she had made allegations against the officer was, it was said by the applicant, brought to her attention by certain police officers when she was initially transferred to Burwood. Other allegations were made by the applicant with respect to other conduct of police officers at Burwood while she was stationed there.
The Remedial Performance Program ("RPP")
48 Presumably as a result of her representations, the applicant was transferred to Chatswood Police Station within the North Shore Local Area Command and arrangements were made for her to undertake the RPP. Detective Sergeant Evatt was designated as the applicant's mentor whilst undergoing the program.
49 The applicant was presented with the RPP in writing whilst at Chatswood. The document stated that the Program would commence on 24 January 2005 and would have a 6-months' duration and that the reviewing officer was Detective Inspector Jubelin. The aim of the Program, as stated in the document, was to improve the applicant's performance "in the areas of record keeping, teamwork and technical and professional knowledge in regard to criminal investigation and prosecution."
50 The document set out by way of background the fact that there had been a number of "issues" concerning the applicant during 2004, specifically in the areas of record keeping, case-management, teamwork and criminal investigation. It referred to meetings in October and November 2004 where these issues had been discussed.
51 A number of strategies were set out in the Program document. It was noted that the applicant would be assigned to Detective Sergeant Evatt as a mentor who would meet with her weekly "to provide feedback regarding her current performance, assess the officer's current workload, progress and provide support for the officer on an ongoing basis." The mentor was to provide the Local Area Commander with monthly written feedback. A second strategy was a requirement for the applicant to produce her completed duty book entries and other material to the "Investigations Manager" on a weekly basis, which would then be reported to the mentor who would provide feedback. A third strategy required the applicant to "provide all briefs of evidence to the Investigations Manager who will act as the brief handling manager for review prior to the time of service." A fourth strategy was the placement of the applicant in Detective Sergeant Evatt's team within the detectives' office, to review "her ability to work effectively with the team to accomplish workplace goals."
52 A series of "outcomes" were set out with respect to each of the strategies.
53 The document included a warning that failure to complete the outcomes as described might lead to action being taken against her including her removal under s 181D.
54 The applicant was required to sign the Program as having received, read and concurred with the contents of the document. She declined to do so, explaining in a memorandum that she did not concur with its contents. That memorandum contained a lengthy recitation about the applicant's "rights" as a police officer which traversed a number of matters, about which she complained, which occurred during her period as a police officer. The fact that the applicant declined to sign the document was a ground noted by the Commissioner in his Statement of Reasons for her removal.
The Statement of Reasons for removal (continued)
55 After referring to this matter, the Statement of Reasons then sets out a number of general allegations without any seeming reference to any particular incident. I shall endeavour to summarise them as follows:
1. The applicant engaged in a "continued pattern of inappropriate and unprofessional behaviour and conduct" during the period 1 February 2005 to 27 February 2007.
2. That "over a lengthy period" the applicant continued to fail to demonstrate "the standards of conduct, performance and competence expected of a police officer…" with particular reference to "record keeping, teamwork skills, technical and professional skills in the area of criminal investigation and prosecution, customer service, decision-making, and planning and organisation/work management."
3. A failure "over a lengthy period" to demonstrate certain competencies related to an investigator, namely "technical professional knowledge, decision-making, teamwork/collaboration, customer service, planning and organising/work management."
4. A demonstrated "unwillingness or inability, to improve your performance, conduct and competence".
5. A failure to meet certain standards described in a police code of conduct and ethics but with no more specific description.
The TOIL incident
56 There then follows as a reason a failure to display "the highest standards of integrity" in the manner in which the applicant completed a work record on 10 March 2005 "by not initially recording yourself as having taken TOIL." (Time off in lieu).
57 The only reference to this in the Commissioner's Confidence Submission is an unattributed note relating to the applicant's record keeping. It says, "Following her appointment PMO (Police Medical Officer) on 10/3/05 she requested 1.5 hours TOIL while she was in the city to undertake non-police duties. The time agreed upon was between 11am to 12.30pm. Whilst checking her duty book on 15/3/05 I observed she had recorded her mealtime as 12MD to 12.30pm. I reminded her the mealtime she had recorded was in her TOIL period and she had in fact had lunch when she returned to the office about 1.30pm."
58 It transpired in evidence given in the proceedings that the author of that note was Detective Sergeant Williams who at the time was the Investigations Manager. The memorandum was a note which he had prepared for Detective Sergeant Evatt. Detective Sergeant Williams gave evidence. In cross-examination, he said that time taken in travel between the Chatswood Police Station and the city on police business would count as time worked and would not count as time off in lieu. Detective Sergeant Williams agreed that, taking into account travel time, it is possible that the applicant ate her lunch whilst on the train and that time off in lieu would have ended at 12.15. It was the opinion of Detective Sergeant Williams that there was no dishonest intention on the part of the applicant in recording the wrong time, and it was a simple matter of incorrect time recording. Detective Inspector Jubelin expressed the same opinion in his evidence to the Commission.
59 It was submitted on behalf of the applicant that in these circumstances, this incident could not justify a failure to display "the highest standard of integrity" as asserted by the Commissioner in his reasons for removal of the applicant as a police officer. I agree.
The RPP and Detective Sergeant Evatt
60 The Commissioner's reasons then deal with "evidence of poor performance" and "the comprehensive account…about your failure to meet the requirements of the performance agreement" given in each case by Detective Sergeant Evatt.
61 Detective Sergeant Evatt gave evidence in the proceedings. He said that over a three-month period, whilst he was the applicant's mentor between early February 2005 and 6 April 2005, there was a persistent failure on the part of the applicant to meet the outcomes in the RPP with respect to five particular areas.
62 The first area was a failure to ensure that he, as her mentor, was kept fully informed about her work commitments. He described the applicant as "initially reluctant to provide any details at all" and when provided they were "incomplete" or "misleading". This precluded Detective Sergeant Evatt's ability to assess the applicant's workload and progress and to provide support to her on an ongoing basis.
63 Handwritten notes made by Detective Sergeant Evatt indicate that he met with the applicant on 1 February 2005 at about 8.15am. She mentioned a number of specific matters with which she was involved. He asked her to supply a list of those matters which had not originated in the North Shore LAC together with court matters and any matters requiring her involvement with any court dates, outstanding actions and any other commitments.
64 Handwritten notes made by Detective Sergeant Evatt on 8 February 2005 indicate that he again asked the applicant for these details and he repeated this request when he met her two days later. At about 8.40am that day, the applicant gave him a typed list of her work commitments and complained that she was being over-scrutinised by reason of the RPP. Detective Sergeant Evatt noted that the applicant commenced crying. His handwritten notes reveal that he reassured her that he would manage her in no different way than other staff and that he would treat her as part of his normal team.
65 After discussing a number of matters, Detective Sergeant Evatt asked that the applicant prepare a spreadsheet detailing her workload matters. He noted that she appeared "dismissive" of his request.
66 In his handwritten notes, Detective Sergeant Evatt foresaw a difficulty in managing the applicant by reason of her reluctance to accept guidance and advice. He felt that if this were offered to her she would interpret it as an indication of some inadequacy. Her reluctance to accept advice created the need to be "stern when highlighting the necessity to complete a task."
67 This perception on the part of Detective Sergeant Evatt may have influenced the manner in which he dealt with the applicant thereafter. Certainly, it was the applicant's complaint that Detective Sergeant Evatt bullied and harassed her both in his supervisory role and in connection with the implementation of the program.
68 Detective Sergeant Evatt produced his first monthly review report on 28 February 2005. In that report, he first noted the delay in the applicant furnishing a list of work commitments and the explanation given by the applicant for the delay in that she needed to obtain details of outstanding court dates before completing the list. Detective Sergeant Evatt concluded that the list, which was eventually supplied, contained minimal details, that the applicant was "dismissive and defensive" and reluctant to comply. He further observed that the applicant appeared to be "reluctant to accept advice or guidance of supervisors. The officer makes continual reference to past experience and investigations in an apparent attempt to justify her decisions and opinions."
69 However, Detective Sergeant Evatt described the applicant as showing "enthusiasm and motivation." Despite this, he thought that she could "lose direction and be distracted from the task at hand. It would appear that further coaching is required regarding her assessment and prioritisation skills." He gave an example of this. There was also a notation about the applicant becoming defensive "before becoming visually upset and crying" and the applicant's complaint about the level of scrutiny that was being given to her. It was noted that the applicant had completed her duty book regularly and was otherwise attending to her duties.
70 The report comments adversely on the failure of the applicant to obtain statements from a number of witnesses in connection with an upcoming police prosecution. Detective Sergeant Evatt said, "Although the officer has alerted police witnesses by memo, the statements have not been forthcoming." He noted that the applicant had gone off work on sick leave and that he had been required to follow up the preparation of these statements. He said that "more effort could have been made earlier to ensure all these required documents were prepared and available to the defence service."
71 In cross-examination, Detective Sergeant Evatt was taken to extracts from the applicant's duty book which indicated that over a period commencing 21 December 2004, the applicant had regularly attended to the preparation of the brief and the taking of statements. This included contact with relevant police stations at which officers, who were to give statements for the purpose of the proceedings, were working. There was also admitted into evidence internal email communications from the applicant to various police officers exhorting them to ensure that statements were made available for inclusion in the police brief of evidence. Included was a request forwarded on 15 February 2005 to a police officer asking that the statements be prepared and forwarded to the applicant "urgently" pointing out that the brief was required to be served on 1 March 2005. When referred to this material, Detective Sergeant Evatt conceded that the applicant had applied herself to obtaining the necessary statements but said that this was not good enough. In his opinion, the applicant should have approached him and he would have ensured that the recalcitrant police officers would have given their statements by making contact with their supervisors. It appears, however, that at no time did Detective Sergeant Evatt convey this information to the applicant. On the other hand, he said that he had not been made aware by the applicant of the state of the matter and that therefore there was no need for him to so advise her.
72 The applicant submitted that the attitude and expectations of Detective Sergeant Evatt with respect to this matter were unreasonable and reflected his approach to his mentoring role and the manner in which he would judge the applicant's performance. In reviewing this aspect of the matter, I take into account on the one hand that the applicant appears to have conducted herself assiduously and persistently to ensuring that the statements were obtained; on the other hand Detective Sergeant Evatt felt justified in criticising her for not bringing the problem to his attention so that he could deal with it. Of course, in normal circumstances an employee and his or her supervisor are able to discuss work problems freely and without constraint, and a period of sick leave would not intrude on the execution of a task. There must be some doubt whether even at this early stage the relationship between Detective Sergeant Evatt and the applicant was such that it would permit of constructive discussion about the execution of various work tasks.
73 Detective Sergeant Evatt's second monthly report is dated 29 March 2005. It opened by referring to the fact that the applicant had been on restricted duties throughout the month but has retained some work responsibilities.
74 The report then referred to an incident on 1 March 2005. The applicant had approached Detective Sergeant Evatt as her mentor requesting advice about a matter and he had ventured an opinion about it, which was contrary to her view. He noted that her response in turn was "indignant, dismissive and aggressive, and she demanded that she be given respect, considering her experience." There was a further meeting on 2 March 2005 initiated by the applicant who sought advice about ensuring acceptance of her by other officers working in the police station and a discussion ensued.
75 On 7 March 2005, during the course of a weekly meeting discussing the applicant's current matters, she informed Detective Sergeant Evatt that she had an aggravated sexual assault matter "on my plate". When questioned, the applicant advised him that her involvement consisted of a requirement to supply a statement as a witness, and that she did not have carriage of the matter. He said in the report that "the officer showed great indignation and appeared aggressively resentful at being queried about this matter. It has become necessary, as her supervisor, to examine all information supplied by the officer to establish its veracity."
76 It is clear from Detective Sergeant Evatt's report and confirmed by him in evidence that he regarded the applicant as being untruthful when she referred to that particular matter as being "on my plate" in terms of her involvement. The applicant's evidence was that she was merely conveying to Detective Sergeant Evatt the fact that she had an involvement in the matter by using these words. In evidence, Detective Inspector Yeomans, who also worked in the same command, confirmed that the applicant's understanding of what was meant by this phrase was his own understanding.
77 I am unable to determine the extent to which these incidents affected Detective Sergeant Evatt's views and opinion about the applicant. They provide examples, albeit perhaps isolated, which are indicative of the emergence of views about the applicant held by Detective Sergeant Evatt that were not favourable to her.
78 Detective Sergeant Evatt's report then refers to the fact that he was away from the command during the week commencing 14 March 2005 and the applicant's weekly meeting during this period was conducted by Detective Sergeant Williams. The report notes a number of issues raised by Detective Sergeant Williams with the applicant that called for comment by Detective Sergeant Evatt. These included an opinion expressed by the applicant concerning the investigation of a fraud matter, the fact that the applicant had left some of her appointments at home, that she had failed to update certain contact details, that she had had an emotional outburst whilst discussing a matter with another officer and that there had been some inaccuracies in the recording of her times and duties in her duty book.
79 It appears that the record keeping matter referred to by Detective Sergeant Williams is the TOIL issue to which I have previously referred. In terms of the second last matter, namely the difference of opinion and emotional outburst with another officer, Detective Sergeant Williams, in his evidence, noted that the applicant had apologised to the other officer and as far as he was concerned that was the end of the matter.
80 However, there is one matter which is referred to in a report which Detective Sergeant Williams had provided to Detective Sergeant Evatt and which is not in the Commissioner's Submission document and was therefore not relied upon by the Commissioner in determining to remove the applicant from the police force. I refer to this matter because I am of the opinion that it has some significance, not in connection with the removal aspect of the proceedings, but in connection with what relief ought to be afforded to the applicant. The memo says: "Staff are now in the habit of making prank phone calls to 'save' the person who has become involved in lengthy discussions with her (that is, the applicant) during which she continually rambles on from one subject to another." I shall return to this aspect later in these reasons for decision.
81 According to the report of Detective Sergeant Evatt, the next weekly meeting was held on 22 March 2005 at which Detective Sergeant Williams was also present. This meeting discussed the issues previously raised by Detective Sergeant Williams, which I have summarised above. In particular, there seems to have been a detailed discussion about the applicant's difference of opinion with another officer. In describing the discussion that occurred at this meeting, Detective Sergeant Evatt said that the applicant "became aggressively sarcastic, and at times emotional." In her submission to the Commissioner, the applicant alleged that Detective Sergeant Evatt had "badgered me for about 20 minutes in an endeavour to have me say that I was completely at fault. I refused. I eventually walked out of the meeting in tears…"
82 This report of Detective Sergeant Evatt concluded by stating that at that stage he had concerns about the applicant's ability to comply with the RPP. He referred to her behaviour towards other members of staff and supervisors, her "propensity to make questionable judgments" justified by reference to her prior experience and the difficulty that he was having in communicating with her. He said, "It appears that she is not prepared or unable to adjust her attitude towards other staff members, and continues to overtly demand respect whenever conversing with them. It would appear that this is beginning to have an effect on other staff, particularly in their relationship with the other officer. This conflict does not exist between any other members of staff."
83 As is patently clear, the relationship between Detective Sergeant Evatt and the applicant was rapidly deteriorating. The applicant, in her evidence and in her submission to the Commissioner, accused Detective Sergeant Evatt of harassing her to such an extent that she was emotionally unable to deal with him. As will be seen, there is no doubt that the applicant was unable to cope in her dealings with Detective Sergeant Evatt, as was readily apparent to a number of officers working in the Command, including those at the highest level.
84 Whether and to what extent the reason for the applicant's difficulty in coping emotionally at that stage can be attributed to Detective Sergeant Evatt is not clear. In a written joint statement dated 15 March 2006, Detective Sergeants Andrew Birch and Gary Williams referred to a conversation between Detective Sergeant Evatt and the applicant which had occurred the previous day. They referred to "constructive comments" made by Detective Sergeant Evatt to the applicant and the fact that he "spoke in a controlled manner focussing on the issue being discussed." They said that "It was apparent by the body language and the tone and dismissive responses that (the applicant) gave in reply to comments that she did not digest the advice given, and in fact was dismissive to any suggestions that she could have improved on the way she had obtained the statements." That joint statement was contained within the Commissioner's Confidence Submission.
85 The next monthly report from Detective Sergeant Evatt was dated 2 May 2005. It reports an incident on 1 April 2005 stating that the applicant left the police station to attend an office in the Mandarin Centre, Chatswood in order to pick up a brief of evidence and other documents. It is alleged that the applicant's supervisor, Detective Acting Sergeant Burns, had informed the applicant that before leaving the police station, she should have made contact to ensure that someone would be there to make the documents available. The applicant was then observed by the Commander of the Local Area Command returning to the office carrying a large parcel at about 10.45am. The Commander asked the applicant's supervisor to discuss the matter with her.
86 There is also a reference in the report to enquiries being made at about 2.15pm by the applicant's supervisor concerning her whereabouts. The applicant had informed her supervisor that she was going to lunch at 1pm that day. She was seen walking into the station at about 2.30pm indicating that she had been shopping.
87 Detective Acting Sergeant Burns spoke to the applicant at 3pm that day about both of these incidents. The report states that the applicant became "emotional and a little teary" before referring with anger to the police force endeavouring to get rid of her. The applicant is alleged to have threatened that she would "get even" and that she would seek her personal file.
88 On 5 April 2005, the applicant was spoken to by the Commander concerning her request to access her personal file and concerning also the incident that had occurred on 1 April. The report of Detective Sergeant Evans indicated that he was present at that meeting and he described the applicant as continually endeavouring to interrupt the Commander while she was speaking and as being "visibly contemptuous and dismissive towards the Commander by huffing and sighing as she was spoken to." The applicant was reported to have denied having gone shopping.
89 The report also notes that the applicant's duty book states that when she returned from the office at the Mandarin Centre, she had a telephone conversation with her supervisor informing him that the office had been unattended. Her supervisor denied having received such a telephone call.
90 The report made specific mention of the applicant's poor record keeping in her duty book, her untruthful recording of some of the matters associated with the incidents and her lack of teamwork skills manifested by her derogatory comments about the staff generally and her interrelationship with the Local Area Commander.
91 A file note of Superintendent Cruickshank, the Local Area Commander, dated 5 April 2005, is included within the Commissioner's Confidence Submission documents. It refers in much greater detail to the incidents contained within Detective Sergeant Evatt's report of 2 May 2005, to which I have referred above. Relevantly, the file note of Superintendent Cruickshank, when referring to their discussion of 5 April 2005, says in part: "I explained that I wished to speak to her and advise her of my concerns and that she would have the opportunity to respond when I had finished - however, she kept interrupting as she normally does". Later in the file note, Superintendent Cruickshank said: "Throughout the discussion, Reid-Frost was most defensive, aggressive, argumentative and appeared to be trying to push the blame of her actions onto others, or not take responsibility for her own actions. At the completion of the discussion, I formed the view that Reid-Frost had been misleading in her information and avoided answering the questions truthfully. The discussion was about 20 minutes' duration…"
92 A different complexion on this matter was provided by the evidence of Detective Senior Constable Burns, who was an acting Sergeant at the time of the incident. During a period of approximately six months, he and another officer had supervised the applicant. He said that although he was unable to comment on the applicant's competency, he had not himself had any issue with the applicant's performance or work as a police officer. Detective Senior Constable Burns also commented about the circumstances in which the incidents of 1 April arose. He thought that the catalyst for what occurred was the fact that the Superintendent had seen the applicant out of her office window and that the applicant had shopping bags with her. He thought that the applicant had been singled out because of the RPP, in which the applicant was then participating.
93 The applicant's counsel sought to question the statement of Superintendent Cruickshank on the basis that she had not been called to give evidence. Detective Sergeant Evatt was present at that meeting and gave evidence in these proceedings. I am not prepared to draw any inference adverse to the interests of the Commissioner because Superintendent Cruickshank was not called to give evidence.
94 It was the evidence of Detective Sergeant Evatt that the applicant went on sick leave on 6 April 2005 and from that time on he ceased to be her mentor under the RPP. When the applicant did return to work, it was on restricted duties and she did not perform the work of a detective. I shall refer to this aspect shortly.
The Statement of Reasons for removal (continued)
95 The Commissioner's Statement of Reasons after referring generally to the RPP, contains a number of comments which are critical of the applicant. There is reference to the allegations concerning inadequate preparation of witness statements in February 2005, and to a belief expressed by the applicant that "Detective Sergeant Evatt elevated his involvement in this matter in a contrived attempt to have you appear in bad light." The Reasons then continue: "Throughout your involvement with your mentor while you were on a performance program, I can see no evidence that you fully accepted any guidance or assistance. I believe that your attitude was aggressive, dismissive and you were unable to take advice. Evidence of your dismissive behaviour is also provided by your Commander and other senior officers who sought to assist you."
Involvement of Detective Inspector Jubelin
96 There is then a reference to Detective Inspector Jubelin who held a senior position at the North Shore LAC. Relevantly, the Commissioner's Statement of Reasons contains this material:
"You continue to dispute the facts provided by Detective Inspector Jubelin in his report to the Police Medical Officer. You state that 'Detective Inspector Jubelin's report is erroneous as to fact and unqualified as to opinion.' In addition to this, you criticise a report provided by Dr Kirby, the Police Medical Officer. You provide that Dr Kirby's report is based on false, misrepresented and erroneous material.
I do not believe that the reports from this senior officer and the medical practitioner are misdescriptions and exaggerations of the facts as you described. Your response to my Notice has only provided further evidence of your inability to be consulted or to accept advice and direction. You have failed to comprehend the importance of the Commander's Warning Notice served on you in November 2004 and you have failed to meet the requirements of the Remedial Performance Program."
97 Detective Inspector Gary Jubelin was at the time that the events concerning the applicant occurred the Crime Manager at the North Shore Local Area Command. He had responsibility for the supervision of all staff attached to that Command, which included officers extending beyond the detectives. Detective Inspector Jubelin formulated the RPP that was to be applied to the applicant and appointed Detective Sergeant Evatt as the mentor. It was he who was the Reviewing Officer under the Program.
98 The first reference to Detective Inspector Jubelin's involvement with the applicant as contained in the Commissioner's Confidence Submission is a referral to the New South Wales Police Medical Officer, which he had given on 11 February 2005. The referral document noted that the applicant became very emotional, cried frequently and presented herself in a distressed state when discussing the fact that she had been placed on the RPP. She was given restricted duties on 10 February 2005 and her firearm was secured. In a further referral to Dr Kirby on 23 March 2006, Detective Inspector Jubelin said:
"My concerns with my dealings and observations of Alyson is a follows, she demonstrates what appears to be disproportionate emotional response to situations. These emotional outbursts are demonstrated in tears, anger, frustration through body language and words. She has in inability to accept criticism of any of her past actions. She is on a Remedial Performance Program that is not overly onerous, but she refuses to accept she should be on the program in the first place. Alyson also demonstrates what appears to me to be a need to be respected in regards to her policing experience by her work colleagues. This is demonstrated in her frequently talking about what a good police officer she is and talking up the jobs she has been involved in. Alyson's dedication to her work is not in question, however the manner in which she conducts herself is disruptive to her work colleagues.
…
This is the third referral I have made to the PMO in regards to Alyson. The same issues identified now were identified 12 months ago. This command is seeking a thorough detailed assessment from a police medical officer to determine if the officer is capable of returning to work, the effect it will have on her welfare. What duties she would be capable of carrying out and advise us on how to manage someone like Alyson."
99 A report of Dr W Kirby, the Police Medical Officer, dated 10 March 2005, indicated that there would be a referral to a psychiatrist and a further report would be forthcoming. A report of Dr Kirby dated 9 June 2006 refers to previous advice of 20 May 2006 in which a recommendation had been made that the applicant be placed on restricted duties pending further review. Dr Kirby concluded from a review of certain material, which appears to have been forwarded to him by the Local Area Commander, that the applicant:
· "is not able to isolate and control her emotions when challenged
· has a need for recognition that inappropriately intrudes into her workplace relationships
· reacts with exaggerated emotion to the extent that it affects her policing performance
· appears to have a belief in her capabilities that is inappropriately optimistic, maybe unrealistic
· has difficulty with authority figures and a workplace hierarchy that she is required to work within
· although not untruthful would appear to be selective with her information and the emphasis put on facts"
100 Dr Kirby from his review of what appear to be opinions and reports of health professionals, who are unnamed, expressed the opinion that there was no evidence that the applicant was "delusional or suffers a psychological or psychiatric disorder. Therefore, her behaviour can only be explained on the basis of her personality type." He thought that the applicant's behaviours were "a product of her personality, are deeply ingrained, she does not have the capacity to control them and there is minimal or no chance at this stage that they can be changed by therapy." Dr Kirby recommended that the applicant remain on restricted duties.
101 A number of the referral letters to Dr Kirby were a part of the Commissioner's Confidence Submission material. In particular there is a memorandum from Detective Inspector Jubelin, dated 29 May 2006, to Dr Kirby in which he relates a history of the applicant's placement at North Shore LAC since December 2004. Some of the material contained within this report is repetitive of matters to which I have earlier referred. There are assertions that the applicant was resistant to the RPP, that she was hostile to Detective Sergeant Evatt and distrusted him and that her behaviour, attitude and personality had not only impacted in a negative fashion on the performance of her duties but also on the applicant's work colleagues.
102 In describing the applicant's conduct, Detective Inspector Jubelin has appeared to have relied heavily on observations made by Detective Sergeant Evatt although he does also refer to accounts of the applicant's behaviour provided by other staff.
103 In addition to the general observations made by Detective Inspector Jubelin concerning the applicant's emotional and distressed state, there is specific reference to an incident which occurred on 22 March 2006, when the applicant issued a traffic ticket whilst driving her own private vehicle. Detective Inspector Jubelin said in part: "The manner in which (the applicant) conducted herself on this occasion resulted in the mother of the driver turning up at the police station to ascertain if (the applicant) was really a police officer and enquire about her actions. I raised this issue on the basis that it causes me concern that the day after she displays emotions and aggression to senior officers, she feels the need to demonstrate her powers as a police officer on the way to work."
104 The genesis of this complaint was a report of M Fallon GSO Chatswood, dated 15 June 2006, requested by Detective Inspector Jubelin "for information regarding Senior Constable Reid-Frost." The report was in the following terms:
"BACKGROUND:
About 11am on 22.3.06 I was working behind the counter in the Chatswood Police Station when a mother and her son walked in. I asked if I could assist them, the male said he was told to come to Chatswood Police Station by a police woman in plain clothes and not in a police vehicle. He said this Police woman had showed her police badge to him through the window of her car. I then went into the muster room to enquire who the police were and was informed there was nobody there, I returned and Senior Constable REID-FROST walked in and said, 'These people are for me'. Senior Constable REID-FROST then told the people to 'wait there', referring to the foyer.
COMMENT:
Senior Constable REID-FROST left the people at the front desk whilst she changed into her uniform. About 15 minutes later she had not come back to the front desk, so I decided to find her and ask if she had forgotten the people. I found her outside the Police Station, through the external muster room door, having a cup of coffee and a cigarette. She told me she had not forgotten the people waiting in the foyer. About 15 mins after that she came to the front desk and told the male he was getting a ticket for talking on the phone while driving. About another 15 mins later she came out and handed the ticket to the young man they then left. I estimated these people were in the station for at least 45 mins, and were left to wait in the foyer without any explanation by the constable of what was occurring until half an hour after arriving.
In my opinion, I would consider the Senior Constable was abrupt in her manner towards this woman and her son, yet they were very polite towards her."
105 The inclusion of this matter in the Commissioner's Confidence Submission documents provides an illustration of the controversy that is at the heart of these proceedings. I have already referred to the reference to this incident within the background documentation provided to the Commissioner for his consideration. I have referred also to the opinion expressed by Detective Inspector Jubelin as to his reaction to the incident and his views about what it revealed concerning the applicant's behaviour and personality.
106 In her written response to the Commissioner, the applicant dealt with this matter in some detail. I set out [186] to [198] of her submission to the Commissioner.
"186. I spoke to the young person and told him I would send a ticket to him. I did not tell him or his mother to attend the police station. The young person and his mother came to the station to pick up the ticket because he did not want it being sent in the mail. The vehicle was not his but was actually a company car allocated to his father. He did not want his father to find out or get his father into trouble because he was driving the company car. They disclosed this to me when they attended the station.