In the Removal Order the respondent considered the Applicant's Response to the Show Cause Notice which included: a response to the grounds set out in the Show Cause Notice provided to the respondent on 23 October 2017; medical reports provided to the respondent on 31 October 2017; and a CD containing an extract from a Macquarie National News broadcast provided to the respondent on 21 November 2017.
In his consideration in the Removal Order as to whether the Allegations were substantiated the respondent refers to the applicant's response to each of the Allegations in the Applicant's Response to the Show Cause Notice.
The respondent states in the Removal Order that he considered amongst other things:
1. the character references provided in support of the applicant;
2. the applicant's disciplinary history;
3. the medical reports provided by the applicant, the applicant's diagnosis that he had been suffering from a psychological work-related injury for at least 15 years, being accumulative post-traumatic stress disorder ("PTSD") and major depression; and the applicant's submissions about his management of his PTSD and depression, including that the applicant refrained from self-medicating with alcohol in the 18 months prior to the Applicant's Response to the Show Cause Notice;
4. the applicant's submissions about:
1. the evidence of the witnesses in respect of Allegations 1 and 2;
2. the applicant's submissions about the conduct of the criminal investigation in respect of Allegations 3 and 4;
3. the applicant's reasons for joining the Police Force;
1. the applicant's personal and employment history;
2. the applicant's achievements, including: the arrests made by the applicant while in a business suit and without appointments, awards, medals, and other recognitions of merit and appreciation given to the applicant during his career;
3. the applicant having been suspended for a lengthy period which the applicant says exacerbated his PTSD and depression;
4. the applicant's lack of a criminal record vis-a-vis the records of "other current serving police officers";
5. the applicant enjoys being a police officer; and the applicant's belief that: he has a long and prosperous future with the New South Wales Police Force; and has a lot to offer the New South Wales Police Force and the community;
6. the local police and community support the applicant and want him to continue with his prosecuting duties in Orange;
7. the applicant's life and family are in Orange;
8. the applicant's statement that he has learned some valuable lessons as a result of some of his conduct; and
9. comments the respondent made regarding assisting officers suffering mental health injuries to transfer to positions such as Police Prosecution Command.
The respondent concluded at p 34 of the Order:
I 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. The NSW Police Force is a disciplined force yet you have repeatedly failed to comply with the Code of Conduct and Ethics and consistently demonstrated a complete disregard for those in authority. You have been provided with numerous chances to demonstrate that you can modify and adjust your behaviour and I am not convinced that you would not engage in further behaviour of a similar nature. In circumstances where you have already been served with two orders pursuant to s 173 (2) of the Act and several Warning Notices, including a Commissioner's Warning Notice, I have determined that I no longer have confidence in your integrity as a police officer to perform policing duties in the future.
For the purposes of s 181D(1), the grounds for the respondent's decision are "conduct" and "integrity": Van Huisstede v Commissioner of Police [2000] NSWIRComm 97 at [214].
On its face, the Statement of Reasons complies with the requirements of s 181D(4) of the Police Act, in that the reasons provide a basis for the removal action taken by the respondent: Baker at [98]. However, much of the applicant's case in these proceedings is based on asserted deficiencies in the respondent's reasons, including the alleged failure of the respondent to provide proper reasons for making certain decisions or preferring certain evidence. The applicant asserts:
1. the respondent does not give detailed reasons or explanations as to why he accepted and preferred the Allegations against the applicant;
2. the respondent asserts he has considered the evidence against the applicant "independently". However he does not give reasons or explanations as to why he believes there was nothing sinister or flawed with the investigation into Ms Plumridge's allegations;
3. the respondent does not give reasons as to why he asserts that Ms Plumridge "provided a consistent version of events" especially after he would have been aware that the Magistrate declared Ms Plumridge to be an "inherently weak" and "inherently unreliable" witness;
4. the respondent did not properly take into consideration the character references and documents pertaining to awards and good police work submitted by the applicant;
5. the findings made by the respondent were infected by considerations which fell outside the rules of procedural fairness and natural justice in that the respondent: used the applicant's prior history of complaints to determine the findings, relied upon complaints which had been finalised as "not sustained" and "matter declined", relied upon information which was purported to be correct; and did not consistently or properly adhere to findings made in investigators' reports;
6. the NSW Police Force accepted the applicant's work-related injuries and the expert diagnosis which was included in the Applicant's Response to the Show Cause Notice; however, the same expert diagnosis has been rejected by the respondent in the Removal Order without any detailed reasons for this decision;
7. the respondent did not properly take into consideration the expert medical evidence pertaining to the applicant's PTSD and the PTSD flashback the applicant experienced on 6 March 2016 at Bathurst after the applicant was assaulted. The respondent gave no detailed reasons as to why the diagnosis and explanation for the applicant's behaviour on this evening was rejected; and
8. the respondent failed to acknowledge and comment on the Investigator's Report, which was supplied by the applicant at Annexure 44 to the Applicant's Response to the Show Cause Notice.
As set out in the extract from Baker at paragraph [15] above, the essence of the Statement of Reasons is to explain why the decision has been taken. The Statement of Reasons does not need to be drafted "in something akin (in the nature and standard required) to judicial reasons": Lawrance v Commissioner of Police [2010] NSWIRComm 149 at [274].
As set out in Lawrance at [275], what is necessary, for procedural fairness, is that the respondent gave consideration in the Statement of Reasons:
to issues of substance which are raised by the applicant so far as they have the real potential to bear upon whether or not the [respondent] should or should not maintain confidence in [the applicant]" and a failure to do so "will be a factor relevant to, but not necessarily determinative of, the review process and any conclusion as to whether the removal of a police officer was harsh, unjust or unreasonable.
In relation to the alleged deficiency set out in sub-paragraph [38(1)], the Statement of Reasons adequately sets out at pp 32 - 34 why the respondent found the Allegations against the applicant to be sustained. It is a matter for me to determine independently, based on the material before the Commission, whether the Allegations are sustained.
In relation to the alleged deficiency set out in sub-paragraph [38(2)], the respondent was required to determine whether he was satisfied that the Allegations against the applicant were made out. The respondent sets out the background to Allegations 3 and 4 at pp 9-18 of the Statement of Reasons, he then sets out the applicant's submissions in respect of Allegations 3 and 4 at pp 19-22. The respondent considered the issues of substance raised by the applicant in the Applicant's Response to the Show Cause Notice and set these out in the Statement of Reasons. The Statement of Reasons adequately sets out that the respondent did not accept the applicant's submission that there were "sinister reasons" for a flawed investigation.
In relation to the alleged deficiency set out in sub-paragraph [38(3)], the Magistrate did not "declare" Ms Plumridge to be an "inherently weak" and "inherently unreliable" witness. The Magistrate's observations about the evidence were made in the context of the criminal proceedings that had to be proven beyond reasonable doubt. The Magistrate clarified his position with respect to the truthfulness of Ms Plumridge (Exh R5, Tab 26, transcript 10/06/15, pages 72:03-24). The Magistrate made it clear that he was not criticising Ms Plumridge and that he made no finding about her truthfulness. The respondent was dealing with allegations: that the applicant engaged in behaviour that caused Ms Plumridge to fear for her safety (Allegation 3); and that the applicant engaged in specific contact with Ms Plumridge (Allegation 4) of which he needed to be satisfied to the civil standard, the balance of probabilities. I am not persuaded that the respondent failed to consider the Magistrate's findings in determining that Ms Plumridge "provided a consistent version of events" so as to call into question the reasons provided in the Statement of Reasons as the basis for the removal action taken by the respondent: Lawrance at [281].
In relation to the alleged deficiency set out in sub-paragraph [38(4)], it is clear from the Statement of Reasons at pp 29 - 30, and 34 that the respondent in coming to his decision, read and considered the character references and documents pertaining to awards and good police work submitted by the applicant.
In relation to the alleged deficiency set out in sub-paragraphs [38(5)] and [38(8)]:
1. there is nothing in the Statement of Reasons to support a conclusion that the respondent used the applicant's prior history of complaints to determine the sustained findings. However, the applicant's disciplinary history was relevant in determining what action the respondent determined to take. In particular because: the applicant was served with two orders of reviewable action pursuant to s.173 of the Police Act (Commissioner's Tender Bundle, Exhibit R5, Tabs 1 and 4), a Commissioner's Warning Notice (Exhibit R5, Tab 3) and two Commander's Warning Notices (Exhibit R5, Tabs 5 and 6); a common theme running through the above disciplinary matters was the applicant's consumption of alcohol and his interactions with fellow police officers and members of the public when under the influence of alcohol; the Commander's Warning Notice dated 5 March 2010 implored the Applicant to take "strong heed" of the warning; the applicant was warned that any further inappropriate conduct, particularly involving alcohol, may entail his removal (Exhibit R5, Tab 5, page 1391); and the applicant was warned a second time that further disciplinary matters may result in action under s 173 or s 181D of the Police Act (Exhibit R5, Tab 6, page 1394);
2. the applicant asserts that the respondent "did not consistently or properly adhere to findings made in investigators' reports and that in making his decision regarding the Removal Order, the respondent should have taken into account the Departmental Investigation Reports and Commander's Certifications, in particular the Departmental Investigation Report and Commander's Certification for Investigation P1403516 prepared by Inspector Kirsty Heyward dated 12 August 2016 and the Investigator's Report for Investigation P1404677 prepared by Detective Sergeant Greg Piper and reviewed by Detective Inspector Glen Browne dated 26 April 2016 ("Sergeant Piper's Report"). The reports of Inspector Heyward and Sergeant Piper and the review by Detective Inspector Browne were not placed before the respondent for consideration in determining whether to make the Removal Order, other than as Sergeant Piper's Report being included in the Applicant's Response to the Show Cause Notice. Nonetheless, the respondent had before him all the relevant source documents from the Departmental Investigations and formed his own views on the relevant Allegations as he is required to do. It is pertinent that Issues 1 and 2 of Investigation P1403516 are different from Allegations 3 and 4, and that Issues 1 and 2 of Investigation P1404677 are different from Allegation 5, in particular because the relevant issues considered in the Investigations were criminal charges. I am not persuaded that the Statement of Reasons shows that the respondent failed to consider any relevant issue of substance in determining the Allegations, in particular Allegations 3, 4 and 5, so as to call into question the reasons provided in the Statement of Reasons as the basis for the removal action taken by the respondent: Lawrance at [281].
In relation to the alleged deficiencies set out in sub-paragraphs [38(6)] and [38(7)] the respondent did not "reject" the Applicant's medical reports. The Statement of Reasons (pp 31 and 33 -34) makes it clear that the respondent considered the medical evidence in coming to his decision. The respondent formed the view that the opinions expressed did not explain the applicant's behaviour. The respondent's explanation was sufficient enough for the applicant to understand why the decision was made: Baker at [98].
The respondent is not required to analyse and dissect each and every matter raised by an applicant in any submission forwarded in response to a Notice issued under s 181D(3)(a): Lawrance at [374]. The Statement of Reasons complies with the requirements of s 181D(4) of the Police Act.
It remains for me to consider whether the respondent's conclusions in the Statement of Reasons were unreasonable or unjust. I turn then to set out the balance of the applicant's case as to whether the Allegations are made out, and the other elements of the applicant's case, including his procedural fairness complaints, and consider the evidence and the respondent's case to determine whether the removal of the applicant from the NSW Police Force; was harsh, unjust or unreasonable: Tredinnick (No 2).
[2]
The applicant's case
The second matter for the Commission's consideration is the case presented by the applicant as to why his removal was harsh, unreasonable or unjust. The applicant has an onus to show why the Removal Order was harsh, unreasonable or unjust.
The starting point of the applicant's case is the deficiencies in the Statement of Reasons which he has alleged and which have been dealt with above. In setting out the alleged deficiencies in the Statement of Reasons, the applicant dealt with some aspects of the Allegations and the Commissioner's findings in respect of these. It necessary to consider the applicant's submissions and evidence in respect of the substantiated Allegations beyond those which arise from the Statement of Reasons, which might go to establishing that the removal was harsh, unreasonable or unjust, such that the onus of addressing that case will then shift to the respondent.
I will then consider the applicant's submissions about the respondent's alleged failure to comply with s 181D of the Police Act, and the applicant's submissions in respect of the respondent's alleged procedural fairness failures, some of which have been dealt with above in relation to the alleged deficiencies in the Statement of Reasons.
[3]
Allegations 1 and 2
The applicant admits that he acted in breach of the Code of Conduct in respect of Allegations 1 and 2 but says in his oral submissions:
… [A]llegations 1 and 2, you will see in my response that I have admitted fault. So, where the Commissioner of Police indicates that I haven't shown any remorse, or I haven't done this, I have. But … it happened in the fashion as I remember it, and … I was under the influence of alcohol, and so were those two other people, so, it would be a different story if one of them was perhaps sober. But you do have a sober witness in that case, and it's … Ms Sarah Veilande ... , and the evidence that she gives supported my version of events more so than Lisa Pearson.
The applicant's statements of 14 May 2018 and 29 August 2018 do not deal with Allegations 1 and 2. The applicant sets out his response to Allegation 1 at pp 19-21 of the Applicant's Response to the Show Cause Notice and his response to Allegation 2 at pp 22-26 of the Applicant's Response to the Show Cause Notice.
The applicant relies on the statement of Sarah Veilande made to Inspector David Harvey on 10 September 2014 which is contained in the material served on Mr Bobin in respect of the Departmental Investigation P1403516. The applicant did not file and serve an affidavit or further statement of Ms Veilande in these proceedings and consequently Ms Veilande was not a witness in these proceedings.
The applicant attacks the credibility of Senior Constable Pearson and Mr Tudor in the Applicant's Response and in these proceedings, but did not cross-examine Senior Constable Pearson or Mr Tudor.
When cross-examined about his conduct on 25 July 2014 and whether the medical evidence that he tendered in this hearing explained his conduct the applicant responded:
No, no, that's not - the drinking, me drinking to excess and everything is part of the PTS but, yeah, that's all it is there.
In summary, the applicant submits that his conduct on 25 July 2014 was a consequence of being affected by alcohol, and that his use of alcohol was as a consequence of his PTSD and accordingly, while he is sorry for his conduct, he should not be accountable for his conduct.
[4]
Allegations 3 and 4
The applicant says (in his oral submissions):
Now, allegations 3 and 4, as I say, I was charged with that and went to court - not guilty. I didn't even have to give evidence in relation to the matter. As I say, certain allegations were dismissed on the prima facie level, and then the rest of the matters were dismissed on Prasad.
The applicant relies on the fact that the criminal charges of assault and intimidation were not made out and that his appeal to the District Court against the ADVO was successful and says that the evidence, in particular that of Ms Plumridge, does not sustain the Allegations. The applicant says in his statement of 14 May 2018 at paragraph [19] that "it was established that my girlfriend lied under oath", and at paragraph [40] he says:
my legal team proved to the court that ex-girlfriend had lied about the allegations and the Court determined that as a witness, my ex-girlfriend was "inherently unreliable" and "inherently weak". The case against me was a shambles and it was dismissed without the need for me to give evidence.
At paragraph [29] of the applicant's statement of 14 May 2018 the applicant says:
On 26 July 2014, I was physically assaulted by my ex-girlfriend. I did not report her actions for a number of reasons. I submitted my victim impact statement as an annexure in my response to the 181D Notice.
The applicant does not provide further details of the interaction between himself and Ms Plumridge on the night of 26 July 2014 in his statement of 14 May 2018 or his statement of 29 August 2018.
The applicant's victim impact statement states:
9. After we went inside,
I said, "Do you want a cuppa?"
She yelled, "No, I told you I'm going to bed. Fuck you don't listen."
She went to the bedroom and I just stood in the kitchen dumb founded.
After a few minutes, I walked to the bedroom and stood at the door, she was already in bed.
I said, "Jem why are you so angry at me? This has been going on for ages and I am a bit sick of it."
She said, "Just fuck off, I'm tired."
I said, "I've held back on this for a couple of weeks now and I've just got to get this out. How many weeks are you actually pregnant and is it really mine?"
After I said this to her she sat up and yelled at the top of her voice saying,
"What? How dare you say that. What is your problem? You're so fucken paranoid it's not funny. Jesus Christ."
I said, "Things don't add up Jem. I caught you laughing and hugging your ex at the hotel that night. What is that?"
She said, "Bullshit, I told you I don't have feelings for him."
I said, "Well your actions don't support that. You have been over to his house when you visit Kirsty. I'm not stupid you know, I remember all these things."
She said, "Get fucked that's completely different."
I said, "How is it?"
She said, "Jesus Christ. Fuck you. I would never cheat on you. How can you say that?"
I said, "Look at how you have been treating me lately. Ever since your parents disowned you I've done nothing but support you and all I get is attitude."
She said, "Yeah it's all about you again isn't it."
I said, "Stop saying it's about me, this is all about you and our relationship. If you were showing love and affection towards me and not being a bitch then I would have no reason to be paranoid."
She said, "Stop it, stop talking to me like that. I can't believe you are saying all this right now."
I said, "You have issues Jem, you have changed a lot since your parents abandoned you, all you have done is take it out on me."
She said, "Whatever."
I said, "C'mon then, answer me am I the father or what? You've cheated on me that you? You keep changing the weeks and some of them don't match when we did it I can count on one fucking in hand how many times we've done it in the last 2 months."
She got up off the bed and,
She said, "I'm leaving, I'm not having you talk to me like this, how dare you."
10. Jemima PLUMRIDGE got out of bed, put on a top and started walking towards me at the door. I turned around and started to walk up the hallway. Jemima PLUMRIDGE was right behind me. When I was at the doorway, just before entering the lounge room, Jemima PLUMRIDGE assaulted me by striking me to the back of my head just below my right ear, it felt like a punch, but I can't be sure because the strike was from behind. I entered the lounge room and moved to my left towards the lounge and as I turned my head to the right, Jemima PLUMRIDGE assaulted me again by hitting me with an open hand to the right side of my face. It was more like a push to my face as she walked past me.
I turned to my left foot both my hands on top of the lounge to keep my balance. I turned around and,
I said, "You cunt of a thing, what the hell is wrong with you?"
She yelled, "What did you call me? Fuck you, you're the cunt! How dare you speak to me like that!"
11. I just stood in the same spot leaning against the lounge to collect my thoughts about what she just did I was stunned. I then sent to (two) text messages to my sister Catherine BOBIN informing her that Jemima PLUMRIDGE had just assaulted me.
…
13. … I heard Jemima PLUMRIDGE come back inside the house. I would estimate she was gone for anywhere between 10-20 minutes. When I entered the lounge room, she was sitting on the lounge and TV was on.
14. I walked around and stood between her and the TV and,
I said, "Why the fuck did you hit me when all I asked was what is going on and if it's my baby?"
She said, "I can't believe you think I have cheated on you, we are done, just leave me then."
I said, "I have every right to ask you when I believe there's something going on. And by the way, don't ever hit me like that again. Otherwise it would be the last thing you do because of what the report you for it! You got that?"
She said, "Fuck you."
I said, "Well guess what Jem, I got tested and they told me I'm sterile. Even a retard like you can work that one. So why don't you just admit that you've cheated on me with your ex. It's not mine is it?"
Jemima PLUMRIDGE started to cry and began to yell out of control.
She said, "Oh my God. That's bull shit. I don't care what you say. Get a paternity test, I don't care."
I said, "How can you be pregnant to me if I'm sterile. Just admit you've been cheating and I'll leave, just say the truth."
A weird smile came over her face and,
she said, "Fuck you then. Fine, it's not our baby! You have no idea what I've been doing. We are over."
I said, "What?"
There was no response, she just continued to cry.
After a short time, she got up from the lounge and stormed off down the hallway. I sat down on the lounge with my head in. After a few minutes I got up, made myself a cuppa and went outside to have a few cigarettes.
15. After approximately 30 minutes, I went to the bedroom and she was in bed. I got into my side of the bed and,
I said, "Look I'm not happy about all this arguing, will sort it all out in the morning. We shouldn't be going to sleep being cranky with each other like this. I'm sorry for saying you cheated and for yelling at you."
I then moved over and hugged her. After a few seconds she yelled out,
"Get your hands off me, just fuck off!"
I said, "OK."
I rolled over to my side of the bed. After a few more seconds she yelled out,
"Fuck off, get out, fuck off!"
I said, "I'll go sleep the lounge."
16. Before I left the bedroom I took my phone off the charger and took it with me to the lounge room. I looked at my phone and noticed my sister, Catherine BOBIN, had sent me a text. I then sent Catherine BOBIN three text messages before I went to sleep on the lounge. I informed her again about the assault by Jemima PLUMRIDGE.
The text message exchange between the applicant and his sister, Catherine Bobin, on the morning of 26 July 2014 as set out in the annexure to the applicant's victim impact statement included the following:
12.13am
Applicant: Jem has just hit me and punched me. And taken off in her car??
Applicant: All I did was ask what's going on??
Ms Bobin: Where are u?
1.53am
Applicant I'm good xxx
Applicant Doesn't excuse the fact that she belterd me tho. I don't know what to do
Applicant She's having a go at me saying that's it not hers and she's tricked me?? I don't get it??
Other than alleging that Ms Plumridge assaulted him as set out above, the applicant does not give an account of how Ms Plumridge obtained the bruise on her arm.
The applicant asserts that the fact that the respondent failed to call a number of witnesses; including Ms Plumridge, means that Allegations 3 and 4 must fail.
The applicant says that the report of Inspector Heyward should have been placed before the respondent because the applicant says that Inspector Heyward was not satisfied on the balance of probabilities that these Allegations were sustained.
[5]
Allegation 5
The applicant denies Allegation 5 and refers to Sergeant Piper's Report, which was reviewed by Detective Inspector Browne, in relation to the two issues investigated by Sergeant Piper: Issue 1 being "influencing witness (evidence based criminal)" which is not relevant to the Allegations; and Issue 2 being: "Perjury (evidence based criminal)" which is related to Allegation 5.
The applicant says that Sergeant Piper made a number of findings which were accepted by Detective Inspector Browne including the following at p 6:
The veracity or otherwise of any statement/s made by Sergeant Bobin did not seem contentious at the time, rather, taken into general context with his evidence overall.
Furthermore and pertinently, the Crown Prosecutor did not present any material to the Court to enable further examination of any statement/s made.
…
In respect to wilfully false statements per Section 327 Crimes Act any statement that forms part of a charge for perjury must be made deliberately and intentionally; an honest mistake, inadvertence, carelessness or a misunderstanding leading to a statement which is objectively untrue is not enough.
It was difficult at law to determine beyond a reasonable doubt that Sergeant Bobin's statement was indeed made knowing it to be false or untrue and that was a critical issue open to interpretation. The fact there was no further cross-examination of the statement or at least clarification of the issue relating to his conduct rendered it as somewhat ambiguous in nature.
The applicant says that Detective Inspector Browne formed a view that Issue 2 cannot be proven on the criminal or civil standards and the applicant quotes the Detective Inspector at p 9 of his review of Sergeant Piper's Report commencing with what the applicant said from the transcript being:
"After I received those four complaints about my work, and they were the first time I ever received complaints in, at that time 18 years of being a prosecutor so yes."
"I've received no complaints in 18 years about my work and then a few months later four in a row (that do actually relate to his work performance)."
The Detective Inspector then continues:
Read in context, a clear inference can be drawn that Sergeant Bobin is referring in his evidence to complaints made about his work performance. At that time, Sergeant Bobin had been the subject of a number of previous "complaints", however, they all related to his off duty behaviour. As a result, it is my view that insufficient evidence exists to pursue issue 2 as a Departmental Issue.
The applicant's submissions in respect of Allegation 5 concentrate on the findings of Sergeant Piper's Report and Detective Inspector Browne's review and the applicant says that the findings of Sergeant Piper and Detective Inspector Browne are that Allegation 5 is not sustained on the balance of probabilities, and essentially that should have been the end of the matter.
The applicant attacks the procedural fairness of Superintendent Kerry Lewis of the Professional Standards Command Complaints Management Team rejecting Sergeant Piper's Report, and sending Allegation 5 to the Police Prosecutions Command to be investigated as a departmental investigation. This investigation was allocated to Inspector Heyward who made very different findings than those of Sergeant Piper.
The applicant says that he was not given the reports from Superintendent Lewis and Inspector Heyward and the respondent was also not given the reports from Superintendent Lewis or Inspector Heyward. The respondent, as I have stated above at paragraph [45(2)], had before him the relevant source documents, being the transcript of 9 June 2015 and the C@TS.I Officer Complaint History for the applicant, and it was from this material that the respondent made his decision.
[6]
Allegation 6
The applicant asserts that he was the subject of an assault at the George Hotel and he explains his conduct in respect of Allegation 6 on the basis that he was experiencing a PTSD flashback as a result of the alleged assault. The applicant submits, in his oral submissions, in respect of Allegation 6:
… there was nothing that I did, I wasn't behaving aggressively, I wasn't doing anything of that nature but we have a man come over, have a go at me, in my face. I get crash tackled, I'm assaulted, that's it. Now I didn't know any of that until six months later, until Mr Dickson served me that tape and that footage, everything, in hospital. Because I was addressing other things thinking that, because I drank so much, that I blacked out and had my own, which I've learned which are called not nightmares, they're night terrors and they're flashbacks. That's all my memory is and I went to hospital seeking help for the PTS and for the drinking because I didn't want that happening again and then six months later, I found out I was assaulted. If I had have known that I would have made a complaint the next day.
The applicant's evidentiary case in respect of Allegation 6 focuses on the CCTV footage from the George Hotel and the alleged assault of him by Senior Constable Michael Golding. The applicant's cross-examination of Senior Constable Joshua White and Sergeant Michael White, largely focused on the incidents inside the George Hotel, in particular the behaviour of Senior Constable Michael Golding and whether he "crash tackled" the applicant and the differences between the witnesses' memories and evidence and what could be seen on the CCTV.
The applicant also put a number of questions to Superintendent Dickson about the CCTV footage.
In his statement of 14 May 2018 the applicant deals with the incident at the George Hotel on the night of 6 March 2016 as follows:
50. Whilst I was out with a friend and other work colleagues on 6 March 2016, I experienced post traumatic stress disorder flashbacks and hallucinations after being physically assaulted, (a king hit crash tackle), at a licensed premises in Bathurst. This physical assault committed on me was recorded on CCTV footage. The evidence is very clear.
…
52. In the morning my head was bruised and sore and I did not have an independent recollection of the assault upon me. I was informed by my friend, (who was present), that all of a sudden my personality and demeanour changed and I was unresponsive and in a trance. However, he did not inform me about the assault being committed upon me.
In his statement of 29 August 2018 the applicant states at paragraph [64]:
The findings made by the investigator were for "Unreasonable Conduct (not otherwise specified)" towards Sergeant Michael White, Senior Constable Joshua White and the public in general. These findings were obviously based upon my actions outside the hotel "after" I was assaulted by Senior Constable Michael Golding.
The applicant does not deal with his behaviour outside the hotel in the statement of 29 August 2019, other than to state at paragraph [69]:
I believe that I have fully addressed this complaint in my Response to the Section 181D Notice, (see Tab R, pages 1034 to 1042 of the Commissioner's Tender Bundle Volume 3). …
At paragraph [369] of the Applicant's Response to the Show Cause Notice (at p 1034 of the Commissioner's Tender Bundle Volume 3) the applicant says:
I do not independently recall most of what happened on this evening due to receiving a blow to my head on the ground after being assaulted by Constable Michael Golding, which caused me to hallucinate and suffer effects of my work-related post traumatic stress disorder. I was not in control of my own actions, therefore I acted with no intent.
The applicant relies on a statement made by Sergeant Anthony Borland made 15 May 2016. Sergeant Borland states the following (p 2006 of the Commissioner's tender bundle):
8. Whilst at the table I was talking to others when I did notice Andrew Bobin talking to Lorna McGowan, another work colleague who was at the function and seated at the other end of the table from me. The reason I noticed this was because I thought that the conversation between Andrew and her was quite emotional as they actually looked sad for a while, or that was what I thought, it didn't look as though they were jovial like the rest of us at the table.
9. I think I may have got up to speak to them for a moment, to see if they were all right but I can't remember whether I actually did or not.
10. A short time later Michael Golding who is known to me had words with Andrew Bobin. I can't say for certain what the conversation was about, but I could tell the conversation was one that didn't appear jovial.
11. Sometime around this point I decided it was time to leave the function and go home. I walked to Andrew Bobin, placed my arm around him and told him I was leaving and he was coming to. I told him the pub was closing and that if he was staying at my place he would have to come home with me now.
12. Andrew and I walked out of the pub into George Street, Bathurst. Once outside Andrew became upset. I could see that he wasn't his usual self that he was very emotional and upset to the point I thought he was about to start crying. I asked if he was okay and what was going on, but he just appeared very blank and unresponsive.
…
17. I tried to get Andrew to come with me to the taxi rank, but he ran off from me again, back towards the hotel we had just come from. By this time as I followed I could see that other people were coming outside the hotel having left it, including staff. I could also see Michael White, another person who was at the function on the footpath outside the hotel. I could see that as Andrew approached the hotel, Michael was positioning himself to intercept Andrew.
18. As Andrew arrived on the footpath outside the hotel, I was only just behind him and Michael White had gone to ground Andrew in what I would describe as an attempt to block him from trying to get back inside the hotel. I then sudden saw both Michael and Andrew fall very quickly to the footpath. It appeared to me as though they had lost their footings and fallen heavily down. The whole scenario as I'm describing it would have only taken a minute or so.
19. After having fallen Michael quickly sat up on Andrew and kept pushing him down, it was clear he wanted Andrew to stop as well. This appeared to work and Andrew stopped. Michael got off him and both Andrew and Michael stood up. Andrew was calm again, it was almost like he had woken from some sort of trance.
20. I then thanked Michael and told him I would get Andrew into bed. I then walked Andrew to the taxi rank one block away across the street, opposite the Bathurst courthouse. We got in a taxi and went straight into my house and Andrew went straight to bed in my spare bedroom. I was still very worried about him, and actually waited up in of 20 minutes or so until I knew he was asleep.
…
22. [The next morning] Andrew had almost no memory of what had happened that night.
The applicant's case in respect of Allegation 6 is summarised in his written submissions:
… I was the victim of a criminal assault by Jemima Plumridge back on 26 July 2014, and I was the victim of another criminal assault by Michael Golding on 6 March 2016.
Allegation 6 must fail based on the clear evidence that I was assaulted inside the hotel and this assault triggered my PTS flashback and unusual behaviour. I was therefore not in control of my actions on this night after I was assaulted, and the only clear memory I have, is the memory of my PTS flashback. This PTS flashback is explained and supported by two independent medical experts (Psychiatrists) and their evidence has been tendered in the Applicant's case.
[7]
The respondent failed to comply with the requirements under section 181D of the Police Act
The applicant says that the respondent failed to comply with the requirements under section 181D of the Police Act, namely:
1. the respondent failed to serve all source documents, such as investigators' reports, and the applicant's service summary on the applicant prior to the determination of the Removal Order;
2. in making the Removal Order the respondent relied on documents which were not previously served in the Show Cause Notice; nor were they served on the applicant upon request prior to 6 March 2018 and the applicant could not respond to these documents until after they were filed in these proceedings on 26 June 2018;
3. the findings were already determined prior to the applicant submitting the Applicant's Response to the Show Cause Notice. The respondent did not take into consideration the written submissions by the applicant in order to properly review all of the evidence before making the order;
The applicant also asserts in his statement of 29 August 2018 at paragraph [119] and in his written and oral submissions that the respondent was not the decision-maker or the author of the Removal Order on 1 March 2018. However, on the final day of the hearing the applicant clarified that his submission is not that the Removal Order is ineffective because it was not made by the person with the power to make the Order but rather, that the respondent did not make an independent assessment or decision in relation to all of the documents relied upon to remove the applicant from the Police Force.
[8]
The respondent denied the applicant procedural fairness and natural justice
The applicant asserts that he was denied procedural fairness and natural justice. The applicant sets out the alleged failures in his written submissions. These include the deficiencies the applicant asserts in respect of the Statement of Reasons referred to in paragraph [38] above and matters he asserts in defence of the Allegations as well as the following additional matters (extracted from his written submissions):
6. Numerous mistakes, elements of bias, misconduct and non-disclosure
have been identified in relation to the Affidavit submitted by Ian Dickson.
…
7. There are elements of imputed, and/or, apparent bias and conflicts of interest in this case by the Orange Command and the Prosecutions Command, in particular by Ian Dickson.
…
10. The Commissioner did not negate or refute the Applicant's expert medical evidence by obtaining or providing his own independent expert medical evidence.
…
11. The Commissioner of Police … did not take into account relevant findings and evidence in the Police investigation, the Local Court transcripts and certain comments made by the Magistrate.
…
12. The Commissioner of Police … ignored the inconsistencies in the Police evidence, the mistakes, bias and false evidence on oath made by serving Officers during the investigation and Local Court hearing.
…
13. The Commissioner of Police failed to view and determine the evidence available to him on the CCTV footage. The Commissioner of Police also failed to apply this CCTV evidence to test the veracity and credibility of the statements provided by certain witnesses.
…
15. There are still outstanding documents which have not been served on the Applicant by the Commissioner of Police.
[9]
The applicant's interests
The applicant submits the matters which weigh in his favour when assessing the factors which impact upon his interest pursuant to s 181F(3)(a) of the Police Act include:
1. his PTSD;
2. his personal and economic circumstances including his support of his four year old child and that his parents live with him;
3. his regional location;
4. his length of tenure, his awards and accolades, and the fact that he "went above and beyond" in arresting people when off duty and not in uniform;
5. the fact that he was suspended for a lengthy period before the findings of misconduct were made;
6. the publicity to which he has been exposed;
7. the stress to his family;
8. and the other matters set out at paragraph [35] which the applicant submitted to the respondent in the Applicant's Response to the Show Cause Notice.
The applicant says the Removal Order was also harsh when assessed against the fact that other officers with criminal records have not been removed from the NSW Police Force.
[10]
The respondent's case
The third matter required by the Police Act to be considered by the Commission is the case presented by the respondent in answer to the applicant's case.
The respondent submits that the Application should be dismissed. The respondent says the applicant's claims that the respondent did not comply with s.181D of the Police Act and otherwise failed to afford the applicant procedural fairness and/or natural justice cannot be sustained and, in any event, do not demonstrate that the decision to remove the applicant was harsh, unreasonable or unjust.
[11]
Allegations 1 and 2
The respondent says that there is no dispute in relation to Allegations 1 and 2 and the Allegations are sustained.
[12]
Allegations 3 and 4
The respondent submits that the applicant admits drinking on the night and admits calling Ms Plumridge a "cunt" and a "retard" and starting an argument.
The respondent submits that the applicant accepted under cross-examination that he "lost control and took it out" on Ms Plumridge and yelled, ranted and lost it that evening/early morning. The respondent says that is an admission or concession on the applicant's part that he engaged in some conduct towards Ms Plumridge on that occasion that could justify Ms Plumridge's evidence that "she did not feel safe" (Text Messages, Commissioner's Tender Bundle, Tab 16, page 1471). The respondent submits that the text messages from Ms Plumridge also provide an evidentiary basis for the Respondent's findings for the balance of Allegation 3.
The respondent also relies on the email from the applicant to Ms Plumridge sent in August 2014 which included the following:
I am going to start by saying I am so sorry for losing control and taking it out on you over a week ago. I am totally devastated and I regret it all. You didn't deserve any of it.
I never yell, rant or lose it at people when I'm sober and in control. When someone isn't in control and not thinking straight, they do stupid things and don't mean what they say... When a person gets really drunk they get ultra-paranoid, defensive, and don't think straight. And it also doesn't help when I suffer from PTSD. I've been meaning to tell you about my PTSD, but I have put off telling you about it because I want to be there for you without making it sound like it's about me. Controlling my PTSD means not writing myself off.
The respondent responds to the applicant's submissions in respect of Allegation 3 that, if the respondent had been provided with Inspector Heyward's report and findings, then the Commissioner would have come to a different finding as follows:
... The answer to that is that actually that's not right, because what Inspector Heyward found was that there was a breach of the code of conduct sustained, and that's exactly what the Commissioner of Police found in respect of allegation 3.
… [At] tab A of the tender bundle, … [at] page 21… Inspector Heyward … [states]:
"However, in regards to Sergeant Bobin's behaviour, I am satisfied that he acted in a way which is in breach of the New South Wales Police Code of Conduct and Ethics."
...
Then … at page 22, this is the finding:
"Allegation 3. I find on the balance of probabilities, although having regard to the seriousness of the allegation, that on 26 July 2014 you engaged in behaviour towards Ms Plumridge that caused her to fear for her safety, including calling her a cunt and a retard, and saying words to the effect of, 'It'll be the last thing you'll ever do, and just remember that I fucking own you now'."
…
"In the circumstances, I have concluded that your conduct is contrary to the Police Act, Police Regulations in force at the time, and the New South Wales Police Force Code of Conduct and Ethics.
… [P]oint 1 of the New South Wales Police Force Code of Conduct and Ethics relevantly states:
"An employee of the New South Wales Police Force must behave honestly, in a way that upholds the values and good reputation of the New South Wales Police Force, whether on or off duty,"
.... And then … if we go back to what Inspector Heyward has done at page 23 of tab A, the last bullet point:
"In doing so" -
that is, weighing up all that evidence -
"Sergeant Bobin has not upheld the values and good reputation of the New South Wales Police Force."
So the submissions that Mr Bobin made are answered this way. If in fact the Commissioner of Police had this report before him, and he didn't, and he was to apply what the investigator had done, then the same result would follow.
So, on that basis, Mr Bobin must concede allegation 3 is made out as well.
In respect of Allegation 4, the respondent submits that the applicant has not established that the respondent's findings are wrong. The respondent says that the applicant's assertions in his statement of 14 May 2018, at paragraph [10] that Ms Plumridge was an "untruthful person" who was not averse to "making up false allegations" when it suited her and that it had been proved that Ms Plumridge had "lied about the allegations" (at [40]) were admitted as submissions only and the applicant adduced no evidence in his case that can justifiably be said to impugn Ms Plumridge's honesty.. The applicant's attempts to establish that Ms Plumridge was untruthful did not stand scrutiny under cross-examination (20/11/18, Tr 44:35-46:30). In those circumstances, the applicant has not discharged his onus or burden in demonstrating that Allegation 4 could not be sustained by the respondent and the evidence of Ms Plumridge, including in her ERISP (Exhibit R5, Tab 13 at Q80-81 (pages 1421-1423), provides the factual basis upon which the respondent could be satisfied that the Allegation was sustained to the civil standard.
The respondent submits that the fact that Ms Plumridge did not give evidence in these proceedings but the applicant was cross-examined on the interactions between her and the applicant and the matters in her statement should not result in the Commission preferring the applicant's evidence. The Commission does not have to accept the applicant's denials, particularly in circumstances where the applicant bears the onus to prove or disprove what was relied upon by the Commissioner of Police.
[13]
Allegation 5
Counsel for the respondent responded to the applicant's submissions in respect of Allegation 5 as follows:
… the short response … is that in fact the evidence was misleading. Prior to that occasion, on at least one occasion, put aside the rest of the work history, on at least one occasion Mr Bobin's work as a prosecutor was not of a standard that was expected. That one occasion includes the time that he got drunk and didn't turn up to work. Mr Bobin knew that.
And it's explained by the Commissioner of Police in his reasons that he was of the view, given Mr Bobin would have been aware of his previous work matters, and the Commissioner of Police had the work history before him, that Mr Bobin's response, as we indicated, was misleading, and he knew that.
Now, the Commissioner of Police didn't find that he'd committed perjury, but he didn't need to. And it wasn't the allegation that Mr Bobin was facing, and which he had to address.
[14]
Allegation 6
The respondent says that Allegation 6 is not about an allegation of assault against the applicant or about whether the applicant was assaulted. The allegation is about the applicant's conduct on that particular evening and the respondent's disappointment that the applicant put himself in that position that evening by consuming alcohol off duty. The respondent says that none of the medical evidence in relation to the applicant's PTSD explains that because of his PTSD he was drinking alcohol, or that if a PTSD sufferer drank alcohol, then he or she would engage in this particular conduct. Nor does the medical evidence establish that if the applicant returned to the workplace he would not resort to "self-medicating". The respondent's counsel said in oral submissions:
…[T]hat's relevant for two matters. Firstly, none of the medical evidence that's before you actually opines or demonstrates that any of this conduct - when I say any of this conduct, I mean the conduct the subject of the allegations to sustain the removal order - or any of the previous conduct which sustained the 173 reviewable action, the commander's warnings, and the Commissioner's warning, … none of the evidence demonstrates that that conduct was explained by the PTS.
[S]econd[ly] … we have no medical evidence at all that, to the extent that Mr Bobin says he's now coping, or he has, in effect, dealt with the PTS, we've got no medical evidence to say that that's true or not. Mr Bobin constantly in submissions is referring to the fact that the PTS was caused by his working environment. Well, the Commission would want to understand and know whether or not, if Mr Bobin was back into the workforce, whether those issues would arise again and whether he'd resort on his own basis to his own self-medication.
.. [T]he Commission recently dealt with this type of issue in the matter of Lockley, which is [2019] NSWIRComm 1016, around paragraphs 107 to 117, …. that's the type of evidence one would need before the Commission for it to have any impact at all ...
The respondent says that it is not the case that in 2016, when the circumstances of Allegation 6 arose, that Mr Bobin was not aware of all of these matters in relation to his PTSD.
During cross examination of the applicant about the incident at the George Hotel, the following exchange occurred between the respondent's counsel and the applicant (transcript 20/11/2018 p 48 - 52):
Q. It's also alleged that you engaged in a physical altercation with Sergeant Michael White?
A. That's what it says.
Q. Do you agree that you did that?
A. I can't.
Q. You can't agree?
A. As I say, I don't - as I said in my response, and that's what I need to be honest about, in my response and everything I've said that I don't recall any of my conduct or happenings or goings on that happened outside the hotel. I don't and I've admitted that in my response and I've said - and I apologised.
Q. Just so if I understand your answer, you're saying you can't say one way or the other whether you did that because you don't have any recollection?
A. That's correct. I can't agree or deny.
Q. Likewise with kicking Senior Constable Joshua White in the groin?
A. Correct.
Q. What about repeatedly attempting to re-enter the George Hotel?
A. I don't remember that either. I can't comment, agree or disagree.
Q. So in effect whether or not you did engage in any of the conduct in those last three bullet points, do you accept this, it depends upon whether or not the
Commissioner accepted what Sergeant Michael White said and Senior Constable Joshua White said and also any observations of any other witnesses about you attempting to re-enter the George Hotel, do you accept that?
A. Sorry, are you saying that the Commissioner will look at that?
Q. No, I'm talking about the Commissioner of Police when he--
A. The Commissioner of Police.
Q. --established that you had engaged in this conduct?
A. Well, that's, as I say, he's - that's his opinion and he made that determination.
Q. What about the - you've now seen the footage of the George Hotel incident, correct?
A. I've viewed the footage quite a few times since it came to my attention.
Q. Some of the footage actually shows you trying to get back into the George Hotel, correct?
A. Well, I wouldn't go that far because you don't know what a person's intent was at the time, but I will agree that I am running around. I'm running around and actually just, yeah, running around, going off like a frog in a sock.
Q. Trying to get back into the hotel?
A. I can't say that because I had no intent of anything, so I don't remember.
Q. Do you accept, just in relation to this allegation 6, do you accept this. It again involved your conduct off-duty?
A. Alleged conduct off-duty, yeah.
Q. Okay, I'll use the word "alleged" to make you--
A. Yeah, I--
Q. Alleged conduct off-duty?
A. Yeah.
Q. Well, let's put it this way. Do you accept that you were drinking alcohol?
A. Correct, yes, I was prior to that.
Q. This is another instance of conduct involving fellow police officers?
A. It's another incidence, yes.
Q. Involving fellow police officers?
A. Yes.
Q. Do you accept that you became intoxicated that evening?
A. Yes, I did. I was under the influence of alcohol, yes.
Q. Do you accept that if you hadn't had gone out that evening that you wouldn't have found yourself in this position, that is, being intoxicated and in that circumstance again?
A. If I hadn't have gone out that evening I would've done something else, but you can say that with everything in everyone's lives, can't you? I mean, if I didn't attend court today, the matter would be heard in my absence. If I didn't do this--
Q. Would it?
A. It's just - you answer your own question really there.
Q. I asked you some questions before whether you would be submitting to this Commission that the Commissioner of Police's findings were unsound for some reason because - his findings in relation to the allegations, because this is not the type of conduct that you have engaged in or would ordinarily engage - sorry, it's out of character conduct for you. That is, it's not conduct you haven't engaged in in the past. You're not going to make that submission, are you?
A. No. The conduct on this evening was something that had never happened before.
Q. Well, you getting drunk and having altercations with - sorry, I withdraw that. You getting drunk and engaging in conduct, or what's been found to be by the Commissioner in this instance inappropriate conduct with other police officers, that's something that you've been found to have engaged in before?
A. Yes, but this circumstance is a completely different circumstance because, yeah, I never I guess actively engaged or intently engaged it. Yeah, that's--
Q. Well, if you've got no recollection of these events, how do you know that you didn't intend to re-enter the pub?
A. Well, that's a good question because, like I said, I have some memory of some parts of that night but I, as I say, I don't recall specifically being crash tackled and assaulted. I don't - and anything that happened after that, I have a recollection, I have a recollection, but--
Q. Sorry, you have a recollection of what?
A. I have a recollection but, and I've told my psychiatrist and my psychologist that, so put it this way, the recollection I had was nothing that the Commissioner says that I did. I had a PTS flashback, that's what I had, which didn't involve any memories of anything that's written there.
Q. You knew before July 2016 that you were diagnosed with PTS, correct? Or you had been diagnosed before July 2016?
A. Before July 2016?
Q. Yeah.
A. Well, the actual real first diagnosis--
Q. Sorry, March 2016?
A. Well, the proper, a proper diagnosis from a psychiatrist, was on 6 April 2016 by Dr Selwyn Smith psychiatrist. Back in 2009 I had discussions with my GP Dr Mackey and I said to him, you know, "These are things I'm experiencing and this is what I'm going through," and he said, "Well, look, they're all symptoms," in his opinion, that they're all symptoms of PTSD and depression and he said, "Yeah, you need to take some time off work," and I said, "No, I don't really want to do that," you know, and I think I've explained in I think that statement of 14 May it's a career killer and I didn't want to admit and I didn't want to know. "No, I'll keep battling through it. I won't accept that, no." So even though it was discussed, that's what Dr Mackey wrote down but the proper a hundred per cent diagnosis was firstly by, you know, an expert medical psychiatrist Dr Smith in April 2016.
Q. So let me just understand your evidence?
A. Sure.
Q. Your general practitioner in 2009 had given you his opinion that you suffered from PTS, right?
A. Yes.
Q. And you knew after that period of time or you knew by sort of August of 2014 that controlling it, controlling your PTS meant not writing yourself off, right?
A. Well, at the end of the day--
Q. Just do you understand the question?
A. Yeah, I'm just trying to answer it for you. So at the end of the day during that period of time, like you say, 2009 to 2014, yeah, it - even though I didn't want to accept - I didn't want to accept that I had those problems and I wanted to beat them myself, I just, you know, lived in denial a bit. I just didn't really want to accept it but, of course, at the end of the day the drinking sort of just, you know, you self-medicate with the drink. You do that to try and feel better and try to do that but, of course, it only exacerbates things, but you don't turn your mind to it at the time.
Q. You knew and you turned your mind to this in August 2014 that controlling what you say your PTSD meant not writing yourself off. You actually knew that and you knew you shouldn't do--
A. It's not, you know, it's not just what you know, Mr Darams. It's what you're also capable of doing and, you know, of course you know things and I also know - I also know it's wrong to go and break, you know, break into someone's house, but I don't go and do it, you know. The thing is I know what's right and wrong and I know what I should be doing and not be doing, but sometimes these things get, you know, they take a hold of you and you just, you know, you try your best.
Q. I'm going to actually ask the question one more time because I don't think you've given me an answer, but you knew no later than August 2014 that controlling your PTS meant that you shouldn't be going out and writing yourself off, correct?
A. Well, that's part of it and that's part of the explanation. I mean, I have - I had at the time, I had PTS and, you know, drinking is part of the symptoms and symptomology of it and I've learnt all this stuff in the last few years but that's part of it. So the thing is you drink to try and beat a problem and you only make it worse. I don't really know how much more to sort of explain it to you. Like, I know there's problems there but I never fully accepted the problems and, you know, I just made things worse and that's--
Counsel for the respondent put this question to the applicant (transcript 20/11 pp 60-61
Q. Your conduct towards Ms McGowan occurred before, what you say, crash-tackled, didn't it?
A. Well, alleged conduct against Ms McGowan, yes, but nothing aggressive or physical or challenging people to fights or walking up to people pointing fingers and being aggressive and challenging people to go outside. You don't see me do any of that until after I was crash-tackled and assaulted, and beyond that I don't know what happened.
Q. Can I suggest to you that another explanation for your conduct that evening was that after you were crash-tackled, being drunk, you were angry about being crash-tackled?
A. I don't remember. I don't even remember the crash-tackle still to this day.
Q. You wanted to get back at - get at Mr Golding who sort of crash-tackled you. That's another explanation, isn't it?
A. No, sir.
Q. Well, why do you say that? Why will you not accept that?
A. Because I don't remember. I don't have anything. I cannot agree or deny with that. I cannot and I thought I was clear in my response to the Commissioner about that.
Q. Are you simply saying you have no way of saying, agreeing or disagreeing with the proposition along the lines that your conduct can be explained, just as likely be explained by the fact that you were angry at Mr Golding and wanted to get back in the pub to get him?
A. No, because I've submitted expert medical evidence, not only to this Commission but also to the Commissioner of Police, to tell him that this is the reason. We have expert medical people who have explained what happened to me and why I was acting in the way I did, and the Commissioner of Police does not have any expert medical advice.
Q. When you refer to this expert medical evidence, you're just now referring to those particular paragraphs that you've taken the Commission to?
A. Dr Smith, Dr Robertson and Dr Wijesinghe.
Q. You say that that explains your conduct on 6 March?
A. After I was crash-tackled by Michael Golding, yes.
Q. That's what you rely upon?
A. Well, yes, I do rely upon it and that's what happened.
[15]
The respondent's response to the applicant's allegations that there was non-compliance with requirements of s 181D of the Police Act
The respondent says, in his written submissions, that the applicant's submission that the respondent did not comply with the requirements of s 181D of the Police Act cannot be sustained because:
13. Firstly, there is no general obligation under the Police Act for the Respondent to serve all "source documents, investigators reports etc" on a Police Officer (Hosemans v Commissioner of Police (No 3) [2005] NSWIRComm 161 at [152] - [162], not disturbed in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263). Under s.181E of the Police Act, the Respondent is to "make available" all of the other documents and other material on which the Respondent has relied in deciding that he, the Commissioner, does not have confidence in an applicant. In the circumstances of this case, that was discharged by the service of the relevant material with the Notice under s.181D(3)(a) (see 14.a below).
14. Secondly, the evidence demonstrates that the Respondent complied with s 181D. That is:
a. before issuing the Order the Respondent gave the Applicant the Notice.
b. the Applicant was given 21 days (plus an additional extended period on his request) within which to make any written submissions he wanted (s.181D(3)(b)). The Applicant did that by way of his Response;
c. the Respondent considered what the Applicant had written in his Response (s.181D(3)(c)) (including see Reasons page 32); and
d. the Reasons set out the Respondent's reasons for removal (s.1810(4)).
15. Thirdly, the "lynchpin" of any inquiry as to procedural fairness in a review is the content of the Reasons (Commissioner of Police v Reid-Frost (2010) 192 IR 363 at [44]; Baker at [99]). It is those reasons that need to be considered to assess whether there has been any "procedural failure" (Reid-Frost). The essence of the Reasons is to explain why the decision has been made (Baker at [98]). … [T]he Reasons are replete with references demonstrating that the Respondent has considered the Applicant's written submissions … [and] the Respondent has considered the evidence, bearing in mind that the Respondent is not required to "dissect each and every matter raised by an applicant in any submission" in answer to a notice under s.181O(3)(a) (Lawrance v Commissioner of Police (2010) 199 IR 139 at [274]; Baker at[98]).
16. Fourthly, the evidence of Ian Borland (Exhibit A7) … does not demonstrate that the Respondent was not the decision maker or did not carry out an independent assessment of the evidence ... Taken at its highest, the evidence is, at best, an "off the cuff' conversation between Mr Boland and the Respondent. It does not amount to an admission or concession of the kind that the Applicant seeks to advance in these proceedings. In the end, a consideration of the Reasons demonstrates the Respondent considered the evidence and made the decision under review.
17. Lastly, … there is simply no explanation how any such failings (which are not conceded in any event) render the Order harsh, unreasonable or unjust in the circumstances (Reid-Frost at [11(b)1 and [46]). The review under s.181E, being a merits based review, requires some explanation or justification as to why any procedural failings result in an order being harsh, unreasonable or unjust (Reid-Frost at [11], [18], [19], [46], Baker at [81]).
[16]
The respondent's response to the applicant's allegations that there was non-compliance with requirements of procedural fairness
The respondent responds to the applicant's submission that there are 16 alleged defects, being seven alleged defects beyond those considered in paragraphs [38] - [47] above which go to show that the applicant was denied procedural fairness, at paragraph [19] of his written submissions as follows:
f. .. paragraphs 6, 7 and 16, … none of them are relevant to the task that the Respondent was carrying out or the task of the Commission on review under s.181E.
…
h. … paragraph 10, for the reasons set out in subparagraph g above, and because the Respondent's only obligation in proceedings under s.181E is to answer the Applicant's case (Morris v Commissioner of Police [2016] NSWlRComm 1034 at [15]; on appeal Commissioner of Police v Morris [2017] NSWlRComm 1010), there was no need for the Respondent to obtain his own medical evidence. … [B]ecause the opinions expressed in the reports relied upon by the Applicant did not explain his conduct, there was nothing for the Respondent to refute or negate.
i. … paragraphs 11 and 12, … the Applicant … does not demonstrate what things he says constitute the various acts of "bias", "inconsistencies" etc that he says demonstrates that he did not engage in the conduct that the Respondent was satisfied he did.
j. … paragraph 13, there is no evidence that the Respondent failed to view the CCTV footage and therefore support that submission. The CCTV footage from the Biddy Walsh pub (Allegations 1 and 2 on 25 July 2014) and George Hotel (Allegation 6) formed part of the material relied upon by the Respondent in coming to his decision (Exhibit R6, page 1371). … [T]he Reasons demonstrate that the Respondent did view the CCTV footage (Exhibit R3, pages 4 and 27). ....
…
I. … paragraph 15, the Respondent does not accept that submission has any substance in fact.
[17]
The public interest
The respondent submits that the interests of the applicant do not outweigh the public interest in upholding the integrity of a disciplined police force, even in off-duty circumstances: Lawrance at [314]. Acceptance of employment with the NSW Police Force brings with it acceptance of the standards of discipline that apply to it and an acknowledgment of the standards of behaviour required of police officers.
The respondent says that the applicant has been given multiple opportunities to demonstrate that he can abide by those obligations, and has demonstrated that he cannot. Further, the applicant has demonstrated a lack of appreciation for the seriousness of his conduct or any contrition or remorse in the circumstances. That conduct, coupled with the lack of understanding and remorse, therefore undermines the public's confidence in the integrity of the NSW Police Force: Police Service Board v Morris (1985) 156 CLR 397 at 412.
The respondent submits that employment in the New South Wales Police Force is a privilege, not a right, and the evidence overwhelmingly demonstrates that whilst the applicant's career was long, it was not unchequered and he has had numerous chances and opportunities to correct his behaviour over that time. There has been reviewable action taken, and Commander's warnings given. The respondent points to the Commissioner's Warning in 2006 in circumstances of: alcohol, after hours, off duty conduct, engaging in abusive, offensive conduct with fellow colleagues and members of the public (pp 1379 - 1382 of the Commissioner's Confidence Documents):
On 21 September 2006, Kenneth Edward Moroney, Commissioner of Police, considered your conduct in accordance with section 181D(1) of the New South Wales Police Act, as to whether he had confidence in your suitability to continue as a police officer. He determined that he would not remove you from the New South Wales Police, but issue you with a written warning."
In the Statement of Reasons which accompanied the Commissioner's Warning Acting Commissioner Scipione relevantly set out the following:
"Your conduct during the Corowa and Albury incidents demonstrated consistent lack of regard for the Code of Conduct and Ethics. You demonstrated an apparent propensity to consume excessive quantities of alcohol which contributed to your arrogant and disrespectful behaviour towards members of the public and police on duty. However, I note that in your response you state, 'I have learnt my lesson and regret my mistakes'. I am also very pleased that you have, of your own volition, consulted a psychologist and modified your behaviour. I hope that the lifestyle changes to which you refer relate to a more sensible and moderate approach to alcohol consumption."
…
"I note that in your response you claim that you will never repeat the mistake that you are now under review. I hope you are genuine in this undertaking as the consequences for you if you repeat such behaviour will not be as favourable as today's outcome. Whilst you have been given the benefit of a warning notice on this occasion, I again draw your attention to the New South Wales Police Code of Conduct and Ethics and statement of professional conduct incumbent upon you."
…
"I want you to clearly understand that neither the Commissioner nor I will tolerate any future failures to comply with the required standards of a police officer. You should be aware that any future failures might result in further consideration under section 181D or section 173(2) of the Police Act."
Counsel for the respondent referred to the applicant's prior behaviour, his alcohol use, and his PTSD in submissions as follows:
… when I cross-examined Mr Bobin about all these matters, and whether or not - putting a proposition to him that, at the very latest, he knew by August 2014 that he was suffering from PTSD, he'd been diagnosed with it, and he knew what behaviour he had to modify because of that. And then what do you have? You have the circumstances of allegation 6, putting himself in that behaviour again, drinking excessive alcohol, engaging in offensive, inappropriate conduct towards fellow police officers, off duty.
The respondent says if the applicant was given another chance by the Commission then this would be his fifth or sixth chance, in circumstances where there is a lack of evidence to demonstrate that this matter, or these circumstances, would not arise again, and where the applicant has not taken the earlier chances he has been given and heeded the Commissioner's Warning in 2006. The applicant has not told this Commission that he will not drink alcohol again to avoid another situation arising, and further, in his oral submissions he confirmed that he does still consume alcohol. Therefore, this Commission cannot be satisfied on the evidence that these events would not arise again in the future.
The respondent says that the applicant has been unable to articulate how it is that he is impugning the respondent's decision.
Balancing all of those matters, in the respondent's submission, the public interest is served by confirming the order or upholding the order and dismissing the application.
[18]
Consideration
I will deal firstly with the Allegations.
[19]
Allegations 1 and 2
In respect of Allegations 1 and 2 the applicant admits he engaged in conduct that was a breach of the Code of Conduct but says the particulars provided by Senior Constable Pearson and Mr Tudor are not correct and his version of events is supported by Ms Veilande.
Affidavits of Senior Constable Pearson and Mr Tudor annexing the statements they gave to NSW Police on 9 September 2014 and 3 September 2014 respectively were tendered in this matter. The applicant did not cross-examine Senior Constable Pearson or Mr Tudor. However, the applicant says their evidence should not be accepted to sustain Allegations 1 and 2 because they were under the influence of alcohol, and as Ms Veilande was not affected by alcohol, her evidence in respect of the interaction between the applicant and Senior Constable Pearson should be preferred.
Senior Constable Pearson and Mr Tudor were witnesses in these proceedings and had the applicant wanted to cross-examine them in respect of their memories and/or their consumption of alcohol on the relevant night he could have done so but he chose not to do so.
Ms Veilande was not a witness in these proceedings and consequently was not made available for cross-examination. However, I have considered the statement of Ms Veilande made on 10 September 2014 which was included in the Commissioner's tender bundle as an annexure to Inspector Heyward's Investigation Report into file no. P1403516.
The statements of Senior Constable Pearson and Mr Tudor support the respondent's finding in respect of Allegations 1 and 2 and the contents of the statement of Ms Veilande are not in conflict with the respondent's finding in respect of Allegations 1 and 2.
I set out below at paragraphs [166] to [170] a summary of the applicant's medical evidence in these proceedings. I do not accept that the applicant's conduct on 25 July 2014 was a consequence of being affected by alcohol, and that his use of alcohol was as a consequence of his PTSD and therefore he should not be accountable for his conduct. The applicant has not discharged his burden in establishing that these Allegations are not made out.
[20]
Allegations 3 and 4
The applicant relies on: the assault and intimidation charges not being made out; the findings in the ADVO matter; the findings he asserts that Magistrate Eckhold made about Ms Plumridge; and the report of Inspector Heyward to convince the Commission that Allegations 3 and 4 are not substantiated.
The applicant's evidence about the events which occurred on 26 July 2014 is summarised at paragraphs [59] - [63] above.
The applicant's submission of "Not Guilty" of the assault and intimidation charges therefore "Not Guilty" of Allegations 3 and 4 does not take into account: the differences between the charges and the Allegations and the standard of proof required to establish guilt of the charges of assault and intimidation versus the standard of proof in this matter. Further, the decision to set aside the ADVO by Cogswell SC DCJ on the basis that there was no evidence before him of contemporaneous fear as at 18 November 2015 does not negate the probability that Ms Plumridge was fearful on the night of 26 July 2014.
The applicant admits calling Ms Plumridge a "cunt" and a "retard", and he accepted under cross-examination that he lost control and took it out on Ms Plumridge. The applicant sent an email to Ms Plumridge on 5 August 2014, an extract from which is set out above at paragraph [92], in which he also admitted losing control. I agree with the respondent that this is an admission of conduct that at the time could have caused Ms Plumridge to fear for her safety.
The text messages to Ms Carla Nayda sent in the early hours of 26 July 2014 evidence Ms Plumridge's fear of the applicant, in particular the text message sent from Ms Plumridge to Ms Nayda at 6:33:03 which says:
Bab4 please don't message I don't feel safe at the moment he told me is I said anything it would be the last thing I do I need to sort my shit out and get out of here xxx.
The applicant has consistently asserted that the Magistrate declared Ms Plumridge to be an "inherently weak" and "inherently unreliable" witness and therefore her evidence should not be accepted. However, as I stated at paragraph [43] this is not what the Magistrate found. The Magistrate said that there was an "inherent weakness" in the "prosecution case" which "emerged by virtue ultimately of the cross-examination of the complainant." … "But the complainant may be telling the truth. I apply the criminal standard as I am required to do…. It is not a criticism of the complainant".
Further, the Magistrate said, before giving himself the Prasad direction:
… but in terms of the intimidation and in terms of this comment, "it'll be the last thing you ever do," whatever it is exactly, it's a matter where she made an immediate complaint almost on the text message to her friend, Carla Nader, and consequently I find it hard to Prasad myself on that matter without being assisted.
I have considered the material presented to the Orange Local Court in the Assault and Intimidation prosecution and the Magistrate's Prasad direction in those proceedings, and the transcript of 7 September 2015 of the ADVO proceedings in the Dubbo Local Court and the decision of Cogswell J of the District Court in Bobin v Director of Public Prosecutions (18 November 2015), being the appeal against the AVO decision, contained in the Commissioner's Confidence Documents. I have considered the transcript of the interview with Ms Plumridge recorded on 27 August 2014, the evidence that Ms Plumridge gave to the Orange Local Court on 19 November 2019 and the evidence that Dr English gave to the Orange Local Court on 18 November 2014. I have also considered the applicant's Victim Impact Statement and his text messages to his sister, Ms Bobin annexed to that statement, the report of Inspector Heyward, the statement of Ms Bobin made 25 September 2014, the statement of Jeffrey Mullins made on 4 September 2014, the cross examination of Detective Sergeant McLean on 18 November 2014 in the Orange Local Court and the cross examination of Ms Bobin in the Orange Local Court on 9 June 2015.
I have taken into consideration the fact that Ms Plumridge did not give evidence in these proceedings but the applicant was cross-examined on the interactions between her and the applicant and the matters in her statement. I have also taken into consideration the fact that Ms Plumridge did not want any action taken against the applicant by Police and that in the transcript of her interview of 27 August 2014 she described being petrified of the applicant but still not wanting to "ruin anybody's life".
The applicant says that the report of Inspector Heyward should have been placed before the respondent because the applicant says that Inspector Heyward was not satisfied on the balance of probabilities that Allegations 3 and 4 were sustained.
Inspector Heyward did not find that the Allegations were not sustained. Inspector Heyward found that "Criminal Assault and/or Intimidation - after court proceedings" and "Assault and/or intimidation - Briginshaw v Briginshaw standard" were not sustained. Inspector Heyward found that a "Breach of Code of Conduct and Ethics" was sustained and stated "I am satisfied that Sergeant Bobin created an environment that caused Ms Plumridge to fear some form of physical violence and she had reasonable grounds for those fears."
I agree with Inspector Heyward that the applicant created an environment that caused Ms Plumridge to fear some form of physical violence and she had reasonable grounds for those fears. The applicant was intoxicated, late in the evening at Ms Plumridge's house. Ms Plumridge was sober and pregnant. The applicant admits to calling Ms Plumridge a "cunt" and a "retard" and Ms Plumridge notified a friend and her doctor about her fears. The applicant's evidence and attack on the credit of Ms Plumridge does not discharge his burden in establishing that Allegation 3 is not made out. The applicant's conduct was contrary to the Police Act, the Police Regulations in force at the time, and the New South Wales Police Force Code of Conduct and Ethics and Allegation 3 is sustained.
I have set out above at paragraph [43] that the Magistrate did not find that Ms Plumridge was untruthful. I have carefully considered the applicant's submissions that Allegation 4 cannot be established because Ms Plumridge was an untruthful witness and she was not a witness in these proceedings and I should simply her evidence in relation to Allegation 4, and consequently the Allegation must fail.
The failure of Ms Plumridge to make complaints to Dr English that she had been assaulted gave rise to the Prasad direction. In the ADVO proceedings on 7 September 2015 (transcript 07/09/15, pp 11-12:45-16, Magistrate Eckhold stated:
The finding of the Prasad direction was based on the fact that Ms Plumridge's evidence, there was an inconsistency with the doctor's evidence such that she said that she had told him about the assaults, something about which she might have been mistaken or she might have lied. Either option is completely open and given the stress that she was under at the time it is entirely possible that she forgot it. There was this incomprehensible failure to relate that assault to the doctor though which you could not be readily understood, except perhaps by having regard to the fact that she had stopped her medication without medical assistance. And that that might have had some effect on her capacity to make decisions or remember accurately what had gone on which is what caused the matter to see an acquittal.
But there is no doubt that there was something for which she was afraid at the relevant time and I would have to accept that there were reasonable grounds in light of that apology that occurred. … It is ultimately a matter where I am satisfied that there were reasonable grounds for Miss Plumridge to fear in light of those admissions that were made and take into account her evidence on the balance of probabilities, and that at the time of the hearing she did in fact fear a commission of a personal violence offence.
It is clear that Magistrate Eckhold did not find that Ms Plumridge was such a witness that he should ignore her evidence, and I do not accept the argument that I should ignore her evidence.
The applicant's evidence which is set out at paragraphs [62] and [63] above does not address how Ms Plumridge was bruised. The evidence provided by Ms Plumridge, including in her ERISP (Exhibit R5, Tab 13 at Q80-81 (pages 1421-1423), provides the factual basis upon which the respondent could be satisfied that Allegation 4 was sustained to the civil standard.
The applicant's victim impact statement is inconsistent with the text messages he sent to his sister about what had just taken place with Ms Plumridge. In the text messages the applicant says that Ms Plumridge was "having a go at [him] saying that's it not hers and she's tricked [him]". This is not the evidence the applicant gives in the victim impact statement in which the applicant says that he queried whether he was the father and Ms Plumridge consistently held that he was.
In these proceedings, the applicant has mischaracterised the reason for the Magistrate's Prasad direction and relied on his acquittal in the criminal proceedings and sought to characterise his ex-girlfriend as a liar and himself as a victim, despite sending an email to Ms Plumridge in August 2014 which included the following:
I am going to start by saying I am so sorry for losing control and taking it out on you over a week ago. I am totally devastated and I regret it all. You didn't deserve any of it.
I never yell, rant or lose it at people when I'm sober and in control. When someone isn't in control and not thinking straight, they do stupid things and don't mean what they say... When a person gets really drunk they get ultra-paranoid, defensive, and don't think straight. And it also doesn't help when I suffer from PTSD. I've been meaning to tell you about my PTSD, but I have put off telling you about it because I want to be there for you without making it sound like it's about me. Controlling my PTSD means not writing myself off.
In the circumstances, I do not accept the applicant's denials, particularly in circumstances where the applicant bears the onus to prove or disprove what was relied upon by the Commissioner of Police. The applicant has not discharged his onus or burden in demonstrating that Allegation 4 could not be sustained by the respondent.
[21]
Allegation 5
The applicant's submissions on Allegation 5 concentrate on Sergeant Piper's Report and his finding that a charge of "Perjury (evidence based criminal)" could not be sustained.
The applicant does not explicitly address why, in the context of his assertions of bullying and victimisation by his superiors at the hearing of 9 June 2015, that he responded as follows to the questions of the prosecutor:
Q. And Inspector Godden. Did you feel that you were being victimised by Superintendent Driver and Inspector Godden?
A. After I received those four complaints about my work and they were the first time I ever received complaints in, at that time 18 years of being the prosecutor so yes.
(Transcript p 91:1-6)
…
Q. So why is August 2012 significant?
A. Because that's when I started organising the send off for those 11 officers who Driver and Godden didn't like that's when everything started to deteriorate and then funnily enough, I've received no complaints in 18 years about my work and then a few months later four in a row.
Q. I see.
A. Yeah, very coincidental.
(Transcript p 91:15-22)
I agree with the respondent that even if the applicant was referring only to complaints about his work and not about his off duty conduct, prior to 9 June 2015, on at least one occasion, the respondent's work as a prosecutor was not of a standard that was expected. That one occasion includes the time that the applicant got drunk and did not turn up to work.
Further, Inspector Heyward sets out in her report (at p 5 of 16) six complaints in the period 2003 to 2008 that she determined were related to the applicant's work as a prosecutor. These complaints range from Neglect of Duty, Code of Conduct (incivility/rudeness), failing to comply with operational procedures, and failing to notify witnesses of court. Inspector Heyward was satisfied that the applicant had been informed of each of these complaints.
The complaints referred to by Inspector Heyward are all listed on the C@TS.I Officer Complaint History for the applicant which was before the respondent when he made the Removal Order and which was provided to the applicant. The applicant was served with Inspector Heyward's investigation report prior to the hearing of the Application. The applicant did not address the factual issue of whether the information that he provided to the Local Court was correct in light of these six complaints about his work listed on the C@TS.I Officer Complaint History in the case he presented to the Commission in respect of Allegation 5. Rather, the applicant complained that the matter should not have been investigated by Inspector Heyward.
In these proceedings the applicant has represented the findings of Magistrate Eckhold regarding Ms Plumridge to be more critical of Ms Plumridge than was the case. That conduct was an attempt by the applicant to convince me not to accept Ms Plumridge's evidence in relation to Allegations 3 and 4 because the applicant asserted that another judicial officer who had observed Ms Plumridge had not accepted her evidence in relation to criminal matters. It is open to me when considering Allegation 5 to take into account the applicant's misrepresentation of the Magistrate's assessment of Ms Plumridge and her evidence and to infer that the applicant took a similar approach of embellishment when giving evidence in the Local Court seeking to discredit his superiors at the hearing on 9 June 2015.
It is my determination that on the balance of probabilities, the applicant gave evidence under oath that was misleading.
[22]
Allegation 6
Allegation 6 is about the applicant's conduct on the evening of 5 March 2016 and the early hours of 6 March 2016 including that the applicant:
1. hugged Detective Senior Constable McGowan so she could not move away, nuzzled her neck and stroked her hair, causing her to feel awkward;
2. engaged in a physical altercation with Sergeant Michael White, which resulted in him falling to the ground and sustaining an injury;
3. kicked Senior Constable Josh White in the groin; and
4. repeatedly attempted to re-enter the George Hotel.
[23]
Hugged and nuzzled Detective Senior Constable McGowan
Detective Senior Constable McGowan says in her statement:
On the evening of 5 March 2016, … Andrew Bobin made comments and spoke to me in a manner which I found upsetting. … I was upset and angry because he would not leave me alone despite me telling him several times to leave me alone. I did not want to speak to him about anything that had happened in the past. I did not want Senior Constable Cook's farewell to be ruined because Andrew Bobin had an issue with me. Towards the end of the night, he kept trying to hug me and at one point was nuzzling my neck and stroking my hair which I did not want or like. This made me feel uncomfortable but I didn't say or do anything as I was worried that would cause further issues and make things worse.
Detective Senior Constable McGowan was not cross-examined by the applicant.
Detective Senior Constable McGowan's evidence is consistent with the evidence of other witnesses of the respondent, including Sergeant Michael White and Senior Constable Joshua White.
In his statement of 14 May 2018, the applicant does not address the incident with Detective Senior Constable McGowan which occurred before the incident with Sergeant Michael White which the applicant says triggered his PTSD.
In his statement of 28 August 2018, the applicant says at paragraph [64] "there were no findings made whatsoever towards Detective Senior Constable McGowan in the Investigator's Report by Sergeant Piper and Detective Inspector Browne" and the applicant refers to Detective Senior Constable McGowan's evidence about the interaction between the applicant and Senior Constable Golding at paragraph [72] and her being under the influence of alcohol at paragraph [70]. Other than these matters, the applicant does not address the incident with Detective Senior Constable McGowan at the George Hotel.
The applicant's witness, Sergeant Borland says in his statement of 15 May 2016 that Detective Senior Constable McGowan "looked sad" and "not jovial" which is consistent with Detective Senior Constable McGowan's evidence.
I accept Detective Senior Constable McGowan's evidence and I find on the balance of probabilities, the applicant: made comments which upset Detective Senior Constable McGowan, kept trying to hug her so she could not move away, nuzzled her neck; and stroked her hair, causing her to feel awkward.
[24]
Repeatedly attempting to re-enter the George Hotel and engaging in a physical altercation with Sergeant Michael White, which resulted in him falling to the ground and sustaining an injury
The applicant says he was not behaving aggressively at the George Hotel; that he was crash tackled and assaulted inside the hotel by Senior Constable Golding, but he did not know that until he saw the CCTV footage. The applicant says he cannot remember his conduct after the incident with Senior Constable Golding because this incident triggered a PTSD flashback. The applicant says that he has seen footage of himself running around but he cannot remember anything more.
In his statement of 14 May 2018 the applicant addressed his behaviour following the interaction with Senior Constable Golding as follows:
73. I was on the ground for some time before I was assisted to my feet and led outside the licensed premises. It was then that I could be seen running around and behaving irrationally.
74. Prior to the assault upon me, I was not acting in an aggressive or irrational way inside the licensed premises, unlike my assailant. The physical assault upon me made me realise that this was obviously the catalyst that set things off and caused flashbacks of certain traumatic experiences and assaults on me from my past. When I viewed the CCTV footage on 18 November 2016, it was the first time I discovered that I was the victim of a physical assault that night.
In response to cross-examination questions as set out above at paragraphs [99] and [100] the applicant says he cannot admit or deny that he engaged in the altercation with Sergeant Michael White and admits to "running around, … going off like a grog in a sock". The CCTV footage of the incident inside the George Hotel has no sound but the respondent's witnesses' consistent memory is that the applicant was being rude and provocative prior to the incident between the applicant and Senior Constable Golding.
Sergeant Borland's statement of 15 May 2016, which was made before the Sergeant had viewed the CCTV, does not refer to the applicant being crash tackled by Senior Constable Golding but refers to Senior Constable Golding having words with the applicant inside the hotel and Sergeant Borland and the applicant walking out of the hotel together.
The evidence of Sergeant Borland at paragraph [18] of his 15 May 2016 statement, is that after the applicant left the hotel the applicant and Sergeant Michael White engaged in an altercation which resulted in both falling to the ground.
The evidence of Sergeant Michael White about the altercation with the applicant in his statement of 25 July 2018 includes:
6. I could see from a window inside the George Hotel that Mr Bobin was running around and trying to get back inside. I went outside to help Sergeant Anthony Borland and Senior Constable Joshua White who were trying to restrain Mr Bobin and moved on from outside the hotel. I cannot now recall exactly what happened but at one point when I was trying to put a wrist lock on Mr Bobin, Mr Bobin and I fell over. I then noticed that I was bleeding from my left eyebrow. I am not sure if this was caused during the fall or if Mr Bobin had struck me.
Sergeant Michael White was cross-examined at length about the incident between Senior Constable Golding and the applicant, and then shown the video. The applicant sought to establish that there were discrepancies between the evidence in Sergeant White's affidavit of 25 June 2018 and Sergeant White's statement of 7 May 2016 and that the evidence of Sergeant White about the incident between Senior Constable Golding and the applicant and how the applicant left the hotel was unreliable. The differences in Sergeant White's memory can be attributed to the inevitable imperfections of human memory and the angle of the CCTV footage as opposed to the angle with which the Sergeant viewed the incident between the applicant and Senior Constable Golding. I have not formed any negative view of the credit of Sergeant Michael White.
The evidence of Senior Constable Joshua White about the altercation between the applicant and Sergeant Michael White in his statement of 24 July 2018 includes:
9. … I saw Michael White trying to put a wrist lock on Andy and whilst that happened they ended up on the ground in a scuffle. I think Michael's head hit the concrete and it started bleeding quite quickly. I think they scuffled on the ground for a short time, maybe for a minute and Andy was trying to get up. I think Michael was just trying to settle him down and get him away and at one point hit Andy in the face once that I can remember.
The applicant cross-examined Senior Constable Joshua White about paragraph [9] of Senior Constable White's affidavit but not in respect of the content relevant to the interaction with Sergeant Michael White.
Other than the attacks on the credibility of the respondent's witnesses, the applicant has not presented any material to the Commission to demonstrate that he did not engage in a physical altercation with Sergeant Michael White which resulted in Sergeant Michael White falling to the ground and sustaining injury and he admits that he has seen CCTV footage that shows he repeatedly attempted to re-enter the George Hotel. I accept Detective Senior Constable McGowan's evidence and I find on the balance of probabilities that the applicant engaged in this behaviour.
[25]
Kicked Senior Constable Joshua White in the groin
Senior Constable Joshua White's evidence is that while helping Sergeant Borland walk away from the hotel, the applicant kicked Senior Constable Joshua White in the groin.
The applicant says that he cannot remember whether he kicked Senior Constable White in the groin and cannot comment on this Allegation (see paragraphs [99] above) and thus is unable to deny the Allegation. However, the applicant asserts that there is no evidence of the kick to the groin on the CCTV footage, and put to Senior Constable Joshua White that the kick did not occur. The applicant sought to call into question Senior Constable Joshua White's evidence because he had not remembered other details of the night correctly. I do not accept that not remembering a precise timeline of the events on the night is sufficient to call into question the Senior Constable's memory of being kicked in the groin. I accept the evidence of Senior Constable Joshua White that the applicant kicked him in the groin.
I find the particulars of Allegation 6 as set out in the Allegation sustained in full. It is now necessary to consider the applicant's claim in respect of his being assaulted by Senior Constable Golding and this triggering the applicant's PTSD thereby absolving the applicant from responsibility for his inappropriate off-duty behaviour as established by the particulars of Allegation 6.
In order for me to determine whether the applicant's responsibility for his behaviour after the incident with Senior Constable Golding, and after the applicant left the George Hotel, it is necessary to consider the medical evidence. Significant Commission time was spent viewing the CCTV footage of the incidents inside the George Hotel and hearing submission and cross examination as to whether the applicant fell back over the bar stool or was crash tackled by Senior Constable Golding. However, if the medical evidence establishes that the applicant's PTSD was triggered by the incident and the applicant was not responsible for his actions after the incident because of his PTSD then then a factual finding about the incident with Senior Constable Golding is unnecessary because even if the applicant was not assaulted but his PTSD was triggered because he fell, or because of some other reason, then his culpability would be mitigated or abrogated. Similarly, if the medical evidence does not establish that the applicant's conduct after the incident is explained by his PTSD then any factual finding about the incident with Senior Constable Golding is unnecessary because if the applicant was assaulted but his post-incident behaviour cannot be attributed to PTSD then this would not obviate the applicant's responsibility for his post-incident behaviour, and could, as the respondent suggested, be a motive for the inappropriate behaviour.
[26]
Medical reports
The applicant tendered medical reports from Dr Selwyn Smith and Dr Nalin Wijesinghe in support of his claim that his actions on 5 and 6 March 2016 were as a consequence of his PTSD.
The letter from Dr Selwyn Smith dated 14 November 2016 states at page 9 of 10:
3. I have reviewed the incident that occurred on 5 March 2016 in regard to the relationship in the development of Mr Bobin's psychological illness.
Mr Bobin was off duty at the time at a pub at Bathurst. He described experiencing flashback episodes. He experienced flashbacks related to earlier threats to his life by a group of Assyrians when he was attacked off duty at Broken Hill. He recalled having to defend himself. Such symptomatologies were significant to the extent that he spoke to his family physician who arranged his admission to St John of God Hospital on 9 March 2016.
Whilst the incident that occurred on 5 March 2016 did not cause his Post-Traumatic Stress Disorder that had been ongoing and remained unresolved.
I found no competing causes for the development of Mr Bobin's psychiatric disorders other than his exposure to distressing and traumatic events of the type outlined.
Dr Smith says that the applicant had an ongoing and unresolved PTSD as at 5 March 2016. Dr Smith does not say that the PTSD was the reason for the incident on 5 March 2016. Dr Smith does not explain the applicant's behaviour outside the George Hotel as being as a consequence of the PTSD or that the applicant was not responsible for his behaviour.
The letter from Dr Nalin Wijesinghe dated 25 November 2016 states at page 4 of 5
3. Your opinion as to causation and in particular the role played by the incident on 5 March 2016 in the development of our client's psychological illness.
The incident dated 5th March 2016 may reflect a re-experiencing phenomenon where he felt that these people were the Assyrians about to attack him. This is part of the illness pathology of PTSD.
The letter from Dr Selwyn Smith dated 2 November 2018 refers to his report dated 14 November 2016. The 2 November 2018 letter does not provide any evidentiary support for the applicant's submission that his conduct in respect to Allegation 6 (or Allegations 1 and 2) was caused by PTSD.
I agree with the respondent that none of the medical evidence in relation to the applicant's PTSD explains that because of his PTSD he was drinking alcohol, or that if a PTSD sufferer drank alcohol, then he or she would engage in this particular conduct. The medical evidence did not support the applicant's submission that he was not responsible for his actions.
Based on the material before me I am satisfied that the finding by the respondent that the six Allegations have been substantiated was correct.
[27]
Alleged failures to comply with the requirements of s 181D of the Police Act
The respondent has dealt with each of the alleged failures to comply with s 181D of the Police Act in his written submissions. I have extracted the respondent's submissions at paragraph [101]. I accept the submissions made by the respondent and find no deficiencies.
I do not accept the proposition that Superintendent Dickson was the person who made the Removal Order or drafted the order or on whose basis it was signed off by the respondent. None of that was put to Superintendent Dickson for him to comment upon and there is no other evidence that would satisfy the Commission that it is true. The proposition that the respondent did not make the Removal Order is rejected outright. The respondent signed off the Order, under his hand. There is no other evidence to demonstrate otherwise. The highest the evidence goes is former Commander Borland's statement. None of that demonstrates that the respondent did not read, understand, consider all of the evidence, and the response of the applicant.
[28]
Alleged procedural fairness and natural justice failures
The respondent has dealt with each of the alleged failures of natural justice and procedural fairness asserted by the applicant in his written submissions. I have extracted at paragraph [102] the respondent's submissions in respect of the seven alleged defects beyond those considered in paragraphs [38] - [47]. I accept the submissions made by the respondent and find no relevant failures of procedural fairness that cause the Removal Order to be harsh, unjust or unreasonable.
[29]
Matters required to be considered by s 181F(3)
The Police Act sets out at s 181F(3) matters the Commission must consider in determining whether an order to remove was harsh, unreasonable or unjust. The Commission must have regard to the interests of the applicant, and the public interest. In effect, I am obliged to balance the effect of the Removal Order on the applicant against the public interest of maintaining the integrity of the Police Force, which includes the fact that the Commissioner made the Removal Order.
Considering the public interest will often depend on a balancing of interests, including competing public interests, and will be very much a matter of fact and degree: Commissioner of Police v Collins [2008] NSWIRComm 162 at [58].
The interests of the applicant include, but are not limited to, the consequences for the applicant of his dismissal.
The applicant made submissions about his personal circumstances, including in his written submissions as follows:
… I am a man suffering from PTS and I have been suffering from work related injuries as early as 2002.
I lived in denial (mostly since 2009) and I self-medicated by utilising alcohol which in turn caused my off duty behaviour/complaints. However, the night of 6 March 2016 was a huge wake up call for me, leaving aside the fact that what triggered my behaviour and PTS flashback was due to being assaulted. Since this incident I have sought expert medical help and treatments to understand, control and live with all of the injuries that have piled up on me over so many years. All of these treatments have assisted me to stop self-medicating and turning to alcohol when things get too hard.
I have never broken the law that I swore to uphold and I have no criminal convictions. I have always accepted responsibility for my actions and I regret certain aspects of my behaviour in the past. NB: The Applicant has been consistent, honest and forthright regarding his conduct in relation to Allegations I and 2. The Applicant has stipulated and admitted that he breached the Police code of conduct on this evening whilst at the Biddy Walsh's hotel a long time ago.
The Respondent will say that I had numerous chances in the past to curb my excess consumption of alcohol; however, I was fighting more than one demon at the time for many years. My PTS and depression caused my excess alcohol consumption. Since 2016 I have learnt that in order to control my consumption of alcohol, you need to address the elephant in the room first; and that elephant was PTS.
I am an experienced Police Officer with over 25 years and I still have plenty to offer the people and the communities of NSW. I believe it is in both the Applicant's interest and the public interest that I be allowed to return to the job that I do best and which I have done my whole life. I do not know anything different, or if I am capable of doing anything different. These last 4 years or so have been a terrible punishment and burden on me and my family; mentally, physically and financially. The public interest deserve experienced and passionate Police Officers, and one of the general conception's of the public interest is the notion of 'fair play' and 'affording genuine people the chance to get back on the horse and prove themselves after they have fallen'.
The applicant asserts that he was not responsible for his actions because of his PTSD and he now deserves another chance. I have considered the applicant's plea for another chance, medical reports provided by the applicant, the applicant's submission that he had been diagnosed as having been suffering from PTSD for at least 15 years; and the applicant's submissions about his management of his PTSD and depression, including that the applicant refrained from self-medicating with alcohol in the 18 months prior to the Applicant's Response to the Show Cause Notice.
The applicant asserts that his in appropriate out of hours conduct is explained by his use of alcohol and that he also believes he has taken steps to ensure that his alcohol use will no longer result in such conduct. However, the medical evidence does not support this submission and the applicant admitted on the final day of the hearing that he still drinks. Further, unlike in Lockley v Commissioner of Police [2019] NSWIRComm 1016, the applicant did not give an undertaking to the Commission that he would no longer consume alcohol.
It is clear that the effect of the Removal Order, including the loss of his career as a Police Prosecutor in the NSW Police Force in the regional centre of Orange where he has made his life and the consequent financial hardship on the applicant is significant. I have taken this into consideration. It is so in the case of any sworn police officer removed from the Police Force, of course, but the effects will be different in fact and degree in each case, and in this case the applicant took great pride in his role as a Police Prosecutor.
I have taken into consideration the applicant's personal and employment history, his reasons for joining the Police Force and his achievements, including: the arrests made by the applicant while in a business suit and without appointments, awards, medals, and other recognitions of merit and appreciation given to the applicant during his career; his belief that he has a long and prosperous future with the New South Wales Police Force and has a lot to offer the New South Wales Police Force and the community.
I do not consider that the applicant having been suspended for a lengthy period which the applicant says exacerbated his PTSD and depression mitigates a reversal of the penalty of removal from the NSW Police Force.
I have considered the character references provided in support of the applicant by Mr Terence Lucas, Sergeant Anthony Borland, Mr Ian Borland, Senior Constable Rennai Kentwall, Senior Constable Michael Kentwell, Mr Patrick Rudd, Mr Robert Lulham, and Mr George Bobin.
It is important to remember as Superintendent Dickson says in paragraph [11] of his affidavit - that "a Prosecutor is a minister of justice" and at paragraph [13]:
…Police Prosecutors in regional areas [must] have a high degree of responsibility to uphold the good reputation of NSWPF when they are in public, whether on duty or not and especially when attending licensed premises.
I note the references endorse the applicant's skills as a Police Officer and Police Prosecutor. However, these references do not provide a basis for me to ignore the applicant's off-duty conduct and the impact on the reputation of the NSW Police Force of the applicant's conduct.
I have taken into consideration the applicant's statement that he has learned some valuable lessons as a result of some of his conduct. However, the applicant displayed a lack of insight about his conduct and in many instances minimised his culpability and blamed others. This lack of insight extends to his disciplinary history, with the applicant, after acknowledging that he has had "three or four" chances and then making this submission:
Yes, those things raised in the past that Mr Darams hounded on in the hearing, about me getting drunk and not being able to turn up for work. Yep. Hundred per cent. I was drinking, and it got a bit out of control. And that was a bit of a wake-up call, whoops, we better, you know, calm that down. But that was the only time in 25 years that I failed to attend work by being drunk. One time in 25 years. But, you know, that's exactly what the situation is.
I have considered the applicant's disciplinary history. I have also taken into consideration the applicant's commentary in his statement of 18 May 2018:
46. NSW Police Force departmental decisions or sanctions are not the same as criminal offences; they do not even come close. All Police departmental complaints are determined on the balance of probabilities. I say, the majority of these complaints are determined with bias, personal opinions, personal agendas, and complaints are usually sustained in favour of who made a complaint first.
47. Additionally, exculpatory evidence, inconsistent evidence or any evidence to the contrary, are often excluded, disregarded or dismissed in favour of the complainant.
I bear in mind that a person who accepts the role of a police officer also necessarily accepts the levels and standards of discipline that apply within the Police Force as set out by his Honour Justice Brennan in Police Service Board v Morris and Martin (1985) 156 CLR 397 at 412:
The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.
The applicant has time and time again, been given opportunities and chances, and he has not taken or heeded the warnings given to him previously, and he has put himself in the position time and time again.
Relevantly, the incident underpinning Allegation 6 has similarities to the reasons for the s 181D notice of 18 July 2006 and then 2008 (see paragraphs 25(4) and 25(6) above). However, the applicant says that these previous warning are not relevant stating in oral submissions:
… Mr Darams has really been hounding on that, "His chances before. He's this. He's been given a warning. He's done this. Similar conduct." Similar conduct? The only thing similar about all the conduct is that I was under the influence of alcohol. Were there any prior allegations of domestic violence? No. Were there any prior allegations of insulting someone or telling someone to fuck off in public? They're all different allegations, but the similarity of it is that I was under the influence of alcohol and I'm not making any self-serving statements at the end of the day that my conduct is because of PTSD.
I got myself into a position where I was under the influence of alcohol, self-medication, which all the doctors have referred to self-medication and self-medication can take many forms, but there was one thing Mr Darams said that hasn't been said in the doctors' reports that they didn't give an explanation or anything as to what happened on 6 March, but they did and at page 1323, it's Mr Selwyn Smith:
"I have reviewed the incident that occurred on 5 March. Mr Bobin was off duty at the time at a pub at Bathurst. He described experiencing flashback episodes. He experienced flashbacks related to earlier threats to his life by a group of Assyrians when he was attacked off duty at Broken Hill. He recalled having to defend himself. Such symptomologies are consistent with a post-traumatic stress disorder. He experienced reminders of earlier untoward events. His symptomologies were significant to the extent that he spoke to his family."
And it goes on. And Mr Nalin Wijesinghe, that's all they had and when Mr Darams says that, "Look, you know, it could be because he drank so much that he doesn't have a memory", well, that's not right. Not right. I put it on record before and I was actually cross-examined about it and even in my response back in 2017 at allegation 6 I said, "Look, I apologise. I can't have an answer. I cannot - if that's how I behaved, that's it."
As I set out at paragraphs [166] - [172], the medical evidence does not support a conclusion that the applicant was not responsible for his behaviour on 5 and March 206 because he was suffering a PTSD. Consequently, the earlier warnings are relevant to the decision to remove the applicant from the Police Force. The applicant's inability to see the relevance of the earlier warnings shows a further lack of insight and acceptance of responsibility.
It is in the public interest that the respondent act to preserve the integrity of the Police Force by removing persons who jeopardise public confidence by their off-duty behaviour and who seek to minimise their behaviour by blaming others and alleging biased and flawed internal investigations; and asserting that their behaviour could be explained by a medical condition that they submit they have known about for 15 years without medical evidence to support this, particularly when these persons are responsible for bringing matters before the Courts.
[30]
Summary and disposition of the matter
Given my findings in relation to the six Allegations and balancing the matters relied upon by the applicant in his interests and the matters relevant to the public interest, it is clear to me that the removal of the applicant from the NSW Police Force was neither unreasonable nor unjust. The public interest is served by upholding the Removal Order and dismissing the Application.
The applicant's conduct is sufficiently serious, such as to militate against a finding that his removal was harsh. Combined with the applicant's disciplinary history it is my view that the Removal Order was the appropriate penalty.
The applicant has not met the task required of him under the statutory scheme, if the review is to succeed, of establishing that the removal of the applicant from the Police Force is harsh, unreasonable or unjust: s 181F(2) of the Police Act. Consequently, I cannot uphold the Application.
[31]
Orders
The Order I make in this matter is:
1. The application for review pursuant to s 181E of the Police Act by Andrew Bobin is dismissed.
[32]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 October 2019
The Application was conciliated unsuccessfully on 12 April 2018 by Commissioner Stanton and on that date directions were made for the filing and service of evidence.
Until 18 October 2018, the applicant was represented in the proceedings. After this date, the applicant represented himself, including at the hearing of the evidence on 19 - 23 November 2018, and the oral submissions on 3 April 2019.
I regard myself as bound to follow the guidance given by the Court of Appeal in Hamod v State of New South Wales & Anor [2011] NSWCA 375 at [309] - [313]:
309 Courts have an overriding duty to ensure that a trial is fair... The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. …
310 However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. …
311 Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case. …
312 Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised... Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial... The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant.
I am satisfied that: the applicant had the opportunity to put his case in full; I understood the applicant's case in full; and there was a fair trial for both parties. I am satisfied of these matters because: the applicant was legally represented until 18 October 2018, a date by which evidence was due to be filed and served in accordance with the procedural directions made on 12 April 2018, and subsequently varied; the applicant was an experienced Police Prosecutor; as I was conscious of my obligations in respect of an unrepresented litigant, I admitted material in these proceedings which ordinarily would not be admitted; the applicant was given the opportunity to file written submissions and to make lengthy oral submissions.
The applicant tendered: a statement by Mr Gordon Bobin made 18 October 2018 ("Exh A1"); a statement by Sergeant Anthony Borland made 13 October 2018 ("Exh A2"); a statement by Sergeant Anthony Borland made 15 May 2016 ("Exh A3"), a letter from Sergeant Anthony Borland to the respondent dated 12 August 2017 ("Exh A4"); pages 21 to 26 of a transcript of the hearing of R v Andrew Bobin before Magistrate Eckhold (incorrectly identified on the transcript as Magistrate Lucas) on 10 June 2015 ("Exh A5"); video footage of an incident at the George Hotel on 5 March 2016 ("Exh A6"); a statement by Mr Ian Alexander Borland made 28 August 2018 ("Exh A7"); two statements made by the applicant: the first made 14 May 2018 ("Exh A9"); and the second made 29 August 2018 ("Exh A10"); the applicant's response dated 19 October 2017 to the Notice served on him under s 181D(3)(a) of the Police Act ("the Applicant's Response to the Show Cause Notice") ("Exh A11"); a letter from Dr Selwyn M Smith dated 2 November 2018 ("Exh A12"); a letter from Dr Nalin Wijesinghe ("Exh A13"); a statement by Terence Lucas made 15 October 2018 ("Exh A14"); a document headed Form 7A Application for Relief - Reasons dated 19 November 2018 containing submissions and contentions in support of the applicant's case ("Exh A15"); and an email trail including an email from Superintendent Ian Dickson, copying the applicant, regarding an investigation in respect of evidence the applicant gave in the domestic violence assault charge dated 13 September 2015 ("Exh A16").
The respondent tendered: the notice issued pursuant to s181D (3)(a) to Sergeant Andrew Bobin dated 21 July 2017 ("the Show Cause Notice") ("Exh R1"); the Applicant's Response to the Show Cause Notice ("Exh R2") (and also Exh A11); the Order under s 181D(1) of the Police Act dated 1 March 2019 ("the Removal Order") and the accompanying Statement of Reasons (collectively "Exh R3"); two affidavits affirmed by Superintendent Ian Dickson, the first affirmed 26 June 2018 ("Exh R4"), and the second affirmed 22 November 2018 ("Exh R12"), and a marked-up unaffirmed affidavit showing the changes between Exh R4 and Exh R12 ("Exh R13"); a bundle of documents and the video footage which is Exh A6 collectively referred to as the "Commissioner's Confidence Documents" and which the respondent says are "all of the documents and other material on which the [respondent] relied in deciding [he] does not have confidence in the applicant's suitability to continue as a police officer" which it is the duty of the respondent "to make available to the applicant" pursuant to s 181E(3) of the Police Act ("Exh R5"); an affidavit of Senior Constable Joshua White affirmed 24 July 2018 ("Exh R6"); an affidavit of Detective Senior Constable Lorna McGowan sworn 26 June 2018 ("Exh R7"); an affidavit of Senior Constable Lisa Pearson sworn 25 June 2018 ("Exh R8"); an affidavit of Peter Tudor affirmed 22 June 2018 ("Exh R9"); an affidavit of Sergeant Michael White sworn 25 June 2018 ("Exh R10"); and an affidavit of Detective Sergeant Andrew McLean sworn on 15 June 2018 ("Exh R11").
Mr Ian Borland, the applicant, Senior Constable Joshua White, Mr Lucas, Sergeant Michael White, Detective Sergeant McLean, and Superintendent Dickson were cross-examined.
On 22 November 2018, during the hearing of the evidence it came to my notice that my former employer, the Crown Solicitor, may have provided advice to the respondent about the provisional apprehended domestic violence order ("ADVO") against the applicant, due to the requirement in the Code of Practice for the New South Wales Police Force Response to Domestic and Family Violence that the Crown Solicitor be instructed in matters involving allegations of domestic violence to, or by, a police officer. I was not aware of this requirement, or that the Crown Solicitor may have been, or was, instructed in a matter involving Mr Bobin, until this date. I disclosed to the parties my employment circumstances and the dates of my employment on 22 November 2018. On 23 November 2018, the applicant made an application that I recuse myself. I gave an ex tempore decision on that day refusing the application for recusal.
Powers of the Commission on review
Section 181D of the Police Act gives the respondent the power to remove an officer when the respondent no longer has confidence in the officer's suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct.
A person who is the subject of a decision to remove him or her from the Police Force may apply for a review of that decision pursuant to s 181E of the Police Act. Section 181E relevantly provides:
181E Review generally
(1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (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).
The manner in which the Commission must conduct the review is set out at s 181F of the Police Act:
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.
(a) 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:
(i) the interests of the applicant, and
(ii) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1).
The hearing before the Commission is a hearing de novo, not a review of an administrative act: Hosemans v Commissioner of Police (2004) 138 IR 159 ("Hosemans") at [134].
Section 181F of the Police Act requires the Commission firstly to consider the respondent's reasons for the decision to remove the applicant from the Police Force, which are those set out in the Statement of Reasons. Kite AJ, as the Chief Commissioner was at the time, considered in Baker v Commissioner of Police [2015] NSWIRComm 14, the statutory purpose of the obligation on the respondent pursuant to s 181D(4) to give reasons at [96] - [99]:
[96] The statutory purpose may be inferred from the surrounding provisions, in particular s 181D(7) and Division 1C of the Act. One purpose which may be inferred is to inform the officer directly affected as to why the decision has been taken so as to allow that officer to decide whether to commence review proceedings. Another purpose which may be inferred is to facilitate any such review.
[97] That then requires a consideration of the nature of these proceedings. As observed above, while the starting point in such proceedings is the Commissioner's reasons, the burden is upon the applicant to establish "that the removal was harsh, unreasonable or unjust". The Commission hears the applicant's case and the Commissioner's case in response, and then makes a "fresh and independent review decision itself".
[98] The adequacy of the content of the reasons is to be measured in this context. The essence of the reasons is to explain why the decision has been taken. It is not necessary, in the reasons, expressly to negate every possibility: cf Lawrance at [274]-[276]. It remains open to the applicant in the review to establish that the removal was harsh by reason of a failure to adopt an alternative and appropriate sanction.
[99] The foregoing is not intended to deny that in an appropriate case a failure by the Commissioner to address a particular matter might lead to a conclusion that a decision was unreasonable, unjust or harsh. A failure to address some important exculpatory evidence for example, may lead to such a conclusion but it will never be the end of the matter: see Commissioner of Police v Alyson Reid-Frost (No 2) [2010] NSWIRComm 2 at [36] and [41]-[45] and Reid-Frost v Commissioner of Police (No 2) [2010] NSWIRComm 86 at [144[-[153]. The Commission would be obliged to weigh the respective cases and decide for itself whether the point was made out. Any remedy would then be considered in the light of all of its conclusions.
Their Honours Walton VP and Kavanagh J in Commissioner of Police v Reid-Frost (2010) 192 IR 363 discussed the Reasons for Decision (or Statement of Reasons) at [44] - [45]:
44 … the lynchpin of any inquiry as to procedural fairness in a review under Div 1C of Pt 9 of the Act is the content of the Reasons for Decision of the Commissioner. Procedural issues associated with the issuing of a Notice or taking into consideration a submission advanced by a police officer (per s 181D(3)(c)) are secondary to that consideration and, ultimately, only really serve to complement an assessment as to whether the Reasons for Decision given by the Commissioner demonstrate procedural failure.
45 Thus, as in this case, if the Commissioner had failed to take into account explanations provided by the respondent in her written submissions as to the TOIL incident or secondary employment, as may have been the case, these are matters which will become relevant for the assessment of whether the removal was harsh, unreasonable or unjust. It was appropriate for his Honour to have regard to those considerations, but his Honour was not correct in treating those failures (or other failures such as the vagueness of the reasons) as sufficient, in themselves, or when taken with other (erroneous) findings of procedural failure to conclude that the removal was harsh, unjust or unreasonable under Div 1C of Pt 9 of the Act.
It is then for the applicant to make out a case that the decision to remove him from the Police Force was harsh, unreasonable or unjust: the Police Act, s.181F(2).
The purpose of the respondent's case is, as the Police Act provides, and as the Full Bench in Hosemans held, to make answer to the applicant's case. If the applicant advances any evidence or argument that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that case, including that evidentiary case, then falls on the respondent: Tredinnick v Commissioner of Police [2016] NSWIRComm 14 ("Tredinnick (No 2)") at [78].
Proceedings for review pursuant to s 181E of the Police Act are "essentially the same as the unfair dismissal regime" of the Industrial Relations Act 1996 ("the IR Act') "subject to specified modifications" (Hosemans at [97], [104]).
"Harsh, unreasonable or unjust" in these proceedings have the same meanings as given to them in proceedings under Part 6 of the IR Act: Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 ("Tredinnick (No. 1)") at [20]. However, the test as to whether the removal of the applicant pursuant to s 181D of the Police Act was harsh, unreasonable or unjust is not identical to that test in the IR Act: Tredinnick (No. 1) at [21] - [29].
The Commission must take into account matters set out in s 181F(3)(b) of the Police Act which the Commission, in an application brought under s 84 of the IR Act, does not have to consider. Amongst other things, in determining an application pursuant to s 181E of the Police Act, the Commission must have regard to a "public interest" which, because it is partly defined at s 181F(2)(ii), is not the same as the "public interest" referred to in s 146(2) of the IR Act: Commissioner of Police v Eaton [2013] HCA 2 per Heydon J (at [27]).
Finally, "each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case": Starr v Commissioner of Police [2001] NSWIRComm 226 at [140].