Bolton v Commissioner of Police

The Show Cause Notice - s. 181D(3)(a) of the Police Act

1. The 11 allegations of misconduct which were made by the respondent against the applicant were set out in the Show Cause Notice dated 14 May 2019 in the following terms: Allegation 1 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 9 May 2016, you assaulted Ms Skellet by: • pushing her; and/or • holding Ms Skellet against the wall; and/or • attempting to strike Ms Skellet in the head using an open hand or closed fist; and/or • grabbing her by the arms; and/or • kicking her legs, including an attempt to trip Ms Skellet and force her to the ground. There also appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 9 May 2016, you verbally threatened Ms Skellet, including threatening to give evidence against her in Family Court proceedings and otherwise threatening to cause damage to her personal life and reputation. Allegation 2 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 9 May 2016, you refused to leave Ms Skellet's residential premises when requested by her, as the lawful occupier, to do so. There also appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 9 May 2016, you re-entered, or at the very least, attempted to re-enter, Ms Skellet's residential premises without her consent and having been told by her, as the lawful occupier, that she did not want you to enter. Allegation 3 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 1 October 2016, you assaulted Ms Skellet by: • pushing her; and/or • pulling her backwards by the shoulders and top she was wearing; and/or • kicking her legs, including tripping Ms Skellet and forcing her to the ground. There also appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 1 October 2016, you verbally threatened Ms Skellet, including threatening to give evidence against her in Family Court proceedings, threatening to cause damage to her personal life and reputation and demanding that she pay you money in consequence of those threats. Further, there appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 1 October 2016, you improperly detained Ms Skellet, preventing her from leaving your premises when she expressed that she wanted to leave. Allegation 4 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 7 October 2016, you absented yourself from duty while you were rostered on shift, and in particular, attended Ms Skellet's residential premises using a Police vehicle to deliver a document that did not have any connection with your duties, without any authorisation to do so. Allegation 5 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 7 October 2016, you entered Ms Skellet's residential premises without her consent. Allegation 6 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to complete your Duty Book on 7 October 2016. There also appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you deliberately failed to complete your Duty Book with a view to concealing the fact that you had used a Police vehicle to attend Ms Skellet's premises while on duty, and with no authorisation to do so. Allegation 7 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 7 October 2016, you verbally threatened Ms Skellet, including threatening to give evidence against her in Family Court proceedings and threatening to cause damage to her personal life and reputation. Allegation 8 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you accessed the COPS database on 20 November 2017 and 27 November 2017 without lawful authority to do so, and in particular, you accessed the COPS database for personal reasons, being a search for lost property belonging to Ms Shah, being a person with whom you were in a relationship. Allegation 9 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to record a 'reason for access' in relation to your accesses of COPS Events on 20 November 2017 and 27 November 2017 pertaining to lost and found property. There also appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you deliberately failed to record a 'reason for access', as you knew that you had no lawful reason to be accessing the COPS database. Allegation 10 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you disclosed confidential information belonging to the NSW Police Force to Ms Shah, and in particular, you disclosed that a Longines watch had been handed in to Dee Why Police station as lost property. Allegation 11 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to avoid, and then failed to promptly identify and report, a conflict of interest arising from your relationship with Ms Shah and your provision of confidential Police information to her regarding the missing watch.
2. By covering letter dated 1 July 2019 from the applicant's solicitors, the applicant provided a lengthy response to the Show Cause Notice in which he essentially denied each of the allegations. He also attacked the credit of Ms Skellet based upon some remarks made by his Honour Magistrate Curran, during the criminal proceedings against the applicant in the Local Court on 23 March 2017, the day before the prosecutor sought and was granted leave to withdraw each of the charges against the applicant.
3. The applicant also provided the respondent with reports from Frank Van de Mortel, Registered Psychologist, Associate Professor Michael Robertson, Consultant Psychologist and Dr Jeff Bertucen, Consultant Psychiatrist, which had been prepared for the purposes of a workers compensation claim by the applicant.

The respondent's Statement of Reasons - s. 181D(1) of the Police Act

1. In the Statement of Reasons which accompanied the order made on 21 October 2019 pursuant to subsection 181D(1) of the Police Act, the respondent referred to statements which had been given by a number of police officers and others concerning the incidents involving the applicant and Ms Skellet on 9 May and 1 and 7 October 2016. The respondent also referred to a filmed walkthrough at Ms Skellet's residence on 27 October 2016 during which Ms Skellet demonstrated how the applicant allegedly assaulted her. The respondent also made reference to the criminal proceedings in March 2017 before his Honour Magistrate Curran, which concluded with the withdrawal by the prosecutor of all charges against the applicant.
2. Having summarised the evidence of the witnesses, as well as the applicant's response to the Show Cause Notice, the respondent stated that he was satisfied, on the balance of probabilities, although having regard to the seriousness of the allegations, that Allegations 1-7 involving the applicant's interactions with Ms Skellet were sustained.
3. The Statement of Reasons then dealt with the evidence related to Allegations 8-11 concerning the Longines watch which the applicant claimed had been lost by his partner, Sunita Shah, and subsequently handed in to police. The respondent found that each of these allegations was also sustained.
4. The Statement of Reasons then continued as follows: Consideration As set out in the Notice, I am very concerned by your conduct and integrity as detailed above. I expect the highest standards of behaviour from all members of the NSW Police Force, both on and off duty, and for all NSW Police Force officers to place integrity above all. In your Response, you say you have been denied procedural fairness, as I have only had regard to material served on you with my Notice, and not all relevant documentation. However, your Response does not elaborate on what other relevant documentation exists that I should have regard to. You had an opportunity, in your Response, to bring any further documentation to my attention, and in fact, you did so by annexing several documents to your Response, all of which I have considered. Accordingly, l am not satisfied that you have been denied procedural fairness. Indeed, quite to the contrary, you have had multiple opportunities to provide a fulsome response to the allegations of misconduct that have been made against you, and you have routinely not done so, and provided no explanation for why you have not done so. In particular, your Response was your fourth opportunity to provide your own version of events in relation to what occurred on each of 9 May 2016, 1 October 2016 and 7 October 2016, and rather than supply me with such a version, you have chosen instead to simply attack Ms Skellet's credibility. This is not to say that you are required to provide me with a version of events; nothing in my Notice obliged you to do so. However, all that I am left with in determining this matter is Ms Skellet's version of events. I am left to infer that, if you had an exculpatory version of events, you would have provided it to me. Accordingly, the fact that you have given me no version of events is telling. You contend, in your Response, that removal would be harsh, and that it would be disproportionate to the gravity of the misconduct alleged. I do not agree. As I set out in my Notice, the NSW Police Force has no tolerance for domestic violence behaviour. It is criminal conduct and inimical to our sworn oath of office. It is in this context that your physical and verbal abuse and threats directed toward Ms Skellet must be viewed. In circumstances where one of the key missions for the NSW Police Force is to drive out the scourge of domestic violence in the State, I can no longer have confidence in you to contribute toward the achievement of such a goal, in view of your misconduct. In regards to Allegations 4, 5 and 6, it is alarming that you abused the autonomy granted to you as an experienced Sergeant of Police to absent yourself from duty without authorisation to attend to a personal matter. This misconduct is made all the more grave by the fact that you entered Ms Skellet's residential premises without permission during that time, then failed to make an entry in your Duty Book or the vehicle diary for that shift. I am comfortably satisfied that this was not an accidental omission, but a deliberate step on your part that was designed to conceal the fact that you had used a Police vehicle during your rostered hours to absent yourself from duty for personal reasons, without notifying a supervisor or your Commander. Your Response to Allegations 8 to 11 has also done nothing to allay my concerns about your apparent misconduct. Indeed, the limited insight illustrated by your Response only adds to my lack of confidence in your suitability to remain a police officer. The fact that you apparently continue to think that your access to the COPS database for the benefit of Ms Shah was appropriate is a very concerning attitude toward the confidentiality of the information in that database, especially considering your rank and experience. Equally troubling is the fact that you seem to think that reporting your association with Ms Shah to officers equivalent and junior in rank to you was an appropriate and sufficient disclosure of your conflict of interest. The gravity of your misconduct in Allegations 8 to 11 cannot be understated. You accessed the COPS database with a view to searching for property that Ms Shah told you she had lost, and which had been handed in to Police. If Ms Shah wanted to ascertain if her lost property had been handed in, all she needed to do was contact Police. Instead, you accessed the COPS database without lawful authority, on her behalf, and disclosed confidential information to Ms Shah. I am comfortably satisfied that an experienced Sergeant of Police would know such behaviour was inappropriate, and I am equally satisfied that the very fact that the COPS accesses were unlawful and unjustified is the reason why no 'reason for access' was recorded. Further, the conflict of interest should have been apparent to you. It is imperative that conflicts are disclosed. When they are not disclosed, and confidential NSW Police Force information is used to benefit a police officer or an acquaintance, this carries the real risk of undermining public confidence in police officers and the NSW Police Force. In your Response, you have drawn my attention to the fact that you are a single father with sole custody of your two children, aged 15 and 9. You say your youngest suffers from food allergies and cognitive issues. You say you also care for your elderly aunt, who moved in with you and your children in January 2019 after she suffered a fall. You say you have suffered financial detriment while suspended, and that you have moved house three times since Ms Skellet's complaints were first raised, including spending eight months living in a shed. You say you are still repaying a debt of $14,000 to a cousin for your legal fees associated with the criminal proceedings, being the portion of your legal fees that the Police Association of NSW did not fund. You say that, after March 2017, Ms Skellet also made a further application for an ADVO, which you defended and was ultimately withdrawn by consent, but which cost you a further $3,000 in legal expenses. In your Response, you say that, if removed, you will become bankrupt and will "lose everything". I accept the heavy personal impact removal will have on you. However, I must weigh this personal impact up with my obligation to preserve the integrity of the NSW Police Force and public confidence in police officers. In this regard, it is an entirely fair community expectation that an experienced Sergeant of Police would not engage in domestic violence behaviour, nor access the confidential information on the COPS database for the benefit of an acquaintance. Similarly, l accept that you have provided over 30 years' service to the NSW Police Force, and such commendable service counts in your favour. However, on the other hand, I must weigh up the fact that your period of service is far from unblemished. You have been found to have engaged in misconduct numerous times across your career, including previously being subject to reviewable action and consideration for removal. In the latter case, when the Commissioner at the time did not lose confidence in you, a Warning Notice was served on you that made it very clear that you needed to regularly meet the standards of ethical and professional conduct expected. It is apparent, from your misconduct above, that you have not done so. I note, for completeness, that with your Response, you provided me with three medical reports. You contended that, in view of those reports, I should 'withdraw' my Notice and medically retire you. You say that this would be a "more proper resolution of this matter", and that the, "medical documentation is supportive of this". You say you are currently being treated by a psychiatrist, Dr Selwyn Smith, and your general practitioner, Dr Michael Sinclair. However, later in your Response, you seem to suggest that you have only been referred to Dr Smith, and a psychologist, Ms Sandra Coetzee, and you are awaiting approval from the workers' compensation insurer before consulting with them. These three medical reports, which are all dated in 2017, provide me with no grounds upon which I could exercise my statutory power to medically retire you from office. On the other hand, your misconduct and lack of integrity provide me with ample grounds to lose confidence in you and remove you from office. In summary, it is essential that all sworn police officers behave to the highest standards of conduct at all times, both on and off duty, and place integrity above all. As a Detective Sergeant of Police, you carry the burden of not only consistently meeting these standards of behaviour, but enforcing those standards amongst the junior officers that you are responsible for supervising. In view of your proven misconduct and lack of integrity, I do not have confidence that you can consistently meet the standards expected of you in the future, let alone enforce those standards with the officers you supervise. I expect and the law demands that New South Wales police officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty. As a police officer, you should be acutely aware that the general public are entitled to expect every police officer will behave lawfully, appropriately and honestly, and demonstrate the highest standards of conduct and integrity. In light of my findings, I cannot see how your conduct and integrity as a police officer could be relied upon if you were to perform policing duties in the future. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer.

Case for the applicant

1. In an affidavit sworn in these proceedings (Exhibit 1), the applicant outlined his family background and his career in the NSW Police Force which began when he was attested on 29 July 1988 when he was 19 years of age.
2. In answer to the 11 allegations against him which the respondent had found to be sustained, the applicant referred to his written response to the Show Cause Notice and stated that he had told the truth and that he relied upon its contents.
3. The applicant also outlined his personal circumstances and the impact that his removal from the NSW Police Force had had on him and his family financially and in other ways. Annexed to his affidavit was a report dated 22 October 2019 from Dr Selwyn M. Smith, Consultant Psychiatrist, to the applicant's general practitioner, Dr Michael Sinclair. In that report, Dr Smith described the applicant's Post Traumatic Stress Disorder as chronic in duration, as well as an Adjustment Disorder with Mixed Depressed and Anxious Mood.
4. In his written response to the Show Cause Notice, the applicant dealt with Allegations 1, 2, 3 and 7 by referring the respondent to the transcript of the Local Court proceedings which he attached. In particular, the applicant drew the attention of the respondent to certain remarks made by the learned magistrate on the second day of the hearing, 23 March 2017, during the cross-examination of Ms Skellet, which called into question the veracity of Ms Skellet. It was these comments by the magistrate that led to the prosecutor withdrawing the charges against the applicant the next day.
5. The applicant claimed that Ms Skellet had lied to the police about the matters that formed the basis of Allegations 1, 2, 3 and 7.
6. In relation to Allegation 4, the applicant stated that he did attend Ms Skellet's premises after completing an affidavit that she had asked him to complete in relation to her family law proceedings against her former husband. He stated that this occurred at a time when his relationship was falling apart and it was only his intention to assist Ms Skellet in her family law proceedings.
7. In response to Allegation 5, the applicant stated that he did enter Ms Skellet's premises without her expressed consent on 7 October 2016. He stated that when he attended the premises to deliver the affidavit, her letterbox was full. He further stated that he knew how anxious she was to see the affidavit and was concerned that it might not be safe in the letterbox.
8. In response to Allegation 6, the applicant admitted that he did not complete his duty book entry for 7 October 2016 and sincerely apologised for this. He claimed that at 4.30pm on 8 October 2016, he was at French's Forest Police Station and was directed by Craig Wonders (Crime Manager) to gather his children and dog and to go and stay at his mother's house. He claimed that this was the reason why he did not complete the duty book.
9. In relation to Allegations 8, the applicant noted that the initial investigator found that this issue was not sustained, yet Chief Inspector Pickering and Superintendent Darcy overruled that decision and found the matter sustained. The applicant also relied upon the record of an interview that he had with Inspector Kaserman on 12 April 2018 at Chatswood Police Station. In that interview, the applicant claimed that he accessed the COPS database on 20 and 27 November 2017 in relation to located lost property.
10. In relation to Allegation 9, the applicant claimed that a "reason for access" (RFA) was not required to be entered. The applicant also claimed that he accessed the COPS database on those dates after he had been told by Sunita Shah, who he described as "one of the soccer moms on my son's soccer team" with whom he was currently in an intimate relationship, that she had lost her watch and had asked him if he could make some inquiries to see if it had been located.
11. The applicant again referred to his record of interview in response to Allegation 10, and in particular where the following exchange occurred: Q84. I direct your attention to paragraph two of the WebCops and NSWPF computer log in screens. The last sentence mentions you are not authorised to access for personal reasons. I didn't, as I said it was to facilitate the return of lost property. There was no personal gain on my behalf. I see it as part of my duties. I would do it for any member of the public. I haven't disclosed information to this woman other than, there's been a watch handed in.
12. The applicant further stated that he had not asked the Exhibit Officer, Senior Constable Sarah Batchelor, to advise him of the watch's serial number or for any other information which would assist Ms Shah to identify her watch. The applicant also referred to a written statement made by Senior Constable Batchelor on 7 February 2018 in which she stated that she told the applicant that a Longines watch had been handed in but she did not disclose to the applicant the serial number on the watch and he did not ask for it.
13. In response to Allegation 11, the applicant again referred to his record of interview and stated that he never saw his attempt to reunite a watch with its lawful owner has a conflict of interest. However, despite this, he had informed both Senior Constable Batchelor and Sergeant Morgan that he was in a relationship with the owner of the watch and that is why he had distanced himself from the investigation.
14. Counsel for the applicant, Mr Eurell, also had tendered into evidence and marked as Exhibit 2 a bundle of documents comprising: A. The Order under section 181D(1) of the Police Act 1990. B. The Response to the Notice pursuant to section 181D(3)(a) of the Police Act 1990. C. The Notice pursuant to section 181D(3)(a) of the Police Act 1990. D. The Response to Investigator's Reports P1704219 and P1603737. E. The Investigator's Reports P1704219 and P1603737.

Case for the respondent

1. Counsel for the respondent, Mr Seck, tendered as evidence in the respondent's case a folder of documents entitled "Commissioner's Confidence Submission" (Exhibit 3), which contained all of the documents in addition to those in Exhibit 2, which were considered by the respondent in the determination to remove the applicant from the NSW Police Force. In addition, Mr Seck tendered a further bundle of documents comprising various Standards of Professional Conduct and other policies and procedures which, it was submitted, had been breached by the applicant, as well as a COPS Audit for the applicant for 20 September 2017 to 6 December 2017 (Exhibit 4).
2. The respondent relied upon written submissions in which the obligation on police officers to "place integrity above all" was emphasised.
3. In relation to the respondent's Statement of Reasons, it was submitted that the Commission must give "presumptive primacy" to the respondent's justification for the removal of the police officer concerned, and cited as authority for this proposition, the decision of Kite AJ in Baker v Commissioner of Police [2015] NSWIRComm 14 at [97]. It was further submitted that this was also consistent with subsection 181F(3)(b) of the Police Act citing the judgement of the plurality (Crennan, Kiefel and Bell JJ) in Commissioner of Police v Eaton (2013) 252 CLR 1 at [76].
4. With respect to Allegations 4, 5 and 6, the respondent noted that each of these allegations were admitted by the applicant in his written response to the Show Cause Notice.
5. The respondent submitted that, in relation to the allegations involving Ms Skellet, the applicant had, despite four opportunities to provide a version of events about what happened, chosen not to do so but instead, simply offered a bald denial and an attack on Ms Skellet's credit. It was further submitted that the applicant had, in these proceedings before the Commission, again failed to provide any evidence about what had occurred.
6. With respect to Allegations 1, 2, 3 and 7, the applicant submitted as follows (footnotes omitted): 61. The Applicant cannot 'shift' the onus of proof, in proceedings of this nature, by a mere denial and nothing more. To do so would entirely undermine the statutory scheme and be contrary to the authorities. As this Commission has accepted, in s. 181E review proceedings, it is for the Applicant to present a positive evidentiary case in support of establishing that the removal was not (sic) harsh, unjust or unreasonable including that he did not engage in misconduct. Put another way, an applicant cannot just give a bare denial of the misconduct, do nothing more to discharge his onus, in order to shift the burden onto the Respondent to prove the misconduct occurred. If that were correct, a bald denial would be sufficient to have the practical effecting of rendering s. 181E proceedings no different to any unfair dismissal case involving serious misconduct. If that were true, it would entirely undermine and render nugatory the statutory sequence and onus provisions unique to the specific statutory scheme the legislature established for review of Police officer removals. 62. Thus, the absence of any evidence from the Applicant in relation to Allegations 1, 2, 3 and 7 must be considered through the prism of the onus he bears. It permits the Commission to infer that, had the Applicant gone into evidence on these allegations, that evidence would not have assisted his case. 63. This is a basic application of the rule in Jones v Dunkel. The evidence of what occurred between the Applicant and Ms Skellet on each of 9 May 2016, 1 October 2016 and 7 October 2016 was clearly within the power of the Applicant to provide to the Commission. He has not done so. It cannot be disputed that, if a party bearing the onus of proof provides limited evidence in the discharge of that burden, and not only was further evidence available, but it was within the ability of the party with the burden to lead that evidence, then it can be inferred that the failure to call the additional evidence into account in determining whether or not the burden has been met. 64. The more contemporary expression of this principle is set out in Ho v Powell, where Hodgson JA stated (at [15]) that it was "important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so". In circumstances where the Applicant bears the onus (being both a legal onus and an evidentiary onus), then "the direct evidence of the party carrying the onus may be more readily rejected, and the inferences for which he contends may be treated with greater reserve". 64.1 The Applicant's evidence on Allegations 1, 2, 3 and 7 is entirely insufficient to disturb the Respondent's findings, as set out in the Reasons. The Applicant has fallen well short of meeting his onus on any of these matters.
7. The respondent made a similar submission in relation to the case presented by the applicant with respect to Allegations 8, 9, 10 and 11.
8. The respondent then detailed the evidence that was relied upon in finding that the 11 allegations against the applicant were sustained and submitted that each allegation must be upheld.

Applicant's submissions in reply

1. At the conclusion of the proceedings on 14 July 2020, the applicant's counsel, Mr Eurell, sought and was granted leave to file supplementary written submissions. The submissions were received by the Commission on 21 August 2020.
2. The applicant supplementary submissions cited a number of authorities which dealt with matters like the one presently before the Commission and then submitted (footnotes omitted): 17. Accordingly there are three aspects to the intended review process: (1) A review of the fairness of the process by which the decision was arrived - such as whether it included an evaluation of the credibility of the complainant's evidence, and whether such an evaluation would result in her allegations being accepted; (2) The 'facts' on which the decision was based - such as whether the characterisation of the evidence is rational and reasonable; and (3) Whether the reason(s) for, or effects of, a removal are harsh, unjust or unreasonable. The reasons for removal 18. The Respondent's reasons for removal can be succinctly grouped into three allegations: (1) Findings in respect of domestic violence and trespass by the Applicant against Ms Skellet on 9 May 2016 and 1 and 7 October 2016 (Allegations 1-3, 5 and 7); (2) Findings that the Applicant was absent without authorisation when he delivered a document to Ms Skellet's home on 7 October 2016, and that he failed to make a record of his absence (Allegations 4 and 6); and (3) Findings that the Applicant's actions taken in an effort to identify and return lost property to its rightful owner were improper because the said owner was his then girlfriend (Allegations 8-11). The Applicant's case 19. The Applicant's evidentiary and factual case is that (1) The allegations of domestic violence made (sic) by the Applicant toward Ms Skellet are, and have always been, wholly denied. The Applicant does not deny that he entered her residence on 9 May 2016 and 7 October 2016, but denies that it amounted to trespass, whether criminal or otherwise, in light of their common understanding at the time. He further denies that he perpetrated any actual or threatened violence on 9 May 2016, 1 and 7 October 2016. (2) Concerning the matter of absenting himself from work to deliver an affidavit to Ms Skellet, and thereafter not recording it in his duty book, the facts are largely uncontested. The Applicant explains the failure to record the events as resulting from a direction that he leave the workplace, and he accepts that he ought to have informed his superiors that he was delivering a document and sought authorisation from them. (3) As to the third matter, the Applicant accepts that he helped return the property but denies that he acted improperly or unlawfully in doing so. Domestic violence matters 20. There is no dispute that the Applicant was in a domestic relationship with Ms Skellet, but he has consistently denied that he engaged in criminal behaviour whether that was threatened or actual violence or unlawful trespass. He denied the allegations in the course of the investigation and gave an explanation that, although he had an argument with Ms Skellet (about disposing of his prescribed medication), there was no actual or threatened violence. He similarly denied the allegations in the course of the removal process. The Respondent has been squarely on notice that the fundamental factual issue in dispute was whether the domestic violence events actually occurred. The Respondent was also put on notice in the course of the removal process that the complainant's credibility and reliability was in question.
3. In support of the submission that the applicant had denied the allegations in the course of the investigation and had given an explanation that, although he had had an argument with Ms Skellet about disposing of his prescribed medication, there was no actual or threatened violence, the applicant cited the following entry in the official COPS record which was created following the triple "0" phone call from Ms Skellet on 9 May 2016: About 8.35am 9/5/16 Police spoke to VIC 2 (the applicant) by phone. He informed Police that he had attended VIC 1's (Ms Skellet's) address that morning to retrieve medication that had been prescribed to him and VIC 1 had refused to give it to him. VIC 2 left when he was asked to by VIC 1.
4. The applicant also cited the following paragraph from a Statement of Police made by Sergeant Maree Kiem on 31 October 2016: 7. Upon my return to Dee Why Police Station about 8am I had several conversations with Sergeant PAPPALO and Senior Constable Larissa RYAN from the domestic violence team to see what support services could be offered to Ms SKELLERT. I also Informed the duty officer, Acting Inspector DE VISSER, of the incident I had attended as it had involved a serving Police Officer. I was asked to create a COPS event recording the incident which I did - reference E214165198. About 8.35am I contacted Sergeant BOLTON on his mobile. I advised him I had attended his partners address after she made a phone call to 000. BOLTON was not happy she had called the Police and told me that he had simply been trying to retrieve some Xanax that was prescribed to him for back pain. He insisted that he left when she asked him to and that it was a verbal argument only. I advised Sergeant BOLTON that l had been asked to make a record of the Incident which he was not happy about.
5. In addition, the applicant cited the record of interview between himself and Acting Inspector Guy Magee of 4 November 2016 where the applicant responded to the specific allegations of domestic violence against Ms Skellet with: I did not assault Susan SKELLET. I've sought legal advice. I do not wish to answer any more questions in regards to that allegation. At no time have I ever assaulted Susan SKELLET and: I want to remain silent in regards to that on legal advice
6. The applicant also relied upon the following statements which appeared in his written response to the Show Cause Notice which was provided to the respondent on 1 July 2019: The incidents alleged by Ms Skellet, the complainant did not happen. and: …the complainant lied under oath and threatened a defence witness.
7. The written submissions then continued as follows: 21. The Statement of Reasons reveal that these matters of contention were acknowledged but not otherwise considered nor resolved by the Respondent. The Respondent elected not to present a case to substantiate the allegations (in the reply: s 181F(1)(c) of the Act), by calling Ms Skellet so that the Commission might form its own views about the complainant's credibility and decide whether the findings made against the Applicant could be vindicated. Rather, the Respondent's case rests upon two submissions: (1) The reasons for dismissal have a status of being "presumptively' correct; and (2) The Applicant's denials of criminal conduct are not sufficient to discharge his legal burden under s 181F(2) of the Act. 22. As to the first contention, the error in adopting the approach that the Respondent's reasons have 'presumptive' status is addressed above. That submission is unsupported by Eaton or the Act and is inconsistent with the jurisprudence developed by the IRC. The Respondent's reasons for Removal are merely the 'axis' by which a matter proceeds. If, as occurred in this case, an applicant calls a case sufficient to put the correctness of the respondent's findings in doubt (such as by swearing to the falsity of the account given by the single witness against him and making himself available for cross examination), then it follows that they would need to be substantiated by evidence. Despite the Applicant's unchallenged evidence that the allegations are false, the Respondent elected not to call a single witness. 23. As to the second contention, the Respondent submits that a denial on oath is insufficient to discharge the Applicant's legal burden of proof. On 14 July 2020, the Respondent submitted that the Applicant needed to present an affirmative case. Without accepting the correctness of the Respondent's contention (which conflates the legal and evidential burden), his submission overlooks his affirmative account recorded in the documentary evidence, as well as the evidence that generally supports the Applicant. 24. The Respondent submits… that it is apparent from the evidence that something happened on 9 May 2016, and that the Applicant has chosen to remain silent about what occurred. That submission is contradicted by the evidence. On 9 May 2016, the Applicant spoke with the investigating police officers by telephone at which time he explained that he had attended Ms Skellet's home to retrieve prescribed medications, left when asked to do so, and did not perpetrate any actual or threatened violence. This was corroborated by the accounts given by Ms Skellet, and the police officers who attended. There was little more the Applicant could sensibly say if the allegations were, in fact, false. 25. The Applicant submits the aspect of the review concerned with the domestic violence allegations can be resolved by the Commission with ease: he appeared to give sworn evidence and made himself available for cross examination so that his credibility and truthfulness could be assessed. He denied the allegation in his testimony and the Respondent did not challenge his denials in cross examination. The Respondent did not call any witness, including Ms Skellet, to refute or contradict his denials. Accordingly the Commission should approach the evaluation of the evidence consistent with the principles espoused in Browne v Dunne (1893) 6 R 67 and Jones v Dunkell (1959) 101 CLR 298. 26. The Applicant parenthetically observes that the above approach might be considered the fairest to both the Applicant and Ms Skellet. As a result of not calling Ms Skellet, the Respondent has placed the Commission in the invidious position of requiring it to make a public judgment about the credibility and reliability of a witness who has not been given an opportunity to defend her claims. Inversely, the Respondent suggests that despite his not having made any challenge to the Applicant's evidence (whether in cross examination or by calling any witness to contradict), the Commission should reject his account. 27. The Respondent submits… that he did not bear the onus of calling Ms Skellet to prove the allegations of assault. The Respondent seeks to extract support for the failure to call the complainant from the reasons of Newall C in Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 at [24]-[26]. That matter was concerned with a shift in the evidentiary onus following drug tests. That is an entirely different matter from an alleged assault based on the word of a single witness. The submission that there would be an unfairness in the Applicant cross examining Ms Skellet before the Commission defies basic precepts of natural justice. Furthermore, it defies logic and common sense that where a person has not in fact assaulted another, they are in a position to say anything more than 'I did not physically assault her, we only had a verbal argument'. Contrary to what the Respondent submits…, the complainant was obviously in his camp. The domestic violence findings the Respondent made were based entirely on her complaint.
8. The written submissions then analysed parts of the transcript of the cross-examination of Ms Skellet in the Local Court which were said to damage her credibility and reliability as a witness and then continued as follows: 29. There is a biting irony in the approach contended for by the Respondent, who argues that: the allegations of domestic violence must be accepted by the Commission; that the complainant should be accepted as reliable…; however, the Commission cannot take into account the litany of credit issues which affect her evidence… which put misplaced reliance on the Evidence Act 1995). The Respondent's argument would have the Commission weave a web of injustice. 30. ln Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 Newall C took the view at [44], citing Harrison DP in Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2004] NSWIRComm 65 at [325], that consideration of the probabilities of an event where accusation and denial counter arise, should be resolved by consideration of the objective facts available and the surrounding circumstances. To that end, the Applicant submits that following factual matters militate against the findings: (a) On 9 May 2016, the date of the alleged assault, Ms Skellet twice refused to cooperate with the police; (b) The contemporaneous record made by the attending police officers on 9 May 2016, reveal that no injuries were sighted on Ms Skellet's person, despite her later (and much delayed) report describing a rather brutal assault that would, if true, have inexorably left her with visible injuries; (c) Witness accounts that no bruises were subsequently seen on, nor reported by, Ms Skellet; (d) Her first formal complaint on 7 October 2016, some 6 months after the alleged events, was, by her own admission, motivated by the Applicant's failure to confirm that he would not give evidence against her in the unrelated proceedings being heard by the Family Court. 31. The matters referred to in the Respondent's submissions… are not corroborative of Ms Skellet - as she is the source of the information in each case. The only matter which comes close to being supportive of her allegations are the photographs of bruising. However, connecting those injuries to an alleged assault is dependent upon an acceptance of Ms Skellet's account. 32. In accepting Ms Skellet's allegations, the Respondent overlooked the significant deficiencies that affected Ms Skellet's evidence in the Local Court proceedings. Her evidence was considered so problematic by the Director of Public Prosecutions, that all charges against the Applicant were withdrawn before the prosecution case had even concluded. Ms Skellet's account given to the Local Court might be considered by the Commission to reveal, at best, a person who was less than willing to be candid while on oath, and at worst, a person who was prepared to manipulate the judicial process for her personal benefit (see in particular the reflections of the learned magistrate). The Applicant submits that if evidence of that kind had been given on oath before the Commission, it would have inexorably been rejected. By contrast, the Applicant submitted himself and his evidence for testing by the Respondent before the Commission and his denials were unchallenged. 33. The Respondent also relies on an allegation of trespass. The allegation arises in the context of the Applicant entering his then domestic partner's home on 7 October 2016. The evidence indicates that it was the practice of the Applicant and the complainant to "go into each other's places all the time." That appears to be consistent with the evidence. The Respondent did not challenge the Applicant in relation to this understanding. 34. In the Applicant's submission, it is open to the Commission to conclude, on the surrounding evidence, that there was such a practice, having regard to the absence of a complaint of trespass concerning the Applicant's attendance on 9 May 2016, and the uncontentious fact that the Applicant kept his medication at her home. Similarly, on 7 October 2016, the Applicant attended Ms Skellet's home to deliver an affidavit which she had insisted on receiving (including by making threats if he did not comply). The text messages between the Applicant and complainant tell of a tumultuous and emotionally charged relationship, but one that came with intimacy of the kind that is consistent with an understanding and acceptance of entering each other's homes. The evidence reveals that Ms Skellet was seeking money from the Applicant as late as 21 August 2016 and support from him in her family court proceedings as late as 7 October 2016. Absence from work without authorisation 35. The Applicant has consistently acknowledged that he attended Ms Skellet's residence while on duty and without authorisation from his superiors. He explained that he did so to deliver an affidavit to Ms Skellet, and that it would not happen again. The Commission might consider this acknowledgment to be reflective of his truthfulness, honesty and integrity. It was a short absence and there is no suggestion that it had ever happened before. The Applicant's failure to complete the duty book was because he was directed to remain at home and there after did not have access to it. There is no evidence that this was a deliberate effort to conceal anything. These matters do not amount to corrupt or criminal behaviour such as to warrant the extreme step of removal. Return of lost property 36. The Respondent submits that the Applicant's conduct in identifying and helping to facilitate the return of lost property to its rightful owner was improper and, in respect of COPS access, criminal conduct. There is no dispute that the Applicant assisted the owner of the lost property to recover it, and that he was dating her at the time, but he denies that there was anything untoward or improper in his conduct. The Applicant submits that the Respondent's characterisation of the events is unfairly overblown. 37. Firstly, the allegations that the Applicant improperly accessed the COPS system to identify whether the lost property had been handed in to the police, is a stretch. As the Respondent acknowledges…, the evidence reveals that the Applicant refused to misuse the COPS system, aware that he could be audited at any time. In the Applicant's submission, the community is entitled to expect police officers to use the system in such a fashion, and that doing so is in the public interest. The allegation that the Applicant thereafter disclosed confidential information to Ms Shah is simply unsupported by evidence. It is telling that the Applicant was never charged or prosecuted for this matter, and that the investigator did not sustain the allegation. 38. The Respondent submits… that the Applicant was required to record his reason for accessing (RFA) COPS. That submission misconceives the nature and purpose of an RFA record which, as the Applicant explained, is an administrative facility designed to assist officers if and when they are audited and not a requirement. There is no evidence contradicting the Applicant, nor proving that it is a mandatory requirement such that a failure to use it amounts to misconduct. 39. Similarly, the Respondent's conclusions concerning the conflict of interest are not supported by the evidence. The views held by the senior constable performing the role of exhibit officer, the supervising sergeant and the inspector who were involved in the return of the property reveal that the manner in which the Applicant had gone about his efforts did not create concern. The Applicant disclosed to both the senior constable and sergeant concerned that he was looking for his (then) girlfriend's watch. In accordance with her "usual work practices" the exhibit officer contacted a senior police officer of the rank of inspector and informed her of the communications she had with the Applicant. In the judgment of the Inspector at the time there were "adequate safeguards" in place to release the watch back to its owner. When the investigating chief inspector later queried whether there had been disclosure, the sergeant confirmed that there had been. 40. The statement of the exhibit officer reveals that the Applicant dealt with her transparently from the outset. The Applicant immediately disclosed that he was trying to locate his "girlfriend's watch" and he received instructions from the exhibit officer to provide proof of ownership. The evidence of the exhibit officer is devoid of any suggestion that the Applicant was engaged in improper behaviour or contrary to common practice. Equally, there is no suggestion (and no evidence supporting a finding) that the Applicant did anything other than help the recovery of property by the rightful owner. There is however, evidence that but for the Applicant's efforts the automated police process would not have identified the owner. 41. The Applicant submits that there is nothing about this conduct that is incompatible with the duties of a police officer. Indeed, the Commission might consider that the actions of the Applicant accord with community expectations. It is the responsibility of the New South Wales Police Force and its members to protect property rights of citizens, including returning lost property to its rightful owner. This kind of assistance was not out of character for the Applicant. The records reveal that he has been repeatedly commended for his efforts to assist members of the community. In the Applicant's submission it is highly significant that there was no personal gain by the Applicant, and that he considered the task to be in accordance with the proper discharge of his duties.
9. The remainder of the applicant's written submissions comprised legal argument and references to well known authorities.

Determination

1. Section 181F of the Police Act is in the following terms: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows - (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to - (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)).
2. The respondent submitted that the Commission must give "presumptive primacy" to the respondent's justification for the removal of the applicant from the NSW Police Force as set out in the Statement of Reasons (see [28] above). If the effect of that submission is that the respondent's Statement of Reasons must be accorded more weight than the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, then it is rejected.
3. The decision of Kite AJ in Baker does not support this proposition. At [95]-[99] his Honour stated: 95 The Commissioner is obliged by s 181D(4) of the Act to give reasons. This statutory duty is an exception to the common law position in relation to administrative decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. The adequacy of the content of those reasons is to be determined, absent any express requirements in the legislation, by an exercise of statutory construction: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 303 ALR 64; 88 ALJR 52. 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.
4. The passage from Eaton relied upon by the respondent to support the proposition that the "presumptive primacy" of the Statement of Reasons is consistent with subsection 181F(3)(b) of the Police Act is as follows: 76 The regime provided for in Pt 9 of the Police Act for the claims of confirmed police officers evidences a concern that the processes of Pt 6 of the IR Act are not in all respects appropriate to be applied to decisions of the Commissioner to dismiss or make other like orders. Part 9 maintains a focus on the Commissioner's decision, a focus which is not provided by the general provisions of the IR Act. Part 9 elevates the Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force. The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material.
5. Maintaining a "focus" on the respondent's decision and elevating that decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force, does not, in my opinion, equate to according more weight to the decision, and the reasons for it, than to the case mounted by the applicant.
6. The correct approach balancing the competing interests of the parties in cases such as the present one was stated by Walton J, Vice-President, in Van Huisstede v Commissioner of Police (2000) 98 IR 57, where his Honour stated: 217 However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. 218 The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): "Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree."
7. However, as subsection 181F(2) of the Police Act makes clear, the applicant has at all times the burden of establishing that his removal from the NSW Police Force was harsh, unreasonable or unjust. This is to be done by presenting a case to that effect to this Commission.

Allegations 1, 2, 3 and 7

1. These are the most serious allegations against the applicant. I agree with the submission of the respondent to the effect that, in relation to Allegations 1, 2, 3 and 7 involving Ms Skellet, the only case that the applicant has presented to the Commission is a flat denial.
2. In Tredinnick v Commissioner of Police [2016] NSWIRComm 14 a Full Bench of the Commission (Walton J, President; Tabbaa C; Murphy C) stated: 72 In the proceedings at first instance it was submitted on behalf of the appellant that there was an onus on the respondent to prove the misconduct which was the basis for the appellant's removal from the NSW Police Force. Further, it was submitted that the respondent failed to do so because he failed to adduce evidence of the urine drug sample from the relevant drug testing pathology service. As such, on the merits, the respondent had not made out its case that the appellant engaged in misconduct and his removal was, axiomatically, unfair. 73 As discussed above, this submission misstates the true position. It was the appellant, not the respondent, who bore the onus or legal burden of establishing that his removal was harsh, unreasonable or unjust. In practical terms this required the appellant to lead sufficient evidence to cast doubt on the respondent's finding of misconduct so as to shift the evidentiary burden to the respondent on that issue. 74 In the alternative, it was submitted that, if Newall C was to proceed on the basis that he was satisfied that the appellant had provided a urine sample on 28 May 2014 which was positive to cannabis metabolite at the level recorded on the Certificate, then the respondent was still required to discharge the onus of proving that the applicant had deliberately consumed cannabis in the days prior to the urine test. Again, this alternative submission is wrong. The appellant bore the onus of proving that he did not deliberately consume cannabis, although, as we have noted, the evidentiary burden may shift, in that respect. 75 The third alternative submission on the issue of onus which was put by the appellant at first instance was to the effect that, if Newall C was satisfied that the appellant had returned a positive urine sample at the level recorded on the Certificate and that fact was sufficient to transfer the onus on to the appellant of showing that this result was not due to deliberate consumption by him of cannabis, then his removal was still unfair because: a. The appellant had discharged that onus to the respondent prior to his removal; and/or b. The appellant had discharged that onus in the proceedings; and/or c. As the respondent had never put the applicant on notice on 28 May 2014 or thereafter that the onus had shifted on to him, the appellant was denied the opportunity to undertake further urine, blood or hair sampling to demonstrate the likelihood of his version of events. This deficiency in the respondent's drug policy represented procedural unfairness of such magnitude that, in the circumstances of this case, it rendered the removal of the appellant harsh, unreasonable or unjust. 76 Again, for the reasons already stated, this further alternative submission misstated the true position which was that the appellant bore the onus from the outset of proving that he did not deliberately consume cannabis. We have earlier discussed, however, the evidentiary burden, in that respect, may shift to the respondent once such approach was adopted by the appellant, namely, to provide an alternative hypothesis, supported by evidence, as to how an illicit substance may be found in his blood system, if he had not deliberately consumed the drug.
3. In that case, the appellant had, at first instance, presented a case supported by evidence, including expert evidence, to establish the alternative hypothesis that the drug detected in the appellant's urine sample got into his system as a result of him handling cannabis in the course of his duties rather by smoking or ingesting it. Despite this, at first instance Commissioner Newell found, based on the case presented by the respondent in answer to the appellant's case, that it was more likely than not that that the reason for the appellant's positive urine test was that he had deliberately ingested cannabis (Tredinnick v Commissioner of Police [2016] NSWIRComm 1026).
4. In Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011 the applicant presented a substantial case based on expert evidence that his positive hair follicle test result was more likely due to environmental contamination than to consumption of illicit drugs. After reviewing the evidence presented by the applicant and citing at length passages from the Full Bench decision in Tredinnick, including those passages cited above at [52], I stated: 142 It will become apparent from what follows that, in adopting the approach of the Full Bench in Tredinnick, I am satisfied that the applicant has produced sufficient evidence to cast doubt upon the finding by the respondent that the applicant consumed prohibited drugs so that the evidentiary burden of establishing that fact has shifted to the respondent.
5. On appeal, the Full Bench (Chief Commissioner Kite SC; Commissioner Stanton; Acting Magistrate Abood) followed the approach of the Full Bench in Tredinnick on the issues of legal and evidentiary onus and shifting evidentiary burden and dismissed the appeal (Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073 at [19]-[31]).
6. The applicant was interviewed about Allegations 1, 2, 3 and 7 by Acting Inspector Guy Magee on 4 November 2016. His responses are set out above at [39]. These responses are unsurprising given the possibility/likelihood that he would be charged with criminal offences, which is what happened.
7. In his Response to Investigator's Reports P1704219 and P1603737 dated 11 September 2018, well after the criminal charges against him had been withdrawn, the applicant simply stated, "The incidents alleged by the complainant did not happen". The applicant then referred to the transcripts of Ms Skellet's cross-examination in the Local Court to support his submission that Ms Skellet was completely unreliable. Nowhere in this response did the applicant attempt to inform the investigator of what he believed really happened between himself and Ms Skellet on 9 May and 1 and 7 October 2016.
8. In his written response dated 1 July 2019 to the Show Cause Notice, the applicant again simply stated, "The incidents as alleged by Ms Skellet, the complainant did not happen". The applicant again referred the respondent to the transcripts of Ms Skellet's cross-examination in the Local Court to support his submission that there were serious questions about her credibility and reliability. The applicant then stated, "I did not commit these offences. You cannot rely on anything the complainant alleged". Again, the applicant failed in this response to inform the respondent of what he believed really happened between himself and Ms Skellet on 9 May and 1 and 7 October 2016.
9. The applicant's "evidence" in these proceedings with respect to Allegations 1, 2, 3 and 7 was that, in his written response to the Show Cause Notice, he told the truth and he relies upon its contents in relation to all 11 allegations against him. Nowhere in his evidence before this Commission did the applicant provide his account of what occurred between himself and Ms Skellet on 9 May and 1 and 7 October 2016.
10. On the basis of the approach of the Full Bench of the Commission in Tredinnick and Zisopoulos, in order to shift the evidentiary burden to the respondent, the applicant needed to lead sufficient evidence to cast doubt on the respondent's findings of misconduct and to have that evidence tested before the Commission. Flat denials and attacks on the credit of Ms Skellet are insufficient to shift the evidentiary burden to the respondent with respect to Allegations 1, 2, 3 and 7.
11. The references in the applicant's written submissions in reply to a COPS entry made by Sergeant Maree Kiem and to part of a Statement of Police made by the same officer on 31 October 2016, which are set out above at [37]-[38] are insufficient to plug the evidentiary gap needed to shift the evidentiary burden to the respondent with respect to these four allegations.
12. The applicant's case with respect to these allegations really boiled down to a flat denial and an attack on Ms Skellet's credibility based on certain comments made by the presiding magistrate during the cross-examination of Ms Skellet in the Local Court. However, I note that the Magistrate made no adverse finding in relation to Ms Skellet's credit. At the conclusion of the proceedings, his Honour stated: …but of course the complaint evidence is predicated upon the truthfulness of the event… and I make no judgment about that at this stage but it's obviously of assistance.
13. Faced with the lack of evidence from the applicant about the incidents which led to these four allegations, the respondent had little alternative but to accept the version of events provided by Ms Skellet and to make the findings that he did. The criticism of the respondent for failing to call Ms Skellet to give evidence in these proceedings needs to be considered in this light and is unwarranted.
14. Given that the applicant has failed to produce sufficient evidence to cast doubt on the findings made by the respondent with respect to these allegations, the evidentiary burden has not shifted to the respondent in relation to them. It follows that there is no basis for this Commission to interfere in those findings.

Allegations 4, 5 and 6

1. These allegations were admitted by the applicant.
2. The respondent has submitted that there is no need for these allegations to be further scrutinised or assessed by the Commission. I agree and don't propose to do so.

Allegations 8, 9, 10 and 11

1. The respondent dealt with these allegations in the Statement of Reasons (at [12] above). I agree with the findings made by the respondent with respect to each of these allegations and the comments made about them in the Statement of Reasons.
2. The unauthorised access of the COPS database by the applicant, his disclosure to his partner of confidential information and his non-disclosure of an obvious conflict of interest to a senior officer were serious contraventions of the Police Act 1990 (ss. 7(h)), the Crimes Act 1900 (ss. 308H(1)), the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Computerised Operational Policing System User Guide. It follows that I reject the applicant's description of the respondent's characterisation of these events as "unfairly overblown".
3. I have determined that there is no basis on the material before the Commission to interfere with the respondent's findings with respect to Allegations 8, 9, 10 and 11.

Conclusion

1. I have taken into account the personal circumstances of the applicant and the impact that the loss of his career of 31 years has had on him financially and in other ways. I also note that the most recent medical evidence before the Commission, a report by Dr Selwyn Smith, Consultant Psychiatrist, dated 22 October 2019, contains the following: In my opinion Andrew currently has no capacity to work with the NSW Police Force. Returning him to work with the NSW Police Force would in all probability result in marked emotional regression. He in my opinion should be considered for discharge from the NSW Police Force on medical grounds.
2. In my opinion, on the material before the Commission, the respondent's findings with respect to each of the 11 allegations against the applicant are soundly based. It is my conclusion that the removal of the applicant from the NSW Police Force was neither harsh, unreasonable nor unjust.

Order

1. I order that the application by Andrew Bolton for review of the order made by the Commissioner of Police on 21 October 2019 pursuant to section 181D of the Police Act 1990 be dismissed. John Murphy Commissioner

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: 04 September 2020