Bradley George Hosemans and NSW Police Service [2003] NSWIRComm 396

10 It was suggested that the applicant's position was that the matter should be dealt with like any other unfair dismissal case: it was a hearing de novo with evidence to be led by both parties. In this case, that involved the possibility of calling all the witnesses or a substantial number of witnesses heard in the Local Court. There were approximately 16 witnesses in the prosecution case. Counsel for the applicant confirmed the submission that the matter was to be dealt with as a hearing de novo with the opportunity to review the evidence before the Local Court that was considered and acted upon by the Commissioner. In this particular case, the Magistrate had formed certain views based on credit and demeanour and those matters could only be tested in these proceedings by hearing at least some of the evidence by those people being called in the Commission proceedings. Counsel for the applicant also accepted that no notice to adduce new evidence had been given under s 181G(1)(f) but that additional evidence was desired to be called, firstly in relation to what the applicant had done since his termination and secondly, additional character evidence. It was also disclosed by the applicant, and appeared to be accepted by counsel for the Commissioner, firstly, that in the applicant's Reply the Commissioner had been invited to read the whole of the transcript although specific parts had been nominated as disclosing conflict in the evidence, but that the Commissioner did not read all the transcript although he did consider the applicant's written Reply including those matters which highlighted conflict in the evidence in the Local Court. From the applicant's point of view it was thought appropriate, because of the issue of whether or not the applicant exposed himself in the Club, to have the complainant available for cross-examination and for the same reason to have the applicant give evidence with perhaps at least one other witness.

11 Counsel for the Commissioner pointed out that, in his Reply to the Commissioner's Notice, the applicant had made detailed reference to evidence which not only demonstrated a conflict with the complainant's account but also tended to support the applicant's account of certain critical incidents. Specific extracts from the evidence of witnesses was not attached to the applicant's statement. The applicant had every opportunity to put whatever he wanted for the consideration of the Commissioner. Nevertheless, the Commissioner was content for the Commission to have the whole of the Local Court transcript for the purposes of conducting the review. The Commissioner however resisted making the witnesses in the Local Court proceedings available for cross-examination on the review - this was simply not contemplated by the legislative scheme. There was also no room to add to the character evidence when that matter had been raised by the applicant and dealt with before the Commissioner. In the Commissioner's submission, the review under s 181G was not an ordinary unfair dismissal case, was not a hearing de novo and was not an appeal. It was a review of the material before the Commissioner to determine whether the decision made by the Commissioner was harsh, unjust or unreasonable. The nature of the review, having regard to the legislative provisions, was in the nature of a judicial review of administrative action accepting that the legislation required the Commission to deal with the case rather than the Commission in Court Session but requiring the Commission to be constituted by a judicial member.

12 Having regard to the manner in which the issue arose, the applicant's contention that the full transcript should be available on the review was treated as an application for the admission of new evidence pursuant to the provisions of s 181G(f). That request was acceded to and an affidavit was allowed to be read which briefly set out what the applicant had been doing since the termination. A ruling was also delivered that the Commissioner was under no obligation to make the complainant available for cross-examination. In the result, the material before the Commission on review was firstly, the material considered by the Commissioner; secondly, the entire transcript of the proceedings before the Local Court and thirdly, the short affidavit indicating how the applicant had been occupied since his removal from the Police Service.

13 Although it was accepted that consideration had previously been given to the operation of the review provisions in the Police Service Act, the point which arose in this particular case appeared not have previously arisen for consideration.

In Newton v The Commissioner of Police (1998) 85 IR 119, Peterson J dealt extensively with the legislative history and the context in which the present provisions arose. In that case, the applicant attempted to confine the review to the validity of the process adopted by the Commissioner and requiring the Commission to rule on that issue alone thus preventing the Commissioner from dealing with the merit of the case which led to the removal of the officer. That approach was rejected by Peterson J who accepted that an applicant might base his whole case on the validity of the decision made but by doing so could not confine the Commissioner to that ground nor could the Commission be excluded from considering the merit of the case.

14 In dealing with the legislative history, Peterson J noted that the Police Service Act 1990 permitted consideration by a number of bodies with numerous layers of appeals and review in relation to disciplinary matters. Under that legislative scheme there was the Police Tribunal, an appeal to the Review Division of the Police Tribunal and an appeal against dismissal to the Government and Related Employees Appeals Tribunal (GREAT). The 1995 Amendment Act arose from the investigations of the Police Royal Commission and authorised the Commissioner to dismiss a police officer if he formed the opinion, based on information arising out of the Royal Commission, that the officer had engaged in corrupt conduct and was no longer a fit and proper person to hold a position in the Police Service. The officer was given an opportunity to make written submissions in relation to a notice setting out the grounds on which the Commissioner formed the opinion but there was no appeal available to GREAT. An officer could however make an application under Part VIII, Unfair Dismissals, of Chapter 3 of the Industrial Relations Act 1991. By further amendment in 1996 the emphasis on information obtained from the Royal Commission was removed and substituted a test of the Commissioner's confidence based on the police officer's competence, integrity, performance or conduct. The Commissioner's decisions were open to challenge in the Supreme Court based on principles of review of administrative action, but there was no appeal available to GREAT or the Industrial Relations Commission in relation to dismissal or removal from the Service. The 1997 amendment introduced the review process in the Commission with the Commission being constituted by judicial members.

15 Peterson J came to the conclusion that the Police Service Act as amended required the Commissioner to examine the dismissal of a police officer with a view to determining whether or not it was harsh, unreasonable or unjust and that such an examination was to be undertaken with the applicant bearing the onus of establishing that the removal was harsh, unreasonable or unjust. His Honour stated that the matter was not confined to an examination, from the perspective of administrative law, of the reasons to ascertain their adequacy or validity but from the perspective of the substance of the matter.

16 In Newton extensive reference was made to the respective Second Reading speeches in order to confirm the meaning of the words used in the various provisions. The Second Reading Speech concerning the 1996 amendment acknowledged the final report of the Police Royal Commission and the Recommendation that greater flexibility should exist to permit the Police Commissioner to deal with, inter alia, discipline in a quick, fair, straightforward and managerial way without undue procedural or bureaucratic constraints. It was noted that dead wood had to be removed from the Service if the reforms were to succeed and that the present system of reviews and appeals was cumbersome and acted as an impediment to that task. It was recognised that the introduction of the Commissioner's confidence provisions vested considerable power in the Commissioner which required checks and balances to ensure that it was neither exceeded nor abused. It was apparent that the 1996 amendment did not entirely adopt the Royal Commissioner's Recommendations which sought a speedy system for termination subject to review based broadly upon the Wednesbury principle and in conformity with the approach of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

17 The 1997 Amendment accepted that the 1996 provisions were, at the time, exceptional and designed to deal with an exceptional situation with appeal rights being limited to review by the Supreme Court on Administrative Law or judicial review principles. The new Amendment provided officers with a right of review in the Industrial Relations Commission in a similar but not identical way to other workers covered by the unfair dismissal provisions. The Industrial Relations Commission was to review the merits of the decision of the Commissioner allowing both the fairness of the process by which the decision was arrived at and the facts upon which the decision was based to be considered, and to be assessed as to whether the removal was harsh, unjust or unreasonable. Limits were to be placed on introducing new evidence with either notice being given or leave of the Commission being obtained.

18 Peterson J formed the view that the approach manifested in the 1997 amendments created a procedure which was tailored particularly to meet the special needs of the Police Service as they were perceived in the light of the final Report of the Police Royal Commission. Division 1C of Part 9 of the Police Service Act as amended by the 1997 amendment concerned the review of the Commissioner's decision to remove an officer made under Division 1B. Division 1C contained the Review provisions applicable to proceedings in this Commission but there was no express reference to be found in Division 1C to notions of administrative law review. Section 181E emphasised that a police officer who was removed from the Service by an Order under s 181D may apply to this Commission for a review of the Order on the ground that the removal is harsh, unreasonable or unjust. The obligation imposed on the Commission was to proceed in a review by considering first the Commissioner's reasons for decision and then the applicant's case, as to why the removal was harsh, unreasonable or unjust. This approach was approved on appeal (Newton v NSW Police Service (1999) 87 IR 66).

19 In my view, reference to the history is necessary in order to ascertain the legislative intention, particularly in the way in which the Commission's unfair dismissals jurisdiction is specifically modified when dealing with the removal of a police officer under the Commissioner's confidence provision. This approach was also adopted by Walton J, Vice-President in Van Huisstede v Commission of Police (2000) 98 IR 57.

20 The question then arises as to what was contemplated by the legislature when it provided for a review of the Commissioner's decision in Division 1C of Part 9 of the Police Service Act 1990. In the Commissioner of Police v Donlan and Hanson (unreported, Court of Appeal, 20 June 1995) the Court of Appeal examined the nature of an appeal from GREAT but in so doing dealt with a number of matters pertinent to the current discussion. In relation to the jurisdiction exercised by GREAT, Clarke JA (at p 27) stated that - … GREAT's jurisdiction in a disciplinary appeal such as this is of a protective nature. This principle has been laid down in a line of cases relating to the exercise of disciplinary jurisdiction of which the New South Wales Bar Association v Evatt (1967) 117 CLR 177 at 183-4 is a good example and has been applied in the context of a Commonwealth policeman in Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597 where the Full Federal Court said: The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish. That seems to me to be a concise and admirable description of the relevant principle.

21 In that case, the appellants had argued that in dealing with the police officer's appeal GREAT had asked itself the wrong question. It was suggested that the Tribunal asked itself: "What punishment is appropriate in the circumstances?", when the correct question was whether it was in the public interest and the interest of the Police Service that the respondents should be allowed to continue as police officers. This was the correct question because, according to well established doctrine, the relevant disciplinary jurisdiction invested in GREAT was protective.

22 While agreeing with these observations, Powell JA discerned a different error which he explored in a minority judgment on that point. His Honour said that the Tribunal failed to appreciate that its role was to review "the Commissioner's decision", that is to say, to determine that that decision was correct - rather than to make a fresh and independent decision on the material before it (at paragraph [3]). Further, the Tribunal failed to appreciate that the power, the exercise of which by "the Commissioner" was the subject of that review, while it may loosely be described as a power to punish for an offence found to have been proved, was a power conferred on the Commissioner, and is to be exercised by him for the protection of the public.

23 His Honour referred to the judgment of McHugh JA (with whom Priestley JA agreed) in Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234, 249 which dealt with an appeal under s 54 of the GREAT Act: When the legislature gives to a court the power to review or hear 'an appeal' against the decision of an administrative body, a presumption arises that the court is to exercise original and not appellate jurisdiction: ex parte Australian Sporting Club Ltd; re Dash (1947) 47 SR (NSW) 283; 64 WN 63. The court hears fresh evidence and determines the case as at the date of hearing on the materials and the law then applicable. The rule is not an absolute one and gives way to any contrary indication in the terms of the statute conferring jurisdiction: Builders Licensing Board v Spurway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621. The position with respect to the hearing of an appeal by one administrative body against the decision of another administrative body is perhaps not so clear. No doubt the matter must ultimately be determined by the terms of the statute which confers the right of appeal.

24 His Honour went on to consider the decision of the Full Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 a case which required the Court to consider the nature of the jurisdiction of the Administrative Appeals Tribunal in reviewing an administrative decision. That Tribunal had power to admit evidence on review. Bowen CJ and Deane J said (at 419,): The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. In relation to this passage, Powell JA said: This passage brings out the point that, although the Administrative Appeals Tribunal may hear evidence which was not before the Administrator, nevertheless it is the correctness of his decision which remains the focus of review. That is to say, the Tribunal does not itself make a new decision but reviews the original decision of the Administrator. It is true that these two decisions were not uninfluenced by the terms of the legislation which they were considering. Nevertheless they are consistent with the principle, that, in the absence of a contrary legislative indication, the conferring of a right of appeal to an administrative tribunal against an administrative decision is not a grant of jurisdiction to make a fresh or original decision. Uniformity of approach in this area of the law is highly desirable. Accordingly, I think those two cases would be taken as establishing that there is a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made. The hearing is not de novo. This is so whether or not the Tribunal is empowered to hear additional evidence. While his Honour's view turned on the particular aspects of the case before the Court, the principles he referred to are unexceptional.

25 As earlier referred to, the choice of the term "review" in Part 9 Division 1C of the Police Service Act 1990 appears to be quite deliberate. The legislature appears to have adopted the term "review" rather than "appeal", although an appeal may take many forms and in some circumstances be similar but not identical to a review (see the categories of appeal referred to by Glass JA in Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281 at 297). The precise nature of the appeal is to be derived from the terms of the legislation and so it is with a "review".

26 In Re: Brindle and anor; ex parte F B & F A McMahon Pty Ltd (1992) 35 FCR 506, Hill J gave consideration to the nature of a "review" under the Bankruptcy Act, and firstly gave consideration to the definition from the Shorter Oxford English Dictionary, namely: The act of looking over something (again), with a view to correction or improvement … Law. revision of a sentence, etc, by some other court or authority. He then noted that Burchett J in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 accepted that last definition as conveying the legal meaning of the term. The Macquarie Dictionary gave the legal meaning as: "Judicial re-examination, as by a higher court, of a decision or proceeding in a case". The expression "review" had commonly been used in the context of judicial control of administrative action, (Council of Civil Service Unions v The Minister for the Civil Service [1985] AC 374 at 408, per Lord Diplock). It had also been used in the context of full administrative review of administrative decision-making by an Administrative Tribunal. The nature of the legislation bringing about a different type of "review" was highlighted by reference to the Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977 (Cth). Under the Administrative Appeals Tribunal Act, the Tribunal was able to review decisions where such a right was conferred by legislation. The provisions of the legislation meant that the review conducted by the Tribunal of administrative decision making operated as a re-hearing and the Tribunal was not restricted to the evidence that was before the decision makers. The Tribunal stood in the shoes of the decision maker in reviewing the decision under attack, much like the Taxation Boards of Review. By contrast, the Administrative Appeals (Judicial Review) Act provided for an application by a person aggrieved by a decision to which the Act applied to apply to the Federal Court for an order of review of that decision. The review was limited to considering the evidence that was before the decision maker, or ought to have been before him. Events after the making of a decision had no relevance except perhaps on discretionary matters.

27 Hill J also referred to Harris v Caladane (1991) 172 CLR 84 dealing with the validity of delegation by the Family Court to Judicial Registrars. The review there being conducted was specified as an appeal de novo rather than an appeal stricto sensu or an appeal by way of re-hearing. His Honour noted the difference between the three lay in the fact that an appeal stricto sensu was limited to determining whether, upon the material below, the conclusion was properly reached. Where the appeal was by way of re-hearing the Appeal Court did not, without leave, hear evidence but decided the matter as at the date of the appeal upon the evidence adduced below. A hearing de novo involved the complete re-hearing of the matter, taking into account the evidence as at the date of the appeal.

28 Bearing in mind the general type of process contemplated by a "review", it is necessary to consider the statutory framework under which the review of the Commissioner's decision is to be conducted. Under Part 9 Division 1B, s181D, the Commissioner is able by Order in writing to remove a police officer from the Service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer having regard to the officer's competence, integrity, performance or conduct. Before making such an order, the Commissioner must give the officer notice setting out the grounds for the lack of confidence, plus give the officer at least 21 days within which to make written submissions in relation to the proposed action, and must take into consideration any written submissions received from the officer during that period. The Order must set out the reasons for which the Commissioner has decided to remove the officer from the Police Service. Except for the review in the Commission under Division 1C, no Tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner made under s 181D nor does any appeal lie to any Tribunal in connection with any Decision or Order under that section. "Tribunal" is defined to mean "a court, tribunal or administrative review body and includes GREAT and the Industrial Relations Commission". However, nothing is said to affect the jurisdiction of the Supreme Court to review administrative action. It is also provided that, for the purposes of the Act, removal of a police officer from the Service under s 181D has the same effect as if the police officer had resigned or, where the officer is over 55 years of age, had retired from the Police Service. It is at the conclusion of this process that review in the Commission is available.

29 In Division 1C of Part 9 of the Act, s 181E provides for a review of the Commissioner's decision to remove an officer from the Service. Such an officer may apply to the Industrial Relations Commission for a review of the Order on the ground that the removal is harsh, unreasonable or unjust. It is the duty of the Commissioner to make available to an applicant for review all the documents and other material upon which the Commissioner relied in deciding he did not have confidence in the applicant's suitability to continue as a police officer.

30 Section 181F governs the conduct of the review by the Commission. It requires the Commission to firstly consider the Commissioner's reasons for the decision to remove the applicant from the Police Service; secondly, to consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust; and thirdly, must consider the case presented by the Commissioner in answer to the applicant's case. During the course of the review the applicant "has at all times" the burden of establishing that the removal from the Service was harsh, unreasonable or unjust and that provision is to have effect despite any law or practice to the contrary. Without limiting the matters which the Commission is otherwise required or permitted to have regard to in making its decision, the Commission must have regard to two things: firstly, the interests of the applicant; and secondly, the public interest which is taken to include the interests of maintaining the integrity of the Police Service and the fact that the Commissioner made the Order under s 181D(1).

31 Although the application for a review is made under s 181E of the Police Service Act, s 181G requires the provisions of the Industrial Relations Act 1996 to apply to the review in the same way as they apply to an application under Part 6 (Unfair Dismissals) of Chapter 2 of the Industrial Relations Act, but subject to a number of modifications. The most significant of the modifications appear to be as follows: (a) the time limit set by s 85 to apply for a review is reduced from 21 days to 14 days; (b) the Commission's requirement to endeavour by all means proper and necessary to settle the applicant's claim by conciliation is modified so that a judicial member of the Commission who is involved in any such endeavour is not permitted to subsequently be involved in the conduct of the proceedings on the review; (c) under s 89 there is no power in the Commission to determine a claim relating to a threat of dismissal and thus there may be no order that the employer not dismiss the employee; (d) under s 162, dealing with procedures generally, rather than the Commission being obliged to act as quickly as practicable, there is a requirement for the Commission to commence hearing the application within four weeks of the application being made; (e) s 163, whereby the Commission is not bound to act in a formal manner and is not bound by the rules of evidence and may inform itself on any matter in any way it considers to be just, is modified so that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, had been given in accordance with the regulations under the Police Service Act, or (ii) the Commission gives leave.

32 The circumstances under which the Commission may grant leave to adduce new evidence under s 181G(f)(ii) is set out in s 181G(2). Leave may be granted in such circumstances as the Commission thinks fit and, having regard to the nature of the proceedings under s 181F and without limiting the generality of that discretion, the Commission is required to grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information; (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously; (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision.

33 There are other provisions which indicate the nature of the review. Firstly, under s 181H, in any proceedings before the Commission on review neither the Commissioner nor any member of a Commissioner's advisory panel is compellable to give evidence in relation to the exercise of the Commissioner's functions under s 181D unless the Commission gives leave to do so. Secondly, the Commission may give such leave only if it considers that extraordinary grounds exist to warrant such leave being granted. Under s 181I, s 128 of the Evidence Act dealing with privilege in respect to self-incrimination in other proceedings is to apply to a witness giving evidence before the Commission in proceedings under Division 1C in the same way as it applies to a witness giving evidence in proceedings before a court and treats the Commission for the purposes of such provision as a court. Further, nothing is to limit or otherwise affect the admissibility in evidence in proceedings before the Commission, of any transcript of proceedings of any other court or tribunal.

34 It may be noted at this point that the provisions of s 88 of the Industrial Relations Act apply such that the Commission may, if appropriate, take into account a number of circumstances, such as whether or not a reason for dismissal was given to the applicant, whether or not reinstatement or re-employment was sought and how the employer responded to such a request; whether a reason for dismissal was given whether it had a basis in fact and whether the applicant was given an opportunity to make out a defence or explain their behaviour. Considering the nature and requirements of the Police Service Act under Division 1D, these provisions of s 88 have limited application but it would seem that it is part of the Commission's role under this regime to consider whether there was any basis in fact for the reasons given by the Commissioner for the removal of the officer.

35 Having regard to the nature of a review as dealt with by Powell J in the Commissioner of Police v Donlan & anor, it would appear that by reference to the statutory regime the task of the Commission is to determine whether the Commissioner's decision had a basis in fact and was correct on the material before the Commissioner or on any further evidence admitted by the Commission. The Commission is also to determine whether the decision is harsh, unjust or unreasonable having considered the Commissioner's reasons for decision, the case presented by the applicant as to why the removal was harsh, unreasonable or unjust and any case brought in answer by the Commissioner. In this process of review, the onus remains at all times on the applicant (a distinctly different approach to that under the Industrial Relations Act) so that not even the notion of a shifting evidentiary burden would apply. In its consideration the Commission must have regard to the interests of the applicant and the public interest including the maintenance of the integrity of the Police Service and the fact that the Commissioner has made an order under 181D(1). Under such a review the Commission is not exercising the power of removal anew by making a new decision, but is to review the original decision of the Commissioner.

36 The tortured history of appeal provisions available to police officers is set out in Newton and is also dealt with in Van Huisstede. That history confirms a legislative intent following the Royal Commission, to streamline the provisions whereby an officer may be removed from the Service, and the officer's ability to challenge the decision, requiring the hearing of such a challenge to be commenced within a short period of time from lodgment of an application for review. The previous system, described as cumbersome, protracted and legalistic, was thrown out by Parliament - the Commissioner was to be able to quickly free the Service of those failing to live up to professional standards of integrity, competence and behaviour. Officers removed could seek review in the Commission similar to the protection provided to other workers under unfair dismissal provisions, but not identical provisions - there were important difference (see Second Reading Speech reproduced in part by the Full Bench in Newton v NSW Police Service (1999) 87 IR at 78). These provisions now in operation follow a number of models designed to meet the exigencies of the time, and their nature indicates that the present regime represents somewhat of a compromise between a draconian model of removal without the right of challenge and a relatively unfettered right to take proceedings for unfair termination under Part 6, Chapter 2 of the Industrial Relations Act 1996. This recital of background factors leads me to conclude that primarily the review in the Commission is to be undertaken on the material considered by the Commissioner, the response made by the applicant officer and a consideration of what each party says about the allegation of unfairness, harshness or unreasonableness of the decision. This view is strengthened by the fact that the Commissioner in making his decision to remove an officer does so without conducting a hearing or permitting the officer to cross-examine persons whose evidence is to be considered by the Commissioner. The statutory regime requires all the material considered by the Commissioner and the submissions made by the applicant officer to be considered on review and, importantly, then limits the adducing of further evidence. The Commissioner as the decision maker, is not compellable unless extraordinary circumstances are made out. The review is clearly not a hearing de novo nor in its presentation is it the same as a proceeding under Division 6, Part 2 of the Industrial Relations Act. 37 In my view, s 181G(1)(f) operates on the basis that prima facie new evidence may not be adduced, and it is only in particular circumstances that it may be adduced. The primary reason for permitting new evidence may be summarised as being justified in circumstances where the new evidence would tend to undermine the reliability of the material considered by the Commissioner (that is, the information was wrong or mistaken; the information was unreliable or placed maliciously, fraudulently or vexatiously before the Commissioner; or that the new evidence might materially effect the Commissioner's decision). These provisions do not contemplate that the material considered in an administrative process by the Commissioner would be placed before the Commission on review by actually having witnesses either give their evidence viva voce or simply requiring witnesses to attend so that the applicant may cross-examine those witnesses for the purposes of the review. Indeed, only "new" evidence is to be admitted: the evidence already before the Commissioner is not "new" evidence and the legislative scheme does not contemplate existing evidence being given again, orally or by way of expanded affidavits or witness statements.

38 It is correct that s 181G(1)(f)(1) contemplates evidence being adduced following notice of intention to do so and provision of the substance of the new evidence being given in accordance with regulations under the Act. No regulation has been promulgated, and in Van Huisstede it was decided that the absence of a regulation would not inhibit the Commission giving effect to the provision. The provision is, however, a curiosity. In Van Huisstede it was held that the absence of a regulation for the operation of s 181G(f)(i) did not prevent the introduction by notice of new evidence on review. New evidence was to be allowed, either by the giving of notice or by leave of the Commission.

39 This approach was said to be authorised by reference to the judgment of Kitto J in Downer v Pryor (1960) 103 CLR 353. The High Court was dealing with the right of an elector to inspect books of account held by a local Council. At p 363, Kitto J said: No doubt the introduction, into a provision, conferring a right, power or authority (it will suffice to speak of an authority), of words requiring that in exercising the authority a prescribed method (to use the word in a comprehensive sense) shall be observed, may have either of two results. Upon consideration of the words themselves, the context, and the nature of the provision, the intention may appear that a prescribed method is of the essence of the authority, so that there is no authority capable of exercise at any one given time unless at that time a valid prescription of a method is in force … But on the other hand the meaning may be that the authority is to be subject to a power in the Executive to regulate its exercise and that in the reference to the prescribed method the words 'if only" are to be implied … . In the latter class of cases, a person exercising the authority must observe any method which is prescribed for the time being; but if none is prescribed the authority is exercisable by an appropriate method.

40 Kitto J was drawn to this last approach because the broad intention of the legislature appeared to be that the Council's books shall be open to inspection by the electors. This ability to inspect was so potentially important a feature of the system of local government that nothing but the clearest language could justify the conclusion that Parliament intended that the Executive not only decide how the right of inspection shall be regulated; but by preferring silence, deny to the section all operation.

41 Windeyer J said that this was not a case where a prescription of something pursuant to a statute is necessary to complete a right - it was rather a case of the statute recognising that a right given by it may be further defined, or its exercise regulated by ordinance: But sometimes, as here, a question can arise as to which result the language of a particular enactment produces. Where it is said that something is to be done in a prescribed manner, and there are several ways in which that very thing can be done, then, prima facie, the enactment is ineffectual until one of these ways is prescribed (Browne v Commissioner of Railways (1935) 36 SR (NSW) 21; Cameron v Deputy Federal Commissioner of Taxation (Tas) (1924) 34 CLR 8). In the present case there was only one way to inspect the books and that was to look at them.

42 In Browne, Jordan CJ, speaking for the Full Court (at p 29) said: If it is provided by Statute that an application may be made to a Court within the time and in the manner and on the conditions directed by rules of Court, this is regarded as creating a right in the applicant to make, and a duty in the Court to hear, the application, irrespective of whether any rules have been made. In such a case, there is a power in the Court to prescribe conditions by rule, but until it does so, the Court must deal with applications as justice and common sense demand: Inland Revenue Commissioners v Joicey [1913] 1 KB 445 at 451, 454-6); H.M.S. Archer [1919] P. 1 at p 5); White Transit Co Ltd v Metropolitan Transit Co Ltd v Metropolitan Transport Trust (Cor. Harvey J. 5-6-31). It has been said also that where an Act provides that something is to be done by a public officer of a judicial or quasi-judicial nature, and no machinery is provided, he must do the best he can with the means he has available: Edgar v Greenwood [1910] V.L.L 137 at pp. 144-5). But the matter in question in the present case is the deprivation of an office of certain legal rights to which he is entitled by virtue of a permanent office in the railway service which he holds during pleasure. Section 82 says, in effect, that the head of his branch may in certain circumstances deprive him of these rights in the prescribed manner. Only the Commissioner, subject to approval by the Governor and disallowance by Parliament, can prescribe the manner; and no such manner has been prescribed. In these circumstances, the position of the head of a branch differs radically from that of a tribunal which there is nothing to prevent from providing its own machinery. I think that the prescription of a manner must be regarded as intended by the Legislature to be an essential condition of action under the section.

43 In Van Huisstede, Walton J approached s 181G(1)(f)(i) on the basis that the words "if any" were to be assumed as part of the provision. This result was preferred because it ensured that no party was taken by surprise and further, it would facilitate a smooth hearing. With respect to his Honour, I am unable to agree with that approach. The cases cited appear to say that the question is primarily one of construction. It is common ground that the Commissioner's "confidence provisions" were introduced to streamline both the removal of officers and their access to review. The Commissioner in reaching his decision to remove an officer is not required to conduct a hearing and may reach his decision "on the papers". The officer is entitled to file a response and all these documents are available to the Commission on review, which is to commence hearing the matter within four weeks of the application being made. Section 163 of the Industrial Relations Act is modified so as to prohibit new evidence being adduced before the Commission unless one of two conditions is met - s 181G(1)(f) does not confer a right to adduce new evidence, it establishes a statutory limitation. It is incongruous, to say the least, that a limit on new evidence would immediately create an unfettered right by notice to introduce new evidence. So approached, this "right" would encourage a flurry of evidence gathering on review which could have been put before the Commissioner but was not.

44 In my view, s 181F(1)(f)(i) is as described by Windeyer J in Browne: it is designed to operate as some type of restriction, but the restriction is unknown and therefore is inoperative until the restriction is promulgated. It is not a matter covered by a rule of Court, but is one left to the regulation maker. No great harm is done by this approach because all parties may, by leave, adduce new evidence under s 181(1)(f)(ii) with the same benefits as identified by Walton J. The applicant's approach may be tested in the context of this case: by notice, a party could, as of right, call all 18 or so witnesses who gave evidence in the Local Court. The review would thereby be extended by many days and the benefit of a speedy hearing lost. I am unable to discern this result to be the intention of Parliament. 45 The situation did not arise in the present case because no notice under s 181G(1)(f)(i) was, in terms, given and because it was ultimately agreed that the whole of the transcript before the Local Court should be admitted into evidence. A further consideration in granting an application for new evidence must be that it will, in some cases, widen the nature of the review and require, as a matter of procedural fairness, the opposing party to call additional evidence to meet the new material. The appropriateness of such a course will need to be considered in the circumstances of each case. Where new evidence is permitted, the task of the Commission is not altered but the Commission has a wider field for considering whether there was a basis in fact for the decision made by the Commissioner and whether the ultimate decision to remove the officer was harsh, unreasonable or unjust having regard to the all the circumstances then before the Commission. In addition, following the judgment in Newton (see also the judgment on appeal (1999) 87 IR 66), it is clear that administrative law remedies are preserved in the Supreme Court, but an officer may challenge his removal on grounds solely or substantially based upon a denial of procedural fairness, but that such a case could not preclude the Commissioner and the Commission from considering the entire merit argument in determining the review.

46 It is also relevant that this statutory regime operates on the loss of the Commissioner's confidence. In terms, it does not require misconduct as understood in unfair dismissal cases brought under Part 6, Division 2 of the Industrial Relations Act but operates on a much broader field of consideration having regard to the important functions performed by police officers. That may be one reason why the removal does not operate as a dismissal from the Police Service but as a resignation or retirement with entitlements to accrued benefits. All these factors point to the review process being quite differently focused to that of usual unfair dismissal applications, although there are many features which overlap as considered in Little v Commissioner of Police (2002) 112 IR 211 and Van Huisstede. In the same vein, this statutory regime does not reflect usual public sector disciplinary provisions which often contemplate or require the conduct of an investigation and the laying and proving of charges.

THE MATERIAL CONSIDERED BY THE COMMISSIONER 47 Annexed to the Notice served on the applicant under s 181D(3)(a) of the Police Service Act, was a submission of some 14 pages which summarised the case against Detective Hosemans and which the Commissioner said he had read and taken into account in issuing the Notice. It was said that the submission "augments the matters raised in the Notice" and Detective Hosemans was invited to deal with it in his response to the Notice.

48 The submission recorded that the applicant had entered the Police Service in 1982 but had resigned in 1985, only to return to the Service in 1988. In November 2001, he entered into an arrangement whereby he was to continue at Bathurst Police Station under strict supervision and his services were to be reviewed after each court appearance commencing on 3 December 2001. The Detective was not placed on suspension with or without pay and, apart from periods of annual leave had remained on duty since the date of the alleged incidents.

49 The submission recorded that the complainant has been employed by the Bathurst Golf Club as a casual bar attendant and had known the applicant for about seven years, describing their relationship as mutually friendly. A Mr Woolfe also attended on the night of this incident at the Club and had previously been in a relationship with the complainant for about five years but they remained friends although the relationship had ended.

50 On Saturday, 20 October 2001, the complainant was working at the Club during a seafood night for members and their guests. During the course of the evening, the applicant became involved in a situation that developed between the complainant and Mr Woolfe. During that incident both the applicant and Mr Woolfe indecently grabbed at the complainant's breasts or attempted to indecently assault her in the bar area of the Club. Later that evening, it was alleged that the applicant took his penis out of his trousers and exposed himself while behind the bar. There was a further complaint by the complainant that the applicant came behind the bar during the night and lifted her bodily off the ground pushing her backwards and jamming her legs against the glass trays whilst pushing her onto the bar. The complainant said that she received bruising to the back of her legs and buttocks and experienced soreness to her ribs.

51 Detective Hosemans was charged with aggravated indecent assault, assault occasioning actual bodily harm and wilful and obscene exposure, but all charges were dismissed by Deputy Chief Magistrate Henson at the Bathurst Local Court. Mr Woolfe was also charged with aggravated indecent assault and also found not guilty. The submission stated that the Magistrate, in his summation, determined that Detective Hosemans (and other witnesses) were untruthful in giving evidence during the hearing.

52 The summary attached a statement and two records of interview given by the complainant. In relation to the incident concerning the applicant grabbing at her breasts, the complainant said that she had hit Mr Woolfe because she believed that he told another person of their prior sexual relationship: she told him he had a big mouth and leaned across the bar and "tapped him once only on the chin with the back of the fingers of my right hand". The complainant said that the applicant immediately leaned across the bar and grabbed hold of the upper chest area of the front of her shirt with one of his hands. She said she was then pulled hard against the bar so that she was forced to lean against the bar and stand on tiptoe when the applicant with his other hand grabbed at her breasts. She then crossed her arms to prevent him from touching her any further. The complainant said that the applicant had continued to hold the front of her shirt with one hand and kept her forcibly pinned against the bar while he and Mr Woolfe both tried to grab her breasts. She said she yelled out words similar to "Fuck off, let me go", and pulled back at which point the applicant let go of her shirt. She said neither men said anything but laughed. The complainant said that Mr Newman, another bar attendant who was working with her, approached her and asked "Were they trying to feel your tits?", to which she said she replied "Yeah, they did".

53 It was noted that Mr Newman gave a different version of the verbal exchange in his statement which was attached. Mr Newman said that he asked the complainant if the two were "trying to grab her on the tits" to which she replied, " … they tried but they didn't succeed" or something along those lines. The complainant also said something along the lines that they were too drunk and too slow. Mr Newman also said in the statement: I can remember that two of the men reached over the bar and attempted to grab Karen on the breasts. Both reached over and appeared to try and pinch her on the breasts. They grabbed her shirt, I'm not sure if they grabbed her breasts at the same time Karen tried to move backwards but they held onto her shirt. Karen seemed to let out a playful noise, like a giggle and moved back.

54 Mr Johns was the complainant's boyfriend and provided a statement which was attached to the submission. He had picked up the complainant from the Golf Club after 12.30 am on 21 October and noticed she was upset and crying. She told him that Mr Woolfe and Detective Hosemans had pulled her over the bar, had sat her on the bar and they were feeling her breasts. He said that she continued to be upset once they arrived home and she was unable to sleep that night.

55 The applicant declined to be interviewed by police but at the Local Court gave evidence in May 2002. Parts of the transcript of his evidence were an attachment to the statement. It was recorded that the applicant had denied indecently assaulting or assaulting the complainant or that his behaviour was contrary to the Police Code of Conduct or that expected of a Deputy Mayor, a position he held at the time on Bathurst Council. The extract from the transcript showed that he denied committing an act of indecency upon the complainant. He gave details of the friendly relationship with the complainant over a number of years and her friendly behaviour towards him during the course of the evening. He had seen the complainant slap Mr Woolfe across the face and then took hold of the front of her shirt with his left hand to prevent a "situation from developing". He said that Mr Woolfe had taken hold of the front of the complainant's shirt at the same time but he denied that he touched her or in any way intended to touch her breasts. The transcript of these exchanges were attached, as were other parts of the cross-examination.

56 The submission then records the fact that the Magistrate considered the evidence of Detective Hosemans and Mr Woolfe grabbing the complainant on the breasts. His Worship expressed the view that there were parts of the complainant's evidence which were not true in fact and that section was extracted from the transcript and annexed. It was accepted that the defendants took hold of the complainant's clothing and that they were trying to grab her breasts, but also accepted that the complainant said they tried but failed. The Magistrate noted that Mr Newman's evidence was that the grabbing was around the chest area near the breast and that the complainant did not seem to be too worried and had sort of giggled and moved backwards breaking the hold. Mr Newman had described the defendants making a sort of a pinching motion between thumb and forefinger. Mr Newman had felt that there was something out of place and asked the complainant if the two had been trying to grab her breasts to which she replied "No, but they tried and didn't get me" - they were too drunk and they were too slow. The Magistrate also accepted Mr Newman's evidence of the way in which the hands, thumbs and forefinger of each defendant were in motion in the vicinity of the complainant's breasts and he was in no doubt that Mr Newman knew what these two defendants were up to.

57 The Magistrate was satisfied that both the defendants were attempting to touch the complainant on the breasts in the pursuit of personal sexual gratification but concluded that there was a reasonable doubt as to whether they were successful in touching the complainant's breasts. It was a "close run thing" with a line between the proximity of the attempt and its success being extremely close, and that he was left with the view that he could not proceed to record a finding of guilt. It was also recorded that the Magistrate criticised the Crown case in his summation and expressed the view that the Crown was entitled to ask the court to consider an attempt by the defendant to commit the offence of indecent assault. Had the prosecution sought a verdict in the form of an attempt, then the defendant would have been found guilty: the Magistrate stating "Of that no one should be left in any doubt".

58 In relation to the applicant's alleged indecent exposure, the statement noted that the complainant did not mention that matter in her first statement nor her record of interview held a month later. It was raised a few days later in a second record of interview where she said she heard someone yell out something, and when she turned around, the applicant had his penis out and had hold of it. She said she screamed and turned around straightaway but she didn't think he had exposed himself to her. She thought he was showing his penis to his mates. She told him to put it away and that he should be embarrassed, saying that she figured if "you embarrass them, they will stop it". She said, immediately after turning around, she continued to serve "David", being a reference to a Mr Kelly. The complainant said she was not so much shocked by the incident, she had seen a penis before and had been in circumstances where that had happened but she thought that he was just showing off and was "being a bit of a dick head".

59 Transcript of the applicant's evidence in the Local Court was attached to the statement including where he denied exposing his penis at the Club on the night. The applicant explained that he had been speaking with a Mr Sloane who had called him a "cocksucker", and that in response the applicant said "Yes, suck this". The applicant then described how he held his left thumb in his right hand in the area of his groin and it was this action that had been seen by the complainant - she had mistakenly interpreted his thumb as a penis.

60 Mr Sloane had provided a statement to the police on 31 October but did not mention this incident. He gave evidence during the hearing and supported the version of events given by the applicant: extracts of the transcript were attached to the submission. In his evidence, Detective Hosemans agreed that Mr Sloane's comment was low level language and that he had responded with a low level comment. He agreed that he had been a member of the Police Service for 18 years and as a police office had a responsibility to maintain an appropriate level of behaviour. He agreed that he had significant power and was under an obligation to both the Police Service and the community. He conceded that he had a responsibility as Deputy Mayor to maintain an appropriate level of conduct within the community. His justification for his comments and actions were that at the time he was not performing an official function as Deputy Mayor or as a police officer, saying he was off duty on a night out with his friends although conceding that his duty as a police officer extended to 24 hours a day. In this case, the language was not vulgar because it was used between two males although it would be vulgar in mixed company. He agreed that he had not scanned the room to ensure that no females were present before making the comment and agreed that by grabbing his thumb with his other hand he intended to represent his penis. The applicant also agreed that the code of conduct for police officers encompassed conduct on and off duty, but he did not agree that his actions in relation to this particular incident would be deemed unethical or inappropriate under the code.

61 The Magistrate dismissed the charge alleging the applicant exposed his penis on the basis that the Golf Club was not a public place. The argument in relation to this matter was extracted from the transcript and annexed to the statement. The Magistrate had noted that as a matter of law as opposed to a matter of fact, no criminal liability attached to that behaviour even if it was found to have taken place, but it was "a very real issue on credit". He believed the complainant when she said it was not a thumb and he believed her on that issue, not just because he had no doubt as to the accuracy of her observation, but because of the way in which she gave her evidence on the issue. The Magistrate said: For this Court to reject her evidence would require it to be seized of a level of gullibility that would be an affront.

62 At the hearing, Mr Kelly stated that the complainant "was lying" about Detective Hosemans exposing his penis or that there was any verbal exchange between Mr Kelly and the complainant at the time this incident was alleged to have occurred. He did not support her account of the incident. The Magistrate dealt with Mr Kelly's evidence in the following way: Mr Kelly's performance in the witness box was a disgrace … his occupation in the witness box was no more than an excuse to hear no evil, see no evil and speak no evil, unless of course, in relation to the latter he could do so in a way intended to denigrate the complainant. His evidence was so worthless as to be pointless in the recounting. The submission noted that Mr Kelly, who could have verified the complainant's version of events, had failed to do so because he was being deliberately untruthful. The Magistrate continued: Kelly is not the only untruthful witness in these proceedings, but more of that later. It follows that I find that the defendant Hosemans has also been untruthful on this issue and as I have indicated earlier, it has serious, but not necessarily fatal consequences for his overall credibility both in relation to the incident regarding the alleged grabbing of the complaint's breasts and that wherein it is alleged he picked the complainant up against her will and forced her against the bar causing the minor injuries referred to in her evidence. The Magistrate concluded that because he believed the complainant on her oath in preference to Detective Hosemans, he was satisfied that Detective Hosemans had exposed his penis.

63 The next issue was the complainant's allegation that Detective Hosemans had physically assaulted her by lifting her up and forcing her back against the bar. She said he had put both his arms around her waist and lifted her so that both her feet were off the ground and that his head was at the level of her chest. He had walked behind the bar to lift her and she had told him to let her down. He had not let her down when she asked him but had turned around and slammed her back into the bar, causing pain to her back: she was actually sitting on the lower level of the bar and her back was hard against the clean glass trays and Detective Hosemans was leaning himself against her. She felt pain in her legs as they hit the glass tray. She said she had a lump and a bruise the size of a 20 cent coin on the back of her right leg - just above the knee that she did not have the day before. Her back was sore although it was not bruised. Her breasts were sore the following morning. There was no reason for her breasts to be sore and neither her breasts nor her back were sore the day before. She believed they were sore as a result of her breasts being grabbed forcefully by Detective Hosemans and Mr Woolfe, and her back was sore because she had been slammed into the bar by Detective Hosemans. Her leg was bruised due to hitting and being held against the glass tray by Detective Hosemans. Doctors' notes were attached that were said to support the injuries of which the complainant had complained. The notes recorded a 2.5 x 2.5 cm recent bruise on her right thigh, bluish green, one to two days old and a 8 x 2 cm similar bruise to her left buttock. There was tenderness over the right lower rib cage on the bra line but no bruising was visible.

64 In relation to this matter, again extracts of Detective Hosemans' evidence were attached to the statement. In evidence, the applicant denied that he had assaulted the complainant in any way on the night and provided an innocent explanation which suggested that the complainant was responsible for the physical contact. He said that she was laughing and had said to him "Are we going to see your dick again?", and had moved towards him waving her hands around. Detective Hosemans said "That's not what you saw the first time". Detective Hosemans agreed that he lifted the complainant off the ground and held her for some seconds and then had put her back down on to her feet. He denied that he intended to assault her in any way: his actions were just a playful, "larking around thing". This conduct was explained by the applicant as being the result of both him and the complainant "frolicking around him", and that he had responded to an action that she had initiated. He felt his action was appropriate as he had known the complainant for seven years and his actions were "an accepted level of contact".

65 The statement recorded that a Mr Robert Locke had given a statement, which, to some extent, supported the version given by Detective Sergeant Hosemans - Mr Locke had seen Detective Hosemans lift the complainant off the ground, saying that he was holding her so that their bodies were facing each other and he had both of his arms around the upper parts of her legs. Mr Locke did not mention that was forced back against or onto the bar or that she protested in any way, saying that he did not hear either of them saying anything. In evidence in the Local Court, Mr Locke had said that Detective Hosemans had his arms around the top thigh part of the complainant's leg which he described as being the thigh part as being between the backside and the knee. The Magistrate referred to Mr Locke's evidence as describing the complainant, whilst being held in this position, as being bolt upright or rigid and still.

66 Mr Locke supported the complainant's claim that she was upset by Detective Hosemans' actions when he said in his statement, "The young girl behind the bar looked a bit flustered and did not appear to be happy". He had seen her walk out of the Club - she was walking quickly and was visibly upset and crying. He had informed her that if a problem existed she should see the secretary/manager of the Club, and that he was prepared to tell what he had seen.

67 Ms Deidre Locke was described as a patron attending the Golf Club who had given a statement which was attached to the summary. She noted that later in the evening she could see that the complainant had been crying and had said that she was sick of the job, but Ms Locke had no idea why she was crying.

68 The Magistrate formed the opinion that both Detective Hosemans and Mr Woolfe were well affected by alcohol on the night in question. He thought that Mr Constable, the off duty bar manager, was "a singularly unimpressive witness": there was no secret where his loyalties lay - to himself and thence by necessity to the defendant. Because the Magistrate rejected Detective Hosemans as a truthful witness, he did not accept his evidence that he and the complainant were engaged in a playful interlude leading up to his taking hold of her and he preferred her evidence to Detective Hosemans on this issue. However, the Magistrate also stated that the complainant's evidence in regard to being "slammed" against the bar was an exaggeration. The Magistrate concluded that the lifting of the complainant by the defendant was not an act done with a guilty mind and with the intention of applying unlawful force. Detective Hosemans may have been guilty of being arrogant and presumptuous as to his perceived right to take hold of the complainant, but the Magistrate was satisfied that what he did was an act without malice, either within the common law parameters or the extended view contained in s 5 of the Crimes Act. The Information was therefore dismissed in this regard.

69 The statement then noted that the Magistrate had expressed an overall view in the following terms: I have already indicated that I regard the witnesses Kelly and Constable to be not truthful in the giving of their evidence and that I have formed the view that they were not the only ones. I did not mean at the time that I made that statement that the other two were the defendants Hosemans and Woolfe although it is abundantly clear that they are not to be believed on their oath. Throughout these proceedings there has been the permeating odour or undercurrent of cover up and deceit. That the defendants would seek to involve themselves in an attempt to mislead the Court, while dishonourable and cowardly is understandable … The Magistrate found that a telephone call made by Detective Hosemans to the complainant and the rationalisation he had given in relation to that call was "spurious and unbelievable". What was believable was that Detective Hosemans would endeavour to head off the sort of trouble that might impact on his professional career in the Police Service and in his public career in local government.

70 The next issue dealt with in the submission document was that the defendant was untruthful in giving evidence in the Local Court in relation to exposing his penis, in relation to his alleged assault of the complainant in lifting her bodily off the ground and in the fact that he gave a false account in regard to the telephone message left on the complainant's mobile telephone the day after the alleged incident. The submission summary then noted several occasions where and the circumstances in which the Magistrate had indicated he could not believe the evidence of the applicant, Detective Hosemans.

71 It is then noted that the complainant was making a statement to the police at Bathurst Police Station on 21 October when Detective Hosemans left a message for her on her mobile telephone. She said she had made a written record of the telephone message with the assistance of her boyfriend, Mr Johns, who was able to corroborate this evidence which was presented at the hearing. The complainant said that the message was in the following terms: Hi …, it's Brad. I'm just calling to apologise for anything I may have done or said last night. I just want to say sorry for anything I said. Give us a call. This is my mobile number. The applicant said that Mr Kelly had informed him that the complainant intended writing a letter of complaint to the Golf Club Committee about the events of the evening. Detective Hosemans admitted ringing the complainant and leaving a message on her message bank, but his version of the content of that call was different: …, it's Brad. Can you give me a ring. I just wanted to see if someone should apologise for anything that might have been done or said. I just wanted to say sorry for what I said, anything I said. Could you give me a call on … and left his mobile telephone number. The applicant's cross-examination in the Local Court was attached to the submission: he said that he did not have anything to apologise for, but he was "worried" as the complainant was taking action to have people suspended from the Club.

72 The Magistrate in his summation dealt with this issue as follows: As I have indicated, the rationalisation for his telephone call relied upon by the defendant Hosemans is spurious and unbelievable. What is believable is that he would endeavour to head off the sort of trouble that might impact on his professional career in the Police Service and his public career in local government. … In the sober light of day I have little doubt the cold sweat of reality in understanding what he had done and where, would have almost rendered him dumbstruck, but not so mute as to not attempt to call off the complainant with an apology. .. It is a sad indictment on a community where fear of embarrassment, or perhaps fear of another person's position inspires an unspoken agreement to frustrate the interests of justice … the hypocrisy demonstrated within these proceedings serves to make a partial mockery of the part they must play … I have had my say. It pleases me not to have had to do so. I would be unsurprised to hear of feigned outrage from those I criticise. I would also be unsurprised to learn that the Golf Club has done nothing in the exercise of its disciplinary role regarding the outrageous conduct of some of its members and employees. That would be in keeping with their role in these proceedings. They know the truth and so, I believe, do I .

73 Apparently, further investigations were undertaken in relation to outstanding complaints against the applicant but the majority of these were found not to be sustained by the investigator. Some of those complaints included issues related to contemporary matters identified in the s 181D notice. The findings and comments made by the investigator that relate only to the matters mentioned in the submission had been attached as an annexure. A further matter referred to was that the Local Area Commander, under whom Detective Hosemans worked strongly, supported his officer's performance, attitude and demeanour and did not advocate his dismissal under s 181D. The Area Commander had commented that, although the Magistrate acquitted Detective Hosemans, his decision was such that "he may as well have convicted him".

RESPONSE TO THE s 181D NOTICE 74 In his response, Detective Hosemans pointed out that the Commissioner's Notice did not raise any issue about competence or performance and therefore appeared to raise only issues of conduct and integrity. He stated that he did not assault or attempt to indecently assault the complainant or to expose his penis and he denied giving untruthful evidence in the Local Court. A general request was made to be supplied with all background documentation which was considered in coming to the view expressed by the Commissioner in the Notice.

75 The reply dealt with Detective Hosemans' early years in the Police Service, his brief absence from the Service while managing a property for his father and his return to the Police Force in January 1988. While managing the rural property, he became aware of criminal activities on a neighbouring property and ultimately led police to a substantial cannabis crop resulting in four offenders being arrested and $15 million worth of cannabis being seized. He returned to the Police Service because of his love of the work and became involved in the investigation of all types of major crime. On two occasions, he had received a commendation for good police work, once for the arrest of a violent offender and the other for assisting in the recovery of a deceased male in flood waters.

76 After being charged on 15 November 2001, he was not suspended from duty but remained at work. During this period he had, upon request, assisted with the supervision and/or investigation of serious matters requiring the services of an experienced and competent investigator. He stated that, while he welcomed that opportunity, he also believed that he had performed his duties to the best of his ability and had carried out those duties in an exemplary manner. He had, however, not been able to carry out all his duties without some restrictions. He gave brief details of twelve matters he had been involved in, including carrying out the functions of investigations manager for the Chifley Local Area Command which included responsibility for overseeing two detective sergeants and ten detectives, case investigation and management and providing ongoing advice to officers in the Command. He also had responsibility as supervisor of the Informant Management Registrar.

77 He had applied for promotion on three occasions and had been successful. More recently, he was successful in proceeding to interview for Duty Officer and Crime Manager positions throughout the State, and on 23 December 2002 had been notified that he had been nominated as the preferred applicant for Chief Inspector, Duty Officer at Bankstown. In 1995, he was elected to the Bathurst City Council and in 1997 was elected Deputy Mayor, a position he held for the following five years. This position led to extensive involvement in the community, and he stated that at all times he conducted himself in a manner commensurate with his position. Detective Hosemans attached a letter written by a local businessman which had been published in the local paper praising him for his professionalism and noting the supportive comments of the Deputy State Coroner made during the summing up of a recent serious incident.

78 The Response noted that the documents accompanying the Commissioner's Notice contained brief extracts of the transcript in the Local Court and requested that the entirety of the evidence be considered.

79 Detective Hosemans again asserted that his evidence in the Local Court was the truth and stated that he did not accept the opinion of the Deputy Chief Magistrate that he had given false evidence. He did not propose going through every criticism made of him by the Magistrate, nor was he going to answer in detail each adverse comment made about him which was repeated in the Notice or in the Commissioner's Confidence submission, but he wished to make it perfectly clear that he rejected the adverse comments. He took this approach, not because he was seeking to answer the grounds in the Notice by making a broad brush general denial, but bearing in mind that he had given evidence on oath denying each allegation that was put to him in the criminal prosecution. Those allegations were reproduced in the grounds contained within the Commissioner's Notice and there was nothing more he could say other than to rely on his evidence. He assumed that, besides reading his evidence and cross-examination, the Commissioner would examine the evidence in chief and cross-examination of all the witnesses called at the hearing.

80 Detective Hosemans stated that the evidence of the complainant was not reliable and she was the principal prosecution witness. She had admitted that there was no motive for him to pull her over the bar and attempt to touch her breasts: it was only when she slapped Mr Woolfe that Detective Hosemans reached over and "instinctively" took hold of her shirt in an effort to stop the incident going any further. The complainant had alleged that he grabbed her breasts with some force and squeezed them but that was substantially in conflict with the manner she described in her statement to the police when she said that he had "continued to try and grab my breasts". The complainant had has also given evidence that when he pulled her over the bar it was such that their faces were a distance of about 20 cm apart but that evidence was not included in any of the statements or interviews she gave to the investigators.

81 Detective Hosemans then relied upon the following matters as indicating the unreliability of the complainant's evidence: (i) the witness Newman contradicted her evidence that she told Detective Hosemans and Mr Woolfe to "fuck off and let me go". Mr Newman said that he heard nothing like that said and, if it had been said, then he would have expected to hear it. He also gave evidence that the complainant seemed composed and all she did was make a playful giggle or noise; (ii) The complainant was in conflict with the evidence of Mr Newman - she had alleged that Mr Newman said to her "What are they trying to do, grab your tits or something?", and she replied something like "No, they tried but they didn't get me"; (iii) The complainant made no complaint to anyone at the time or shortly after the incident.

82 Detective Hosemans said that there were several variations in accounts given by the complainant to others: (i) her boyfriend, Mr Johns, said that she told him that Mr Woolfe and Detective Hosemans had pulled her across the bar and sat her on it and were trying to feel her breasts; (ii) witness Farmer gave evidence that the complainant told him that Detective Hosemans had gone behind the bar, had grabbed her around the waist and thrown her against the bar and he had tried to touch her on the breasts; (iii) Senior Constable Stutsel gave evidence that the complainant told her that people had gone behind the bar and were getting drinks, that she could not stop them doing so, that they were drunk and she was scared and then one of them started grabbing her on the breasts; (iv) when the complainant gave evidence, she said that the incident involved being pulled over the bar and having her breasts fondled, having been preceded by a comment by Mr Jeffrey Larnach that Mr Woolfe had had sex with her at a local motel. The complainant said that, at the time the comment was made, other people were present including Detective Hosemans, but when she was cross-examined, she said she did not know if Detective Hosemans had been present or not at the time; (v) the complainant gave evidence that pulling her over the bar followed a few seconds after the sex at the motel comment. However, in cross-examination the complainant agreed that she had told Inspector Newham that the incident had occurred three to five minutes after the comment was made; (vi) the evidence of Mr Newman did not support the complainant's evidence that she was forcibly grabbed on the breasts, and Dr McCreery did not find any tenderness of her breasts when he examined her.

83 In relation to the allegation of assault occasioning actual bodily harm, Detective Hosemans again questioned the reliability of the complainant's evidence, pointing to a number of inconsistencies and contradictions. Again, the Commissioner was asked to not only read the complainant's evidence in its entirety, but also the evidence and cross-examination of other witnesses. The inconsistencies relied on in relation to this allegation were as follows: (i) the complainant's version that she said "Fuck off, put me down, fucking idiot", and being pushed onto the bar, with Detective Hosemans pushing against her between her legs, with her telling Detective Hosemans to "Fuck off", with the complainant climbing off the counter of the bar and pushing Detective Hosemans to the exit was a version that was unbelievable when compared with the evidence of the witness, Robert Locke. Mr Locke agreed that there were only two to three seconds between the time he first observed Detective Hosemans holding the complainant, "assuming that they were larking around", to the time he saw the complainant back on her feet and Detective Hosemans coming out from behind the bar. Mr Locke said although the complainant appeared flustered, she was not showing signs of being upset; (ii) the complainant agreed that she had told Inspector Newham that Craig Sharah, David Nicoll and two ladies had been watching the incident but no one was doing anything. She agreed in cross-examination that she had not mentioned those persons as being present in giving her evidence in chief but denied intentionally omitting their names. The witnesses Mr Sharah, Mr Nicoll, Michael Locke, Ms Cummings and Ms Deidre Locke did not support the complainant at all in her version about what she alleged happened. Mr Robert Locke said that he saw her being held off the ground by Detective Hosemans but not one other witness corroborated her. Contrary to her claim, witness Michael Locke specifically refuted any suggestion that he had made a comment to the complainant about any rowdy behaviour by anyone and in fact he had not seen any such behaviour; (iii) Mr Bradley Constable denied that the complainant had said that she was "sick of every bastard grabbing" her; (iv) Dr McCreery expressed no opinion as to the cause of the two bruises that he found when he examined the complainant; (v) the complainant allegation that Detective Hosemans had leaned against her between her legs whilst she was seated on the bar did not appear in any of her statements or interviews with the investigators. It was first mentioned in her summary for the DPP on 9 March 2002.

84 In dealing with the message left on the complainant's mobile telephone, Detective Hosemans stated that he had never denied ringing the complainant but said that the message he left was different to the message she claims he had left. He raised the following matters for consideration: (i) the complainant had said that she made a note of the message but there had to be real doubts when the notices actually came into existence; (ii) the complainant said that she wrote the note on the night of Sunday, 21 October 2001 and she had listened to the message three or four times because Inspector Martin had told her to do so. Inspector Martin could not recall whether he had told her that but he said that he did not listen to the recorded message on the mobile telephone. The evidence of Dale Johns was that the complainant had written out the note on the afternoon of Sunday, 21 October 2001 and as far as he knew she had done so without being asked to do that by anyone. He said that he had told Inspector Martin about the message when he took a medical certificate to the Inspector; (iii) the complainant gave evidence that she had told Inspector Newham that the message was written on a binder, but the exhibit admitted in court was a note written on piece of paper; (iv) Inspector Newham gave evidence that he could not recall if he asked the complainant on 29 October 2001, when he spoke to her, if there was any record of the message, although he knew at the time that the message left on the telephone was no longer in existence. Inspector Newham also said that, when he interviewed the complainant on 30 October 2001, he did not take possession of the written record allegedly made by the complainant but he did take it on 1 November 2001;. (v) the only witness who corroborated the complainant's about the message was Mr Johns and he could hardly be described as independent; (vi) Detective Hosemans' evidence was that the message he left was to see if anybody should apologise to the complainant for anything that may have been said on the night in question, but he did not believe that anything had occurred or had been said that called for an apology. In fact, the complainant gave no evidence that he said anything untoward to her during the night. Detective Hosemans then submitted that there was no credible basis for preferring the complainant's version to his own about the content of the telephone message he had left for her.

85 In relation to the allegation that he exposed himself, despite that the matter being dismissed on a legal point, Detective Hosemans submitted that the allegation could not have been proven beyond reasonable doubt. Again, the complainant was the principal prosecution witness and he requested the Commissioner to carefully scrutinise her evidence in cross-examination, taking into account the following: (i) the complainant did not raise the allegation until she was interviewed on 1 November 2001, and this was after the six hour interview she had with Inspector Martin on 21 October 2001 and the recorded interview she had with Inspector Newham on 30 October 2001. (ii) she gave evidence that David Kelly had made a comment at the time of "I don't have much more than that but I wouldn't be showing mine" which was not included in any statement she gave to the police but again was first mentioned in the summary of 9 May 2002 which was prepared for the DPP. The complainant could not give any reason why she had not previously mentioned it; (iii) her evidence that Detective Hosemans' alleged exposure had been raised with Mr Ian Farmer on the morning of 21 October 2001 was specifically rejected by Mr Farmer. Further, there was a dispute between Mr Johns and the complainant about who told Mr Farmer what and what was said to him; (iv) the complainant's version changed when she was recalled to give further evidence. She did not tell the court, until specifically cross-examined about it, that she had told Inspector Newham that she thought Detective Hosemans had shown his penis to his mates; (v) the complainant's evidence about the alleged exposure was uncorroborated but was specifically refuted by Mr Kelly and Mr Sloane, as well as by Detective Hosemans himself;

86 There were other matters raised about the complainant which the Commissioner was asked to consider. She had said in evidence that she was no more than an acquaintance of Detective Hosemans but when interviewed by Inspector Newham had said she considered Detective Hosemans to be a mate, that she was friendly with Detective Hosemans during the night in question and that she considered him to be "very cuddly". There was also the aspect of some financial motive for the complainant being untruthful about what had happened. While she denied any financial motive, including having spoken to anybody about getting money to go on a holiday, and denied such comments by her boyfriend, the Commissioner was asked to consider the contrary evidence of Mrs Regan.

87 Detective Hosmans submitted that his evidence was truthful at all times and that it was credible and cogent. He submitted that it was unfair that the Deputy Chief Magistrate could make the comments he had made about the applicant and submitted that those comments were unjustified. Finally, reference was made to the fact that the Commissioner's Confidence submission did not include all the evidence and cross-examination of all the witnesses and the Commissioner was asked, in fairness, to read all that evidence and form an independent view for himself.

SUBMISSIONS ON REVIEW 88 For the applicant, it was submitted that there was both procedural unfairness and substantive unfairness in the removal of Detective Hosemans from the Police Service. In this case, once the applicant raised sufficient doubt as to whether the requirements of s 181D were met, it was the Commissioner who bore the onus of demonstrating that those requirements were in fact met. 89 In reviewing the Commissioner's decision to remove an officer, the Commission was entitled to have regard to the process adopted by the Commissioner and in particular, to have regard to whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner was not at large in the exercise of his discretion and the discretion conferred by the statute was intended to be exercised according to rules of reason and justice, not according to private opinion. It was necessary, therefore, for the Commissioner to look at all available information and material: he had to make proper inquiries in relation to the matter. Here, the failure to read the full transcript was an aggravated example of procedural unfairness because the applicant, in his response, had requested that the Commissioner do so and had directed his attention to specific matters which would have required the Commissioner to at least go beyond the material that he had relied upon in issuing the notice.

90 In relation to substantive unfairness, the applicant was entitled to succeed because the Commissioner had not made out the charges contained in the s 181D Notice. While the standard of proof was the civil standard, the test in Briginshaw v Briginshaw (1938) 60 CLR 336 was to be applied. It was not appropriate for the Commission to act upon suspicion, surmise or guesswork.

91 Having regard to the evidence, the Commission could not be satisfied that the Commissioner had met the evidentiary burden in respect of proving the alleged misconduct. Having regard to the conflicting evidence, where it is not possible on any interpretation of the evidence to conclude comfortably there was misconduct in the sense particularised in the charges against the applicant, it must be found that the employer had failed to meet its evidentiary burden.

92 The Commission was urged not to accept the view of the Magistrate that the applicant lied on his oath. It was suggest that the Commission should approach the matter applying these principles: (i) there is a difference between rejection of a person's evidence and a finding that he or she deliberately lied ( Smith v New South Wales Bar Association (1992) 176 CLR 25 at 268.3); (ii) other evidence may be of such a nature or of such a weight that, in combination with the rejection of some particular evidence, it will justify a finding that the evidence was fabricated. But, as a matter of logic and commonsense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence (see Smith at 268.4). In this case, the Commissioner had based his Confidence decision on express findings of fact: it was not inconsistent with the provisions of the Act for the Commissioner to be obliged to produce evidence establishing these allegations in subsequent proceedings. In particular, s 181F(2) did not preclude the conclusion that the Commissioner must be required to produce evidence vindicating his factual findings.

93 In SDA New South Wales Branch v Jewel Food Stores (1988) 22 IR 102, the Commission, in dealing with what use could be made of character evidence, stated:

(i) such evidence should be received as tending to prove that the employees should be believed on oath; (ii) an inference of dishonesty (which was the alleged act in the case) should less readily be inferred against the applicant; It was then submitted that the Commission should rely upon the evidence of the applicant's prior good character, reputation and disposition in the following ways: (i) those factors affecting the likelihood of the applicant committing the allegations made by the Commissioner; (ii) in assessing the credibility of the version of relevant events offered by the applicant in contradistinction to that offered by the allegation makers; and (iii) credibility or rebutting any allegation of fabrication, reconstruction or suggestion.

94 On any view of all the circumstances, so it was submitted, removal was far too severe a penalty - in other words, the removal was harsh, unjust or unreasonable. The applicant's excellent service history, his general reputation within the community, his good character and the view of his Area Commander were supportive of the view that he ought not be removed by the Commissioner. Section 181F(3)(a) required the Commission to have regard to the interests of the applicant. 95 Even if there were grounds legally justifying dismissal, the principles recognised in the Commission for decades meant that it was still open to a tribunal to examine the severity or otherwise of the penalty. Here, it was strongly arguable that the applicant's failings were not at the high end of seriousness. He was neither involved in corrupt conduct or conduct of a serious criminal kind.

96 In all the circumstances, reinstatement without loss of pay was the appropriate remedy. This remedy was available where the particular termination was found to be too harsh. In granting such a remedy, the Commission does not condone any alleged misconduct at work. There was nothing in the present case which rendered reinstatement impracticable.

97 In oral submissions, counsel for the applicant closely scrutinised the evidence before the Magistrate in order to demonstrate the extent of inconsistencies, firstly between the statements made to police by the complainant and her sworn evidence and, secondly, by comparison of what was said in her statements and her oral evidence and what other witnesses said in their evidence. 98 It was also emphasised for the applicant that, in the proceedings before the Local Court, it was as a result of his determination to prove his innocence that he gave evidence in relation to the indecent exposure allegation as a matter going to his credit. That charge had already been dismissed without him giving any evidence at all. In the criticism of the applicant by the Magistrate, it was submitted than no consideration was given to this stance taken by the applicant in circumstances where he was not required to face the allegation in any way. The Magistrate was also criticised for his general sweep of criticism against witnesses who supported the applicant's story and it was pointed out that when evidence was given that the applicant had a financial motive for pursuing her claims, that adverse evidence was simply put to one side as not being capable of resolution. The Magistrate, however, in numerous other circumstances where witnesses gave evidence in conflict with that of the complainant, they criticised them for their evidence rather than leaving the evidence as unresolvable. It seemed that the thrust of this submission was that the Magistrate had been over zealous in finding fault with other witnesses, had treated witnesses inconsistently and had unreasonably relied upon the evidence of the complainant which for the most part was uncorroborated.

99 In this context, it was also submitted that a mistake had been made: the Commissioner and his advisors had acted as if the Magistrate's findings could be construed as being, in a sense, unchallengeable, and ignored the critical point that there was no finding of guilt.

100 There were also deficiencies alleged in the submission prepared for the Commissioner for consideration before he issued the Notice. For example, Mr Farmer had given a statement to the police but that was not in the material. Mr Robert Locke had given a statement which was available to the Commissioner but the transcript of his evidence was not. Mr Sharah, Mr Nicholl, Mr Michael Locke, Ms Cumming, Ms Deidre Locke, Mr Kelly and Mr Sloane all gave evidence and were mentioned in the applicant's reply to the Commission in the context that their evidence cast doubt upon the accuracy and reliability of the complainant's evidence and supported the applicant's position. The Commissioner was invited to consider these matters but there was no direct evidence that he had done so.

101 Counsel for the applicant accepted that it was proper for the Commissioner to take into account the findings of fact made by the Magistrate but only by having regard to the entirety of the evidence before the Magistrate. It was not fair or appropriate for the Commissioner simply to apply the reasons of the Magistrate as the basis for the decision, especially since that left the applicant with no avenue of redress because the applicant was unable to challenge any of those matters including the Magistrate's adverse comments and findings because all the charges had been dismissed.

102 The complainant had given an initial interview over a period of approximately six hours but there was no mention in that statement that she was sitting on the lap of the applicant or, importantly, that he had exposed his penis. In the second record of interview, there was no mention of sitting on the applicant's lap or, as she alleged in her evidence in court, that Mr Woolfe had also come behind the bar and thrust his pelvis into her back. There was no reference here to the applicant exposing himself. It was said that the omission of any reference to the applicant exposing himself was unusual because she had referred to another guest that night having his shirt off, at which her comment was, "Just gross". It was strange that this minor incident had been mentioned but not the incident where the applicant exposed himself. The alleged indecent exposure was only mentioned in the third and last record of interview with the complainant. Further, there was no reference in the last record of interview of anything being said to the secretary/manager of the Club concerning indecent exposure when the complainant spoke to him just before she went to the Bathurst police station to make her complaint.

103 In the complainant's evidence in the Local Court, she recounted that early in the night there had been a lot of joking around the table where Detective Hosemans and Mr Woolfe had located themselves and that she had been pulled on to Detective Hosemans' lap and had stayed there for two minutes or so: she was not uncomfortable about this and it was nothing out of character. She also gave evidence of her ponytail being pulled as she fell backwards during this part of the evening. There was no support for this account from any witness and in fact some witnesses said that she "plonked" herself on Detective Hosemans' lap. Although these matters were not essential to any of the criminal charges in the Local Court or to the matters raised by the Commissioner, counsel for the applicant said that they were relied upon because there were so many discrepancies or inconsistencies in the complainant's evidence that what she said could not be accepted. There were many such examples: the complainant had not mentioned in any of her statements that her face was something like 20cm from Detective Hosemans when he was pulling her shirt at the bar. In her court evidence she said that Mr Woolfe was at the bar and later joined by Detective Hosemans but in her statements it said they were both there together. Similarly, it was submitted that there was a vast difference between being pulled across the bar and someone just grabbing hold of her shirt: the complainant said that she told them to "fuck off" and let her go but no one heard these words, including Mr Newman who observed the incident.

104 In relation to the exposure incident, the complainant had said that Mr Kelly had said to her that he would not be showing "his", and the significance of this was said to be that Mr Kelly had not been mentioned in her other statements at any time as saying anything. In relation to the last incident in the evening, the complainant's oral evidence was that Detective Hosemans was standing in between her legs and pushed himself forward onto her but that was not mentioned in any of the three records of interview. Another example was that in her interview with the Club manager Mr Farmer, the complainant said that her boyfriend, Mr Johns, had mentioned the indecent exposure by Detective Hosemans but Mr Johns' evidence was that the complainant raised that in the interview. Mr Farmer in his oral evidence denied that the matter was raised. There were also exaggerations: she said she had been pulled across the bar when Detective Hosemans and Mr Woolfe tried to grab at her breasts, but Mr Newman saw that incident and saw the complainant leaning away and breaking the hold of the two men on her shirt.

105 In dealing with the fact that there were a number of inconsistencies in all of the statements and evidence of the witnesses, counsel for the applicant stated that, because there was conflict, it did not lead to the conclusion that the conflict was to be resolved by ascribing a lack of candour or some other motive to it. In this response, counsel was dealing with the evidence of witnesses supporting Detective Hosemans' version of the events of the evening but, logically, it applies with equal force to the evidence of the complainant and her boyfriend.

106 Reference was then made to the oral evidence of Mr Robert Locke who was a director of the Club. He had attended the Club on the night but with a different group of people to those with whom Detective Hosemans and Mr Woolfe were associated. He recalled at around midnight seeing Detective Hosemans with the barmaid, lifted off the ground - they were facing each other and he had his arms around the top thigh part of her leg. He had only seen this for a few seconds and then the complainant was back on the ground and Detective Hosemans had come from behind the bar. Mr Locke asked the complainant to get him a cab and he noticed that she was not happy - she was a bit flustered. He presumed it was because she had not been pleased about being lifted off the ground but she was not showing signs of "being really upset". Mr Locke left the Club to get his cab and noticed the complainant running out of the Club "visibly upset and crying". He followed her out and noticed that she was near a car with her young man. He asked if she was alright and she did not answer, but he said to her: "If you've got a problem about whatever happened tonight, I saw something happen. If you want to come and see Mr Farmer tomorrow and explain to him, I will explain to them what I saw".

107 When asked about Detective Hosemans' sobriety that night, Mr Locke said that they all had "a fair few to drink" but that Detective Hosemans was not stumbling around or in a drunken stupor. He noticed that, at the table at which Detective Hosemans was a guest, somebody had brought a round of schnapps and there was a bit of hollering or cheering when that happened but no other boisterous behaviour.

108 In cross-examination, Mr Locke said that he had not seen anything untoward happen in the restaurant. He confirmed that as a committee man he would not have expected to see Detective Hosemans holding the complainant in the air behind the bar. He thought that Detective Hosemans was holding the complainant around the thigh part of her legs, that is, between the backside and the knee but not around the waist. He did not hear anyone say, "Fuck off", or "You fucking idiot" while this was happening, but while she was being held he thought the complainant "was bolt upright". In Mr Locke's evidence, it was as if the complainant was not very happy to be where she was, but she had her back to him and he could not say whether she was talking or asking to be put down. He agreed with the proposition put to him that he thought they had been "larking around" and that she had not made any complaint to him about anything. When she rang the cab for him she was not "overly" upset. Mr Locke said that outside the Club the complainant did appear to be upset - "she was" upset. Mr Locke said he did not know what had upset the complainant but he did not have a concern about Detective Hosemans holding her up. He had a concern that Detective Hosemans was behind the bar. It was then put to him that he had seen nothing that caused him concern and he replied, "No, nothing just other than her being lifted up". This was the context in which this incident was to be viewed.

109 It was submitted that the evidence of a fellow councillor, Ms Stapleton, was highly relevant. She had given evidence in the Local Court as to the good character of Detective Hosemans and said she knew him to be a person of integrity and honesty in his dealings on the Council. The allegations were completely out of character with the person she knew on the Council.

110 Reference was then made to the various denials of the allegations made by Detective Hosemans in his evidence in the Local Court. In that evidence, he said that during the night he had consumed six beers and two butterscotch schnapps and that at most he was in a state of moderate intoxication.

111 In further oral submissions, counsel for the applicant said that his case in essence was that the Commissioner relied essentially on the Magistrate's reasoning process to arrive at his decision without really applying an independent mind to that material. It was submitted that the Magistrate's critical comments about the applicant and other witnesses were "somewhat over the top". An example was Mr Locke who had been supportive of the complainant on the night but when the Magistrate formed the view had not come up to that level of courage when he gave his evidence in the Local Court: that was most unfair to Mr Locke who was quite clearly a truthful and forthright witness. Counsel for the applicant did accept that there was no doubt the problems arose out of the various levels of intoxication of various people who attended the function. What was critical, in the final analysis, was the evidence of the applicant compared with that of the complainant. The Magistrate had found that the complainant exaggerated what occurred and in relation to the last incident, the lifting of the complainant off the ground behind the bar, had concluded that there was no intent to do harm to her. In light of that finding, the Commission was invited to dismiss the Commissioner's allegation of assault.

112 It was also submitted that there was a fair degree of exaggeration in the various versions given by the complainant over a period of time in relation to what happened on the night in question. Those versions were at variance with the evidence of other independent witnesses. In relation to the actions witnessed by the bar attendant Mr Newman, he did not see her being held close to Detective Hosemans and being on tiptoes. Mr Newman's evidence was that the complainant was not upset by the exchange at the bar and in fact she giggled and was in good spirits. Mr Newman did not support the complainant's evidence about crossing her arms to prevent further grabbing of her breasts - she had pulled away from the two men and was well away from them. The fact that Mr Newman was moved to ask the complainant: "Did they try to grab your tits?" was said to be equivocal. Further, this incident did not make much sense, for there were many other occasions during the night when the applicant could have taken such action and where it was much easier to grab the complainant by the breasts. They had been in close contact and nothing like that had happened.

113 There were other inconsistencies of significance. The evidence of the witnesses was against the idea that the complainant had been pulled on to Detective Hosemans' lap. The evidence did not support that in the last incident Detective Hosemans was forcing his body up between her legs, and there was no support in the evidence for her being thrown back against the bar. The only conclusion which could be reached was that the complainant had embellished or embroidered her evidence. In relation to the indecent exposure, that simply did not happen and Detective Hosemans' version was supported by Mr Sloane. It was strange that this charge arose after the first lengthy record of interview and the first statement was taken. This incident should not have become the touchstone by which the Magistrate measured the credit of Detective Hosemans.

114 Counsel for the Commissioner emphasised that the Commissioner was entitled to rely on the totality of the material, and there were good reasons why the Commissioner would prefer what the Magistrate had to say over what was said by anyone else. It was accepted that in some parts of her evidence the complainant had exaggerated but overall her evidence was accepted by the Magistrate. The evidence was then examined to put in context, firstly, those parts of the evidence relied upon by the applicant and secondly, to support the findings made by the Magistrate. 115 In considering the Magistrate's decision, it was important to recognise that he had formed the view that there was a cover up of what had occurred on the night so that essentially the matter was decided on a contest between the evidence of the complainant and that of Detective Hosemans. The Magistrate preferred the evidence of the complainant. The applicant's case on review had concentrated upon many minor issues of discrepancy in the evidence and had failed to give full recognition of the state of the evidence. One example was the suggestion that the complainant had made no complaint when the evidence showed that she had left the Club crying, she had complained to her boyfriend on that very night and had made a complaint to the police the next morning. The evidence from witnesses was that she was clearly and visibly upset during the course of the evening.

116 In relation to the applicant's written response to the Commissioner's Notice, each of the matters raised as an inconsistency to undermine the complainant's evidence was in fact considered by the Magistrate. None of them were new and the Magistrate dealt with all of them in his close analysis of the evidence. In addition, the matters raised, in most respects, did not go in any serious way to undermine the complainant's credit or the finding made by the Magistrate. Another way of testing the applicant's approach was, as an example, the evidence of Mr Constable (the bar manager), who the Magistrate found to be a liar when denying that the complainant had said she was "sick of every bastard grabbing her". What faced the Commissioner in this aspect was a conflict between the complainant, who was found to be a credible witness, and Mr Constable who was found by the Magistrate to be a liar. Yet that appeared in the applicant's response as an inconsistency with the complainant's evidence and which called her evidence into question.

117 It was submitted that the Commission was entitled to have regard to the findings of the Magistrate in determining the matter, just as the Commissioner was similarly entitled when he decided to remove the applicant. The error with the applicant's approach on review was that the Commission was invited to go behind the Magistrate's findings, and determine the review on the evidence that was before the Magistrate as though the Magistrate's findings did not exist. The Magistrate's reasoning followed an analysis of all the evidence with the benefit of hearing and seeing the witnesses: the Magistrate's view was therefore something that the Commissioner was entitled to rely on.

118 There were many weaknesses in the applicant's case. For instance, it was suggested that the evidence in the Local Court was that the complainant had not resigned from her position in the Club, but it was clear on that same evidence that she had never returned to work. This was similar to the applicant's approach that there was no complaint by the complainant and that there was no sign that she was upset, a matter dealt with in earlier submissions.

119 In relation to the suggested flaw in the complainant's evidence, namely, that she had told Ms Regan that at least she might get some money out of the case, the Magistrate had dealt with this point. He did so in the context of claims for victim's compensation. What was never explained was how it was alleged that the complainant had concentrated on the actions of Detective Hosemans when in fact there were two people involved and two people had been charged by the police.

120 An issue also arose about the other witnesses whose evidence had to be considered in the light of the fact that many were influenced by alcohol on the night. Mr Kelly, who specifically rejects what was said to be key aspects of one part of the complainant's evidence, said he had 30 drinks. Detective Hosemans had six beers and two nips and, by his own admission, was moderately affected by alcohol.

121 There was an aspect of the indecent exposure incident which had to be closely considered. At no time did the complainant indicate that she was seriously offended by the incident and she made it clear that she had observed it because her attention was attracted by some shouting. She did not regard Detective Hosemans as having exposed himself to her but treated him as acting simply as a "dickhead" and had tried to embarrass him and thereby prevent a continuation of that behaviour. It was told to the police in that context. In those circumstances, the applicant's criticism that the allegation was not raised at an earlier time and was not the subject of an earlier complaint when other quite minor matters were mentioned ultimately had no force. The complainant was a frank witness and did not pretend to be offended by things that did not offend her. She had no complaint about being pulled on to Detective Hosemans' lap in the early part of the night, but simply recorded that fact as part of the things that developed. Similarly, in her cross-examination in relation to the obscene exposure incident she accepted that she may have laughed when she saw what Detective Hosemans was doing, but she did not recall whether or not she had done so. She made these types of appropriate concessions throughout her evidence.

122 While supporting the believability of the complainant's evidence and having regard to the fact that, in the circumstances of a night at the Club, a number of witnesses may not have seen anything (which was understandable), the issue came down to a dispute on the facts. The cross-examination in the Local Court of Detective Hosemans also demonstrated inconsistencies but it was not as if his evidence unravelled and that there was any particular point which was absolutely critical in dealing with his evidence. The Magistrate considered the evidence, the demeanour of the witnesses and ultimately decided that Detective Hosemans could not be believed. One aspect of his evidence which told against his credit was the issue about the message he had left on the complainant's telephone the day following the evening during which the incidents occurred. His version of the message he left was simply unbelievable. Indeed, the Magistrate could not and did not believe it.

THE MAGISTRATE'S FINDINGS 123 The Magistrate's decision occupies some 44 pages and contains a close and detailed analysis of the evidence. In dealing with general matters, the Magistrate stated: · there was no issue that a limited amount of beer was consumed during a round of golf and shortly before the commencement of the seafood night; · although there was an issue as to the amount of alcohol consumed by various individuals, including the defendants, little issue was taken that a further quantity of beer, wine, butterscotch schnapps and Wild Turkey bourbon shots were provided to their table and later within the area adjacent to the bar where the offences are said to have been committed. · It was common ground that the complainant and the defendant, Mr Woolfe, had previously been in a sexual relationship which had ended amicably and well before the alleged incidents; · the relationship between the complainant and Detective Hosemans on the night and for some years prior was one of "mutual comity and friendship"; · the initial drinking and the added drink bought by Mr Sloane from race winnings meant the court had little difficulty in accepting that the group with whom Detective Hosemans and Mr Woolfe were associated consumed a significant amount of alcohol although the exact nature and quantity was impossible to determine. The complainant had been trained to bear in mind such considerations as part of her legal obligations relating to the responsible service of alcohol and satisfied the court that, without apparent exception, the members of the group became increasingly intoxicated as the night wore on. The claimant had described an off duty police officer, Holland, as being extremely intoxicated and Sloane as being "incredibly intoxicated". Her description of the defendant Woolfe tackling the person Larnach to the ground and Holland diving on top of them created a perception of members of his group whose general behaviour had become so disinhibited through the effects of alcohol that it was becoming irresponsible; · there was no issue that, on the day following the seafood night at the Club, Detective Hosemans rang the complainant's mobile telephone and left a message although there was an issue about the exact content of that message.

124 After carefully summarising the evidence of the many witnesses, the Magistrate noted that although there were competing versions, there was nevertheless a significant area of common ground - There is no issue that the complainant found herself in Hosemans' lap - with there being only a minor issue as to how the complainant got there and the connotation attaching to the alleged conduct. There is no issue that the inappropriate comment by Larnach angered the complainant and was the cause of her slap to the face of Woolfe. There is no issue that immediately thereafter both defendants took hold of her - the issue is one of where and for what purpose, that is, whether the defendants if in fact were restraining the complainant if only instinctively and in response to the slap to Woolfe's face thereafter tended to place their hands in the region of the complainant's breasts with knowledge of what they were doing. There is no issue that Hosemans was at a point in the evening, behind the bar responding to some of his group outside the bar area by gesturing towards them - the issue, and it is one solely on credit, is whether the manner in which he did so was with his thumb representing a simulated penis or, as the complainant says, with his exposed penis. There is no issue that the defendant Hosemans later in the evening went behind the bar and lifted the complainant in the air - the issue is one of whether it was an uninvited act and thereby possibly an assault, or part of a playful activity which the complainant joined in willingly. Lastly, there is no issue that the complainant left the Club in a state of distress. There are of course other facts and issues in these proceedings in relation to which there is direct contradiction. Predominantly, they relate to issues of credit. They may be summarised as the thrusting by the defendant Woolfe of his pelvis into the posterior of the complainant, whether the alleged conversation between the complainant and the witness David Kelly, and inference as to observation of Hosemans' conduct in exposing his penis did in fact take place, whether the conversation between the complainant and the witness Constable regarding her being "sick of every bastard grabbing her" took place, and whether the conversation attributed to the person Robert Locke as attested to by both the complainant and in part Dale Johns took place. Finally, there is the issue of the words used by the defendant Hosemans on the voice mail message he left on the complainant's mobile telephone. There is an issue whether the written record of that purported message tendered in evidence accurately represents the words used, or whether the evidence of the defendant Hosemans on this issue is to be preferred. It is clear of course that the resolution of these issues is of major import in determining whether the Crown discharges its evidentiary burden in these proceedings .

125 The Magistrate noted that the attack on the credibility of the complainant was "both extensive and far reaching": that cross-examination occupied the whole of the first day of hearing and a portion of the next. The Magistrate then dealt with a line of cross-examination which focused on the fact that the interviews in sequence did not deal with everything that occurred on the night, and in various respects were incomplete or were added to. Incidents such as sitting on Detective Hosemans' lap were responded to by the complainant saying that she did not think it was relevant, and therefore had not mentioned it, which was regarded by the Magistrate as not an unreasonable or incoherent response. His Worship then continued: It should be noted that at the time the complainant first presented herself for interview she was, according to police witnesses, in a state of distress. To expect impeccable precision on the totality of events on the night in question is to introduce an element of artificiality into a world of human emotions. As much as it seeks to diminish the complainant's credibility in this area, I remain unconvinced. Consequently, I do not intend to go through other aspects of cross-examination on this area for I am of the view it is unproductive. It should be borne in mind when evaluating this line of cross-examination that as I have said, many of the events, and certainly those of greatest concern are not in issue as to having taken place in some form. It is the detail that is in issue. Detail is often a matter of memory and perspective flavoured by the underlining attitude to truthfulness. There is, in the opinion of this court, little to be gained in seeking to criticise omissions that cannot be characterised as those of recent invention. Where the substance of an event is not in issue but only the connotations within it, there is also little to be gained by criticising a witness, particularly one who on all the evidence was emotionally distracted at the time, for being incomplete in the things she says to complete strangers, in this case in the form of investigating police.

126 The Magistrate recorded that the complainant had described herself as experienced in dealing with trouble within the Club and was of a resilient makeup, having been involved in two separate incidents of formal complaints resulting in disciplinary proceedings being taken against Club members. The Magistrate continued: Indeed, if her evidence is to be believed, namely that she was subject to the embarrassment of sexual innuendo, the belief that her sexual history had been a talking point amongst some if not all the members of the group, that she had been "molested" for the want of a better term by Woolfe thrusting his pelvis into her posterior behind the bar and in front of other persons, that she had been grabbed on her breasts by both defendants or that they had tried to do so, that she had attempted to control the already significant flow of alcohol to a group of people she regarded by dint of her training and experience as intoxicated only to be countermanded by her off duty bar manager in circumstances where she should be entitled to believe that he would afford her no support or protection, that she had endured people coming behind the bar and serving drinks and in the case of Hosemans, exposing himself, that she had been picked up and put on to the bar only to find Hosemans placing himself between her legs and a manner suggestive on her part of having become an object of sexual frivolity, to put it diplomatically, logically it would seem that it was this act, together with Woolfe's drunken comment, that if she did not like dealing with drunken people she would not work there, and the pervading atmosphere of drunken rowdiness that finally forced her to leave the Club in tears. Many would say the complainant is a person of uncommon resilience. Evidence is to be both understood and construed by having regard to the nature of the witness. It is a trite observation to make that life neither exists nor functions in a vacuum. Something had to have happened to cause the complainant to reach the end of her tether and composure. It was not spontaneous emotion. That something had to come from within the group made up of the defendant. Nowhere else is there to be found any rational explanation.

127 The Magistrate first dealt with the telephone message left by Detective Hosemans for the complainant. He noted that the paper on which the message was written down by the complainant and her boyfriend had come from a wire spiral notebook and nothing turned on this description - it was the message which was important. The complainant was adamant that the message was accurately recorded and that the version proffered by Detective Hosemans was incorrect. The Magistrate formed the view that it was impossible to refute the accuracy of the version offered by the complainant and corroborated by her boyfriend other than by way of finding that their overall credibility was non existent.

128 There was no issue that Detective Hosemans rang her; there was no issue that she alerted the police almost immediately that the message was on her mobile telephone. The Magistrate formed the view that he was not able to come to a positive conclusion that the credibility of either of these two witnesses on this issue was damaged to the degree justifying rejection of their evidence as either false or inaccurate. He noted that the best Detective Hosemans could do in terms of the accuracy of his recall was to rely on his memory. He was not called upon to retrieve this detail from his memory until he was charged. Bearing these matters in mind the Magistrate continued: The erosion of memory with the effluxion of time is notorious. The same consideration does not apply to the written document. The persuasive effect and inferences capable of being derived from the form of words used by the defendant Hosemans are, I would think, apparent to all. They are, at the very least, an apology. In relation to what and by whom, including the defendant, is problematic. I have no hesitation however in accepting that the content is in the nature of an admission on the part of Hosemans, albeit, as I have said, it is unclear with precision as to whether it relates to all or part of the events recounted by the complainant. I also have no hesitation, as indicated earlier, in concluding that Hosemans made the call in the belief that his relationship with the complainant would prevail.

129 In relation to the complainant sitting on Hosemans' lap and how she got there, the Magistrate rejected the relevance of the differing versions and the quest to attempt to resolve differences in minutiae recollection. Up until this time the complainant and Detective Hosemans appeared to be enjoying each other's company.

130 The Magistrate then turned to the question of the consumption of alcohol during the course of the night. He stated that it was well recognised that excessive consumption of alcohol led to impairment of perspective judgment and memory. There was no suggestion that the complainant was so impaired - far from it. No issue was taken on the complainant's assessment of the level of intoxication of others in the group and the complainant remained firmly of the view that each defendant was well intoxicated. Witnesses within the group confirm that Mr Woolfe was well intoxicated while Detective Hosemans regarded himself as being only moderately affected. In relation to that assessment, the Magistrate said: It is a trite observation to make of course that those least able to judge their level of sobriety are those whose judgment is impaired by alcohol and that those best able to judge are those seised of experience and visited with the task of assessing the level of incipient inebriation as part of their legal responsibility. I have no difficulty in accepting that both defendants were well affected by alcohol on the night in question.

131 The Magistrate was critical of the approach of the off duty bar manager who condoned the excessive drinking and pressured the complainant into continuing service of alcohol to the group in breach of her legal obligations in light of the amount they were spending. He concluded that Mr Constable was a singularly unimpressive witness both on this particular issue and generally - his loyalties appeared to be with the defendant.

132 In assessing what was the result of this excessive consumption of alcohol, the Magistrate stated: Beer, butterscotch schnapps, Wild Turkey bourbon, Baileys liqueur, evidence of multiple trips to the bar, the largesse of Gary Sloane, people being tackled in the bar, an off duty police officer, drunk and wrestling on the front lawn, it requires no great understanding to appreciate that what occurred on this night insofar as the consumption of alcohol was concerned, was a group indulgence in unrestrained excess.

133 In the view of the Magistrate, Constable was protecting his position as bar manager especially if the complainant made a complaint to Mr Farmer, the Club manager. In this way, Mr Constable's evidence was affected. The Magistrate stated that he was less than impressed with the conduct and veracity of what he described as "the peripheral players", nor was he impressed with the behaviour of the defendant.

134 In relation to the alleged indecent exposure, the Magistrate described the issue as being one of a thumb grasped between a closed palm or, as the complainant said, a flaccid penis. Mr Sloane, a friend of Detective Hosemans supported his version but he was a person conceded to be highly intoxicated. The Magistrate said that he applied necessary caution in evaluating his evidence: it was of almost no value on the logic that he asserted that he could see what the defendant was doing from a distance further away from that of the complainant when it could not be argued that the complainant's capacity to observe, with detail, was any the worse. The complainant's evidence was not simply that she took a fleeting look as she said, with some particularity, she saw the zipper of Detective Hosemans' trouser undone and that he was holding a flaccid penis and was waving it about in the direction of the people on the other side of the bar. This evidence was given by a person with sufficient concentration to agree that Detective Hosemans' gesture, unlike other aspects of his conduct that night which were directed towards her personally, was not, in this case, intended to be some behind the back provocation towards her but was a case of Detective Hosemans playing up to his group of friends. Her evidence was that it was not a thumb and the Magistrate believed her because he had no doubt as to the accuracy of her observation and also because of the way in she gave her evidence on the issues. Her attention had been drawn to events behind her by the sound of laughter when she was attending at that time to Mr Kelly at the Keno machine. She said she responded to the defendant as to the inappropriateness of his conduct.

135 The Magistrate then observed: For this court to reject her evidence would require it to be seised of a level of gullibility that would be an affront. It makes no sense for the complainant to contrive a set of circumstances involving Mr Kelly, complete with conversation relating directly to the identification of the appendage if it has no basis in fact. The complainant knew on the night that Kelly was a member of the defendant's group. To suggest that she would invent a version that relied for its acceptance of a person or persons who would more likely to be aligned with the defendant defies logic. I have already made my views of Mr Kelly known. I will re-state it. He is, and was in relation to this particular aspect of the proceedings, deliberately untruthful. I have not the slightest hesitation in accepting that the portion of evidence regarding the interchange between the complaint and Mr Kelly did in fact take place. Regrettably Mr Kelly is not the only untruthful witness in these proceedings … it follows that I find the defendant Horseman's has been untruthful on this issue … The leap towards a consciousness of guilt in the moral sense on the part of Horseman's on this issue is easily made and is just as easily understood. In the sober light of day I have little doubt that the cold sweat of reality in understanding what he had done and where would have almost have rendered him dumbstruck, but not so mute as to not attempt to call off the complainant with an apology. By the same token the court is not entitled to assume that this defendant having been found to be untruthful on one aspect of the proceedings is necessarily untruthful in other areas.

136 Having reached these adverse views to this point, especially in relation to Detective Hosemans, the Magistrate reminded himself that it was very important not to lose perspective - the mere telling of untruths in one area did not translate to a lack of truthfulness in other areas. The Crown could not simply rely upon the diminished credit of one of the defendants. The Crown case was not without its own internal difficulties.

137 The allegation that Detective Hosemans and Mr Woolfe grabbed at her breasts was subjected to criticism based on the divergence of versions given by the complainant in her various statements. The Magistrate, however, said that the evidence of Mr Newman provided a significant level of corroboration and a physical display consistent with such an activity having occurred. His evidence as to the way in which the hands, thumb and forefingers of each defendant were in motion in the vicinity of the complainant's breast region and his first statement to the complainant, "What are they doing, trying to grab your tits" was entirely consistent with the formation of a belief as to conduct based on reasonable inference. The Magistrate said there was no doubt that Mr Newman believed what the defendants were up to and it mattered not whether the complainant giggled or appeared unconcerned. The Magistrate said he had no difficulty in concluding that there were parts of her evidence which were not true in fact, whether deliberately so or by the product of reconstruction and exaggeration. If Mr Newman was believed, then it was not unreasonable for the court to conclude that there was an identifiable attempt at touching the complainant's breasts. Mr Newman was told by the complainant that they tried to touch her breasts but they did not succeed. In the overwhelming majority of incidents, the complainant used the terminology "tried to". 138 After considering the submissions, regarded as persuasive for the defendants, the Magistrate said that he had no hesitation in accepting Mr Newman's evidence and its implications: The inference arising from it is that wherever the defendant's hands may have been in response to the initial slap to Woolfe's face, those hands moved with a clear intent of attempting to fondle the breasts of the complainant. The Magistrate referred to the fact that both defendants regarded the complainant as someone who would be accommodating of their behaviour. Mr Woolfe in his increasingly intoxicated state propositioned the complainant to go home with him. She had been the topic of discussions about her prior sexual relationship with Mr Woolfe and the Magistrate did not have any illusion, that as the night wore on and the level of intoxication rose that the inhibitions of sober and otherwise responsible men diminished. Ultimately, the Magistrate had no difficulty in accepting, as Mr Newman said, and the complainant endorsed, that the defendants were trying to "feel her tits".

139 Having found that the defendants had attempted to fondle the complainant's breasts but had not in fact touched her breasts, the Magistrate noted that he had not been asked to deal with an alternative charge of attempt. The Information's were dismissed in relation to that matter.

140 Dealing with the last incident and the charge of assault occasioning actual bodily harm, even allowing for the complainant's exaggeration, the Magistrate was satisfied that her involvement in being picked up by Detective Hosemans was not consensual. She appeared to be at the end of her tether and that the defendant Detective Hosemans and others in his group were "drunk beyond caring". Because he did not accept Detective Hosemans as a truthful witness, he rejected his evidence that Detective Hosemans and the complainant were engaged in a playful interlude leading up to his taking hold of her. While there was a limited degree of exaggeration in the evidence of the complainant, the Magistrate's overall assessment of her credibility was that by and large she was truthful, certainly more so than either of the defendants, members of their group and some others who gave evidence before the court. He, however, rejected the evidence that the complainant was slammed against the bar - this was obvious exaggeration. The Magistrate did not believe that the lifting of the complainant by the defendant was an act done with a guilty mind and with the intention of applying unlawful force. Detective Hosemans may have been guilty of being arrogant and presumptuous as to his perceived right to take hold of the complainant, but the Magistrate was satisfied that when he did so it was an act without malice and therefore the Information was dismissed.

141 In concluding his decision, the Magistrate raised issues of concern arising from the course of the proceedings. He was moved to say the following: Throughout these proceedings there has been the permeating odour or undercurrent of cover up and deceit. That the defendants would seek to involve themselves in an attempt to mislead the court, while dishonourable and cowardly, is understandable: that others, for reasons inimical to the pursuit of justice and in circumstances that can only be described as spineless and reprehensible should join is a grave disappointment. I have no doubt that Messrs Kelly and Constable lied to this court with parallel motive. To endeavour to cover for their friends while nonetheless unacceptable when done so is understandable. To contrive to attempt to mislead this court with the concurrent motive of preserving their employment and the reputation of the Bathurst Golf Club is less understandable. It would be comforting to think that in this modern era where the expectations of society so far as the pursuit of justice is concerned is high, that ordinary citizens would play their part fully, frankly and without fear. I am satisfied in these proceedings that in addition to Kelly and Constable, that there is a distinct possibility that the secretary-manager, Ian Farmer and a high probability that one of the Club's committeemen, Robert Locke, have also abandoned their social responsibilities. In all likelihood some of the others who gave evidence before me of being oblivious to or not seeing or hearing any of the events that transpired on this ugly night fall into the same category. This case is remarkable for the blindness of some of the by-standers (in) the Golf Club. I find it unbelievable that given the nature of the behaviour that took place on this night that some of the other people who attended this Club saw or heard nothing. One of the inevitable inferences in these proceedings as to the justification for the defendant Hosemans telephoning the complainant is a likelihood that Ian Farmer breached the complainant's confidentiality and told either Constable or Kelly or both. For what other reason would Kelly, according to the evidence of Hosemans, ring him on the morning of the following day other than to warn him that he had been complained about to the secretary-manager. As I have indicated, a rationalisation for his telephone call relied upon by the defendant Hosemans is spurious and unbelievable. What is believable is that he would endeavour to head off the sort of trouble that might impact on his professional career in the police service and his public career in local government. Turning to Robert Locke, he gave evidence denying the evidence of the complainant and Dale Johns that he had approached them and told the complainant she should not have to put with that sort of conduct particularly from the Deputy Mayor and if she lodged a complaint he would support her. This court will never know what conduct Mr Locke had in mind but it was obviously sufficiently egregious to cause him initially at least, to offer his sympathy and support. I am satisfied that he did not and that the evidence of both the prosecution witnesses on this aspect is correct. Perhaps it was the eight to ten schooners that gave him the Dutch courage to come forward and the cold light of day that inspired him to beat a retreat. Like Mr Farmer I suspect, his concern for the reputation of the Bathurst Golf Club outweighed what should have been his obligation to assist the pursuit of justice. For that, like the others, he deserves no credit whatsoever. It is a sad indictment of a community when fear of embarrassment, or perhaps fear of another person's position inspires an unspoken agreement to frustrate the interests of justice. Communities are loud in their demands for a strong criminal justice system to protect them. The hypocrisy demonstrated within these proceedings seems to make a partial mockery of the part they must play if such ends are ever to be achieved. Untruthfulness and cover up only provide an inspiration to those who would seek to prey on society at its considerable cost. I have had my say. It pleases me not to have had to do so. I would be unsurprised to hear of feigned outrage from those I criticise. I would also be unsurprised to learn that the Golf Club has done nothing in the exercise of its disciplinary role regarding the outrageous conduct of some of its members and employees. That would be in keeping with the role in these proceedings. They know the truth and so, I believe, do I.

DELIBERATION 142 I propose to approach the task of review bearing in mind the views expressed by Powell JA in The Commissioner of Police v Donnelan and Hanson namely that the role on review is to determine that the decision made by the Commissioner was correct, rather than having the Commission make a fresh and independent decision itself: the question on review in the Commission resolves into an assessment of whether the decision to remove the applicant was harsh, unreasonable or unjust. I also bear in mind that the power exercised by the Commissioner, while it may be loosely described as a "power to punish for an offence found to have been proved, is a power conferred on the Commissioner and is to be exercised by him for the protection of the public". Bearing in mind the statutory scheme, I am also to consider the interests of the officer which will include consideration of the loss to the Police Service of an experienced detective in the case of this applicant.

143 I propose to deal firstly with the allegation of attempted indecent assault. The significance of this allegation, from the point of view of the Commission's consideration, is that it appears to be the only incident witnessed by a person independent of the parties and apparently free from criticism by the Magistrate.

144 Detective Hosemans' evidence was that, after an episode early in the night when the complainant sat herself on his lap, he was walking past the bar and he noticed Mr Woolfe walking towards him and that the complainant, who was standing behind the bar, looked unhappy. As he passed Mr Woolfe and the complainant, he turned, facing the bar, and said to the complainant "Hullo". Then he saw the complainant lean over and slap Mr Woolfe in the face, saying to him "You've got a big mouth". He said it was more than a playful slap and was more towards a "moderate type of strength" - it was of such a degree that it made him take notice. The complainant had reached over and slapped Mr Woolfe on the face and Detective Hosemans had responded at the same time, reaching over the bar saying, "Hey", taking hold of her shirt on the button line just below the collar with his left hand. He said he reached out in an instinctive reaction although he did not understand what was going on, but he did not want the situation to escalate. He certainly did not want it to happen again. He noticed that at the same time Mr Woolfe reacted in the same manner, also reaching out and grabbing hold of her shirt in a very similar location to where he had hold of her. His arm was outstretched and he felt the complainant lean against him a little bit and then felt her pull back then let out a laugh and a bit of a giggle.

145 In cross-examination, Detective Hosemans was unable to explain why he stopped to say "Hullo". He did not know why he had done that when earlier in the night he felt uncomfortable about her familiarity in sitting on his lap, but he said he was also looking to say hullo to Mr Woolfe and they were both there at the bar. Detective Hosemans demonstrated how he grabbed hold of the complainant's shirt about the lapel area on a man's suit, just below the collar. He said his concern was the complainant would slap Mr Woolfe again, although Mr Woolfe was in a position, being on the other side of the bar, where he could move out of reach. Detective Hosemans agreed that as a police officer he knew what constituted self-defence or defence of others, but he would not agree that it was not necessary to do what he had done in order to defend Mr Woolfe. He had simply reacted on seeing the slap even though Mr Woolfe could move away and was on the other side of the bar - that was simply the way he reacted. He understood that he could not assault someone unless there was a lawful purpose.

146 Detective Hosemans said that he did not ask Mr Woolfe or the complainant what they were doing or ask Mr Woolfe what was happening. He said that after the complainant pulled back and laughed and let out a giggle that broke any tension and he regarded that as being the end of the matter. He said that while his intervention arose out of his concern, he was not concerned enough to stay there to find out "what was going on". He was eventually told, a while after the incident, how it came about but that did not occur while he was at the bar at the time of grabbing hold of the complainant. Detective Hosemans agreed that if a person took a quick look at what was occurring at the bar it might have appeared, as Mr Newman said, that there was a pinching action being used but the Detective denied that was what actually happened. In his recollection, the complainant slapped Mr Woolfe with the back of her hand, it was like a back handed hit. The slap hit Mr Woolfe on the cheek and was more than a playful slap or a tap - it was "somewhere heading towards like a moderate force, not reaching moderate force" but not just a tap.

147 The other defendant, Mr Woolfe, in evidence recounted leaving the restaurant area and going to the bar area about 11.00 pm that night and hearing Mr Larnach tell the complainant that she had sex at the James Cook Motel. Mr Woolfe was concerned that the complainant would think that he had told Mr Larnach about having sex at the motel during their relationship so he followed her to the end of the bar and she stopped, faced him, leaned out and slapped him on the face. Mr Woolfe said he reached over and grabbed the top of her shirt just near the collar area, perhaps immediately below the collar on the right hand side of the complainant. He said he did not notice anybody else in the area until he leaned out and then became aware that Detective Hosemans was on the other side. Detective Hosemans reached out as well and had his hand basically in the vicinity of where Mr Woolfe was but on the other side of the complainant's shirt. He did not see Detective Hosemans touch the complainant's breast and the complainant said nothing to him. Asked why he reached out, Mr Woolfe said that it was a bit of a shock being slapped and he did not want anything else to happen after that and he was just trying to tell her that he had not told Mr Larnach about them - it was a reflex action. When he reached out and grabbed her shirt, the complainant pulled back and laughed and went about her duties. Mr Woolfe turned and thought nothing else of it and that was the end of the matter.

148 Earlier in the night, Mr Woolfe said that when he was in the poker machine area the complainant had stopped behind him and he had turned and said "We had pretty good sex didn't we?", referring to their previous relationship. She had replied "Yeah, you go alright", and he had said that to the complainant because it had been an ongoing joke between them. Mr Woolfe agreed that on this occasion that was said in the presence of another person, a Mr Magee, and although it was not the appropriate thing to say, they had said the same thing in front of other people before and he did not think she would be embarrassed by it. He did not explain why he thought the complainant would therefore be embarrassed by Mr Larnach's comment later that night.

149 In cross-examination, Mr Woolfe stated that the complainant had hit him with her right hand, and the back of her hand. Mr Woolfe described it as more than just a light tap and it was "definitely not a full blow". Asked why he reached out and grabbed the complainant's shirt, he said it was a reflex action after being slapped - he did not want it to happen again. He accepted that he could have stepped away from the bar and then the complainant could not have hit him again but that was not his reaction. Mr Woolfe denied that the complainant had yelled "Fuck off, let go of me" but said that both he and Detective Hosemans had let go and she had then pulled away.

150 Mr Woolfe was not able to say the number of drinks he had consumed that night but accepted that he was drinking constantly throughout the night. He had heard the evidence of other witnesses that he was well affected by alcohol by the end of the night.

151 In a statement to the police, Mr Newman spoke of a shout at the bar and the men paying more attention to the complainant. He remembered two men reaching over the bar and attempting to grab the complainant on the breasts - both had reached over and appeared to try and pinch her on the breasts. They grabbed her shirt but he was not sure if they grabbed her breasts. Mr Newman, in his evidence in the Local Court, said that there were a number of people around the bar where the complainant was serving when two men leaned forward and from what he could ascertain, tried to grab the complainant around the chest area. He saw them grab her shirt and they sort of leaned outwards and she stepped back. The men had grabbed her shirt in the area right near her breast. The complainant did not seem too worried about the situation, sort of giggled, moved back and there was no struggle. She seemed to break the hold quite easily and move backwards. He was able to identify the two men involved as being Detective Hosemans and Mr Woolfe.

152 When asked to describe what their hands were doing when they grabbed in the chest area near the breasts of the complainant, Mr Newman said that it was a type of pinch, demonstrating an action between his thumb and forefinger when they were reaching towards the complainant. The very first thing he saw was the two men reaching over and grabbing hold of the shirt and then the complainant moving backwards and sort of giggling as she moved backwards. When asked to estimate how close her face was to the defendant, Mr Newman said he was not looking at that, what caught his eye were the fingers on the shirt. He thought there was something obviously out of place and he said to the complainant: "What were they trying to do, grab your tits or something?", and waited for a reply and she said something along the lines of: "No, they tried but they didn't get me". That was Mr Newman's first reaction to the incident. At the time that Mr Newman spoke to her, she seemed "fine".

153 In cross-examination, Mr Newman said that he was looking over his shoulder when he observed this incident and he had viewed it for only a couple of seconds. He said that there was nothing that concerned him that he had seen and nothing that seemed to concern the complainant. He did not hear her say "Fuck off, let me go", and he thought he would hear it if it was said. He apparently did not hear her say "You've got a big mouth" to Mr Woolfe, as Detective Hosemans did, nor did he hear Detective Hosemans say, "Hey"!. The complainant also confirmed that she had said to Mr Woolfe, "You've got a big mouth". Mr Newman stated that after the complainant said that they tried but did not get her, she said something like: "They were too drunk", or "They were too slow" - it was one or the other, but he could not remember which.

154 I am satisfied that Mr Newman saw Detective Hosemans and Mr Woolfe reach out with a pinching movement in the area of the complainant's breasts and that is why he immediately asked her if the two men were touching her breasts. His immediate concern may have been allayed by being told by the complainant that they had tried but failed but that does not detract from the action which attracted Mr Newman's attention. I am satisfied on a consideration of the evidence that Detective Hosemans did try to pinch or touch the complainant on the breasts. While there were a number of minor facets of the evidence that were in dispute, the essential facts are clearly established. The discrepancies are not all on one side of the record. Mr Woolfe, for instance, said that there was no one else at the bar although obviously Mr Larnach was there because it was his comment which prompted his own desire to set the record straight with the complainant. Indeed, Mr Newman's statement to the police was that a group of men were at the bar and were in a "shout". Mr Woolfe was also unaware of the presence of Detective Hosemans who was close enough at the time of the slap, and apparently at the same time as Mr Woolfe reached out, to reach out and grab hold of the complainant. Both defendants said that they took this action as a simple reflex action or "reaction": they both grabbed the complainant's shirt just below the collar but above the breast area although Mr Newman saw them with their pinching finger movement in the breast area. Both defendants had grabbed the complainant by the shirt to stop her slapping again, although there was no sign of such a level of anger or distress in the complainant and that she had hit Mr Woolfe on the cheek with the back of her hand with little real force. It is difficult to see why they were, even by reaction, alarmed at the possibility of a repeat of a fairly innocuous slap. It is also not understandable why Detective Hosemans, with his experience as a police officer and on his own version, not knowing the cause of the action he had observed, did not simply step in between Mr Woolfe and the complainant, or push Mr Woolfe away so that the complainant was no longer able to slap him, bearing in mind that the complainant was behind the bar and also had to lean across to be in contact with Mr Woolfe. Indeed, by pulling the complainant forward by grabbing her shirt, the two men made it easier for her to continue hitting Mr Woolfe - the very act they said they were trying to prevent.

155 The version of events given by the two defendants in the Local Court simply does not make much sense. The evidence of Mr Newman as to what he saw and the query he immediately raised with the complainant is of significant importance in determining this issue. The Commissioner may have relied upon the evidence as extracted or the conclusions of the Magistrate in reaching his conclusion, but either way his conclusion was, in my view, correct. My reading of all of the evidence confirms the correctness of the Commissioner's view.

156 The complainant's evidence was that she was serving "shots" at the end of the bar to a group comprising Detective Hosemans, Mr Woolfe, Mr Larnach and Mr Constable. She could not recall if there was anyone else standing with them at the time. Mr Larnach had made a comment that Mr Woolfe and she had sex at the James Cook Motel and she said she was pretty embarrassed and walked to the other end of the bar, and basically had the "shits". Mr Woolfe followed her and she told him he had big mouth but Mr Woolfe kept saying he did not say anything to Mr Larnach and that Mr Constable must have told him, when she leaned across the bar and tapped Mr Woolfe on the right side of the face with the back of her fingers. She did not know where Detective Hosemans came from but he leaned across the bar and grabbed her by the shirt, she was on her toes and Detective Hosemans with his free hand started grabbing at her breasts and she had immediately crossed her arms and Mr Woolfe also started grabbing her with both hands. Their hands had actually connected with her breasts. Neither Mr Woolfe nor Detective Hosemans talked about anybody else being at the bar, although it is obvious that at the time at least Mr Larnach was there. Detective Hosemans' evidence was that he came to the bar to say "Hullo" to Mr Woolfe and the complainant, although he had been in the company of Mr Woolfe all night as part of the group, and had been involved with the complainant all night since she sat on his lap early in the evening: she had been serving alcohol to the group during the night along with other bar attendants employed by the Club.

157 The seriousness of this finding cannot be diminished because of the familiarity of the complainant in some of her early actions during the course of the night, nor by what might be described as the flirtatious behaviour from time to time occurring between the complainant and Detective Hosemans. Having regard to the amount of alcohol consumed during the night and the boisterous behaviour of the group with whom Detective Hosemans was attached, there is an abundance of evidence which entitled the Magistrate to come to the view that, throughout the night, in a variety of ways, liberties were taken with the complainant. On the evidence, the Commissioner was entitled to come to the same conclusion. It also follows that Detective Hosemans was untruthful in giving his evidence to the Local Court in relation to this incident although, surprisingly, this is not a matter separately relied upon as a ground for his removal. The untruthfulness of his evidence in relation to this matter is therefore to be considered only in relation to ground 1.

158 In relation to the ground that Detective Hosemans exposed his penis and thus his behaviour was inappropriate and contrary to the Police Code of Conduct, the evidentiary position is less clear cut. According to the complainant, she heard a noise or cheering and, when looking in the direction of that noise, saw that Detective Hosemans had his penis in his hand and that his fly was undone and that he was waving it at his friends. Again, there is a substantial degree of acceptance that an incident of this nature took place with all the elements conceded except Detective Hosemans, importantly, denying that it was not his penis but rather his hand clasped over his other hand with his thumb sticking out like a penis with both hands held in his groin area. There is no disagreement as to how this incident came about, with Mr Sloane and Detective Hosemans exchanging coarse language while under the influence of alcohol and with Detective Hosemans saying something like "Well, suck this".

159 The reason for Mr Sloane and Detective Hosemans engaging in this vulgarity is curious. Mr Sloane stated that he had been asking for some time for Detective Hosemans to call him a cab and that Detective Hosemans had not done so, and that is why he had referred to him as a "cocksucker" - it was this banter which apparently prompted Detective Hosemans to pretend that he was exposing his penis. There is no attempt to explain why Mr Sloane could not have arranged for the cab himself or to have asked somebody at the bar such as the complainant to organise the cab for him if Detective Hosemans had become unco-operative. On the evidence, the telephone at the bar was in the clear view of Mr Sloane during this exchange with Detective Hosemans. It was accepted by Mr Sloane that he was a friend of Detective Hosemans and that he had previously arranged to share a table with Detective Hosemans and others for the function at the Club that night. He had asked Detective Hosemans on three or four occasions to ring a taxi for him but Detective Hosemans wanted to keep him there, he was playing snooker, and was "half ignoring" Mr Sloane who was getting "a bit frustrated". He said he had finally leaned over to Detective Hosemans and said "For crying out loud, George, would you now ring me a taxi, I've got to go home". It was in this conversation that he called him a "cocksucker" because he was getting quite frustrated with Detective Hosemans. In re-examination, Mr Sloane agreed that he had not told the police about this incident which had occurred as Detective Hosemans had brushed through the doors where the telephone was hanging. He accepted that he would have been facing the telephone at the time. Mr Sloane said that he had not been asked about the incident until that morning when he was giving his evidence in the Local Court. It is somewhat surprising that this vital observation had not been recalled and pursued by Detective Hosemans until the morning of Mr Sloane giving evidence, when for some time, he was under the cloud of a charge of indecent exposure. Mr Sloane's independent evidence supporting that of Detective Hosemans surely could not have escaped him.

160 Mr Sloane gave some evidence of the alcohol he bought that night following his race winnings and, from the description of other witnesses, it is clear that, as the alcohol took effect, his group, which included Detective Hosemans, became more rowdy and perhaps uninhibited. In his statement, Mr Newman described the group as becoming more "rowdy" and by the time they got to the bar, they were tackling each other and becoming "a bit more active". There is force in the observation made by the Magistrate that, putting aside Mr Sloane's sobriety and his capacity to accurately recall the events of the night, he was, on all accounts, no closer to Detective Hosemans than the complainant when this incident occurred, yet was confident that Detective Hosemans had merely used his thumb rather than exposing his penis.

161 The Magistrate, in determining precisely what happened, here was dealing with an issue of credit, as the charge of indecent exposure had already been disposed of on technical grounds, namely, that the event, if it took place, did not occur in a public place. The Magistrate, who had the opportunity to hear and see the witnesses over a number of days and assess their demeanour, was well placed to determine that Detective Hosemans was not to be believed in relation to this incident and that the complainant was to be believed. The Magistrate pointed to the detail of the complainant's evidence - Detective Hosemans' fly being undone, her expression of knowing what a penis looked like and, having experienced similar circumstances and having adopted an approach of embarrassing the men concerned into behaving themselves. She was quite sure that what she had seen was a penis and not a thumb, and the Magistrate believed her. 162 Another disturbing feature of this incident is that from the complainant's account, other people must have seen it. Her attention was drawn by a noise or cheering and she accepted that Detective Hosemans was not exposing himself to her, but was mucking around with this friends. Nevertheless, no other person apart from Mr Sloane gave evidence of seeing this incident, not even as one involving a thumb in the groin area as described by Detective Hosemans.

163 The strength of the Magistrate's view of this incident is not to be discounted. If the same incident had occurred in a public place, the Magistrate made it quite clear that he would have found that Detective Hosemans exposed himself. Counsel for the applicant stressed that the issue only continued in the proceedings in the Local Court after the case was dismissed on the Crown evidence because Detective Hosemans wished it to be considered as part of his credit - in other words, he was so confident of his position on this matter and that the event did not occur, that the question of whether or not it had occurred continued in the case at his insistence in order for him to establish his credibility and undoubtedly (although not so submitted) to diminish the credibility of the complainant. Whether this gesture has more to do with bold and daring advocacy rather than innocence, I need not decide. The applicant, however, strongly submits that this event did not take place although it is clear from a later exchange that night with Detective Hosemans that the complainant thought he had exposed himself.

164 This was a very serious allegation and the more so because it was made in relation to a serving police officer. The issue, however, from the position of the Commission conducting a review, is one not easy of resolution. Under the scheme of the Act, which is administered by the Commissioner, he was not obliged to have a hearing or to cross-examine witnesses - a course contemplated by the amended legislative scheme. The Commissioner had before him the strongly expressed views of the Magistrate who had seen the witnesses, had heard their testimony and over a number of days had been able to form a view of the general tenor of the night, which he described as being something close to a drunk and noisy rabble. The Commissioner accepted the views expressed by the Magistrate and rejected the explanations proffered by Detective Hosemans in his response. That response concentrates on the fact that the matter was not raised in the complainant's first statement which was taken over a period of six hours, and the claim that she mentioned the indecent exposure to Mr Farmer was denied by him (although supported by her boyfriend). It was said that the conversation about the exposure that she is alleged to have had with Mr Kelly was rejected by Mr Kelly, and that the exposure incident as she described was also rejected by Mr Sloane.

165 Bearing in mind the importance of the issue, although I have very serious doubts about Detective Hosemans' version of the events, I would not be prepared, on a reading of the transcript alone, to make an adverse finding in light of the state of the evidence. There is good reason to exclude the evidence of Mr Kelly and Mr Sloane from consideration, leaving the competing versions of the applicant and the complainant. The question then arises, however, because it is not for the Commission to make a fresh decision, whether the Commissioner was correct in deciding that Detective Hosemans did expose himself that night. I am unable to say, on review, that the Commissioner was incorrect in forming the view he did. There was inconsistency in the surrounding evidence and there is some significance in the fact that the complainant did not feel affronted by the incident but regarded it as another episode of intoxicated behaviour occurring between the male members of Detective Hosemans' group. Ultimately, I cannot say it was incorrect for the Commissioner to accept the very firm conclusions of the Magistrate in regard to this incident when it was the Magistrate who was best placed to assess the circumstances and make that determination.

166 It is appropriate at this stage to say something more general about the way in which the Local Court evidence and the Magistrate's findings are to be approached. While I have accepted that the Commission in a review under s 181E is not conducting an appeal against the decision of the Commissioner, the present circumstances are somewhat unusual. The Commissioner relies upon the views and conclusions expressed by the Magistrate after an extended hearing of the evidence. The Commission's usual task is to review the matters relied upon by the Commissioner (and any new evidence) and to determine, firstly, whether the Commissioner was correct in coming to his conclusions and, secondly, whether or not the conclusions are correct, to consider if the decision was harsh, unjust or unreasonable. In the present case this task involves consideration of the evidence before the Local Court and an evaluation of the conclusions reached by the Magistrate. The task is then to decide whether the Commissioner was correct to rely on those matters where adverse decisions or observations were made against Detective Hosemans. In assessing the conclusions arrived at by the Magistrate, I have adopted the usual course where findings made at first instance are dependent to a substantial degree on the credibility of witnesses - that is, such findings should stand unless it can be shown that the Magistrate has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which are glaringly improbable. This is, of course, the test applied on appeal against findings of a trial judge, as referred to by the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ, and as understood in the light of SRA (NSW) v Earthline Constructions Pty Ltd (in Liq) (1999) 73 ALJR 306. To adopt this approach is not to convert the exercise into an appeal, but applies an appropriate test in making the assessment of the Magistrate's conclusions, keeping in mind that neither the Commissioner nor the Commission has seen or heard all of the witnesses.

167 In many respects, the applicant's case was an invitation to simply form a different view to that reached by the Magistrate. This was to occur without an analysis which demonstrated that the Magistrate's advantage in hearing and seeing the witnesses was removed because there was too fragile a base to support his findings. The conflicts in evidence ran both ways: the conflicts were dealt with by the Magistrate in a rational and careful manner; and there was nothing which would enable the Commission to conclude that the findings of fact made by the Magistrate were clearly wrong or not reasonably open on the evidence. This was not a case of incontrovertible facts or uncontested testimony resulting in the Magistrate's findings on credit being plainly wrong. I accept that the evidence in the Local Court is to be subjected to analysis again (see Watson J in AWU v Colgate-Palmolive Pty Ltd (1988) 27 IR 420 especially at 427): that analysis and scrutiny does not call into question the findings made in relation to grounds 1 2 and 4 of the Commissioner's Notice, as will become obvious later in these reasons.

168 I next turn to the ground which alleges that Detective Hosemans assaulted the complainant by placing his arms around the vicinity of her waist and buttocks and lifting her bodily off the ground, as a result of which she received bruising to the back of her legs and tenderness to her rib area. I accept the submission for the applicant on this matter. It is important to note that although the criminal charge was assault occasioning actual bodily harm, the Magistrate concluded that the lifting of the complainant by the defendant was not an act done with a guilty mind and with the intention of applying unlawful force: while he may be guilty of being arrogant and presumptuous as to his perceived right to take hold of the complainant, the Magistrate was satisfied that when he did so it was an act without malice either within the common law or the expanded view contained within s 5 of the Crimes Act 1990. The Magistrate also rejected the complainant's evidence that she had been slammed against the bar with the injuries detected by Dr McCreery being consistent with falling against a protruding object. 169

The Commission is, from time to time, called upon to rule, in the context of disciplinary measures, on the right of an employer to terminate an employee in circumstances where criminal proceedings have failed, but where the Commission is asked to find the employee guilty by applying the civil standard. This approach has the difficulty dealt with by the Full Bench in Humphries v Cootamundra Ex-Services and Citizens Memorial Club [2003] NSW IRComm 211; and as referred to by Watson J in AWU v Colgate Palmolive Pty Ltd and the Full Bench in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454.

170 In the present case, the important finding by the Magistrate was that there was no guilty mind involved in the action taken by Detective Hosemans in this incident. His intoxication, the familiarity and flirtatious behaviour in the early part of the evening and the references to the complainant's sexual relations are all likely ingredients in this act by the applicant. Having regard to the Magistrate's finding, which counsel for the Commissioner emphasised had been relied upon in reaching the decision to remove the officer, I am unable to conclude that the Commissioner was correct in finding that the applicant assaulted the complainant in this incident. 171 The final matter concerns the ground that Detective Hosemans was untruthful in giving his evidence to the Local Court in relation to the incident where he exposed his penis, his evidence regarding lifting the complainant off the ground and the evidence regarding the telephone message left by him for the complainant. For reasons that have already been given, the Commissioner was correct in making that finding in relation to the incident involving the indecent exposure but was not correct to so conclude in relation to the evidence concerning lifting the complainant bodily off the ground. Those matters do not require further elaboration.

172 The telephone message is another matter which involves an incident where much of the central facts are agreed but where there is disagreement on a small number of issues. There is no doubt that the telephone call took place, there is no doubt that Detective Hosemans asked the complainant to call him back and there is no doubt that he offered an apology for the events of the previous evening. Curiously, as pointed out by the Magistrate, he did not think anything untoward had occurred. The complainant, as requested by the police, recorded the terms of this brief message. In terms of its length and content, this was not a difficult task. Her version was corroborated by her boyfriend and the Magistrate had no hesitation in accepting her evidence. Detective Hosemans did not write down the message and had no reason to recall it until some considerable time after the event and when the charges were laid. According to the complainant, the message was to the effect that Detective Hosemans wanted to call to apologise for anything he did on the previous night - he just wanted to say he was sorry and asked her to give him a call. According to Detective Hosemans, his message was to the effect that he just wanted to see if someone should apologise for anything that might have been said or done. He wanted to say sorry for anything he said. This issue was like a number of others in this case. There was no suggestion that the incident did not take place but there are slight and sometimes subtle, but nevertheless, important variations according to the applicant's evidence which on all occasions placed the applicant in an innocent light. The applicant's version of this telephone call and why he made it is simply not credible. The Commissioner was correct in deciding that the evidence given by the applicant to the Local Court was false.

173 In the manner in which I have analysed the evidence, I have considered the Commissioner's case. Except for ground 3, I have found, by an independent review of the evidence, the remaining grounds have been established by the Commissioner: that is, that the Commissioner was correct in coming to the view which he did on each of the three matters and there was a basis for such findings in the facts. In considering the applicant's case, it is firstly important to understand that he stood by his evidence in the Local Court and the denials he made on oath. He also drew attention to a number of alleged inconsistencies in the complainant's evidence and statements as providing a ground upon which it would be either unsafe to rely upon her evidence or where her evidence might be considered an exaggeration and not supported by other evidence. I am inclined to agree with the submission put by counsel for the Commissioner in this regard: many of the instances of alleged inconsistency were not material to any particular ground and/or were minor matters unconnected with the thrust of the grounds relied upon for removal. It is also true that there were inconsistencies with witnesses who were rejected by the Magistrate as being untruthful witnesses and/or being unreliable because of the level of their intoxication on the night. It was also asserted by counsel for the Commissioner that each of the alleged inconsistencies was dealt with by the Magistrate who accepted that in certain respects the complainant exaggerated her evidence, but overall accepted her on vital issues bearing in mind what might be described as the torrid time she had endured that night. Counsel for the applicant did not demur but invited the Commission to examine all the evidence and to come to a different view. As I have already indicated, on my own review of the evidence I am unable to accept the applicant's case in relation to grounds 1, 2 and 4.

174 The applicant also raises the process adopted by the Commissioner and the implicit acceptance that the Commissioner did not read the entirety of the transcript. The Commissioner had a variety of documents before him for consideration, including some witness statements, some extracts from the transcript, Doctors' notes, a letter from the Chifley Local Area Commander and the Decision of the Deputy Chief Magistrate. In the summary document, the four grounds were supported by specific extracts from the transcript of the proceedings in the Local Court. Detective Hosemans' response relied on his own evidence and his denials on oath, but also invited the Commissioner to read all of the evidence in the Local Court. The applicant's response, however, pointed to a large number of areas where the evidence of the complainant was said to be inconsistent and reflecting on her credibility: as I have indicated earlier, these appear to be matters dealt with by the Magistrate in his Decision. There is no suggestion that the Commissioner did not have regard to the Reply and it was frankly accepted by counsel for the Commissioner that his decision was ultimately based upon the conclusions drawn by the Magistrate.

175 In my view it is regrettable that the Commissioner did not read the entire transcript or at least have available to him a summary of the evidence of all the witnesses. The utility of that exercise in this case is, of course, cast in doubt in view of the clear evidence that many of the witnesses either saw nothing at all of the major incidents, or were so inebriated that their testimony was to be handled with great caution. What then may be said is the significance of this omission on the part of the Commissioner? The applicant says that for the Commissioner to make a decision to remove him from the Police Service without reading all the evidence amounts to a fundamental denial of procedural fairness. The Commissioner responds that the evidence relating to the four grounds was before him and that having regard to the Magistrate's conclusions, all the matters raised by the applicant as detracting from the reliability of the complainant's evidence had been dealt with: the Magistrate having heard and observed the witnesses, it was appropriate and fair that the Commissioner accept the Magistrate's conclusions on these matters. In any event, many of the matters were at the periphery of the real issues and the real issues were to be dealt with primarily on the evidence of the complainant and the applicant.

176 The applicant has now had the opportunity of canvassing all of these matters, in detail, in this review conducted before the Commission. The Commission was taken to numerous parts of the transcript and the statements given by various witnesses to the police in order to explore, in detail, the extent and consequences of each point. In a sense, this flaw in the process adopted by the Commissioner, has been addressed and rectified on review. Although I do not need to decide the issue, this may be one of the cases where, even if there was a denial of procedural fairness, the existence of a full right of review on fact and law to the Commission would remedy that defect (see R v Marks; ex parte Australian Building Construction Employees Builders Labourers Federation (1981) 147 CLR 471; Twist v Randwick Municipal Council (1976) 136 CLR 106; Calvin v Carr [1980] AC 574). Indeed, not every failure to follow fair procedure will lead to the conclusion that the dismissal was harsh, unreasonable or unjust (Bigg v New South Wales Police Service (No 2) (1998) 80 IR at 460; Newton (1999) 87 IR at 77).

177 There will be cases, of course, where a denial of procedural fairness will be so central to the proper and fair disposition of the matter that the defect will be regarded as fundamental - this is not such a case. Indeed, a similar situation was faced by Staunton J in Dangerfield v Commissioner of Police [2003] NSWIRComm 96. In that case, in deciding to remove the police officer, the Commissioner did not view a video of the officer's action, the transcript of the Local Court proceedings, the Magistrate's findings or a number of photographs which formed part of the evidence in the Local Court. Her Honour concluded at paragraph [82] that all of the material now having been viewed, she could not agree with the submission that the officer had been denied procedural fairness in a way that significantly impacted upon the decision ultimately taken by the Commissioner and the reasons relied upon by him to remove the officer. Her Honour, having read all the material, decided that it would not alter the outcome - a consideration of the material would not alter the decision that was made by the Commissioner. I find myself in a similar position in this case.

178 On review of the material, I have not been able to conclude that the Commissioner acted capriciously or ill-advisedly or was uninformed in a relevant sense when he reached the decision to remove the applicant from the Police Service. Having found that there was a proper basis for the conclusions reached by the Commissioner, it is still necessary to consider whether the removal of the applicant from the Police Service is harsh, unreasonable or unjust. The applicant relied upon his previous good service, his community involvement and evidence of his good character including a reference from a member of the Bathurst Council. In this exercise, there is a balancing of the interests of the officer, the public interest and the fact that the Commissioner made the order under s 181D(1) and has declared his loss of confidence in the applicant. There was no material before the Commission as to any particular financial hardship, but it would be obvious to any industrial tribunal that the loss of secure employment would create difficulties, and when that employment is lost by a police officer it would have ramifications for the ability to seek employment elsewhere.

179 It is necessary to consider the decision on the Commissioner to remove Detective Hosemans in light of the findings I have made. Notwithstanding my own view in relation to the indecent exposure incident, and my finding that there was no assault of the complainant, I am unable to find that the penalty of removal is harsh, unfair or unreasonable. The applicant did attempt to grab at the breasts of the complainant despite his constant denials, including his evidence on oath before the Local Court. The Commissioner was entitled to conclude that he exposed himself and that he gave false evidence in relation to the indecent exposure incident and the telephone message. The seriousness of these findings are such that it cannot be concluded that the penalty of removal was harsh, unfair or unreasonable. The conduct of the applicant was inimical to his position and role as a police officer.

180 For the above reasons the application is dismissed.

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