Bradley George Hosemans and NSW Police Service [2003] NSWIRComm 396 - NSWIRComm 2003 case summary — Zoe

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

[2003] NSWIRComm 396

Industrial Relations Commission (NSW)|2003-07-01|Before: Haylen J, Peterson J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Haylen J, Peterson J

Source

Original judgment source is linked above.

Judgment (167 paragraphs)

[1]

THE APPLICATION FOR REVIEW 8 The applicant sought a review of the Commissioner's decision pursuant to the provisions of s 181G of the Police Service Act. In the Notice of Review, which sought relief by reinstatement, the following grounds were stated: The applicant's removal from the Police Service is harsh, unreasonable and unjust because - 1. the Commissioner of Police has not given sufficient, and, or, proper reasons, for removing the applicant from the Police Service. 2. The Commissioner of Police failed to consider all relevant facts relating to the incident, which led to the applicant being served with a s 181D Notice and likewise when he subsequently removed the applicant from the Police Service, and the Commissioner took into account irrelevant matters when he determined to serve the Section 181D Notice on the applicant and when he determined to remove him from the Police Service. 3. In other respects, the process that resulted in the applicant being removed from the Police Service is so flawed that the order removing him from the Police Service is wrong at law and therefore unjust. 4. The applicant was denied procedural fairness. 5. The Commissioner of Police failed to comply with the requirements of s 181D of the Police Act (NSW) in that he failed to reach an independent decision when he determined to serve the 181D Notice on the applicant and likewise when he determined to remove the applicant from the Police Service. The applicant submits that even taking the Commissioner's case at its highest, his removal from the Police Service is harsh, unreasonable or unjust.

[2]

[18]

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.

[20]

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.

[30]

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.

[37]

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.

[75]

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.

[76]

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.

[112]

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.

[113]

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 .

[114]

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.

[115]

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.

[126]

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".

[129]

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.

[142]

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.

[147]

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.

[153]

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.

Legislation Cited (1)

Administrative Decisions (Judicial Review) Act 1977(Cth)

Cases Cited (28)

Industrial Relations Act 1991 Part VIII Unfair Dismissals LEGISLATION CITED : Chapter 3 Industrial Relations Act 1996 Part 6 Chapter 2 Police Service Act 1990 s 181D(3)(a) s 181G s 181G(1)(f) s 181G(2) Part 9 Division 1B Part 9 Division 1C AWU v Colgate-Palmolive Pty Ltd (1988) 27 IR 420 Bigg v New South Wales Police Service (No 2) (1998) 80 IR at 460 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Commissioner of Railways (1935) 36 SR(NSW) 21 at 29 Calvin v Carr [1980] AC 574 Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 Dangerfield v Commissioner of Police [2003] NSWIRComm 96 Devries v Australian National Railways Commission (1933) 177 CLR 472 at 479 Downer v Pryor (1960) 103 CLR 353 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Commissioner of Police v Donlan and Hanson (unreported Court of Appeal 20 June 1995) Council of Civil Service Unions v The Minister for the Civil Service [1985] AC 374 at 408 Harris v Caladane (1991) 172 CLR 84 Humphries v Cootamundra Ex-Services and Citizens Memorial Club [2003] NSW IRComm 211 CASES CITED : Little v Commissioner of Police (2002) 112 IR 211 Newton v The Commissioner of Police (1998) 85 IR 119 (Peterson J) Newton v NSW Police Service (1999) 87 IR 66 (Full Bench) Re Brindle and anor ex parte F B & F A McMahon Pty Ltd (1992) 35 FCR 506 R v Marks Ex parte Australian Building Construction Employees and Builders Labourers Federation (1981) 147 CLR 471 Smith v New South Wales Bar Association (1992) 176 CLR 25 at 268.3) SRA (NSW) v Earthline Constructions Pty Ltd (In Liq) (1993) 73 ALJR 306 Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234 249 SDA New South Wales Branch v Jewel Food Stores (1988) 22 IR 102 Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281 at 297 Twist v Randwick Municipal Council (1976) 136 CLR 106 Van Huisstede v The Commissioner of Police (1999 - 2000) 98 IR 57 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454

(1988) 27 IR 420

(1938) 60 CLR 336

(1986) 9 FCR 52

(1933) 177 CLR 472

(1960) 103 CLR 353

(1979) 46 FLR 409

(1991) 172 CLR 84

(2002) 112 IR 211

(1998) 85 IR 119

(1999) 87 IR 66

(1992) 35 FCR 506

(1981) 147 CLR 471

(1992) 176 CLR 25

(1993) 73 ALJR 306

(1986) 5 NSWLR 234

(1988) 22 IR 102

(1976) 2 NSWLR 281

(1976) 136 CLR 106

(1997) 73 IR 454

(2000) 98 IR 57

(1967) 117 CLR 177

(1984) 53 ALR 593

(1976) 135 CLR 616

(1924) 34 CLR 8

(1993) 177 CLR 472

(1999) 73 ALJR 306

[2003] NSWIRComm 96