Bradley George Hosemans v Commissioner of Police

HEARING DATES: 07/28/2004; 07/29/2004; 09/21/2004 DATE OF JUDGMENT: 11/05/2004

APPELLANT: Mr S Crawshaw SC Mr A Hatcher of counsel SOLICITORS: Walter Madden Jenkins

RESPONDENT: LEGAL REPRESENTATIVES: Mr R Kenzie QC Mr R Reitano of counsel SOLICITORS: New South Wales Police Legal Services

INTERVENOR: The Police Association of New South Wales Mr B Docking of counsel

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Walton J, Vice President Boland J Staunton J

IRC Matter No 7064/2003 Bradley Hosemans v Commissioner of Police

Application for leave to appeal and appeal from a decision of Haylen J given on 19 November 2003 in IRC Matter No 1820/2003 REASONS FOR JUDGMENT [2004] NSWIRComm 253

1 At the conclusion of submissions in these appeal proceedings, the Full Bench decided to issue its decision in relation to this matter and to provide reasons for decision in due course. Accordingly, we made the following orders:

(1) Leave to appeal is granted; (2) The appeal is upheld; (3) The matter is remitted for re-hearing before Boland J

3 The proceedings at first instance concerned an application for review pursuant to s181E of the Police Act 1990 (formerly the Police Service Act 1990) of an order made by the Commissioner of Police under s181D(1) of that Act, removing Mr Bradley Hosemans from the New South Wales Police Service. In his decision, Haylen J concluded that the removal of Mr Hosemans was not harsh, unreasonable or unjust and dismissed the application.

4 The application for leave to appeal and appeal sought to challenge the whole of the decision of Haylen J. It identified a number of questions of law as being raised on appeal.

5 The grounds of appeal relied upon, which went to the issue of leave to appeal as well as the appeal proper, were: [1] The Commission ( Haylen J) erred in determining that its role in an application under Division 1C of Part 9 of the Police Act 1990 was merely to review the decision of the Commissioner of Police to determine whether it was correct, rather than to decide the matter for itself having regard to the evidence before it. [2] The Commission erred in determining that the decision of the Court of Appeal in Commissioner of Police v Donelan and Hanson was applicable to the determination of applications under Division 1C of Part 9 of the Police Act . [3] The Commission erred in determining that its role was confined to considering whether the findings of fact made by the Commissioner of Police were incorrect, rather than to determine the relevant questions of fact for itself. [4] The Commission erred in failing to decide for itself questions of fact which had earlier arisen and been the subject of findings in criminal proceedings before a Local Court Magistrate. [5] The Commission erred in failing to find that the Commissioner of Police denied the Appellant procedural fairness by relying upon a decision of a Local Court Magistrate in criminal proceedings involving the Appellant but failing to read the transcript of evidence in those proceedings. [6] The Commission erred in failing to determine that the right to a hearing in the Commission with respect to the removal of an officer from the Police Service would not cure a denial of procedural fairness by the Commissioner of Police. [7] The Commission erred by adopting as the relevant test to be applied to the application before it as being whether the Commissioner of Police acted capriciously or ill-advisedly or was uninformed in a relevant sense in reaching his decision. [8] The Commission erred by not treating the Respondent as having the onus to prove the allegations of serious misconduct and criminal behaviour it relied upon to justify the dismissal according to the Br iginshaw standard. [9] The Commission erred in finding that the Commissioner was entitled to conclude that the Appellant had indecently exposed himself and given false evidence before the Local Court. [10] The Commission erred in not itself finding, on the basis of the evidence before it, that the Appellant did not indecently expose himself and did not give false evidence before the Local Court. [11] The Commission erred in finding that it could not be concluded that the penalty of removal was harsh, unfair or unreasonable.

6 The relief sought in the application was that leave to appeal be granted, the whole of the decision of Haylen J be set aside and the appellant be reinstated to the New South Wales Police Service and receive back pay to the date of his removal.

7 The appellant commenced employment with NSW Police (formerly the NSW Police Service) initially in 1982, resigned in September 1985, and re-entered employment with NSW Police in January 1988. The appellant was elected to the Bathurst City Council in 1997 and became Deputy Mayor in September 1997, a position he held in October 2001.

8 On 20 October 2001, then holding the rank of Detective Sergeant, the appellant attended a golf day at the Bathurst Golf Club ("the Club"), followed by a seafood night at the Club. The appellant was off duty at all relevant times.

9 During the course of the evening, the appellant consumed a significant amount of alcohol in the company of, amongst others, Mr Steven Wolfe (an off-duty police officer), Mr David Kelly (a friend of the appellant's and off-duty Club employee) and Mr Gary Sloane. They were served at the bar by a female bar attendant ("the complainant"), who, it was agreed, had had a "mutually friendly" relationship with the appellant for about seven years.

10 The complainant made three allegations regarding the appellant's behaviour that night (or in the early hours of the following day). The essence of those allegations was that the appellant grabbed the complainant's breasts, exposed his penis (although not deliberately towards her), and forcibly lifted the complainant off the ground and pushed her against the bar.

11 The appellant's behaviour at the Club had two relevant and significant consequences. First, he was charged under the Crimes Act 1900 with aggravated indecent assault, wilful and obscene exposure and assault occasioning actual bodily harm ("the Local Court Charges"). The Local Court Charges were heard by Deputy Chief Magistrate Henson sitting at Bathurst Local Court in May and July 2002. Secondly, the matter was investigated by NSW Police as part of a consideration by the Commissioner of Police ("the Commissioner") of the appellant's suitability to continue as a police officer under s181D of the Police Act on four grounds ("the Police Charge").

12 On 10 December 2002, the appellant was issued with a Notice by the Commissioner pursuant to s181D(3)(a) setting out the four grounds ("the Notice"). The four grounds related to the three Local Court Charges as well as an allegation that the appellant had been untruthful when giving evidence in the Local Court. Attached to the Notice was a written submission which the Commissioner took into account in issuing the Notice ("the Submission").

13 Each of the Local Court Charges was dismissed for reasons which we will canvass in more detail later in our judgment. The Police Charges resulted in an Order being issued by the Commissioner of Police on 24 March 2003 under s181D(1) of the Police Act ("the Order"), which declared that, having considered the appellant's conduct and integrity, he did not have confidence in the appellant's suitability to continue as a police officer, and that the appellant was removed from NSW Police. A Statement of Reasons was attached to the Order, setting out the reasons for the Commissioner's decision.

14 The grounds relied on by the Commissioner in exercising his power to remove the appellant were as follows: (1) On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you assaulted Ms Parkes by taking hold of the front of shirt and pulling her to the bar. You then attempted to indecently assault Ms Parkes by grabbing at her breasts. (2) On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you exposed your penis. Your behaviour was inappropriate and contrary to the Police Code of Conduct. (3) On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you assaulted Ms Parkes by placing both your arms around the vicinity of her waist and buttocks and lifted her bodily off the ground. As a result of your actions Ms Parkes received bruising to the back of her legs and tenderness to her rib area. (4) That you were untruthful in giving evidence at Bathurst Local Court in May 2001 during the hearing of these matters in relation to:

· Your evidence in regards to the charge of exposing your penis;

· Your evidence regarding the assault of Ms Parkes in lifting her bodily off the ground;

· That you gave a false account in regards to the telephone message left by you on Ms Parkes mobile phone on 21 October 2001.

15 The Statement of Reasons annexed to the Order made by the Commission says: I am required to make a determination under s181D (1) of the Police Act 1990 in respect of whether I have confidence in you as a member of the New South Wales Police. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself and a Notice served upon you pursuant to s181D (3)(a) of the Police Act 1990 , together with your written submission provided through your solicitor in response to the grounds set out in my Notice. Those grounds refer to the criteria of your conduct and integrity and relate to your indecorous behaviour towards a female and your untruthfulness while giving evidence under oath in a Local Court. I provide the following as the reasons for my determination. I have carefully read through and given careful consideration to all of the material that has been presented to me in this matter. The material discloses that you on the evening of 20 October 2001 at the Bathurst Golf Club assaulted, then attempted to indecently assault a female employee of the Bathurst Golf Club by grabbing at her breast, you exposed your penis to her. As a result of your actions, the female employee suffered injuries to her person requiring her to seek the services of a medical practitioner.

At the Bathurst Local Court in May and July 2002, charges preferred against you were dismissed. The Chief Local Court Magistrate on a number of occasions in his summation was openly critical of the evidence given by you and formed the opinion that you lied under oath and you are not a truthful person. I note in your response to my Notice as to why I should not lose confidence in you, that you offer a general denial as to your conduct, not only do you show no contrition for your behaviour, you are also critical of comments made by the Deputy Chief Magistrate of the Bathurst Local Court when His Worship addressed your integrity. Your conduct is viewed as most serious and inexcusable, particularly in view of your office and the position of authority you hold as Detective Sergeant at Chifley Local Area Command. I believe that you have betrayed your position of trust both to the New South Wales Police and the wider community.

As I have stated, I have carefully reviewed all of the material associated with this matter, which I stated is very serious. I see no mitigation or reason that would provide me with any basis not to lose my confidence in your suitability to remain a police officer. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police. I therefore remove you from your position as a police officer. K E Moroney Commissioner of Police Date: 24 March 2003

16 The nub of the decision appealed against is the approach adopted by his Honour to the nature of the review as provided in s181E of the Police Act. That approach was expressed by his Honour at [142] of his judgment as follows: 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.

17 In summarising his approach to the application for review before him, his Honour stated that such a 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 1996.

18 On behalf of the appellant, it was submitted, the approach of his Honour was akin to that of a judicial review of an administrative decision whereby his Honour saw his role as being to review the correctness of the Commissioner's decision by reference to the material before the Commissioner. This approach caused Haylen J to reject a major part of the evidentiary case sought to be presented by the appellant. That approach was and is contrary to the provisions of the relevant legislation.

19 The appellant contended that the review before the primary judge was not a hearing de novo as such but a hearing de novo in the sense that there should be an opportunity to review the evidence before the Local Court and the Commissioner. Such an approach was in accord with the relevant legislative provisions and prior decisions of the Commission at first instance and appellate level.

20 Without canvassing, at this point, all of the issues in this matter, there is no doubt that his Honour's decision has brought a perspective and an expressed view as to the nature of a review under s181E of the Police Act such as to warrant leave to appeal.

21 In opposing leave to appeal, the respondent contended that to the extent that his Honour expressed views different from those of other members of the Commission in relation to the statutory provisions relating to the 'review', those views were ultimately not relevant to the disposition of the application before him.

22 That latter point is, as we will later discuss, not correct. What is correct is that his Honour did express a view in relation to the statutory provisions regarding a review that is at odds with the approach adopted in a number of first instance decisions, and generally endorsed on appeal, where a review of the Commissioner's decision to remove a police officer has been undertaken. As well, despite the contention of the respondent that his Honour's approach was 'relevantly consistent' with authority of this Commission, we are of the view that there is now a potential uncertainty as to the proper approach to be taken in such reviews that the issue requires appellate consideration and clarification. That is particularly so given the need to ensure consistency of approach to the hearing of review applications under Division 1A of Part 9 of the Police Act and the clear public interest in ensuring that outcome.

23 The granting of leave to appeal is given added impetus, in our view, by the intervention of the Police Association of New South Wales ("the Association"). The application for intervention was made at a relatively late stage in the history of the appeal in this matter. The reasons justifying the intervention can be shortly stated. That is, that his Honour's decision has led to uncertainty in considering the merits of other s181D cases and, therefore, it was in the interests of the Association and its members to have this uncertainty resolved favourably.

24 The appellant did not oppose the Association's intervention, counsel for the Commissioner ultimately noting that the respondent was aware from the nature of the proceedings that his Honour had embarked on an analysis of the issues relevant to s181 reviews. That acknowledgment alone, in our view, flags the real public interest test underlying our decision to grant leave to appeal. That is, in undertaking the analysis that he does, his Honour has created a degree of uncertainty (even if otherwise relatively settled by Full Bench and first instance decisions) which should be removed from this area of the Commission's jurisprudence.

25 As well, the respondent did not oppose intervention on the basis that intervention was strictly limited to assisting the Commission in relation to matters of law and interpretation of the statutory processes and did not make active submissions to the Commission in relation to the merits of the case. It was on that limited basis that intervention was granted.

26 The appellant contended that the judgment of Haylen J demonstrated two fundamental and related errors which caused the hearing of the merits of the matter to miscarry. First, the trial judge erroneously treated the proceedings as being akin to judicial review of an administrative decision whereby his role was only to review the correctness of the Commissioner's decision by reference, primarily, to the materials before the Commissioner. Secondly, as a result of this incorrect approach, the trial judge rejected a major part of the evidentiary case sought to be adduced by the appellant, contrary to the provisions of the relevant legislation.

27 The appellant contended that Haylen J incorrectly approached the matter as a judicial review, describing the process also as a "true review" (at [9]), and a review "in the nature of a judicial review of administrative action" (at [11]). The correct approach to a review under s181E of an order made by the Commissioner to remove a police officer, according to the appellant, was a hearing de novo.

28 The appellant referred to the discussion of the meaning of the term "hearing de novo" in Gibson v Bomac (1995) 130 ALR 245, where Wilcox CJ held (at 247-8):

The term "hearing de novo " is perhaps ambiguous. It may be understood to mean a hearing conducted as if there never had been a hearing before the judicial registrar, everything concerning the hearing being completely ignored. Alternatively, it may be understood to mean no more than a hearing at which the parties are not bound by the course they took before the judicial registrar, where they have the right to adduce such further evidence as they wish, perhaps to adopt positions and put contentions different from those adopted before, and put to, the judicial registrar; and of course where the judge is not bound by the judicial registrar's finding of fact. Like Moore J, [in APESMA v Deniliquin Council (1995) 129 ALR 418], I think a review hearing is a "hearing de novo " in the latter sense.

29 The review of an order to remove a police officer should be conducted in a similar manner to hearings with respect to an application for relief from unfair dismissal under Part 6 of Chapter 2 of the Industrial Relations Act 1996, that is, a hearing de novo. Section 181G(1) provides that the provisions of the Industrial Relations Act 1996 apply to an application for review under s181E of the Police Act in the same way that they apply to an unfair dismissal application under Part 6 of Chapter 2 of the Industrial Relations Act, subject to certain modifications. Such an approach has been approved by the Commission: see Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [212]; Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [65].

30 In that regard, the appellant contended that Haylen J made two erroneous distinctions. First, Haylen J sought to distinguish the review of an Order under s181D from unfair dismissal proceedings by relying on 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 any person whose evidence is to be considered by the Commissioner. However, this is not dissimilar to an "ordinary" dismissal, where an employer is similarly not required to conduct a hearing or cross-examine witnesses prior to dismissing an employee. Secondly, Haylen J sought to distinguish the two statutory regimes by reference to the "much broader field of consideration" involved in the removal of a police officer, that is, it operates on the "loss of the Commissioner's confidence" and does not require "misconduct as understood in unfair dismissal cases brought under Part 6, Division 2 of the Industrial Relations Act". The appellant contended that such a view ignores the fact that unfair dismissal proceedings are not restricted to misconduct and frequently involve the issue of loss of confidence; and further that the removal of a police officer is often for acts of misconduct.

31 The appellant submitted that the requirement for a hearing de novo is demonstrated by the fact that the issue being determined by the Commission under s181E(1) (that is, whether the removal was "harsh, unjust or unreasonable") is different to that which was determined by the Commissioner under s181D(1) (that is, whether the Commission "does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct"). Accordingly, the test to be applied by the Commission in review proceedings may raise entirely different evidentiary considerations to those relevant to the Commissioner's determination under s181D(1). The appellant referred to the decision of the Full Bench in Little (No 2) (at [71]): The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate 'justification' in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act .

32 Further, the structure and history of the legislative regime suggests that the review proceedings contemplated by s181D(1) are more than a judicial review: See Newton v Commissioner of Police (No 1) (1998) 85 IR 119 at 127-133.

33 It was the appellant's submission that the trial judge incorrectly emphasised the use of the word "review" in Part 9 Division 1C of the Police Act, and that the use of the word "review" is not determinative of a proposition that the review under the legislation has the characteristics of judicial review rather than an appeal on the merits: see, for instance, Box Valley Pty Ltd v Price (2000) 97 IR 484.

34 The appellant referred to the following passages in Van Huisstede (No 1) where the issue of what constitutes a "review" in the context of the statutory scheme was discussed by Walton J, Vice-President: [192] The current form of the provisions undoubtedly raises some difficulties in interpretation. Jurisdiction is conferred on the Commission to conduct a "review" of an order made by the Commissioner on the ground that the removal was "harsh, unreasonable or unjust". In conducting that "review" the Commission is required to proceed according to the sequence set out in s181F(1). The instruction that a dismissal not be harsh, unreasonable or unjust has, of course, been applied for many years in the Commission's unfair dismissal jurisdiction. The Commission is required to determine whether, in all the circumstances of the case, the dismissal of the employee was harsh, unreasonable or unjust. The Commission would not ordinarily be thought of as conducting a review of the employer's decision, for example, in the nature of a judicial review.

[193] In my view, the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) ... ...

[195] As was said by the Full Bench in Bigg (No. 2) , the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision. ...

[206] This view of the scope of the review to be undertaken by the Commission pursuant to s181F is supported by the Second Reading Speech of the Minister for Police in relation to the 1997 amendments to the Act ( Hansard , Legislative Assembly, 18 June 1997, 10563), where the Minister said: The bill provides police officers with the right to go to the Industrial Relations Commission to seek review of a dismissal decision. Again, whilst similar to the protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act, it is not identical as there are some important differences which I will discuss shortly. The key aspect [of the] review to be conducted by the Industrial Relations Commission will be a review of the merits of the decision of the commissioner. It will allow both the fairness of the process by which the decision was arrived at, the facts on which the decision was based, and whether the dismissal was harsh, unjust or unreasonable. ...

[214] In my view, the provisions facilitating the removal of a Departmental Secretary considered by the Full Federal Court in Barratt may be distinguished from the statutory scheme presently under examination. Notably, the basis for removal of a police officer under s181D is not unrestrained in the same way as the termination of appointment of a Departmental Secretary under s37 of the Public Service Act 1922 (Cth). The Commissioner may conclude that he does not have confidence in a police officer only on the basis of the officer's competence, integrity, performance or conduct. The Commissioner's decision must have some foundation in one or more of these attributes. Furthermore, the function of the Commission, when reviewing the removal of a police officer, is very different from the function of a court conducting judicial review. The Commission is required to determine whether the order to remove the officer was harsh, unreasonable or unjust, not merely whether the decision was made lawfully. As I have said, this task requires the Commission, at least to some extent, to examine the substance of the Commissioner's decision. Furthermore, the Act requires the Commission, as discussed in Newton (No. 2) , to review the matter in accordance with the procedures specified in s181F(1). The Commission is thereby required to consider the reasons for the Commissioner's decision and the respective cases brought by the parties as to whether the removal from office was harsh, unreasonable and unjust. ...

[220] In my view, and having regard to the foregoing discussion of the legislative scheme and relevant principles, it is clear that the legislative scheme involves a review of the decision and orders of the Commissioner as a merit review, although in a situation where appropriate caution must be exercised in the light of the important public interest considerations involved and the process which preceded the Commission's review proceedings (that is, the process giving rise to and the fact of the decision made by the Commissioner).

35 The appellant contended that, contrary to Starr v Commissioner of Police [2001] NSWIRComm 226 at [144]-[184], Haylen J's approach to the nature of the review process also led him to the erroneous view that the fact that s181F(2) imposes on the police officer the burden of establishing that his or her removal was harsh, unreasonable or unjust, means that not even the notion of a shifting evidentiary burden would apply. In that respect, the appellant further submitted that Haylen J failed to taken into account the decision of the Full Bench in Little (No 2) and the decision of Hungerford J in Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83-84.

36 At first instance, the appellant had sought to introduce the following new evidence in the hearing before Haylen J: (1) affidavits by persons who had given evidence about the relevant matters in the Local Court, deposing to the truth of that evidence; (2) cross examination of the complainant and perhaps one other person; (3) additional character evidence; and (4) evidence as to what the applicant had done since termination.

37 The appellant submitted that Haylen J incorrectly held that s181G(1)(f) does not confer a right to adduce new evidence, but rather establishes a "statutory limitation", and further that s181F(1)(f)(i) is inoperative as no relevant regulation exists to fix the parameters of its operation. The appellant's submissions were as follows: (1) Haylen J's view was contrary to the principle discussed by Walton J in Van Huisstede (No 1) (at [148]-[155]) and approved by Full Benches in WorkCover Authority of NSW (Inspector Keenan) v Lucon Australia Pty Limited [2002] NSWIRComm 68 (at [67]-[72]) and Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation [2004] NSWIRComm 11 (at [57]-[61]). (2) The appellant submitted that "the calling of new evidence is in itself a statutory right. Just because there are limits on the statutory right to call new evidence does not turn it into a statutory limitation. All statutory rights set out the circumstances in which they be exercised. Nor does a statutory right become a statutory limitation because it is expressed in a legislative provision that incorporates a statutory provision from other legislation (in this case s163 of the Industrial Relations Act ) by providing that the incorporated provision is to be read in a certain manner". (3) The trial judge's view with respect to the absence of regulations under s181G(1)(f)(i) is contrary to the intention of the legislature as evidenced by the second reading speech which stated:

The bill also requires that if either party wishes to introduce new evidence to support its case, notice must be given. That means notice not only of intention must be given, but also notice of the substance of the evidence that is sought to be adduced. This will ensure that the issues are clearly defined and allow both parties to better prepare their case. If notice is not given, leave of the IRC can be sought. This provision of the bill is not intended in any way to reduce the discretion of the IRC to grant leave upon any basis it considers appropriate. (4) The right to call new evidence is still subject to the general control of the Court. See, for instance, APESMA v Deniliquin Council (1995) 129 ALR 418, where Moore J held, at 426:

However, efficient case management by the court, and the factors I earlier identified as suggesting parliament may not have intended that a review be conducted as if the hearing before the judicial registrar had never occurred, justify the exercise to their fullest extent the powers the court has to ensure, while affording procedural fairness, that evidence given before the judicial registrar is wherever possible, used when undertaking a review, at least in cases concerning unlawful termination.

It is not yet apparent to me that there was a conflict in the evidence before the judicial registrar that renders it necessary for me to observe the demeanour of the witnesses giving the relevant evidence. if there is, then the council's case for calling the relevant witnesses again will be a compelling one.

38 As to the admission of evidence by way of notice pursuant to s181G(1)(f)(i), Haylen J held (at [45]) that "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". The appellant submitted that this statement was misleading for the following reasons: (1) the appellant clearly gave prior notice of its intention to call new evidence. There is no requirement that notice be given in any particular form, and any such requirement would be "a triumph of form over substance"; and (2) the appellant did not agree that its application for the introduction of new evidence was withdrawn or satisfied by the tendering of the Local Court transcript.

39 In the event, Haylen J limited the material on review to the following (at [12]):

... 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.

40 The appellant submitted that "given the views that the trial judge expressed about notice of new evidence, this evidence appeared to be admitted by leave although this is not expressly referred to by the trial judge in the transcript or judgment".

41 The appellant contended that the evidence of witnesses, including the complainant, was relevant because Deputy Chief Magistrate Henson had formed certain views about relevant matters which could only be tested by hearing at least some of their evidence in the review hearing. The appellant further contended that the case for giving leave to call new evidence from witnesses with conflicting versions of events was "overwhelming". In that regard, the appellant referred to the discussion by Moore J in APESMA v Deniliquin Council (at 426):

There will be situations where it will be necessary for some or all of the oral evidence given before the Judicial Registrar, both in chief and cross examination, to be given again. As Spender J said in Aldridge v Booth (1988) 80 ALR 1 at 7, which is a passage referred to by Mason CJ and Brennan and Toohey JJ in Brandy , supra: How matters of fact are established to the satisfaction of the court will depend upon the nature of the case but where, as here, the dispute requires an assessment of the credibility of the parties and their witnesses, it seems to me impossible to avoid the conclusion that those issues must be determined on the basis of oral evidence.

In the present case, the Council has indicated that it wishes to call witnesses that gave oral evidence before the Judicial Registrar to give their evidence orally in the review. It is said that this is necessary because the Registrar had observed that the applicant impressed him as a witness and that the evidence of several Council members was "unsatisfactory". However the Judicial Registrar's views are, in a sense, immaterial. What is pertinent is whether there was any conflict in material evidence that would need to be resolved in deciding the application in the review where the demeanour of the witnesses might be relevant to its resolution. Also material is whether there is any real issue of fact between the parties concerning any matter about which there was a conflict in the evidence. While often there would be, it should not be assumed there is.

42 The appellant submitted that: In this case there was clearly a conflict in material evidence that would need to be resolved in deciding the application in the review where the demeanour of the witnesses might be relevant to its resolution. There were also real issues of fact between the parties concerning a number of matters about which there was a conflict in the evidence.

43 Further, as to character evidence, the appellant contended that, whilst the trial judge did not consider that the good character of the appellant was in issue, he did not have regard to that good character. In addition, "his Honour also went on to find that the appellant had lied on his oath before the Local Court. Clearly the character, in the sense of the integrity, of the appellant was in issue, and the trial judge, having prevented the appellant from calling evidence on this issue, then went on to find against him". The decision of Haylen J to exclude character evidence was contrary to the decision in Van Huisstede (No 1) (at [137]).

Further the trial judge draws a spurious distinction between, on the one hand, "new evidence" and on the other hand, "expanded affidavits or witness statements" and cross examination in saying that evidence already before the Commissioner is not new evidence. The view of the trial judge appears to be if there was evidence from a witness, in whatever form, before the Commissioner any further evidence in chief about the same subject matter or any further cross examination of that witness about that subject matter cannot meet the description "new evidence", and thus is not admissible in any circumstances, even by leave. This is an absurd proposition and one that places a restriction on the ability of a party to call evidence which is entirely absent from the legislation.

45 The effect of Haylen J's approach to the review hearing, and his refusal to admit new evidence, resulted in the following: (1) Haylen J found that the appellant attempted to grab the complainant's breasts and lied under oath, without the benefit of evidence from witnesses contradicting the version of events accepted by Haylen J or character evidence which would have supported the appellant's veracity. (2) Haylen J found that the Commissioner was entitled to have formed the view that the appellant had exposed himself, and that he had lied about this on his oath in the Local Court. This conclusion was reached notwithstanding the fact that Haylen J was not able to form that view on the evidence before him. (3) Haylen J found that the appellant lied about the telephone message he left for the complainant, without the benefit of hearing the complainant cross-examined or of evidence from other witness, including character evidence.

46 The appellant further submitted that "findings of the most serious kind were also made against the appellant, leading to the failure of his application, on material which could not possibly meet the standard of proof required under the principles established in Briginshaw v Briginshaw (1938) 60 CLR 336. These consideration compel the conclusion that the decision of the trial judge ought to be quashed".

47 The appellant contended that "it emerges clearly from the trial judge's judgment that his decision under section 181G(f)(ii) of the Police Act not to give leave with respect to most of the new evidence which the appellant desired to adduce was founded upon his interpretation of the term "review" in Part 9 Division 1C of that Act". Haylen J's conclusions as to the introduction of new evidence are evident in the following passages from his judgment (at [36]-[37]):

... 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 .

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)...

48 The appellant submitted that the trial judge was incorrect in making the assertion that "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". It was the appellant's submission that the "point", presumably the issue regarding the introduction of new evidence, has been the subject of consideration, see for instance Van Huisstede (No 1) at [135]. The appellant submitted that:

It is specious reasoning by the trial judge to attempt to distinguish the prior cases as only considering the operation of the review provisions in the Act and not the issue of the admission of new evidence, when the rationale behind the trial judge's decision on the "point" is his different view of the review provisions of the Act.

49 Contrary to the decision in Van Huisstede (No 1), Haylen J relied on the following cases in support of his interpretation of the statutory scheme: Newton v The Commissioner of Police (No 1); Newton v The Commissioner of Police (No 2) (1999) 87 IR 66; and Commissioner of Police v Donlan and Hanson (Court of Appeal, unreported, 20 June 1995). The appellant contended that that reliance was misplaced.

50 The decisions in Newton do not support the proposition that the review to be undertaken was confined to a consideration of the correctness of the Commissioner's decision principally by reference to the material before him. Peterson J, at first instance, held (at 127): I have come to the conclusion that the meaning and effect of the provisions in Division 1C of the 1990 Act as amended, relating to a review of a dismissal by the Commissioner, is to require this Commission to examine the dismissal with a view to determining whether or not it was harsh, unreasonable or unjust. That examination is to be undertaken with the applicant bearing the onus. The matter is 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. I now develop my reasons for that conclusion.

51 Further, that the Full Bench on appeal in Newton held (at 80): It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply.

52 As to the judgment of Powell JA in Commissioner of Police v Donnelan and Hanson, the appellant contended that: (1) Powell JA incorrectly relied on what was said by McHugh JA (as he then was) in Strange-Muir v Corrective Services Commission (1986) 5 NSWLR 234 about promotional appeals not being a hearing de novo to justify his decision that a review under the Police Act is similar to a GREAT appeal, and consequently it is also not a hearing de novo .

(2) In relying on the decision of McHugh JA in this way, Powell JA failed to consider the effect of s48(2) of the Government and Related Employees Appeal Tribunal Act 1980 which applied by virtue of s183(1) of the then Police Service Act 1990 to disciplinary appeals (but which did not apply to promotional appeals such as that considered by McHugh JA in Strange-Muir ). That provision was to the effect that the tribunal in relation to an appeal "may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit". Contrary to the decision of Powell JA, the High Court in Calman v Commissioner of Police held that the effect of s48(2) Government and Related Employees Appeal Tribunal Act 1980 in relation to disciplinary appeals was to make a proceeding in GREAT an administrative hearing de novo;

(3) His Honour's findings must be considered obiter because: (a) his findings that GREAT had erred in that it had "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" was an issue not considered by the majority;

(b) he relied on the judgment of McHugh JA in Strange-Muir , in circumstances where Priestly JA did not adopt the wider conclusion of McHugh JA, and there are doubts as to whether McHugh JA's judgment, and indeed the actual outcome in Strange-Muir , can be regarded as authoritative in light of the judgment of Kirby J in Coal and Allied Operations v Australian Industrial Relations Commission (2000) 203 CLR 194 at [75] and Calman v Commissioner of Police .

53 The appellant contended that, if the Full Bench were to allow the appeal, the proceedings could either be remitted to a single member of the Commission for rehearing, or alternatively, it is "open to the Full Bench itself to grant the appellant the relief which he sought at first instance, on the basis of the evidence admitted by Haylen J and without the need to admit further evidence".

54 The Association was granted leave to intervene in the proceedings, on the basis that such intervention was limited to assisting the Full Bench in relation to matters of law and interpretation of the statutory processes, and not in relation to the merits of the matter. The Association was represented by Mr B Docking of counsel.

55 The Association made extensive submissions relating to seven principal issues. Given the limited basis of the Association's intervention, the Association's submissions were approached on the basis that where contentions were made in which the facts and circumstances of the matter were referred to they should be treated as illustrative of a legal proposition, but not related to the merits of the matter.

56 First, the Association submitted that the Haylen J reached erroneous conclusions of law and general principle in relation to his conduct of the review under s181E of the Police Act. In support of its contention as to the proper approach, the Association submitted that: (1) parliament's intention, evidenced by the history of the legislative scheme and extrinsic material, demonstrates that a police officer in a s181E review is entitled to present his or her case in a similar way to an employee applicant in an unfair dismissal application; (2) dictionary definitions of the word "review" do not throw much light or guidance on what the Commission should actually do in the conduct of a s181E review; (3) the scheme of the Police Act , which incorporates the Industrial Relations Act (with some amendments) suggests that the protection provided to a police office is not identical but is similar to the protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act ; (4) Haylen J's approach to the nature of the review hearing is inconsistent with Court decisions in other cases where statutes have provided for a "review" (see Watson v Hanimex Colour Services Pty Limited (1991) 8 NSWCCR 190; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580; SRA of NSW v Davies (BC9504695, 10 May 1995); Cockatoo Dockyard Pty Limited v Atamian (11 May 1995); South Sydney City Council v Horiatopoulos (1992) 47 IR 93; Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37; Rohatgi v Medical Tribunal of New South Wales and Anor (BC9402485, 20 April 1994)). (5) The process of reviewing a Commissioner's decision pursuant to s181E is now reasonably well settled (see Little v Commissioner of Police (No 1) [2001] NSWIRComm 9; Giardini v Commissioner of Police [2001] NSWIRComm 333; Little (No 2) ; Miller v Commissioner of Police [2002] NSWIRComm 296; Cassel v Commissioner of Police [2003] NSWIRComm 73; Dangerfield v Commissioner of Police [2003] NSWIRComm 96. That process has included cross-examination of the applicant police officer where factual disputes exist, and, without requiring notice under s181G(1)(f)(i), cross-examination of various statement makers, including complainants. The Commission's procedure is evident in many in transcript rulings in s181E reviews.

57 Secondly, well-established principles exist in relation to legal onus and evidentiary burden. In terms of legal onus, parliament intended that a police officer seeking a review under s181E of the Police Act be placed in the same position as an employee in an unfair dismissal application under Part 6 Chapter 2 of the Industrial Relations Act. Haylen J departed from those settled principles by holding that "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".

58 Thirdly, the proper construction and application of s181G(1)(f) and s181G(2) required "new evidence" to be adduced, including, for instance, the cross-examination of the appellant and the complainant in the present case. "New evidence" may be entirely fresh evidence which was not received by or offered to the Commissioner, or it may be evidence in addition to or in substitution of the evidence provided to the Commissioner. Section 181G of the Police Act provides that new evidence may be adduced as follows: (1) pursuant to s181G(1)(f)(i) by the giving of notice of intention to do so. The court in Van Huisstede v Commissioner of Police (No 2) (2001) 106 IR 56 considered the meaning of that sub-section and concluded that the meaning of the provision is clear on its face. The Association contended that that approach adopted by Haylen J was affected by error of principle and law for the following reasons: (a) Haylen J, contrary to the decision in Van Huisstede (No 2) , held that s181G(1)(f) does not confer a right to adduce new evidence, but rather establishes a statutory limitation; (b) Haylen J's concern that "the review would thereby be extended by many days and the benefit of a speedy hearing lost" misconstrues the justice balance and natural justice rights parliament intended to afford to police officers; (c) in the present case, the appellant gave notice both of its intention to adduce new evidence and the substance of the evidence. Thus the issues were clearly defined and allowed both parties to better prepare their respective cases; (d) notice was given, either expressly or by implication, that the appellant sought to adduce evidence about a matter which was central to the task of judicial fact finding, namely the assessment of a witness's credit by Haylen J having the advantage of hearing and observing a witness; (e) the decisions in Van Huisstede (No 1) and Van Huisstede (No 2) were correct. (2) by obtaining the leave of the Commission under s181G(1)(f)(ii) or s181G(2). The Association submitted that Haylen J should have granted leave to tender the whole transcript of the Local Court proceedings as new evidence, and that such leave should have been "conditioned on at least the complainant and some of the other people being required to be made available for cross-examination before the Commission". Further, Haylen J has effectively "applied a wrong and more stringent test equivalent to the test of "special circumstances" found in other statutes, but not in s181G(1)(f)".

59 Fourthly, the Association submitted that an applicant in a s181E review has the right to give viva voce evidence before the Commission Principles of natural justice (or procedural fairness) required the Commissioner to cross-examine the appellant before the Commission on the merits. Further, the practical rule of fairness requires the respondent to test the appellant by cross-examination before the Commission: Browne v Dunn (1893) 6 R 67. Mr Docking relied on the decision in Van Huisstede (No 1) in that regard, submitting that "the Commissioner [in Van Huisstede (No 1)] made an application to recall Mr Van Huisstede. Why? Because the Commissioner, in my submission, recognised that the fundamental rule of practical fairness or procedural fairness enshrined in Browne v Dunn had to be met. The officer had to be cross-examined before a judicial member of this Commission in a s181E review. It has now been established it just did not happen in the matter under appeal". It was Mr Docking's submission that, since the decision in Van Huisstede (No 1), the procedure has been that a police officer who has adopted his written response made pursuant to s181D(3) has done so by affirmed or sworn evidence, and has been cross-examined.

60 Mr Docking referred to the practice and procedure followed in Wells v Commissioner of Police (2000) 100 IR 106 and Little (No 2) in his submission that "I confidently submit that from 19 June 2000, [in] any s191E reviews, that is the practice and procedure adopted by the Commissioner of Police in presenting his case to this Commission. It was accepted in particular following the ruling that if there were statement makers or interviewed people, people who provided records of interview in the Commissioner's confidence material, it grounded the notice under s181D - the applicant police officer had that right of cross-examination". Mr Docking further submitted that the same proposition applied in reverse, that is, if the Commissioner wished to test evidence by cross-examination, this was the procedure.

61 Fifthly, it was the Association's submission that an applicant in a s181E review has the right to elect to cross-examine before the Commission a statement maker or complainant relied upon by the respondent. See Van Huisstede (No 1) at [139]-[163]. In that regard the Association further submitted that: (1) Under s163(1)(c) of the Industrial Relations Act , the Commission is still bound to act according to equity and good conscience, and that in the present matter, Haylen J erred because rights under natural justice were not applied to the appellant (see also Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 30-31). (2) The allowing of evidence contrary to the rules of evidence should be used sparingly where the person making the statements will not be called. (3) The entitlement of the Commission to admit hearsay evidence was subject to the overriding obligation to provide the appellant with a fair hearing. Depriving him of an opportunity of cross-examination was tantamount to depriving him of a fair hearing. The testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material. The inability to do so means that procedural fairness has been denied (see Australian Postal Commission v Hayes (1989) 23 FCR 320 at 326-327 per Wilcox J).

62 Sixthly, the Association contended that an applicant in a s181E review has the right to adduce character and professional support evidence. Such evidence will constitute "new evidence" under s181G(1)(f) because the witness proffers an opinion and facts about the appellant, after the issuing by the Commissioner of the Order and Statement of Reasons. (see Burrows (at [135]-[136]); Giardini (at [161]-[162] and [218]); Miller (at [96]-[97]); Cassel (at [60])).

63 Finally, the Association submitted that Haylen J incorrectly held that "in a sense, this flaw in the process adopted by the Commissioner, has been addressed and rectified on review". The s181E review is unable to rectify procedural unfairness in the Commissioner's removal process: Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32; Van Huisstede (No 1); Starr; and Little (No 2).

64 Mr R Kenzie QC, with whom Mr R Reitano of counsel appeared, contended for the respondent that the appeal should not be permitted because the appellant's case on appeal, by virtue of the Association's involvement, is materially different to that which was run and determined at first instance, and that important aspects of what is now put by the appellant (and by the Association) formed no part of the case before Haylen J.

65 Further, the respondent contended that the judgment of Haylen J must be understood in the context of the case that was presented by the appellant. Such an approach gives a "fair and objective" reading of his Honour's reasons. In that regard, the respondent submitted that the approach taken by Haylen J at first instance was attributable to the way that the appellant was pressing its case. That is, the procedure adopted by Haylen J resembled "in one way or another something of an approach based on judicial review principles" because the appellant's application was essentially one in the nature of judicial review. Further, whereas the Association contended that a review hearing will be conducted either on disputed factual issues or, where the facts are agreed, on the decision to dismiss, the respondent submitted that Haylen J was "entitled to regulate the proceedings having regard to all of the circumstances and what he was told by those appearing before him about the case and the issues that needed to be determined".

66 As to the case that the appellant pressed at first instance, the respondent submitted that it was a "limited case" and one which could not be characterised as a "broad, general and untrammelled allegation that the appellant's removal was harsh, unreasonable and unjust (procedurally and substantively) or based on the notion that there would be complete rehearing of the matters considered and determined by the Magistrate". The respondent contended that the appellant's submissions before Haylen J were consistent with the case that was being pressed. That is, it was "not an attempt to run a re-hearing on the basis that the persons involved in the proceedings before the Magistrate would come along and give fresh evidence and a fresh account of what had happened at all. Rather, all that was being placed before Haylen J was all of the evidence that had been led before the Local Court".

67 The respondent contended that both the appellant and the Association failed to identify in their submissions what, in fact, the nature of the review is or the role of the Commissioner's decision in that review, suggesting only that there is "always an absolute entitlement to complete and fulsome review and re-run of all issues on whatever evidence the applicant chooses to advance irrespective and totally regardless of what happened before". It was the respondent's contention that: The alternative approach is of course to ask whether the legislature's choice of the word "review" as well as the process that is identified in the relevant provisions of the Police Act compel an analysis of what occurred before the Commissioner and compel according some weight of more than passing significance in that process and the process before the Commissioner to the words "loss of confidence".

68 The respondent submitted that whilst the decision of the Full Bench in Little (No 2) clearly stated that the Commission was not confined to determining whether the Commissioner was justified in concluding that he had lost confidence, the Full Bench left open the question of "whether the nature of the proceedings being a review of a decision as to a 'loss of confidence', may in some way affect the nature of any such merit review". It was the respondent's submission that this is the question that was addressed by Haylen J in the present matter, that is, his determination of whether the Commissioner's decision was "harsh, unjust or unreasonable" involved a consideration of the nature of the review and the process he was to undertake.

69 The respondent further submitted that the approach adopted by Haylen J was consistent with rules of natural justice and procedural fairness, and that the appellant "was heard and was heard fully in relation to all of the issues that he sought to ventilate".

70 The statutory scheme "strongly suggests" that the review is not simply an unfair dismissal case. The obligations in s181D ensure that the relevant police officer has an opportunity to be heard, that the Commissioner provide reasons for his or her decision, and that the Commissioner make available to the police officer all of the documents and other material relied upon in deciding to remove the police officer. The respondent submitted that: (1) the extrinsic material, and in particular the second reading speech, do not assist the Association's position. The second reading speech does not identify the process relevant to a review of a decision to remove a police officer. Further, the second reading speech refers to important differences between that process and the unfair dismissal process in the Industrial Relations Act . (2) the "beneficial" nature of the legislation must be carefully balanced against the broad background of the legislative history that gave rise to the provisions now under consideration. Firstly, the statutory scheme requires the Commission to have regard to the public interest, including the interest of maintaining the integrity of the police service. Secondly, given that the phrase "loss of confidence" is wider than the term "misconduct", the basis on which a police officer may be removed is similarly wider. (3) it is useful to adopt a purposive approach to the interpretation of the word "review". In that regard the respondent submitted that:

The evident purpose of section 181E seems to have its genesis in the post Police Royal Commission desire to balance the public interest of having a police force in whom both the Commissioner and the public can repose confidence on the one hand and the need to give appropriate weight to a procedure that might guard against relevantly unfair action resulting in the removal of a police officer on the other hand. Both of these purposes really cast little light on the proper construction to give to the word "review" (because both the Association's and the Commissioner's constructions carry out that purpose) although it does greatly detract from the Association's contention that the word is to be construed as broadly as is conceivably possible. A balancing of both legislative objectives would hardly support that approach.

71 As to the meaning of the word "review", the respondent submitted that many authorities confirm the view that the meaning of the word "review" is not fixed and is to take its meaning from the statutory context: see Boston Clothing Co v Margaronis at 587 and Rohatgi v Medical Tribunal of NSW BC 9402485 - (Court of Appeal) 20 April 1994. The respondent pointed to the following "clues" as to the meaning of the word "review" in s181E: (1) s181F refers expressly to the way in which the Commission in a review must proceed, that is, to firstly consider the Commissioner's reasons for the removal, secondly to consider the case presented by the police officer, and thirdly to consider the case presented in reply to the officer's case. The requirements in that section are "totally destructive of any suggestion that what is envisaged is a completely do novo proceeding". (2) The fact that provisions of the Industrial Relations Act apply to an application for review in the same way as they would to an unfair dismissal case does not make the review process an unfair dismissal case. The focus of s181E is "remarkably different" from an unfair dismissal application. The fact that the procedure commences with a consideration of the Commissioner's reasons suggests the approach is narrower than in an unfair dismissal case. (3) the nature of the review is to be understood by reference to the provisions relating to the Commissioner's order for removal, in which case the specific requirements of s181D are relevant.

72 The respondent contended that: what the Association's submissions seek to do is to treat the review as a totally different and separate process to that specifically contemplated as having taken place and a potentially completely different case to that made before the Commissioner. This approach is one that goes well beyond a process that contemplates a "de novo" consideration of the matter by the Commission on review. The Commissioner's assessment is made based upon the statutory criteria of a "loss of confidence" (a notion in itself foreign to unfair dismissal cases) and without the facility of any oral hearing or the right to cross-examine or the right to representation. The Commission (on the other hand) is expressly and statutorily directed by the statute back to the Commissioner's reasons. It is also clearly relevant to consider the speed with which both the Commissioner and the Commission is expected to act. The Association's submissions conveniently fail to recognise the real differences in the process leading to the making of an order for removal and those leading to a dismissal in its search for "clues" as to the true nature of the review before the Commission.

73 The respondent submitted that the Commissioner is able to apply "the rules of reason and logic and independently assess the material upon which he bases any decision", that the legislature presumes that the Commissioner will act upon his own assessment of the evidence, and that the legislature has presumed that the Commissioner is capable of making an assessment of his confidence in a police officer in that way. In those circumstances, there is little merit, according to the respondent, in the Association's submission that the review process requires the hearing of oral evidence, as doing so suggests that the legislature also contemplated a process which "sets entirely at nought" the process undertaken by the Commissioner.

74 In relation to the introduction of new evidence, the respondent submitted:

Regardless of what his Honour subsequently said in his judgment as to the nature of the review he was clearly entitled to approach the admission of evidence on the basis that he did. Even if the Police Act properly construed is broad enough to embrace a de novo hearing or reconsideration "on a proper case" it was not an error for Haylen J to approach the question of the reception of evidence in the appellant's case as formulated by him in the manner that he did. See Watson v Hanimex Colour Services Pty Limited (1991) 8 NSWCCR 190, 210-211; Rohatgi v Medical Tribunal of NSW BC 9402485 - (Court of Appeal) 20 April 1994.

75 In that regard, the respondent referred to the decision of Mahony AP in Rohatgi with whom Meagher and Powell JJA agreed:

In my opinion, the meaning of 'review' lies between the two extremes to which I have earlier referred. It is for the Tribunal to determine what the material placed before it warrants to be done, ie, what course of action should be followed. Thus, a mere claim for reconsideration of otherwise apparently reasonable findings and orders could be held by the Tribunal to involve no more than a consideration of the terms of the findings and orders on their face. A claim for reconsideration supported by a creditable retraction by a crucial witness in the original proceeding might well require or warrant that the Tribunal do more. There is, no doubt, a minimum below which it may not descend: the nature of a "review" may require at least a consideration of the position in the manner to which I have referred. But beyond this it is, I think a matter for the Tribunal to determine, acting within proper limits, what is required in order to discharge its obligation to review. In one case it may feel it appropriate to consider the findings of fact de novo; in another case it may not. No error of law would be involved merely by deciding the matter one way or the other.

76 The respondent submitted that the authorities cited by the Association do not support the construction of s181G(1)(f) suggested by the Association, that is, that evidence already before the Commission can somehow be characterised as "new evidence". Rather, those authorities "simply refer to the facility of calling evidence on review and are not concerned with the identification of "new evidence" in any Act, far less the Police Act".

77 The respondent submitted that the Association has not indicated what is meant by "new evidence" in s181G(1)(f) of the Police Act, and that it is "fanciful" to suggest that a restatement of evidence before the Commissioner could be considered "new evidence". The respondent contended that the issue does not arise in the present proceedings, because the evidence "was either ultimately not pressed or was let in". In that regard, the respondent referred to the discussion between counsel for the appellant and Haylen J, which demonstrated that the transcript of evidence before the Local Court would be admitted into evidence, and that "his Honour quite understandably regarded this as a complete answer to what the [appellant] sought from the "new evidence" showing what happened before the Magistrate". Further, the respondent submitted that "it is important to understand in the context of his Honour's ruling concerning 'new evidence' that it was not being put by counsel for the appellant that there was some other dimension to the affidavit material that would constitute 'new evidence' such as to alter or change the findings of the Magistrate because something 'new' was disclosed by that evidence that was neither before the Magistrate or the Commissioner".

78 As to the Association's submissions regarding the approach adopted by Haylen J to the admission of evidence pursuant to s181G(1)(f), the respondent submitted that: (1) the Association's attack on Haylen J's description of the sub-section as a statutory limitation "simply flies in the face of the language of the provision"; (2) by referring to the potential loss of benefit associated with a speedy trial, Haylen J was doing no more than identifying the relevance of the legislative provisions which were clearly designed to expedite the review process, as well as the overall history of the legislation; (3) the Association's submission that notice was given of its intention to adduce new evidence and the substance of that evidence ignores the course of the proceedings before Haylen J. His Honour was never asked to proceed on the basis that s181G (1)(f) had been complied with; (4) the Association's submissions regarding the importance of assessing a witness's credit by hearing and observing the witness "take the matter no further"; and (5) the fact that Haylen J held a different view to that taken in Van Huisstede (No 2) in relation to the non-promulgation of regulations was irrelevant having regard to the way in which the matter proceeded.

79 As to the Association's submission regarding the admission of the transcript of the Local Court proceedings being conditioned on the cross-examination of certain witnesses, the respondent submitted that no such application was, in fact, made before Haylen J.

80 As to the Association's submission regarding the right to give viva voce evidence, the respondent submitted that "what is required by the 'review' would, at best for the appellant in this case, be found to be dependent on the circumstances of the case and the nature of the matters that the Commission is being asked to consider. The judgments of the Court of Appeal in Rohatgi and Watson are again relevant in this regard".

81 As to the Association's submission regarding the Commission's practice and procedure in conducting s181E reviews, the respondent submitted that the "in transcript rulings" made in other cases, of which the respondent or Haylen J may not have been aware, are not relevant to the present matter, and "a suggestion that, because debates have been had and parties have taken particular positions in other cases, that they are in some way immutably bound by those positions should be rejected". It was the respondent's contention that Haylen J was entitled to regulate the procedure before him having regard to the case that was being agitated by the appellant.

82 The Association contended that it was the respondent who erected a false premise before Haylen J which led to evidence not being admitted, that the s181E review then "incurably went off the rails" due to the erection of that false premise, and that the respondent cannot now shelter behind the argument that it was not aware of the Commission's procedure in relation to the admission of evidence particularly in light of the decision of Peterson J in Wells at 109.

83 The Association made the following submissions in relation to what it described as "misstatements and obfuscations" in the respondent's submissions: (1) The respondent incorrectly submitted that the Association argued that there were only two ways procedurally that s181E reviews can be conducted. The Association referred in its submissions (in relation to other statutes which have provided for a 'review') to the "usual manner in which any s181E review will be conducted before the Commission". (2) The respondent incorrectly submitted that the Association mischaracterised the nature of the appellant's case at first instance as involving both procedural and substantive unfairness. The Association argued that its submissions were premised on the principle that s181F(1)(b) of the Police Act requires that the Commission consider the case presented by the appellant as to why the removal was harsh, unreasonable or unjust, both in the submissions made by the appellant to the Commissioner (pursuant to s181D(3)(b) of the Police Act ) and in proceedings before the Commission at first instance: Little (No 2) at [72]. (3) The respondent incorrectly submitted that the Association did not say anything about what it contended was the correct nature of the review. The Association contended that it made extensive submissions in that regard, for instance, its submission that a s181E review is not identical but is similar to an unfair dismissal matter heard under the Industrial Relations Act , subject to the important differences in Divisions 1C and 1D of the Police Act . (4) The respondent incorrectly submitted that the Association "contends in substance an identity of prescription between NSW unfair dismissal regimes and the s181E review of the police officer". The Association contended that its submissions clearly stated that the regimes were similar but not identical. (5) The respondent incorrectly submitted that the Association submitted that the respondent was obliged to refer Haylen J to the decisions in Newton (No 1) and Newton (No 2) . (6) The respondent incorrectly submitted that the Association provided no guidance in its submissions as to what constitutes "new evidence". (7) The respondent incorrectly submitted that the Association "ignores the relevance or otherwise of the Commissioner's finding of a 'loss of confidence'". The Association submitted, referring to Van Huisstede (No 1) , that the s181E review inevitably had to consider the merits of whether the Commissioner's decision had some foundation under the two chosen statutory attributes, namely conduct and integrity".

84 In our view, Haylen J's decision demonstrates three fundamental errors of principle: first, his Honour incorrectly approached the matter as being a judicial review of an administrative decision rather than a full merit review; secondly, he adopted a wrong approach to the receipt of new evidence (or ignored evidence that had been admitted) contrary to s181G(1)(f) of the Police Act; and thirdly, having admitted new evidence tendered by the appellant, he failed to properly determine whether the respondent had discharged the evidentiary burden of meeting the case which had been presented by the appellant.

85 In undertaking his analysis of the nature of a review as provided in s181E of the Police Act, Haylen J, quite correctly in our view, acknowledged the need to have regard to the legislative intent. The following excerpts from his Honour's judgment are illustrations of that acknowledgment:

[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 .

[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'.

[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. 86 In proceeding to undertake the analysis of the current legislative provisions, his Honour ultimately concentrated his attention on the provisions of s181G(1)(f)(i) and (ii) and 181G(2) relevant to the admission of 'new evidence' for the purposes of a review under the Act. That is a matter of some import in this appeal given the way in which the matter proceeded at first instance. We will return to it in due course.

87 It is necessary at this stage to trace the history of the relevant legislation to determine when and the context in which the word 'review' entered the legislative lexicon for matters such as that before us and the Parliament's intention or purpose in providing for a review in the manner it did.

88 In November 1996, the Royal Commission into the New South Wales Police Service produced an interim report which was commonly referred to as the Immediate Measures Report. That Report canvassed, amongst other things, the need to put in place a process for dealing with police officers who, because of their overall corrupt behaviour, had lost the confidence of the Police Commissioner. On that issue, the Immediate Measures Report recommended that legislation be passed as soon as possible to: (i) Allow the Police Commissioner to remove a sworn member, if that member has lost the Commissioner's confidence; (ii) Provide a process for review of the Police Commissioner's decision solely by means similar to that found in the Administrative Decisions (Judicial) Review Act 1977 (Cth) ; (iii) Repeal the existing section 181B of the Police Service Act , once Recommendations 5(a) and 5(b) are implemented; (iv) For the purposes of any existing review of a dismissal under s181B(5) of the Police Service Act to declare that its true meaning is to provide a review founded upon the material upon which the Police Commissioner made the decision rather than a review de novo.

89 It should be noted at this point, reference to s181B of the Police Service Act is reference to the Police Service Amendment Act 1995 where Division 1 of Part 9 of the Police Service Act was amended by the addition of Division 1A incorporating ss181A, 181B and 181C. That Division gave specific legislative powers to the Commissioner to dismiss a police officer for corrupt or other conduct based on information arising out of the Police Royal Commission. While the officer concerned was given 21 days to respond with a written submission in relation to the Commissioner's decision, there was no right of appeal from that decision to the Government and Related Employees Appeal Tribunal ("GREAT") and the Commissioner's decision to dismiss took effect on the date the order was made.

90 Following the recommendations contained in the Immediate Measures Report of November 1996 already referred to, legislation was enacted to give effect to many of the Immediate Measures Report recommendations. That legislation was the Police Legislation Further Amendment Act 1996. That amendment further modified Part 9 of the Police Service Act. To start with, s181B was repealed. In relation to that provision, the Minister's Second Reading speech stated as follows:

Last year the Government acted promptly to ensure that the corrupt officers being exposed by the Royal Commission could be quickly expelled from the Police Service. It did this by introducing the summary dismissal provisions of section 181B. That provision has served its purpose and a number of officers have been dismissed under it. However, it takes little insight to realise that any officer whose integrity is called into serious doubt by the ongoing probing of the royal commission will be required to show cause why the commissioner should continue to have confidence in him. Recourse to the summary dismissal provisions will therefore not be necessary and section 181B can be repealed.

91 The amendments made to Part 9 saw the insertion of Division 1B incorporating provisions in s181D for the summary removal of police officers in whom (the) Commissioner did not have confidence. It is at this point that reference is made to a review process flowing from the Commissioner's decision to remove a police officer for loss of confidence. On that issue, s181D(6) and (7) then provided:

(6) The Supreme Court has jurisdiction to review a decision or order of the Commissioner to remove a police officer under this section. Any such review is to be conducted in accordance with the administrative law principles applicable to the review of decisions that turn on the opinion of a decision-maker.

(7) Except as provided by subsection (6): (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission.

92 As s181D(6) makes abundantly clear, the role of the Supreme Court in the process of review was specifically and somewhat narrowly delineated in accordance with the administrative law principles applicable to the review of decisions that turn on the opinion of the decision maker.

93 Following the tabling of the Final Report of the Royal Commission into the New South Wales Police Service in the New South Wales Parliament on 15 May 1997, further legislative amendments to the Police Service Act were made, specifically dealing with the establishment of industrial rights of police officers terminated under the Commissioner's loss of confidence provisions. It was those amendments that form the basis of the legislative provisions now in place relevant to the issue of the review process provided for.

94 To start with, subsection (6) of s181D was repealed and subsection (7) relevantly amended. New subsections (7A) and (7B) were inserted to provide as follows:

(7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section.

95 As well, the provisions of Division 1C: Review of Commissioner's decision under Division 1B that were inserted, provided relevantly:

(1) A police officer who is removed from the Police Service by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission ) for a review of the order on the ground that the removal is harsh, unreasonable or unjust.

(2) An application under this section does not operate to stay the operation of the order in respect of which it is made.

(3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1).

(1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the Police Service, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case.

(2) The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.

(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to section 181D (1)).

181G Application of Industrial Relations Act 1996 to reviews

(1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided 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, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave.

(2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must 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. ... ... 181I Matters relating to evidence (1) Section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 applies to a witness giving evidence before the Commission in proceedings under this Division in the same way as it applies to a witness giving evidence in proceedings before a court, and so applies as if a reference in that section to a court were a reference to the Commission. (2) Subject to subsection (1) of section 163 (Rules of evidence and legal formality) of the Industrial Relations Act 1996 , nothing in this Division limits or otherwise affects the admissibility in evidence in proceedings before the Commission under this Division of any transcript of the proceedings of any other court or tribunal.

96 In relation to the intention and application of those provisions, the Minister's Second Reading speech is of assistance as follows:

The bill provides police officers with the right to go to the Industrial Relations Commission to seek review of a dismissal decision. Again, whilst similar to the protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act , it is not identical as there are some important differences which I will discuss shortly. The key aspect review to be conducted by the Industrial Relations Commission will be a review of the merits of the decision of the Commissioner. It will allow both the fairness of the process by which the decision was arrived at, the facts on which the decision was based, and whether dismissal was harsh, unjust or unreasonable.

However, it will be for the applicant to establish that a decision was harsh, unjust or unreasonable. These words will be familiar to those with knowledge of our industrial relations law as they are the same grounds on which an employee may seek redress under the unfair dismissal provisions of part 6 of chapter 2 of the Industrial Relations Act 1996 . In making its decisions the IRC will be required to balance the interests of the applicant against the wider public interest, including the interest of protecting the integrity of the Police Service. This will also include the fact that the applicant was dismissed under section 181D(1), that is, for want of Commissioner's confidence. These are significant tests.

For the sake of clarity I should stress that the lodging of an application for review will not stay the Commissioner's decision. What that means in practice is that the applicant becomes a former police officer from the time the Commissioner signs the order to dismiss him or her. This is an enormous change from the past, when officers not only abused the system to get back into the service but also made it virtually impossible to get them out in the first place. It is in the interests of the applicant, the community and the Police Service that any reviews arising out of dismissals be finalised quickly. That is why the bill provides that an application for review must be lodged within 14 days, and requires that the hearing be commenced within four weeks. Hearings under division IC of the Police Service Act will be conducted by the IRC in a similar way to hearings under part 6 of chapter 2 of the Industrial Relations Act . (our emphasis)

The bill also requires that if either party wishes to introduce new evidence to support its case, notice must be given. That means notice not only of intention must be given, but also notice of the substance of the evidence that is sought to be adduced. This will ensure that the issues are clearly defined and allow both parties to better prepare their case. If notice is not given, leave of the IRC can be sought. This provision of the bill is not intended in any way to reduce the discretion of the IRC to grant leave upon any basis it considers appropriate.

In the interests of fairness and justice, however, the IRC will be required to grant leave if satisfied of the following: 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; 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; and where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision.

Other issues addressed by the bill include the admissibility of transcripts of evidence arising out of the Royal Commission or the Police Integrity Commission, to which the Commissioner may have had regard in coming to a decision. The bill clearly states that, subject to section 163(1) of the Industrial Relations Act , nothing in the bill is intended to override the existing law in this area. (Emphasis added)

97 In outlining in some detail the above legislative history in relation to the process of review under the Police Act, one thing is very clear. Contrary to the approach adopted by Haylen J at first instance, the review process prescribed is wider than that of a review conducted in accordance with administrative law principles applicable to the review of decisions that turn on the opinion of a decision maker, and is essentially the same as the unfair dismissal regime subject to specified modifications.

98 That such an approach, as we have described, accords with the legislative intent and purpose is supported, in our view, by the statements of the Minister in the Second Reading speech relevant to the current provisions as well as the provisions themselves. That is, the legislation was designed to give police officers similar but modified protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act:

... Hearings under Division 1C of the Police Act will be conducted by the IRC in a similar way to hearings under Part 6 of Chapter 2 of the Industrial Relations Act .

99 That conclusion is also amply sustained from a review of the relevant legislative provisions and authorities discussing them.

100 In that regard, we do not agree with the conclusions expressed in paragraph 36 of his Honour's judgment as follows:

... 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.

101 Part 6 Chapter 2 of the Industrial Relations Act encompasses the legislative provisions relating to unfair dismissals. That those provisions have application, albeit modified, in relation to reviews under Part 9 Division 1C of the Police Act has been affirmed in prior decisions of the Commission at both first instance and appellate level. For example, in Newton (No 2) at 80, the Full Bench of the Commission stated: The effect of s181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s84 apply to s181F review proceedings, subject to the there specified modifications.

102 Further, in Little (No 2) at 237 the Full Bench cited with approval the observations of Walton J in Van Huisstede (No 1) where his Honour stated at para [212]:

Section 181G applies to the provisions of the Industrial Relations Act in relation to the review of unfair dismissals (with some exceptions) to an application for review under the Act. Notwithstanding that the legislature expressly constrained the operation of certain aspects of the Industrial Relations Act , it did not limit the Commission's general powers as to unfair dismissals, and to this extent, it may be inferred that the legislature intended that the Commissioner's decision would be reviewable in a similar manner as dismissals otherwise reviewable under Part 6 of Chapter 2 of the Industrial Relations Act .

103 In endorsing the above observations, the Full Bench in Little (No 2) said at [65]:

We consider that those observations represent the correct approach to the construction of s 181G of the Police Service Act. That provision has the effect of applying to proceedings brought under s181E of the Police Service Act the provisions of Part 6 of Chapter 2 of the Industrial Relations Act in such a manner as to import the provisions of Part 6 to the review proceedings together with the corresponding adoption of the jurisprudence of the Commission with respect to the unfair dismissal provisions of the Industrial Relations Act, except where expressly excluded by the provisions of s181G(1).

104 We agree with the approach of those authorities. As a matter of statutory construction there can be no doubt that a review under the Police Act is akin to unfair dismissal proceedings under the Industrial Relations Act (subject to limited modifications). Contrary to his Honour's conclusions a review has as its legislative underpinning proceedings under Division 6, Part 2 of the Industrial Relations Act relating to unfair dismissals. The language of s181G(1) of the Police Act unambiguously states that the provisions of the Industrial Relations Act apply to an application for review in the same way as they apply to an application relating to an unfair dismissal under Part 6 Chapter 2 of the Industrial Relations Act subject only to the modifications denoted. Those modifications have no material impact upon the considerations applicable in this matter (and in any event are quite confined). Further, those modifications do not detract in any fundamental sense from what we see is the overriding intention and purpose of s181G, that is, as expressed by the Full Bench in Newton (No 2) to which we have earlier referred. We concur with and reaffirm the view expressed on that occasion (at 80) as follows:

The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. Relevant to the matter of concern raised by Mr Hendy is the limitation placed upon the introduction of new evidence by s 181G(1)(f) and (2); the protection thereby afforded to a dismissed police officer is manifest.

It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply.

105 Section 181B of the Police Act details the administrative process that the Commissioner must follow in order to exercise his power to remove a police officer in whom he does not have confidence. In many respects, that process accords with what would generally be considered as due and proper process requiring the Commissioner to identify the grounds justifying the Commissioner's view that he no longer has confidence in a police officer and giving the police officer the opportunity to respond with written submissions. The Commissioner is required to consider those written submissions before taking any step to order the officer's removal from NSW Police. In doing so, the Commissioner must set out the reasons to support the order he has made.

106 The structure of the Police Act itself, by specifying in s181F(1) the procedure that must be adopted in determining any application for review, demonstrates that the review is not a hearing de novo in the strict sense (although not in a manner in our view different from the broad range of considerations arising in unfair dismissal cases). We note in that regard what was said in Van Huisstede (No 1) at [192]-[195]:

The current form of the provisions undoubtedly raises some difficulties in interpretation. Jurisdiction is conferred on the Commission to conduct a "review" of an order made by the Commissioner on the ground that the removal was "harsh, unreasonable or unjust". In conducting that "review" the Commission is required to proceed according to the sequence set out in s181F(1). The instruction that a dismissal not be harsh, unreasonable or unjust has, of course, been applied for many years in the Commission's unfair dismissal jurisdiction. The Commission is required to determine whether, in all the circumstances of the case, the dismissal of the employee was harsh, unreasonable or unjust. The Commission would not ordinarily be thought of as conducting a review of the employer's decision, for example, in the nature of a judicial review.

In my view, the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree:

… it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: … a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself …

That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons.

What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner.

As was said by the Full Bench in Bigg (No. 2) , the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision.

107 The reference to the Commissioner's reasons in s181F or the above analysis in Van Huisstede (No 1) does not result in a review in the nature of an administrative law review, but simply entails that review proceedings before the Commission will necessarily have regard to the reasons of the Commissioner in removing the officer and the materials relied upon by the Commissioner in coming to that view. A failure to adhere to the statutory procedures laid down will be a matter of some significance in the proceedings.

108 In relation to the admission of new evidence under s181G(1)(f), Haylen J determined, wrongly in our view, that: (1) prima facie , new evidence may not be introduced; (2) s181G(1)(f) does not confer a right to adduce evidence, rather it establishes a statutory limitation; and (3) the absence of regulations under s181G(1)(f)(i) of the Police Act specifying the manner in which notice of an intention to adduce new evidence must be given precludes the introduction of new evidence by notice in accordance with that section.

109 Specifically, Haylen J made the following findings as to the admission of new evidence:

[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.

110 His Honour's findings in relation to the admission of new evidence are plainly wrong, and contrary to well established principle.

111 In Van Huisstede (No 1) the Court held (at [153]-[154]):

Some difficulties are created by the fact that s181G(1)(f)(i) refers to notice being given "in accordance with the regulations under this Act". Despite this provision, no regulations have been made to prescribe the manner in which such a notice should be given. In Downey v Pryor (1960) 103 CLR 353 at 362, Kitto J expressed the view that provisions requiring an act to be done "in the prescribed manner" or "in accordance with regulations" may be of two different natures. The wording, context and nature of the provision may indicate that the prescribed method is the essence of the authority conferred such that there is no authority capable of being exercised in the absence of a valid prescription of the method. Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 is an example of such an instance. On the other hand, the means may be that the authority or act is to be subject to the power of the Executive to regulate its function, but in relation to the reference to any prescribed method the words "if any" should be implied.

112 We note that there was no contest in these proceedings regarding the giving of notice of intention to adduce evidence. That concession was plainly correct in the light of Van Huisstede having been subsequently adopted by the Full Bench in Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation [2004] NSWIRComm 11 (at [61]). Similarly, the Full Bench in WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 332 (at [68]-[72]) applied the same principles as those espoused in Van Huisstede (No 1) in interpreting s 4(1) of the Summary Jurisdiction Act.

113 Further, it is not necessary that notice given under s181G(1)(f)(i) uses the precise terms of that section, or that a particular form of notice be provided. Notice need only be given of the substance of the evidence that is intended to be produced. Such notice was given by the applicant in the proceedings before Haylen J.

114 Nevertheless, s181G(1)(f)(ii) gives the Commission the discretion to grant leave and may do so in such circumstances as it thinks fit (s181G(2)). That wide discretion effectively permits the Court, in appropriate circumstances, to circumvent the obstacle that the lack of regulation presents as a barrier to the admission of new evidence by reliance on s181G(1)(f)(i). Irrespective of whether notice was given under s181G(1)(f)(ii), evidence going to the appellant's character was central to the matters for consideration before Haylen J (and was wrongly excluded).

115 We believe that reference to 'new evidence' in s181G(1) and (2) is reference to any evidence that was not before the Commissioner and that would be considered relevant to the review process required to be undertaken by the Commission and admitted pursuant to the discretion provided. We hasten to add that our view thus expressed excludes the circumstances where the Commission must grant leave to adduce new evidence as provided in s181G(2)(a), (b) and (c).

116 In the review proceedings before his Honour, a reading of the transcript reveals what we would characterise as some confusion between the parties as to how the matter would proceed. Because of the decision we have taken to remit the matter, we see no useful purpose in trying to dissect the minutiae of what was said in arguendo before his Honour at the commencement of the review proceedings before him. We do say that the intention of counsel on behalf of the appellant was to start from the proposition that:

... the applicant in these proceedings adopts his evidence in the hearing before the Magistrate as true and correct.

117 The nub of that submission goes in large part to the critical question of the appellant's credibility under oath. The Deputy Chief Magistrate had made repeated references in his judgment to his adverse views as to that issue. In turn, the Commissioner relied on those adverse findings as to credibility in the grounds and reasons he gave for his decision to remove the appellant from NSW Police. Notwithstanding that, the clear intention of the review before the Commission was to assert that afresh. The tenor of that submission was that it was intended to call the applicant but, for reasons that are not clear from the transcript, that intention was never pressed. What was tendered and accepted into evidence by his Honour was the complete transcript of the Local Court proceedings before the Deputy Chief Magistrate and an affidavit sworn by the appellant dated 6 August 2003.

118 Turning to the transcript of the Local Court proceedings, it was not disputed that in coming to his decision to remove the appellant from NSW Police, the Commissioner considered some but not all of the transcript of those proceedings. Therefore, to the extent that the whole of the transcript was placed before his Honour, that portion that had not been considered by the Commissioner was new evidence as provided for in s181G(1)(f) of the Police Act. Counsel on behalf of the Commissioner tendered that new evidence.

119 The second item of new evidence received by his Honour was the affidavit of the appellant already identified. There can be no dispute it was new evidence. The contents of that affidavit and the basis on which it was relied upon by his Honour became problematic in the appeal proceedings before us. In his judgment at [12] his Honour stated:

... an affidavit was allowed to be read which briefly set out what the applicant had been doing since the termination.

120 The reality is the affidavit did not just go to that issue. In fact, para [2] of the appellant's affidavit states:

After I was served with a Notice under s181D of the Police Service Act (NSW) 1990 I forwarded a response to the Commissioner of Police. The contents of that response were true and correct and I confirm that I set out therein everything that I thought was relevant. I understand my response is before the Honourable Commission and I adopt what I have said in that response.

121 On behalf of the Commissioner, it was submitted that no reliance could be placed on the appellant's sworn assertion to the above effect. That was so, it was submitted, because while the affidavit was received by his Honour, it was never relied upon by his Honour as evidence going to the very issue of the appellant's credibility, which is what it was.

122 It is correct, on the face of his Honour's judgment and the transcript, that his Honour perceived the affidavit of the appellant as evidence of the effect of the dismissal on him. It is reasonably clear that he did not consider it beyond that matter.

123 Despite the submission on behalf of the Commissioner that we should properly ignore any wider import to the appellant's affidavit than his Honour appears to have given it, the failure to consider it is a matter of real concern. On any view, there is on the record, sworn and unchallenged evidence going to the critical issue of the appellant's credibility. Certainly, there was no request on behalf of the Commissioner to seek to challenge him by cross-examination of that significant assertion on his part. It adds considerably to the decision otherwise made by his Honour to improperly exclude evidence which was required to be received under s181G(1)(f).

124 There is also a procedural issue troubling us as to the conduct of this matter before his Honour. Following discussion in arguendo from both parties before his Honour at the outset of the hearing, his Honour concluded that aspect of the hearing by ruling as follows:

Mr Dickinson, what I am prepared to do is allow the whole of the transcript to be part of these proceedings. I do not see there is any obligation on the Commissioner's representative to make anybody available for cross examination.

125 At that point, the substantive hearing commenced by his Honour addressing counsel for the Commissioner as follows:

126 Counsel for the Commissioner then tendered the material that was before the Commissioner as well as the full transcript of the Local Court proceedings. At that point, the following exchange took place, noting that Mr Dickinson was counsel representing the appellant at first instance.

Dickinson : Apart from the evidence of the applicant.

Dickinson : I think there is some evidence as to the effect of the dismissal.

His Honour : Can you be precise, this is oral evidence you are talking about?

His Honour : What are the aspects to be covered by that evidence?

Dickinson : There is an affidavit filed 13 August 2003.

His Honour : That is the three page affidavit? Dickinson : Yes, that is so.

His Honour : Do you have any objection to that, Mr Reitano, it seems to be confined to actions that have been taken afterwards -

Reitano : To the extent your Honour is minded to permit the evidence by granting leave, it is new evidence of what happened afterwards and not subject to what was before the Commissioner, so I do not think I can object to it.

His Honour : I will take it as read, the affidavit of the applicant sworn 6 August 2003.

127 The matter then proceeded to final addresses. Curiously, and we believe wrongly, the procedure followed was an address by counsel for the Commissioner followed by counsel for the applicant and then counsel for the Commissioner in reply. That approach appears consistent with the procedural approach adopted in relation to the overall presentation of the evidence in the matter. It is, in our view, a procedural approach that was wrong.

The applicant has at all times the burden of establishing that the removal of the applicant from NSW Police is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.

129 Consistent with that provision, the primary onus clearly rests with the applicant. The approach to be taken at the review before his Honour should have proceeded as stated in Newton (No 2) at 80:

At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply.

130 Our reading of the transcript would indicate that the case before his Honour, as it was conducted, failed to follow that important procedural requirement, relevant as it is to the issue of onus as provided in s181F(2). It was a failure that, in our view, when taken together with the problematic situation that the appellant's unchallenged affidavit represents from an evidentiary point of view, resulted in a totally unsatisfactory situation at first instance that can only be sensibly resolved by remitting the matter as we have resolved to do.

131 The issues of onus of proof and evidentiary burdens in matters relating to the removal of a police officer under s181B of the Police Act was discussed at length in Starr and it is not necessary for us to explore those issues in detail in the present matter. However, it is worthy of repetition that the legislative stipulation in s181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s181F and does not offend s181F(2).

132 As earlier stated, evidence as to the truthfulness of evidence given by the appellant before the Local Court was admitted at first instance, and was not challenged. That evidence, and the failure by the Commissioner to answer it, was improperly ignored by the trial judge in his determination of the review.

133 In our view, the errors we have identified fatally affected the ultimate determination of the matter by Haylen J.

134 In undertaking the review that he did, his Honour did so, he said, 'to determine that the decision made by the Commissioner was correct, rather than having the Commission make a fresh and independent decision itself'. As expressed, the task determined by his Honour was erroneous in a number of respects. To start with, the process to be undertaken by the Commission on review is, in our view, other than that as expressed by his Honour. The correct approach is that the Commission is to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted. Further, that review process is to be undertaken in accordance with the provisions of s181F(1) of the Police Act which states: (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from NSW Police, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case.

135 Those provisions weigh in favour of our view, earlier expressed, that the process of review to be undertaken by the Commission is wider than that enunciated by Haylen J.

136 In the matter before his Honour, as we have identified, there was new evidence. Accordingly, for Haylen J to set himself the task of determining that the decision made by the Commissioner was correct, rather than making a fresh and independent decision, was not only erroneous but not logically possible given that Haylen J had before him evidence that was not before the Commissioner.

137 In any event, notwithstanding the task to be undertaken as enunciated, his Honour then undertook the review process by considering all of the material including the new evidence before him. In doing so, his Honour did, in many respects, undertake the task that s181F required, that is, a fresh and independent review based on all of the evidence before him. Haylen J made the following findings in relation to each of the grounds identified in the Notice:

(1) as to the first ground, that the appellant assaulted the complainant by grabbing at her shirt, Haylen J held (at [155]) that "my reading of all of the evidence confirms the correctness of the Commissioner's view";

(2) as to the second ground, that the appellant exposed his penis, Haylen J held (at [165]) that "Ultimately, I cannot say it was incorrect for the Commissioner to accept the very firm conclusions of the Magistrate in regard to this incident..";

(3) as to the third ground, that the appellant assaulted the complainant by lifting her off the ground and placing her on the bar, Haylen J held (at [170]) that "...I am unable to conclude that the Commissioner was correct in finding that the applicant assaulted the complainant in this incident"; and

(4) as to the fourth ground, that the appellant was untruthful in giving evidence before the Local Court, Haylen J held (at [172]) that "The Commissioner was correct in deciding that the evidence given by the applicant to the Local Court was false".

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.

139 There were two flaws in his Honour's approach to that task. The first was the absence of any consideration of the evidence contained in para [2] of the affidavit of the appellant to which we have earlier referred. Despite the fact that it was admitted without objection, it was viewed as going only to the issue of what the appellant had been doing since his removal from NSW Police. As earlier set out, it also went to the very issue of the appellant's credibility and on that point was unchallenged. It was clearly part of the evidence that was before his Honour. In our view, it cannot be as easily dismissed as has been submitted and adds weight to our decision to find error and remit this matter for further consideration.

140 The second issue is the ultimate review process undertaken by Haylen J. In relation to the matters relied upon by the Commissioner to remove the appellant from NSW Police, his Honour did proceed to deal with each of the matters identified, considered all of the evidence before him, including the new evidence, and made his own findings. However, in relation to the second ground identified by the Commissioner, his Honour, in our view, failed to undertake an independent assessment of the facts but relied entirely upon the conclusions reached by the Commissioner.

141 The second ground identified in the Notice was as follows:

On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you exposed your penis. Your behaviour was inappropriate and contrary to the Police Code of Conduct.

142 His Honour's erroneous approach can be ascertained by reference to his conclusion at [165] of his judgment as follows:

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. (our emphasis)

143 In our view, his Honour was required to undertake a fresh review of that particular issue. He had before him all of the evidence that was before the Local Court and the affidavit of the appellant. On one view, his Honour harboured some reservations as to the conclusion drawn by the Commissioner when he stated at [165]:

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.

144 Having expressed the preliminary view that he did, his Honour then concluded that he was unable to say the Commissioner was incorrect in forming the view he did on this issue. In so stating, his Honour was in error as to the review process he was required to undertake.

145 For all of the reasons we have identified, we have come to the conclusion that the most appropriate course is to remit the matter for proper consideration and determination having regard to the procedural and evidentiary errors we have identified as well as the nature of the review process to be undertaken.

146 The matter will be listed by Boland J at his earliest convenience for programming and directions as required.

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