44 Following the fatal motor vehicle accident on 5 November 2006 the applicant took sick leave. According to the applicant he took sick leave in December 2006 after he consulted a doctor in Braidwood who diagnosed him as suffering from PTSD and depression. While on leave the applicant was paid worker's compensation. It will be recalled that during this period, on 20 December 2006, Superintendent Commins received Mr Baragry's email advising him that the applicant was experiencing difficulties coping at work following the November 2006 motor vehicle accident. The applicant returned to work on 25 January 2007. Superintendent Commins referred the applicant to Doctor Li in February 2007. Doctor Li reported that the applicant "might have suffered with psychological symptoms" following his attendance at the November 2006 accident site. Dr Li recommended that the applicant continue to see his treating medical doctor for symptoms and monitoring of his medication, and that workplace monitoring and support was required.
45 As earlier observed, it does not appear that the workplace conditions were implemented by the applicant's supervisors. In oral evidence Superintendent Commins said that he did not personally supervise, or maintain regular oversight of the applicant between February and June 2007. He said that he was uncertain of the extent to which the applicant was continuing to access medical treatment after returning to work after January 2007, and he was confused by Dr Li's requirement for monitoring at the same time as returning the applicant to the same work area where trauma had been suffered. In cross examination Superintendent Commins frankly conceded that he was not trained to deal with matters concerning mentally ill police officers:
Q. Coming back to your evidence a moment ago, you indicated that you were confused about how you were meant to deal with the situation; on the one hand Mr Smith had been returned to full operational duties and his firearm returned, and on the other you were expected to somehow monitor both his medical appointments and to make sure he reported the return of any symptoms. Did you have any skills for dealing with those sort of situations with a mentally ill officer?
A. No. We are not trained in dealing with mentally ill officers so far as counselling is concerned.
46 According to Greg Bruce the Injury Management Adviser working in the respondent's Workplace Injury Management Unit, the applicant was not referred to the Unit although he should have been. It would seem therefore that there was no planning for the applicant's return to work. The applicant returned to full policing duties at Braidwood where he attended, in rapid succession, a series of serious motor vehicle accidents, at least one occurring in the same location as the fatal accident of November 2006, and at least one involving a fatality.
47 It was part of the applicant's case before the Commission that senior management within the police force failed in their role to support him. The failure to implement a return to work plan following his return to work in January 2007 and the lack of monitoring of his work between February and July 2007 were put forward as two examples of this perceived failure. The relevance of this aspect of the applicant's case to the issue of unfairness of his removal was said to be that the applicant was already affected by PTSD in February 2007. Nothing, or little, was done following his return to work to alleviate his illness. His continued exposure to serious motor vehicle accidents almost certainly worsened his illness. The deterioration of his mental state during this time and his frustration at senior management were said to have played a significant role in provoking his conduct during the two incidents in July 2007 and again in November 2007.
48 A further matter relied upon in support of this aspect of the applicant's case was the failure of the applicant's supervisors to apply the respondent's policy on the serving of firearms issued to a police officer who has taken stress related leave. Under the NSWPF handbook extract on Arms and Appointments it is stated:
Anxiety/depression related leave
Commanders
Ensure firearms for officers on stress related leave are secured in your safe.
49 The applicant had taken stress leave on 20 June 2007, about one month before the first incident. He handed in his service firearm at that time but he was not required to hand in his other appointments (including Oleoresin capsicum spray and ammunition). The keeping of these appointments formed one of the misconduct allegations against the applicant. According to the applicant, Superintendent Commins agreed that for the intention of the policy to be fulfilled it would be necessary to review whether the officer had access to his own firearms. Had the enquiry been made when the applicant proceeded on sick leave he would not have had access to firearms on 21 July 2007 and "virtually all" of the circumstances of that day and the following day would have been avoided.
50 I am unable to be satisfied, on the evidence before me, that members of senior management, either individually or collectively, hindered or exacerbated the applicant's deteriorating mental state. I accept, without reservation, that the applicant perceived that to be the case. The evidence indicates, however, that Superintendent Commins endeavoured, to the best of his ability, to provide assistance and support to the applicant. He contacted the applicant on numerous occasions after February 2007 in order to enquire about his progress and to provide support. Inspector Pierce was also accused by the applicant of failing to attend the motor vehicle accidents of 5 November 2006 and March 2007, although it emerged in the evidence that the Inspector was not the relevant duty officer required to attend at motor vehicle accidents in the Braidwood area. That area was supervised by duty officers based at Queanbeyan. Inspector Pierce was based at Cooma. The applicant also did little to promote his cause, having formed the view that members of the NSW Police Force, and senior management in particular, had failed to support him. He made it clear to certain officers that he did not welcome contact with them.
51 Following the incident of 21 and 22 July 2007 the applicant was admitted as an involuntary patient to the Chisholm Ross psychiatric facility at Goulburn. On or about 27 July 2007 he was suspended from duty as a result of the events of 21 and 22 July. The applicant said he received intermittent psychological and medical treatment from July 2007 until January 2008, through the public health system, specifically the Queanbeyan Mental Health team. This included treatment by Peter Marshall, a clinical psychologist, and treatment and medication prescribed by Dr Sarfraz.
52 Mr Bruce, the Injury Management Adviser wrote to HealthQuest advising it that the applicant had been referred to his Unit on 9 July 2007. The letter also noted that the applicant had received counselling from Ms Durbock. On 10 September 2007 Mr Bruce wrote to one of the applicant's treating doctors, Dr Ian Dumbrell, requesting clarification of the applicant's medical status, his needs, prognosis for a return to work and recommendation for rehabilitation. On 12 October 2007 Dr Arne Nilsson replied to Mr Bruce on behalf of Mr Dumbrell, informing him that the applicant was diagnosed with severe depression when he visited Dr Dumbrell, and was prescribed anti-depressant medication and referred to Mental Health. The letter also advised that the applicant had been diagnosed as suffering from PTSD. According to the applicant during this period he did not experience much, if any, improvement in his symptoms. The prescribed drugs were changed at least once, as the side effects were unacceptable.
53 In October 2007 the applicant's illness was accepted by the respondent's workers compensation insurer as a "hurt on duty" work-related illness. On 9 October 2007 the applicant was served with an eviction notice which required him to vacate his police residence at Braidwood by 6 December 2007. During the same period the applicant was being investigated by the police concerning his conduct in July 2007. These work-related stressors, according to the applicant impeded his recovery. It was not suggested by him however that the actions of the respondent (including his supervision, the police investigation and the eviction notice) at this time were causative of his mental illness. It was acknowledged by him that Superintendent Commins had attempted to manage the process of potentially upsetting issues.
54 In the Response the applicant sought to explain his state of mind during the period leading up to and during the second incident as follows:
By the 24th November 2007, I was in an advanced state of post traumatic stress disorder and I was harbouring a dislike of certain police because of the treatment I perceived I had been subjected to by them.
I had continued to receive psychological treatment in the months after 21st July 2007, but I was becoming more and more depressed and angry towards the Police Force, because I believed the Police Force had treated me like a criminal, rather than helping me.
I was not getting any effective treatment from the public mental health system, I only saw a doctor three times between July and November because she was always busy. I was harbouring a dislike towards certain police, particularly management at Queanbeyan, who I thought had done nothing to help me, and this all came to a head in late November 2007.
I had drunk too much alcohol at a friend's birthday party and I was heavily intoxicated. I went to the Royal Mail Hotel at Braidwood with some friends and I became involved in an argument with a local criminal who I knew was drug dealing. He was baiting me and I told him one day I would lock him up, and he replied that my own mates would prefer to lock me up. It seems I gave him a light punch in the stomach and I was then asked to leave the premises. One thing led to another, police arrived, and I behaved inappropriately. I was arrested and once again taken to Chisholm Ross.
I attempted self harm in the back of the truck. I was not scheduled, partly I believe because I told them that I would kill myself any way I could if I was admitted. I do not recall most of the evening, although I have heard tapes, which were recorded throughout the incident, and I am deeply embarrassed, ashamed, and humiliated by my behaviour at the time. I still struggle to come to terms with the way that I behaved that evening.
55 Following the November 2007 incident an apprehended violence order was taken out against the applicant. At about the same time he was required to move out of the Braidwood residence. The applicant said that at this time he recognised the need to reduce his drinking and did so. Work-related stressors continued however including the service of Court Attendance Notices upon him in December 2007.
56 On 31 January 2008 Mr Marshall, a clinical psychologist employed by the Mental Health Service in Queanbeyan reported that the applicant had been a client of the Service since his admission to the Chisholm Ross Centre (CRC) in Goulburn as an involuntary patient on 22 July 2007. The report identified those mental health professionals who had been involved with the applicant's assessment and case. Dr Sarfraz was one of the medical professionals identified. He was the psychiatry registrar in attendance at CRC at the time of the applicant's involuntary admission. Dr Sarfraz had continued to see the applicant after his discharge from the CRC on 23 July 2007. Mr Marshall's report advised as to the applicant's mental health as follows:
All the mental health professionals involved with Brad's assessment and care concur that Brad suffers Post Traumatic Stress Disorder, as a result of attending various incidents in the course of his duties as a police officer. These might include fatal motor vehicle accidents, but also other deaths or near-deaths, including suicides and attemps.
Brad also suffered some depressive symptoms, which I believe were secondary to his PTSD (i.e. they were a consequence of his PTSD and its effect on his professional and personal lives). Alcohol abuse was also a major problem for Brad by the time the Queanbeyan ACMHT [ Activit Community Mental Health Team] met him, and is also likely to have been contributed to by his PTSD.
Brad was again taken to CRC by police on 24th November 2007, as a result of an incident which resulted in some of the charges currently before Queanbeyan Court. He was not formally admitted to CRC on that occasion.
Prior to his first contact with Queanbeyan ACMHT, Brad was prescribed Efexor, an anti-depressant, by his GP in Braidwood. In late September 2007 Brad was advised to change to Avanza by our Dr Sarfraz. Brad experienced some side-effects from the Avanza, and some weeks later reverted to Efexor which he still possessed. He finally ceased Efexor over the Christmas period. I am not sure of the exact dates, but I believe it is possible that both of Brad's incidents which resulted in him being brought to CRC, may have been shortly after commencing, or recommencing, Efexor. It is possible that these incidents were contributed to by a known side-effect of commencing Efexor, which is increased aggression.
Brad's PTSD seems to have developed over a period of time, and an accumulation of incidents, rather than as a result of one particular incident. I therefore believe it is likely that Brad's work performance may have been suffering for a significant period of time prior to his going on sick leave (in April 2007, I believe) and coming to the attention of Queanbeyan AMCHT [sic] (in July). I understand that there are other charges before the court which relate to the incident on 22nd July 2007. From what I know of those charges, I believe it is likely that Brad's deteriorating mental health contributed to their commission.
The Queanbeyan ACMHT has limited experience in the treatment of PTSD, and our primary recommendation would be that Brad continue in therapy with his private psychologist in Goulburn, for a significant period of time.
57 The report had been prepared for the applicant's hearing under s 32 of the Mental Health (Criminal Procedure) Act. It is not known however on the material before the Commission whether the Report came to the attention of the respondent. Mr Marshall was not required for cross-examination by the respondent.
58 On 22 April 2008 the applicant was referred to Dr Brian White, a consultant psychiatrist in private practice. Dr White's curriculum vitae (CV) indicates that he has extensive experience in clinical practice with patients suffering from war service related PTSD. Dr White's principal area of work was nominated in his CV as general adult psychiatry, especially PTSD, mood and anxiety disorders and severe chronic psychotic disorders. A large number of Dr White's patients were listed in the CV as current returning military, military veterans, and emergency services personnel especially police officers. It follows from the CV that Dr White was, at the time of the applicant's referral to him as a patient, highly qualified to assess whether the applicant suffered from PTSD. Dr White saw the applicant on 22 April 2008 and again on 26 May 2008, and made the following comments and findings:
He has broken sleep with waking in the early hours of the morning. He continues to have recurrent nightmares, distressing intrusive memories and flashbacks about traumatic incidents he has attended during his police work. He has intrusive distressing memories of his experiences from work, especially after reminders. He remains very withdrawn partly as a way of avoiding such reminders. Occasionally memories have the intensity of flashbacks. At these times he is acutely distressed.
His mood remains depressed and irritable. His marriage had broken up and his recent relationship also seems to have ceased. He has poor concentration. He is startled easily. He is excessively vigilant and on edge. He has almost no social life now. He is excessively anxious and on guard. He is startled easily. His concentration is poor and he is forgetful.
I would consider the incident with the siege was directly the result of the effects of PTSD and associated anxiety and depression.
He has limited benefit from Avanza and Zoloft and persisting side effects and ceased these last year. I recommend he commence Aurorix in a low dose of 150 mg Nocte and build up slowly. This is usually well tolerated. I also recommend he should be on sick leave as he is unfit for any employment currently due to the PTSD. In the long term I consider he would not do well if exposed to further traumatic deaths and severe injuries.
He has less enjoyment in life and his mood overall is not happy. He has associated irritable mood. He has a loss of enjoyment in life and no longer enjoys his hobbies and leisure activities. He remains anxious with reminders of his police work and he avoids such reminders as much as possible. He is no longer able to cope with Police work.
My diagnosis is that he has a Post-traumatic Stress Disorder related to his service in the NSW Police. I consider he has a Posttraumatic Stress Disorder (PTSD) from exposure to incidents in his work in the New South Wales Police; i.e. his PTSD is related to his police work. His PTSD and associated anxiety and depression are therefore a Hurt on Duty condition.
When I reviewed him he had been on a low dose of Aurorix and I recommended he increase this as he has had no significant side effects.
I would like to review him in June. He needs ongoing treatment including medication and sick leave for his PTSD. He should continue to see his psychologist, Elizabeth Durbock, for CBT and supportive psychotherapy.
I recommend he continue on sick leave. His PTSD makes him unfit for work. His PTSD and associated symptoms is the only factor which makes him unfit for work. He has reduced concentration and is more forgetful. This is partly due to his sleep disturbance from his PTSD which leaves him fatigued.
59 The reference in the report to the "siege" is a reference to the incident of 21 and 22 July 2007 during the time members the of SPSU and other members of the police force attended the applicant's residence at Braidwood.
60 As with Mr Marshall's Report, the material before the Commission does not indicate whether the respondent had the benefit of Dr White's assessment of the applicant, his diagnosis of PTSD, his conclusion that the PTSD was a result of the applicant's exposure to work-related incidents and his conclusion that the applicant's conduct during the "siege" was, "directly the result of the effects of PTSD and associated anxiety and depression". Dr White was also not required by the respondent for cross-examination.
61 The report of Ms Durbock which was prepared on 12 June 2008 I have already set out in some detail. According to Ms Durbock's CV she qualified as a psychologist in 1994 and thereafter worked as a psychologist for various government organisations. In December 2007 she commenced work as a psychologist in private practice. In private practice Ms Durbock's work focused on the psychological assessment and treatment of patients using a cognitive behavioural approach for disorders such as anxiety, depression and trauma. As her Report discloses Ms Durbock administered a number of tests to the applicant as part of his treatment. The tests indicated and confirmed Dr White's diagnosis, namely that the applicant was suffering from PTSD, as well as a major depressive disorder. Mr Durbock considered that the applicant's psychological state was a "major contributing factor" responsible for the applicant's conduct during the incidents of 21 and 22 July and 24 November 2007. Ms Durbock also considered that the applicant's symptoms had first manifested on the night following the motor vehicle accident of 5 November 2006. This opinion appeared to be based on the background given to her by the applicant. That background, Ms Durbock reported, was characterised by a stable childhood and employment and a "reasonably stable relationship history", with no reported history of alcohol or other dependence and no "significant history" of mental illness.
62 Ms Durbock's opinions were the subject of vigorous challenge by the respondent in cross-examination. In submissions the respondent contended that the Commission would attribute little, if any, weight to Ms Durbock's opinions, especially insofar as she suggested that the applicant's "untreated PTSD was a major contributing factor to his offences", and that the applicant, "presents a low risk for re-offending". In developing the contention it was said that Ms Durbock was not an expert in the treatment of PTSD and lacked experience in treating the condition in people, especially members of the police force. It was also said that her diagnosis was weak insofar as it was based on the subjective material record provided by the applicant. Her evidence should therefore be treated with the same "grave reservations" held by the Court of Appeal with regard to similar evidence in Terrence Matthew Peisley (1990) 54 A Crim R 42. A further criticism of Ms Durbock's evidence was that she presented as a firm supporter for the applicant rather than as an independent professional. Mr Durbock, for example, sent the applicant her draft report inviting his comments. Those comments co-incidentally reflected his views which were not recorded until the final report. The following extract from Ms Durbock's evidence was relied upon in support of this contention:
Q. And as it turns out the conclusions that you ultimately pen later on, as you have told Miss Lowson, on the date of the 12th, reflected what Mr Smith said in his email, did they not?
A. The same conclusion; like, if that's what it looks like, yes.
63 It was also suggested by the respondent that Ms Durbock in her oral evidence, "seemed to struggle to take the exercise seriously, treating questions put to her with inappropriate facial expressions and secretive smiles", and, that she only reluctantly accepted that her report was "seriously flawed" in that it failed to pay proper regard to a number of significant dependant trauma and life issues that could not be readily discounted or ignored in the applicant's case. The following extract from Ms Durbock's cross-examination was relied upon in support of this latter contention that her report was "seriously flawed":
Q. Yes, but in terms of your experience, with respect to PTSD, had you ever been called upon to write a professional report about the interface between PTSD and criminal offences before?
A. I actually can't remember. I may have. I used to work at Goulburn Correctional Centre. I may have written a psychological report then, I'd write a psychological report once a month there, but I couldn't tell you.
Q. Nothing comes to mind? Prior to doing the work for Mr Smith, had you done any work in relation to post-traumatic stress syndrome--
A. No--
Q. --disorders in police?
A. No.
Q. Had you done any work, in particular, about post-traumatic stress disorders following exposure to traumatic events?
A. "Post-traumatic stress disorder" by definition is following exposure to a traumatic event.
Q. Quite. Serves me right for asking a general question. Have you done any work about the impacts of post-traumatic stress disorders arising out of observation of motor vehicle - horrific motor vehicle accidents?
A. I couldn't answer that accurately. I guess no, but I'm not 100 per cent sure.
64 The respondent also contended that Ms Durbock's view, expressed in her Report that there was nothing in the applicant's background that could provide any insight or assistance when deciding upon the causes of the applicant's breakdown in July and November 2007 was, "simply wrong". Ms Durbock, it was said had been prepared to completely discount the fact that the applicant always had a temper and had suffered a bout of reactive depression following the end of his second marriage. Ms Durbock had also failed to properly read and consider the statements with which she had been provided for the purpose of preparing her Report. These statements included statements by Detective Sergeant Timothy Pieper and Senior Constable Tanya Eade-Smith, the applicant's second wife.
65 It was also contended that Ms Durbock had engaged in improper back reasoning, that is, she appeared to embrace the view that if the applicant had problems with alcohol, memory or aggression, these were likely to be caused by his PTSD because persons with PTSD often or sometimes have such problems.
66 I propose at this point to deal with each of the respondent's contentions concerning Ms Durbock's Report and her evidence given at oral hearing.
67 First as Ms Durbock's CV shows she was an experienced psychologist at the time of her diagnosis, having obtained her qualifications in 1994 and having worked on a consistent basis in her practice from that time. Secondly her Report and her diagnosis cannot simply be characterised as being based upon a historical account provided to her by the applicant. As the Report clearly indicates Ms Durbock conducted a number of independent tests with a view to establishing whether the applicant met any of the diagnostic criteria for major depressive disorder, PTSD or alcohol abuse. The respondent's reliance in this regard on Peisley was not warranted. An issue in that judgment was whether there was sufficient evidence of provocation fit to go to a jury so as to reduce a charge of murder to manslaughter. Obiter findings were made by Wood J concerning the opinion of a clinical psychologist. In the clinical psychologist's opinion, the appellant could have suffered a dissociative disorder at the time of the offence. At the same time, however, the psychologist reported that the test results showed no signs of any such disorder. In the view of Wood J the report should not have been placed before the sentencing judge. The report Wood J observed was seriously deficient because the test results were nothing more than the history given by the appellant of the shooting and the report omitted earlier incidents when the appellant had shot his brother and had been convicted of street fighting. The clinical psychologist was also criticised by his Honour for crossing the barrier of his expertise and entering into the area of psychiatry. Moreover, the psychologist's opinion was criticised on the basis that it was unsupported by psychiatric opinion. The conclusion in the report as to a diagnosis, his Honour found, was imprecise, tentative and uncertain. That conclusion was expressed in the following terms:
It could well be ... indicative that he may have been experiencing a brief episode of depersonalisation neurosis.
68 In contrast, Ms Durbock's diagnosis was based on the results of independent testing. Her conclusions were not qualified but were supported by psychiatric opinion which was not the subject of challenge by the respondent.
69 Thirdly, there is no basis for the assertion that Ms Durbock's Report and the views expressed therein were not arrived at independently but rather, reflect the applicant's views after the applicant forwarded his comments to her following receipt of the draft report. The extract from the evidence (set out above) relied upon by the respondent in support of the assertion does not provide a proper basis upon which such a finding could properly be made.
70 Fourthly, the Commission was not aware of any inappropriate facial reactions or secretive smiles by Ms Durbock during her evidence at oral hearing. As to her "reluctant acceptance" that her Report was "seriously flawed" the respondent has not pointed to any specific references in the transcript in support of the proposition. The extract from the transcript relied upon by the respondent does not establish the proposition. In my view Ms Durbock endeavoured to give her evidence before the Commission reliably, truthfully and professionally.
71 Fifthly, it is not entirely accurate to describe Ms Durbock's Report as dealing with an "interface between PTSD and criminal offences". It was the applicant's conduct during the two incidents in July and November 2007 that was the focus of her report. That same conduct was before the respondent for consideration as to whether to remove the applicant under a s 181D Order. In any event the charges against the applicant had been dismissed before the s 181D Order was issued.
72 Sixthly, the fact that Ms Durbock could not recall whether she had assessed, examined or diagnosed PTSD in police officers or considered the relationship between horrific motor vehicle accidents and PTSD before diagnosing the applicant does not, of itself, support a conclusion that Ms Durbock was therefore inexperienced in the area of PTSD.
73 Seventhly, it is not entirely accurate to describe Ms Durbock as expressing a view that "nothing" in the applicant's background or relationship could provide any insight or assistance when deciding upon the cause or causes of the applicant's conduct during the two incidents. The Report contains no such unqualified view. In the Report Ms Durbock referred to the account given to her by the applicant of the period following his separation from his second wife, Tanya Eade-Smith, during which he was treated with anti-depressant medication. In the Report Ms Durbock expressed an opinion based on the applicant's history that he had had a "reasonably stable relationship history" prior to the onset of PTSD. In my view, this opinion was open to her. Tanya Eade-Smith's statement which formed part of the materials sent to Ms Durbock for the purpose of preparing her Report provided support for this opinion. It also provided support for her view that the applicant's untreated PTSD was a "major contributing factor" explaining his conduct in July and November 2007. The following extract from Ms Eade-Smith's statement illustrate the point:
While we were at Goulburn, Brad and I separated for personal reasons. I transferred to Batemans Bay. I commuted from Goulburn to the Bay for a few months. Then I moved to Braidwood because it was more central between Goulburn and the Bay. This allowed Brad to come and stay with Gracie when I was on night work. Despite the fact we had separated, we remained close friends and both wanted to do the best for Gracie as far as parenting was concerned.
I think it must have been around May or June last year that Brad got back-up lock-up keeper's job in Braidwood. He moved into the police residence at 174 Wallace St, Braidwood. In October last year I got the lock-up keepers job at Braidwood and moved into the adjoining police residence at 172 Wallace Street.
Since I have known Brad, he has always taken a keen interest in his personal appearance and physical condition. He has also taken great pride in his house and gardens - to the point of being anal. Everything had to be immaculate - from his clothes, to the cleanliness of things and making sure things were organised. He would always be up early doing things. It was like he always had a project going on. Brad would also take a keen interest in the welfare of his fellow employees and would speak up if he felt they were not being looked after by management.
I first noticed a change in Brad's personality the day after he attended a fatal motor vehicle accident on the Kings Hwy on 5 November 2006 (E29811855). The young bloke that was killed had been ripped to pieces. Brad came to see me and was telling me how bad the accident was. Brad said he thought the young bloke was alive when he first looked at him because he was sitting upright and his eyes were open. Brad said it felt like the boy kept staring at him the entire time he was there. This was the first time I have ever heard Brad mention an incident affecting him like that. Then he put on the 'tough guy' voice and said he was okay.
I think it was the next week that another bad head-on happened at the very same spot. I was the second car to arrive. I was on sick leave with a broken leg at the time. I was in my own car. Brad arrived soon after with Dean JAMES from Bungendore. The accident was right on top of the crime scene markings from the fatal the weekend before. Brad went really pale and I asked him if he was alright. Brad was taking his time putting his vest on. I was telling him about the accident and who the witnesses were. Brad turned around and said, "I don't think I can do this one. It's in the same spot as the last accident." I thought he was actually going to be physically ill. Then he said to me, "Oh, poor Dean. What a way to start your first shift." I asked him if he was right to do the job and Brad said, "I have to do it, I can't leave it to Dean." I realised the fatal accident must have had a significant impact on him.
I came back to work on restricted duties in January this year. I was the sector supervisor and called a meeting at Braidwood with the other sector officers. The meeting went quite well, but Brad got really vocal about the lack of support from management. He was saying things like, "They don't care about us." He was repeatedly venting what he perceived as a lack of support from management. I've never seen or heard Brad behave like that before. It was that bad that I spoke to him later and told him that I thought he needed to take some time off. I think it was either that day or the next shift that he went off on sick leave.
After he went off on sick leave, I received a phone call from Mr COMMINS. He told me he needed Brad's medical certificate by three o'clock that day or he would cut Brad's pay off. Brad and I were actually outside our family doctor's practice in Goulburn when he called. Our doctor is Paul FALK. After the consultation, I mentioned the phone call I had from Mr COMMINS and Brad went right off. Basically Brad was angry that he had been affected by something that occurred at work and that management were not interest [sic] in his welfare, just a piece of paper.
From then on I noticed a decline in Brad's work ethics and personal standards. He didn't seem to care about his job or himself. I would ring him at home during the day and he would still be in bed. Brad let the yard and the house go. It wasn't really bad, just not up to his usual standards. I also noticed he didn't take an interest in his animals any more. He had always been caring for them, making them something warm to eat, exercising them, that type of thing. Brad also likes to cook and has always enjoyed eating good food. The weekend before last, I went over and spoke to Brad. He put his arms around me and got really teary. He said, "I just can't get out of my own way." Brad was extremely sad - sadder than I have ever seen him about anything. I told him he needed to get some help.
74 The respondent also sought to place reliance with regard to this particular issue on the statement of Detective Sergeant Pieper which was provided to Ms Durbock, along with Senior Constable Eade-Smith's statement and others for the purpose of preparing her Report. Detective Sergeant Pieper's statement however describes the events of 21 July 2007. It does not touch on the applicant's history prior to that date.
75 Finally the respondent asserted that Ms Durbock had engaged in improper "back reasoning" with respect to the applicant's behaviour in the wake of the diagnosis of PTSD. In my view there is no substance to this assertion. As I earlier indicated, Ms Durbock's report was not based solely on the applicant's history but also on the results of independent tests conducted by her. Moreover, Dr White, the applicant's treating psychiatrist had arrived at the same diagnosis.
76 The respondent submitted that there is no probative evidence before the Commission that the applicant's unacceptable behaviour, could readily and reasonably be attributed to the PTSD suffered by him as a consequence of observing a number of serious motor vehicle accidents, most notably the accident of 5 November 2006. I cannot agree with the submission. It is against the weight of the evidence. A number of treating doctors, psychologists and one psychiatrist diagnosed the applicant as suffering from PTSD and a major depressive disorder. The applicant's illness was accepted by Dr White and the respondent's workers' compensation insurer as a "hurt on duty" work-related illness. Based on the evidence, which includes the statement of Senior Constable Eade-Smith, the inference is reasonably open that the applicant's conduct during the incidents of July and November 2007 can be traced to his exposure to the horrific motor vehicle accident on 5 November 2006, followed in rapid succession by a number of very serious motor vehicle accidents, one of which occurred in the same location as the 5 November accident. Senior Constable Eade-Smith, who had close contact with the applicant during this time said she observed a change in the applicant's personality the day after he attended the 5 November 2006 accident. The applicant's friend and colleague Paul Baragry also noticed that the 5 November accident had had a significant effect on the applicant. So concerned was Mr Baragry that he forwarded an email to Superintendent Commins alerting him to what he observed was the applicant's uncharacteristic behaviour. Dr White's conclusion was that the applicant's conduct during the period 21 and 22 July 2007 (the siege), "was directly the result of the effects of his PTSD and associated anxiety and depression". Dr White's evidence was unchallenged. There can be no doubt on the evidence that Dr White was an experienced psychiatrist with particular expertise in diagnosing mental illness in serving members of the police force. Based on those matters, I accept Dr White's conclusions in their entirety. Ms Durbock's conclusion, which I also accept for reasons earlier set out, was that the applicant's "untreated PTSD was a major contributing factor to the offences". Ms Durbock's reference to the "offences" was a reference to the applicant's conduct during 21 and 22 July and 24 November 2007. It is abundantly clear from her evidence that she considered that the applicant's mental illness was the result of his exposure to the motor vehicle accident of 5 November 2006 followed by several other serious accidents, and that the applicant's mental illness in turn was a decisive factor which motivated his misconduct on the dates in question.
77 It is also significant that the applicant's failure to attend to the Martin and Kolber matters (the basis of the respondent's "competence finding") occurred during the period following the 5 November 2006 accident. It may be inferred from the mental health reports and the anecdotal evidence of the applicant's colleagues, in particular Senior Constable Eade-Smith, that the applicant's declining mental state was the prevailing reason why the applicant failed to attend to those matters in time. Senior Constable Eade-Smith said in her statement, for example, that after the applicant returned to work on restricted duties in January 2007 she noticed a decline in his work ethics and personal standards, matters she ascribed to his mental state as well as to his perceptions concerning a lack of support from management. These matters as well as the matters I have earlier referred to on this issue all serve to substantially mitigate the seriousness of the applicant's failures which formed the basis of the respondent's competence finding.
78 The respondent also sought to rely on what was characterised as earlier evidence of misconduct and an unacceptable attitude to the police force managers which it was said had manifested well before 5 November 2006. The basis for this reliance was that the earlier evidence tended to reveal that the applicant's attempt to explain his misconduct in July and November 2007 on his PTSD which was triggered on and from 5 November 2006, was untenable.
79 This evidence was said to be found in summaries from C@tsi files which contained details of previous complaints or allegations made against the applicant. These summaries formed part of the CCS provided to the applicant at the time he was issued with the "show cause" Notice under s 181D(3)(a). The material relied upon in my view does not assist the respondent. It was not relied upon by the respondent in his consideration of whether to remove the applicant under the s 181D(1) order. The material also consists of very brief summaries. The accuracy of the information cannot therefore be properly or reliably ascertained or verified without the benefit of more comprehensive information including the full factual context being placed before the Commission. Moreover the content of the summaries was not the subject of further evidence before the Commission. Many of the matters amount to no more then allegations or complaints for which the applicant either received counselling or no further action was required, or in one instance (October 2001) was dealt with through performance monitoring.
80 The respondent sought to draw an analogy between the medical evidence in the present case and the medical evidence before the Commission in Johnston v Commissioner of Police [2007] NSWIRComm 73 (affirmed on appeal in Johnston v Commissioner of Police (2007) 169 IR 301) and Mahoney v Commissioner of Police [2003] NSWIRComm 67. According to the respondent the medical evidence adduced in Johnston and Mahoney constituted detailed analyses undertaken by the forensic psychiatrists. This medical evidence, it was said, stood in contrast to the "significant and unsubstantial conclusions" expressed by Dr White and the "entirely inadequate" report of Ms Durbock.
81 As I have earlier sought to make clear, I am unable to agree with the respondent's characterisation of the respective conclusions reached by Dr White and Ms Durbock. The respondent elected during the proceedings not to challenge Dr White's conclusions. It would be immediately apparent from a reading of the decisions in Johnston and Mahoney that the applicants in those decisions saw their treating psychiatrists on one occasion only. It should also be borne in mind that the medical evidence led in Johnston was qualified, that is to say, Dr Westmore, a forensic psychiatrist, gave evidence that it was "reasonable to assume" that Mr Johnston's depression also played "some role" in the impugned conduct. Moreover Dr Westmore's assessment was predicated upon the condition that the applicant had exhibited no prior inappropriate behaviour as a police officer. Other probative evidence led during the proceedings, however, revealed that Mr Johnston had engaged in conduct similar to the conduct which formed the basis of his removal, prior to the onset of his depression.
82 On 28 February 2008 the Commission's Advisory Panel (CAP) recommended to the respondent that the applicant be removed pursuant to s 181D. Mr Bruce, who was present at that meeting recorded in his notes that the CAP at the same time decided to refer the applicant to HealthQuest for a medical assessment. On 14 April 2008 Superintendent Commins commenced the process for the applicant to be referred to HealthQuest with a view to him being medically discharged. The applicant attended the HealthQuest appointment on 29 May 2008. HealthQuest delivered its Report on 30 June 2008. The Report, entitled "NSW Police - Assessment of Fitness to Continue - Final Report in accordance with Crown Employees (Police Officers Death & Disability) Award 2005" contains the following conclusions and determinations:
DISCUSSIONS & CONCLUSIONS
- DIAGNOSIS: The following conditions, which have been diagnosed in this case, are relevant to fitness for duties as a police officer:
· Post Traumatic Stress Disorder
· Major Depressive Disorder
- CURRENT CAPABILITY & PROGNOSIS: The following summarises HealthQuest's assessment of the officer's current work capabilities and prognosis for return to work within NSW Police Force as an operational police officer, as well as the long-term prognosis:
· CAPABILITY: Unfit for any duties at this time.
· RETURN TO WORK: Unfit for duties as an operational police officer
· LONG TERM PROGNOSIS: Permanently unfit for duties as an operational police officer.
DETERMINATIONS (in accordance with s 9.3 of the Award)
- Re: PARTIAL PERMANENT DISABILITY -
· I find that this Officer has a PARTIAL PERMANENT DISABILITY, in terms of the Award, because of the following health conditions: Post Traumatic Stress Disorder, Major Depressive Disorder
- Re: TOTAL PERMANENT DISABLEMENT (refer to detailed definitions in Award) -
· NOT APPLICABLE. I do not find that this Officer satisfies the definition of Total Permanent Disablement under the Award.
83 A copy of the Report was forwarded to the Medical Discharge Co-ordinator, NSW Police Force, Workers Compensation and Review. Mr Bruce gave evidence that he received the Report in the first week of July 2008. It is not clear on the evidence however whether the respondent was made aware of the Report prior to his decision to remove the applicant under s 181D(1) of the Act.
84 The Statement of Reasons incorporates several references to the fact that the applicant was suffering from PTSD and a major depressive disorder at the time he engaged in the impugned conduct on 21 and 22 July and 24 November 2007. The respondent appeared to accept in the Reasons that the applicant was suffering from a mental illness during the events of 21 and 22 July 2007. At no stage however does the respondent in those reasons consider whether the applicant's psychological illness provided an explanation or was largely responsible for, or was a "major factor" contributing to that conduct. I am unable with any reasonable degree of certainty to ascertain the extent of the medical information the respondent had at his disposal at the time the decision was made to remove the applicant. The respondent may only be obliged to take into account in his Reasons the documents and other material, including any written submissions from the applicant, with which he has been provided. The Commission on the other hand is not so constrained.
85 The decision of the Full Bench in Hosemans v Commissioner of Police (2004) 138 IR 159 at [134] is authority for the proposition that the Commission's task on a review of the respondent's decision to remove an applicant is to make a fresh and independent decision based on all of the material before the Commission and not merely a review of whether the respondent's decision was correct at the time it was made (see Commissioner of Police v Dobbie (2006) 157 IR 44 at [29]).
86 The approach in Hosemans was recently affirmed by the Full Bench in Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 at [11]. Although the comments in that decision were made in the context of the Commission's approach when considering a challenge to the removal of police officers based upon procedural grounds, the Full Bench endorsed the approach set out in Hosemans (No 2) as relevant to the Commission's consideration of the merits or substance of an application for review: