19 There are a large number of documents that relate to this matter, which are included in the bundle of documents known as the Commissioner's Confidence Submission, which I have referred to as the CCS. The CCS are documents which are prepared by officers within the New South Wales Police Force and which are given to the Commissioner for his perusal and consideration at the time that he determines firstly to issue a notice to an officer under s 181D(3)(a) and secondly when he considers whether or not to remove the officer from the police force.
20 The first document with which I shall deal appears to be a summary document prepared internally within the police force which, after referring to details of the applicant, contains a synopsis that is in the following terms:
"On 16 April 2006, Sergeant Shane Hessenberger and several other members of the Moama police, along with several civilians, attended a farewell party for Sergeant Hessenberger on premises adjacent to Moama Police Station.
The party was centred around a fire burning in a fire drum. All police officers were off-duty and consumed varying amounts of alcohol. It appears that the alcohol was stored in a fridge on the premises of the Moama Police Station. The Moama officers in attendance were Sergeant Hessenberger, Senior Constable John Croker, Senior Constable Scott Harper, Senior Constable Phillip Cookson and Senior Constable Wayne Sorensen. Various other persons were also in attendance.
During the course of the evening, it appears that a bus pulled up near the Moama Police station. The bus driver, a Mr Barry Webb, approached the group near the fire. It appears that Mr Webb complained that a passenger on the bus (now known to be an intellectually disable man, Mr SM) would not get off.
By this stage, Sergeant Hessenberger has conceded that he was intoxicated.
Sergeant Hessenberger went to the bus and removed Mr SM. In doing so, it is alleged that Sergeant Hessenberger used improper and inappropriate physical force both in removing Mr SM from the bus and once he had already been removed. It is also alleged that Sergeant Hessenberger conducted himself in an inappropriate manner towards Mr SM, including in his use of language.
Sergeant Hessenberger then returned to the fire.
Senior Constable Cookson retrieved Mr SM's bag from the bus and also returned to the fire. It appears the Senior Constable Sorensen then threw the bag into the fire. It appears that the bag was then retrieved from the fire by Senior Constable Harper, but then returned to the fire by Senior Constable Sorensen and Senior Constable Harper. It was destroyed.
Despite being the senior officer present, Sergeant Hessenberger did not report the conduct of other officers in destroying Mr SM's bag in the fire.
An investigation into the incident was commenced on 18 April 2006, with Inspector Wholohan telephoning Senior Constable Sorensen at the Moama Police Station in order to make enquiries about Mr SM's bag.
On 19 April 2006, Sergeant Hessenberger conceded that he disposed of the ashes from the fire, along with Senior Constable Harper and Senior Constable Croker. It is alleged that, prior to doing so, Sergeant Hessenberger made a comment to Senior Constable Croker in words to the effect of 'We have got to get rid of the fire bucket and remains before anybody has a look at it' .
It is also alleged that Sergeant Hessenberger encouraged Senior Constable Croker to tell investigators that only Moama police were at the gathering on 16 April 2006 (when, in fact, a number of other persons, including civilians, were present).
On 7 June 2006, Sergeant Hessenberger was charged with Assault Occasioning Actual Bodily Harm under section 59(1) of the Crimes Act 1900. On 25 June 2007, the charges were dismissed at Wagga Wagga Local Court."
21 There then follows what is called a "Detailed Narrative" within the summary document that sets out the facts with respect to each of the allegations. Those facts are stated in narrative form, with reference to statements made by a number of persons to investigating officers; in some cases they extract material from those statements and refer also to evidence given in the proceedings before the Wagga Wagga Local Court. The statements made to investigating police officers are contained within the CCS and there is also included a transcription of the evidence given by the applicant before the Wagga Wagga Local Court. In this regard, I note that the applicant declined to provide a statement to investigating police officers on the grounds that he wished to avoid any suggestion of self-incrimination, although he did later offer to be the subject of a directed interview. I shall refer to this aspect later in these reasons for decision.
22 I shall now summarise the information contained within the CCS as it refers to this first allegation. There is no controversy that on Sunday 16 April 2006, police officers who were stationed at the Moama Police Station, other police officers and some persons who were not police officers attended an area adjacent to the police station at Moama and adjacent also to the Moama Courthouse where a barbeque and fire bucket had been set up. The purpose of the occasion was a farewell to the applicant who was being transferred to Wagga Wagga. The attendees began gathering between 5:30 and 6pm that evening. Most, if not all, were drinking alcohol, and most of these were drinking full strength cans of Victoria Bitter beer. At about 7:30pm, most of those attending ate a meal that had been cooked on the barbeque. After that, and for about half an hour, there were some speeches and presentations made to the applicant. Some time at around 9pm, a large bus pulled up near the police station. Most of the persons attending the function said that the driver of the bus, a Mr Barry Webb, came over to the area where these persons had gathered. The preponderance of the evidence given by those attending, by way of statements included within the CCS documents, is that Mr Webb said to the persons assembled words to the effect that he was a bus driver and that he had a passenger suffering from a mental disability on board who had nowhere to go but would not get off the bus. The evidence is to the effect that Mr Webb was told by a number of persons that there was no police officer on duty at Moama and that he should go to the Echuca Police Station nearby and they would be able to assist him. The evidence is that Mr Webb did not accept this suggestion (and some say he resisted it). All agree that Mr Webb then lit a cigarette and stayed around the fire apparently waiting for something to happen.
23 Mr Webb in his statement to the police gave a different account. He first noted that he thought that the passenger was suffering from "some type of mental disability". He stated, however, that when he spoke to the persons around the fire, he was asked whether he had any problems on the bus but replied in the negative and emphasised that all he wanted them to do was find the passenger a bed for the night. Whatever is the correct version of what was said specifically by Mr Webb, the preponderance of the evidence is to the effect that the continued presence of the passenger was a problem for him and that he wanted the passenger off the bus. I emphasise that not all of the persons who gave statements to the investigating police officers, which are contained within the CCS, were serving police officers.
24 There is also consensus that within a few moments of Mr Webb arriving the applicant left the group and walked to the bus and that Senior Constable Cookson followed him.
25 In terms of this allegation, there are only three persons who can directly give evidence about what happened. These are the applicant, Senior Constable Cookson and the passenger on the bus, who is referred to in these reasons for decision as SM.
26 On 20 April 2006, some four days after the incident, Senior Constable Cookson made a statement. He said that he decided to follow the applicant to help him because the bus driver had said that "the bloke was a bit of trouble and not mentally right." As he approached the bus, he could hear the applicant yelling out "Get the fuck off the bus", saying this two or three times. He saw the applicant wrestling with the passenger who was resisting his removal from the bus. He said the applicant managed to get SM to the stair area and he pushed him out the bus door, onto Senior Constable Cookson causing him to fall backwards onto the grass. He then saw the applicant drag SM across the road to the driveway of the police station, yelling at him.
27 Senior Constable Cookson then said, "Once the two of them were standing on the grass next to the driveway, I saw (the applicant) slaps this bloke a couple of times to the head area, and kick him in the legs. (The applicant) continued to yell at him, and then walked away back up the driveway." Senior Constable Cookson said that he had a conversation with SM who said that he wanted to be left alone and then began to walk up the street off into the night.
28 Later in the statement, Senior Constable Cookson elaborated on physical contact with SM by the applicant. He said that the applicant "used an open right hand and slapped him to the side of head. It was like he was giving him a red ear…The strikes were hitting him on the right side of the face. I think he would have hit him about three times…(The applicant) also kneed the bloke a couple of times as well to his upper thigh area." Senior Constable Cookson said that he was about ten feet away at the time and could see what was happening "pretty clearly".
29 He said that there was no need for him to render assistance to the applicant because SM was not fighting back.
30 He described SM as being about 180cm with medium to solid build.
31 Senior Constable Cookson was interviewed again on 11 September 2006. This was a "directed" interview that gave some protection to him in terms of its use as evidence in criminal or civil proceedings instigated against him "or any other person connected with this matter."
32 I do not perceive that there is anything in this statement that impacts upon the version of events previously given by Senior Constable Cookson.
33 The transcript of the evidence of the applicant before the Local Court to which I am about to make reference is that which is contained in the CCS documents. The applicant took issue with the accuracy of the transcript and there is another version that has been marked up by him so as to reflect what he understood to constitute an accurate record of the proceedings in that Court.
34 The applicant said by the time that he went to the bus to endeavour to assist in removing the passenger, he was intoxicated and had had about eight or nine beers. The totality of the evidence is to the effect that he had been drinking 375ml cans of full strength VB beer.
35 The applicant said that when he first saw SM he was towards the front of the bus. He yelled at him to get off the bus but SM retreated about a third of the way down the aisle. He went to the top of the platform and yelled that he was a policeman and told SM to get off the bus. He said that SM replied: "No, you go away." The applicant said that he then confronted SM, grabbed him by his clothing, turned him towards the front of the bus and started moving him forwards. He said that SM resisted, grabbing hold of the seats. He said that SM was taller than him and that he was "pretty strong". At the time that SM was at the top of the steps, the applicant saw Senior Constable Cookson at the end of the steps, he took hold of SM and pulled him down which broke the hold of SM on the railing of the steps. He said that Senior Constable Cookson pulled SM from the bus. When the applicant left the bus he said that he tackled Senior Constable Cookson to the ground because he thought that Senior Constable Cookson had used undue force.
36 He then prevented SM from walking back towards the bus and told him to "Fuck off".
37 During the course of his evidence given in the Local Court on 27 June 2007, the applicant denied a version of events that had been given by Senior Constable Cookson in the Local Court proceedings. He denied that he had struck SM. He denied that he had kneed SM or kicked him and said that after he had got off the bus he had never been close enough to SM to have had any physical contact with him.
38 It was the evidence also of the applicant that Senior Constable Cookson ordinarily wore glasses, but that he was not wearing glasses at the time that the incident with SM occurred.
39 The general tenor of the evidence is that after the incident with SM, the applicant returned to the gathering and made a comment, heard by some of those present, to the effect that he had had to get the passenger off the bus.
40 SM made a statement to police on 22 April 2006. He said that he had been staying with his aunt near Melbourne until Easter Sunday when he went to "the city" and asked for some help at St Paul's Cathedral where he was given $20. He then caught a train to Bendigo and then a bus to Moama, arriving on the bus at about five to nine pm. The bus driver stopped at the Moama Police Station and whilst he was stopped there, SM said that: "Two drunken strangers entered the bus. I was on the passenger side of the bus at the front near the door. I could tell they were drunk by their tone of voice." He said that they looked "to me like aboriginals because they were dark-skinned and because the one that talked, talked different to us." He then said that one of them came onto the bus, grabbed him around the throat with both hands, dragged him out of the seat to the second person, he was dragged off the bus and across the road to the police station side of the road. He then said that the first person who had come onto the bus had knocked his glasses off his face and punched him in the face, in the eye, that his glasses had fallen off and that he was then kicked in the legs three times. He then walked to a house in Moama, which he took to be a safe house where he was taken to Echuca Police Station and then to Echuca Hospital. When he left the bus, he left his bag containing his personal possessions and, in particular, his medication on the bus.
41 In the statement, he elaborated on the injuries that were to his left eye socket, left knee and thigh and the back of his right calf.
42 That is the totality of the evidence concerning this allegation contained within the CCS document.
43 I now turn to the applicant's response document, which was provided to the Commissioner before he made his decision to remove the applicant from the police force.
44 In the response document, the applicant denied in a general way using improper and inappropriate physical force in removing SM from the bus and denied slapping or otherwise hitting him and denied using a knee strike on him. The applicant admitted that he swore and was rude to SM in asking him to leave the bus and he expressed regret for this conduct but said that it was "in line with officer survival. Moreover, at the time I was suffering symptoms of post-traumatic stress disorder which impeded my ability to remain calm under pressure."
45 The applicant then referred to the proceedings in the Wagga Wagga Local Court and to the fact that the charges against him had been dismissed and that the evidence of SM had been found to be "unreliable". He also referred to a finding by the Magistrate that Senior Constable Cookson's evidence had diverged from a statement that he had previously given to investigating police officers.
46 The applicant then referred to the transcription of the reasons for judgment of the Magistrate, which were contained within the CCS, that he said were of poor quality and that, having obtained the tape of the proceedings and having had the Magistrate's findings transcribed himself, he invited the Commissioner to read the transcript in its entirety. That transcript of the Magistrate's reasons was attached to the response document. He said that this more accurate transcription of the Magistrate's findings presented a relevantly different picture to that contained within the version attached to the CCS. I shall refer to this aspect later in these reasons for decision.
47 The findings of the Magistrate, as set out in [39] of the applicant's response, were to the following effect:
"Mr Cookson states that Mr Hessenberger, this is in Mr Cookson's statement, slapped Mr SM at least on three occasions, kicked him but then reduced to a knee or variance of a kneeing. Mr Cookson says he is a person that requires glasses at night. He made a concession perhaps the slapping did not take place, he is certain he did not hear any slapping, made a concession that it could have been that Mr Hessenberger may have been shooing him from the scene using terminology which has been expressed on a number of occasions. With that he says that at first instance it was between seven and ten metres from the incident as occurred. Later in cross examination he placed himself in a position where he was walking toward Mr SM and Mr Hessenberger placing himself presumably between zero and seven to ten metres. One would anticipate that in the early hours of the evening on that street in Moama at night no other persons then the obvious assumption is that if such had taken place some would have heard such a thunderous (sic) (inaudible) taking consideration that at seven to ten metres that there is no evidence that there is evidence that Mr Cookson heard nothing. Of course his level of eyesight is definitely in question that night in terms of kneeing (inaudible) making the observation, Mr Longueville has made it gain by reasonable concession by Mr Cookson that he could not say if there was any contact by reasonable means…
The defence concludes having made the observation as to the evidence given under oath by the police officers and the sergeant. The desire of misfortune and need for protection that police officers who are in a position (inaudible) are placed and may be prudent to the charge Mr Hessenberger faces and I reindicate that the issue of the assault matter is the same. The Crown will find it extremely difficult to establish, based upon the possible change of position by Mr Cookson, or to be generous to Mr Cookson, simple mistake he has made and further in respect to the man the possible change of position of Mr Cookson or possible mistake he has realised he has made."
48 As is obvious from the above, the learned Magistrate has observed that Senior Constable Cookson has given evidence before him that is contrary to that contained within his statements.
49 The transcript of the evidence given in the Local Court became evidence in these proceedings and the applicant's case was based in part on matters contained within that transcript.
50 The applicant added that, with respect to the events that occurred on the evening of 16 April 2006, that he believed: "that I conducted myself whilst under pressure, in accordance with my training and to the best of my ability in the circumstances as I perceived them to be at the time."
51 The applicant's response annexed a report of a psychologist, Karen Myers, and reports of Dr Gregory Weppner. He said that he had been diagnosed as suffering from post-traumatic stress disorder which was work related, that he had been prescribed certain medication to alleviate his symptoms but that he continued to suffer nightmares, panic attacks, anxiety and depression.
52 The report of Ms Myers is dated 8 December 2007. She said that the applicant was first referred to her for psychological assessment on 27 July 2006. She saw him once in August 2006 and twice in October 2006. She then saw him on seven occasions in 2007, the last being 12 October.
53 When first seen, the applicant had recently been suspended following the police investigation into the incident of 16 April 2006. He told Ms Myers that "the suspension and subsequent investigation was causing him significant distress…"
54 Included within the work history which the applicant gave Ms Myers was a reference to an incident that occurred in October 2005 at the Moama Bowling Club. The applicant was required to confront a young person who was intoxicated and had a knife who first tried to run him over on a motor bike and then came towards the applicant having pulled a knife out of his backpack. Although the applicant was able to disarm this person, about two weeks later he began to "relive the event" and appreciated at that stage the danger that he had confronted. This led him to increasing consumption of alcohol "in an attempt to calm himself". Eventually, he said, he was drinking ten stubbies a day but at the time when he initially saw Ms Myers he was consuming four to five stubbies a day. It was this incident that, the applicant said, led him to apply for a transfer to Wagga Wagga, which successful transfer was the catalyst for the celebration and the sequelae of which has led to these proceedings.
55 Ms Myers diagnosed a post-traumatic stress disorder with a secondary diagnosis of clinical depression.
56 The applicant also gave Ms Myers a history of two incidents involving the deaths of small children, which he said impacted upon him after the birth of his first child and led to heightened anxiety. There were other incidents that the applicant recalled, including attending a fatality occurring on the rail tracks. He told Ms Myers that when he went to check for vital signs, he had inadvertently pulled the victim's arm off. He said, "You can never forget something like that."
57 Ms Myers said that in her opinion the applicant's symptoms arose due to his exposure to a range of traumatic incidents occurring during his career with the police force.
58 The applicant first saw Dr Gregory Weppner, psychiatrist, on 5 May 2006, having been referred by a general practitioner at Wagga Wagga.
59 I do not find it necessary to relate in detail all of the history given to Dr Weppner by the applicant for the purpose of these proceedings. However, the applicant did tell Dr Weppner about the circumstances in which he became exposed to what must, on any account, be regarded as excessive consumption of alcohol. Dr Weppner said: "Mr Hessenberger told me that he was only an occasional drinker until he attended the police academy where alcohol was cheaply and freely available and part of the culture. They would go out drinking on Thursday, Friday and Saturday night. When he joined the police force, it was routine procedure to go for drinks after each shift. Over the last five years he was drinking up to eight to nine cans of beer and described increasing tolerance for alcohol, since July last year he has been drinking four cases a week. He has now recently managed to reduce it to four cans of XXXX Gold a day."
60 The reports of Dr Weppner date from 10 May 2006 to 29 September 2007. Dr Weppner diagnosed the applicant as suffering from post-traumatic stress disorder, prescribed a regime of medication and recommended "further psychological input". The applicant's problems appear to be related to a variety of matters including work incidents, the stress of the sequelae of the incident of 16 April 2006 and some matters of a family concern.
61 To the extent that Dr Weppner throws some light on the applicant's state of mind as at 16 April 2006, it is, as expressed in his report of 10 May 2006, that the applicant was "suffering from almost a dissociative state that has been finally triggered by criminal charges on the background of a miscarriage and traumatic events at work, including the investigation of two SIDS cases…"
62 I now deal with the evidence given in these proceedings about this first allegation.
63 Senior Constable Cookson gave evidence in these proceedings. He was taken to the statement that he had given to the investigating police officers, the details of which I have previously set out. He was then referred to the evidence that he had given in the Local Court. There were clear inconsistencies between that evidence and the statements made by Senior Constable Cookson. Apart from some matters of lesser significance, Senior Constable Cookson said in cross-examination in the Local Court proceedings that although he was not wearing his glasses he did see the applicant raising an open hand whilst standing near SM. However, although he was seven to ten metres away, he saw the applicant's hand go up towards SM's head but he did not actually see any contact being made. It had previously been put to Senior Constable Cookson that it may have been that the applicant was merely shooing SM away rather than going to strike him. He initially denied that this was the case but under further cross-examination agreed that that was possible.
64 Senior Constable Cookson also agreed that at the time that the applicant's hand was raised towards SM, SM was facing away from the applicant and with his back towards him. If the applicant had used his right hand to strike SM's face, it would have struck him on the right side of the face. (This is a significant matter, because photographs show that SM had suffered an injury to the region of his left eye.)
65 Senior Constable Cookson was cross-examined also about whether or not the applicant had kicked SM. He said it was "a knee shot" and not a kick. Senior Constable Cookson elaborated by saying that any reference in his statement made to investigating officers to the effect that the applicant had kicked SM was incorrect. His reference to the use of the knee was a reference to a police manoeuvre that is taught to police officers.
66 In explanation about the inaccuracies that Senior Constable Cookson was referring to in the statements that he originally made, he said that making such a statement "was probably the most difficult thing I have done in terms of policing."
67 In evidence given in these proceedings, Senior Constable Cookson was asked to explain the inconsistency between the evidence given by him in the Local Court and that contained in his statements made to the investigating police officers. His explanation was:
"I suppose he can only liken it to the fact that as a police officer I have witnessed many assaults, whether I have been in the police car or have been walking, and you can't - you may see an assault occur but you won't see the actual contact or you won't hear the contact being made but you can tell by the actions of the people involved that some conflict has occurred; and I guess you rely on the victim of that assault to say to you, yes, that punch did connect with me. I suppose that is what I am trying to relay there. I can't say conclusively that the contact was made but, given the force of the blows and the proximity to which I was and the reaction in relation to the when the blows took place, it is not that he didn't scream, I never said that I think, he made a noise, it was 'Hey', or, 'Oh' or something along those lines, and that is how I came to that conclusion."
68 I do not accept the explanation given by Senior Constable Cookson as being credible. In my opinion, the evidence given by him in the Local Court is irreconcilable with the clear statements made by him to the investigating police officers. Even if he was subjected to rigorous cross-examination in the Local Court proceedings (and part of the cross-examination may be regarded in this way), I would not expect a police officer of 14 years experience to have succumbed to cross-examination in the way revealed by the transcript of evidence. This leaves me with the choice of either disbelieving everything said by Senior Constable Cookson or making a determination about which of his versions is more likely to represent the true situation. There is no evidence that Senior Constable Cookson was badgered in any way by those who took the statements from him although he did say in cross-examination in the Local Court proceedings that he found the situation difficult and unpleasant, a reaction that is understandable in all the circumstances.
69 I cannot conceive that Senior Constable Cookson would have any motive to lie to the investigating police officers. He might conceivably have a motive to change his story in the Local Court proceedings, which involved criminal charges being brought against the applicant, with a view to protecting the applicant in some way. However, there is no evidence to support any such conclusion and if I were to proceed on that basis it would involve a certain amount of speculation on my part. On balance, I consider it more likely that the version of events given by Senior Constable Cookson to investigating police officers represents what he knew about the incident.
70 The applicant was cross-examined in these proceedings about the circumstances in which he entered the bus. He said that all he knew was what he had gleaned from what he had understood Mr Webb to have said, namely that there was a person on the bus who was "a mental case" and that he would not get off the bus. In response to this, the applicant said that he went to the bus to get the passenger out. At the time that he entered the bus the interior lights were not on, although there was some light apparently provided by street lighting outside. The applicant was not dressed in police uniform but was wearing casual clothes and a baseball cap. He yelled out to SM in a loud voice and ordered him off the bus, telling him to "Get the fuck off the bus". He did not show SM any police badge but told him he was a police officer. He did not attempt to engage SM in any conversation, nor did he attempt to discuss with him whether he was prepared to get off the bus and, indeed, what SM's intentions were generally. He said that it did not occur to him at the time that SM may have been frightened.
The evidence of SM