Byrne v Australia Airlines Limited

Industrial Relations Commission (NSW)|2016-03-21|Before: Tabbaa AM

Ms E Raper Mr Watts File Number(s): 375379 of 2015

Background

Mr David Luke Cottrell (the applicant) commenced a Diploma in Policing Practice in 2007 and completed his testing on 28 August 2008. He commenced duties as a Probationary Constable on 29 August 2008 and was stationed at Hurstville Police Station in the St George Local Area Command (LAC) on general duties. He rose to the rank of Constable Grade 3 by 2011.
Mr Cottrell developed a relationship with Mr Charlie Ghassibe, a tow truck driver from St George Towing, over a period between 2009 and 2011.
Another police officer, Constable Andrew Vrahas, was friendly with Mr Ghassibe in that they had a common interest in a car club and met socially at car related events and also for coffee.
Mr Ghassibe was made redundant from his job on 31 August 2011.
In or about September 2011, there was some friction between rival tow truck operators in the area over jobs. A police officer (Bullock) reported that an allegation had been made by a tow truck operator, Michael Susac, that Charlie Ghassibe had been receiving tip offs of accidents from two police officers, namely David Cottrell and Andrew Vrahas.
Mr Susac was interviewed by the Professional Standards Unit (PSU) on 3 November 2011 during which he denied making the allegation but gave an indication that Mr Ghassibe was particularly close to a police officer.

The Evidence

Mr Cottrell recalled being intimidated by a reprimand he received from Commander Barry in late 2009 for spending approximately 3-4 hours at a more vehicle accident site waiting on a tow truck to arrive and clear the road. He was advised that there was no one to attend to a robbery that had taken place. He was cautioned not to let it happen again. He undertook to take positive steps to ensure that he was able to clear accident sites without delay.
Mr Cottrell said he approached Mr Charlie Ghassibe of St George City Towing the day after as that firm attended a majority of accidents within the Hurstville Local Area Command (LAC) and questioned him as to why the firm had taken so long to arrive at the scene of the accident the day before. Mr Ghassibe had advised him to let him know if he got stuck again. From then on, he would text Mr Ghassibe the address of the accident site using his mobile telephone if no tow truck was at the site when they arrived. Occasionally he texted Mr Ghassibe when it was obvious from the detail provided over the radio broadcast that a tow would be required. He said that he did not text Mr Ghassibe each time he attended an accident scene.
He described Mr Ghassibe as a "work tool" he used to assist Police to ensure the timely removal of cars from accident scenes to promote the free flow of traffic and increase the speed and efficiency of jobs. He praised Mr Ghassibe for providing excellent service in that, even if he did not get a tow from that incident, he would still assist by sweeping the glass off the road so the traffic could be cleared.
Mr Cottrell agreed, during cross-examination, that the Commissioner's confidence submission contained State Electronic Evidence Branch (SEEB) extracts containing a sample of text exchanges between himself and Mr Ghassibe between 2009 and 2011 downloaded from his iphone by NSW Police. He also agreed that the extracts did not contain all of the exchanges that they had. The applicant also agreed that the large document he was shown contained the complete download of the entirety of his text messages.
The applicant was shown a number of downloads obtained from the State Electronic Evidence Branch (SEEB). He agreed that that those were all text messages he received from Mr Ghassibe on 1 June 2010 and his responses. He acknowledged that where the word "yes" appears next to an entry, it indicated a deleted text message that had been recovered.
Mr Cottrell agreed that the recovery was not perfect in that not all deleted messages that had been received from or sent to Mr Ghassibe were able to be recovered. He also accepted that the times that appeared on those records were in Greenwich Mean Time - approximately 11 hours behind Australian time, depending on daylight saving.
Mr Cottrell received his base salary while he was on suspension for a period of about 2.5 years. He stated in his statement that his earnings were reduced from $1500 down to $1000 per week. In addition, he had lost the opportunity for promotion to higher ranks during that period. He agreed, during cross-examination that the figure was wrong but could not explain why except perhaps it should have been a reduction of $200 per fortnight and not per week. He agreed that he was reduced approximately $80 per week plus overtime, public holidays and additional shifts. He agreed, when shown the records, that he had only done two hours of overtime on two occasions pre-March 2012. When taken to his shift allowances, the applicant agreed that he did not know why he quoted the loss that he did given that his shift allowance amounted to approximately $81.85 per week in the 12 month period from 1 November 2010 to 1 November 2011.
The documents he produced under summons contained details of telephone calls between him and Mr Ghassibe also for the period September 2009 and March 2011.
The applicant conceded that he was aware that the subject of the extent of his association with Mr Ghassibe was the subject of scrutiny by the Commissioner of Police and therefore knew that he had to set out, for these proceedings, what he said occurred between him and Mr Ghassibe for the Commission's consideration.
The applicant agreed that, as a Police Officer, he was obliged to comply with the Police Code of Conduct. He also accepted that it was incumbent upon him to know and comply with policies, procedures and guidelines that related to his duties. He further agreed that, throughout his employment, he was aware that NSW Police took conflicts of interest very seriously and that he needed to be capable of identifying and reporting conflicts of interest and to be able to void placing himself in a position where there was an actual or perceived conflict of interest.
The applicant agreed that he was aware of the respondent's "Conflicts of Interest Policy and Guidelines" and, in particular, the section dealing with "Identifying and avoiding conflicts of interest". In that regard, the applicant made certain admissions which I will refer to later in the decision.
Mr Cottrell denied any knowledge of Mr Ghassibe being involved in an investigation in relation to an alleged assault against a rival tow truck company in September 2011.
In relation to the provisions of the Code of Conduct, Mr Cottrell accepted that:

A police officer has an obligation to not disclose confidential information to members of the public. Whilst he was not aware of it at the time, he is now aware that an article was published in the Police Weekly in 2008 about the risks for police officers who are approached by third parties to try and get access to that encrypted information;
An employee of the NSW Police Force must not make improper use of their position in relation to NSW Police information or resources;
If he had a relationship with Mr Ghassibe whereby he provided him with information for commercial advantage by virtue of their friendship, that would constitute an improper use of his position; and
The police must be seen to be impartial in the exercise of their duties and not favouring local businesses because that would give rise to actual bribery or corruption.

The applicant agreed that the messages he sent to Mr Ghassibe about accidents were based on the police radio broadcast on the VKG channel, access to which was only available when he was on duty.
The applicant also agreed that whilst in employment he was required to comply with the standard operating procedures at Hurstville which, in 2009, included roster tow books for contract tows. The document was initialled by him on 17 October 2013, the day of his directed interview. The procedures require that when police are at the scene of a motor vehicle accident that requires a vehicle to be towed, then the requesting officer must make a request for a tow via the VKG. Nevertheless, he stated that he had not seen a copy of those procedures prior to seeing them at his directed interview.
He agreed that he, in the period 2009 to 2011, sent text messages to Mr Ghassibe on a number of occasions informing him of the location of car accidents. He also agreed that he did not provide that information to any other tow truck driver.
He disagreed that his actions were intended to assist Mr Ghassibe or that he favoured him over other commercial tow truck drivers explaining that he was only aware of St George Towing working in that area. Mr Cottrell conceded that he had received a text message from Mr Ghassibe advising him that Towability got to a location before him but pointed out that there was a culture amongst tow truck drivers about which areas they will work and the accident Towability attended, he recalled, was on the border of his LAC.
In his statement, Mr Cottrell admitted that if there were no tow truck drivers on site, he would text Mr Ghassibe. He explained that he meant that if one of St George Towing trucks was not in attendance, he would text Mr Ghassibe.
The applicant was taken to the correspondence, dated 20 October 2015, from his then Solicitor to the Commissioner of Police in response to the s 181D(3) notice that was served on him. That document was attached to his affidavit in these proceedings. The applicant confirmed that he ensured that the information contained therein was accurate prior to it being forwarded to the Commissioner of Police. The correspondence stated: There is evidence of a number of text messages send by Ghassibe to my client which suggests the relationship extended beyond contact between them for a work purpose. However, there is no evidence that my client ever met Mr Ghassibe outside the occasions when they would have come into contact during work. The applicant insisted also during these proceedings that he did not have any form of social contact or a social relationship with Mr Ghassibe and the only contact he had with him was at work.
Mr Cottrell admitted, during cross-examination, that on his way to work on 1 June 2010, he stopped at Mr Ghassibe's workshop to ask his opinion about the cost of repair to a scratch on his car as he was questioning the high cost of repairs quoted by another firm.
Mr Cottrell admitted that he sometimes texted Mr Ghassibe when an accident was broadcast over the radio even when he was not required to attend the scene. He stated that he did that to help his team and not Mr Ghassibe personally although, he agreed, he never told his team about what he was doing because "it never came up in conversation". He was aware that Mr Ghassibe would get paid for towing the vehicle to his employer's yard, and St George Towing would get paid for holding it in its yard and also if it did the repair works on that vehicle. He agreed that he texted Mr Ghassibe because he provided an excellent service and did a better job than other tow truck drivers but resisted agreeing that he gave Mr Ghassibe an unfair advantage over other tow truck drivers: Raper: And so you wanted him to get work over the other tow truck drivers, didn't you? Cottrell: I wanted him to remove the vehicle if we needed him to remove, it yeah. Q: And so you accept you wanted him to get the work over other tow truck drivers, didn't you? A: I didn't really have a say in who got the work, as long as the road was cleared. Q: Well, you said that you - you provide justification for why you did this by saying he gave an excellent service by comparison to others, didn't you? A: In my opinion, yes. Q: And so you wanted him to get the work over other tow truck drivers, didn't you? A: I wanted him to remove the vehicle. But not… Q: Well, that may lead to work, mightn't it? A: It may, it may not. Q: Well, you knew there was a possibility that it would, didn't you? A: If the person consented to him towing it, then yes; it they didn't, it wouldn't. Q: Well, you accept, don't you, that it's far more likely that a person will, if they haven't got an arrangement with some other tow truck driver, they'll take the first available that's there, won't they? A: They may. Q: And so you accept, don't you, that by giving him that information so that he could be there first, you were giving him an advantage, weren't you? A: As I said, I never told anyone they had to use him. My concern was clearing the road. Q: No, but you accept, don't you, that it was much more likely … A: Well, I don't know how many he got, I don't know how many he didn't get. I'm not aware of the facts behind that. I can't comment on that. I'm not sure. Q: Well, if I say to you that you … you are saying this now to attempt to justify your favouritism of him over others. A: No. That's not correct. That's the truth. I'm not sure how many he got, and I'm not sure how many he didn't get. I don't know. I didn't look at his books. Q: Well, you knew though that, didn't you, at the time you sent them to him, that there was a possibility he would get the work over others, didn't you? A: There's a possibility he could have received the tow, yes.

The Applicant's Submission

The applicant acknowledged that he retained the burden of proof to show why his removal was harsh, unjust or unreasonable.
Nevertheless, the respondent bore the onus of proving any allegation of serious misconduct alleging criminal activity to the requisite Briginshaw standard: Starr v Commissioner of Police [2001] NSWIRComm 226 at [183]-[184]. Whilst the onus is only a civil one, the standard of proof to be required by the tribunal must take into account the gravity of the conduct alleged and the effect of a finding that would involve putting a career into jeopardy [159] - [160].
Three allegations have been levelled against the applicant: 1. Passing on confidential information; 2. Fostering and refusing to report an improper association; and 3. Obtaining a financial benefit.
It was conceded that there was a policy in place that required the use of the roster tow book in relation to all civilian accidents. Mr Cottrell admitted from the outset that he had passed on confidential information to Mr Ghassibe. Nevertheless, Supt Donoghue agreed with the proposition that each case ought to be considered on its own merits and one needs to consider the nature of the information passed on, the quality of the information and the intended recipient when assessing the gravity of the breach or conduct.
Mr Cottrell has conceded that the potential for conflict of interest, particularly in light of the existence of the Improper Association Policy, are best avoided. However, once again, it all depends on how one views the Applicant's conduct, his motivation and the context in which it occurred. Improper associations per see arise principally when referring to allegations of criminal activity and there was no evidence in these proceedings, assuming the Commission accepts the Applicant's submission in relation to the third allegation, to support that proposition.
It was unreasonable to make a finding in relation to the alleged financial benefit as the only evidence of that is the allegation made by Snr Constable Vrahas. It appears that the penalty applied by the Commissioner of Police was heavily influenced by this third allegation. It is therefore unjust to apply the ultimate penalty of dismissal when the Applicant did not obtain a financial advantage in the form of a spotter's fee.
It was submitted that the fact that Charlie Ghassibe confided in Constable Vrahas and not the applicant about the sensitive issue of the interview with the PSU inferred that Mr Ghassibe was closer to the former.
The conversation between the applicant and Constable Vrahas on 27 January 2012 was instigated by the latter and took place outside the vehicle, also at the instigation of the latter.
The Commission was encouraged to accept the applicant's version of the conversation of 27 January 2012. His version was simple, believable and consistent. It was submitted that Snr Constable Vrahas' version of the conversation with the applicant was highly suspect and inherently improbable for the following reasons: 1. He admitted during cross-examination that he and the applicant were friendly but were not best friends. It was quite unbelievable that the applicant would make such an admission to anyone other than one with whom he had an extremely close relationship; 2. He admitted that the applicant had been a competent officer of at least average intelligence. Given that, it was highly improbable and beyond belief that: 1. He would make a career ending admission at all; or 2. He would make such an admission without swearing Constable Vrahas to secrecy; or 3. He would be accepting a bribe while in police uniform in a public place. 1. Contrary to his evidence in these proceedings, he did not tell Snr Constable Dib on 27 January 2012 or anyone about these serious allegations for a number of days as evidenced by the document he prepared for the PSU which appeared to have set out the events in chronological order. It was also consistent with the interview between Senior Constable Dib and DSC Tucker on 29 February 2012 - that is, Constable Vrahas spoke to SC Dib about his concerns prior to speaking to the applicant. He then spoke to the applicant but did not report the outcome of that conversation to SC Dib until "a couple of days" later when they met at the Gym. The delay in reporting cannot be sheathed home to the contention by Constable Vrahas that he was inexperienced - it supported the proposition that the allegations against the applicant were an invention of Constable Vrahas.
Also in relation to Constable Vrahas' credibility, it was noted that Constable Vrahas refused to give evidence in the proceedings against the applicant in the Local Court until he was granted a certificate under section 128 of the Evidence Act. Secondly, he it was at that point that he changed his evidence as to when he first advised Senior Constable Dib about the applicant's so-called admissions.
The Applicant and Snr Constable Vrahas have been dealt with very differently and the latter's behaviour/conduct has not been subject of any censure at all.
Superintendent Donohue recommended a reduction in rank and disciplinary transfer on 3 April 2014 upon consideration of Tucker's investigation report as he noted significant gaps in the investigation and he did not agree with the weight attributed to the evidence by the investigator. Whilst it was not the evidence of Superintendent Donohue, it was suggested on behalf of the applicant that the gaps included:

The failure to investigate St George towing and whether that business received any benefit from the actions of the applicant;
The failure to investigate by any means whether money actually changed hands, whether that be by checking bank accounts, any available CCTV footage or any other evidence besides that of Constable Vrahas;
The failure to charge Charlie Ghassibe or anyone associated with St George Towing with bribery;
The failure to consider the fact that Charlie Ghassibe was actually an employee of St George Towing;
The failure to consider or properly consider either the Susac interview or the Vrahas statement to the extent that it illustrated a close relationship between Charlie Ghassibe and another officer who was clearly not the applicant;
The failure to press Constable Vrahas on his tardiness in coming forward immediately after he had found out about illegal activity and the failure to consider his credibility in light of the fact that he altered his version of events in the Local Court and took refuge behind a s 128 certificate;
The failure to consider the utter implausibility of Vrahas' version of events;
The fact that Constable Vrahas was improperly "fishing" around trying to find out from Charlie Ghassibe in two separate discussions with him what was happening whilst the investigation was on foot; and
The fact that Charlie Ghassibe told Constable Vrahas what was happening regarding the fact of the investigation and not the applicant.

Superintendent Donohue's initial view was not ultimately put as a recommendation to the Commissioner of Police. Rather, a recommendation was made to ask the applicant to show cause pursuant to a section 181 notice.
There were two significant delays experienced thereafter - firstly, the show cause notice was not provided to the applicant until 15 August 2014 and, secondly, the decision to remove him from office was not made until 16 April 2015 although his response was provided on 20 October 2014.
The show cause notice advised the applicant that he was being investigated in relation to allegations of illegal activity, the first allegation being that he passed on "confidential information" contrary to the provisions of the Police Act, the NSW Police Code of Conduct and Ethics, the NSW Police Regulation 2008 and the NSW Police Force Handbook. It was submitted that the respondent, at no time, contended that the applicant failed to comply with a specific instrument relating to notifying accidents to tow truck operators. It was concluded that it was because the respondent did not appear to have a comprehensible policy in place for dealing with standard civilian accidents - that was evidenced by both the applicant and Snr Constable Vrahas' evidence during cross-examination. The Commission was reminded that the applicant never denied nor tried to hide the fact that he sent accident information to Mr Ghassibe, information which, he acknowledged, was obtained from a confidential source being the encrypted Police radio but which was later sent out over non-encrypted channels. It was submitted that the Commission needed to consider the confidentiality and sensitivity of the information in that context and it also needed to be keep in mind that the information generally came to the attention of the Police via the public in the first instance. The Commission also needed to keep in mind the applicant's stated motivation for divulging such information - that being the pressure on officers assist persons involved in accidents and to deal with accidents and traffic obstructions in a timely manner. It was submitted that it was arguable whether a procedure existed mandating how the notification of accidents to tow truck drivers must be done and, if it did, whether and how it had been communicated to the officers. It was noted that there was no evidence before the Commission that Mr Ghassibe ever received a benefit from the information supplied by the Applicant because members of the public were entitled to use any tow truck operator they wish to use.
It was submitted that the second allegation was also vague in that there was no supporting evidence to ground or explain the allegation of "improper association" and "conflict of interest". Junior police officers deal almost on a daily basis with local tow truck operators and it is simply sensible that a proper working relationship would occur. The Conflicts of Interest Policy clearly places an emphasis on criminality in the definition of "improper associations". It was contended that whilst his behaviour may not have been appropriate, it could hardly be viewed as consorting with criminals or doing something inimical to the public interest.

The Respondent's Submission

It was submitted on behalf of the Respondent that the community not only expects police officers to meet high standards of behaviour but be seen to be doing so. It is therefore essential that police officers act with integrity at all times, whilst on and off duty.
Integrity, it was submitted, has a special meaning when considered against the very high standards that are expected of police officers. The public requires police officers to act fairly and to behave truthfully and with candour in all dealings with members of the public and the Commissioner of Police. It was submitted that, in Vouden v Commissioner of Police NSW Police Force [2014] NSWIRComm 25 Walton J considered the Macquarie Dictionary Online (fourth edition, 2005) definition of "integrity", particularly when it is used in the moral sense: … soundness of moral principle and character; uprightness; honesty… a. Unimpaired moral state; freedom from moral corruption; innocence; sinlessness. b. Soundness of moral principle; the character of uncorrupted virtue, esp. in relation to truth and fair dealing; uprightness, honesty, sincerity.
Walton J, in Vouden, went on to demonstrate how that definition influenced the Commission in undertaking its task in relation to members of the Force: Thus, when this Tribunal is called upon to review the Commissioner's decision to remove a police officer on grounds relating to the officer's integrity (or more particularly, lack of it) the Commission will consider whether the officer is a person of sound moral principle and character. That may involve questions of the officer's honesty, uprightness and sincerity.
It was also submitted that as police officers held positions of power in society and have access to very sensitive information, it is essential that they are able to not only identify and protect such confidential information but also to identify and avoid such conflicts of interest.
The conferral of the removal powers in section 181D is concerned with maintaining a Police Force whose members are sworn to uphold and enforce the statutory missions and functions of the police force. They are not only required to undertake the special responsibilities of the public office but do so in fact: Commissioner of Police v Hugh Gerrard Brennan [2008] NSWIRComm 52 [at 66].
The Industrial Relations Commission of NSW has, in Van Huisstede v Commissioner of Police (2000) 98 IR 57 at 103 [at 189], recognised that the intention of section 181D is to establish a flexible system which permits the Commissioner of Police to remove police officers without the bureaucratic impediments characterised by the old system. That authority also recognised the discretion provided by the section to remove police officers in whom the Commissioner of Police does not have confidence having regard to their competence, integrity, performance or conduct.
Ms Raper quoted from a speech by the then Minister for Police to the Legislative Assembly on 13 November 1996 as reported in Hansard [at p 5912]: The Commissioner cannot be held fully accountable whilst forced to retain the services of those who fail to live up to extended standards of competence, integrity or conduct.
The Industrial Relations Commission of NSW, in conducting a review under section 181E of the Police Act is required to take into consideration the following matters set out in s 181F: 1. the Commissioner's reasons for removing Mr Cottrell; 2. the case presented by Cottrell as to why the removal is harsh, unreasonable or unjust; and 3. the case presented by the Commissioner in answer to Mr Cottrell's case. The applicant, therefore, bore the burden of establishing that his removal from the Force was harsh, unreasonable or unjust.

Reasons for removal from the Force

The Commissioner removed Mr Cottrell from the Police Force on three grounds: 1. Firstly, it was contended that the applicant had, on multiple occasions, and without authority, immediately texted Mr Ghassibe providing confidential information of the location of car accidents announced over the encrypted police radio thereby giving Mr Ghassibe an unfair commercial advantage over other drivers. 2. Secondly, the applicant failed to take reasonable steps to avoid a conflict of interest and failed to promptly identify and report an improper association with Mr Ghassibe; and 3. Thirdly, the applicant improperly received a financial benefit from Mr Ghassibe in exchange for the provision of that information.
It was not in dispute that the applicant gave motor vehicle accident locations by SMS text messages to Mr Ghassibe on 8 occasions commencing on 30 November 2009 and concluding on 20 August 2011.
There is also no doubt that at the time the applicant provided Mr Ghassibe with those text messages, the information was still confidential resulting in the applicant breaching the Police Code of Conduct & Ethics by accessing, using and disclosing confidential information for his own purposes and not as required by his duties (Point #8). The evidence of Superintendent Donohue confirmed that the police radio had been encrypted for some time, in part, to avoid exactly what the applicant was doing, namely, to stop businesses and criminals from tapping into the broadcast and obtaining an unfair advantage. An article was published on the subject warning police officers against being approached by tow truck drivers and offered bribes in exchange for information on motor vehicle accidents (Annex DD7).
It was not acceptable to suggest that the information was not confidential and was publicly available. Firstly, the evidence of Superintendent Donohue has not been refuted; secondly, the applicant conceded, during cross-examination, that the VKG police radio was encrypted and that he supplied the tip-off information from that encrypted source; thirdly, if the information was publicly available, there would not be a need to provide it to Mr Ghassibe; and, finally, Mr Ghassibe continually thanked the applicant for the provision of the information without any mention of the fact that he was already in possession of it. The issue was not that Mr Ghassibe obtained information on a vehicle accident - the issue was that he obtained the information from a police officer immediately after the message had been broadcast over an encrypted police radio.
It was also not acceptable for the applicant to deny any blame because his employer did not specifically point out that the information was confidential. It was submitted that feigning ignorance of something that is obvious illustrates either one of two things - untruthfulness in relation to his state of knowledge or an inability to identify and protect sensitive information which would put in question his competence to be a police officer. It was pointed out that the obligation is enshrined in clause 75 of Police Regulation 2008 that police officers are to treat all information that comes to their knowledge in an official capacity as strictly confidential and are not to divulge such information to any person without proper authority. Whatever the reason, this Commission, like the Commissioner of Police, ought to find that it lacks the competence to be a police officer.
It was submitted that it was not lost on the Commissioner of Police that the degree of sensitivity of the information disclosed by the applicant as to the location of a motor vehicle accident, when viewed in isolation, was different to that of someone divulging, for example, personal information on a member of the public. Nevertheless, when viewed in the context that the information is being relayed to a tow truck driver, it becomes obvious that he would be using it to obtain a commercial advantage over his competitors.
Ms Raper pointed out that Mr Cottrell had encouraged a relationship with Mr Ghassibe over the period 2009 and 2011 and had frequent meetings with him to the exclusion of other contact with tow truck drivers. His apparent concealment of that lengthy relationship coupled with his responses to the allegations put to him and his lack of insight all contributed towards the Commissioner's loss of confidence in the applicant and cast doubt over his integrity.
The respondent argued that significant detail of the allegation was provided to the applicant in both the Notice and in the Commissioner's Confidence Submission regarding the conflict between his association with Mr Ghassibe and the performance of his policing duties. It was pointed out that the fact that the applicant still considers the information it provided to be "vague" is illustrative of his unsuitability as a police officer. It was argued that the obligation on the Commissioner of Police is to provide sufficient detail in an allegation to allow a police officer to understand the allegation and to respond to it: Commissioner of Police v Reid-Frost [2010] NSWIRComm 2 [at 21-25]. Just because the applicant was provided with specifics of the allegations in order to provide him with every opportunity to respond to the Notice in a manner that addressed the core of the Commissioner's concerns did not suggest pre-judgment of the matter. In addition, it would be simply unrealistic to have a prescriptive policy for something so obvious that it would go without saying. In any event, even if there was a procedural deficiency, which was not admitted, it would have not have made a material difference, in the present circumstances, to the overall determination by the Commissioner of Police: Reid-Frost and the Commissioner of Police (No 2) [2011] NSWIRComm 86 [at 144-153].
Mr Cotterill had attempted to excuse his obvious favouritism of Mr Ghassibe by claiming that the latter provided an "excellent service" and that his service was better than that offered by other tow truck providers that he eventually conceded attended the scene. The respondent inferred from the evidence that the applicant was attempting to give Mr Ghassibe the work over other drivers. That work involved not only the towing but the repair work in some instances. The denial by the applicant of that fact demonstrated, at the very least, that the applicant could not comprehend the level of favouritism was affording Mr Ghassibe and hence his unfitness for police work. It was submitted that the applicant had not been forthright in his evidence about the work undertaken by Mr Ghassibe's employer and the maintenance of that position was self-serving as the applicant was attempting to excuse his conduct. It was emphasised that it is essential that a police officer operate fairly in the community and is perceived to be operating without fear or favour.
It was noted that Constable Vrahas gave evidence that Mr Cottrell had confessed to him in January 2012 that he did so in order to obtain a spotter's fee in relation to each incident.
The respondent's case centred on that admission of serious misconduct which warranted the termination of his employment. Nevertheless, the case was not being defended solely on the basis of the admissions and the bribery. The Commissioner of Police was also of the view that there was sufficient evidence to prove lack of confidence in the applicant's ability to continue in the Police Force and also address the issue of relief: firstly, there was a relationship of conflict that was not identified or prevented, an issue that is essential to policing; secondly, there was provision of information of confidential information that ought to have been identified as such and protected; and thirdly, there was the issue of lack of candour by the applicant. His attempt to conceal the extent of his misconduct reveals that he is not an individual of integrity which is a fundamental requirement of police officers.
As for Mr Vrahas' evidence, it was noted by the respondent that there was a marked difference between his association with Mr Ghassibe and that of the Applicant with Mr Ghassibe: firstly, Mr Vrahas never had any work relationship with Mr Ghassibe whereas Mr Cottrell gave the latter tip offs of accidents for commercial advantage; secondly, a police investigation has exonerated Mr Vrahas; thirdly, it was entirely hypocritical to criticise Mr Vrahas's actions when the applicant himself very successfully avoided giving any evidence in the criminal proceedings by virtue of a technicality.
It was pointed out that at all times (throughout the information and investigation processes, his participation in the criminal proceedings, his written evidence in these proceedings and his oral evidence), the applicant's modus operandi has been to avoid and deflect attention away from his own wrongdoing and to downplay the extent of his interaction with Mr Ghassibe despite hundreds of communications with him and disclosure of encrypted radio broadcasts. 1. Firstly, the applicant has admitted that within minutes on multiple occasions he sent the motor vehicle accident locations from information he had received from the encrypted radio to Mr Ghassibe for his own benefit. However, Mr Cottrell has never admitted that the information was sensitive and confidential. The information gave Mr Ghassibe an unfair commercial advantage over other operators. There was absolutely no evidence before the Commission to support the contention that the information he gave Mr Ghassibe was available on public radio. The point to be borne in mind is that the applicant accessed the said information in his role as Police Officer. 2. Secondly, even with the benefit of hindsight, the applicant maintained that Mr Ghassibe was not given an unfair advantage. That demonstrated a profound attempt on his part to seek to excuse away his own conduct. It was submitted that the favouritism was obviously there because he was obtaining a financial benefit from it. 3. Thirdly, the evidence obtained during cross-examination proved beyond doubt that the relationship the applicant had with Mr Ghassibe was not just work related. Even if the Commission was not inclined to accept that the applicant obtained a monetary reward for the tip-offs, it cannot be denied that he was obviously in a position of conflict as a result of that relationship. It was horrifying to suggest, and showed a profound lack of judgment and insight into his own conduct, that he either did not understand or considered that he did not have to be candid with his responses unless specifically asked by NSW Police. The Commission was taken to relevant parts of the directed interview and the Notice to demonstrate support for that submission. 4. Fourthly, the applicant's justification that his association with Mr Ghassibe was a "work tool" was not justified in view of the fact that: 1. the evidence demonstrated that the LAC had Standard Operating Procedures (SOPs) in place designed to ensure that a rostered tow system was in place to avoid favouritism being shown towards any towing company; 2. the applicant tipped off Mr Ghassibe even when he was not the officer dealing with a motor vehicle accident thereby circumventing the SOPs. The tip off occurred without assessing whether or not a tow truck was even required and without ascertaining whether or not Mr Ghassibe was best placed to respond; 3. the applicant knew that no-one else tipped off the tow truck drivers yet he did not inform his fellow officers of the deployment of that "work tool", not even the officers who attended the accident scene about which he had tipped off Mr Ghassibe; and 4. the contention of the applicant that he had a "pure" motive for tipping off Mr Ghassibe because he was trying to be "diligent" and "efficient" was belied by the fact that he was the subject of a Remedial Performance Plan in 2010 for laziness and inattention to his duties.
Supt Donoghue and SC Vrahas both gave evidence with respect to the SOP that was in place at the time in relation to tows and explained that the reason for its existence was to avoid the level of favouritism such as was exercised by Mr Cottrell to Mr Ghassibe. Even if the Commission was not minded to find that he was receiving money from Mr Ghassibe, it was clear from the evidence before it that Mr Cottrell had a personal association with him, that he was influenced in his duties by trying to favour him over others to give him work and that he had at least a non-pecuniary interest in him which manifested itself in a relationship beyond work purposes, given the sheer volume and frequency of their interactions:

In the period between September 2009 and 1 March 2011: Mr Ghassibe contacted the applicant on 138 occasions (10 calls and 128 text messages); The applicant contacted Mr Ghassibe on 148 occasions (24 calls and 124 text messages); Mr Cottrell had contact with Mr Ghassibe while he was on a rostered day off on 16 September 2009; on 1 June 2010 before commencing his shift at 6 pm; 22 October 2010 while he was on a rest day; on 4 November 2010 after 7.30 pm; on 5 November 2010 before commencing his shift at 4 pm and on 26 November 2010 while he was on a rest day.

In the period between 2 March 2011 and 25 December 2011: Mr Ghassibe contacted the applicant on 47 occasions by SMS text messages; and The applicant contacted Mr Ghassibe on 54 occasions by SMS text messages.

In addition to the above, Mr Cottrell admitted that he had continued to text message Mr Ghassibe after the latter had been made redundant in late 2011 but explained that they had exchanged joke messages. There was no evidence to support that contention.
Also in addition to the above, the evidence revealed, despite the applicant's continued denial, that he had a social relationship and had met up with Mr Ghassibe on 1 June 2010 and on other occasions as evidenced by the inferences in the text messages exchanged between them during November and December 2011.
Despite the fact that the applicant has been on notice since 8 January 2014, he had not taken the opportunities provided to explain the text message evidence which demonstrated that he visited Mr Ghassibe's workshop. The contents of the text message on 1 June 2010 was the most troubling: Ghassibe: … the workers are nearly gone so text me when you are here. Cottrell: I'm around the corner It was argued that if there was no misconduct to conceal and if the applicant was not seeking to avoid detection, why did he wait around the corner until the workers left the workshop? That evidence was entirely consistent with the evidence of SC Vrahas who contended that the applicant told him that he would go around the back of Mr Ghassibe's workshop to collect money.
The respondent relied on the decision of the former Australian Industrial Relations Commission in Telstra Corporation Limited v Charlie Streeter [2008] AIRCFB 15 [at 19-23] where it was held that where a person is untruthful or less than candid in matters that are the subject of sanction during the investigative process then that, in and of itself, is sufficient to warrant termination. The dismissal can be justified on the basis of his lack of honesty in not disclosing the extent of his association with Mr Ghassibe, the position of conflict he had placed himself in as a result of that association, his attempts to conceal that association and the provision of confidential information of Police to Mr Ghassibe as a result of that personal association.
It was submitted that the applicant had breached the Conflict of Interest Policy in that he had an improper association with Mr Ghassibe which affected and interfered with his official duties, whether it was because he was obtaining financial benefits from him or whether it was because he was favouring him and giving him an unfair advantage over others.
His steadfast refusal to identity and protect confidential information or to accept that there was a conflict of interest in his association with Mr Ghassibe or his denial that he was not favouring that business demonstrated a complete lack of insight by him and demonstrated why he is unfit to be a police officer.
The respondent believed that there was ample evidence that the applicant obtained a spotter's fee from Mr Ghassibe - firstly, Mr Vrahas' evidence that the applicant told him that he had obtained at least $1000 from Mr Ghassibe; secondly, Mr Cottrell systematically gave Mr Ghassibe the confidential information and no one else; thirdly, Mr Ghassibe obviously obtained a commercial advantage by receiving that information, fourthly, the applicant had provided no plausible reason why he repeatedly provided such information; fifthly, the fact that the evidence demonstrated that on 1 June 2010 the applicant went round the back of Mr Ghassibe's business premises and waited till the workers left was illustrative of the mode by which he sought to obtain the benefit; and finally, the fact that he sought to conceal the extent of his interactions up until this hearing.
It was submitted that the evidence of Mr Vrahas was compelling and should be preferred over that of the applicant for a number of reasons - firstly, the cross-examination of the applicant revealed that he was neither a credible nor a believable witness; secondly, SC Vrahas gave consistent evidence (to SC Dib, DSC Gordon, in his statement dated 2 February 2012, in his affidavit in these proceedings and in his oral evidence) in relation to what Mr Cottrell told him about receiving a bribe; thirdly, there was no proper motive for him to make up such a serious, career-ending allegation about the applicant. He had disclosed immediately his friendship with Mr Ghassibe which never included the provision of confidential information; and fourthly, Mr Vrahas had a lot to lose by disclosing such information - a friendship with the applicant and subjecting himself to scrutiny in the criminal proceedings.
It did not have any bearing on SC Vrahas' credibility or on the applicant's apparent misconduct, whether SC Vrahas reported the misconduct immediately or several days later.
The applicant has not provided any explanation as to why he did not lead critical evidence from Mr Ghassibe to support his contentions that their relationship was only work-related, that the applicant did not receive any benefit in return for the provision of information and the extent of their telephone contact. It can only be assumed that calling the only witness inside his camp would have been adverse to the applicant rather than to the respondent: Payne v Parker [1976] 1 NSWLR 191 [at 201-202]. The applicant conceded in cross-examination that he was not aware of any reason why Mr Ghassibe could not attend to give evidence. The Commission was invited to draw a Jones v Dunkel inference against the applicant for his failure to call Mr Ghassibe as a witness to refute the allegation that he received a benefit for the tip-offs. Such an inference casts significant doubt over the evidence and integrity of the applicant and therefore his contentions must be rejected.
Mr Cottrell bore the onus of establishing that his removal from the Force was harsh, unreasonable and unjust. The respondent relied on the decision of Walton J in Lawrence where his honour cited with approval the minority decision of Schmidt J in Evans [at 84] where her honour observed that, in considering questions of harshness, one had to balance harshness with the public interest and the maintenance of the integrity of NSW Police. It was submitted that public interest considerations weigh heavily against upholding the application, particularly on the question of integrity. The dismissal was not harsh for the following reasons: firstly, while the applicant expressed remorse, it was of the self-preservationary type and was not coupled at all with insight or with candour; secondly, he was in receipt of his base salary over a long period of time when it was open for him to be dismissed and when the degree of loss was not so large; and thirdly, there was no evidence before the Commission to prove the financial loss caused by his dismissal. There was no evidence to illustrate his attempts to obtain full-time employment to mitigate his loss.

Consideration

It was not disputed that assessment of harshness has to be undertaken within the context of section 181F of the Police Act, with particular reference to the evidence concerning both the confidence in the applicant and his suitability to continue in the Force.
Mr Joseph helpfully summarised the principles applicable to the conduct of a section 181E review as distilled from the decision of Walton J in Lawrance v Commissioner of Police (2010) 199 IR 139 at [19] - [25]: 1. The task of the Commission is to undertake a fresh and independent review based on the material before the Commissioner and any new material admitted: [19] 2. The removal of an officer may be harsh, unjust, unreasonable or a combination of all three: [19] 3. The Commission must state explicitly which, if any, grounds pursued under section 181E (1) (being whether the dismissal is harsh, unjust or unreasonable) are made out: [21] 4. The distinction between the concepts of 'harsh, unjust and unreasonable' as set out in Byrne v Australia Airlines Limited (1995) 185 CLR 410 at 465 are applicable to section 181E reviews: [22] 5. In considering whether a dismissal is harsh, the Commission must take into account severity of the dismissal as a consequence of the officer's conduct thus giving rise to consideration of the gravity of the misconduct. The question of proportionality therefore arises and whether there were any mitigating circumstances: [23] - [24] and 6. Various considerations arise where the application is pressed on the grounds of harshness including the nature and degree of the conduct engaged in by the police officer and other mitigating circumstances such as remorse and good character. These are relevant even when the officer had engaged in serious misconduct: [25]
Mr Cottrell bore the onus of establishing that his removal from the Force was harsh, unreasonable and unjust.
The applicant contended that his removal was harsh, unjust or unreasonable because: 1. his misconduct was not of sufficient gravity to warrant his removal; 2. he has expressed regret and remorse for his actions and undertaken that the conduct will not be repeated; and 3. the time taken to conduct and complete the investigation had placed him "under pressure".
It was not denied that the applicant was sending confidential information to Mr Ghassibe.
The Confidence Submission of the Commissioner of Police contained an attachment which the Applicant agreed contained information which was extracted from his seized mobile telephone. He also agreed that not all deleted messages were able to be recovered. The retrieved information detailed text messages between himself and Mr Ghassibe in the period between 10 October 2009 and 25 December 2011. The attachment set out a large number of occasions when the Applicant texted Mr Ghassibe with addresses of various accident locations.
The evidence demonstrated that during the period September 2009 and March 2011, Mr Ghassibe contacted Mr Cottrell on 139 occasions and Mr Cottrell contacted Mr Ghassibe on 144 occasions. As for the period between March 2011 and December 2011 the available evidence demonstrated that Mr Ghassibe contacted the Applicant on 69 occasions and the Applicant contacted Mr Ghassibe on 14 occasions (in the absence of the Applicant's call records).
Also during cross-examination, Mr Cottrell was taken to evidence of where Mr Ghassibe has thanked him for getting work out of a tip-off: "He told me he wants it towed but his wife told him to drive it, but he said he will bring it to the workshop himself, which is good as gold. Thanks again, mate" [21 March 2010] It is obvious from the above that Mr Ghassibe's workshop was getting mechanical work as well as towing and holding fees as a result of the tip-offs he was getting from the applicant. Yet the applicant continued to deny that as a result of providing those tip-offs, he was giving Mr Ghassibe an unfair advantage over other tow truck companies.
The Commission does not accept that Mr Ghassibe was a "work tool" the applicant used to assist Police to clear accident scenes quickly and efficiently. The applicant did not share that work tool with other officers. The evidence clearly demonstrates that the applicant tipped off Mr Ghassibe immediately upon the message being relayed on the encrypted police radio and prior to arriving at an accident scene to assess whether a tow truck was indeed required. The evidence also demonstrates that the applicant tipped off Mr Ghassibe even when he was not assigned to that roadside accident.
The information broadcast to police officers over the VKG radio is encrypted and is not available to members of the public. That fact was acknowledged by the applicant during cross-examination.
The Standard Operating Procedures at Hurstville included roster tow books for contract tows. That book was used by the officer rostered on station duties whenever s/he received a request for a tow via the VKG from a police officer attending an accident scene. The SOP was specifically designed to avoid police officers having an association with persons who may have engaged in criminal activity or having an association with persons such that it would conflict with their ability to carry out their duties impartially.
The respondent's "Conflicts of Interest Policy and Guidelines" and, in particular, the section dealing with "Identifying and avoiding conflicts of interest" sets out the following definition: A conflict of interest occurs when the private interests of a NSW Police Force employee interferes with or influences, or appears to interfere with or influence their official duties and responsibilities or where an employee uses their official status to influence private interests.
During cross-examination, the Applicant agreed that:

it was incumbent on him to know what a conflict of interest was and to comply with the policy document;
that it is the responsibility of NSW Police Force employees to identify actual, potential and perceived conflicts of interest and to remember that private interests and work obligations should never stay in conflict;
he knew, in 2009, that a conflict of interest could occur in circumstances where there was a perception by the public that there was conflict between a police officer in the exercise of his duty and private interests that the officer held;
that appearance is very important in the exercise of a police officer's duties;
the reputation of NSW Police can be brought into disrepute if police officers are seen to be favouring some citizens over others; and
if there is an appearance of favouritism by a police officer, then that undermines the officer's ability to have the respect of the community when the officer wants them to do things.

There is no doubt that the applicant, on his own admissions, passed on confidential information to Mr Ghassibe and fostered and failed to report an improper association with him.
SC Vrahas gave evidence in relation to a conversation he had with the applicant during which, it was alleged, the applicant told him he had received over $1000 for the tip-offs.
It is noted that an investigation had been conducted into SC Vrahas' associations and he had been exonerated. Nevertheless, it is incumbent on this Commission to satisfy itself as to the allegation that the applicant obtained a financial benefit in return for the tip-offs.
The alleged admission was made to SC Vrahas during a discussion with the applicant on 27 January 2012. SC Vrahas gave evidence that the applicant described to him how he got paid the fee. SC Vrahas gave evidence that the applicant told him he would go to the panel beating shop in his uniform, walk down the side and meet with Mr Ghassibe out of sight of anyone and pick up the money.
The applicant initially categorically denied ever meeting with Mr Ghassibe away from an accident scene. In correspondence from his Solicitor to the Commissioner of Police, dated 20 October 2015, he insisted that there was no evidence of him ever meeting Mr Ghassibe outside the occasions when they came into contact during work, namely at motor vehicle accident scenes.
Mr Cottrell maintained in the earlier part of his cross-examination that he did not have any form of social contact or a social relationship with Mr Ghassibe with the only contact with him being "at work". Later on in cross-examination, he admitted that he stopped at the panel shop on his way to work on 1 June 2010 to obtain an opinion as to the cost of repair to a scratch on his car.
It is noted, however, that the attachment in the Confidence Submission also set out when the Applicant met with Mr Ghassibe: 01.06.2010 06.50 20 minutes off 06.50 OK mate 07.09 hey mate, the workers are nearly gone so text me when you are here 07.12 I'm here thanks mate 07.13 I'm around the corner 07.13 you want to come in

Mr Cottrell explained that he had taken his car in for an opinion quote from Mr Ghassibe. 08.08.2011 01.57 Hie mate, what time we catchin 03.36 Be there in 5 mate

Mr Cottrell had no recollection of meeting with Mr Ghassibe on that occasion unless it was at an accident scene. 09.08.2011 07.04 that's OK we are at queens rd and Croydon rd Hurstville we b here for a while no worries

11.11.2011 10.56 Hi mate how are you going. Hope all is well 11.56 not bad mate, hopefully we'll catch up soon for a coffee when you can 11.31 I'm going to Peakhurst soon let me know when you are free we'll catch up, take care. 12.12.2011 02.19 Hi mate, how are you hope all is well. 02.28 I'm good mate, I will catch up with you for a coffee in the near future, all best for Christmas, take care, talk soon. 02.32 Yeah, I will mate, just let me know anytime after xmas day 02.32 yeah I will mate.

There is no doubt that there was some form of social contact or relationship between the applicant and Mr Ghassibe. What is more troubling is the text message exchange on 1 June 2010. It confirms the evidence of SC Vrahas which is to be preferred to that of the applicant. There is no way that SC Vrahas would have been privy to that information if it had not been disclosed to him by the applicant. If the motive for attending the panel shop was innocent, why would the applicant hang around the side of the shop waiting for the workers to leave before meeting up with Mr Ghassibe?
I find, on balance, that the applicant obtained a financial benefit for the tip-offs that he gave Mr Ghassibe.
I find that: 1. the applicant did not meet the high standards of behaviour that was expected of him as a police officer by the community; 2. he failed to appreciate the gravity of his failure to identify and avoid conflicts of interest which are essential to policing work; 3. he failed to appreciate and protect the confidentiality of the information revealed to him as a police officer; 4. his lack of candour at first instance and his continued attempts to excuse his conduct weigh heavily against his application; and 5. he failed to maintain the integrity of the Police Force by accepting a benefit in return for confidential information.
The Commission is required to determine whether the dismissal was harsh, unreasonable or unjust. In Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465, McHugh and Gummow JJ stated: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
The allegations against the applicant are sustained. Considered individually, the allegation that he passed on confidential information of the sort that he did or that he fostered/did not report an improper association, in my view, would not have led to dismissal of his employment without a previous record of warnings in relation to conduct/performance. They would have attracted a lesser form of disciplinary measure. However, considered in light of his emphatic denials and the finding that he received a benefit for the tip-offs, I do not find that the termination was unjust.
Was the dismissal harsh, given its consequences for the personal and economic situation of the applicant? It is noted that Mr Cottrell did not provide any evidence of any attempts to mitigate his losses following his dismissal.
Was the dismissal unreasonable? As has been noted above, Mr Cottrell did not have a clean personnel record. It is noted that the applicant expressed regret about the tip-offs he gave Mr Ghassibe during his interview with Supt Donohue. Nevertheless, it has also been noted that he did not behave truthfully and with candour in all dealings with the Commissioner of Police and in the evidence before he gave in this Commission. On that basis, the Commission is of the view that the dismissal was not unreasonable.
The Commission declines to interfere in the decision of the Commissioner of Police to dismiss Mr Cottrell on the basis that the dismissal was neither harsh, unjust nor unreasonable. Matter 375379 of 2015 is hereby concluded by dismissal of the claim. I Tabbaa AM COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2017

At a glance

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Judgment (13 paragraphs)

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Cases Cited (10)