Cassel v Commissioner of Police

SOLICITOR Jones Staff & Co. SYDNEY.

LEGAL REPRESENTATIVES: RESPONDENT Mr J H Pearce of counsel

SOLICITOR Court & Legal Services NSW Police Service SYDNEY.

JUDGMENT: - 21 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application under section 181E of the Police Service Act 1990 for review of an order of the Commission of Police.

1 The applicant, Cameron Lesley Cassel, was attested as a probationary constable in the New South Wales Police Service on 14 February 1997 and was promoted to the rank of constable on 14 February 1998. On 7 February 2002, the applicant was served with an order under s181D(1) of the Police Service Act 1990 (since amended to be named the Police Act 1990) ('the PS Act'), the effect of which was to remove him from the Police Service for the reason that the Commissioner of Police did not have confidence in his suitability to continue as a police officer.

2 Section 181E of the PS Act authorises a review of such an order to be undertaken on application to this Commission. Mr Cassel has sought that review and this decision determines that application.

3 The Commissioner's s181D(3)(a) Notice of 25 October 2001 set out the grounds upon which the Commissioner was considering the applicant's suitability to continue as a police officer, taking into account his conduct and integrity, as follows: During the period from September 1998 to December 1998 you sexually harassed a junior officer.

On 22 June 1999 you were involved in a motor vehicle accident wherein you were the driver of the vehicle. After colliding with a telegraph pole you left the scene of accident and failed to report the matter to police immediately. As a result you were charged with "Negligent Driving" and "Fail to Report Accident". On 15 August 2000, you appeared at Penrith Local Court and pleaded guilty to "Fail to Report Accident" subsequent to which you were fined $1000 including court costs to the sum of $56.00.

4 The Notice provided the applicant 21 days within which to make written submissions in response.

5 On 30 November 2001 the solicitors acting for the applicant made written submissions on the applicant's behalf. Before detailing those submissions, it is necessary to observe that the probationary constable referred to throughout the submissions is the junior officer referred to in the Commissioner's s181D(3)(a) Notice, a male person about which the allegation of sexual harassment was made. At the commencement of the hearing, counsel for the Commissioner of Police sought an order that the name of the probationary constable not be made public in reports of these proceedings. That application, made without motion, although that is of no present significance save for the lack of notice to the applicant, was strongly opposed. At that stage no order was made although the respondent's position was reserved if it wished to renew its application. The application was not renewed. For the purposes of this decision I intend to refer to the probationary constable as such without utilisation of his name. Accordingly, the words 'probationary constable' used in the decision without name may be taken as a reference to that particular officer.

6 The submissions made to the Commissioner on the applicant's behalf included the following:

(i) Constable Cameron Cassel joined the New South Wales Police Service as a student in 1996. Constable Cassel was attested as a Probationary Constable on 14 February 1997 and was promoted to the rank of Constable on 14 February 1998.

(ii) In late 1998, Constable Cassel was carrying out general duties at Katoomba Police Station.

(iii) On 29 November 1998, Constable Cassel and the Probationary Constable who is the subject of the allegations against Constable Cassel worked a twelve hour shift. During the shift, Constable Cassel and the Probationary Constable were required to drive a prisoner to Parramatta Court. On their return journey to Katoomba, Constable Cassel fell asleep.

(iv) Just before alighting from the police vehicle, Constable Cassel realised that he had an erection as a result of the long journey. Constable Cassel commented to the Probationary Constable that he was embarrassed to get out of the truck and go into the Police Station because he had a "traveller", a colloquial term which Constable Cassel had learnt from other police officers since joining the New South Wales Police Service.

(v) The Probationary Constable said to Constable Cassel: "What do you mean?" Constable Cassel said: "You know, morning glory."

(vi) Constable Cassel walked into Katoomba Police Station and commented to a number of officers that the Probationary Constable did not know what a traveller was.

(vii) In February 1999, Constable Cassel attended a social gathering at the Lawson Hotel with other police officers to celebrate Constable Jeff Wilson's success in being offered a position by the Queensland Police Service. During the course of the evening most of the people present drank heavily and became intoxicated. At one stage one of the officers present at the hotel made reference to the events described in paragraphs (iv) and (v) above and asked Constable Cassel to tell the assembled group about the incident which he did.

(viii) Constable Cassel denies that on 29 November 1998, he placed the Probationary Constable's hand on his erect penis. Constable Cassel also denies advising any person subsequent to 29 November 1998 that he placed the Probationary Constable's hand on his erect penis.

(ix) Constable Cassel did not intend to offend the Probationary Constable by his reference to "traveller" and apologised to the Probationary Constable when the Probationary Constable made Constable Cassel aware that a person had complained about the incident. The Probationary Constable assured Constable Cassel after Constable Cassel apologised that he was not offended by the comment and did not have a problem with Constable Cassel.

(x) On 28 April 1999, Constable Cassel attended a record of interview with Detective Inspector J. Hollier and Detective Sergeant Anthony James McWhirter. During the course of the record of interview a number of allegations of sexual harassment involving the Probationary Constable were put to Constable Cassel, all of which Constable Cassel denied. Constable Cassel reiterates his denial of these allegations.

(xi) We note that this was the first occasion that any of these allegations were put to Constable Cassel, although they were alleged to have taken place approximately six months previously. In addition, we note that the first time that the Probationary Constable made the allegations was in his police statement dated 6 March 1999. It is respectfully submitted that the allegations are of a very serious nature. In the circumstances, although the standard of proof applied is the civil standard on the balance of probabilities, the standard required to establish such allegations is generally described in the manner adopted (sic - by) his Honour Justice Dixon (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336. This judgment enshrines the principle that reasonable satisfaction that an allegation is made out should not be produced by inexact proofs, indefinite testimony or indirect inferences. In circumstances where Constable Cassel vehemently denies the allegations, it is submitted that the material contained in the Commissioner's Confidence Submission does not establish, on the requisite standard of proof, that the alleged conduct took place.

(xii) In addition, we respectfully draw your attention to the Probationary Constable's response to Inspector B M Cox's inquiries on 9 and 10 February 1999. During the course of the discussions between Inspector Cox and the Probationary Constable, the Probationary Constable stated, inter alia, that Constable Cassel was only joking, that Constable Cassel never forced the Probationary Constable's hand onto Constable Cassel's erect penis, that the Probationary Constable had dealt with the matter and that the Probationary Constable had spoken to Constable Cassel about the matter.

(xiii) The Probationary Constable only made a complaint about the matter after he had been informed by a third officer that Constable Cassel had made a joke about the matter outside working hours at a social function while at the Lawson Hotel in February 1999. It is submitted that as many of the persons present were intoxicated at the time, it is probable that the way that Constable Cassel conveyed the event at the Lawson Hotel was misconstrued and reported inaccurately to the Probationary Constable causing him to feel anger towards Constable Cassel and the need to report an incident which he had previously thought did not warrant a complaint.

(xiv) It is submitted that the difficulties experienced by the Probationary Constable which are referred to (sic - in) Inspector Cox's report dated 8 March 1999 and the Probationary Constable's statement dated 6 March 1999 should be taken into account in relation to the Probationary Constable's lengthy period of sick leave and apparent resignation from the New South Wales Police Service.

(xv) Now that Constable Cassel is aware of the personal difficulties experienced by the Probationary Constable having read his statement and the report by Inspector Cox, he is extremely regretful about any anxiety which he may have caused the Probationary Constable in making the comments referred to in paragraphs (iv) and (v). At the time the comments were made, Constable Cassel did not believe that the Probationary Constable took offence. Constable Cassel is aware of the New South Wales Police Service's policy in relation to sexual harassment and he has always abided by the policy.

(xvi) Since the allegations have been made, Constable Cassel has been transferred from Katoomba Police Station which is near his residence to Macquarie Transit Unit which is located at Holroyd Local Area Command. It takes Constable Cassel approximately two hours each day to travel to and from work. It is submitted that if it is found that a penalty is warranted in relation to the comments that Constable Cassel has admitted making to the Probationary Constable, Constable Cassel has been sufficiently punished by the transfer.

(i) On 21 June 1999, Constable Cassel returned to work after a four month period of stress leave. On this day, he was required to attend a two hour interview with Mr Honeysett and Inspector Wallace from Internal Affairs which resulted in Constable Cassel being informed that he was to be transferred from the Blue Mountains Local Area Command. That evening, Constable Cassel had an argument with his fiancé who told him that he will not be able to see or have anything to do with his child who at that time was due to be born in two and a half months.

(ii) While on stress leave, Constable Cassel received treatment from a neurologist in relation to constant headaches and blackouts which he had experienced as a result of head injuries sustained by playing football and work related stress. In addition, Constable Cassel received treatment from a psychiatrist, Dr Len Siegel initially on 20 May, 1999, then again on 3, 15, 26 June 1999, 6 July 1999 and 22 September, 1999. In a report dated 4 November 1999, Dr Siegel describes Constable Cassel's experiences of a number of traumatic and life threatening experiences on active duties as a police officer, serious inter-personal conflicts with his partner and his condition of attention deficit disorder. Constable Cassel was diagnosed by Dr Siegel as having acute adjustment disorder with anxiety and depression.

(iii) On 22 June 1999, Constable Cassel had a major accident in his own vehicle outside work hours. The Accident occurred as Constable Cassel was driving up Ferguson Road, Springwood and had what he believed was an anxiety attack which resulted in a massive collision. Prior to the accident, Constable Cassel had been at the Oriental Hotel in Springwood where he consumed half a schooner of full strength beer and three schooners of light beer over about four hours.

(iv) Constable Cassel does not remember what he did after he alighted from the vehicle following the accident or how long he remained at the scene. Regrettably, Constable Cassel did not report the accident because of the enormous amount of anxiety and confusion he experienced following the collision.

(v) Constable Cassel went straight to his doctor on the morning after the collision who advised him not to speak to police until Constable Cassel had spoken to his psychiatrist the following day. Constable Cassel's doctor advised Constable Cassel that he would contact the Duty Officer at Springwood and inform him of this.

(vi) Constable Cassel reported the accident on 25 June 1999 at Springwood Police Station and participated in a record of interview.

(vii) Constable Cassel was subsequently charged with negligent driving and fail to report accident. The charge of negligent driving was eventually withdrawn by the DPP. On 15 August 2000, Constable Cassel appeared at Penrith Local Court and pleaded guilty to the offence "fail to report accident" which is a traffic offence. Constable Cassel was fined $1,000.00 and $56.00 court costs. No licence disqualification period was imposed by the Court.

(viii) As a result of the collision, Constable Cassel's police service driving certification was removed. After receiving a clearance from a neurologist and other medical professionals, Constable Cassel attended the Goulburn Police Driving School and was recertified. Constable Cassel has also attended Goulburn Police Academy and successfully passed the Operations Support Group course.

(ix) It is noted that an undated extract from a report prepared by Dr Robert Lewin is attached to the Commissioner's Confidence Submission. In his report, Dr Lewin makes certain findings in respect of Constable Cassel's version of events regarding the accident. We are instructed that Constable Cassel was directed to attend Dr Lewin's rooms so that Dr Lewin could ascertain his fitness to drive. In these circumstances, it is submitted that it is inappropriate for Dr Lewin to make findings in relation to Constable Cassel's state of mind following the accident, especially in circumstances where it is not known what information was provided to Dr Lewin about the events leading up to the accident. Furthermore, Dr Lewin's findings in relation to Constable Cassel's prognosis differ from Constable Cassel's treating psychiatrist, who Dr Lewin describes as " a Senior Clinician with a great deal of experience" in that Constable Cassel was diagnosed by Dr Siegel as having acute adjustment disorder with anxiety and depression.

(x) It is submitted Constable Cassel's failure to report the accident must be viewed against the events of the preceding day, which caused him an enormous amount of stress and anxiety. These events involved Constable Cassel transferring from his usual work location and his future relationship with his de facto partner and their then unborn child. In addition, Constable Cassel had suffered numerous medical conditions during the four months prior to the collision.

(xi) Constable Cassel reported the accident as soon as practicable after speaking to his psychiatrist. During the record of interview, in relation to the matter on 25 June 1999, Constable Cassel was frank and candid about the events leading up to the collision and his reasons for not reporting it immediately.

(xii) It is submitted that Constable Cassel is a person who is committed to the principles and values espoused by the New South Wales Police Service. He is extremely regretful in relation to both of the incidents which have brought him to your attention. It is submitted that Constable Cassel has received sufficient punishment in relation to both incidents by way of his transfer to the Transit Police and that a section 181D(3)(a) Notice should not be issued.

7 On 25 January 2002 the Commissioner of Police signed an order under s181D(1) removing the applicant from the Police Service. The reasons therefor were annexed and were in the following terms: I am required to make a determination under s181D(1) of the Police Service Act 1990 in respect of whether I have confidence in you as a member of the Police Service. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself, a Notice served upon you on the 6 November, 2001 pursuant to s181D(3)(a) of the Police Service Act 1990, together with your written submissions provided through your solicitors in response to the grounds set out in my Notice. Those grounds in my Notice refer to the criteria of your conduct and integrity and relate to your sexual harassment of a junior officer and your conviction for the offence of 'failing to report an accident', following a motor vehicle collision in which you were involved.

In respect of the issue of sexual harassment of a junior officer, there is material before me that you have on a number of occasions acted in a completely inappropriate manner by sexually harassing a junior officer. The material would suggest that your actions could be viewed as criminal, although I am aware that course of action was not followed. I note that the junior officer was initially very reluctant to verify that sexual harassment had occurred, however, as a result of him becoming aware of you continuing to restate what you had done, and upon what would appear the basis of the humiliation he felt, he provided advice declaring your conduct. I note that other officers have corroborated that you publicly reiterated details of your harassment upon this officer. I note in your written submissions that you have denied that you placed the junior officer's hand on your erect penis. However, you have agreed that there was interaction between yourself and this junior officer, such interaction was not intended to offend the junior officer. I note reference in your written submissions as to the level of proof applicable to these matters. However, I take the view that your conduct falls clearly within the Police Service Gender Based and Sexual Harassment Policy of unacceptable behaviour. I also note that the matter is being treated as a complaint under the NSW Anti-Discrimination Act 1977 against the Police Service.

There is also material before me indicating that you were involved in a motor vehicle collision. Police attended the scene and observed you in a telephone booth, but as they approached, you ran away. You did not report the collision until three days later. You submit that you did not report the collision on advice from your doctor. I cannot receive that as an acceptable rejoinder, nor would it seem that the court accepted that as justification, as notwithstanding your plea of guilty, you were convicted on a charge of 'Failing to Report Accident' and fined substantially for that offence. You have admitted that you had consumed alcohol at a hotel prior to this collision, however, as you failed to conform with the required legislation following the collision, no determination can be made as to what factor alcohol might have played in the collision. Your written submissions indicate that you were suffering from psychological stress and this was the reason for the collision and your unlawful behaviour following same. However, I do note that a contrary opinion has been offered by a consultant psychiatrist who was apparently consulted in regard to your fitness to drive vehicles subsequent to the collision.

I have considered all of the material provided to me in assessing my confidence in you, including the personal references which I take into account as favourable to you. I have also considered the issues you have raised in mitigation, that being your personal circumstances. However, on an holistic review of these matters, I find that I cannot accept your assertions as sufficient negation of the issues which have been raised concerning your conduct and integrity. As I have stated, I have a statutory responsibility to make a determination about my confidence in you to remain a police officer. I find that I cannot have confidence in your suitability to remain a member of the New South Wales Police Service. I therefore remove you from your position as a police officer.

8 The reasons for removal advanced by the Commissioner at the time make clear that they depend upon findings of fault and raise, somewhat obliquely, questions of potential criminal liability. In determining a review in accordance with the requirements of s181F of the PS Act, s181G extends, save for the express modifications and the provisions of Division 1C of the PS Act, the provisions of the Industrial Relations Act 1996 to an application for a review "in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act. (See the discussion in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at 236.

9 While the reasons for removal do not allege expressly misconduct it is apparent that the nature of the problems there identified are of that character. While s181F(2) maintains the burden, or onus, on the applicant of establishing the removal was harsh, unreasonable or unjust, serious conduct of this kind justifies an approach analogous to that adopted by the Full Bench in SDAEA v Jewel Food Stores (1987) 22 IR 1 at 2 where an allegation of dishonesty relied upon for summary dismissal was held only to be appropriate where an employer is fully satisfied after careful investigation that the accusation has been made out and that the same standard should be applied by industrial tribunals considering reinstatement.

10 The material set out so far illustrates the nature of the issues, about which a considerable body of evidence was called. Before dealing with that evidence, it is appropriate to summarise some of the background to the matter.

Gender-based and Sexual Harassment 11 The Commissioner of Police has adopted a gender based and sexual harassment policy, which assumed some significance in the proceedings. In the Commissioner's Foreword to the policy, a commitment is expressed on behalf of the Police Service "to ensuring all its employees enjoy a workplace free of harassment and discrimination". It is said that all employees must "enjoy a safe workplace, in which we treat each other and our customers with respect and sensitivity. Harassment has no place in our workplace".

12 Sexual harassment is defined as follows: Someone sexually harasses another if:

· they make an unwelcome sexual advance or an unwelcome request for sexual favours,

· they engage in other unwelcome conduct of a sexual nature, when a reasonable person, having regard to all the circumstances, would have anticipated the person harassed would be offended, humiliated or intimidated. Conduct of a sexual nature includes making a statement (orally or in writing) of a sexual nature to someone or in their presence. Behaviour is unwelcome if the individual alleging sexual harassment perceives it to be. It is irrelevant that the behaviour does not offend others or has been an accepted feature of the work environment in the past. Harassment can occur between people of the same or opposite sex and applies equally to both sexes.

13 Thereafter, definitions of verbal and non-verbal sexual harassment are given, including:

14 In explaining that sexual harassment can be criminal conduct, the policy gives examples of criminal offences including:

15 Gender-based harassment is also defined as behaviour based on sex role stereotyping, also known as sex-based harassment. This has no present relevance.

16 One significant aspect of the argument concerning the sexual harassment policy concerns the submission made for the applicant that the incident occurring at the Lawson Hotel, in the absence of the probationary constable, was not sexual harassment within the scope of the policy because it was not at the workplace. The inclusions within the definition contained in the policy, which I have set out above, demonstrate that the policy is not limited to conduct in the workplace. Indeed, it would seem to me that for the policy to be so limited would render it potentially useless in circumstances which could be readily recognised as serious and demanding of treatment. It is obvious that the workplace is intended to be one in which relationships between staff are not affected by conduct between or about colleagues which will have a detrimental effect upon the workplace. The policy is so directed and in my view embraces relevant conduct outside the workplace which has the effect of transgressing the policy and includes conduct of the type alleged against the applicant in the context of the Lawson Hotel incident.

17 These proceedings were affected, to perhaps an unusual degree, by problems arising with respect to the believability of the evidence of witnesses. In particular, the evidence of the applicant was often inconsistent with prior records of interview. The variation, arising from his oral evidence, always occurred in circumstances where the effect was to improve his position on a particular issue. For example, when originally interviewed by the Police Service concerning his conduct in relation to one particular incident, described in the case as the "traveller" incident, he asserted that the probationary constable was shocked by what he had said. In his affidavit evidence and later in his oral evidence he expressed views to the effect that the probationary constable found the matter amusing.

18 In other respects the applicant's evidence was often in conflict with the evidence of other police officers, apart from the probationary constable. In addition, after giving his evidence in these proceedings he made telephone contact with his former girlfriend, a police officer who gave evidence of his conduct, which gave rise to the question whether he had attempted to influence any evidence she would later give in the proceedings. However, she testified he had not made any such attempt - indeed, she said he knew her better than to try. The applicant gave evidence in reply on this question to the effect that he was merely attempting to inform her that she would be called to give evidence. The fact of his unexpected telephone call, during the course of the proceedings, to a person with whom he had had no recent contact, raises a serious doubt about his veracity. The police officer to whom he made that phone call was, at the time of the motor vehicle accident the subject of the first allegation raised against the applicant, a former girlfriend with whom his relationship had discontinued more than twelve months before the call. In relation to that incident, the applicant was accused by another police officer of avoiding detection by absconding from the scene. That officer was in no doubt the person he saw was the applicant, although the applicant denies such activity. The applicant has continually asserted loss of memory about the motor vehicle accident and what he did thereafter, making reference to the stress under which he then was and the consequence of the head injury suffered in the motor vehicle accident. The medical evidence called in the proceedings does not support the view that any memory loss has a medical or psychological basis, although Dr Siegel's evidence demonstrates that the applicant in 1999 was undergoing personal difficulties requiring psychiatric treatment but at a low level.

19 On the other hand, in relation to the sexual harassment claims, the evidence of the probationary constable was very troubling. When pressed on the matter of details concerning incidents in the evidence it became clear that in numerous respects the probationary constable was suffering from a deficit of clear memory. It was also clear that he was suffering from what I would describe, without the benefit of medical opinion, as psychological difficulties. His demeanour as a witness; his aggressive adherence to central aspects of the story and his tendency to anger when those matters were put in question, together with what I would describe as an uncontrollable breakdown as he left the witness box, all raised a question about the reliability of his evidence. However, when the evidence of both the probationary constable and the applicant is put together, it is reasonably clear that the applicant engaged in activity, in the Lawson Hotel incident, which was unquestionably in breach of the Police Service sexual harassment policy.

20 The Commissioner sought to develop the inconsistencies in the applicant's evidence as constituting lies which tended to corroborate the alleged conduct (Edwards v R (1993) 173 CLR 193 at 208-211; but see R v Button; R v Griffen [2002] NSWCCA 159, 9 May 2002 Heydon JA, Greg James, Kirby JJ). However, while I feel some uncertainty about parts of his evidence, I do not consider the applicant to have been deliberately lying in his evidence or in earlier interviews. I also accept his evidence that the telephone calls to Constable Fidden during the course of the proceedings was not for the purpose of influencing any evidence she might give, but merely informative of the position as it may have affected her. I note in that regard the Commissioner's acceptance, in part, that his observations to her were intended to protect her from any resulting difficulty. I also note the strength of character accorded Constable Fidden by the applicant, a matter confirmed to me in her giving evidence, which made her, in the applicant's view, a most unsuitable target for any attempt to influence her evidence. This, too, assists me to the view that the applicant's approach to her was not for any improper purpose.

The Incidents 21 In a record of interview dated 6 March 1999 the probationary constable alleged that in about September/October 1998 he was working at Katoomba with Constable Cassel. They were in the caged truck, checking newsagencies in the early hours of the morning. Constable Cassel was talking: "his usual conversation involving sexual connotation. This involved detailed descriptions of his sexual exploits . . . The next thing I knew he reached over with his left opened hand and slapped the inside of my right thigh in my groin. He left his hand there as he said to me: "Come on, I know you want it". I immediately grabbed his hand and pushed it away and said to him: "Fuck off, you're a sick prick, you are just a sick prick, you need help". . . . . I was angry, furious and confused as to why he would do this to me."

22 On 28 April 1999 Constable Cassel was interviewed by police about this matter amongst others. In response to this allegation, his answer was: It is a crock of shit. I have got a beautiful girlfriend why would I want to approach a male constable for a sexual favour. I am a heterosexual. Can I find out who put this complaint in or not. It is a complete I don't know what to say (sic). I am shocked.

23 In the course of cross-examination, the applicant strongly denied that he had slapped the inside right thigh of the probationary constable. He denied that the probationary constable responded to him with the words the probationary constable alleged he used. He said: I don't think (the probationary constable) had it in him to say something like that.

24 He explained that he had worked with "(the probationary constable) on a couple of occasions and in a few serious, dangerous situations, and he left me alone, stayed in the car, and to my amazement, I was left by myself".

25 He explained his view was that the probationary constable did not have any "ticker" although he would not say he was weak.

26 This incident, taken in isolation, would seem to be of little moment. If the applicant acted as the probationary constable alleged and the latter responded in the way he also alleged, it might be seen as no more than, regrettably, childish foolishness. However, the matter would have thus been dealt with effectively by the probationary constable. The concern expressed by the applicant about whether the probationary constable had the ability to use the language alleged would seem to give the words much more significance and meaning than may have been intended in the context of the event.

27 The significance of this event seems to me to be that it was the first in a series of conflicts between the probationary constable and the applicant in which the latter was seeking to impose himself upon the probationary constable in a way which seems to me not to have been intended to initiate some sexual liaison but rather to make fun of the probationary constable by belittling his life experience, or lack of it.

28 I accept that an incident of the kind described by the probationary constable occurred. Taken in isolation it would seem to me not to constitute sexual harassment in the meaning of the policy. However the response of the probationary constable made clear that any approach or conduct of this kind was offensive to him, or at least not welcome, and would then be capable of lending colour to any further conduct of this type. For example, a repeat of the same conduct could reasonably expect a similar reaction and thus from that time onwards the applicant may be taken to have been aware of the potentiality for breach of the sexual harassment policy.

29 At about the same time as this first incident arose the probationary constable alleges the applicant, at the Katoomba Police Station, stood with his hands on his genitals whilst thrusting his hips towards the probationary constable and saying: "Come on, I know you want it, you want this piece of meat".

30 The applicant denied this allegation. However, a factor going to its probability is the coincidence between the pose alleged by the probationary constable to have been adopted by the applicant and one which the applicant is said by others, without much demur from himself, to have adopted at the Lawson Hotel in a further incident to which I shall come.

31 The second incident alleged, under compulsion, by the probationary constable, which is denied by the applicant, was that at about 11pm on Saturday, 28 November 1998, he was being driven in the police truck by the applicant to a domestic dispute when the applicant ". . . put his hand on my crotch again. It was on the inside of my right thigh near my genitals. He left his hand there again for a split second before I could it push it away. He said to me words similar to: 'I know you want it. I know you want the sausage up your arse'".

32 On 29 November 1998 the probationary constable and the applicant were returning from Parramatta Court to the Blue Mountains in a police vehicle driven by the probationary constable. The applicant had fallen asleep and woke upon arriving at Katoomba Police Station. He found he had an erect penis and said to the probationary constable "I've got a traveller" which was intended to refer to a condition he understood arose from sitting in a vehicle for an extended period. The applicant said that he was embarrassed to alight from the vehicle in that condition. In any event, upon his retort, the probationary constable responded "What do you mean" to which the applicant replied "You know, a hard on". The applicant conceded this conversation although said that he referred to a "morning glory" rather than a hard on.

33 Again, this incident in isolation would amount to little more than surprisingly puerile discussion instigated by the applicant. Its significance again relates to later conduct by the applicant.

34 Bearing in mind that the traveller incident occurred in November 1998, in February 1999 at a police social gathering at the Lawson Hotel, the applicant revived the incident in a performance described by a senior constable present as follows: Constable Cassel then pulled a face and blinked his eyes and he changed his voice and commenced to act as if he was (the probationary constable) . Constable Cassel then said 'I was working with (the probationary constable) in the truck and I asked him if he knew what a traveller was and he said no, so I showed him. We then got back to the station and I got out and showed him what a real traveller was'. During this time Constable Cassel put his hands near his genitals. Constable Cassel then commenced to laugh and then act as if he was impersonating (the probationary constable) making further comments about (the probationary constable). I am unable to remember the exact conversation of what else occurred.

35 Under cross-examination the applicant agreed largely with this representation of the events although he disputed that he said "so I showed him". He gave the following answers: Q. What did you say? A. Well, I don't know what I said.

Q. So, you don't know what you said? How can you say that you didn't say that "So I showed him"? A. I can remember that coming up in the conversation. I know I didn't say "so I showed him".

Q. Then you said "When I get (sic - got) back to the station, I'll show (sic - I showed) him what a real traveller is", you said that? A. I can't remember saying it.

36 The applicant had no explanation for why he put his hands near his own genitals while telling the story about the probationary constable. He explained his conduct in this context as being related to the fact that he was very drunk and that it was immaturity and stupidity. By the time the incident occurred at the Lawson Hotel, whilst the probationary constable was not present, the applicant knew by then that he did not regard as funny the applicant's conduct toward him.

37 Upon being interviewed in relation to this matter another constable made a statement which included the following: Some time during the shift whilst patrolling the upper mountains in the Police vehicle I had a conversation with Constable Cassel. From the best of my recollection, Constable Cassel said "I was working with (the probationary constable) the other week and I was driving along. I said to him 'I've got a traveller'. He said 'What's that'. I then grabbed his hand and placed it here (Constable CASSEL indicated his groin area over his penis). (The probationary constable) then said 'Oh Cameron'." Constable CASSEL then impersonated (the probationary constable's) reaction by shaking his head and smiling.

38 This was said to have occurred on 8 January 1999. Again, this occurred after the applicant knew of the probationary constable's concern.

39 An additional aspect of concern about the Lawson Hotel incident and the applicant's observations to the constable who made the statement in par.37 hereof, is that the probationary constable became aware that the applicant was representing to other police officers that he had caused the applicant's hand to be placed upon his groin. This was a matter never alleged by the probationary constable. However, knowledge of the representations caused him to have a doubt about his own understanding. In cross-examination he exhibited a concern that he may have suppressed any memory of that, consistently with his understanding of his position regarding other, presently irrelevant, incidents in his early life of a sexually abusive nature. I consider it is no point of criticism of him that he should have resisted a full acceptance that his hand was never placed upon the applicant's groin, given these circumstances.

40 Also raised in the allegations against the applicant, as instances of intimidation, were two or three incidents when the probationary constable was sharing a house with another police officer, Constable Fish. The applicant on these occasions was returning to the house with Constable Fish, with whom he had been drinking, on occasion with the applicant's then girlfriend. On these occasions the applicant would tend to jump on the probationary constable's bed, waking him and wrestling in what seems to have been boorish, alcohol-affected behaviour. The applicant suggested in evidence that he did not understand this attention to have been unwelcome to the probationary constable and it seems clear enough that at the time the probationary constable did not complain. In cross-examination it was suggested to him that Cassel and his girlfriend going in to the bedroom was merely harmless fun, to which he responded "You could take it that way".

41 While the probationary constable did not complain at the time to the applicant, he did mention to Constable Michaela Ries that he was constantly being woken by the applicant when he came back from the pub with Constable Fish; he would bounce on the bed to wake him up. The probationary constable had said to her that on some nights he would not even go to sleep worrying that Cassel would come in.

42 Constable Ries brought this to Cassel's attention, receiving the response that it was only meant to be fun and not meant to upset the probationary constable. Cassel said that he would apologise to the probationary constable and refrain from any further behaviour that would make him feel uncomfortable. This conversation appears to have occurred in approximately December 1998 because in that month, it seems, the applicant spoke to the probationary constable using words to the effect "I'm only joking, I don't want you to quit because of me". The applicant explained in cross-examination that he understood that there were a number of factors then causing the probationary constable to consider resigning from the Police Service and this was one of those factors but not necessarily a significant one.

43 The probationary constable was placed in an invidious position by the applicant's behaviour within the context of the sexual harassment issues. Upon being first spoken to by a senior officer about the fact that someone else had lodged a complaint concerning the applicant's treatment of him, the probationary constable seemed to express surprise and perhaps horror by his reaction "Oh, no". The conversation, with Duty Officer Cox of the Blue Mountains Local Area Command on 8 March 1999, then continued:

I said: "It involves an incident between you and Cameron CASSELL (sic) recently in the police truck."

He said: "Oh, no. I don't want anything done about it. He was only joking, I don't want to do this to Cameron. I told them not to say anything. Who told you?"

I said: "I don't think you need to know that (the probationary constable). Look what I have been told is quite serious and I am bound to investigate it.

He said: "I know that, but I am not going to say anything."

I said: "Have you been off sick because of this incident?"

He said: "Yes, well no. I have been off sick and undergoing therapy for this and other things, it's very complicated and I don't want to talk about it.

I said: "(the probationary constable) when are you working again?"

I said: "I'm on at 2pm. I'll speak to you about it tomorrow afternoon. In the interim I want you to reconsider and phone me at anytime if you wish to speak to me."

44 On the following day, 10 February 1999, DO Cox interviewed the probationary constable as follows: I said: "As I told you last night I have been informed by other officers that Constable Cassell forced your hand on to his erect penis whilst you and he were in the police truck recently, is that correct or do you wish to say or make a complaint about this incident?"

He said: "No he never forced his (sic - my) hand onto my (sic - his) erect penis. No. Nothing like that."

He said: "Uhmm. Basically, he just put his hand on my leg. That's all it was. He was only joking due to my circumstances at the time and I have spoken to him about that. I have no idea how you got that one."

I said: "Has Constable Cassell, in this incident done anything to you that amounts to a criminal offence, misconduct or sexual harassment?"

He said: "No. I really don't want to do anything. I have dealt with it. I have spoken to him and if they are concerned for my welfare then it is best to let it lie as this is only a backward step."

I said: "Can I offer you any additional support other that (sic - than) what you are already receiving through Welfare Assistance Branch?"

He said: "No. I am afraid not. I am dealing with it."

He said: "I really don't want anything done about it."

45 Although the applicant's behaviour in this regard was obviously poor and likely to provoke serious irritation to the probationary constable, I do not consider this conduct was intended to be intimidatory.

46 The sexual harassment allegations provide serious difficulties in their resolution. There can be no doubt, based on the applicant's acceptance, that he did engage in conduct which was immature and capable of giving offence although it seems that the probationary constable was irritated or embarrassed by, but took no essential offence at, the less explicit behaviour. The applicant's strong denials of the physical contact alleged by the probationary constable and the associated offensive language stand against the probationary constable's allegations. If I had been persuaded to a sufficient degree that the applicant engaged in that conduct, it would seem to me to be open to the Commissioner to have taken the action of dismissal. However, there is serious difficulty, in my view, in accepting unreservedly the probationary constable's evidence as the full truth of the matter. It is apparent that the probationary constable has experienced difficulties in his personal life which may have influenced the evidence he gave on this issue. His present condition is one which is deserving of great sympathy and I state unhesitatingly that I do not reject his evidence as being unbelievable. However, the resolution of issues in proceedings such as these requires the Commission to form a view based on the balance of probabilities but, because of the nature of the allegations, to a high degree. In the circumstances, I find that I cannot be satisfied to a sufficient degree that the applicant actually engaged in the worst of the conduct alleged of him, that is the hand on thigh or genitals and the particularly expressive offensive language.

47 It is also necessary to observe that had I come to a different view about those matters another element would bear upon the impact of such a conclusion. There is no question that the applicant, had he engaged in that activity, was doing so out of a misguided sense of fun. Whilst his behaviour impacted seriously upon the probationary constable, this was to a degree which the applicant could not have reasonably foreseen and when he was alerted to the applicant's concerns he apologised and desisted, save for the drunken performance at the Lawson Hotel.

48 As I have earlier said, the Lawson Hotel conduct of the applicant constituted a breach of the sexual harassment policy, in that he obviously engaged in conduct sexually humiliating to the probationary constable. Three further things, however, may be said about it. First, it was silly, drunken behaviour and second, it was probably as much destructive of self-interest as potentially damaging to the probationary constable. Thirdly, it is conduct which occurred when the applicant was having to deal with serious difficulties in his personal life and was engaging in excessive drinking as a result. This is a factor which ought be recognised in his favour.

49 I turn to the issue concerning the motor vehicle accident. The evidence is that between 5pm and 5.30pm on 22 June 1999 the applicant arrived at the bar of the Oriental Hotel in Springwood. He obtained a schooner of VB beer and responded to the barmaid with the words "The VB tastes like shit". That barmaid left work at about 6.30pm that evening. Another barmaid who had commenced work at 5pm saw the applicant arrive between about 5pm and 5.15pm. She heard him complain to the other barmaid about the VB and then went on to serve him three or four schooners of Lite Ice beer and four or five schooners of Coca Cola. She observed him to leave the hotel at about 9.30pm to 10pm, with a taxi driver. She said he seemed upset about something but not affected by alcohol. The taxi driver's statement to police indicated that he arrived at the Oriental Hotel to collect a passenger and offered a lift to anybody else to which the applicant responded "I'll get a lift down to the Royal". He then dropped him outside the Royal Hotel.

50 By about 10.30pm that night the applicant's motor vehicle had been involved in an accident. It appears that the vehicle skidded, mounted the concrete kerb and struck a light pole, sustaining extensive damage. The accident was described by the applicant's solicitors in the submissions to the Commissioner as "a major accident . . . . which resulted in a massive collision". There is no issue the applicant was leaving his car at the time of the accident. The applicant believed he suffered an anxiety attack prior to the collision and has maintained that he has no recollection of what he did thereafter given the "enormous amount of anxiety and confusion he experienced following the collision".

51 Senior Constable David Cogno attended the scene of the applicant's accident at about 10.30pm on 22 June. In a statement made by him on 8 December 1999, after recording details of the accident, he then stated:

I was then told something by D.O. MEDARIS. In company with Constable MCCANN I patrolled the back streets around Macquarie Road and Short Street. Near the intersection of Short Street I observed a male person to be in a telephone booth. Upon seeing Police this male person has moved over into the darkness. I then turned the Police vehicle around and stopped near the phone box. At that time I identified the male person as being Cameron CASSEL. Upon seeing Police stop CASSEL has run through the front garden of the premises, jumped a side gate and decamped down the back into the darkness. Constable MCCANN has then chased after CASSEL but was unable to locate him.

We then continued to search for CASSEL. A short time later I spoke with CASSEL's father. He also assisted in the search of CASSEL. We were unable to locate CASSEL and as a result I returned to Springwood Police Station.

52 Having observed Senior Constable Cogno in the giving of his evidence, I am satisfied that he saw the applicant in the way that Senior Constable Cogno described in his evidence.

53 One thus has on the one hand evidence from the applicant and those associated with him in the hotel that night which attest to his having consumed little alcohol. In addition, there is the evidence that he appeared to have been suffering some form of stress on the evening and, through his father, little or no affect from alcohol. On the other hand, there is the fact of the serious collision with a pole; the running from police; and the failure to report the accident. There is also the fact that the applicant was able to telephone Constable Fidden to seek her aid in these circumstances. There is also the fact, perhaps a little more neutral, that he did not report the accident at an early time; any neutrality tends to arise from the medical advice he received not to undertake that process without medical review because of the doctor's apparent concern for his mental health.

54 On 10 May 1999 the applicant's general practitioner, Dr Jain, issued a medical certificate identifying the applicant as suffering from anxiety/stress and that he would be unfit for work until 3 June 1999. He visit Dr Siegel on 20 May and obtained a certificate to the effect that he was "in treatment for adjustment disorder with clinical depression re work stresses. Unable to work 20 May 1999 - 20 June 1999". He visited Dr Siegel on three further occasions between 20 May 1999 and his return from sick leave on 19 June 1999. On 21 June 1999 he was informed by Superintendent Honeysett and Acting Inspector Wallace that he would be transferred on a permanent transfer and with a performance agreement to the Transit Unit. On 22 June 1999 the motor vehicle accident occurred.

55 The Commissioner sought to have the conclusion drawn that Dr Jain did not, or most probably did not, advise the applicant not to undertake an interview with the Police Service regarding the accident until he had seen his psychiatrist. That conclusion depends upon the absence of any record in Dr Jain's medical records to that effect and his inability to recall, in 2002, that he gave that advice in 1999. It is apparent that the applicant, during this period, was undergoing difficulties for which he was receiving treatment from Dr Siegel. An attempt to have the applicant's evidence rejected on this basis seems to me to be too harsh an approach to the issue. I have also taken into account the telephone conversations between the applicant and Constable Fidden during the course of the proceedings. It was submitted for the Commissioner that the conversations had various elements of significance including a tendency to corroborate the suggestion that the applicant had conducted himself, at least at some periods of the night, with a view to avoid being breathalysed. While that situation remains a possibility on the evidence, it is equally possible that the applicant was, at the time experiencing stress and making irrational decisions. I do not consider that, in these circumstances, a finding of one course being more probable than the other would be appropriate. That being so, it is not possible to conclude, as the submissions for the Commissioner suggested, that his conduct indicates he is not a reformed person.

56 The applicant was dealt with in relation to this incident by the charge for which he was convicted and fined; failure to report the accident. Taking all these features into account, I consider the circumstances of the accident and its aftermath do raise serious questions about the applicant's behaviour without providing, because of the countervailing features, a ready conclusion. After much consideration, I have formed the view that the removal of the applicant for this reason would be unreasonable, and in the light of his having been dealt with otherwise, unjust.

57 In coming to that view, I have taken into account a number of different aspects of the evidence. Firstly, the fact of his transfer to the Macquarie Region Transit Unit as a means of managerially dealing with the applicant's behaviour. This procedure carried the support of Superintendent Filewood and the management of the performance of the applicant involved Region Commander B W Johnston, who called upon the Local Area Commander, Holroyd, for close monitoring "with a view to ensuring there is favourable behavioural modification" on the applicant's part. There he earned the respect and support of his commanding officer, Inspector P L Roots, who expressed his view of the applicant in a statement tendered in evidence. He recorded the applicant's reporting to him on his first day in the Unit and identifying the departmental issues for which he was then under investigation, namely the harassment and motor vehicle accident matters. Inspector Roots continued: As he was not on any form of restricted duties he was rostered accordingly. His rostered duties involved working with both male and female officers of junior and senior rank. In a short period of time I found Cameron to be a highly motivated, enthusiastic and professional police officer. He constantly performed at the highest standard, resulting with him being entrusted with the command of a number of operations of which he was the instigator.

Cameron and I also formed a personal relationship, which I still enjoy. Besides sharing the occasional game of golf he has regularly visited my home and associated with family members. Again, he has always displayed conduct of the highest standard.

I find the issues for which Cameron has been discharged totally out of character.

58 In a contemporaneous report to his Superintendent, Inspector Roots (then a senior sergeant) reported that he had entered into a performance agreement with the applicant. He said: I am constantly in contact with the constable and the communication between us at the present time is excellent.

Upon taking command of the Macquarie Transit Police in August, 1999 I was informed that Constable Cassel was under investigation for a number of issues and that his performance should be monitored. I have done this and found him to be a very keen young man and quite a professional police officer. However, he does act a little immature at times and speaks without thinking.

Overall, I consider that the constable is adjusting well to the duties of the Transit Branch and his performance is considered well above average.

59 On 2 March 2000 he gave a further report which included reference to the fact that "Constable Cassel has just recently been elected as the constables representative and appears happy to accept the responsibility of the position. The constable has settled in very well and is considered an asset to this command." There were also tendered in evidence statements from Leading Senior Constable G D Weeks, Senior Constable H Smith and Senior Sergeant P D Rackley, all of which spoke very highly of the applicant. For example, Senior Sergeant Rackley directly commanded the applicant between January 2001 and February 2002 in the Macquarie Region Transit Unit. He stated: During the period I had managerial control and supervision of Constable Cassel I found him to be a reliable officer with a sound knowledge of his functions. Further, on the occasions I observed him interact with the public he always expressed himself in a polite and efficient manner. As the Commander of the Transit Unit I had daily contact with Constable Cassel's immediate Supervisors, none of whom have ever expressed dissatisfaction with the Constable's conduct. Similarly, I have never had any complaints by Constable Cassel's fellow workers about his actions or behaviour toward them or members of the public. Likewise, I have never received or dealt with any complaints by members of the public or the Ombudsman Office in relation to Constable Cassel.

From my observations, as Commander of the Macquarie Region Transit Unit, I regard Constable Cassel to be a professional and conscientious member of the unit who performs his duties to a most satisfactory standard.

60 It was submitted for the Commissioner that each of the character witnesses, Roots, Weeks, Smith, Rackley and Lovan, made significant concessions in cross-examination: Inspector Roots regarding the expressive offensive language and the others by exhibiting a lack of knowledge of the allegations against the applicant. It was for these reasons, it was submitted, their character evidence was of lessened value. However, once the weight of the case against the applicant on the two issues constituting the Commissioner's reasons for removal is assessed in his favour, or at least not against him, the character evidence may be seen as retaining a persuasive value.

61 I take into account also the fact that the applicant worked in the Transit Unit for more than 12 months, after the occurrence of the events complained of, with no problems emerging and his earning support of his immediate supervisors.

62 Looking at this matter in an overall way, the applicant has obviously engaged in poor conduct which is deserving of criticism. An analysis of the evidence in relation to those matters, however, does not produce a clear picture of a police officer who conducted himself in so serious a fashion as to support the relevant loss of confidence. That view is taken having regard to the content and balance of the evidence. On the other hand, the applicant has much to commend him. That material includes his prior policing activities and those activities subsequently undertaken in the Transit Unit. In all of the circumstances, I am satisfied that the applicant has made out a case for a conclusion that his removal from the Police Service was unreasonable and involved elements of injustice. I do not consider his removal to have been harsh.

63 I have also considered, as required by s181F(3) of the PS Act, the public interest and that the Commissioner made the order pursuant to s181D(1). I am satisfied the return to service of the applicant will not have any detrimental effect upon the public interest. I have also considered the Commissioner's decision having been made as described, but in the circumstances of my conclusions, based on the evidence, that cannot dictate any result.

64 While I have found this matter to be close to the borderline, I consider on balance that the removal of the applicant from the Police Service in these circumstances was unreasonable and unjust. As I have found, the applicant's conduct was deserving of censure and I consider the managerial action taken to remove him to the Transit Unit under a performance agreement was a suitable response. However, given the difficulties I have found in resolving this case, I consider the applicant's reinstatement to the NSW Police ought be prospective only, without loss of seniority but without any benefit being extended to him for the intervening period since dismissal. The evidence establishes that he did obtain alternative employment in his former trade of butchering during this period.

65 I order that the applicant be reinstated in the NSW Police at his former rank effective from 28 April 2003, with continuity of service excluding the period between 7 February 2002 and 28 April 2003, but without salary entitlement for the interregnum.

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