Commissioner of Police v Brennan

LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990, s181E, 181D, 181F, 181G

Commissioner of Police v Brennan [2008] NSWIRComm 52 CASES CITED: Commissioner of Police v Evans [2006] NSWIRComm 170 Johnston v Commissioner of Police [2007] NSWIRComm 293

HEARING DATES: 7 & 8 July 2008 and 10 July 2008 (written submissions); 11 September 2008(further oral submissions)

APPLICANT Mr A Metcalfe of counsel Solicitor: Walter Madden Jenkins Solicitors LEGAL REPRESENTATIVES: RESPONDENT Ms J Oakley of counsel Solicitor: Henry Davis York Lawyers

Application for review of an order under s 181E of the Police Act 1990

1 In these proceedings brought under s 181E of the Police Act 1990 ("the Act") the applicant, Ricci Allan Dallas Toshack, seeks a review of an order made by the Commissioner of Police under s 181D of the Act removing the applicant from the New South Wales Police Force. The order for removal was made on 27 November 2007 and contained a Statement of Reasons. That Statement refers to a notice previously issued to the applicant directed to the applicant's conduct and integrity by reference to a number of grounds and to a response to that notice given by the applicant. The Statement of Reasons refers to the grounds and the material provided by the applicant in response and concludes that nothing had been put by the applicant that would deter the Commissioner from making a determination that the applicant be removed from his position as a police officer. The statutory matrix

2 These proceedings are conducted against a statutory background that involves provisions of the Act as well as the Industrial Relations Act 1996. Relevantly, I set out ss 181D, 181E and 181F of the Act. 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. (5) The removal takes effect when the order is made. (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, "tribunal" means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action.

181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1).

181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 3 The work of this Commission in reviewing the Commissioner's decision is carried out under Part 6 of Chapter 2 of the Industrial Relations Act 1996. This is provided for by s 181G of the Act which is in the following terms. 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. The grounds relied upon by the Commissioner

4 These grounds are said in the Statement of Reasons to refer to the applicant's conduct and integrity. The grounds arise out of proceedings in the Bathurst Local Court in which the applicant was the informant and which followed the arrest of the defendant by police officers. At the time the applicant was stationed at Oberon police station. The arrest had occurred on 30 May 2006 and the matter was set down for hearing in Bathurst Local Court on 14 September 2006. On 22 June 2006, the applicant was advised that a brief of evidence against the defendant was to be served on the defendant's solicitor by 17 July 2006. The applicant put together a brief of the evidence but was advised on 11 July 2006 that a statement taken by the applicant from a Mr Duggan, who had been allegedly assaulted and whose property had been damaged by the defendant, was missing. The police prosecutor, Sergeant Brett Donaghy, contacted the applicant on 31 July 2006 and again on 14 August 2006 enquiring whether the missing statement of Mr Duggan had been served. On 13 September 2006, Sergeant Donaghy again made contact with the applicant because he had been informed by the defendant's solicitor that the statement of Mr Duggan had not been served. At that stage, the applicant advised Sergeant Donaghy that the statement had been forwarded by facsimile to the Bathurst Court Process Unit "weeks ago". The applicant said that he was unable to provide proof of the facsimile transmission. On 5 September 2006, the applicant caused a subpoena to give evidence to be issued to Mr Duggan to attend Bathurst Local Court on 19 September 2006, being a date that was incorrect. On the morning of the hearing the applicant realised that Mr Duggan had been served with a subpoena showing the incorrect hearing date. The applicant did not disclose this to Sergeant Donaghy prior to the commencement of the hearing but told him that Mr Duggan was unable to attend Court to give evidence because he had to stay at home to care for his sick children. This was a lie. Sergeant Donaghy applied to the presiding magistrate for an adjournment admitting that due to an administrative error, the statement of Mr Duggan had not been served and informing the magistrate of a reason for Mr Duggan's absence from Court which the applicant knew to be false. The application for an adjournment was refused and Sergeant Donaghy was unable to offer any evidence. The assault and malicious damage charges were dismissed. 5 There was also before the Court an AVO application brought by Mr Duggan against the defendant in the proceedings. The Statement of Reasons alleges that the applicant "did not consult with Mr Duggan before instructing Sergeant Donaghy to withdraw Mr Duggan's AVO application…. and as such the AVO application was withdrawn." 6 The Statement of Reasons continues in part: "On 23 November 2006, you were interviewed under direction. You admitted that you had received memos from Sergeant Donaghy regarding the whereabouts of Mr Duggan's victim statement, however you maintained you sent the victim statement to the Brief Handling Manager by facsimile. You were unable to access the transmission records to prove that the statement had been sent. In your interview you admitted that you lied to Sergeant Donaghy in court, when you told him that Mr Duggan would not be attending to give evidence because his children were sick, and he had to stay home to care for them. You said you told Sergeant Donaghy something that was not true because you realised that you had made an error with the date on the subpoena. You wanted the matter adjourned so that Mr Duggan would have the opportunity to attend court. You also admitted that you did not consult with Mr Duggan before instructing Sergeant Donaghy to withdraw the AVO. Your conduct in this matter has brought discredit to the New South Wales Police Force and you have breached the New South Wales Police Code of Conduct and Ethics - 'Statement of Values' and 'Guide to Ethical Decision Making' when you failed to provide the victim statement after repeated requests to do so, and when you deliberately lied to Sergeant Donaghy regarding the absence of Mr Duggan in court on 14 September 2006." "You have also breached the Code of Conduct and Ethics - 'Customer Rights' and section 6.1, 6.4 and 6.5 of the Charter of Victims' Rights (as set down in the NSW Victims' Rights Act 1996), when you failed to provide adequate support to Mr Duggan, keep him updated throughout the investigation and consult him before seeking to withdraw his AVO application." 7 The Statement of Reasons then refers to some material within the applicant's written response and I set out in part that reference. "On 22 October 2007 I received a written response to the ground set out in my Notice to you, which was provided by way of your legal representative. I have read and carefully considered your written response. I have taken into account the issues you have raised, and I acknowledge that around the time of the incident you state that you were experiencing stress due to various circumstances that may have impacted on your decision making process. While the reasons of mitigation that you have raised in your written response may in part explain, and have contributed to your 'absent mindedness' at the time, I am unable to balance the reasons of mitigation against your untruthfulness to an officer of the court; you had an opportunity to be honest with the prosecutor but you chose not to. Consequently your actions, and inactions, had serious repercussions for the victim in this matter, Mr Duggan, who without doubt deserved 'his day in court'." The evidentiary material

8 The applicant's case was, in summary, that in large measure he admitted the allegations of misconduct and the breach of integrity brought by the Commissioner. There were some matters of detail that the applicant disputed, to which I shall shortly refer. The applicant did not claim that the decision of the Commissioner to remove him as a police officer was either unreasonable or unjust, as referred to in s 181E(1). Rather, the applicant asserted that in all the circumstances his removal was "harsh" having regard to a number of mitigating factors which I shall describe later in these reasons for decision. For present purposes, I note that they extend to a number of personal circumstances, which applied to the applicant prior to and at the time that these events occurred, and an expressed measure of support by senior police officers in the Armidale region, where the applicant was situated at the time he was removed as a police officer, for his reinstatement. 9 The applicant raised a number of matters where he took issue with the factual circumstances relied upon by the Commissioner. Only two of these are relevant to the Statement of Reasons given by the Commissioner. The first is an assertion that the applicant did not consult with Mr Duggan before instructing Sergeant Donaghy to withdraw Mr Duggan's AVO application. An affidavit of Sergeant Donaghy, which became an exhibit in the proceedings, demonstrates that this assertion is incorrect. The applicant was asked to make contact with Mr Duggan to see whether he would agree to withdraw the AVO. The applicant told Sergeant Donaghy that he was unable to contact Mr Duggan but had left messages on his mobile. Sergeant Donaghy asked the applicant whether he thought that Mr Duggan would object to the AVO application being withdrawn on the basis of the defendant giving written undertakings to the Court in the same terms as the AVO application. The applicant responded that he did not think that Mr Duggan would object to the undertakings being given. Based on this evidence, it could not be said, in my opinion, that the applicant had instructed Sergeant Donaghy to withdraw the AVO application. Rather, he had expressed an opinion as to whether Mr Duggan would agree to that course. 10 The next area of disagreement is an assertion that as a result of the dismissal of the charges against the defendant, Mr Duggan was unable to claim compensation for damage caused to his property. Again, there would appear on basic principles to be no basis for this assertion. The dismissal of the criminal proceedings after the prosecutor offered no evidence would not appear on a prima facie basis to raise any barrier to civil proceedings being commenced by Mr Duggan against the defendant. 11 Apart from these matters, however, the applicant did not dispute, "that the factual basis for the removal is substantially made out." The applicant's case of mitigation

12 In essence, the applicant submitted that there were mitigating factors that rendered the removal from the police force harsh. These were to be taken into account in the context of the application of the provisions of s 181F of the Act and in particular sub-s 3(a). This requires the Commission to have regard to the interests of the applicant as well as the public interest in determining the outcome of the review. 13 In considering the interests of the applicant, it was submitted on his behalf that I should take into account the following matters. 1. At the time of his removal from the police force, he had been a member since 31 August 2001, during the first 12 months of which he had been a probationary officer. He had attained the rank of senior constable on 31 August 2006. 2. From late 2005, and into 2006, the applicant encountered some personal difficulties both at home and at work. His wife suffered a period of post-natal depression after the birth of a child in February 2006. This imposed a greater burden on him. Furthermore, the applicant experienced an increase in his workload which, when combined with his personal circumstances, caused stress leading to him becoming forgetful. 3. The applicant was involved in the investigation of the death of an 11-year old boy which occurred on 16 April 2006. He found this to be traumatic because he had a son of similar age. Following this incident, he experienced insomnia and repetitive nightmares and sought counselling in April 2006, although he continued to work full-time. 4. The applicant said that he experienced "some problems" in dealing with Sergeant Donaghy and the Brief Handling Manager based at Bathurst Police Station concerning the preparation of briefs for prosecutions and the delay in compiling briefs. 5. The applicant determined to lie to Sergeant Donaghy in order to assist in obtaining an adjournment rather than to disclose that Mr Duggan's absence from Court was a result of his own mistake in incorrectly nominating the date of hearing in the subpoena. 6. The applicant apologised to Mr Duggan and his wife on the day of the court case at the Oberon Police Station for what had occurred. 7. The applicant freely and unreservedly admitted for the purpose of the proceedings that he had breached the Commissioner's "Statement Of Values And Customer Rights" and had failed to adequately apply the Commissioner's "Guide to Ethical Decision Making." 8. The applicant said that he had personally apologised to Sergeant Donaghy for what had occurred on the day of the court case. 14 Furthermore, the applicant says that he has suffered both personally and professionally as a result of his errors and his standing in the eyes of his family and work colleagues has diminished accordingly. 15 In his affidavit evidence, the applicant deposed to the impact that his removal from the New South Wales Police Force had upon him. He described it as "a devastating blow" and of the shame and embarrassment that this had caused him. He said that he has felt extreme anxiety and has become forgetful. There has also been an adverse impact on his relationship with his wife who is a serving police officer. Furthermore, there has been a consequent financial loss. 16 The applicant added when describing the impact of his removal upon him that, "Further, I feel deeply disappointed and saddened that my mistake generated by the conditions and factors associated with employment as a police officer has been so harshly penalised seemingly without empathy, understanding or compassion by the New South Wales Police Force." 17 As part of his case, the applicant led evidence from a number of police officers in support of his application for reinstatement. The applicant had transferred to the New England Local Area Command in about July 2007 consequent upon his wife's transfer to that command. His wife is a serving police officer and there is an entitlement for a spouse police officer to receive a transfer also. 18 Detective Inspector Stier is the relieving Local Area Commander based in Armidale. He had not met the applicant prior to his transfer in July 2007. He said that he found the applicant to be a very competent professional and passionate police officer and had received positive comments from members of the public who had dealt with the applicant. Detective Inspector Stier said in his written statement, "When the applicant was accepted into the Command, I was aware of the background to the incident, which had occurred at Chifley Local Area Command. Superintendent Cushway and I discussed the incident and risk of accepting the applicant into the New England Local Area Command. Notwithstanding this, I had no hesitation in accepting him and I found my judgment was vindicated by the applicant's subsequent performance…. I support the applicant's reinstatement to the NSW Police Force. I have witnessed the applicant to be a very capable, hard-working officer. The Police Organisation has mechanisms in place to closely monitor staff who may be of risk. I honestly believe the applicant has learned from his mistake, he has shown he is genuinely still passionate in policing New South Wales. The applicant I believe has a lot to offer to the New South Wales Police Force, he is a person who I have the utmost respect for as do the majority of his hard-working peers." 19 Detective Inspector Stier arranged alternative employment for the applicant when he was removed from the force. 20 Detective Inspector Stier was required by the respondent for cross-examination on his written statement. I found him to be an impressive witness and I accept his evidence unreservedly. 21 Inspector Matthew Lynch is also attached to the New England Local Area Command. He was also impressed by the applicant's work commitment and work ethic and was further impressed by the applicant's ability to perform a supervisory role on a shift. Inspector Lynch said that if the applicant were reinstated "I would have no hesitation in accepting him to work at this location as I have not observed any adverse qualities displayed by him that would prevent him providing a required and satisfactory level of service." Inspector Lynch was aware of the grounds relied upon by the Commissioner in removing the applicant from the force. 22 Sergeant John Walkowiak is also stationed at Armidale. He supervised the applicant after his transfer from Oberon. He recommended the applicant be placed in a relieving pool so that he might relieve in a position of sergeant. Sergeant Walkowiak also commended the applicant's work performance in a similar manner to the other witnesses to whom I have referred. 23 Detective Superintendent Cushway was responsible for recruiting the applicant in July 2007 as the Commander of the New England Local Area Command. He had previously met the applicant when he was serving as a probationary constable. Notwithstanding that he was aware of the outstanding disciplinary enquiry into the applicant's conduct, he determined to accept the applicant into his command. Detective Superintendent Cushway said, "I am prepared to endorse the applicant as a hard-working and professional police officer. The applicant's performance under my command would be considered to be above satisfactory….I did not have cause to challenge or intervene in performance issues, nor any disciplinary concerns….I do not consider it appropriate, given the nature of the matter that initiated his dismissal, to make comment on the applicant's integrity." 24 Detective Superintendent Cushway accepted the applicant into his command on the basis that "I had been advised by his former Commander that he had made full and frank admissions to the incident and was attempting to rebuild his career." He noted that the applicant had expressed remorse for his actions "and indicated a genuine desire to make a fresh start in New England." 25 Detective Senior Constable Brooks had known the applicant for about ten months on a personal and professional level at the date of making his statement, namely 23 April 2008. He was complimentary of the applicant's conduct as a "dedicated father", and the applicant's people skills and his ability to relate to people of all walks of life. Detective Senior Constable Brooks has observed the applicant after his removal from the force and has attested to the "personal toll" that his removal has caused. 26 This evidence in the aggregate represents a formidable body of support for the applicant's reinstatement into the police force, especially as the applicant's reinstatement is supported by very senior operational police officers. The Commissioner's case

27 The respondent expressed concern about the lack of integrity and the dishonesty displayed by the applicant during the course of the events to which I have earlier referred. It is obvious that it is essential that the Commissioner ensure that police officers conduct themselves with the highest level of integrity for reasons that it is unnecessary to state. 28 Furthermore, it was submitted on behalf of the respondent that the applicant had conducted himself inappropriately on other occasions exhibiting the same kind of behaviour. 29 At some time prior to April 2006, the applicant's supervisor, Senior Constable Thompson, of Oberon Police Station, had expressed concern about the management of certain cases being conducted by the applicant. He had raised this matter with Detective Inspector Stinson, the crime manager at the Chifley Local Area Command, who forwarded a memorandum to the applicant dated 4 May 2006 requiring an explanation for the delay in dealing with a particular investigation. The applicant responded on 13 May 2006. He gave a number of reasons for his inability to conclude the investigation. During the course of that reply, the applicant said, "Also during the months of January, February and March 2006, I was absent on leave following the birth of my son. There was no assisting Police attached to the matter and the case was not reallocated during my absence…." 30 In cross-examination, the applicant was asked about how much leave he had taken during the months of January, February and March 2006. It transpired that during these three months he had taken leave between 30 January and 8 February 2006, on 9 February 2006, between 13 February and 22 February 2006 and on 23 February 2006. He had not taken any leave during the month of March. It was said that the information conveyed by the applicant was incorrect, misleading and indicative of a lack of integrity on his part. Whilst it was submitted on behalf of the applicant that the information was partly correct, it is my impression that the words used by the applicant are more capable of indicating a substantial absence from work throughout the months of January, February and March 2006, contrary to the reality of the situation. I would conclude that based on this attempt by the applicant to explain the delay in concluding the particular investigation that he was prepared, on this occasion, to colour his response so as to present it in the best possible light, and in a manner that was misleading and incorrect. 31 The respondent also relied upon the evidence given by the applicant in cross-examination in these proceedings and his demeanour while doing so. 32 The applicant was cross-examined about the circumstances surrounding the compilation, service and contents of the prosecution brief of evidence. An order had been made on 20 June 2006 by the Bathurst Local Court directing that the police brief be served by 17 July 2006. The applicant accessed the computerised operational policing system (COPS) on 22 June 2006, and was therefore made aware of the date for service of the police brief. On 11 July 2006, the applicant was made aware through a COPS communication that Mr Duggan's statement was missing from the brief of evidence. 33 As it transpired, Mr Duggan's statement, which had been recorded by hand in the applicant's police notebook, was never made available to the prosecutor or to the defendant's solicitor. The applicant eventually prepared a typed copy of that statement which he gave to the prosecutor on the morning of the hearing, namely 14 September 2006. He said, however, that he thought that he had sent a copy of the typed statement by facsimile, but none was received by the police prosecution branch in Bathurst. 34 On Monday 14 August 2006, the prosecutor had sent to the applicant an electronic transmission that said, in part, "Have you finished the brief? If so, have you served the remainder?" 35 The applicant was asked in cross-examination whether he had done anything about providing a copy of Mr Duggan's statement for inclusion within the police brief. The applicant gave the following evidence. "Q. You did not in fact do anything about it, did you? A. No, that's not true.

Q. You didn't send a copy of the victim Mr Duggan's statement from in your notebook, did you? A. Not in that immediate instance, no.

Q. You did not prepare a typed statement from Mr Duggan, did you, at that time? A. Not at that exact time, no.

Q. So it is the case, isn't it, for at least a month you did nothing about that recording, did you? A. No, that's not true. I made some enquiries as to what the possibility of it not being included or how I overlooked that.

Q. You made some enquiries; who did you make the enquiries of? A. They would have been personal enquiries, looking through paperwork I had on hand, of course checking my notebook

Q. I will let you finish. A. Again checking through the part brief I would have had on hand, working out how that error would have occurred and what I could do about it.

Q. You accept you did not send a copy of the Duggan statement that was recorded in your notebook? A. Not until around 10 August, no.

Q. You certainly did not prepare a typewritten statement, did you? A. No. Again, I did that on 10 August also.

Q. It is the case, isn't it, that you were contacted by Sergeant Donaghy on 1 August 2006 chasing up the whereabouts of the victim's statement? A. I do recall being contacted by Sergeant Donaghy at some stage, yes.

Q. Shortly after the conversation I suggest to you was on 1 August 2006, you accessed the COPS system in regard to this particular matter between Mr Duggan and Mr Bailey, didn't you? A. That would probably be correct, yes.

Q. That entry told you I should tell you the date on 3 August 2006 you accessed the COPS system in relation to this matter and you became aware from looking at the entries for this matter of the hearing dates, didn't you? A. I would have; that information would have been available, yes.

Q. You were aware of the missing victim statement? A. Yes.

Q. It is the case, isn't it, it was not until 10 August 2006 that you did anything about the missing victim statement? A. That's correct.

Q. At that point you typed up the victim statement that was recorded in your notebook? A. Yes." 36 Later, the applicant gave this evidence. "Q. It is the case, isn't it, on 14 August 2006 Sergeant Donaghy sent a facsimile to you? A. Sorry, what date?

Q. 14 August 2006? A. I don't recall a facsimile, no.

Q. I show a document which is Annexure E to Sergeant Donaghy's statement (Shown). Have you had a looked at that document? A. Yes, I have.

Q. That is a document that you received, isn't it? A. That is actually a print out of an internal memo sent on the computer system.

Q. You did not contact Sergeant Donaghy in response to that document, did you? A. Not immediately in response.

Q. Did you say you contacted him in relation to it? A. I believe I made enquiries with a person by the name of Joanne Dennis.

Q. Did you contact Sergeant Donaghy in response to that memo? A. I can't be sure whether I contacted him directly. I am sure of the contact I made with Joanne Dennis who is the brief handling manager at Bathurst.

Q. Are you sure you did not contact her on 15 September? A. I'm sure I had a few contacts; she is the brief handling manager and my contact through all this correspondence.

Q. Is it the case, you say, your response to receiving this memo was to contact Ms Dennis? A. I believe so, yes.

Q. You believe so or was that in fact your recollection that you did? A. I obviously can't be sure of the dates. She would have been my contact for referring correspondence in relation to this brief.

Q. Do you have any recollection of what your response to this memo was? A. No idea.

Q. You don't? A. Not specifically, no.

Q. I suggest in fact you didn't contact either Sergeant Donaghy or the brief handling section in response to that memo, what is your response to that? A. I believe that is incorrect, as I prepared the statement on 10 August and I wanted to insure it did get included in the brief." 37 The applicant was then asked questions concerning the preparation and service of the subpoena on Mr Duggan which contained the incorrect date. His evidence was to the following effect: "Q. And you didn't communicate with Mr Duggan after the subpoena had been created, did you? A. I can't be sure of the contact I had with Duggan, it was relatively informal and frequent enough I didn't have an official contact with him at that time that I can recall.

Q. Let's just concentrate on what you do recall? A. Yep.

Q. You didn't ring up Mr Duggan after you had created the subpoena and ask him if he was able to appear in court on that day did you? A. I don't recall a specific phone call like that, no.

Q. You didn't have one did you? A. I can't be sure of the contact I had with him, I simply can't recall the events around that time.

Q. Is it the case that for the weeks prior to this hearing on the 14 September 2006, you simply have no recollection of any dealings with Mr Duggan at all, is that your evidence? A. I simply can't be specific enough to comment.

Q. Well, do you have any recollection in the month prior to the hearing of any contact at all with Mr Duggan? A. I have recollections of seeing Mr Duggan in public, giving him a wave or a nod or saying hello. Certainly I have recollection of seeing him at place of work at the Oberon Correction Centre so I believe instances were there for me to have contact with him, I just can't recall the specifics of any of those conversations.

Q. It would be the case you would have no recollection of discussing the Bailey case with him, Mr Duggan, in the month prior to the hearing that was set down for the 14 September? A. Again I can't specifically comment on a time or place where I had a conversation like that.

Q. It is the case, isn't it, that you simply can't say that you did have any conversation about that matter with Mr Duggan in the month prior to the hearing? A. Again I am not prepared to say I didn't because I know the opportunities were there for that to happen.

Q. I am actually asking about your recollection. I want to make that clear. It is the case, isn't it, that you have no recollection of having such a conversation? A. Not specifically.

Q. Or generally? A. Like I said there were numerous opportunities and contact but I.

Q. I just want to see if we can do this efficiently. Do you have any recollection of any conversation with Mr Duggan in which you discussed with him the date of the Court hearing? A. No I don't have any specific recollection." 38 Counsel for the respondent then returned to the question of the statement of Mr Duggan and the applicant gave this evidence: "Q. Now the day before the matter was set down for hearing, that is the 13 September 2006, you were contacted by Sergeant Donaghy again weren't you? A. I can't recall that specific contact either.

Q. Is it the case that you have no recollection that Sergeant Donaghy contacted you and told you that the victim's statement was still missing? A. I do recall being contacted at some stage by Sergeant Donaghy and as a result of that conversation I attempted to access our facsimile records from Oberon Police Station and make an effort to prove to him I did in fact fax the statement on or around the 10 August.

Q. So just to make sure I have understood; it is the case that you have no recollection of Sergeant Donaghy contacting you on the 13 September but you do have a recollection of attempting to access the fax records at Oberon Police Station, is that your evidence? A. That's right.

Q. It would be true to say, wouldn't it, that on the 13 September 2006 you were aware that no victim statement had been served on the defence in the Bailey/Duggan matter? A. I am again I am not sure. Obviously I was aware early on that that statement was missing from the brief. Through my efforts I believed that it was now part of the brief and I was unsure of that being the case.

Q. So you went to have a look to see what records were held on the fax machine? A. That's right.

Q. But you were unaware of really why you were doing that, is that the case? A. No, not at all. I was trying to prove the fact that I had in fact sent the statement in to Bathurst to be included in the brief.

Q. But it is not the case, is it, that you sent another copy of the victim statement is it? A. No." 39 This evidence is to be contrasted with other evidence given by the applicant in the proceedings. In an affidavit dealing with the affidavit sworn by Sergeant Donaghy, the applicant said that he was unable to say whether or not he was aware on or around 11 July 2006 that Mr Duggan's statement was missing from the brief of evidence, whether he received any memorandum from Sergeant Donaghy on or about 1 August 2006 or whether he spoke to him in relation to the missing statement, and that he had no recollection of receiving any further memorandum from Sergeant Donaghy about the missing statement or of speaking to Sergeant Donaghy the day prior to the hearing. To the best of his recollection he said that he had faxed a copy of the typed version of Mr Duggan's statement to the Brief Handling Officer at Bathurst Police Station on about 10 August 2006. 40 My assessment of the oral evidence given by the applicant is that his answers were evasive and he attempted to rationalise what might have occurred rather than giving evidence about what had actually occurred and specifically as to his recollection. He was prepared to state on a number of occasions that he "believed" that certain things had happened or that they may have happened without any real basis, in my opinion, for having so asserted. The evidence as a whole appears to constitute an attempt to reconstruct a version of events favourable to the applicant without any appropriate factual basis. The evidence as a whole demonstrates, in my opinion, that the applicant was not prepared to confront reality, namely concede that he had failed to include Mr Duggan's statement within the police brief. 41 It was the evidence of Sergeant Donaghy, which I accept, that Mr Duggan's statement was an essential and integral part of the police brief. It was he who was the victim of the alleged assault and without that statement and the evidence of Mr Duggan, I accept that the prosecutor was unable to prove any case against the defendant in the proceedings. 42 A transcript of the evidence before the presiding magistrate at the Bathurst Local Court on 14 September 2006 shows that her Honour was not prepared to grant the prosecutor's application for an adjournment predominantly because the defendant was present but Mr Duggan was not present. Furthermore, "the detriment and the prejudice" to the defendant was "strengthened by the fact that he has not had the witness statement of the alleged victim." 43 In forming an opinion as to the evidence given by the applicant that is adverse to his interests, I am not concerned with, and I am prepared to put aside, the circumstances in which the applicant failed to complete the prosecution brief in a timely manner. I am, however, concerned with what I regard is his failure to give his evidence in these proceedings in a forthright and appropriately unequivocal manner. His propensity to rationalise his evidence in the manner that I have described was said by counsel for the respondent to go to the applicant's integrity and to reflect adversely on his integrity. I agree with this submission. The principles to be applied

44 I have already referred to the provisions of s 181F of the Act which set out the methodology to be applied in considering these proceedings. 45 Whilst there are a number of authorities, including authorities at appellate level, which deal with these provisions, the exercise is essentially one of balancing the respective interests of the applicant and the public interest having regard to the evidentiary material and having regard to the three matters referred to in s 181F(1). Some general statements of principle are to be found in Johnston v Commissioner of Police [2007] NSWIRComm 293 at [28] and in Commissioner of Police v Evans [2006] NSWIRComm 170 at [5] and [71] to [76]. 46 The significant matter contained within the Commissioner's Statement Of Reasons was the fact that the applicant lied to Sergeant Donaghy concerning the inability of Mr Duggan to give evidence. There can be no doubt that this misconduct occurred and that it was, in all the circumstances, serious. The Commissioner also relied on the failure of the applicant to complete the police brief in a timely manner, especially by failing to include the statement of Mr Duggan within it. I agree that this is a matter of significance, albeit of a less serious quality than the untruthful statement made to the prosecutor. 47 The third factual matter relied upon by the Commissioner in his reasons was the failure of the applicant to consult with Mr Duggan before instructing Sergeant Donaghy to withdraw the AVO application. I am not persuaded on the evidence, including the evidence of Sergeant Donaghy, that the applicant represented to Sergeant Donaghy that he had in fact made contact with Mr Duggan. To the contrary, he told Sergeant Donaghy that he had not made contact with Mr Duggan and in response to a question from Sergeant Donaghy he proffered an opinion only. 48 The reasoning of the Commissioner focuses on the applicant's integrity and honesty. 49 Integrity and honesty are integral characteristics that must be displayed by members of the New South Wales Police Force at all times. The public interest demands this. (See, for example, Commissioner of Police v Brennan [2008] NSWIRComm 52 at [66]). I am of the opinion that the Commissioner was entitled to remove the applicant from the New South Wales Police Force in all the circumstances based on the Commissioner's lack of confidence in the applicant's integrity. This, however, does not dispose of the matter because the task confronted by this Commission in considering reviews of the Commissioner's decision extends beyond a mere consideration of the reasons for the decision of the Commissioner to remove the applicant from the police force. 50 In essence, the applicant submitted through his counsel that his removal from the New South Wales Police Force was harsh because: "28 it involved a single instance of aberrant behaviour that occurred in police career spanning 7 years and that occurred in circumstances where the Applicant was suffering from considerable personal and professional stress; (ii) although the dishonesty was serious, it has been mitigated significantly by the full admissions and co-operation of the Applicant in the investigation process and the genuine expressions of remorse that he has made not only to the victim in relation to his mistakes in the investigation process, but also to his colleagues. [29] Moreover, the removal is relevantly harsh because of the Applicant's prior good conduct and excellent post-event good conduct extended for over a year before the removal. [30] It is significant to have regard to the opinion of his superior and peers at the New England Local Area Command as to the Applicant's abilities as a police officer in that period, in particular when examining his integrity." 51 As I have earlier indicated, I was impressed by the substantial evidence given on behalf of the applicant by fellow police officers including senior members of the force who now work with the applicant in the Armidale area. If it were not for some matters which were raised by the Commissioner in answer to the applicant's case, I would have been persuaded that, in all the circumstances, the applicant's removal was harsh for the reasons advanced in the submissions made on his behalf. 52 However, I am also obliged to consider the matters raised by the Commissioner in answer to the applicant's case. Those matters in essence went to the applicant's integrity and raised concerns that, at least in two other instances, the applicant conducted himself in a manner which was inconsistent with the integrity and honesty which one would expect of a person who submits that his acknowledged misconduct represented a single instance and, by implication, was out of character and motivated by personal and professional stress. In this context, I note also the applicant's submission concerning his prior good conduct and "excellent post-event good conduct." The Commissioner's case was based on the two matters to which I have earlier referred in some detail, notably the representations made by the applicant in a letter to Detective Inspector Stinson dated 13 May 2006 and the evidence given by the applicant in these proceedings. 53 I have previously set out an extract from the applicant's letter to Detective Inspector Stinson. The relevant portion is an assertion that: "…during the months of January, February and March 2006, I was absent on leave following the birth of my son…" As has been demonstrated, the applicant took some limited leave during the months of January and February 2006 and none during March 2006. It was submitted on behalf of the applicant that this assertion should be read as though it referred to the fact that the applicant had taken some periods of leave during these months. It was submitted on behalf of the Commissioner that a plain English reading of that sentence would suggest that the applicant was absent from work during the whole of the months of January, February and March 2006. 54 The purpose of the letter was to explain why the applicant had delayed carrying out certain police investigations. I agree with the Commissioner's submission that in the context of the letter, the manner in which the sentence is framed is intended to convey that the applicant was substantially, if not totally, off work during those months on leave. It was intended to convey the impression that for a period extending over three months the applicant was unable to attend to the investigations because he was absent on leave. To read this sentence in any other way would constitute a distortion of the plain English meaning which, in my opinion, the ordinary reader would attach to the words used by the applicant. The letter was written on 13 May 2006 so that the events of those months must have been in the forefront of the applicant's mind. In all the circumstances, I agree that the representation contained in the letter was incorrect and represented a distortion of the true situation. It reflects adversely on the integrity of the applicant. 55 I have earlier set out extracts from the transcripts of the evidence given by the applicant in these proceedings. In my opinion he was evasive and ready to rationalise his evidence in order to enhance his situation for the purpose of the proceedings. He was not prepared to readily acknowledge matters that were plain to see, and he prevaricated in a manner that attempted to avoid dealing with particular questions directed to particular matters. Again, I conclude that the applicant's evidence in these proceedings was inconsistent with the maintenance of a high level of integrity expected of a police officer whilst giving sworn evidence before a Tribunal. 56 In balancing the two matters referred to in s 181F(3), I acknowledge the adverse impact that his removal from the police force has had on the applicant and his family. He has suffered some financial loss. He has expressed a keen desire to be reinstated to the police force and has acknowledged his misconduct and expressed contrition and remorse. However, these matters need to be balanced against the public interest. It is undoubted that the Commissioner of Police is required to maintain the integrity of the New South Wales Police Force and in doing so is required to expect that each and every member of the force will conduct himself or herself in an appropriate manner so as to discharge this obligation. The conduct of the applicant in connection with the proceedings before the Local Court brought discredit upon the New South Wales Police Force, especially in terms of the impact that it had on the Local Court proceedings. I acknowledge, also, that the public interest includes the costs to the public purse of training police officers and the necessity to take such steps as are reasonable to retain police officers within the New South Wales Police Force. 57 In balancing the interests of the applicant with the public interest, I take into account also the fact that any employee who is dismissed or removed from employment in circumstances which are harsh unreasonable or unjust will suffer adverse consequences both of a personal and financial nature. Whilst these matters must be taken into account, and I do so, they have to be carefully balanced against the public interest. 58 As I have previously indicated, if it were not for the matters presented by the Commissioner in answer to the applicant's case, I would have been persuaded that the applicant's removal was harsh. However, having regard to those matters, which I regard as serious, I am not persuaded that the removal of the applicant from the New South Wales Police Force was harsh unreasonable or unjust. In these circumstances, the application is dismissed.

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.