Commissioner of Police v Brennan

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Police Act 1990

Clarke and Metropolitan Meat Industry Board [1967] AR 16 Commissioner of Police v Brennan [2008] NSWIRComm 52 Commissioner of Police v Dobbie (2006) 157 IR 44 Commissioner of Police v Evans (2006) 153 IR 144 Commissioner of Police and Raymond Sewell [2008] NSWIRComm 147 Flanagan v Commissioner of Police [2008] NSWIRComm 138 Hosemans v Commissioner of Police (2004) 138 IR 159 CASES CITED: House v The King (1936) 55 CLR 499 Johnston v Commissioner of Police (2007) 169 IR 301 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) AR 231 Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Starr v Commissioner of Police [2001] NSWIRComm 226 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wayne Edward Collins and Commissioner of Police [2008] NSWIRComm 30

APPELLANT Mr S B Benson of counsel Solicitor: Mr M Dunne Hunt & Hunt Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A A Hatcher of counsel Solicitor: Mr E Oates Oates & Smith solicitors

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WALTON J, Vice-President STAFF J BACKMAN J

Application by the Commissioner of Police for leave to appeal and appeal against a decision and orders of Justice Kavanagh given on 14 March 2008 in Matter No IRC 484 of 2007

1 This is an application for leave to appeal and, if granted, an appeal by the Commissioner of Police against a decision of Kavanagh J given on 14 March 2008: Wayne Edward Collins and Commissioner of Police [2008] NSWIRComm 30. In that decision Kavanagh J ordered that the respondent (the applicant at first instance) be re-instated as a police officer within 30 days of the date of her Honour's decision. 2 The application has given rise to issues of general significance as to the proper approach to be taken by a trial judge to a review under s 181E of the Police Act 1990 ("the Police Act"), which warrant the grant of leave to appeal. The first of these concerns the extent to which a trial judge is required to consider evidence adduced during the proceedings which was not taken into account by the Commissioner in his decision to remove the respondent. The second issue concerns the approach to be taken on review to the element of public interest under s 181F(3)(b) of the Act.

3 Before undertaking this task, it is necessary to refer to the factual background which gave rise to the order by the appellant to remove the respondent under s 181D and, subsequent events, including the review of that order by Kavanagh J.

4 According to the facts agreed between the parties in the proceedings below, the respondent commenced duty as a student police officer on 3 September 2001. He became a constable on 19 August 2004. Upon attaining the rank of constable, the respondent performed general duties at Burwood Local Area Command. In September 2004 he was seconded to the Convicted Crime Unit at Campsie for a period of six months.

5 On 19 December, 2004 at about 2:45am the respondent, who had been consuming alcohol with friends earlier in the evening, lost control of the vehicle he was driving at the intersection of Quakers Road and Quakers Hill Parkway. The vehicle, which also carried three passengers, overturned. The respondent and two passengers managed to climb out of the vehicle. The fourth passenger remained trapped in the vehicle for some time before being rescued by either the fire brigade service, or investigating police, who attended the scene. All four occupants of the vehicle were taken to Westmead Hospital. One suffered a broken wrist, the others sustained minor injuries in the nature of cuts and abrasions. An analysis of the blood sample, provided by the respondent, revealed a blood alcohol reading of 0.153.

6 Following the accident the respondent was charged, on 28 February 2005, with three offences, namely: dangerous driving occasioning grievous bodily harm while under the influence of intoxicating liquor; driving with a high range PCA; and, aggravated driving occasioning grievous bodily harm.

7 The charges were listed for mention at Blacktown Local Court on 2 May, 2005 and on 16 September, 2005.

8 On 5 October, 2005 the respondent, who was intoxicated after consuming alcohol with friends at a leagues club in Penrith, went to a McDonald's Australia Ltd ("McDonald's") restaurant in the same suburb. Following what has been described as loud and objectionable behaviour by both the respondent and one of his friends, two security officers at the restaurant spoke to them. The respondent had apparently ordered food and was in the process of leaving the restaurant when he was again spoken to by a security officer. After the couple exchanged some words, the respondent was forcibly removed from the restaurant. Outside, an altercation ensued between the respondent and his friend, and the two security officers.

9 The circumstances to this particular incident were not fully disclosed in evidence before Kavanagh J. The respondent was charged with two counts of assault. The matter was heard in the Local Court and the charges were dismissed. This matter will be considered more fully when we come to consider the issues raised in this appeal.

10 Returning to the relevant factual background, following the McDonald's incident, the respondent, on 18 October 2005, was served with a Notice under s 181D(3)(a) of the Act. The Notice made no reference to the McDonald's incident. It focused solely on the appellant's conduct with regard to the motor vehicle accident, and the three charges associated with that conduct, as the basis upon which the Commissioner was considering the respondent's removal.

11 On 8 November 2005, the respondent submitted a written response to the s 181D(3) Notice. The response addressed the motor vehicle accident of 19 December 2004. No mention was made of the McDonald's incident. A number of testimonials attached to the response, all post-dating the McDonald's incident, similarly made no reference to the incident. In the response, the respondent described himself as, "not a regular drinker". He informed the Commissioner that the motor vehicle accident of 19 December 2004 was, "an isolated event", when he, "foolishly drank too much alcohol". He said the accident was a, "huge wake up call", for him; and, he stated that he had, "matured significantly once making the error of judgment."

12 On 27 March 2006 the respondent pleaded guilty to one offence of driving occasioning grievous bodily harm while under the influence, in relation to the events of 19 December, 2004. Shortly after, on 1 May 2006, he was suspended from duty with pay.

13 Sentence in relation to the 19 December 2004 accident was heard in the District Court before Marien DCJ. Neither the transcript of the proceedings, nor a record of the judgment, was before the Commission at first instance. According to a chronology prepared in relation to the present appeal, the respondent was sentenced to a term of 18 months imprisonment with a non-parole period of 9 months. This sentence was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on the condition that the respondent be of good behaviour for a period of 18 months.

14 The Commissioner's Statement of Reasons, annexed to the s 181D Order, also set out some further information in relation to the District Court proceedings. The only other information before us, in relation to the sentence proceedings, was to be found in a supplementary response prepared by the respondent on 29 March 2007, following an invitation from the Commissioner on 26 February 2007, to submit a further response. In that response, the respondent said that Marien DCJ considered his actions were at the lower end of the scale and, that his conduct could be described as a, momentary reckless error of judgment. Marien DCJ, according to the respondent, also accepted that he was not a, regular drinker, and, was a person of excellent character, unlikely to re-offend. The Statement of Reasons recorded that the District Court sentence was heard on 4 July, 2006. Details of the respondent's sentence were set out and comments made by the instructing solicitor for the prosecuting party, (the DPP), were referred to. The Statement of Reasons also recorded that advice had been received by the instructing solicitor that Marien DCJ had "made mention" of "extra curial punishment", which had been taken into consideration at the time of sentencing. The Statement of Reasons also referred to matters taken into account by the sentencing judge in the respondent's favour, including, post incident restriction duties which progressed to suspension, the probability of dismissal (removal) from the NSW Police and the financial implications; and, a consideration that the respondent's culpability amounted to conduct which was a, "momentary reckless error of judgment".

15 On 6 September, 2006 the two assault charges against the respondent, in connection with the McDonald's incident, were mentioned in the Local Court and, adjourned for hearing on 12 December, 2006.

16 A transcript of the Local Court proceedings of 12 December, 2006 was in evidence before Kavanagh J. The charges were dismissed. In his reasons, the learned magistrate made a number of findings concerning the respondent's conduct in relation to the McDonald's incident. These included: (a) the evidence indicated that the respondent and his companions were intoxicated while at the leagues club in Penrith when a brawl erupted. (We interpolate here that the respondent and his companions were apparently not involved in the brawl); (b) the evidence indicated that the behaviour of the respondent and his friend inside a McDonald's restaurant was, "immature, inappropriate, rambunctious and uncouth"; (c) the respondent's offer to show the security guards his police badge was, "inappropriate and a lapse of judgment on his part undoubtedly brought about by his state of intoxication"; (d) the behaviour of the respondent and his friend inside the restaurant was, "unsettling to McDonald's staff and potentially disruptive to other patrons"; (e) the respondent attempted to moderate the behaviour of his friend, (f) the behaviour of both the respondent and his friend, "would merit their being requested to leave the premises"; (g) CCTV footage taken outside the restaurant showed a security guard striking the respondent in the chest; the respondent exchanging punches with that security guard; and, thereafter, the security guard fending off, or attempting to restrain, the respondent; (h) CCTV footage also showed the respondent pursuing the security guard. 17 Returning to the content of the respondent's supplementary submission in response, dated 19 March 2007, the submission only dealt with the circumstances of the motor vehicle accident on 19 December, 2004. There was, again, no reference to the McDonald's incident. In it the respondent claimed, "the one thing that I have felt extremely strong about during the past two and a half years was the fact that I let a lot of people down whom I deeply care about and that I need to have the opportunity to make amends." The respondent also submitted, that he, "should not be punished any further for an incident which was a momentary reckless error of judgment." He said that he was now attending counselling in order to increase his insight into, "the hazards associated with binge drinking". He also claimed never to have been a, "binge consumer of alcohol." He referred to himself as a "diligent and honest police officer", who wanted to lead by example and become a strong role model.

18 Attached to the respondent's supplementary submissions in response were more testimonials attesting to the respondent's good character. All the testimonials post-dated the McDonald's incident. None of them made any reference to the McDonald's incident.

19 Also attached to the respondent's supplementary submission in response, was a report from a psychologist, Sue Weston, dated 28 February, 2007. Ms Weston advised that the respondent attended the Ryde Drug and Alcohol Service for the first time on 23 October 2006. Thereafter, he attended on two more occasions, on 7 November 2006 and 16 January, 2007.

20 On 2 April 2007, the Commissioner signed the order under s 181D(1) for the respondent's removal from the New South Wales Police Force. The attached Statement of Reasons set out the circumstances in relation to the motor vehicle accident of 19 December 2004. It referred to the respondent's expressions of deep regret and remorse in relation to that accident. It noted the respondent's claim that he was not a, "regular drinker", and also, that the respondent had sought assistance from the Ryde Drug and Alcohol Centre, "due to alcohol being the contributing factor in the accident." The Statement concluded: However, I am unable to balance your contrition against the seriousness of the offence for which you have been convicted. You are reminded that it is an inherent expectation that all police will act in a professional manner, whether on or off duty, and I find that your actions on 19 December 2004 have brought discredit to the NSW Police Force. I have carefully reviewed all the material associated with this matter and I can see no reason of mitigation that would provide me with a basis not to lose confidence in your suitability to remain a police officer. DECISION AT FIRST INSTANCE

21 After setting out in some detail the factual background to the respondent's removal from the police force, Kavanagh J identified two matters of fact to be resolved in the context of the respondent's conviction for a serious offence, (a reference to the motor vehicle accident of 19 December 2004). These were first, the appellant's challenge to the suggestion, advanced by the respondent, that he had a genuine intention to redeem himself; and, secondly, the appellant's proposition that while, on the one hand, the respondent had admitted to, "binge drinking" in the past, on the other hand he had claimed that he had no existing problem with alcohol consumption. Relevant to this second matter of fact, her Honour noted, were the two assault charges associated with the McDonald's incident, where alcohol was also involved.

22 Her Honour then proceeded to examine the evidence in relation to the respondent's alcohol consumption. The respondent had given evidence that he had continued to consume alcohol, "in a 'binge' manner" while suspended from the police force. Her Honour referred to the evidence in connection with the respondent's decision to attend counselling sessions. According to the respondent, prior to his attendance at a counselling session (in October 2006, after the McDonald's incident) he did not see anything wrong (with consuming alcohol). It was part of the culture.

23 Her Honour posed for consideration, the question whether or not a conviction of a police officer (in relation to the 19 December, 2004 motor vehicle accident) warranted dismissal, "for conduct". The nature of the criminal activity in connection with the motor vehicle accident, her Honour found was, "most serious". 24 Two "separate incidents" were then referred to by her Honour, who commented that, as a result of those incidents, the respondent had, "brought disgrace upon himself while under the influence of alcohol". Her Honour added: "[s]uch poor behaviour legitimately raises question about his suitability for the NSW Police Force." Her Honour first recounted, in brief, the facts associated with the motor vehicle accident, and then turned her attention, briefly, to the McDonald's incident. Her Honour described it as a, "fracas", with a security guard at the restaurant while the respondent was under the influence of alcohol.

25 The issue as to whether the Commissioner knew about the McDonald's incident, prior to the service of the s 181D order, was then addressed. Her Honour referred to the respondent's evidence, which was, her Honour said, that he had informed his Local Area Commander about the McDonald's incident. (The evidence, in fact was, that the respondent said his commander had informed him that the appellant knew about the incident). Her Honour also referred to the following evidence given by the respondent during cross-examination in the proceedings below: Q. And there is no suggestion, either orally or written from the Commissioner of Police subject to that, that this matter was ever to be considered by him or taken into account in deciding to issue you with an order under s181D removing you? A. That's correct.

Q. And yet these were public proceedings? A. Yes. 26 Based on this evidence, her Honour concluded: [62] I am satisfied the NSW Police knew of the two charges of assault and that they had been dismissed. Although the charges may have been laid by the Security Officer they were handled before the Magistrates' Court by the Director of Public Prosecutions. Police were called to give evidence. They were matters on the public record. The applicant had told his Commander of the pending charges. I therefore distinguish the facts in this matter from those considered in the authority of Concut Pty Ltd v Worrell and Anor (2000) 176 ALR 693 (at 707) and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (at 467) where circumstances not known of at the time were able to be used to justify dismissal. Cook J in Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 said (at 25): ... where an employer with a full knowledge of an act amounting to misconduct justifying summary dismissal does not exercise the right which he thereby possesses but elects to treat the contract as still subsisting, then he is regarded in law as having waived the right of summary dismissal for that offence, or of having "condoned" that offence, so that he cannot, therefore, in an action for wrongful dismissal based on misconduct, rely upon an offence which he has waived as justification for his action. (See also Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 per Walton J, Vice-President; Hungerford J; Bishop C at [31]-[32].) [63] The assault charges against the applicant pre-dated the Commissioner's Order removing him from the NSW Police Force and the Police Force had knowledge of the charges and the resolution was on the public record and they were not referred to in the Commissioner's reasoning. I do not accept the assault charges (later dismissed) that were within the knowledge of the Commissioner and not relied upon as a ground of dismissal in the Statement of Reasons, can now be relied upon by the Commissioner as evidence to support his decision to remove the applicant from the NSW Police Force. As said in Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 (at 373) , the question is whether such grounds and justification existed at the time of the Commissioner's determination. The dismissed assault charges were not seen as relevant by the Commissioner in his consideration and I do not view them any differently. They were, however, part of the chronology of the applicant's "binge drinking" history and are given consideration in that aspect of the case. 27 Her Honour then directed attention to the requirement to consider the public interest. Her Honour characterised this element as, "the public interest in upholding the integrity and public confidence in the NSW Police Force", noting that the public interest in upholding the integrity of the police force was not the pre-eminent consideration. Instead, all factors had to be taken into account. The evidence, which her Honour considered was relevant to the public interest, was set out in the decision: [67] The Commissioner in his Statement of Reasons dismissed the applicant on the grounds the offence was so serious it was against the public interest to have such a person serve as an officer with the NSW Police Force. The standards of behaviour required of a member of the NSW Police Force, the Commissioner determined, were at odds with allowing the officer to stay in the Police Force. In his Reasons, the Commissioner stated: I have carefully reviewed all the material associated with this matter and I can see no reason of mitigation that would provide me with a basis not to lose confidence in your suitability to remain a police officer.

[68] The Commissioner in his Statement of Reasons had regard, however, to a view sought from a solicitor for the Director of Public Prosecutions. It appears from the Commissioner's Reasons he was advised by that solicitor the sentencing judge in considering the driving offence had "made mention in sentencing of extra curial punishment being taken into account". The Commissioner commented the judge considered the applicant's restriction of duties, which progressed to suspension and probable dismissal and the consequential financial implications upon the applicant. These were all matters also placed before the Commissioner for his consideration before the decision to terminate the applicant's employment. It was the Commissioner's view the applicant already had the "advantage of them in the sentencing process". He also noted the judge had found the applicant's conduct a "momentary reckless error of judgement".

[69] The Commissioner in his Statement of Reasons therefore determined the only extra curial matters he would take into account were that the applicant had now managed his alcohol consumption (for which he commended the applicant) and noted the applicant's expressed contrition. The Commissioner then determined in balancing the applicant's expressed contrition against the seriousness of the offence, that given the high standards of behaviour expected of a Police Officer on or off duty, the applicant's conduct necessitated his removal from the NSW Police Force. He found him not "suitable" to be a Police Officer.

[70] The applicant was dismissed for the seriousness of the offence. No other matters - except that he was contrite and had sought help for alcohol problems - were considered by the Commissioner. Neither was found mitigating. From the Statement of Reasons, the applicant's good service in the NSW Police Force and the effect of his dismissal economically and personally upon him and his family in a circumstance where they had already been given effect to in the court's sentencing for the driving offence, were determined by the Commissioner as not relevant to his determination. While the Commissioner remarked upon "comments on sentence sought from the instructing solicitor" he did not directly reveal all such remarks.

[72] The Commissioner, as a matter of fact, in his reasoning did not consider a number of the subjective factors placed before him. The Commissioner stated the " extra curial " matters (amongst others) placed before him "had already been taken into consideration". By inference the Commissioner viewed the sentence imposed by Marien J of the District Court, as lenient and therefore the Commissioner determined the applicant should not enjoy a similar beneficial effect from the " extra curial " matters in his consideration. Therefore matters such as the applicant's service and the effect of dismissal on him and his family were not given consideration by the Commissioner.

[73] Further, the Act states the Commissioner is to have regard to the Police Officer's "competence, integrity, performance or conduct". Clearly, the Commissioner found "conduct" the most relevant, but it was not his only consideration. Under the rules of statutory interpretation of the use of the word "or", under s181D(1), is generally a disjunctive conjunctive. Given the way s181D(1) is drafted, "conduct" can be a sole ground for removal. In considering the use of the conjunctive "or" it is relevant to take into account the ordinary meaning of the word in construing the language and purpose of the statute ( Interpretation Act 1987 (ss33-34); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ (at 381 & 384)). 28 Her Honour, after a brief excursus into the construction of, "or", as it appears in s 181D(1) ("competence, integrity, performance or conduct"), returned to the issue of the appellant's reasons for removing the respondent: [78] A failure to adhere to the statutory procedures laid down will be a matter of some significance in proceedings. Once the Commissioner considered the "integrity" of the officer (for example, he made mention in his Reasons of the applicant's attendance at counselling and the applicant's expressed contrition) then the officer's comprehensive submission as to his integrity, competence and performance were also relevant to the consideration. The words of the Commissioner "I have reviewed all the material" does not negate the necessity to consider the issues related to competence and performance in mitigation as raised by the applicant as "conduct" was not the sole ground relied upon by the Commissioner in his reasoning. The Commissioner was in error in his determination that, as the applicant had the benefit of such significant subjective factors by the judge in sentencing, therefore, the Commissioner did not have to give weight to them in his consideration as to mitigation of penalty. The Commissioner dismissed them as already having been taken into consideration in the applicant's sentencing for the dangerous driving offence and therefore not relevant to his own consideration under s181D(1). [79] The Commissioner determined not to take into account the applicant's unblemished work with the NSW Police or to consider the other subjective factors placed before him. While the Commissioner is entitled to dismiss solely for "conduct", once he determined to examine some aspects of the applicant's integrity, all aspects placed before him including the applicant's performance and competence were relevant to the Commissioner's determination. 29 Her Honour then proceeded to make a number of findings with regard to the circumstances of the respondent's removal: [83] I find the following factors relevant in considering the circumstances surrounding the applicant's removal from the NSW Police. A court of law had determined sentence for the applicant's driving offence (with a high range alcohol reading) and that sentence has been served. The applicant has expressed genuine contrition and remorse for his offence and his plea of guilty reflected this. He accepted responsibility for his actions. The applicant has received and accepted counselling for his "binge drinking" problems. The applicant gave the Commission an undertaking of attitudinal change which the Commission has found persuasive. The applicant has proven his strong work ethic since his dismissal. The impact of his removal from the Police Force has been severe on both himself and his family. The applicant has expressed a determination to be in the NSW Police Force. The applicant has further expressed a genuine passion for the work of a police officer, saying it gave him a sense of purpose and fulfilment. 30 The balancing exercise required, between the respondent's interests and the public interest, was undertaken by her Honour, in the following passage: [85] Weighing up the applicant's interest with the public interest, I find the decision of the Commissioner to terminate the applicant's employment with the NSW Police, if not unreasonable and not necessarily disproportionate to the offence committed, nonetheless, in all the circumstances, was harsh. CONSIDERATION

31 The first issue raised in this appeal, namely that the trial judge did not have regard to or sufficient regard to the McDonald's incident, was reflected in ground 1, parts of ground 2, and grounds 4 and 5 of the application for leave to appeal and appeal. 32 Mr S B Benson of counsel, who appeared for the appellant, submitted that the primary contention with regard to the issue was that Kavanagh J erred in law by failing to have regard to the statutory mandate in s 181F(1)(c) of the Act, or, by failing to have regard to this matter which was a relevant consideration (as to which see House v The King (1936) 55 CLR 499 at 505). 33 Despite the parties' characterisation of the issue as one concerning the receipt of "new evidence", as we will now discuss, the true issue raised by this aspect of the appeal was essentially whether her Honour was in error in refusing to have regard to the evidence of McDonald's incident which was before her, on any other basis than its relevance to the respondent's drinking habits. 34 Mr A A Hatcher of counsel, who appeared for the respondent, submitted that the evidence of the McDonald's incident was evidence of which the appellant was aware, before his decision to remove the respondent. The respondent also submitted that the relevance of the evidence upon which the appellant placed reliance in the proceedings below, was limited to matters of the respondent's alcohol consumption and a subsidiary issue about legal costs. Her Honour took into account this evidence, which was relevant only to those two matters. Her Honour was not asked to consider the evidence in the wider context of the respondent's conduct. According to the respondent, the appellant's complaint advanced in the appeal in relation to the evidence was, in effect, a different case from the case advanced below.

35 Kavanagh J's decision clearly confined the evidence concerning the McDonald's incident to the issue of "binge drinking", and the relationship that "binge drinking" had to the motor vehicle accident of 19 December 2004. Her Honour was also of the opinion that the appellant knew that the respondent had been charged in relation to the McDonald's incident. Because of this, her Honour declined to take into account the evidence as providing support for the decision to remove the respondent based on his conduct. According to her Honour, the dismissed assault charges were not regarded as relevant by the appellant, and her Honour, similarly did not regard them as relevant, or take them into account, other than as part of the respondent's history of, "binge drinking". 36 The circumstances under which the Local Court transcript of the McDonald's incident came to be tendered into evidence were somewhat unusual. It had originally been tendered by the appellant but not pressed, upon objection being taken by the respondent to its admission. Later, following the exchange between Kavanagh J and Mr Oates, the transcript was tendered by consent. Although the appellant was not involved in the exchange, her Honour informed Mr Benson that the transcript would become an exhibit in the appellant's case. In this context, it may be concluded that the requirements of s 181G(1)(f)(ii) had been met, as, in effect, her Honour had granted leave to introduce the new evidence: Hosemans v Commissioner of Police (2004) 138 IR 159 at [114] and [115]. Nevertheless, the evidence was introduced without limitation or qualification; a factor which we consider has some real significance for this appeal. 37 The McDonald's incident involved evidence of misbehaviour at McDonald's and later proceedings before the Local Court with failed prosecutions but with observations by the Magistrate hearing the proceedings. That evidence was relevant to the question of whether the Commissioner's removal of the appellant was harsh for the purposes of s 181E(1) of the Police Act not only because it cast a light on the appellant's drinking habits (or their cessation) but also because it reflected upon the seriousness of his misbehaviour overall. That later and broader issue of conduct, not considered by the Commissioner in his Statement of Reasons, was relevant to findings by the Commission under s 181E(1). It was also required to be assessed as part of the Commissioner's case under s 181F(1)(c), if the Commissioner squarely raised the issue at the trial (we will return to that issue). 38 When looked at in this light, it does not matter that the incident occurred prior to the decision to remove the respondent because the evidence was relevant for all purposes to consider the question of harshness by the trial Judge (we note that the respondent did not challenge the decision to remove on the basis that it was unreasonable or unjust). The Commission was required to fully have regard to the material as part of the appellant's and respondent's cases, but did not do so. This was an appealable error. 39 In any event, there was no bar in the present case to the appellant being permitted to fully rely upon the McDonald's incident material as a matter of principle. Even in matters concerning summary termination (which this matter is not), an employee may only rely on the principle of 'waiver' if an employer, had full knowledge of an act amounting to misconduct justifying summary dismissal and then did not exercise that right: Clarke and Metropolitan Meat Industry Board [1967] AR 16 at [25]. 40 In review matters under the Police Act facts bearing upon an officer's conduct or integrity which come to light after the removal of an officer may be relevant to the question as to whether a removal was harsh, unreasonable or unjust for the purposes of s 181E(1). In this respect, we agree with the observations of Walton J, Vice-President, in Starr v Commissioner of Police [2001] NSWIRComm 226, where his Honour observed: [320] A question must then arise as to the relevance of the finding in relation to the later conduct of the applicant to the issue of whether the applicant's removal was harsh, unreasonable or unjust. The general rule at common law is that facts which come to light after a dismissal may be relied upon in defending a decision to terminate the employment of a worker, provided those facts existed at the time of the dismissal: see Boston Deep Sea Fishing v Ansell (1888) 39 Ch D 339. Both this Commission and other courts have adopted the same approach in unfair dismissal proceedings. In Byrne v Australian Airlines Ltd , for example, Brennan CJ, Dawson and Toohey JJ stated (at 430): … facts which existed at the time of dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable.

[321 The High Court in Byrne referred to the decision of Von Doussa J in Lane v Arrowcrest Group Pty Ltd at 456. This approach was followed by Full Benches of this Commission in Hollingsworth v Commissioner of Police (1999) 88 IR 282 at 327 and Bankstown City Council v Paris . In the latter case, the Full Bench stated (at 370): There is no question that the Council was entitled, indeed obliged, to investigate and later rely upon information obtained after dismissal. This Commission and its predecessors have never accepted the proposition that an employer dismissing an employee is confined necessarily to the reasons advanced to the employee at the time of dismissal. If relevant circumstances existed at the time of dismissal of which the employer was unaware but which would either themselves or in concert with the reasons advanced, support the dismissal, they may be relied upon.

41 Here, we consider that material was plainly available for all purposes as a matter of principle because it was not established by the respondent that the Commissioner had full knowledge of the McDonald's incident before his decision to remove the respondent. In this respect, we consider that Kavanagh J was in error in finding the Commissioner had the requisite knowledge of the conduct and did not act in the face of it.

42 The appellant maintained in the appeal proceedings, that he did not know about the McDonald's incident at any stage prior to the respondent's removal. The respondent relied on some limited aspects of the evidence which suggested that the appellant had prior knowledge of the incident. These included the respondent's hearsay evidence that his Commander had informed him that the appellant knew about the incident. Further, it was contended, that the police prosecutor had had initial conduct of the proceedings, and that police officers had given evidence during the defended hearing. Knowledge, on the part of the appellant, could also be established, according to the respondent, because of the operation of s 148(3) of the Police Act which requires approval of the appellant for the commencement of proceedings by a police officer against another police officer. 43 Taking these matters into account we find ourselves, as we have noted, in disagreement, with her Honour's finding that the appellant knew about the McDonald incident, prior to the respondent's removal. The evidence and submissions on the issue, we regard as insufficiently conclusive to enable the drawing of an inference of the requisite knowledge on the part of the appellant. The appellant's position was that he did not have knowledge of the incident prior to the respondent's removal. The circumstances under which the respondent was apparently informed by his Commander of the appellant's knowledge were not explored by either party in the proceedings was entirely hearsay and of low probative value.The provisions of s 148(3) do not constitute a reliable basis upon which to draw an inference as to the Commissioner's knowledge. There was no other evidence of the fact. The respondent bore the onus of making out this proposition (s 181F(2)), and did not do so in either a substantive or evidentiary way.

44 Based upon the combination of these considerations, we consider her Honour fell into error in confining her consideration and use of the evidence of the McDonald's incident to a consideration of the drinking habits of the respondent. Before leaving that issue, we note that the respondent raised whether leave should be refused in relation to that question because the issue had not been squarely raised at first instance. We reject that submission for the following reasons. Did the Appellant Raise at First Instance the McDonald's Incident? 45 In order to determine which basis the appellant advanced the relevance of the McDonald's evidence below, it becomes necessary to resort to the submissions made by the appellant at first instance.

46 Mr Benson, during an exchange with the trial judge, submitted that the McDonald's incident was, "relevant in answering these submissions about the harshness of the impact of the decision: the whole essence of the submissions and evidence of the witness was that this one incident led to". Kavanagh J then raised the issue of the respondent's continued alcohol consumption. Further exchanges between Mr Benson and her Honour followed in relation to that issue. Mr Benson then sought to direct her Honour's attention to the contents of the Local Court transcript which recorded the evidence and the findings of the magistrate in relation to the McDonald's incident. Mr Benson read out a number of passages from that transcript which contained the learned magistrate's adverse findings concerning the respondent's conduct at the McDonald's restaurant. 47 Mr Benson referred to those findings as, "the key points related to (the respondent's) maturity and behaviour". Mr Benson added, "[t]he submission is that (the respondent) would have you believe that he has undertaken an epiphany. He has changed his behaviour. In these proceedings the onus is on the applicant and not (the Commissioner) to prove misconduct. So, the applicant is - what evidence has he brought to demonstrate the moderation of his drinking?" There then followed, between her Honour and Mr Benson, discussion about the respondent's alcohol consumption and its continuation as a problem at the time he attended counselling, and his failure to reveal the circumstances of the McDonald's incident to the appellant prior to his removal. Towards the end of oral submissions a further exchange between her Honour and Mr Benson took place as follows: BENSON: Your Honour posed the question rhetorically where do I see respect for law and order? When one looks at the full facts of the incident and then a year later, you see, in the findings of the magistrate in the other matters as to his conduct and how he conducted himself. HER HONOUR: I haven't examined them at length but there is also some good comment about waking up to himself. In the end it is most relevant that he was still drinking at that period of time. BENSON: And acting and like a drunk. That is the concern here in the public interest. It is how he conducts himself in his general life because it is in that context that Marks J, gave consideration to the Dobbie undertaking. Because there is already an obligation generally under this act. HER HONOUR: General undertaking of good behaviour. Can you find a case where it looks as if someone has technically served his time and has a right to work in his profession? 48 In order to properly understand the appellant's submissions, it is necessary to make a number of observations about the evidence of the McDonald's incident and the circumstances in which it was admitted in the proceedings below. First, the incident was initially raised by the respondent, after which the appellant's counsel conducted a cross-examination which appeared to focus on two matters, namely, whether the respondent had continued his alcohol consumption over an extended period of time; and whether the charges which arose from the McDonald's incident provided the motivation to the respondent to seek counselling. The tenor of this cross-examination, we infer, was directed to the issue of the respondent's credit in that he had, in material placed before the appellant, prior to his removal, sought to present the motor vehicle accident as an isolated event, and his alcohol consumption as otherwise moderate and irregular. Secondly, the assault charges against him in relation to the incident, were brought by one of the security officers. Other evidence which emerged in re-examination, revealed that some police officers had also given evidence during the Local Court proceedings; and, that initially the proceedings were conducted by a police prosecutor but later taken over by the DPP. Thirdly, the respondent's source of information that the appellant knew about the McDonald's incident prior to the respondent's, removal, consisted of the hearsay evidence that his Commander had told him.

49 The evidence of the proceedings before her Honour was unclear as to how the transcript of the Local Court proceedings came to be in the possession of the appellant during the respondent's cross-examination. We have not been further enlightened in this regard. Nevertheless, the transcript was tendered into evidence, by consent. Nor was there any objection by the respondent's solicitor to the initial cross-examination of the respondent in relation to the incident.

50 Based on the foregoing submissions and the various exchanges between the trial judge and Mr Benson, we think that it is reasonable to conclude that the evidence in relation to the McDonald's incident was advanced by the appellant in support of several issues one, of which concerned the broader basis of the respondent's conduct during the McDonald's incident. It follows from this that the appellant's case brought on the appeal, in written submissions at least, was not substantially different from the case advanced below: see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381. There is therefore no impediment to the grant of leave to appeal. 51 We would, however, make one further observation. We do not consider that this aspect of the appellant's case was advanced as clearly as it may have been before the trial judge or for that matter on appeal. However, the unusual receipt of the evidence as to the McDonald's incident cannot lie at the feet of the appellant, and therefore, as we have said, there is no proper basis to refuse leave. Further, the appellant has succeeded in making out its case on merit as to the failure to have sufficient regard to evidence concerning the McDonald's incident. Public Interest under Section 181F of the Act 52 We wish to make a number of observations in relation to her Honour's approach to the issue of public interest under s 181F(3) of the Act. 53 Her Honour was aware of the requirement to balance the interests of the respondent with those of the public interest under s 181F(3). Her Honour was also aware that maintaining the integrity of the NSW Police Force was one of many factors to be taken into account in the public interest. We would add that it is important when balancing the applicant's interest against the various countervailing factors relevant to the public interest, that no one factor should be accorded any greater weight than any other factor, or factors. This point was clearly made in the Full Bench decision of Commissioner of Police v Evans (2006) 153 IR 144 at [4] - [6]: [4] The essence of the appellant's submissions -- reflected in her Honour's judgment -- is that the Commission should accord the public interest greater weight than other factors when determining whether a removal under s 181D was harsh, unreasonable or unjust. Indeed, there is an even stronger proposition implicit in her Honour's judgment: that prima facie, the Commissioner's decision to remove an officer on the basis of loss of confidence will be in the public interest, and any departure from such a decision must be justified. [5] Equivalent submissions have been rejected by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 (at [67]-[68]) and Hosemans v Commissioner of Police (2004) 138 IR 159. Section 181F does not alter the test to be applied: it is the test applied under s 84 of the Industrial Relations Act 1996 NSW, that is, whether the dismissal was harsh, unjust or unreasonable. The most comprehensive discussion of the significance of the public interest in this context is at [216]-[219] of Van Huisstede v Commissioner of Police (2000) 98 IR 57. In short, it is one factor to be taken into account. Moreover, it will seldom be unitary: cases such as these present the possibility of many, and often competing, public interests. [6] The decision at first instance represents an orthodox application of these well-settled principles and discloses no error. Boland J took the public interest into account in several guises: first, the public interest in the integrity of the Police Service (at [49]); and secondly, the public interest in maintaining the employment of a highly trained officer who has the strong support of colleagues and his Local Area Commander and remains capable of providing valuable service to the Police (at [52]). His Honour then considered whether the removal was harsh, unreasonable or unjust, taking into account all relevant factors and striking what he considered to be an appropriate balance between the competing interests embodied in s 181F(3). 54 In Commissioner of Police v Dobbie (2006) 157 IR 44, the point was re-affirmed by the Full Bench which held (at [67]) that, "[s]ection 181F(3) does not dictate what weight or influence each of the particular matters is to have in the decision to be made," (see also Johnston v Commissioner of Police (2007) 169 IR 301 at [62]).

55 More recent affirmations of the point may be found in two decisions of the Commission. The first of these is Flanagan v Commissioner of Police [2008] NSWIRComm 138 at [22] where the Full Bench said: [22] These are all matters about which we would have been prepared to grant leave to appeal. Whilst it is unnecessary to resolve these issues in light of the decision we have reached as to a denial of procedural fairness, we should mention two matters deriving from the further grounds. First, we think it is desirable that the approach to the question in s 181E of the Police Act should be undertaken as closely as possible in accordance with the language of the section and the applicable test there stated. Secondly, as to the operation of s 181F(3) of the Police Act, we agree with the observations of Walton J, Vice-President in Van-Huisstede v Commissioner of Police (No 1) (2000) 98 IR 57, where his Honour stated: [217] However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other.

[218] The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): "Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree."

56 The second decision is Commissioner of Police and Raymond Sewell [2008] NSWIRComm 147 where the Full Bench said: [7] There is no warrant for elevating the Commissioner's loss of confidence (based on misconduct), or according it some higher status, or place of prominence, or priority, above any other factor, or factors, which might fall for consideration as part of the balancing exercise between competing interests under s 181F(3) of the Act. Nor is there any authority which supports a proposition that a review of an order pursuant to s 181D(1) of the Act is subject to, by reason of some "special relationship" said to exist between the public and members of the police force and members (or between the Commissioner of Police and members of the police force), different considerations from an unfair dismissal claim under the Industrial Relations Act 1996. In relation to this latter point the review provisions under s 181G(1) of the Police Act import the statutory regime under the Industrial Relations Act relevant to unfair dismissal applications, subject to a few express and relatively minor modifications.

57 In contending that Kavanagh J gave inadequate consideration of the public interest the appellant relied on the following passage from the Full Bench decision in Commissioner of Police v Brennan [2008] NSWIRComm 52: [61] Punishment, being one of the purposes of sentencing, is not the objective in removing a police officer and it is not the Commission's task in assessing whether the removal was harsh, for instance, to assess whether or not removal was the appropriate punishment . What his Honour was required to do pursuant to s 181F(3) was to 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)). In other words, the Commission is required to weigh up the competing interests of both an applicant and the public interest, which includes maintaining the integrity of the Police Force. In doing so, the Commission is required to consider, amongst other things, whether the conduct of the police officer that led to his or her removal was such that it so undermined the Force's integrity as to outweigh the applicant's interests. An assessment of the level of culpability of the officer's conduct based on the sentence for a criminal conviction is not the correct focus of the inquiry under s 181F(3) and may lead the trial judge into error which, in our opinion, is what occurred here. 58 Whilst we agree generally with the opinion expressed by the Full Bench in the passage extracted above, we would wish to emphasise that the observations should be viewed in a proper context, as explained in Van Huisstede v Commissioner of Police (2000) 98 IR 57, where observations as to the content and purpose of s 181F(3) of the Act, with which we agree, were developed as follows ([216] to [220]): [216] The intent of the sub-section is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interests and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. [217] However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. [218] The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. [219] In this case, there are many factors which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable. [220] In my view, and having regard to the foregoing discussion of the legislative scheme and relevant principles, it is clear that the legislative scheme involves a review of the decision and orders of the Commissioner as a merit review, although in a situation where appropriate caution must be exercised in the light of the important public interest considerations involved and the process which preceded the Commission's review proceedings (that is, the process giving rise to and the fact of the decision made by the Commissioner).

59 One factor which was relevant to the balancing exercise required to be undertaken by Kavanagh J was the respondent's conduct in connection with the McDonald's incident. A summary of the learned magistrate's findings on this matter have been set out earlier in our decision. The learned magistrate made several adverse findings of fact against the respondent with regard to his conduct during the incident. That conduct fell for consideration squarely in connection with the issue which arose with regard to whether the appellant's decision to remove the respondent under s 181D was harsh.

60 Her Honour's failure to consider the respondent's conduct with regard to the McDonald's incident, in the context of the balancing exercise required between the competing interests in s 181F(3) of the Act, constituted a further error in the decision. Was the Removal Harsh, Unreasonable or Unjust?

61 A final matter which is required to be resolved is her Honour's finding that the respondent's removal was harsh. The removal or dismissal of an employee may be either harsh, unreasonable or unjust, or a combination of all three. This approach was the subject of comment in Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183 where the Full Bench observed: ... We take this view because, even though there may be some circularity in the full phrase "harsh, unreasonable or unjust", we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s 275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s 88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ.) in A. & M. Thompson Pty Ltd and others v. Total Australia Ltd [37] ( Cahill J. delivering a separate judgment) said: "The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davies v. General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide powers." In much the same way, we consider that, while strict definitions of "harsh", "unreasonable" or "unjust" may produce a degree of circularity of meaning, turning on the notion of "fairness", it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three objectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made. 62 In Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) AR 231 at 233 Watson J referred to circumstances surrounding the termination of the employment relationship, where a dismissal, which might otherwise be justified, was nevertheless, harsh. Factors which his Honour found were relevant to the finding included the presence of mitigating circumstances, as well as past good conduct.

63 In Little v Commissioner of Police (No 2) (2002) 112 IR 212, which applied Metropolitan Meat Industry Board, the Full Bench emphasised the necessity to give consideration to the consequences facing an employee and to the mitigating factors, including the immediate consequences of dismissal , such as the impact on superannuation, following his or her removal or dismissal from employment, in the context of a consideration of whether that dismissal was harsh: at [71], [83] to [86]; see also Johnston v Commissioner of Police at [35]. 64 In our view, her Honour's failure to consider the McDonald's incident in her determination of whether the Commissioner's decision was harsh, amounted to an error of law. Although there might have been a basis, taking into account the mitigating factors considered by her Honour to conclude that the decision of the Commissioner was harsh based only on the drinking incident (although we have some doubts about this), it is unnecessary to consider this issue further, because the evidence as to the McDonald's incident when fully considered, had the capacity to materially alter our finding as to harshness under s 181E(1) of the Police Act. Conclusion on Merits of Appeal 65 The errors we identified in the first instance decision must result then in the appeal being upheld. The question remains, however, as to whether the decision at first instance should be set aside and, if so, whether we should ourselves resolve the review application or remit. 66 We have formed the view the decision and orders at first instance should be set aside. There is no doubt, in our minds, as we shall now explain, that the failure to fully have regard to the McDonald's incident would have substantially affect any determination as to whether the removal was harsh. The parties have suggested that we have ample material to make a decision for ourselves and were content that we form an opinion as to the requisite questions under the review. RECONSIDERATION

67 In the decision at first instance, Kavanagh J, in considering the circumstances of the respondent's removal, relevantly took into account a number of mitigating factors which included the respondent's contrition, his acceptance of responsibility (for the 19 December 2004 offence), his attendance at counselling sessions, an undertaking given only to consume alcohol on social occasions, his strong work ethic demonstrated after his removal, and, his expressed genuine passion for the work of a police officer. Her Honour also took into account the impact of his removal on both himself and his family. In relation to this latter finding, the evidence suggested that the respondent's income following his employment after his dismissal, in fact exceeded the income he would earn as a police constable if re-instated to that position. Putting aside this particular matter, we nevertheless perceive no error in her Honour's consideration of the various factors in mitigation which her Honour found, and the consequences of the respondent's removal, in coming to the conclusion that the dismissal was harsh. The error, which we have earlier identified, in relation to this aspect of her Honour's findings, was her Honour's failure to take into account the respondent's conduct with regard to the McDonald's incident.

68 The evidence in respect of the McDonald's incident, in combination with the evidence of the circumstances surrounding the motor vehicle accident of 19 December, 2004 exhibited very serious conduct on the part of the respondent. The evidence in relation to the McDonald's incident revealed that the respondent had continued to indulge in episodes of what has been termed "binge drinking" following the events of 19 December 2004, without apparent regard to the actual consequences of the accident which involved injuries to his companions in the motor vehicle, and notwithstanding that the potential consequences could have been much more severe. His conduct at the McDonald's restaurant, fuelled again by excessive alcohol consumption, occurred less than 10 months after the respondent's conviction for a serious offence (the motor vehicle accident of 19 December 2004). It was reprehensible and aptly described by the learned Magistrate as, "immature, inappropriate, rambunctious and uncouth." It involved the respondent in a scuffle with a security guard. Further, as the learned Magistrate observed in her findings, the respondent offered to show his police badge at some stage during the incident. We agree with the Magistrate that that step was, in the circumstances, "inappropriate and a lapse of judgment on his part undoubtedly brought about by his state of intoxication". 69 We also take into account in our assessment, the factors in mitigation found by Kavanagh J which facilitated her Honour's conclusion that the respondent's dismissal was harsh. In our view, the respondent should have known that any further adverse conduct, even if falling short of a conviction for assault, would be fatal to his position as a police officer of occurring proximate to his prior offence. We emphasise that the significance of the McDonald's incident, which came into the proceedings at first instance for all purposes, is that it provides a further recent example of conduct of serious actions caused by the respondent's drinking. We consider however that the factor, which was absent from her Honour's analysis, namely the respondent's conduct in relation to the McDonald's incident, must operate to shift the balance in favour of a contrary conclusion. We find, therefore that in all the circumstances, and taking into account the provisions of s 181F, and s 181G, the respondent's removal under s 181D(1) was not harsh. The application at first instance should, therefore, be dismissed. ORDERS 70 Accordingly we make the following orders;

3. The decision of Kavanagh J of 14 March, 2008 is set aside.
4. The application in Matter No 484 of 2007 is dismissed.

5. The stay orders made by Walton J, Vice-President on 8 April, 2008 are dissolved.

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