Commissioner of Police v Dobbie

LEGISLATION CITED: Police Act 1990 Police Act 1990 , Pt 9, ss 181, 181F, 181G

Commissioner of Police v Dobbie (2006) 157 IR 44 CASES CITED: Commissioner of Police v Raymond Sewell [2008] NSWIRComm 147 at [7] Little v The Commissioner of Police (No 2) (2002) 112 IR 212

HEARING DATES: 21 April 2009; 22 April 2009; 23 April 2009

Mr L Nicholls of counsel SOLICITORS: Shad Partners Solicitors (Mr D Eid) LEGAL REPRESENTATIVES:

RESPONDENT: Ms E Raper of counsel SOLICITORS: Bartier Perry (Ms G Gowland)

INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 2 June 2009

Matter No IRC 1392 of 2008 PAUL GARDINER AND COMMISSIONER OF POLICE Application by Paul Gardiner under s 181D of the Police Act 1990 for review of an order of the Commissioner of Police JUDGMENT [2009] NSWIRComm 84

BACKGROUND 1 On 14 August 2008 Senior Constable Paul Gardiner was removed from the New South Wales Police Force by order of the Commissioner of Police ("Commissioner") operating under the Commissioner's Confidence Provisions of the Police Act 1990. Mr Gardiner had been a police officer since December 1999 being initially appointed to the Moruya police station and later being transferred to Batemans Bay police station. 2 Pursuant to the provisions of s 181E of the Police Act, Mr Gardiner has applied to the Commission for a review of the order removing him from the Police Force under s 181D of the Act and does so on the grounds that the removal by the Commissioner was harsh, unreasonable or unjust. 3 Part 9 of the Police Act deals with the management of conduct within the New South Wales Police Force and Division 1B of Pt 9 deals with the summary removal of police officers in whom the Commissioner does not have confidence. Under s 181D the Commissioner, by order in writing, may remove a police officer from the Police Force if the Commissioner does not have confidence in the officer's suitability to continue as a police officer having regard to the police officer's competence, integrity, performance or conduct. In Mr Gardiner's case the Commissioner considered that his conduct and competence was such that he could not have confidence in Mr Gardiner's suitability to continue as a police officer. 4 Division 1C of Pt 9 of the Act deals with the review of the Commissioner's decision under Division 1B and under that Division, s 181F requires the Commission, when conducting a review under that Division, to proceed by firstly, considering the Commissioner's reasons for the decision to remove the applicant from the Police Force; secondly, to consider the case presented by the applicant as to why the removal was harsh, unreasonable or unjust and thirdly, to consider the case presented by the Commissioner in answer to the applicant's case. By s 181F (2) the applicant has, at all times, the burden of establishing that the removal of the applicant from the Police Force was harsh, unreasonable or unjust and that sub-section has effect despite any law or practice to the contrary. Importantly, by sub-section 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 the interests of the applicant and the public interest (which is taken to include the interests of maintaining the integrity of the New South Wales Police Force and the fact that the Commissioner made the order pursuant to s 181D(1)). 5 Pursuant to the provisions of s 181D(3), before an order for removal may be made the Commissioner 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 must give the officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action. The Commissioner must take into consideration any written submissions received from the police officer during that period. By sub-section 4 the order of removal must set out the reasons for which the Commissioner has decided to remove the police officer from the New South Wales Police Force. It should also be noted that, under s 181E(3), it is the duty of the Commissioner to make available to the applicant all the documents and other material on which the Commissioner, acting under 181D(1), had relied in deciding that he did not have confidence in the applicant's suitability to continue as a police officer. THE s 181D(3) NOTICE - ISSUES RAISED 6 In the present matter, under s 181D(3)(a) of the Police Act, the Commissioner gave Notice of the grounds to Mr Gardiner in a document dated 23 May 2008. By letter dated 17 July 2008 Mr Gardiner provided a fourteen-page submission to the Commissioner in response to the Notice served upon him pursuant to the provisions of s 181D of the Act. As previously indicated, on 14 August 2008 the Commissioner made an order under s 181D(1) of the Act removing Mr Gardiner from the Police Force. That document appears as an annexure to this judgment 7 Having attached the detailed statement regarding the events that led to Mr Gardiner being removed from the Police Service, it is unnecessary to repeat that detail and for the purposes of this judgment on review, the following summary will suffice. The first issue concerned conduct between 10 and 11 July 2007 and was set against the background that, on 19 April 2007, officers from the professional standards command had interviewed Mr Gardiner in relation to an allegation that he had assaulted his partner's five year old son. The Commissioner stated that in accordance with legislative requirements an interim AVO was sought and issued and shortly after being served with it, Mr Gardiner reported off-duty on sick leave and he remained on sick and recreational leave for the majority of 2007. On the evening of 10 July 2007, while on sick leave and intoxicated, Mr Gardiner telephoned the Batemans Bay police station. He told Senior Constable Wilkinson that he had the shits with the coppers, he was off on sick report and was going to shoot himself in three minutes and if the police came he would shoot them. At interview he admitted that, on the afternoon of 10 July 2007, he had been drinking and was "pretty well intoxicated". Two officers, Acting Superintendent Starling and Inspector Huard proceeded to Mr Gardiner's residence in Moruya to check his welfare, arriving at 1.00 am on 11 July 2007. The officers found three notes stuck to the front glass sliding door of his property. Those notes, in crude language, attacked the professional standards Police whom he alleged were not interested in the truth, stating that they should not push him or he would kill himself because they had already found him guilty. Another note told the police to "fuck off" and to enter only if they were willing to murder him and the third note said he was innocent and loved his job and the police had "murdered" him. The two officers stated that Mr Gardiner was affected by alcohol and while they were there, Mr Gardiner made a number of threats to call his partner and children, threatened self-harm and blamed the Police Force for his behaviour. Contact was made with a mental health support service and Mr Gardiner was offered the opportunity to speak to a psychiatrist but he declined. The Acting Superintendent discussed Mr Gardiner's behaviour with a psychologist and formed the view that Mr Gardiner was not a threat to himself or others. Mr Gardiner said that the issue about his alleged assault and the AVO had all become too much for him. 8 The second issue concerned conduct on 17 November 2007. The background to this matter was that, in late September 2007, as a result of his conduct on 10 July 2007, Superintendent Starling directed Mr Gardiner not to attend the workplace until further order but was directed to attend an appointment with the Police Medical Officer and police psychiatrist a few days later. That letter identified a contact person in the event that he required assistance. In an early October 2007 directed interview, Mr Gardiner was informed by Acting Superintendent Starling that there were concerns about his ongoing behaviour as a police officer, particularly where alcohol was concerned and while he was off-duty. This interview arose as a result of his conduct on 10 and 11 July 2007. Mr Gardiner was advised that Health and Workplace Services, including the psychology section, Welfare Branch, Police Chaplaincy and the Rehabilitation section were available to him if he required assistance and he said he understood that information. On 5 October 2007 he was served with a letter from Acting Superintendent Starling saying it was inappropriate for him to contact the Superintendent while he was intoxicated and directing him not to call the Acting Superintendent while he was off-duty. Mr Gardiner was again told he was not to attend a police station without the permission of the duty officer and was again given various contact details for further support or assistance. 9 Against that background and shortly after midnight on 17 November 2007 while off-duty and intoxicated, Mr Gardiner telephoned Sergeant Vardy at the Batemans Bay police station and asked him to attend Mr Gardiner's residence. He informed the Sergeant that he had just damaged his property and believed he was having a mental breakdown. A short time later the Sergeant received a telephone call from Mr Gardiner's partner who stated that Mr Gardiner had begun damaging their property and she had been unable to prevent his behaviour. Sergeant Vardy attended the residence and discovered that most of the gyprock walls had been damaged, some with large holes. The dining table had been overturned and the pantry cupboard was lying face down on the floor. Mr Gardiner told Sergeant Vardy that he damaged his property because he could do so and because he thought he was having a breakdown. Sergeant Vardy said that was "bullshit" and that he was drunk and he did not act this way when he was sober. During the following conversation with Sergeant Vardy, Mr Gardiner referred to other officers in crude terms. Sergeant Vardy told him that if he wanted to continue working in the Police Force he had to seek help. At a directed interview Mr Gardiner could not recall contacting Sergeant Vardy about damaging his property but admitted that he had been drinking on the night and could not recall how intoxicated he was. He refused to further discuss the damage to the property. 10 At approximately 10.30 am on 17 November 2007, Mr Gardiner made another telephone call to Batemans Bay station, spoke with Sergeant Scott telling him that he did not want the police to come to his home again and once more used abusive language about other officers. In a directed interview on 28 November 2007 Mr Gardiner admitted that he was not intoxicated when he made that telephone call and he wanted to make the call to let the police know exactly what he thought of them. He agreed that he had used offensive language in speaking to Sergeant Scott but denied that, in the circumstances it was inappropriate. In response to a suggestion that his conduct was contrary to the Code of Conduct and Ethics, Mr Gardiner said that the Code of Conduct and Ethics was an absolute joke and was only used to persecute junior officers who were easy targets while senior officers could flout the same provisions. He also referred to the system being an absolute joke and the fact that the truth would come out. 11 The third issue concerned conduct on 28 January 2008. At approximately 9.00 pm on that day, Sergeant Vardy received a telephone call from Mr Gardiner's partner in which she stated she had received numerous telephone calls from Mr Gardiner in which he suggested that she should contact the police as he was going to commit suicide by consuming pills, cutting himself or by making other police officers shoot him. Sergeant Vardy was told that Mr Gardiner was intoxicated. Approximately 20 minutes later Mr Gardiner, while intoxicated, telephoned Batemans Bay station and spoke to Senior Constable Bates. Mr Gardiner told Constable Bates that he wanted the police to shoot him and if they did not, he would chop off his head with a machete. Mr Gardiner said that he did not want to be there in the morning and to tell other officers. Approximately 10 minutes later Mr Gardiner made a further telephone call to Batemans Bay station and spoke to Constable Bates. Mr Gardiner said that he had spoken to the media and had an appointment the next day and Sergeant Vardy was not to panic because he was not going to hurt himself now. Mr Gardiner said he had enough of how the police were treating him and he would tell the media all about it and how he had been stuffed around. When Constable Bates asked if he still wanted the police to come around, Mr Gardiner said that if they came around he would punch "the fuck out of them". Mr Gardiner then apologised for the earlier call. 12 At approximately 10.10 pm on 28 January 2008, Sergeant Vardy and Senior Constable Graham, after receiving a call from his partner, attended Mr Gardiner's home. When they knocked on the door he yelled out "fuck off" but later permitted the officers to enter the premises. Sergeant Vardy asked him why he had telephoned the police station threatening suicide and Mr Gardiner replied that he understood on good authority that, although they had nothing on him and the boss admitted as much, nevertheless they were going to get rid of him anyway because they did not like him and it was personal. Mr Gardiner rejected any suggestion that he be offered a transfer to another station and the boss could stick it "in his arse" and they would have a court fight. He also referred to two Inspectors as liars and gutless and repeatedly asserted that police had "fucked" his life. Sergeant Vardy stated that Mr Gardiner appeared moderately affected by alcohol. On 30 January 2008 in a directed interview, Mr Gardiner said about the 20 September 2007 conversation that he accepted other officers' summary of the content of their discussion but said he did not threaten police or do anything - he just told them the facts and unfortunately he did not have the guts to go through with it. In relation to the 30 September 2007 telephone call he responded that whatever the police said had to be true. He admitted that he had consumed alcohol that evening but was not aware of his level of intoxication when he made the telephone calls. He could not recall the conversation he had with Sergeant Vardy and Senior Constable Graham when they attended his premises and could not recall if, on that night, he had threatened suicide when speaking to his partner on the telephone. In relation to disparaging remarks made in relation to two Inspectors he stated that was his opinion of them and he agreed that he continually telephoned the station and threatened suicide as a call for attention. During this interview Mr Gardiner confirmed he had previously received counselling and had a number of appointments with the Police Medical Officer but admitted walking out on the police psychologist having been directed to attend. It was noted that he had another appointment with the police psychiatrist and at the end of the interview he was offered an opportunity to request further support from the Police Service which he declined. 13 Having regard to these matters, in the Notice under s 181D(3)(a), the Commissioner advised Mr Gardiner that he had concluded that Mr Gardiner had failed to adhere to the Police Code of Conduct and Ethics that required him to behave honestly and in a way that upheld the values and the good reputation of the Police Force whether on or off duty and to treat everyone with courtesy, respect and fairness. The Commissioner informed Mr Gardiner that he had significant concerns about his competence and conduct and his suitability to be a member of the Police Force. The Commissioner was particularly concerned that his conduct indicated a lack of respect for other police officers and had placed greater burdens on other offices who were simply trying to perform their duty. The Commissioner had significant concerns about the impact of his behaviour on other officers. There was a concern that the conduct appeared to be part of a continuing pattern that may be indicative of an escalation of a substantial history of issues in relation to his behaviour while affected by liquor. Despite repeated offers of assistance and support, Mr Gardiner was said to have continued to engage in unacceptable conduct without taking responsibility to alter his behaviour and it was noted that he had already been given a prolonged opportunity to amend his off-duty conduct, particularly involving alcohol, such as: in July 2002 a referral to the Health Services Director, alcohol and other drug education and counselling unit; a conduct management plan between October 2002 and October 2003 specifically addressing off-duty conduct involving alcohol and an assessment by Health Lifestyles in relation to his alcohol abuse; a referral to the Health Services Director and alcohol and other drug education and counselling unit in 2004; a conduct management plan operating between October 2004 and 2005 with one of the purposes being to address off-duty conduct involving alcohol; and, an opportunity offered on 11 July 2007 by Acting Superintendent Starling to speak with a psychologist from mental health support services. It was noted that, in mid-October 2004, Mr Gardiner had received a Regional Commander's warning Notice in relation to off-duty conduct while under the influence of alcohol and that he had been provided with counselling in relation to two matters concerning inappropriate conduct involving alcohol while off-duty. 14 The Commissioner said that he had also taken into account that, in light of Mr Gardiner's erratic conduct and hostility towards members of the Police Force, other officers may no longer feel comfortable continuing to work with him in an unsupervised environment. The Commissioner had taken into account previous concerns about his on-duty work and although that work met minimum requirements, nevertheless it involved a high level of supervision to be adequately completed. Conduct management and performance plans appeared to have resulted in some improvement while they were in operation but a continued need for such plans indicated that Mr Gardiner had failed to successfully address or control his behaviour over a prolonged period. He had been provided in the past with significant assistance and counselling about his previous performance and conduct. He had been counselled in relation to a complaint concerning a late submission of a Coronial brief and while that alone did not warrant removal it supported a conclusion that removal from the Police Force was an appropriate sanction for his conduct and competence. THE APPLICANT'S CASE 15 In mid-July 2008 Mr Gardiner responded to the Notice served upon him by the Commissioner pursuant to s 181D of the Police Act. Mr Gardiner immediately identified that the matters in the Notice occurred during a very difficult and traumatic time in his life and each of the incidents took place while he was off-duty. He noted that, for part of the time, he was on sick leave and was not able to engage in active duty and was suffering from psychological difficulties due to events he had to deal with during the course of his duties. He enclosed a medical report from a psychologist, Ms Driver, drawing attention to her opinion that he suffered from adjustment disorder with depressed mood and that his work as a police officer was a substantial contributing factor to that condition. He asked the Commissioner to focus on, not only the difficulties he had faced, but the progress he had made in overcoming challenges he had faced in his life. He had commenced by considerably reducing his alcohol content, stating that he "now no longer drinks alcohol". He was committed to his own rehabilitation and it was his hope that the Commissioner would be able to deal with his transgressions by means other than removal from the Police Force. 16 Mr Gardiner then raised some procedural fairness matters, particularly noting that the Commissioner had not taken into account his psychological state at the time of the alleged incidents. Mr Gardiner then referred to his employment prior to entering the Police Force, his early period at Moruya and detailed a number of traumatic incidents he witnessed as a police officer. He then spoke of the hardship of being moved from Moruya to Batemans Bay, how that move affected his wife and how they ultimately separated. 17 His growing relationship with Ms Lotze was explained by Mr Gardiner and he referred to the jealousy of her ex-husband who had told her children to hate Mr Gardiner. Mr Gardiner had heard Ms Lotze's ex-husband arguing and reducing Ms Lotze to tears and he had made a comment which angered her ex-husband who threatened to go to Internal Affairs and ruin Mr Gardiner's career. 18 The events of 19 April 2008 were dealt with and he described how he thought that his partner's ex-husband was making good his threat. After speaking to the Internal Affairs police, they left his home but half an hour later they telephoned and asked him to attend an appointment at Batemans Bay police station to clarify a few matters and that his partner was also on the way to the station. He was not given any indication that he was to be arrested. At approximately 2.00 pm, he entered the Batemans Bay station through the back door as usual but was immediately escorted by police to a room at the front of the station where he was told to remain because Professional Standard command police would be speaking to him shortly. An officer remained with him at all times. Mr Gardiner stated how this upset and embarrassed him, especially as false allegations were being made against him. He had only slept a few hours during the past 21 hours and this also elevated his emotions. By 2.40 pm he was placed in custody and was told he was under arrest. He remained in an office with the custody officer for over two hours. He declined to be interviewed after receiving advice from the Police Association, was not charged but was told an AVO was being taken out against him. He described feeling "absolutely gutted" and asked why the police had arrested and humiliated him and paraded him in front of his work colleagues when he had done nothing except answer their questions truthfully and at their request had assisted by driving 30 kms. He asked why they could not have attended his local police station at Moruya. A police officer accompanied him to his home and confiscated his firearm. At this time there was no mention of an AVO and one was not in operation and he was unaware of police powers to confiscate his firearm in those circumstances. 19 Mr Gardiner had been training "exceptionally hard" for a selection course for the State Protection Support Unit. On 20 April 2007 he was told he could not attend the course because he was on restricted duties. He was "devastated" by this news and his inability to pursue the course. On 23 April 2008 he and his partner attended the Batemans Bay station and were issued with a telephone interim order naming his partner's two children as protected persons. He attended Court a total five times in relation to the AVO matters going through to 10 December 2007. It was for approximately eight months that he was under the restrictions of the interim AVO when he had done "absolutely nothing". Mr Gardiner offered the view that if he had not been a police officer the matter would have been resolved much earlier. In court he was surrounded by people he had arrested during his eight years' service and he had to endure eight months of "heckling" in the street. His partner's ex-husband had used the interim AVO in Family Court orders to also prevent Mr Gardiner from being anywhere near her two sons. The Family Court had been told that DOCS and the New South Wales Police believed that he was a threat to the children and that those actions destroyed his relationship with his partner. The police also informed his ex-wife that he was being investigated in relation to an assault on a minor and that they wanted to speak to his young daughters and that caused strain in his relationship with his ex-wife. A few months later his ex-wife moved back to Sydney with the children and he had only seen them three times in six months when previously he had seen them daily. 20 Mr Gardiner admitted that he had placed himself in "bad situations with alcohol" up to 2004 but had since tried to perform his role as a police officer with integrity. The pressure he endured and the accusations and innuendoes surrounding the alleged assault and the way the proceedings were handled ate away at him and he could not cope. It seemed to him that he was presumed guilty until proved innocent. 21 Counselling, medical examination and treatment had been sought and accepted by Mr Gardiner and he gave a number of examples. After being placed on restricted duties, he attended Dr Li, the Police Medical Officer, but Dr Li was rude and told him it was his fault because he had assaulted a child. He had argued with Dr Li but had been told that the Police Force could treat him anyway they liked. If he did not like it he was a weak person and the Police Force did not want weak people. He was upset by these comments but overlooked his treatment as he wanted to return to full duties. 22 Mr Gardiner returned to work on 5 June 2007 and conducted weapons training over two days and then was rostered off for two days. There was a court appearance in relation to the AVO matter on 8 June 2008 and it was stood over for a further two months and that made him feel sick as he could not understand why it was continuing when he had done nothing wrong. He could not attend work and called in sick for Saturday and Sunday and returned to duties on Monday 11 June 2008 for a 12-hour night shift. At that end of that night shift he was told he was again to be placed on restricted duties because he was angry about the allegations against him and he was not allowed to be angry. He went home feeling unwell. 23 Mr Gardiner saw Dr Li on 29 June 2007 who again raised his voice and belittled him. He was unable to handle that treatment. He walked out of Dr Li's office for time to think but returned and concluded the consultation. After that experience Mr Gardiner said he had lost faith in the entire Police Force support network but prior to this, when requested, he had attended all counselling and doctors' appointments. He no longer trusted these people who were supposed to have a duty of care to him but they did not appear to care at all. Mr Gardiner had enquired several times about the investigation into the assault allegations but it was still ongoing three months after his partner's ex-husband had made the complaint. The delay in finalising that matter, the extension of court adjournments and the treatment by Dr Li became too much to bear and he said that culminated in his actions on the night of 10 July 2007 and the morning of 11 July 2007. He was told on 12 July 2007 that there would be no police charges regarding the alleged assault of his partner's children but he would be facing Departmental proceedings for his actions on 10 and 11 July 2007. His partner had been told that Police had not finalised their investigations in relation to her and wanted to tell them both at the same time the results of the investigation. Mr Gardiner said that the whole 10 and 11 July 2007 incident would not have occurred if he had been advised earlier of the investigation results thus lifting the stress and burden of the matter. 24 In late September 2007 Mr Gardiner attended an appointment with the Police Medical Officer, Dr Kirby. He was advised that Dr Li had left the organisation and they were attempting to clean up the mess left behind. He was advised that he would be sent to an independent psychiatrist on a date to be advised. On 21 September 2000 Mr Gardiner received a comprehensive report from the insurance company indicating that his hurt-on-duty application had been rejected. He was appealing that decision. In the report he found many discrepancies in the police account and he saw those matters portraying him, because of his lifestyle, as being unsuitable for police duty but not in relation to any work related injury. On 4 October 2007 he participated in a directed interview and after the interview he was suspended with pay. 25 All the matters he had earlier referred to played on his mind and, combined with the impending AVO hearing on 22 November 2007, heavily contributed to Mr Gardiner's mind set and resultant actions on 17 November 2007. On 26 November 2007 he was informed that the Local Command had recommended that his employment be terminated under s 181B. After reading that letter Mr Gardiner was of the view that senior police were either "grossly in error or lying in attempt to portray me as unsuitable". He noted the statement of Superintendent Willing that at the time Mr Gardiner possessed privately owned firearms so his threats were considered feasible and the threats were therefore classified as a malicious act. Mr Gardiner noted that he had no firearms in his possession or access to them since 19 April 2007 when they were confiscated and the police were fully aware of this. Nevertheless, this erroneous view continued in order to portray him as unsuitable for police service. On 24 September 2007 his treating doctor had cleared him to return to work in response to the regional co-ordinator trying to have Mr Gardiner returned to duties as soon as possible. However, Mr Gardiner received a telephone call at home and was told not to attend work but to stay at home on full pay until a decision was made in relation to his future. 26 In relation to the 28 January 2008 incident Mr Gardiner said that, up to that point, it was the lowest he had ever felt in regard to all he had endured. His wife had returned to Sydney with his two daughters and he was deeply hurt and he did not know how things would turn out, being left at home alone and unable to work. He said his motivation and self-esteem did not exist and did not like being around people and rarely left his premises. He could not sleep and sat up most nights until the early hours of the morning. 27 In relation to his disciplinary history Mr Gardiner said he had always tried his best but believed that Inspector Volf had never liked him and over many years had continually attempted to instigate disciplinary action against him. He believed a review of actions taken against him would reveal the involvement of Inspector Volf. Mr Gardiner gave an example of obtaining approval to become a weapons training instructor while Inspector Volf was on leave but upon his return, the Inspector told him how lucky he was to have received that approval and if the Inspector had been around it would not have happened. This had happened six years previously. He cited instances of where his performance had brought commendations and citations but had not been approved by Inspector Volf. 28 In relation to suggestions that he was a below standard police officer, Mr Gardiner gave examples of being recommended for highway patrol positions and being a person well suited for such a position. His immediate supervisor had spoken of him carrying out his duties in an efficient and effective manner and with enthusiasm and supported him for the highway patrol position. Mr Gardiner denied that he could not work alone and stated that he had been allowed to attend the academy and teach new recruits weapons training and had been shift supervisor on many occasions and had worked as an alpha unit. He urged the Commissioner to consider against other officers his eight year work statistics at his local station stating that he would not be as lowly rated as suggested. He said that he did not claim to be the brightest and most prolific worker at Batemans Bay but he took pride in his job and believed he performed to the best of his ability. 29 Two particular incidents occurring in early 2005 were then mentioned by Mr Gardiner where he had firstly attended a fatal logging accident and the next day had attended the morgue. He described the first incident that involved a person he had known socially for approximately 20 years and how he had become uncomfortable and relayed his concerns to Inspector Volf who asked him if he could handle it. He knew the Inspector would love to have "anything on him" so he agreed he could handle it and the two other officers left the scene. A few days later he performed duties in the morgue in circumstances he described as the last place he wanted to be, as he did not dare risk questions being raised again over his work performance. He assisted the doctor with the post mortem but stated that he had never forgotten those two days and never would and they continued to haunt him. Only a few weeks before he had been out socially with the person involved. While trying to distance himself from the incident, a brief of evidence was required and Mr Gardiner said he continually advised the Coroner of the progress of the matter and believed the Coroner accepted his updates. He had to wait several months for WorkCover material and witness statements were difficult because of illness and the work commitments of others. Because of his connection with the deceased, he was finding it very difficult to address the matter. 30 Mr Gardiner accepted that he used inappropriate language to police officers to whom he spoke on the telephone and who attended his premises. He was a seriously stressed person against whom unfounded allegations had been made. Those allegations were being handled in an inappropriate fashion by the professional standards police and he asked for the language and his behaviour to be placed in context. He again stated that there was simply no need to be arrested and humiliated in front of his peers and could not understand why he could not have been dealt with differently. There was no need for his arrest as the Police Force already held his photograph and fingerprints and knew where he lived and worked. He stated that his anxiety about the outcome of the deliberations and whether he should be charged was a major factor in his behaviour on 10 and 11 July 2007. He was also anxious about what may happen when he had behaved inappropriately but honestly. He said he was intoxicated, distressed and on sick leave and the professional standards police, by holding back the results of the investigation, had shown no regard for his well-being. 31 The incidents had been used to show him as being an unsuitable police officer but he believed that the submission to the Commissioner ignored his mental state, his anxiety and his depression and his understandable deep concern about his future within the Police Force, a job he had loved and to which he had dedicated almost 20 years of his life. While he acknowledged that he had difficulty with alcohol he was addressing that matter "in a most aggressive fashion". He accepted that each of the three matters reflected poorly on his use of bad language but stemmed from genuine and hard felt distress and grievance. The notes stuck on his door was not an act of misconduct but the act of a person who was sick, at the end of his tether and frustrated in the extreme and on the brink of losing the job he loved. He denied that his behaviour indicated a lack of respect for police officers and while he had difficulties with one Inspector, he had participated in the interviews and his relationship with Sergeant Vardy and others should convince the Commissioner that he had great respect for his colleagues and regretted causing them difficulty. The difficulty was, however, no greater than what would be encountered as police officers and what they could expect to encounter in their duties when acting with members of the public. While he accepted that this did not make his behaviour acceptable, his behaviour should not be considered to be worse than that of a member of the public in a similar circumstance. He pointed out that he had not been charged or convicted of any offence or found guilty of any criminal behaviour. He had previously experienced difficulty with alcohol and had been wrongly accused by his partner's vindictive ex-husband. He formed the view, perhaps mistakenly but honestly, that the professional standards police had decided he was guilty of the alleged conduct and he was treated accordingly. He was arrested unnecessarily, embarrassed unnecessarily and labelled by virtue of that arrest as a criminal. He asked the Commissioner to understand how a police officer would feel being arrested and taken to a police station, put on public display and thereafter how he would be regarded with great suspicion. It was an exacerbation of the problems to be placed on restrictive duties and effectively under house arrest. Applicant's evidence on review 32 In his affidavits in the hearing on review, Mr Gardiner repeated a number of the matters already raised in his response to the Commissioner's Notice but referred to receiving several favourable comments from senior police in regard to his performance while acting as a supervisor, the fact that he had completed the Sergeant's qualification examination obtaining a mark of 98 per cent and had received three Commander's citations for good police work while stationed at the Batemans Bay police station. 33 In his first affidavit Mr Gardiner dealt with his financial position stating that between July 2007 and August 2008 while on sick leave and suspended on duty, he only received his base pay without shift penalties and overtime and this meant he was losing between $150 and $300 per fortnight. He had relied on shift penalties and overtime to pay his living expenses and without those payments, he had difficulty paying his bills so he had to sell his car. Since being removed from the Police Force he had been unable to obtain other full-time employment and had been living on his severance pay which had been exhausted "a long time ago". He had sold a caravan and a horse truck to pay for living expenses and had now spent all of that money and was relying on his family to lend him money. He was behind in several mortgage payments and anticipated that he would have to sell his house. He was unable to withdraw funds from his superannuation fund. He said that, in the past, he had been too embarrassed to seek social security but recently realised he would need to apply for Centrelink benefits just to pay basic living expenses. He was also extremely embarrassed that he had not been able to pay child support for his two daughters. 34 Speaking generally about his behaviour, Mr Gardiner said that he had used excessive alcohol during three periods in his life: firstly, at the time of his separation from his wife; secondly, in an incident in Milton in 2003 involving another relationship with his then girlfriend; and, thirdly, during the incidents that led to him being dismissed. All of those incidents had been finalised and, unlike earlier, he no longer felt as depressed or distressed. He was prepared to undergo any treatment that was required to enable him to return to the job for which he had received substantial training and experience. He had not been able to pay for counselling or treatment since being declined hurt-on-duty benefits and being removed from the Police Force but over the past five months had addressed his alcohol problem by significantly limiting his drinking to the point where he now believed that, once again, he was able to discharge his duties as a police officer. He was prepared to give any undertaking to the Commission and the Commissioner to undergo any assessment or treatment in relation to his alcohol abuse. 35 In a further affidavit Mr Gardiner said that his financial situation had since deteriorated and he had been served with a housing loan default notice together with a s 57(2)(b) Notice by solicitors acting on behalf of the Police Credit Union. He had also been served with a Statement of Claim from the Police Credit Union seeking a personal loan repayment of $13,465. He had applied to obtain early release of his superannuation benefits and understood that amount of nearly $11,000 would be paid directly to the Credit Union sometime in the future. 36 In relation to evidence filed on behalf of the Commissioner, Mr Gardiner agreed that, on 4 July 2007 when he spoke to Inspector Huard, he did indicate at that time that he did not want to take the Police Medical Officer's advice or seek counselling through the employees assistance programme because he had earlier been belittled and demeaned by Dr Li. He did not trust Dr Li and did not think he would be assisted by the Police Medical Officer or the employee assistance programme but stated that he was feeling "very bitter and twisted" about the whole incident. He had previously been in contact with Ms Hanna the psychologist/counsellor from the employee assistance programme and had spoken to her shortly after 4 July 2007. 37 In relation to comments made on 17 November 2007 to Sergeant Vardy about Inspector Huard, Mr Gardiner agreed that he made those comments about the Inspector but regretted saying them and sincerely apologised for any offence. He did not believe that the comments were true and when he said those things, he had read comments about himself that had been attributed to the Inspector in Ms Driver's report to the insurance company. In his emotional state at that time he took those comments as a personal attack by Inspector Huard and it was further evidence that the police were out to get him. If reinstated, he confirmed that he would, without question, obey any lawful direction or instruction given by a senior officer, including Inspector Huard. He denied having any hostile feelings towards Inspector Huard and would have no hesitation in working for and with him, including strictly following any lawful instructions given by him. He also understood that, if reinstated, the Batemans Bay and Moruya stations may not be suitable or appropriate places for him to return to duty but he would, without hesitation, be prepared to return to the Sydney metropolitan area to perform general policing duties. 38 Mr Gardiner said that he accepted wholeheartedly Superintendent Willing's statement that subjecting fellow police officers to drunken and abusive comments was disgraceful and unacceptable behaviour. He said he had not made threats to kill any police officer but accepted that was also disgraceful and unacceptable behaviour. He noted that at the time of making his comments, he now understood he was suffering from a psychological condition and abusing alcohol to deal with his feelings. He deeply regretted having said those things. 39 In reply to a statement that he had not initiated an internal complaint about the conduct of the PSC investigation and his unlawful arrest, he said he did not trust the Police Service and he felt it would be just another thing used against him. He had recently received legal advice about the merits of pursuing a torts claim against the State of New South Wales for false imprisonment arising from his detention at the Batemans Bay police station on 19 April 2007, and while considering taking that action, he was more interested and motivated to leave the past behind him and to get back to performing duties as a police officer. 40 Mr Gardiner referred to an incident in late December 2006 where, together with his work partner, he attended a domestic violence related incident and they were confronted with a deranged male threatening his family while armed with a knife. Although he was entitled to resort to the use of his service firearm, instead he overwhelmed the offender and secured the knife. As a result he received a Commander's citation in recognition of his heroism and professionalism and he was confident that, now he had severely limited his alcohol intake and gained a better insight into his problems, once again he would be capable of undertaking police work even dealing with similar dangerous situations. Mr Gardiner said he was a person who was able to behave in a responsible way and to take responsibility in relation to his previous drinking problems although he had found his present financial and personal circumstances extremely distressing, he had severely limited his alcohol intake and wanted to be able to continue to address his previous problems with professional counselling but he could not afford to do so now. 41 In his oral evidence Mr Gardiner said that, since being dismissed, he had obtained no full-time work but he had some casual work in the removals business, within a few weeks of his dismissal in August 2008. He obtained that removal work and worked once or twice a week and sometimes more until mid-October. As a casual he earned $980 from Bay removals. In relation to his trade as a fitter/machinist, he had approached the local Council Works Depot but was told there was no work for him and to keep his eye on the internet for positions. He went to the industrial area but was told there was no work available for him. These enquiries were made between mid-October to early November 2008. Between mid-October to late November 2008 he had been interviewed for a sales position in Moruya but was unsuccessful. He did not think he would get any work over Christmas but had made very little efforts in 2009 to seek employment but had been checking the papers and the internet but nothing was available. He said he was restricted to seeking work in the Moruya area because he lived on his own and had horses and a dog and there was nobody else to look after them. He relied on neighbours to fed his dog when he was not at home. When asked, in terms of his financial position, would he be able to travel and relocate to the Sydney metropolitan area he said, if he needed to, he would but at the moment he had no financial capacity and rode a bicycle because he did not own a car. 42 In cross-examination, Mr Gardiner accepted that the police were not above the law and had to abide by the law the same as other citizens and if an offence was committed, a police officer was to be treated as anyone else. He accepted that he must comply with the directions of a senior officer and comply with the Police Code of Conduct. He accepted that the Police Force was a para-military organisation requiring supervisor's directions be followed. He accepted that police often worked in dangerous situations and needed to be able to rely on each other as police officers when exercising their duties as well as having trust and respect for each other. He agreed that public confidence in the police was essential in order for them to carry out their duties and public confidence would be lessened if police officers were seen abusing alcohol. Public confidence in police would also be lessened if police officers were seen behaving in an irrational manner when off-duty. 43 It was accepted by Mr Gardiner that it was appropriate for Superintendent Starling to prepare a report concerning his behaviour on 10 and 11 July 2007 and it was also appropriate that he be referred to the Police Medical Officer. It was appropriate that certain officers offered him assistance within the New South Wales Police Force and he admitted some officers were very helpful. At interview when he was dismissive of those offers of help he did not know if that behaviour was inappropriate because he had initially accepted assistance and he went to "everything". The Police Medical Officer had recommended that he undertake counselling and he acknowledged that he did not accept that course although he had accepted previous counselling. Mr Gardiner denied that between May 2007 and December 2007 he did not seek specific help concerning alcohol abuse but he accepted that he did not take up offers to use the Police Force's welfare and rehabilitation services. He denied that he did not accept this help because he saw that help as an attack on him by the police officers and he disagreed that he would not accept help because he would not take some responsibility for his actions in 2007. He said that, at times, he did not take responsibility but there were times when he believed he was the only one who was taking responsibility for his actions. He accepted that, in an interview with Inspector Byrne, he had been advised about the services of the health and workplace services branch, including the psychology division, as well as the police chaplaincy. He was informed about the rehabilitation section and that Inspector Byrne had made himself available should be Mr Gardiner require assistance. He accepted now that, at certain times during 2007, he was abusing alcohol. He did not accept that he should have taken the advice of fellow officers and the Police Medical Officer to seek help about his alcohol abuse but said he should have taken action that he had chosen to take himself and he would have come to a satisfactory outcome that he had now come to. He accepted that it would have been helpful to undertake action with respect to his alcohol issues but again stated that the course he took was the better way. He agreed that he did not take any action in 2007 about his alcohol problem because he did not believe he had a problem. Sergeant Vardy was a good friend and he had suggested that Mr Gardiner seek help in relation to his alcohol abuse. 44 Mr Gardiner accepted that he had been dismissive of offers of assistance from the Police Medical Officer and psychological services and he did so because of the way Dr Li had spoken to him, demeaned him and made him feel worse. He said that he had previously done everything that had been expected of him and every time he was going back for help and went to see the Police doctor and Police psychologist, they refused to see him. It was his perception that they were turning against him every time he went back for help. Mr Gardiner explained that, when he said he had done everything asked of him, he had gone to see the doctor and psychologist and was trying to get back to work. He had only seen a counsellor about his excessive consumption of alcohol in 2003 and 2004 and that was part of the employee assistance programme. There were three or four meetings over a period of two or three months and then he was told he was no longer required to attend. There was no alcohol counselling after 2003/2004 and he did not seek such counselling. He tried to put everything behind him and be the best officer he could and he had no further problems until 2007. He continued to drink heavily after the first incident in 2007 and it did occur to him after each incident that he should undertake some counselling but at the time he was justifying in his mind that it was not the result of his own actions. After being dismissed from the Police Force he did not undertake any official courses or structured course concerning alcohol abuse although he spoke to the local hospital and Mr Erskine had tried to contact the hospital but they had told him that it was mainly a drug service and they did not deal with alcohol abuse. Mr Gardiner said he continued to drink but at a very much reduced level, consuming a beer watching the Friday night football. He probably drank two or three beers twice a week although it had crossed his mind that he might be better off not drinking at all. He felt he could stop drinking and he had gone for long periods without drinking alcohol and drank socially. The longest time he had gone without alcohol this year was for three weeks in March 2009. It was not a deliberate avoidance of alcohol, he was just busy. THE MEDICAL EVIDENCE 45 Ms Jennifer Driver, consultant psychologist, supplied a report to Allianz Australia dated 21 August 2007 in relation to Mr Gardiner's claim for workers' compensation for psychological injury. Apart from interviewing Mr Gardiner she also interviewed Superintendent Starling, Inspector Huard and spoke to Mr Gardiner's treating general practitioner, Dr Rivett. In relation to his present claim, Mr Gardiner had been on leave since approximately 23 July 2007 when he was placed on restricted duties because of an allegation of assaulting a minor. On interview he stated that he found the experience of being placed on restricted duties "humiliating and demeaning" and that is why he had taken leave from the workplace. He had attempted to return to work in early June and was initially placed on full duties but because of the Police Medical Officer's opinion he was again placed on restricted duties, returning to work for four days before again going on leave. As part of his history, Mr Gardiner described an incident in 2003 when he was arrested and charged with public mischief and having to report to the police the occurrence of a domestic disturbance at his premises during an argument with a female friend. He had been cleared of those charges in court but the Police Force took another four months to determine whether he had breached their Code of Ethics, resulting in the matter being an ongoing issue for approximately 12 months. He was also placed on restrictive duties at various intervals during that time. Mr Gardiner did not think the allegation was an ongoing issue or related to his present problems. He did not believe that this past experience impacted on the severity of his distressed response to recently reported workplace stresses, where he was aware of how "humiliating and demeaning it was to be placed on restricted duties in regard to allegations of personal misconduct". Mr Gardiner also told Ms Driver that there had been a number of complaints, particularly from one senior officer, regarding his off-duty behaviour over several years. While a number of those complaints were unsubstantiated, disciplinary action had been taken and he had been placed on numerous work performance plans as a result of those complaints. He had not had any problems in regard to this perceived harassment over the past 12 months. 46 In relation to the 2003 police charges against him, Mr Gardiner was directed by the Police Force to attend a psychological assessment. He was also required to attend two sessions with a counsellor, an experience he described as "a waste of time" and being "not helpful". In relation to his current distress, on 17 July 2007 Mr Gardiner initially consulted Dr Rivett, his general practitioner. Dr Rivett had been his treating general practitioner since 2002/ 2003. After raising his current distress levels, Dr Rivett recommended consulting with Mr Peter Erskine, a psychologist. Mr Gardiner did not make an appointment with the psychologist pending the insurer's decision regarding provisional cover for treatment but that had been approved the day prior to the interview with Ms Driver. Mr Gardiner had another appointment with Dr Rivett on 16 August 2007. 47 At the interview Mr Gardiner said there were two main issues contributing to his current claim, identifying inappropriate processes being followed and being arrested by his colleague on 19 April 2007 in relation to an allegation of assaulting a minor and how he was subsequently placed on restricted duties as a result of the allegation. Mr Gardiner described how officers from internal investigations had come to his home on 19 April 2007 and interviewed him and how later he received a telephone call requesting him to attend Batemans Bay police station. On arrival at the police station he was not allowed to go near his normal workstation and he was guarded by several of his colleagues to ensure he did not leave. He said he was subsequently arrested and placed in custody for approximately two hours. This experience was described as humiliating and Mr Gardiner said that, although he was not placed in the usual custody cells, he was in a part of the police station that his colleagues walked past and they would have known why he was there. His colleagues would also have been wondering whether the allegations against him were true. He believed he had only been arrested for the purposes of interview and that was contrary to protocol. The arrest had taken place before there was an appropriate level of information gained relating to the allegation. Colleagues had told him that the officers from Sydney had inappropriately commented on his allegedly poor police record. The officers investigating the allegation did not listen to his opinion that the claim was vexatious because of the ex-husband's attitude towards him. 48 Mr Gardiner had attempted to remain at work despite the arrest but was then placed on restricted duties. He was told that he could not carry firearms and was restricted to office duties. On 20 April 2007 he was informed that, due to this restriction, he could not attend a selection course as a firearm instructor, a role that he had held for the previous five years. It was unlikely that another course would be available for at least 12 months and Mr Gardiner had undertaken a lot of preparation to retain his role. Having been placed on restricted duties in 2003, Mr Gardiner said he knew how demeaning and humiliating that position was and therefore felt he would "not be able to cope". Since taking leave he had been issued with a telephone interim order requiring him to attend court regarding an application for an AVO. He alleged there were inappropriate delays in issuing the interim order and it was an unnecessary process. He was still required to attend court in regard to the AV0 although the investigation had since ceased and the complaint against him had been considered unsubstantiated and vexatious in nature. He was distressed that, despite the result, the arrest had been placed on his record and his career had been destroyed. He described his "perfect life" as being "stolen" from him and his relationship with his partner had ended. He had not been given feedback regarding the status of the investigation until three months after his arrest and in the interim he had experienced distress regarding whether he would be charged and the outcome. He was only informed of the outcome having expressed suicidal suggestions to police officers on 10 July 2007. During this conversation with the police, he threatened to shoot any of them if they attended his house. While he had not been arrested in relation to the alleged threat, he believed that matter would be managed and would have some implications for him on his return to the workplace. Having attempted to return to work in early June 2007 and being placed on full duties, the Police Medical Officer again placed him on restricted duties where he could not carry a firearm. Mr Gardiner could not understand the reasoning for this perceived punishment and said he had done nothing wrong. After four days back at work he took leave again. Mr Gardiner ranked his relationship with his colleagues as eight or nine out of ten on a scale of one being a poor relationship and ten being a good relationship. He rated the leadership style of Superintendent Starling and team leader Hardman as eight or nine out of ten. Mr Gardiner related his sense of support and contentedness in the workplace as one or two out of ten. 49 When interviewed by Ms Driver, Superintendent Starling said he was aware of Mr Gardiner's history of off-duty incidents related to his alcohol abuse but he was not aware of the presence of "any performance or conduct issues" since he had known Mr Gardiner. He regarded Mr Gardiner's relationship with his colleagues and supervisors as being good although they had been "strained" since the 10 July 2007 incident. Mr Gardiner was described as being a "likeable person" with a "good disposition". 50 Superintendent Starling was of the opinion that the process of investigating the alleged assault and the interview and holding of Mr Gardiner in custody and the AVO were all undertaken in accordance with protocol and that Mr Gardiner was neither victimised nor shown special treatment. In relation to Mr Gardiner's stress in the workplace, Superintendent Starling said that Mr Gardiner "seems obsessed" with the assault matter and that appeared to be an excuse for him to use alcohol. The matter that had strained Mr Gardiner's relationship with his colleagues was that approximately 10.00 am on 10 July 2007 he had telephoned the police station and threatened to kill himself and to shoot any police officer if they were to respond to his telephone call by attending at his house. Superintendent Starling attended Mr Gardiner's premises within several hours of the telephone call and said that Mr Gardiner was heavily intoxicated and appeared "irrational" saying he wanted to contact his children and tell them he wanted nothing further to do with them and he had posted notes outside his house. 51 Superintendent Starling and the duty officer from Batemans Bay police station had tried to approach Mr Gardiner in the least intrusive manner or to cause him distress in relation to 10 July 2007 incident. The Superintendent had sought advice from a psychologist from the local mental health service but Mr Gardiner had declined to speak to the psychologist. The Superintendent said that the matter could have been handled in a much more serious and higher level of response that would have had harsher ramifications for Mr Gardiner. 52 In relation to the support provided to Mr Gardiner in the workplace, Superintendent Starling believed that Mr Gardiner had been asked if he required any counselling or welfare assistance. He recollected that Mr Gardiner had declined any assistance offered to him through the Employee Assistance Programme but a person had been nominated as a support person within the Force. Arrangements had been made for Mr Gardiner to consult with the Police Medical Officer but he had walked out on the first appointment and failed to attend the second. The Superintendent believed that a high level of support had been supplied to Mr Gardiner since he had taken his current absence from the workplace. 53 Ms Driver also interviewed Inspector Huard who had known Mr Gardiner for approximately 12 months. The Inspector was not aware of any performance or conduct issues regarding Mr Gardiner in the past 12 months but he was aware that prior to that time, Mr Gardener had a history of performance issues but he was not aware of the details. He described Mr Gardiner's performance as "average". Mr Gardiner generally got along with his colleagues but appeared to be involved in more "dramas" than most police officers. 54 Inspector Huard was of the view that aspects of the investigation of the alleged child assault could have been conducted differently. Mr Gardiner could have been placed in custody at a police station other than his normal place of work and he said that placing him in custody at his workplace would have caused Mr Gardiner additional distress. Mr Gardiner had questioned why he was interviewed at all and on several occasions expressed the view that the only reason the investigation was being pursued was to further the career prospects of officers from the professional standards unit. Inspector Huard said that this had been Mr Gardiner's fixed belief whether he was intoxicated or not. The Inspector noted that the investigation had to follow certain protocols and that had occurred. Placing Mr Gardiner on restrictive duties was also standard procedure and the Inspector believed that the various incidents that had recently occurred and Mr Gardiner's stress was not work related as they had occurred off-duty. He expressed the opinion that Mr Gardiner would not have had those stress levels if he had not taken the investigation personally. Since he had been on restricted duties the Inspector had several conversations with Mr Gardiner in which he seemed stressed and reported sleep disturbance. After one particular telephone call during which Mr Gardiner seemed pre-occupied, he expressed the view that the investigation was inappropriate and unwarranted. The Inspector had attended Mr Gardiner's house because of concern for Mr Gardiner's stress levels. At that time Mr Gardiner appeared intoxicated but did not describe any "suicidal ideation". The Inspector had reported Mr Gardiner's stress levels to Superintendent Starling and the Employee Assistance Programme. At this time there were court hearings about the AVO and because of Mr Gardiner's reported levels of distress, the Inspector referred him to be assessed by the Police Medical Officer. The Police Medical Officer stated that Mr Gardiner should remain on restricted duties although Mr Gardener disagreed with that recommendation. Mr Gardiner's own general practitioner had recommended him fit to return to work but more weight had been given to the Police Medical Officer's assessment. 55 Inspector Huard described the incident on 10 July 2007 when he attended Mr Gardiner's home with Superintendent Starling. He described Mr Gardiner as being intoxicated and irrational having posted a number of sheets of paper around the outside of his residence referring to corruption within the Police Force and that his employer had murdered him. A psychologist at the local mental health centre had been contacted but had recommended that Mr Gardiner, due to his level of intoxication, not be taken to hospital for medical health assessment. Mr Gardiner had declined to speak to the psychologist but that person stated that Mr Gardiner would not attempt suicide or self-harm. As a result of this incident the Police Medical Officer was informed and in accordance with the usual protocols, an internal complaint investigation was conducted. In relation to additional support in the workplace provided to Mr Gardiner, the Inspector said that Mr Gardiner could not be convinced that he needed intervention because of his signs of distress. Mr Gardiner had declined offers of assistance on a number of occasions and had refused to follow the recommendations of the Police Medical Officer. He was of the opinion that Mr Gardiner regarded himself as having done nothing wrong and therefore should not have to seek intervention or assistance. 56 Ms Driver also spoke with Dr Rivett, Mr Gardiner's treating general practitioner since 2001, but Dr Rivett had only seen him on three occasions and all in relation to workplace matters. Dr Rivett said that, in September 2001, Mr Gardiner was suspended from the Police Force in relation to threatening behaviour while under the influence of alcohol. Dr Rivett had recommended he consult a counsellor and Mr Gardiner had reported his distress about the potential implications for his job. There was an internal review of this incident and the matter was dismissed without penalty. In 2003 Mr Gardiner had again been suspended from the workplace in relation to an incident during a relationship breakup and again Dr Rivett had recommended that he consult a counsellor. A psychologist was consulted who stated that Mr Gardiner was exhibiting problems with alcohol abuse and gambling. In relation to Mr Gardiner's recent distress levels, Dr Rivett said that he had only consulted with Mr Gardiner once on 7 July 2007. Mr Gardiner had presented with symptoms of frustration and an angry mood in relation to a workplace incident but had not reported any other distress symptoms such as sleep disturbance or anhedonia. 57 Dr Rivett also spoke of the 19 April 2007 incident, Mr Gardiner's arrest and the seeking of an AVO against him. Mr Gardiner expressed frustration due to conflicting advice regarding his ability to work on full duties which had been supported by a psychologist but not by the Police Medical Officer. Dr Rivett was aware that Mr Gardiner had expressed suicidal ideas and had allegedly threatened the safety of officers in July 2007 but stated that, in his opinion, Mr Gardiner did not intend to attempt suicide or self-harm at this time but it was rather an expression of his frustration. He had consulted Dr Rivett and denied any current suicidal ideas or thoughts of harm to others and expressed remorse for the incident. His opinion was that Mr Gardiner was not currently at risk of attempting suicide. Dr Rivett was of the view that Mr Gardiner appeared to use alcohol to cope when under stress, referring to incidents in 2001 and 2003. Dr Rivett had provided Mr Gardiner with a current clinical diagnosis of post-traumatic distress disorder and the specific symptom noted was that Mr Gardiner continued to "ruminate" about the incident. Mr Gardiner was described by Dr Rivett as an intelligent and articulate person who was easy to talk to and was honest and open with his feelings. Mr Gardiner seemed to have a poor insight in regard to his own behaviour having participated in the incidents in 2001 and 2003. Dr Rivett expressed the opinion that, bearing in mind these past incidents, Mr Gardiner would have felt more threatened in relation to his current circumstances. It was his opinion that if Mr Gardiner returned to the workplace on full duties, it was likely to alleviate his distress. 58 In testing Mr Gardiner for major patterns in personality and emotional responses, Ms Driver said there were no marked elevations indicating the presence of any current clinical psychopathology. There were moderate elevations reflecting sources of difficulty for Mr Gardiner and they may relate to current stresses or complicated life circumstances. Mr Gardiner reported that alcohol abuse had caused occasional problems in his life and those problems may involve difficulties with inter-personal relationships, problems on the job and/or the use of alcohol to reduce stress. There were no current thoughts of self-harm or suicidal ideation. Ms Driver said that Mr Gardiner's profile seemed somewhat inconsistent with his self-report and the report of his general practitioner where he spoke of experiencing levels of distress of a more severe nature than those suggested in the test results. It was likely that Mr Gardiner had a poor insight into the impact of his past alcohol abuse. 59 At Ms Driver's interview Mr Gardiner showed no evidence of delusional thought content or bizarre thinking patterns. Since his arrest in 2007 he had broken sleep and reduced appetite, ie, not eating until the latter part of the day. He had poor energy and motivation levels and described himself as feeling "gutted" and feeling angry and embarrassed at his mistreatment in the workplace. He had not wished to take up his relationship with his ex-partner because of her ex-husband's influence on the children telling them to hate Mr Gardiner. He had stopped participation in his hobbies, including riding horses. He lacked energy and was not motivated to participate in those activities. When asked about having experienced any recent or past suicidal ideation, Mr Gardiner spoke of the incident on 10 July 2007 where he stated he would shoot himself. He said that prior to this he had fleeting thoughts that he would be better off dead and "what's the point" but stated that he never had any intention of attempting suicide but it was an expression of his anger. He did not currently have access to any firearms and had never made any past attempt to self-harm or suicide. He had no suicidal thoughts since 10 July 2007 and so it was deemed that Mr Gardiner was not at risk of attempting any suicidal behaviour or self-harm at the time of the current interview. Ms Driver noted that any future stressors could make him more vulnerable to experiencing suicidal ideation again and therefore his reported distress levels were to be closely monitored. His general practitioner had the intention of monitoring further suicidal ideation in subsequent consultations with Mr Gardiner. 60 In this interview Mr Gardiner spoke of usually consuming three or four standard drinks every night unless he was working night shift. Recently his alcohol intake had increased to between six and eight beers per night and this had assisted him to sleep. He drank every day of the week but did not report his recent levels of alcohol consumption as a concern for him at the present time. Mr Gardiner said he was ambivalent about the possibility of returning to work at the current time and mostly did not feel capable of work saying that there was concern that his senior colleagues were looking to fault his performance and to place him on formal performance management plans. His typical day was spent watching television but he did spend time with his daughters. He was concerned about further complaints being made against him and he felt generally unsupported in the workplace since taking his current leave and mentioned in particular the Police Medical Officer. 61 Ms Driver expressed the opinion that, from the time Mr Gardiner went off work to the current time, the symptoms of distress were of adequate frequency and severity to warrant a clinical diagnosis of adjustment disorder with depressed mood. There appeared to be a number of pre-existing psychological and personality issues likely to be impacting upon Mr Gardiner at the current time. One major pre-existing psychological factor was his previous suspension from duties in relation to conduct that occurred while under the influence of alcohol. It appeared that Mr Gardiner used alcohol as a coping mechanism, albeit it a "maladaptive one". It appeared that Mr Gardiner may present with a lack of insight as well as having a tendency to blame others which may fuel his perception of events. On the available evidence it appeared to Ms Driver that it could reasonably be expected that, having been arrested and charged in relation to a prior issue in 2003, it would have likely exacerbated Mr Gardiner's recent distress response having recently been in a similar situation rather than being a substantial contributing factor to his current distress. On the available evidence it seemed reasonable that having been arrested and placed in custody at his usual place of work in the present incident and while in the presence of his colleagues would have contributed to Mr Gardiner's recent reported levels of distress. It was also reasonable that, having been placed on restricted duties for an unknown period in relation to an allegation which had since been proved unsubstantiated, would have caused Mr Gardiner some distress. That factor had likely exacerbated Mr Gardiner's distress in relation to being arrested rather than being substantial. 62 In a stress assessment summary report, Ms Driver again expressed her clinical diagnosis of adjustment disorder with depressed mood. She was of the opinion that Mr Gardiner's was not currently fit to resume his substantive position and would remain so pending the outcome of the current internal investigations of the 10 July 2007 incident relating to his threat to harm himself and other police officers. It was recommended that close monitoring be provided to Mr Gardiner in the context of occupational rehabilitation upon his return to work. Ms Driver recommended that Mr Gardiner continue consultation with his treating general practitioner to monitor his reported levels of distress particularly with regard to reported suicidal ideation. As proposed treatment there was to be a referral to a treating psychologist for approximately five to eight sessions of Cognitive Behavioural Therapy thought to be beneficial to learn effective skills to manage his distress. It was suggested that Mr Gardiner return to work once it was the opinion of his treating practitioners that he was able to do so. A graduated return to work was thought to be beneficial as well as a short term transfer to an alternative police station. 63 Dr David Rivett provided a short medical report dated 29 January 2009. He described seeing Mr Gardiner in July 2001 and December 2003 and that in relation to the latter matter, how Mr Gardiner was seeing a drug and alcohol counsellor to assist his rehabilitation arranged by the Police Force. He described the April 2007 incident when Mr Gardiner was arrested. Mr Gardiner told him that he loved police work and felt his life had been pulled apart. He was last seen in mid-October 2007 while still on suspension from work. Dr Rivett expressed the opinion that an immediate apology from the arresting officer and a return to full duties when the charge against him was found to be vexatious would have been the best course of action to minimise what had been "an extremely traumatic episode for him". When this did not occur it severely worsened Mr Gardiner's resultant stress. 64 Mr Peter Erskine was a clinical psychologist who had been consulted by Mr Gardiner between 23 August 2007 and 25 September 2007. Mr Gardiner had not been seen since that time. Mr Gardiner had related how internal affairs officers had arrested him and his firearms had been confiscated. He had been served with an AVO in relation to child abuse. A Police Medical Officer saw him whom he described as rude and demeaning and who told him that Mr Gardiner needed relationship and anger management counselling. The police psychologist told him he had done nothing wrong. He returned to work but was placed on restrictive duties because people were worried about him being so angry. He spoke about the children's father objecting to Mr Gardiner having contact with them and making that complaint to the Department of Community Services. After that his relationship with his girlfriend ended. He had then gone on a "bender" and while intoxicated rang the police station and threatened to shoot himself and harm police. 65 On initial consultation, Mr Erskine concluded that Mr Gardiner was suffering from an adjustment disorder with mixed anxiety and depressed mood. Mr Gardiner had reported feeling irritable with reduced socialising, some sleep disturbance, lethargy, a slightly impaired libido and reduced appetite and was hyperventilating. There was no suicidal ideation, plan or intent. He was drinking alcohol as a form of self-medication about five times per week ranging from three or four beers at home or maybe ten beers on Friday night at the pub. This elevated level of drinking reportedly ceased during the period of contact with Mr Erskine's practice. As to treatment, Mr Gardiner was provided with preliminary "evidence-based cognitive behaviour therapy for his anxiety and mood disturbance". Mr Erskine described cognitive behaviour therapy as comprising psycho education, challenging and reframing of negative cognitions, graded exposure and associated anxiety management and reduction strategies. In addition, his safety and intention to harm others was monitored and as was his drinking which had reduced. 66 Mr Erskine said that the cause of Mr Gardiner's symptoms and problematic behaviours was his investigation by the police department of child abuse allegations and his perception that this matter and his subsequent threats while alcohol affected were handled insensitively. Mr Gardiner's threat to harm himself and police were made while alcohol affected and his reported level of alcohol use had declined to non-hazardous levels over the course of treatment. Mr Erskine had recommended to Allianz Insurance in September 2007 that Mr Gardiner should receive ongoing psychological treatment and had followed the matter up twice in October with Allianz Insurance but he did not receive any reply from them concerning ongoing psychological treatment. Mr Erskine said he was unfamiliar with Mr Gardiner's current condition and symptoms as he had not seen him since 2007 and therefore he was unable to say whether he was currently fit for work as a police officer. 67 Mr Gardiner was referred to the police psychologist, Ms Diane Hanna, for a fitness for duty assessment. Ms Hanna first saw him in early May 2007. In her summary, Ms Hanna said that Mr Gardiner appeared to have experienced a period of acute stress resulting from recent allegations of child abuse. He had presented with some residual feelings regarding his experience but said he took annual leave to finalise a few matters shortly after completing one or two shifts. He reported many "protective factors" and ongoing support from his workplace. She recommended that he be returned to full duties. 68 On 25 June 2007 Ms Hanna again saw Mr Gardiner. He continued to be referred for a fitness for duty assessment but she recorded that Mr Gardiner remained quite sceptical about the nature of that day's referral. He spoke of "the boss" receiving some emails and calls about people "concerned" about him and he had his own ideas about those people. It was recorded that he appeared frustrated and apologised for earlier almost walking out on the Police Medical Officer. He said the Police Medical Officer did not want to know his side of things and began to accuse him of getting medical certificates when there was nothing wrong. His sergeant told Mr Gardiner that he was to be placed back on restricted duties immediately and when asked what he should do, he was told by the sergeant to go home and get a medical certificate otherwise "he did not know". There was a discussion about his AVO and associated difficulties in the workplace, possible repercussions regarding the reactions of others and concerns for him in general. Mr Gardiner acknowledged that about 60 per cent of the concerns would have been genuine but 40 per cent of them were not. Mr Gardiner suggested that he would litigate the issue but Ms Hanna advised him that he was still upset and confused with his current situation and to take time out before committing to litigation or pursuing a stress claim. Mr Gardiner was concerned that Superintendent Starling would be upset because he wanted Mr Gardiner back at work. During the interview Mr Gardiner rang Superintendent Starling and explained the position and then Ms Hanna spoke to the Superintendent who told her that he had no problem with Mr Gardiner's work performance. The Superintendent said he had to refer him as he had received emails and calls and "to be honest," he thought Mr Gardiner was "a little bit attention seeking". Mr Gardiner had telephoned the Superintendent when he was affected by alcohol and was not making any sense. Ms Hanna explained to the Superintendent that Mr Gardiner was most likely seeking reassurance and that was why he was calling him and the Superintendent agreed. 69 In relation to this interview, Ms Hanna's summary was that Mr Gardiner appeared to be coping adequately despite the ongoing stresses of the AVO and family court issues but he reported no problems with his work performance and his Commander had verified that during the assessment. Mr Gardiner acknowledged that he had a propensity to disclose personal problems and issues in the workplace that created concerns for his welfare and this had ultimately led to the referral to Ms Hanna. He acknowledged that there was a need for him to "vent in a safe, clinical environment in the future". Mr Gardiner showed no signs of significant psychological problems that would appear to hinder him from returning to full duties. At the present time close supervision in the workplace appeared "feasible" pending the outcome of the court matter. 70 A number of confidential file notes taken by Ms Hanna were tendered in evidence. On 12 July 2007 she received a telephone call from Superintendent Starling who told her that he had received a telephone call from the station at approximately 10 pm on Sunday, 8 July 2007 informing him that Mr Gardiner had telephoned the station threatening to kill himself within minutes as well as any police officer who tried to intervene. The Superintendent and the duty officer had then driven to Mr Gardiner's home in Batemans Bay and discovered A4 paper taped to the front door making comments about professional standards Police and complaining that the police had murdered him. The Superintendent said Mr Gardiner was intoxicated and refused to speak with him or the duty officer and at one point, Mr Gardiner threatened to call his children at 2.00 am and he was persuaded not to do so. Mr Gardiner eventually agreed that it had "all been silly" and even laughed off the matter. Despite that last development the Superintendent said that a complaint had been lodged and the person who took the initial call was still shaken following an involvement in another incident. Mental health had been contacted while they were at Mr Gardiner's house but they told the Superintendent that they were not going to take it further. Consent had to be given to be contacted by Mental Health by the individual before any action could be taken including scheduling. There was a discussion and a Police Medical Officer referral was recommended with Mr Gardiner's issues to be addressed by a psychologist. Ms Hanna reminded the Superintendent that, since there was a complaint and not the first, there was a managerial and disciplinary aspect to Mr Gardener's actions and that the Superintendent had to be prepared to address these matters with Mr Gardiner. 71 On 18 July 2007, Ms Hanna received a telephone call from Mr Gardiner who told her that he had been to see his general practitioner the day before and that he was now on workers compensation and he had the services of a psychologist, Mr Peter Erskine. Mr Gardiner had not been informed of an appointment with Dr Kirby on 20 July 2007 and said that he would not be able to attend because of the short notice. He stated that he was taking legal action against the police and Dr Li for all that had happened to him and that he could not just forget it. Mr Gardiner said it was unfortunate that they knew the outcome of the child abuse complaint against him and did not tell him the night before he got drunk and at a time when he could not take any more. Ms Hanna reminded Mr Gardiner of the dangers of his alcohol intake and advised him to address this with Mr Erskine. Although he was cleared of the allegation, Mr Gardiner was still agitated about it, being arrested at his own station, and, subjected to taunts of being a child basher. He told Ms Hanna to be prepared to see him in the Daily Telegraph. Ms Hanna advised Mr Gardiner to discuss these matters with his psychologist before he did anything and that he should address all these matters in therapy to aid the healing process and to help him move forward. Mr Gardiner said he agreed. Ms Hanna urged him to consider what had been discussed and to keep in touch with the Unit. 72 On 26 July 2007, Ms Hanna received a telephone call from Mr Gardiner raising the issue of his alleged "attention seeking" in the copy of his report from the Police Medical Officer. He was not happy with that comment and said he did "not enjoy any of this" and that he was not going to speak to the Commander. He reported on where the Family Court matters were at and that an independent solicitor had said that DOCS had said that he was a threat to the child. Professional standards had telephoned him to apologise and told him that the allegations were such that they had traced the complainant back to his girl friend's ex-husband who had been placed on a list of vexatious complainants. Mr Gardiner said that he was still on workers compensation and still had to be interviewed. He claimed he had made some changes to his lifestyle by not drinking as much alcohol but was staying at home and having one or two drinks with a barbeque and saving money. Mr Gardiner had spoken to the Police Association and told them that the day he saw Dr Li he was angry about his situation but that did not necessarily mean he could not return to duty. Ms Hanna reminded Mr Gardiner that his Commander had assured her that he was happy with Mr Gardiner's performance and he just needed reassurance that there did not seem to be a valid reason to warrant a restriction of duty. Mr Gardiner was coping satisfactorily at that stage but things "grew out of hand" the more Mr Gardiner "ruminated on the issues with alcohol at home" resulting in the incident where police and mental health were called after Mr Gardiner threatened himself and other police officers. 73 On 27 September 2007, Ms Hanna received a telephone call from Superintendent Starling stating that he was in the process of trying to have Mr Gardiner suspended. He asked her not to say anything to Mr Gardiner about it and that Mr Gardiner did not know about it. He said that no one at the station wanted to work with Mr Gardiner and he could not tolerate that position. They discussed Mr Gardiner's drinking behaviour. Superintendent Starling was not sure whether he would "win" at this time but he would try again because Mr Gardiner was not really suited to be a police officer. Although he liked Mr Gardiner and "in fact he is great at his job", when he became drunk it was a different story. He had telephoned the Superintendent claiming that he was in the process of having his nose broken because he was trying to stop his brother from going to the media about the way in which Mr Gardiner had been treated by the organisation. On 24 September 2007 Mr Gardiner had seen his general practitioner and had been cleared for duty. The Superintendent, however, wanted him to go to the Police Medical Officer first and then the Superintendent had to interview Mr Gardiner about the complaint regarding the incident where he placed offensive signs around his house. In his oral evidence Superintendent Starling denied that these views were expressed to Ms Hanna and denied that they were an accurate recording of what he said. On 29 September 2007, Ms Hanna recorded that she received a telephone call from Superintendent Starling who told her that he did not know what to do with Mr Gardiner and he did not want him back at the moment because he was concerned that he could hurt one of his work mates. 74 On 29 September 2007, Ms Hanna had a conversation with Mr Gardiner. She told him that she had spoken to Superintendent Starling and to the Police Medical Officer, Dr Kirby, and that Dr Kirby would be seeing him that day and he would be assessed by an independent psychiatrist. Mr Gardiner appeared calm and accepted this change of arrangements but added that he was still very angry at the way he had been treated by the organisation. He spoke about the AVO still being ongoing and how they said on the one hand he was a good worker but on the other hand would not let him go back to full duty. She reminded Mr Gardiner to try to remain calm and discuss any issues with Mr Erskine, the treating psychologist. Mr Gardiner said he still saw Mr Erskine. He had telephoned Superintendent Starling and asked what would happen to him if he spoke to the media about his situation and the Superintendent had asked him if he had been drinking. Mr Gardiner said he could not win. 75 Dr Kirby was the senior Police Medical Officer. By letter dated 4 February 2008 he supplied Commander Willing with a report and assessment of Mr Gardiner. As a result of an assessment dated October 2007 by the Police Medical Officer it had been recommended that Mr Gardiner be placed on restricted duties pending a psychiatrist's review on 21 November 2007. Dr Samuels, forensic psychiatrist, saw him on 9 January 2008 and a report had been supplied on 17 January 2008. A number of questions were posed for Dr Samuels to address. 76 Dr Samuels was asked if there was an underlying psychiatric or psychological disorder and in particular whether Mr Gardiner could be bi-polar. Dr Samuels' response was: · there was no clear evidence of a psychiatric disorder; · he did have some volatile personality features; · he could act impulsively and showed poor judgement, particular when intoxicated; · he met the standard psychiatric criteria for alcohol abuse; · alcohol related issues were at the root of the incidents that had brought him to official attention;

In response to a question whether Dr Samuels believed that Mr Gardiner was medically fit to return to full operational duties, including access to firearms, he gave the following response: · the current drinking pattern was harmful and would potentially impact on his return to full operational duties; · his current increased drinking was due to the psychological effects of not working and the uncertainty of his future prospects; · if he continued to drink at the current level then there were reservations about giving him free access to weapons;

In answer to the question whether there were any other issues that Dr Samuels would like to bring to attention or opinions he would wish to express, he stated: · if the officer was to return to full operational duties then he would need to cut back on his alcohol intake and have insights into how he could lose control, get aggressive and be impulsive when intoxicated; · he would benefit from anger management counselling; · most importantly, he needed counselling from a specialist in AOD (Alcohol and other Drugs). 77 Dr Kirby's interpretation of Dr Samuels' responses was that the report identified two key issues in relation to Mr Gardiner's actions that had brought about his referral to the senior Police Medical Officer: · they could not be accredited to an underlying psychiatric disorder; · alcohol consumption was the underlying cause of his actions and it acted upon his particular personality traits.

Dr Kirby noted that the personality trait was essentially determined by the late teens and for practical purposes, remained unchanged after that. In relation to Mr Gardiner it was not his personality trait that would make him unsuitable to continue as an officer but his inability to control it due to alcohol consumption. Dr Kirby stated that, for all practical purposes, it was likely that Mr Gardiner would have to be abstinent to be considered a sufficiently low risk to be allowed access to a firearm. 78 Having made those observations, Dr Kirby then addressed a possible way forward for Mr Gardiner. Dr Kirby stated that, given that administrative issues had been resolved and that Mr Gardiner could, if medically cleared, return to work, then the following would be appropriate: · he needed expert AOD treatment, possibly as an in-patient; · secondly, as long as he could control his alcohol intake then he could be rehabilitated back to restricted duties - whether this had a caveat on it of abstinence would depend on the expert advice following from the first step; · there would need to be a senior Police Medical Officer review as to whether he could have access to a firearm.

Dr Kirby would be heavily swayed by abstinence from alcohol but the final decision would have to take account of the input from the AOD expert, clinical compliance and follow-up and the rehabilitation experienced. Dr Kirby then stated: This case boils down to the fundamental premise that this officer cannot return to duties until he ceases/controls his alcohol intake.

I would suggest that the LAC conduct a welfare interview with the officer on the basis of this report (which can be given to him) and assess his willingness to proceed as outlined above or offer an equal or better alternative. If he agrees, then the local IMA can liaise with the senior police psychiatrist to plan a practical therapeutic programmes (with timeframes ). In summary, Dr Kirby recommended that Mr Gardiner was unfit for duties. 79 Mr Gardiner's solicitors had obtained two reports from Dr Peter Anderson, consulting psychiatrist, dated 13 March 2009 and 1 April 2009. In his first report, Dr Anderson understood that Mr Gardiner was pursuing a claim for workers compensation and that he had also commenced unfair dismissal proceedings in the Industrial Relations Commission. The insurance company, Allianz on behalf of the New South Wales Police Force, had declined liability in relation to the workers compensation claim stating that Mr Gardiner's injury arose from his depression and the alleged assault investigation and not from his employment as a police officer. He had seen Dr Anthony Samuels' report dated 17 January 2008 and the letter from Dr Kirby, Police Medical Officer, dated 20 November 2007. In relation to the history taken from Mr Gardiner, he told Dr Anderson that his alcohol consumption climbed steeply when he attended the Police Academy and that there was a culture of drinking after work, especially for the afternoon shift. When he was posted to Moruya he was staying out drinking with police officers and his consequent infidelities were the cause of his marital separation. Following his separation there was "binge drinking" and Mr Gardiner had regrets about a couple of episodes that occurred in this context. He had thrown his own property around the back of his marital home saying that he was taking it out on himself. Mr Gardiner had been to the Police "healthy lifestyle" division to obtain some help. While they lived in the same town he was able to see his daughters and he continued to drink alcohol in the same way with his work mates but did not drink alcohol at all when rostered on a series of duty days. He did not believe that alcohol had any effect on his work. There was one particular "boss" who did not like him and generated complaints about him which Mr Gardiner felt were unfair. 80 Mr Gardiner recounted the 2003 further alcohol related problem involving a female with whom he was in a relationship. There was an argument and she wanted him to leave and he was intoxicated and felt he could not safely leave and so telephoned the police station because he felt there was a situation which could become violent and could lead to trouble. A police officer attended and he was driven away but was subsequently charged with public mischief although that charge was dismissed. Mr Gardiner was then placed on restricted duties although there was an attempt to "sack him" which ended up with a work performance plan over a period of 12 months. Mr Gardiner said he was keen to again prove himself after this incident and he continued with normal duties although still consuming alcohol. He then gave details of how his relationship had developed with another woman and how he came to be in a position of care with her children and the subsequent child abuse allegations. He spoke of the interim AVO and the difficulties that arose because he was well known at the Local Court. When he resumed normal work shortly thereafter he was told he was placed back on restrictive duties as there was concern about him being angry. Mr Gardiner said he was not able to obtain an answer from Internal Affairs about the abuse charge and the proceedings became protracted. The investigator said they would ask his wife questions and that became too much for him. He engaged in a drinking session on approximately July 10 was in a depressed mood and made a telephone call to the police station wanting to speak to a mate who was a sergeant but he was not available so he spoke to somebody else and threatened self-harm. He posted signs outside the front of his property indicating how Internal Affairs had interfered with his life and, later, senior police arrived. The next day he was told that, while there were no charges from Internal Affairs, his behaviour that night would result in departmental action. He was dismissed in August 2008. 81 There was a further incident where Mr Gardiner felt he could not cope and where things were too much for him and he resorted to excessive alcohol, destroying his own property by punching holes in the walls. At that time he thought he was having a breakdown and telephoned a mate to come to the property for support. However, his mate told Mr Gardiner that he had to put in a report about what had occurred. Mr Gardiner had used bad language with respect to a duty officer and he was charged under the Police Code of Conduct. This further upset him and he drank more as a result. At his worst, on several occasions he was consuming eight to ten beers daily. Mr Gardiner said his subsequent alcohol consumption had declined. He had made a decision that this would happen and had some support from his wife and after his other relationship ended, he decided to cut back on alcohol. He stated that his use of alcohol "approached dependence", he was feeling sorry for himself and drinking alcohol was his medicine. His habits with alcohol had changed and he no longer tried to use alcohol as a medicine to calm himself down because he was upset or in order to sleep. His sleep had been poor at times because of the various adverse events that had pre-occupied him. Mr Gardiner said he currently did not drink alcohol on a daily basis but he drank with his mate at his mate's place but he consumed "little". He believed he was in control of this situation and he did not believe that it would have any impact on his capacity to do his job as a police officer. His perspective on past excessive drinking was that he had drunk to excess three times in his life: the first when his marriage broke down; in 2003 concerning another relationship break up; and, during the incidents that led to his dismissal. He regarded all these matters as being finalised. He stated that on each occasion alcohol was taken to quell feelings of depression or stress. 82 On examination, Dr Anderson stated that there were no signs of depression or anxiety and no evidence of suicidality or homocidality. From Mr Gardiner's perspective he had never been suicidal although threatening suicidal behaviour when intoxicated. His thinking was quite clear and he was rational when interviewed. He was said to be insightful to the extent that he acknowledged poor judgment in the context of alcohol abuse in the past. 83 After reviewing the reports of Dr Samuels and Ms Driver, Dr Anderson stated that, at this stage, Mr Gardiner did not have psychiatric symptoms and was not abusing alcohol. In the period from April - November 2007, Mr Gardiner was abusing alcohol and merited a diagnosis of alcohol abuse within the DSM system of classification. At that time he had some symptoms of psychiatric disorder as recorded by the psychologist who saw him and felt that a diagnosis of adjustment disorder was appropriate. The psychologist who treated him, Mr Erskine, regarded a diagnosis of adjustment disorder with mixed anxiety and depressed mood as being appropriate. 84 Dr Anderson stated that Mr Gardiner developed various symptoms in April 2007 which might be described as anxiety and depression symptoms. They might reasonably be described as "acute stress symptoms". The causation of those symptoms clearly followed his arrest and consequential restricted duties. Dr Anderson's diagnosis was that in 2007 Mr Gardiner suffered adjustment disorder and alcohol abuse but currently he suffered no condition. The adjustment disorder had been caused by the arrest and restricted duties issue in April 2007. The alcohol abuse was a recurrent disorder. The alcohol abuse had been precipitated by the arrest and restricted duties issue in April 2007 but it had previously occurred. Dr Anderson accepted that there was some volatility about Mr Gardiner. He accepted that Mr Gardiner used alcohol in an attempt to handle, what to him were feelings that he had difficulty coping with, such as unstable mood, depression and poor sleep. This had occurred before. He had not learned that alcohol, together with his unstable state, gave rise to problems. His current condition was good and there was "no diagnosis". Mr Gardiner expressed the view that he had learned that the use of alcohol as a medicine was "contraindicated". He put forward the view that he had learned his lesson and he would not let alcohol control his life. He had been able to restrict alcohol to a social level and a light drinking level. 85 In relation to prognosis, Dr Anderson said that somebody with a past history of alcohol abuse led to the prognosis being "sometimes guarded". That prognosis would be improved by further psychological counselling. It was suggested that Mr Gardiner might attend the local psychologist he attended in 2007 although Mr Gardiner had told him that specialised services for drug and alcohol problems were lacking in his area or at least tended to be directed towards drug rather than alcohol problems. He accepted that the same treating psychologist would be a good start and he indicated that, at a previous time, he could not afford to attend this psychologist because his claim had been declined. Mr Gardiner had some psychological counselling but psychotropic medication had not been indicated. Dr Anderson said it would help to have some further counselling in the area of anger management and in the area of alcohol relapse prevention. Mr Gardiner's ability to gain control over alcohol consumption at this stage was certainly a positive sign. He was currently operating under some stressful circumstances, contending with legal proceedings and suffering financial problems but he was not, however, contending with relationship difficulties at the present time and his prospects of handling future relationship difficulties would be improved by further treatment. In relation to an assessment whether his employment was a substantial contributing factor to his condition, Dr Anderson said that he took into account what Mr Gardiner told him about his work, its duration and all factors. Dr Anderson said he did not think it was probable that Mr Gardiner would have had an adjustment disorder and a relapse of alcohol abuse at the same time were it not for the fact that he was a police officer accused of the particular crime of child abuse. 86 In his report of 1 April 2009, Dr Anderson expressed the view that Mr Gardiner was presently fit to undertake full police duties. The reason for this conclusion was that there was no applicable psychiatric diagnosis other than a past history of alcohol abuse, the fact that he was not presently using alcohol, there was no history of alcohol abuse affecting his work, that Mr Gardiner had some insight regarding the nexus between his past alcohol abuse and loss of judgment in non-working matters and that Mr Gardiner was willing to have further psychological counselling in anger management and relapse prevention. APPLICANT'S SUBMISSIONS ON REVIEW 87 In order to show that the Commissioner's decision was unfair, Mr Gardiner's counsel raised procedural matters, identifying material omissions and factual errors in the Commissioner's reasons, and then addressed matters and issues of merit arising from the applicant's case. 88 In relation to the Commissioner's statement of reasons the following errors were identified: (a) in relation to the allegation of assault concerning his partner's son, it was submitted that a glaring omission was that there was no reference to the fact that Mr Gardiner had been placed into custody at Batemans Bay police station. By referring only to the interview and not this central act that so adversely affected Mr Gardiner, an essential and important part of the background had been omitted; (b) the reasons omitted the fact that the AVO was dismissed in the Local Court because there were insufficient reasons to sustain the allegation; (c) the statement referred to the interim AVO being sought in accordance with "legislative requirements" when there was no such legislative requirement but merely policy considerations; (d) in the directed interview between Mr Gardiner and Acting Superintendent Starling on 4 October 2007, Mr Gardiner gave a long answer why he threatened self-harm in his telephone call to the police station on 10 July 2007. That lengthy answer gave the entire background to his call to the police station and dealt with: the allegation of assaulting the child; his subsequent treatment by the Police Medical Officer; being placed on restricted duties; being belittled and blamed and being told it was his fault and that he had anger and alcohol problems and only had himself to blame; being angry at being placed on restricted duties again; being humiliated in his own workplace and arrested at the police station; appearing at the court house on two occasions where it was read out that he had assaulted a child when everybody in the community knew he was a police officer; how degrading that process was for him; and, how he had again seen the Police Medical Officer and had been belittled and how this had weighed heavily on his mind over a period of three months or more. All that bubbled over on 10 and 11 July 2007 when he made his telephone call. That lengthy and significant answer was not adopted or acknowledged in the Commissioner's reasons; (e) later in the directed interview Mr Gardiner accepted that he had written three notes and placed them on the door of his home on the night in question. These notes spoke about being innocent and loving his job but the police had murdered him, that the professional standards were "corrupt cunts" and "fuckwits" and not interested in the truth and not to push him as he would kill himself because they had already found him guilty and also stating "fuck off", the police caused this and "only answer if willing to murder me". When asked for a reason why those notes were left on his front door when Mr Gardiner knew Superintendent Starling was coming to the premises, he stated that he was acting quite irrationally on the night and there was no reason for the notes. That answer was said to be relevant but had not been referred to in the Commissioner's reasons; (f) there was reference to Superintendent Starling making contact with the police mental health support service but that was incorrect and contact had been made with the New South Wales Department of Health; (g) there was no mention in the reasons of any underlying psychological condition or medical condition. In the directed interview between Mr Gardiner and Acting Superintendent Starling on 4 October 2007, Mr Gardiner specifically raised the fact that he had consulted a local psychologist, Peter Erskine, who told him he was suffering from an adjustment disorder and was suffering from that disorder at the time of the incident on 10 July 2007. He understood it was not a permanent condition but clinically it had been shown to last for a period of three to six months before disappearing. He understood there were no long-term repercussions. That matter was also raised early in Mr Gardiner's response to the Commissioner's Notice but it was not mentioned in the reasons. This was said to be a significant omission being relevant to Mr Gardiner's excuse for what were regarded as his failures to justify his actions; (h) on 24 September 2007, Superintendent Starling had provided a letter to Mr Gardiner directing him not to attend the workplace until authorised to do so and informing him that an appointment had been made to attend the Police Medical Officer and police psychiatrist on 28 September 2007 in Sydney. Superintendent Starling concluded that letter by informing Mr Gardiner that, if he required any assistance whatsoever, he was not to hesitate to contact "any member of the senior management team you are comfortable with" or if he wished, to contact the employee assistance programme. By 5 October 2007, Superintendent Starling by letter to Mr Gardiner referred to the fact that on two occasions the Superintendent had been contacted by Mr Gardiner while he was off-duty and while under the influence of alcohol. The Superintendent informed him that it was unsatisfactory that Mr Gardiner should telephone whilst intoxicated. Mr Gardiner was directed to cease contacting Superintendent Starling unless he was at work and he was directed to first seek advice from a duty officer. While the statement of reasons record these matters, nowhere was it stated that the Superintendent had given Mr Gardiner his mobile telephone number and had told him to contact him at any time. Further, the letter of 5 October 2007 stated that, if Mr Gardiner wished for welfare support in any way, he was reminded that Sergeant Vardy was his support officer and was also advised that the Superintendent was prepared to contact the employee assistance programme if Mr Gardiner so wished. The second point about these matters was that, as Mr Gardiner's peer support officer, communications with Sergeant Vardy were confidential and that had been set out in policy documents disseminated to police stations. The terms of a conversation with Sergeant Vardy were used against Mr Gardiner in a disciplinary manner although those contacts were acknowledged to be confidential and part of the peer support scheme; (i) in his reasons the Commissioner stated that Mr Gardiner's collective behaviour between July and November 2007 had to be considered not in isolation but inclusive of his threats to kill himself on 10 - 11 July 2007 and threats made towards other police. The Commissioner stated that his conduct and his actions "posed a serious and real threat to the members of the community, yourself and the police officers on duty at the time". There was no evidence of a member of the community being threatened and the evidence of the police officers was that they did not feel threatened and thought they had the situation under control. In November 2007 Superintendent Willing had told Mr Gardiner that, because he owned firearms on a personal basis, what occurred was a malicious act and a serious and real threat but that was a totally incorrect assertion because Mr Gardiner's firearms had been confiscated on 19 April 2007. Those errors had been repeated and turned up in the Commissioner's reasons; (j) while discussions with Sergeant Vardy were relied upon, the Commissioner's report made no mention that the Sergeant was Mr Gardiner's peer support officer; (k) the reasons stated that Mr Gardiner had admitted to walking out of an appointment with the police psychologist when he had been directed to attend but that was not fully correct because Mr Gardiner had left in frustration and had returned shortly thereafter; (l) while the reasons listed all the adverse comments about Mr Gardiner's work history, there was no balanced recognition of Mr Gardiner's good work, notes from the public in appreciation of his conduct, citations and commendations. In Mr Gardiner's evidence there were an extra three official commander citations, two relating to 2005 but they had been omitted from the Commissioner's confidence documents. These related to a significant drug arrest and the other concerned Mr Gardiner being confronted by an armed offender whom he disarmed and overwhelmed without resorting to use of his firearm and without injury to life or property. Those citations for heroism and professionalism had been left out of the Commissioner's confidence submission; (m) the Commissioner concluded that there were no genuine reasons of mitigation or explanation for Mr Gardiner's actions that could provide the Commissioner with any basis not to lose confidence in his suitability to remain a police officer. However, Mr Gardiner's relevant medical condition, his treatment and assessments conducted by the Police Medical Officer and police psychologist were all matters that should have been specifically mentioned and taken into account by the Commissioner but were glaring omissions. 89 There is substance in almost every one of these points although the evidence before the Commission would suggest that, in relation to matters omitted in the Commissioner's reasons, there were documents available disclosing the whole of the matter or placing it in a context that was of relevance to the consideration being undertaken by the Commissioner. Because no mention is made of them, the Commission on review is unaware of the weight, if any, that was attached to matters favourable to the applicant or whether they were considered at all. A number of the matters were conceded by Mr Gardiner's counsel to be minor but together it was submitted that they left a real doubt about the completeness of the Commissioner's decision-making process. While the general thrust of that submission might be accurate and serves to reduce the force of the Commissioner's reasons, the fact is, that material is now before the Commission on review and is capable of being taken into account in assessing the fairness or otherwise of the Commissioner's decision. Ultimately, as will become clear later in this judgment, there is an overriding difficulty that stands in the way of the orders sought by the applicant. 90 In relation to the review process, Mr Gardiner's counsel submitted that the relevant mitigating material was never put to the Commissioner. Superintendent Starling's approach was that it was up to Mr Gardiner, if he wished to do so, to address those matters in his response. The result is that the process by which officers were advising the Commissioner (in particular Superintendent Starling and Superintendent Willing) was fundamentally flawed because it omitted relevant material going to mitigation and explanation why the misconduct was occurring and that omission continued up the line to the Commissioner and tainted the decision-making process. A week before the Commissioner's advisory panel convened in relation to Mr Gardiner's matters, Superintendent Willing had received Dr Kirby's report dealing with Mr Gardiner's capability of returning to operational police work. Having received that correspondence, Superintendent Willing should have been on notice that there was other relevant material that should have been put before the panel when it was convened a short time later but no such medical evidence was considered other than the Superintendent giving some summary of the contents of Dr Kirby's letter. 91 Superintendent Willing was cross-examined about Dr Kirby's report. The Superintendent had received that report by 6 February 2008 and at the time that report was received, the Superintendent had not seen Dr Samuels's report. He had not produced a copy of Dr Samuels' report to Mr Gardiner and he did not see that report until recently when preparing evidence for these proceedings. Dr Kirby's report was explained by Superintendent Willing to Mr Gardiner on 18 February 2008 when he read the report to Mr Gardiner while they were at the Moruya police station. Mr Gardiner was provided with a copy and the Superintendent read out the report and asked Mr Gardiner to provide the report to his treating doctor. The Superintendent said he again offered Mr Gardiner some assistance or asked whether or not he would accept that assistance. Mr Gardiner's response was that he would not accept or seek assistance. The Superintendent said to Mr Gardiner something along the lines that he would not be certified fit for duty again unless he got some assistance or could show he was getting help in terms of his consumption of alcohol. The Superintendent did not regard this as being a welfare interview but was a matter of explaining to him the contents of Dr Kirby's report and to advise him of the outcome of the internal review panel. The Superintendent had attended a panel on 13 February 2008 and had recommended that the applicant be referred to the Commissioner for removal under s 181D of the Police Act. That recommendation had been accepted. 92 Superintendent Willing's attention was drawn to Dr Kirby's recommendation that a welfare interview be conducted with Mr Gardiner on the basis of the contents of the report and to assess his willingness to proceed with the various counselling and courses referred to in the report and to map a way forward. The Superintendent accepted that he did not conduct a welfare interview on that day or any other day and that was not his role. Sergeant Vardy was Mr Gardiner's welfare "person" but the Superintendent did not ask Sergeant Vardy to conduct a welfare interview specifically to address the recommendations contained in Dr Kirby's letter. The Superintendent noted that at the time he read the report to him, Mr Gardiner was in no mood to accept anything from the Superintendent and that he was quite specific in terms of who his welfare people were going to be and that did not include the Superintendent. The Superintendent did not make any note that he had not conducted a welfare interview and had not specifically asked Sergeant Vardy to conduct a welfare interview in the terms of Dr Kirby's report. The Superintendent understood that the Police Service alcohol drug policy at that time included not only welfare support for officers but also for other persons who may have been affected by his conduct, including his wife and children. Those were matters that could have been canvassed in a welfare interview and during such an interview, in accordance with the alcohol policy, it could have been explained to Mr Gardiner that he could be referred to an independent counsellor. 93 Mr Gardiner's counsel submitted that the contents of Dr Kirby's report were of great significance for the meeting of the panel that was to take place a week or so after that report was received, yet Superintendent Willing had not supplied a copy of that report to the panel members where he was recommending that Mr Gardiner be removed from the service. The best that Superintendent Willing could recall about informing the panel of the contents of Dr Kirby's report was that he probably gave them a summary of its contents. 94 It is to be recalled that Superintendent Willing had come to the Area Command in late 2007 and reports that he had made concerning Mr Gardiner were in fact the product of summaries and opinions provided to him by other officers. It is difficult to understand, therefore, how the Superintendent could have failed to see the significance of Dr Kirby's report. The Superintendent had been informed that most of the complaints against Mr Gardiner concerned conduct while he was off duty and intoxicated. Dr Kirby's report had confirmed that there was no clear evidence of psychiatric disorder but that Mr Gardiner's volatile personality features were exacerbated by his alcohol abuse and that it was alcohol related issues that had brought him to official attention. Any return to full duties depended upon him controlling his alcohol intake and therefore his aggression and anger. He needed counselling from a specialist alcohol and other drug counsellor, possibly as an in-patient. He could be rehabilitated back to restricted duties so long as he controlled his alcohol intake and abstinence may be necessary depending on the expert advice. The simple point was that he could not return to duties until he ceased or controlled his alcohol intake. Certainly, nothing of substance was done at the direction of Superintendent Willing to give effect to this recommendation. Sergeant Vardy, as welfare officer, was not directed to undertake a welfare interview and Mr Gardiner was not directed to attend drug counselling, nor were arrangement made to have those possibilities discussed with him in a welfare interview. 95 At the time Superintendent Willing attended the panel, it was clear from Dr Kirby's report that alcohol was bringing Mr Gardiner to attention and that he could not return to full duties until that problem was addressed in the way suggested in Dr Kirby's report. From the meeting of the panel until Mr Gardiner's removal it was open to senior officers and ultimately the Commissioner to decide whether they should treat Mr Gardiner's problem as a medical problem with a potential for rehabilitation or simply as a disciplinary problem. The Commissioner's confidence submissions do not contain a copy of Dr Samuel's or Dr Kirbys' reports and the clear inference is that, when the Commissioner came to call on Mr Gardiner by way of Notice and ultimately remove him from the Service, he did not have the benefit of these reports nor had there been any welfare interview with Mr Gardiner to explain to him the benefits of undertaking such counselling. There is force in the submissions for Mr Gardiner that it was totally unsatisfactory to merely accept Mr Gardiner's blunt rejection of assistance without looking for appropriate programmes and pressing him about such a course when it was obvious they were dealing with a person under considerable stress who was unable to see that he was the problem. Simply put, there was no fairness in the process of determining what was to be done with Mr Gardiner because of these identified oversights and omissions. 96 The failure to fully appreciate the significance of Dr Kirby's report was said to be compounded by the fact that Superintendent Willing (understandably in the circumstance of his recent appointment) relied on summaries made by others when framing the recommendations to the panel for Mr Gardiner's removal. As referred to in the procedural fairness submissions, there were a number of errors in that material depriving the Commissioner of a full and accurate picture concerning Mr Gardiner's work history although it was again conceded that some of the errors were minor.

97 The next issue addressed by Mr Gardiner's counsel concerned what was described as possibly the only contested factual issue in the proceedings and that was the allegation that Mr Gardiner had said to Inspector Huard that if the professional standards command police came to his house he was going to kill them. Mr Gardiner's evidence was that he was intent on protecting his children and if the professional standards police tried to interview them, he would assault them to stop that occurring. In written statements, Inspector Huard and Superintendent Starling said that Mr Gardiner said he was going to kill the officers. In cross-examination both officers agreed that they had made no contemporaneous note of such a serious allegation involving a threat to kill police. Their statements of evidence for these proceedings were made some two years after the event. Inspector Huard did have a duty book recalling a telephone call on 29 April 2007 from an intoxicated senior constable Gardiner "threatening assaults upon SCC" should they attend his house on 30 April 2007 regarding allegations into the child assault issue. On that basis it was submitted that the conflict in evidence should be resolved in favour of Mr Gardiner. 98 There is something artificial about Mr Gardiner, in an intoxicated state, saying he would "assault" police officers who came to interview his children. In oral evidence Mr Gardiner ultimately accepted that he could have used the term "kill" in the telephone call received by Constable Wilkinson in July 2007 (but he had no recollection of what he said) and it was conceivable that, on this occasion, he used the same language while intoxicated. His intoxication on both occasions makes his own recollections unreliable but the contemporaneous note made by Inspector Huard referring to assaults leads to some uncertainty. Ultimately, it is unnecessary to decide precisely what word was used because, on either version, Mr Gardiner, while under the influence of alcohol, was making wild threats to harm police. In that state police were entitled to be concerned with the possibility that just about anything could occur if, in his intoxicated state, he carried out any of these threats. The incident does not lose its significance because the precise word or words used cannot be established with any reliability. 99 An important matter alleged to be ignored by being unacknowledged in the Commissioner's reasons is Mr Gardiner's mental state at the relevant times. Mr Gardiner made specific reference to this matter at paragraphs 2 and 9 of his response. At paragraph 9 of his response to the Commissioner's Notice he alleged that there had been a denial of procedural fairness because the Commissioner had failed to take into account relevant matters, particularly "matters going to my psychological state at the time of the alleged incidents". Mr Gardiner's psychological state at the time of the incident was not, however, developed anywhere in the response to the Commissioner's Notice. In paragraph 67 he referred to receiving, on or about 21 September 2007, a comprehensive report when his hurt on duty application had been rejected. Ms Driver, consultant psychologist, did submit a 21-page assessment report of Mr Gardiner to the insurer, Allianz Australia, regarding Mr Gardiner's workers compensation claim lodged in 2007 for psychological injury. This report was attached to Mr Gardiner's response. In the report (dealt with in more detail elsewhere in this judgment), Ms Driver expressed the opinion that, at the time Mr Gardiner went off work in April 2007 to August 2007, his symptoms of distress were and remained of such adequate frequency and severity to warrant a clinical diagnosis of Adjustment Disorder with depressed mood. In dealing with contributing factors, Ms Driver stated that, on balance of the available evidence, work was a substantial contributing factor to Mr Gardiner's current distress. Ms Driver specifically mentioned that Mr Gardiner was arrested and placed in custody at his usual place of work in the presence of his colleagues as having caused Mr Gardiner's recent reported levels of distress and also that he had been placed on restrictive duties for an unknown period in relation to an allegation of assault which had since been unsubstantiated. These events were reasonably able to be identified as causing him some distress. The last factor was an exacerbation of the distress arising from his arrest. 100 One difficulty for Mr Gardiner's submission in relation to this matter is that, although it might be put that the Commissioner should have had regard to this medical opinion, it was one brought about by an application for compensation as a result of being hurt on duty. To the extent that Mr Gardiner wished to rely upon that finding by Ms Driver, it can hardly be said that it was given clear prominence in his response nor was it developed as a submission. The best that might be said is that, in all the gathering of information about Mr Gardiner for the purposes of the Commissioner's confidence procedure, this document should have been included and used to brief the Commissioner since the opinion of Ms Driver arose from the events that otherwise brought Mr Gardiner to Notice for removal from the Police Service. Further, once the report was annexed to Mr Gardiner's response, it should have been addressed in the Commissioner's reasons for removal. It is simply not known whether the diagnosis of Adjustment Disorder with depression was accepted, rejected or considered as any sort of explanation for Mr Gardiner's behaviour. It was submitted for Mr Gardiner that, as a matter of merit, the evidence before the Commissioner on review was a failure to take into consideration a genuine reason of mitigation or explanation and that was Mr Gardiner's medical condition. By failing to take into account his medical condition, Mr Gardiner was simply dealt with on a disciplinary basis without consideration at all being given to his medical condition. 101 In relation to Mr Gardiner's present state of health, recent reports from Dr Anderson, psychiatrist, stated that he was fit at the present time to perform operational policing duties. Understandably, the prognosis was guarded having regard to Mr Gardiner's history of alcohol abuse. A common theme throughout the medical report is that it was in times of emotional distress and while off-duty that Mr Gardiner resorted to excessive consumption of alcohol. Those circumstances included a relationship break up but clearly also his treatment at the hands of the police over the allegation of assault of his partner's child. It was readily conceded that he was a police officer who at times of significant personal events reacted in an adverse way by abusing alcohol. This, so the submission went, was not a case where Mr Gardiner was saying that he had a condition and that the Police Force had failed in their duty of care to him and had failed to provide him with the means to overcome his difficulties but rather the case came down to whether it was appropriate, reasonable and fair for the Commissioner to take a disciplinary approach rather than to take a welfare approach. Mr Gardiner accepted that assistance had been offered and some of it was taken up although in a "piecemeal fashion". Mr Gardiner had lost faith in the Police Service, thought he had been mocked and badly treated by the previous Police Medical Officer and was not prepared to participate in any further service they provided. Nevertheless, in his stressed state, Mr Gardiner was not acting rationally and on the medical evidence in the hands of the Police Service a firmer stance should have been taken and he should have been directed to attend those services that would have addressed his anger, stress and drinking problems. It had to be taken into account that, with his earlier troubles up to 2004, Mr Gardiner had successfully undertaken a personal management course in relation to this behaviour and drinking. During 2005 - 2006 and then into 2007 there was no record of him abusing alcohol until this incident (where he was wrongly accused of abusing his partner's child triggering the now well-documented reaction). It was Mr Gardiner's condition that gave rise to the conduct that was principally and centrally relied upon by the Commissioner to remove him from the Police Service. 102 As previously noted, there is some force in these submissions but they do tend to gloss over the fact that there were a number of opportunities for Mr Gardiner to receive assistance and apart from attending upon Dr Li as the Police Medical Officer, he largely refused the assistance. It may well be that, as submitted, he regarded his treatment by Dr Li as showing that there was no support for him within the Police Service but there is no satisfactory evidence of him seeking outside assistance or even requesting Sergeant Vardy, his peer support officer, to assist in obtaining such independent counselling and support. When Mr Gardiner received Dr Kirby's report in February 2008, although it set out in chapter and verse what should happen in relation to expert advice, when he was asked by Superintendent Willing if he wished to have any assistance, Mr Gardiner rejected any assistance but made no request for assistance independent of the Police Service. This response tends to suggest that he did not really believe that he had a problem but rather that the Police Service had a problem. It should also be noted that Mr Gardiner appeared to have much more confidence in Dr Kirby than Dr Li, yet still rejected the assistance outlined in Dr Kirby's report. 103 A further submission was that there was bias or an ulterior motive in the actions of Superintendent Starling when he was informed by the police psychologist, Ms Hanna, in September 2007 to the effect that Mr Gardiner was getting ready to return to the workplace. The Superintendent's immediate response was that he wanted Mr Gardiner suspended and although he "liked the bloke" he did not want him back. That approach frustrated Mr Gardiner's attempts to return to work and added to the stress and his resultant excessive alcohol consumption and poor conduct. The Commission was asked to reject the Superintendent's denial that he made those statements to Ms Hanna in light of the verbatim nature of her notes of the conversation. The Superintendent had seen those notes for the purpose of these proceedings and had not raised any difficulty with them before giving oral evidence. 104 Ms Hanna's notes may well constitute business records and do appear to represent a verbatim account of her discussion with Superintendent Starling in September 2007. It may well have been that Superintendent Starling had come to the end of his tolerance of Mr Gardiner's behaviour and was therefore unwilling to have him returned to full duties. Having regard to all of the medical evidence it is abundantly clear that until Mr Gardiner undertook the type of detailed counselling for his stress, anger and alcohol abuse as referred to by Dr Kirby and Dr Anderson, then he was not fit to resume duties and there was every prospect of his irrational behaviour continuing because of his personal situation and emotional stress. On review, the Commission accepts the accuracy of Ms Hanna's notes. The evidence does not allow a finding to be made that Superintendent Starling acted in a biased manner or acted under the influence of an ulterior motive. 105 Lastly, it was submitted that the removal of Mr Gardiner was harsh and unjust because of the financial difficulties directly caused by losing his position as a police officer. The evidence before the Commission was that Mr Gardiner had been forced to sell his car and living in the Moruya region affected his capacity to seek work beyond the difficult employment opportunities within that region. His previous employment skills related to his training as a fitter/machinist and although he had worked with Qantas, this type of work was unavailable in his local area. He had now separated from his wife and he was living in a converted garage looking after some animals on his Moruya property. He could not travel to Sydney to look for work and the longer he was unemployed deepened his inability to obtain other employment. Some eight months after his dismissal he had been served with a statutory default notice in relation to his mortgage and he had been served with a statement of claim in relation to a personal loan. He had sold his horse trailers and cars and was relying upon family and friends to pay his living expenses. Having regard to these matters Mr Gardiner's personal circumstances provided reasons why he should be reinstated. In relation to the public interest, outside of these incidents he had been commended for his service, he had been placed in very stressful circumstances in relation to the performance of his work yet had been commended for his responses. These were attributes that the public interest would demand be recognised and would support him, in the public interest, being reinstated to the Police Service. It was accepted that any reinstatement should be conditional upon him undertaking and completing appropriate levels of counselling and rehabilitation commensurate with the identified psychological condition that he suffered at the relevant times. THE COMMISSIONER'S CASE IN REPLY 106 On the review before the Commission, counsel for the Commissioner noted that there was little by way of factual contest concerning Mr Gardiner's conduct apart from the issue of whether he made threats to kill police officers. The substance of each incident was accepted by Mr Gardiner who also accepted that his conduct was inappropriate, improper, disgraceful and contrary to the code of ethics 107 Between 2007 and 2008 there were three particularised incidents indicating that Mr Gardiner, when under personal stress (and under the influence of alcohol while off-duty) would act irrationally, threatening self-harm and harm to fellow officers. These three incidents in that timeframe had to be seen against the background of similar behaviour in the period 2001 to 2004. In that earlier period Mr Gardiner also acted irrationally while under personal relationship strains and while under the influence of alcohol. That behaviour had been closely supervised under management plans and counselling. In relation to the latest incidents in the period 2007-2008, apart from attending the Police Medical Officer as directed, Mr Gardiner aggressively refused any assistance to help overcome his stress, anger and excessive consumption of alcohol. He did so knowing well that these services were available having been offered the services by a number of officers. Overall, his repeated misconduct established that he was unfit to remain a police officer. 108 As a para-military organisation, it was vital that officers of the Police Force adhered to police procedures and the Code of Ethics and Conduct and that the Commissioner had confidence that the chain of command would be followed. The Code of Ethics and Conduct required that police officers follow the lawful direction of more senior commissioned officers. It was only in his oral evidence in cross-examination that Mr Gardiner finally accepted that his threats to kill, assault and abuse officers was disgraceful and inappropriate behaviour. Not all of his behaviour occurred when he was intoxicated as demonstrated by his conversation on 17 November 2007 with Detective Sergeant Scott. 109 The applicant's misconduct was such that, when things went wrong in his personal life, he engaged in misconduct. Mr Gardiner was well aware that such behaviour would be regarded as misconduct. The applicant had a choice - he could either acknowledge the signs he had seen before, seek help and sort out his problems or refuse to accept some responsibility for his own actions and not accept the help offered to him. Mr Gardiner made that choice and rejected all assistance. It was submitted that the Commissioner was his employer and was not his "confidant or counsellor". Mr Gardiner had an obligation as part of the work/wage bargain to conduct himself in a manner both on and off-duty which was consistent with his obligations. 110 Mr Gardiner's distress concerning assault accusations relating to his partner's child while unfortunate as an event occurring in his life, did not explain his misconduct throughout 2007 and 2008. This was the same conduct that was evident between 2001 and 2004. Mr Gardiner did not regard the earlier incidents as misconduct but more as evidence of Inspector Volf's bias against him. This was a further example of Mr Gardiner failing to take responsibility for his actions but seeking to blame the Police Force for any adverse occurrence or difficulty faced in life. His unprofessional conduct, including abuse of alcohol, was anti-social behaviour and could not be said to be triggered by any unfairness on the part of the Police Force or the Commissioner. 111 In his evidence, Mr Gardiner's suggestion that things would have been better if he had been allowed to return to duties and continued duties in June 2007 was without foundation. He had been directed, appropriately, to be medically assessed and there were proper grounds for the Commissioner to have misgivings about immediately returning him to duties. This was at the time when he had made threats about his own life and that of other officers while intoxicated, had threatened investigators from the Professional Standards Command, was on continuous sick leave between 24 April 2007 until returning in early 2007 and had failed to have contact with any employee assistance programme counsellor including his own doctor in relation to recommendations made by the Police Medical Officer. At this time there were genuine concerns about his welfare arising from his propensity to disclose personal problems and issues in the workplace. In those circumstances the Police Service acted appropriately in accepting the advice of the Police Medical Officer that, in May 2007, Mr Gardiner was not fit for duties at that time. 112 His conduct on 29 April 2007 while exhibiting the extent of his dysfunction at the time did not allow him to explain away his misconduct on 10 and 11 July 2007 and attribute it to the investigation of the alleged assault and being deemed unfit for duties. The assault allegations were serious and it was necessary and appropriate for the Professional Standards Command to conduct the investigation and to question Mr Gardiner at the Batemans Bay station. It was appropriate that he be referred to the custody manager, placed in custody and in any event, Mr Gardiner was treated with respect and courtesy and received beneficial treatment by being placed in a separate room and not in the public area or the charge room. When he declined to answer questions he was allowed to leave. There was nothing irregular about his treatment at this time. Indeed, Mr Gardiner attended a police function that night with his partner and his view was that he was supported by his fellow officers. Those matters ran contrary to Mr Gardiner's suggestion as to the distressing nature of his "arrest". 113 Mr Gardiner placed nothing before the Commissioner to demonstrate his fitness apart from a medical certificate dated 4 July 2007 from Dr Muskat but the report was qualified by the doctor, stating that he was not Mr Gardiner's regular treating doctor. The certificate did not set out any reason for his fitness nor did it demonstrate knowledge of the surrounding issues involving Mr Gardiner. While it was open for Mr Gardiner to dispute Dr Li's findings on fitness in May/June 2007, he did not put forward his own reports and provided no further reports from psychologists and other doctors in 2007. Ms Driver's report was obtained by the Commissioner's insurer for the purposes of assessing Mr Gardiner's application for hurt-on-duty treatment and was not directed to assessing his ongoing fitness. It was not provided to his medical officers or to any other officer dealing with Mr Gardiner's suspension. It was to be noted that Dr Kirby's report dated 4 February 2008 referring to Dr Samuels' report confirmed Mr Gardiner's unfitness for duty. 114 The Commissioner had complied with his obligations under s 181D of the Act. Mr Gardiner had been provided with Notice setting out the grounds on which the Commissioner did not have confidence and he was given 21 days to reply. The Commissioner took into account Mr Gardiner's submissions and referred to his responses in expressing the Commissioner's final determination. The Commissioner set out his reasons in the order. Mr Gardiner had put nothing forward as matters that should have been considered or which should now be considered by the Commission such as would warrant varying the Commissioner's decision and order. In relation to the submission that the Commissioner should have been aware that Mr Gardiner had attended sessions with a psychologist for a month in 2007 and that Mr Gardiner was of the view that he was suffering from a psychological condition, they were matters which Mr Gardiner could have raised in his response. Mr Gardiner chose to rely on Ms Driver's report and referred to the fact that he had made an appointment with Mr Erskine who urged Mr Gardiner to put forward to the Commissioner all the material that supported his submissions and application to remain in the Police Service. This was not a case where the Police knew certain facts or outcomes which may have materially altered the Commissioner's decision but had declined to provide them to Mr Gardiner. Matters concerning Mr Gardiner's history were capable of being placed before the Commissioner by Mr Gardiner before the final decision was made. 115 Mr Gardiner's offer now to undertake counselling had no relevance for the alleged unfairness of the Commissioner's decision to remove him and only had relevance to the issue of reinstatement. It could not avail Mr Gardiner now to say that he should have been directed to undertake counselling when he was repeatedly told by Superintendent Starling, Inspector Huard, Superintendent Welling and Sergeant Vardy that he should undertake such counselling but he refused to do so with aggressive responses. The Commissioner pointed to six separate occasions where such offers were made and firmly rejected by Mr Gardiner. The need for a direction merely confirmed Mr Gardiner's failure to accept responsibility for his own actions. 116 In relation to the relief sought it was submitted that it was not appropriate in the circumstances to re-instate Mr Gardiner to his former position. Such relief was not warranted and was inappropriate. Mr Gardiner's reliability and the confidence which must necessarily be bestowed upon him in the course of his duties were such that his misconduct had destroyed the Commissioner's relationship of trust and confidence. In this case there was a practical uselessness in trying to re-establish the employer/employee relationship. The relationship between the parties had irretrievably broken down because of the repeated conduct of Mr Gardiner: his repeated threats of self-harm that were distressing to other officers, his threats against other offices to physically harm them, repeated abusive comments about his supervisors and senior officers and his continued unprofessional behaviour throughout 2007 and 2008 in deliberating flouting the Police Code of Conduct. Superintendent Starling had given evidence that a number of officers had concerns about working in a team with Mr Gardiner and one officer, Constable Wilkinson, had left the Service because of her distress when she received the call from Mr Gardiner in July 2007. 117 All of this material supported a conclusion that there would be an extremely negative impact on the other officers in the Command if Mr Gardiner was reinstated and his return to the Police Force would cause disharmony. There could be no confidence that the applicant would follow senior officers' directions, including Inspector Volf and Inspector Huard. They were the duty officers at Batemans Bay station for most of the time. The integrity of the Police Force was also undermined by Mr Gardiner's conduct, not only between 2007 and 2008 but also in the period 2001 to 2004. This repeated inappropriate behaviour in public places where the applicant would be identified as a police officer raised questions of the integrity of the Police Force. Public interest could not be served where there was a real issue as to Mr Gardiner's ability in the future to undertake the powers and responsibilities of his former office. It was also a concern that Mr Gardiner's evidence was that he medicated with alcohol when life presented challenges to him but there was no evidence to substantiate that this pattern of behaviour would not be repeated. Mr Gardiner lacked insight into his own behaviour and failed to take personal responsibility for his actions. 118 Dr Samuels' report was the only psychiatrist's report that dealt with Mr Gardiner's fitness to perform his duties while the most recent reports of Dr Anderson dealt with his workers compensation claim and did not address the same issues dealt with by Dr Samuels. It was pointed out that Dr Samuels found that Mr Gardiner was not suffering any underlying psychiatric disorder, that he was abusing alcohol, that his current pattern of drinking was harmful and would potentially impact upon his return to full operational duties, that if he continued drinking at the current level there were reservations about giving him unfettered access to weapons, and, he had a volatile component to his personality. 119 It was also relevant to reinstatement and the issue of compensation and benefits in the intervening period that Mr Gardiner had not made genuine attempts to obtain general counselling and specifically alcohol counselling. There were numerous avenues available to him and he could have sought the services of bulk billing psychologists and psychiatrists either locally or on the occasions when he came to Sydney. Mr Gardiner could have sought alcohol counselling from Moruya and Batemans Bay hospitals or further afield. Mr Gardiner relied upon his own self-regulated alcohol consumption regime but that again demonstrated his lack of insight into his propensity for alcohol abuse and re-affirmed the appropriateness of the decision to terminate his employment and his unsuitability for reinstatement. THE LEGISLATIVE SCHEME 120 In the introduction to this decision the general scheme of Pt 9 Div 1B of the Police Act 1990 was set out being the provisions dealing with the summary removal of police officers in whom the Commissioner does not have confidence. Much consideration has been given to these provisions in recent years but among those many decisions, the decision of the Full Bench in Little v The Commissioner of Police (No 2) (2002) 112 IR 212 is often referred to and quoted with approval. In carrying out the present review the task of the Commission will be guided by the discussion and judgment in Little (No 2), especially in relation to the following matters: · s 181F requires the Commission to consider sequentially the reasons for the Commissioner's decision to remove an applicant from the Police Service and the cases respectively for the applicant and the Commissioner as to whether the removal was harsh, unjust or unreasonable. · The requirement of s 181F(3) requiring the Commission, amongst other matters to have regard to the interests of the applicant and the public interest (taken to include the interests of maintaining the integrity of the Police Force and the fact that the Commissioner has made an order pursuant to s 181(D)(1)) does not diminish the obligation on the Commission to determine whether the removal of a police officer was harsh, unreasonable or unjust having regard to the principles ordinarily applied in unfair dismissal matters; · The finding that the decision of the Commissioner was "justified" does not conclude the review and even if such a finding was made, the Commission is still obliged to consider the statutory tripartite test, namely, whether the removal was in all the circumstances, harsh, unreasonable or unjust. Even if there are grounds for terminating the employment it is still open to a Tribunal to examine the severity or otherwise of the step of dismissal. The Commission will intervene to order reinstatement where there are mitigating circumstances or past good conduct demonstrating that termination is too harsh a consequence. · In considering the interests of the applicant pursuant to s 181F(3)(a), the Commission is required to consider the consequences for the applicant of his or her dismissal. · While s 181F(1)(a) requires the Commission to consider the reasons given by the Commissioner, the Commission may deal with the substance and basis for the allegations brought against an officer including whether there is a basis in fact for the allegations levelled against the officer. The Commission will also consider other matters and bring into account such matters as to whether dismissal was harsh, unjust or unreasonable, which go to the merits of the application including a consideration of the procedure adopted by the Commissioner. These matters may transcend the particular reasons stated by the Commissioner for his loss of confidence. · The legislature had conferred considerable powers on the Police Commissioner under Pt 9 of the Police Service Act but also laid down various procedural stipulations associated with the removal of a police officer requiring at least a careful and punctilious regard to correct procedure. Those matters are of significant importance to the review of a decision made under s 181D of the Act in determining whether a decision to remove an officer was harsh, unreasonable or unjust The Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. · The Commission should assess whether the Commissioner had considered all the information and material available both in favour and against the officer as well as the processes adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was uninformed in the sense it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. In certain cases the failure to deal with the matter in a procedurally fair way may, of itself, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. · While the Commission is required to consider the entire circumstances of each case, it will not be every failure to adhere to the procedures specified by the Act that will require the Commission's intervention.

CONSIDERATION 121 Although there are two distinct periods of adverse reports and conduct relied upon by the Commissioner, understandably, there was considerable focus upon Mr Gardiner's behaviour in 2007/2008. It was clear from Mr Gardiner's response to the Commissioner's Notice and in his affidavit and oral evidence in these proceedings that he regarded the events of April 2007 as being at the core of his present difficulties with the Police Force. There is a deal of medical evidence supporting Mr Gardiner's view that the deterioration in his out-of-work hours conduct was directly linked to his emotional stress by being accused of physically abusing his partner's son, the manner in which the allegation was sprung upon him, how it was conducted and especially in relation to requesting him to attend the Batemans Bay police station where the evidence supports he was arrested before being allowed to leave after more than two hours of being held in custody. There is substance in Mr Gardiner's argument that the investigating police officers in this matter had no authority to arrest him merely for the purposes of interviewing him and he undoubtedly keenly felt being treated in this way in front of other officers with whom he worked. There has been much evidence and many submissions about whether Mr Gardiner was technically "arrested" and whether the officers acted in accordance with establish protocol but it is sufficient to say that the evidence demonstrates that Mr Gardiner was arrested but importantly in understanding his reaction, the surrounding circumstances were such that thereafter he carried a deep resentment for the manner of his treatment by the Police Force, including being placed on restricted duties and having to wait a considerable period before being informed that no action would be taken against him whilst during that time he was the subject of an apprehended violence order ("AVO"). Some aspects of his treatment clearly appear to be in accordance with protocol such as the seeking of a telephone AVO, the removal of his firearm and placing him on restricted duties for a period but, in reviewing Mr Gardiner's conduct, it was important for the Commissioner to understand that he was so incensed at this treatment and what he perceived to be the unfairness of it that he emotionally crumbled and again resorted to heavy drinking. 122 Mr Gardiner emphasised that the most serious allegations against him related to his conduct while under the influence of alcohol while he was off-duty and that those actions did not result in criminal convictions. During the review proceedings, counsel for the Commissioner emphasised the fact that the July 2007 incident, where Mr Gardiner had threatened suicide and had then threatened to kill the police officers who had attended his home, was a very serious matter and was one that demonstrated why the Commissioner and other police officers could have no confidence that Mr Gardiner could continue as a police officer. At times Mr Gardiner had denied that he had threatened to kill police officers but he accepted that he had threatened to assault the officers investigating the child abuse allegation in the context of them approaching or wishing to interview his own children, a threat said to be made in protection of them and against an unwarranted extension of the investigation to include his children. In oral evidence on the review Mr Gardiner could not be sure what he said to the police officers on this occasion and although he did not recall threatening to kill them, he accepted that could have happened. Significantly, when Mr Gardiner was referred in 2007 for assessment by Ms Jennifer Driver, a consultant psychologist, she recorded a history given by Mr Gardiner that in relation to the 10 July incident he had been told that, while speaking to police officers, he had threatened to shoot them if they attended his house. That history confirms that early on Mr Gardiner had been informed of such statements although he may not have recalled actually making them. Mr Gardiner's conduct on other occasions also exhibited violent language and disturbing threats including threats of self-harm. Mr Gardiner's incapacity to deal with emotional stress, especially arising from his personal circumstances, led one of his senior officers, Superintendent Starling, somewhat unsympathetically, to describe him as being "attention seeking". That description may have resulted as much from Inspector Starling's frustration at Mr Gardiner's continued misbehaviour out of working hours as it was due to Mr Gardiner's refusal to seek assistance for his obvious problems, including excessive consumption of alcohol. 123 In the course of evidence for the Commissioner in the review proceedings there was a good deal of evidence about Mr Gardiner's refusal of counselling, especially in relation to his anger and excessive consumption of alcohol. Considering the totality of the evidence it is clear that Mr Gardiner was not enthusiastic or well motivated in seeking counselling during 2007 and 2008 prior to his removal from the Police Force and that no such counselling or assistance was undertaken after his removal. There were many excuses. Mr Gardiner did not want to participate in any programme that was connected with the Police Force because he regarded the interests of the Police Force as being arraigned against his personal interests. He says he was not aware of what he could do and ultimately he became so financially destitute that he had no means of transport and there was almost nothing in his local community available that addressed his alcohol problem. He referred to his incapacity to leave his property for any period of time because of obligations to feed his animals. He said he made enquiries at Moruya hospital but was informed that their services were "mostly" directed to drug addiction. That information, even if totally accurate, did not inform him that there were no programmes for his difficulties including his anger and alcohol abuse. It was Inspector Willing's evidence that, by the time he arrived in the local area command in late 2007, he was aware of the availability of counselling and alcohol abuse programmes through the Batemans Bay and Moruya hospitals and community organisations. 124 In the course of final addresses Mr Gardiner's counsel indicated that Mr Gardiner was willing to undertake any counselling or undertake any activity required of him in order to return to the Police Force. The question was raised as to what proposed courses or counselling were to be undertaken. None were immediately identified but after the lunch adjournment, hurried telephone calls had been made and indicated that there were facilities and courses available out of the Moruya hospital in relation to excessive alcohol consumption. Mr Gardiner's counsel expressed surprise at that information but it is difficult to avoid the conclusion that at no stage, had Mr Gardiner diligently applied himself to seeking out these services even though he knew he had alcohol and other problems. 125 Although he had stated to senior officers before his removal that he understood that he had an alcohol problem, the reasons he gave for not taking up assistance, either within or outside the Police Service, do not withstand scrutiny. Mr Gardiner had to reach the point of accepting that his problem was so severe that it was affecting his working life and the lives of those around him, including his family and colleagues in the Police Force. He seems to have continued with the view that his entire problem, including his excessive alcohol consumption, was the fault of the Police Force and the Police Force had an obligation to rectify the problem it had created. The impression given by his evidence was that the failure of the Police Force to look after him was further evidence of his mistreatment in his employment and so fed his depression and fragile emotional state. His sudden interest, at the eleventh hour of the proceedings, in identifying suitable courses and counselling that he could attend to address his anger, stress and excessive alcohol consumption did not demonstrate him to be committed to this course, apart from the purposes of obtaining a favourable order from the Commission. The harsh reality for Mr Gardiner is that employment in the Police Force is unlikely to result in him being involved in a nurturing environment but rather he would be expected to take the initiative to address his personal problems even though they impinged on his performance as a police officer. The evidence on this review suggests that as his behaviour continued without improvement, his working colleagues, including senior officers, lost patience with him. 126 While it may be concluded that Mr Gardiner was lacking in motivation to bring about an alteration in his conduct by seeking out and involving himself in appropriate counselling courses and like services, it is difficult to understand why particular services and their availability were not identified to Mr Gardiner and why, considering his continued misbehaviour, no direction was given to him to undertake such activities because of the effect of his behaviour on fellow offices and the resources of the Police Force in his area. Senior officers gave evidence that, in appropriate cases, they could direct an officer to undertake medical and psychological examination, but they did not believe they had power to direct a police officer to undertake counselling in relation to stress management, anger management and alcohol abuse. Having regard to Mr Gardiner's conduct and its impact upon his duties as a police officer and the operation of fellow police officers within his area command, it was clearly a reasonable direction to give him to attend identified counselling services. 127 The attitude of some of the officers appeared to be that Mr Gardiner was aware of what was available and no particular course had to be identified or recommended to him and it was simply up to him to take the necessary steps to address his stress, anger and alcohol abuse. That approach did not have sufficient regard to his history and how personal and emotional stresses resulted in the excessive consumption of alcohol and the resultant erratic behaviour as documented in the Commissioner's case. That approach is all the more difficult to understand against the experience of the Commission in dealing with applications for review under the Commissioner's provisions that demonstrate the existence of a widespread culture of alcohol abuse and resultant misconduct within the Police Service. It is immediately accepted that the duties of police officers bring them into confronting and stressful situations and involve them in experiences at a frequency unlikely to be experienced by ordinary members of the community. As with other professions that are subject to high levels of stress, the abuse of alcohol is well documented. Recognising those factors, it is difficult to escape the conclusion that, if more direct action had been taken in relation to Mr Gardiner's stress, anger and alcohol abuse, his career in the Police Service might have been saved. If those steps had proved ineffective then at least the Commissioner could have been satisfied that a proper opportunity had been given to Mr Gardiner to overcome his personal problems and resume his duties for the benefit of himself, the Police Service and the community. In the present proceedings the Commission has little or no evidence as to the way in which identified alcohol abuse is currently addressed within the Police Service. It may be that Mr Gardiner's case is not an example of the usual approach of the Police Service, but the number of cases that come before the Commission for review involving alcohol abuse suggests that much needs to be done in addressing this culture within the Police Force.

The Commissioner's case considered 128 In the course of his response to the Commissioner and in his evidence on review in this Commission, Mr Gardiner has effectively accepted all of the conduct alleged against him, including the fact that he could have threatened police during his alcohol fuelled outbursts. While he states in his evidence that he did not mean those threats nor did he mean the things that he said about senior officers, he has accepted that his conduct during the period 2007 to 2008 was inappropriate and his threats against police officers was improper. All of these facts alleged by the Commissioner are accepted. At the very least it is accepted that conduct is in breach of the Police Code of Conduct and Ethics. Senior officers were entitled to refer him to the Police Medical Officer because of the serious nature of his conduct and its effect on police officers in Batemans Bay and Moruya. 129 On the review, there was as tendency for the Commissioner's submissions to roll the earlier 2001 to 2004 conduct into the 2007 to 2008 conduct as representing the current allegations against Mr Gardiner. The Commission cannot accept those submissions as accurately reflecting the manner in which the case was framed against Mr Gardiner in the s 181D Notice and in the subsequent determination for removal. Clearly, the focus of the allegations was on the 2007 and 2008 incidents with the reference to the 2001 to 2004 incidents being by way of background and highlighting the fact that this was a repetition of behaviour that had previously been addressed in a variety of ways, including management plans and counselling yet Mr Gardiner's conduct was re-occurring in a significant and unacceptable way. 130 In his Notice (and ultimate order of removal) the Commissioner indicated that he was considering Mr Gardiner's suitability to continue as a police officer by taking into account his "competence and conduct". Importantly, issues of integrity were not raised (see the discussion as to the significance of integrity as a ground of removal in the full bench decision in Toschak v the Commissioner of Police [2009] NSWIRComm 31). Further, the competence issue was briefly mentioned in the s 181D Notice and was described in general terms, namely, that Mr Gardiner required a high level of supervision. It was admitted that his work met minimum requirements, there was complaint about a late submission of a Coronial brief and again reference to conduct management plans and performance improvement plans in the context of his failure to successfully address and control his behaviour over a prolonged period, despite being provided with significance assistance and counselling. The Commissioner accepted that the competence issue alone would not warrant removal but rather supported a conclusion to remove Mr Gardiner from the Police Force "as an appropriate sanction" for his alleged misconduct. It is difficult to treat these competence issues as amounting to misconduct warranting removal from the Police Force. There was evidence that Inspector Starling had described Mr Gardiner as a good worker and a person he liked and could get on with while other senior officers had recommended him for transfer to highway patrol commenting favourably on his application and knowledge of relevant traffic procedures. Inspector Huard said that Mr Gardiner had not come to notice in relation to work performance in the 12 months he had contact with him. Mr Gardiner has also produced a number of citations and commendations reflecting his competence and application although he frankly accepted that he was not the best police officer in the area but that he tried hard and worked diligently. Having regard to the main focus and the Commissioner's Notice and reasons for removal and the importance of those matters, these alleged issues of competence only serve to detract from the Commissioner's case and on further reflection may have been properly omitted as representing little more than an attempt to put some icing on the cake of otherwise serious misconduct. 131 The Commissioner, in submissions on review, made much of Mr Gardiner's refusal to accept assistance in relation to the 2007 - 2008 conduct and was entitled to do so. In submissions, the point was repeatedly made that Mr Gardiner was aware of counselling and services available to him as he had availed himself of those services in the 2001 to 2004 period but had aggressively rejected any assistance offered by numerous officers in relation to his conduct in 2007 - 2008. There is other evidence, however, that places that forceful submission in a slightly different context. It is clear from the evidence on review that Superintendent Starling was anxious to avoid Mr Gardiner returning to work fearing what would happen if he hurt a work mate in late September 2007 having earlier told Ms Hanna that he was trying to have Mr Gardiner suspended. However, in May 2007, Ms Hanna had recommended that Mr Gardiner return to the workplace noting that he was receiving ongoing support from his workplace. At the end of June 2007 Ms Hanna reported that Mr Gardiner appeared to be coping adequately despite ongoing stressors and that he was showing no signs of significant psychological problems that would hinder him from returning to full duties. Nevertheless, close supervision at the workplace would appear feasible. However, he was not returned to duty and then the July 2007 incident took place raising Superintendent Starling's concerns about relationships with fellow officers. 132 In a similar vein, Superintendent Willing had Dr Kirby's report in his hands which analysed Dr Samuels' report whereby a comprehensive programme was recommended to address Mr Gardiner's behaviour. The Superintendent had that report by 6 February 2007 and within a week the panel met making a recommendation for the removal of Mr Gardiner although at that stage it was not known whether Mr Gardiner would accept the recommendations set out in Dr Kirby's report. It was not until almost a week later that Superintendent Willing met with Mr Gardiner and read Dr Kirby's report and recommendations to him. Mr Gardiner at that stage rejected any further assistance although he had been aware for some time that his continued position in the Police Force was under scrutiny. The panel recommending the removal of Mr Gardiner did not have Dr Kirby's report before them although Superintendent Willing said that he gave the panel a summary of its contents. It is not known to what extent the panel was aware of Dr Kirby's recommendations and whether the removal recommendation would have been held back, depending upon Mr Gardiner's acceptance of Dr Kirby's recommended counselling and programme. 133 In his oral evidence, Superintendent Willing was not moved by Dr Kirby's report because, in his view, Mr Gardiner had already had enough chances. Clearly, Dr Kirby was talking about the prospects of rehabilitation. At that stage, there was no medical evidence that rehabilitation was pointless and the only issue could be whether or not Mr Gardiner would co-operate with the regime outlined. Both Superintendent Starling and Superintendent Willing were of the view that it was inappropriate to give a direction to participate in such a regime and no such direction was given. There is no evidence that Sergeant Vardy, as peer support officer, was provided with Dr Kirby's report or directed to conduct a welfare interview with Mr Gardiner to discuss the regime of recommended counselling. Mr Gardiner rejected the assistance set out in Dr Kirby's report. Mr Gardiner was left in the position where he was acting irrationally and causing great difficulty for the local police officers with his off-duty antics and excessive consumption of alcohol in circumstances where there appeared to be no end to his irrational conduct. If not for Mr Gardiner's determination not to co-operate and undertake the regime recommended by Dr Kirby, there may have been a real issue of unfairness if he had taken up those courses and the suggested regime but yet had been removed from the Police Service. Because of his own actions in refusing assistance that position simply did not arise. 134 There is some validity in the criticism made by Mr Gardiner's counsel that, in the statement of reasons, the Commissioner's decision in August 2008 largely reproduced the exact paragraphs contained within the s 181D Notice. There are references to Mr Gardiner's response but they amount to a handful of paragraphs in an eight-page document. Nevertheless, those paragraphs indicate that he gave consideration to most of Mr Gardiner's response and overall dealt with the thrust of his submissions. Those brief responses by the Commissioner tend to indicate that he did not think there was any valid reason, including a medical condition, that may have resulted in the behaviour that brought Mr Gardiner to attention. The Commissioner's brief references to the response therefore do not provide any great insight as to the reasons why Mr Gardiner's reliance on a psychological condition in the context of personal stress was rejected or thought not worthy of closer consideration. 135 Despite these aspects of the Commissioner's reasons for decision, the Commissioner was left in the position of having to deal with Mr Gardiner's irrational and threatening behaviour and its effects on the local police force, behaviour that was a repetition of earlier unsatisfactory behaviour caused by excessive consumption of alcohol in circumstances where the officer declined further assistance. In that context the Commissioner was entitled to form the view that Mr Gardiner could no longer be assisted, that his conduct was intolerable and having an adverse effect on the image and operation of the local Police Force. In those circumstances there were more than adequate grounds to justify Mr Gardiner's removal. Notwithstanding the shortcomings already noted regarding the Notice and reasons for removal, the Commissioner could not simply stand by and allow the local police force to endure Mr Gardiner's ongoing irrational conduct with no end in sight and no means to address it by way of rehabilitation. A consideration of the case pursuant to s 181F 136 In conducting a review, the provisions of s 181F(1) require the Commission to firstly consider the Commissioner's reasons for the decision to remove an applicant from the Police Force and then to consider the case presented by the applicant why the removal is harsh, unreasonable or unjust and lastly to consider the case presented by the Commissioner in answer to the applicant's case. As noted earlier in this judgment, by sub-section 2 the applicant at all times has the burden of establishing that the removal was harsh, unreasonable or unjust. Further, by sub-section 3, without limiting the matters which the Commission is otherwise required or permitted to have regard to in making its decision, the Commission must have regard to the interests of the applicant and the public interest which is taken to include the interests of maintaining the integrity of the New South Wales Police Force and the fact that the Commissioner made the order pursuant to s 181D(1). 137 Against the discussion earlier recorded, in considering the Commissioner's reasons for the decision to remove Mr Gardiner, the Commission on review is satisfied that the procedural requirements of the Act have been adhered to and in particular the requirements under s 181D(3) and (4). For reasons already identified there were grounds arising from Mr Gardiner's conduct that justified his removal from the Police Service. 138 The case presented by the applicant, Mr Gardiner, has also been considered. That case included his response to the Commissioner's Notice, the affidavit evidence called on the review and Mr Gardiner's oral evidence. For reasons already given, the additional issues of procedural fairness alleged on behalf of Mr Gardiner have not been established or alternatively, either individually or together do not amount to such errors or omissions as would warrant a setting aside of the decision to remove Mr Gardiner from the Police Force. 139 The crux of Mr Gardiner's case is that personal and emotional stress was the cause of his irrational and objectionable behaviour during 2007 and 2008 and those stresses led him to consume alcohol to excess. He had professional and medical evidence to support the contention that the stresses in his life arose in his mind as a result of being accused of child assault and what he perceived to be pre-judgement and inappropriate treatment in the investigation of that allegation. The evidence shows that he continued to return to this matter and ruminate over it and appeared not to be able to put it out of his mind or move on. The medical evidence tends to show that, the combination of the allegations and Mr Gardiner's treatment when he was arrested, held in custody, paraded before fellow officers and being the subject of a lengthy investigation before being informed that no action was to be taken against him, all played a role in his emotional state and his reaction to that state. Mr Gardiner clearly blames the Police Service for his condition and the medical evidence links those events to his state of health and his ultimate extraordinary conduct. While the evidence does show that he was arrested (an issue at times hotly contested by some witnesses but accepted by others), his reaction to these matters was extreme. Dr Kirby's report looked at the means of rehabilitating Mr Gardener and returning him to full duties. The appropriate course for Mr Gardiner at that point was to accept the recommendations and the suggested regime of counselling and treatment and to attempt to overcome the stresses arising in his personal life which he regarded as considerable. Mr Gardiner did not embrace that opportunity or earlier opportunities and, having regard to the totality of his history, ultimately the Commission can find no unfairness such as would justify reinstatement in the failure of the senior officers to direct him to undertake the rehabilitation regime and to see if he could be rehabilitated. 140 Mr Gardiner therefore comes before the Commission on this review application as a person who has rejected professional assistance and has undertaken no formal course or counselling to address his stress, anger and excessive alcohol consumption. He says by dint of his own actions and self-control that he has substantially reduced his alcohol consumption and no longer uses alcohol as medication. In his reply to the Commissioner he stated that he had stopped drinking alcohol. In the evidence filed for purposes of the review and in his oral evidence he said he had commenced drinking again although in amounts he considered to be moderate. He had given consideration to abstinence but obviously felt that was unnecessary. This combination of facts places an unsurmountable barrier in the path of Mr Gardiner succeeding in his application to return to the Police Force. Having not availed himself of any of the professional assistance within and outside the Police Service that was clearly available to him, he now seeks reinstatement in circumstances where he continues to consume alcohol and where it is completely unknown what his actions and reactions are likely to be should he again be placed under stress in personal and emotional circumstances, especially relating to relationships. On the evidence before the Commission on review, there is no material that is capable of assuring the Commission that Mr Gardiner's emotional state might not again lead to further acts of extraordinary behaviour and irrational conduct affecting his fellow officers in the Police Force. This is not a case where he is being denied a second chance because he had already been given several chances regarding the incidents between 2001 and 2004. If Mr Gardiner had taken up Dr Kirby's proposed regime he would, in truth, have taken up a further chance offered to him to overcome his difficulties. On the material before the Commission there is no reason why Mr Gardiner should be given a further chance, involving as it must, his reinstatement to the Police Force in an uncertain state of health. Any reinstatement would, of necessity, have to encompass Dr Kirby's proposed regime which he declined to take up. It would of necessity require him to perform duties elsewhere and without knowing how long he would need to be under treatment and counselling before he was able to return to full duty. All of these factors combine to point to the inevitable result that his application for reinstatement must fail. 141 It is to be remembered that Dr Anderson's medical reports, so heavily relied upon by Mr Gardiner, were guarded and qualified as to his condition. Dr Anderson said that he did not have a psychiatric symptom "at this stage" and was not abusing alcohol at "this stage". While he apparently suffers no condition there was "some volatility" about Mr Gardiner and he had used alcohol in an attempt to handle feelings with which he had difficulty coping. Dr Anderson noted that somebody with a past history of alcohol abuse meant that the prognosis was "sometimes guarded" but in Mr Gardiner's case, that prognosis would be improved by further psychological counselling, some counselling in the area of anger management and in the area of relapse prevention. It was noted that at present, while he was apparently coping under some stressful circumstances (legal proceedings and financial difficulty), he was "not contending with relationship difficulty" and therefore his prospects of handling future relationship difficulties would be improved by "further treatment". 142 In light of Dr Anderson's report, although only recently obtained, Mr Gardiner nevertheless had not taken any step to implement those recommendations. There was a simple and general undertaking given to the Commission that he would undertake any appropriate course and do whatever was required of him in order that he be reinstated but he had taken no steps to pursue the counselling and treatment identified for him by Dr Anderson. When these omissions and deficiencies were raised with Mr Gardiner's counsel during submissions, there were some last minute investigations conducted during the lunch adjournment in an attempt to identify available courses and counselling in Moruya for Mr Gardiner. The fact that Mr Gardiner had not already taken these steps does suggest that he still does not believe he has a problem and all his problems have been caused by the Police Force. Whether that clear impression left with the Commission is entirely accurate or not, that impression alone is not determinative of the application for review or the rejection of Mr Gardiner's case. 143 In relation to the requirement to have regard to the interests of the applicant and the public interest as referred to in s 181F(3), it may be immediately accepted that, after more than 8 years' service as a police officer, Mr Gardiner has not only lost his job but currently is in dire financial straits. His qualifications do not appear to be in great demand in the Moruya area where he lives. The Commissioner questioned Mr Gardiner's commitment to looking for suitable employment but it has to be recognised that he does not have transport and that restricts his ability to seek and obtain employment. However, his suggestion that the need to look after animals, including his dog, restricts his ability to seek work and assistance does appear to lack a certain degree of commitment to the task. In oral evidence, Mr Gardiner admitted to not looking closely for work during 2009 although he had perused the papers and the internet. Accepting that Mr Gardiner has suffered a large financial loss as a result of losing his employment, even though stressful, that result arises from events primarily within his control. More important, given that he was suffering from personal and emotional stress, is his failure to take up the many offers of assistance made available to him. In these circumstances Mr Gardiner's admittedly difficult financial situation does not provide an adequate reason for his reinstatement to the Police Force. 144 In relation to the public interest, including the interests of maintaining the integrity of the New South Wales Police Force and the fact that the Commissioner has made an order pursuant to s 181D(1), it is useful to repeat the statement of the Full Bench in Commissioner of Police v Raymond Sewell [2008] NSWIRComm 147 at [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.

This comment of the Full Bench does not detracted from the statement of the Full Bench in Little (No 2) that the reasons for loss of confidence will plainly be a matter of particular significance on a review of the decision in the Commission. 145 In the Commissioner of Police v Dobbie (2006) 157 IR 44, the Full Bench of the Commission stated at [67]: Section 181F(1)(3) does not dictate what weight or influence each of the particular matters is to have in the decision to be made. 146 In the present case the Commission has already held that the Commissioner was justified in taking the action of removing Mr Gardiner from the Police Force and in that sense significant weight is to be given to the fact that the Commissioner made the order under s 181D(1). Perhaps more pertinent in the present case is the fact that it cannot be in the public interest that Mr Gardiner return to the Police Force in circumstances where it is completely unknown what his reactions will be if he faces personal emotional stress and commences drinking alcohol to excess as he has done over significant periods in the past. It can be accepted that there is a public interest in retaining in the Police Force those who have been trained for this difficult public task, especially where they have given long service. The significance of those matters is seriously eroded when reinstatement leaves open a possibility that members of the Police Force and members of the public may again be exposed to the irrational conduct of Mr Gardiner where personal circumstances bring about stress and the excessive consumption of alcohol. 147 In light of the above matters, the application brought by Mr Gardiner is dismissed.

ANNEXURE Senior Constable Paul Gardiner Order under Section 181D(1) of Police Act 1990 I, Andrew Phillip Scipione, Commissioner of Police, having considered your conduct and competence, do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the New South Wales Police Force. In reaching my decision, I have carefully considered the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990 and the material contained in the supporting documentation, which were served on you. I have also taken into account your written response provided by your legal representative. The reasons for my decision are annexed hereto under the heading "Statement of Reasons" Your removal takes effect from the date of this Order A.P. Scipione, APM Commissioner of Police Date: 14/8/08

NB: If you wish to contest this Order you must file an application for a review under section 181E of the Police Act 1990 with the Industrial Relations Commission within fourteen (14) days of having been given a copy of this Order.

Senior Constable Paul Gardiner STATEMENT OF REASONS I am required to make a determination under section 181D(1) of the Police Act 1990 in respect of whether I have confidence in you as a member of the New South Wales (NSW) Police Force.

In making the determination and in accordance with the relevant legislation, I have taken into account the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990 and the material contained in the supporting documentation which was served on you on 2 June 2008. The grounds set out in my Notice to you refer to your conduct and competence. I have also taken into account your written submission in response to the grounds set out in my Notice which was provided to me by your legal representative. I have given careful consideration to all the material that has been presented to me in this matter and I provide the following reasons for my determination: Issue 1: Conduct on 10-11 July 2007 Background On 19 April 2007 you were interviewed by police from the Professional Standards Command in relation to an allegation that you had assaulted the five year old son of your partner, Ms Dana Lotze. The investigation into those allegations concluded that there was insufficient evidence to sustain the allegations. However, in accordance with legislative requirements, an Interim Apprehended Violence Order (AVO) was sought and issued. Shortly after being served with the interim AVO you reported off on sick leave. You were on sick and recreation leave for most of 2007.

Telephone calls to Batemans Bay Police Station At approximately 10.10 pm on 10 July 2007 you telephoned Batemans Bay Police Station while you were on sick report and intoxicated. Telstra call charge records for phone number 02 4474 5779 show that, at 22:11:33 hours on 10 July 2007 a 52 second telephone call was made to the Batemans Bay Police Station.

You spoke to Senior Constable Wilkinson in words to the following effect:

I've got the shits with the coppers, I'm off on sick report. I'm going to shoot myself in three minutes. If the police come here I'll shoot them ... by morning you'll have one dead police officer.

In a directed interview on 4 October 2007, you admitted that you made the telephone call. You stated you could not remember the exact wording of the conversation but believed you had said something in relation to shooting yourself. You stated that you were not sure what had been said about what might happen if other police officers attended. You agreed it was possible that you may have made the alleged comments.

You admitted that you had been drinking on the afternoon of 10 July 2007 and that you were "pretty well intoxicated".

Notes stuck to your door Acting Superintendent Starling and Inspector Huard went to your resident at Moruya to check your welfare. They arrived at about 1:00 am on the morning of 11 July 2007 On arrival, Acting Superintendent Starling and Inspector Huard state that three notes were found stuck to the glass sliding door at the front of your property. Those notes stated:

Professional Standards are corrupt cunts and fuckwits that are not interested in the truth. Don't push me, I will kill myself because you have already found me guilty. Fuck off, the police caused this. Only enter if willing to murder me.I am innocent and loved my job. The police murdered me. In your directed interview you agreed that the notes were in your handwriting but stated that you could not remember writing them or placing them on the door of your residence. Conduct toward attending officers Acting Superintendent Starling and Inspector Huard both state that they then found you affected by alcohol. You made a number of threats to call your partner and children to threaten self-harm and to blame the NSW Police Force for your behaviour in the presence of Acting Superintendent Starling and Inspector Huard. Acting Superintendent Starling made contact with the Police Mental Health Support Service and offered you the opportunity to speak with a psychologist. You declined the opportunity. Acting Superintendent Starling then discussed your behaviour with the psychologist and formed the view that you were not a threat to yourself or others. Acting Superintendent Starling and Inspector Huard therefore left. In your response to me concerning this issue you state that the Professional Standards Command investigation, your court appearances in relation to an Apprehended Violence Order and your treatment by the Police Medical Officer "all became too much for me to bear". I do not believe that this justifies or excuses your actions on the night. I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct whether it is on or off duty. Issue 2: Conduct on 17 November 2007 Background On 24 September 2007 as a result of your conduct on 10 July 2007, you were handed a letter from Acting Superintendent Starling directing you not to attend the workplace until further authorised to do so. You were also directed to attend an appointment with the Police Medical Officer and Police Psychiatrist on 28 September 2007. The letter also reiterated the relevant contact persons in the event that you required assistance. On 4 October 2007 you participated in a directed interview in relation to your conduct on 10 July 2007. During that interview you were put on notice by Acting Superintendent Starling that he had concerns about your ongoing behaviour as a police officer, particularly where alcohol was concerned (Q142) and including while you were off duty (Q198). You were also advised that Health and Workplace Services, including the Psychology Section, Welfare Branch, Police Chaplaincy and the Rehabilitation Section, were available to you if you required assistance (Q196). You confirmed that you understood (A196). On 5 October 2007 you were served with a letter from Acting Superintendent Starling informing you that it was inappropriate to contact him while you were intoxicated and directing you not to call him while he was off duty. The letter reiterated that you were not to attend a police station without the permission of the Duty Officer. The letter again gave various contact details for further support or assistance. Telephone call to Batemans Bay Police Station and damage to your property Shortly after midnight on the morning of 17 November 2007 while off duty and intoxicated, you telephoned Sergeant Christopher Vardy at the Batemans Bay Police Station and asked him to attend your residence. You informed Sergeant Vardy that you had just damaged your property and believed that you were having a mental breakdown. A short time later Sergeant Vardy received a telephone call from your partner, Ms Dana Lotze, who stated that you had begun damaging your property and that she was unable to prevent you. Sergeant Vardy went to your residence. On arrival he discovered that most of the gyprock walls of your residence had been damaged, some with large holes. The dining table had been overturned and the kitchen pantry cupboard was lying face down on the floor. You told Sergeant Vardy you had damaged your property "because you could" and because you thought you were having a mental breakdown to which Sergeant Vardy states he responded, "Bullshit, you're pissed. You don't do this when you're sober". Sergeant Vardy states that he then had a conversation with you in which you made the following comments in relation to Inspector Huard and Inspector Volf:

Fuck Garry Huard. He is a dog cunt He is a dog cunt after the shit he wrote in the report about me. Huard is a cunt and so is Volf. Volf has harassed me from day one and fucked my life . Sergeant Bardy states that he suggested that if you wished to continue working the NSW Police Force, you should seek help. You participated in a directed interview and admitted calling Sergeant Vardy in the early hours of 17 November 2007 but stated that you could not recall whether you told him that you had damaged your property. You admitted that you had been drinking alcohol on the night but stated you could not recall how intoxicated you were. You refused to further discuss the damage to your property. Abusive telephone call to Batemans Bay Police Station At approximately 10.30 am on the morning of 17 November 2007 you made a further telephone call to Batemans Bay Police Station and spoke with Sergeant David Scott. During a directed interview in relation to this matter you admitted that you had a conversation with Sergeant Scott in words to the following effect:

You: I just want to leave a message Scott: What's that Paul? You: I don't want Police coming over here ever again. Tell those fucking duty officer cunts that if they ever ..." Scott: Listen Paul, if your [sic] just going to be abusive. I'm not going to talk to you and hang up. You: Just tell those duty officer cunts never to come here again. Scott: Paul, if the Police have an official reason to attend your resident that will have to happen. You: Just tell those fucking cunts I'll slam the gate and ... The call was terminated by Sergeant Scott. In a directed interview on 28 November 2007 you agreed that you were not intoxicated in any way at the time of this telephone call. You stated that you had previously been told that you had an alcohol issue and wanted to call the station when you were sober to say exactly what you felt. You agreed that you had used offensive language when speaking to Sergeant Scott but denied that this was inappropriate in the circumstances. When it was put to you that your conduct was contrary to the Code of Conduct Ethics you stated:

The Code of Conduct and Ethics is an absolute joke. It is only used to persecute junior officers, easy targets, whilst senior officers continually flout the same things my behaviour has been questioned over. I couldn't give a shit what they do to me. The whole system is a joke, an absolute joke and the truth will come out ... In your response to me concerning this issue you state that the Professional Standards Command investigation, your court appearances in relation to an Apprehended Violence Order and your treatment by the Police Medical officer 'contributed to your mindset and resulted in your actions on 17 November 2007'. Your collective behaviour between July and November 2007 must be considered and not in isolation of this incident, inclusive of your threats to kill yourself on 10-11 July 2007 and the threats towards other police. Your conduct and your actions posed a serious and real threat to the members of the community, yourself and the police officers on duty at the time. You must understand that your conduct would be considered as gravely serious by all of the attending police and those receiving threatening telephone calls and messages from you. As I have said previously I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. Clearly, you did not do so on this occasion.

Issue 3: Conduct on 28 January 2008 Shortly after 9.00 pm on 28 January 2008, Sergeant Vardy says that he received a telephone call from Ms Dana Lotze in which she stated that she had received numerous telephone calls from you in which you suggested that she contact the police as you were going to commit suicide, either by consuming pills, cutting yourself or making other police officers shoot you.

Ms Lotze informed Sergeant Vardy that you had been drinking and were intoxicated. As approximately 9.20 pm on 28 January 2008 you telephoned Batemans Bay Police Station while intoxicated. Constable Bates reports that, during the telephone call, you said words to the following effect: You: Sorry to do this to you, you don't want to receive this call. I'm not gonna make the same mistake this time like last time. I want the police to shoot me. I want them to come around. If they don't shoot me I'll chop off my head with a machete. Bates: Paul, you don't want to do that mate. You: I want you to tell Vards, let him know and the duty officer know. Send the police around so they can shoot me. I don't want to be here in the morning.

At approximately 9.30 pm Constable Bates states you made a further telephone call to Batemans Bay Police Station and said words to the following effect: You: I've rung the media and have an appointment tomorrow. Tell Vards not to panic. I've spoken to Stuart McClean. I'm not going to hurt myself now. I've had enough of how the cops have treated me. I'll tell the media and Today/Tonight all about it. How they stuffed me around. Bates: Do you still want the police to come around? You: If they come around I'll punch the fuck out of them. Bates: Okay, I'll let him know. I'm glad you not (sic) gonna do yourself any harm. You had me worried there. There's more to life than the job. You: Sorry for the call before. Bates: No worries mate.

At approximately 10.10 pm in response to the telephone call received by Ms Lotze, Sergeant Vardy attended your premises accompanied by Senior Constable Graham. They knocked on your front door but you replied by yelling "Fuck off". However, they state that you then permitted them to enter the premises. Sergeant Vardy asked why you had called the station threatening suicide and says that you replied in words to the effect: I have it on good authority, from a source that I trust, that the boss had said that he knew he had nothing on me but he said they were getting rid of me anyway because they don't like me. So it's personal.

Sergeant Vardy states that, while they were at your premises, you: · appeared only moderately affected by alcohol; · asserted that you were going to be offered a transfer to a station other than Batemans Bay, that "the boss can stick that in his arse" and that you would fight him in court"; · referred to Inspectors Vold and Huard as "liars" and "gutless"; · repeatedly asserted that the police had "fucked" your life. On 30 January 2008 you participated in a directed interview. When the first part of the content of the 9.20 pm conversation was put to you, you responded, "well, if he said I said that I obviously said it". Anything he said I said". When the balance of the conversation was put to you, you responded, "It's true" and then further stated, "I didn't threaten police. I didn't do anything. I just told them the facts and unfortunately, I just didn't have the guts to go through with it". The content of the 9.30 pm telephone call was put to you to which you responded "As I said, anything the police say that I said, it must be the truth".

You admitted that you had been consuming alcohol on the evening in question but were not aware of your level of intoxication at the time of making the telephone calls. You agreed that Sergeant Vardy and Senior Constable Graham had attended your residence but stated you could not recall the contents of the conversation you had with those officers. You also stated you could not remember calling Ms Lotze that evening or whether you had threatened suicide in those calls.

When questioned in relation to the disparaging remarks you had made in relation to Inspectors Volf and Huard you responded by stating "that's my opinion of them". You also agreed that you continually rang up the station and threatened suicide as a call for attention.

During the interview you confirmed that you had previously received counselling and had a number of appointments with the Police Medical Officer. However, you admitted that you had walked out of an appointment with the police psychologist which you had been directed to attend. You also noted that you had appointments which a police psychiatrist. At the conclusion of that interview you were offered an opportunity to request further support from the New South Wales Police Force which you declined. In your response to me regarding this issue, you again state that the Professional Standards Command investigation, your court appearances in relation to an Apprehended Violence Order and your treatment by the Police Medical Officer left you "feeling the lowest I have ever felt".

You also state that, during this period, your wife returned to Sydney with your two daughters. I have compassion for you regarding your marital circumstances, however, I feel your actions on the night were unpardonable.

In all of the issues outlined above, I have concluded that you failed to adhere to the NSW Police Code of Conduct and Ethics as in force at the time of the relevant incidents. That Code relevantly states: An employee of NSW Police must : 1. Behave honestly and in a way that upholds the values and the good reputation of NSW Police whether on or off duty. 4. Treat everyone with courtesy, respect and fairness.

I have significant concerns about your competence and conduct and your suitability to be a member of the NSW Police Force.

I am particular concerned that your conduct indicates a lack of respect for other police officers and has placed greater burdens on other officers who are simply trying to perform their duty. In this regard I have significant concerns about the impact of your behaviour on other officers. I am also very concerned that your conduct appears to be part of a continuing pattern which may be indicative of an escalation of a substantial history issues in relation to your behaviour while affected by alcohol. In this regard I have significant concerns that, despite repeated offers of assistance and support, you have continued to engage in unacceptable conduct without taking responsibility to alter your behaviour. I also note that you already have been given a prolonged opportunity to amend your off duty conduct, particularly that involving alcohol.

These opportunities have included: · Referral to the Health Services Directorate, Alcohol and Other Drug Education and Counselling Unit in July 2002; · A Conduct Management Plan operating between 29 October 2002 to 28 October 2003 to specifically address off duty conduct involving alcohol. This included an assessment by Healthy Lifestyles in relation to your alcohol use; · Referral to the Health Services Directorate, Alcohol and Other Drug Education and Counselling Unit in 2004; · A Conduct Management Plan operating between 25 October 2004 and 25 October 2005, one of the purposes of which was to address off duty conduct involving alcohol; and · The opportunity offered to you on 11 July 2007 by Acting Superintendent Starling to speak with a psychologist from Mental Health Support Services.

You also received a Region Commander's Warning Notice in relation to an incident involving your off duty conduct while under the influence of alcohol on 12 October 2004. You have also been provided with counselling in response to complaint matters LMI 0402717 and CIS 01003199 relating to inappropriate conduct involving alcohol while off duty.

In your response you state that you are addressing your difficulty with alcohol in a most aggressive fashion and I wish you well in this regard.

In considering whether there are other factors which might warrant a different disciplinary sanction I have taken into account the fact that, in light of your erratic conduct and hostility towards members of the Police Force, other officers may no longer feel comfortable continuing to work with your in an unsupervised environment.

I consider that the matters set out above support a conclusion that removal from the NSW Police Force is an appropriate sanction for your conduct and competence.

I have also taken into consideration previous concerns that your work while on duty, although meeting minimum requirements, requires a high level of supervision to be completed adequately. Conduct management and performance plans appear to have resulted in some improvement for their duration but their continued implementation shows that you have failed to successfully address or control your behaviour over a prolonged period. I also note that you have been provided with significant past assistance and counselling about your previous performance and conduct. These actions have included: · A Conduct Management Plan operating between 29 October 2002 to 28 October 2003; · A Conduct Management Plan for the period 25 October 2004 to 25 October 2005 which was intended not only to address off duty conduct but also performance while on duty; and · A Performance Improvement Plan for the period 10 June 2006 to 10 November 2006.

You were also counselled in respect to complaint matter P0506171 in October 2005 relating to late submission of a coronial brief. You state in your response that you had difficulty in relation to this brief as the deceased was a person you had known socially for approximately 20 years. I empathise with you in regard to this, however, I believe that this should not have precluded you from complying with your responsibilities during a coronial investigation.

While I do not believe that this issue alone would warrant your removal, I do however, consider that it supports a conclusion that removal from the NSW Police Force is an appropriate sanction for your conduct and competence.

I can see no genuine reasons of mitigation or explanation for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer.

I want you to clearly understand and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct whether it is on or off duty. You have clearly and on numerous occasions breached the NSW Police Force Code of Conduct and Ethics.

I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force.

I therefore remove you from your position as a police officer A P Scipione, APM Commissioner of Police Date: 14/8/08

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.