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;