Commissioner of Police v Evans - [2006] NSWIRComm 170 - NSWIRComm 2006 case summary — Zoe

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Commissioner of Police v Evans

[2006] NSWIRComm 170

Industrial Relations Commission (NSW)|2006-07-01|Before: Walton J, Schmidt J, Staff J, Boland J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2006-07-01

Before

Walton J, Schmidt J, Staff J, Boland J

Source

Original judgment source is linked above.

Judgment (85 paragraphs)

[1]

The Applicant shall not be entitled to any payment for the period from 24 February 2005 to the date of this decision.

[2]

18 Those orders reflected evidence given by Mr Evans.

[3]

19 Boland J found that Mr Evans' conviction arose out of an incident which occurred at about 3.30 am on 6 December 2003, in Goulburn Street in the city, outside a hotel, 'Scruffy Murphy's', where Mr Evans had been drinking, after attending a harbour cruise with a number of other off duty police officers. The incident was recorded on closed circuit television. A copy of the tape was in evidence. 20 Mr Evans was attacked in the street by a Mr Gleeson, after an earlier altercation inside the hotel. Boland J described what occurred at [9] to [11]: 9 At about 3.30 am Mr Evans had left the bar and was standing in front of premises in George Street with then Senior Constable John Maher, another male person and two females, one being identified as Constable Michelle Axisa. Mr Gleeson is seen walking past the group. He stopped, turned around and approached the group who were engaged in conversation. Mr Evans looked to be in the process of lighting a cigarette. Mr Gleeson came up behind Mr Evans and gave him a solid push in the middle of the back with his foot. Mr Evans and Mr Maher turned to face Mr Gleeson and both started to walk towards Mr Gleeson as he backed away. Mr Evans continued to light his cigarette. As the two men approached Mr Gleeson another male tried to intervene between them.

[10]

I am required to make a determination under s 181(D)(1) of the Police Act 1990 in respect of whether I have confidence in you as a member of the New South Wales Police. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself and a Notice served upon you on 29 November 2004 pursuant to s181 (D) (3) (a) of the Police Act 1990, together with your written submission provided through your solicitor in response to the grounds set out in my Notice. I have given careful consideration to all of the material that has been presented to me in this matter. The grounds set out in my Notice refer to your conduct and relate to your participation in an assault upon Mr Kevin Gleeson in George Street, Sydney on 5 December 2003. The incident resulted in you entering the criminal justice system charged with 'Assault Occasioning Actual Bodily Harm in Company' and 'Affray'. I provide the following as reasons for my determination. On 5 December 2003, in the company of Senior Constable John Maher and other friends, you were standing in George Street, Sydney where Mr Kevin Gleeson assaulted you by kicking you in the back. Both you and Senior Constable Maher retaliated to this assault by pursuing Mr Gleeson across the road. Both you and Senior Constable Maher then assaulted Mr Gleeson by punching and kicking him a number of times to his body. As a result of the assault Mr Gleeson sustained soft tissue injuries and bruising. On 23 December 2003 you were arrested and charged with 'Assault Occasioning Actual Bodily Harm in Company' and 'Affray' in respect to the assault upon Mr Gleeson. On 15 April 2004 you appeared at Downing Centre Local Court where you pleaded guilty to the offence of 'Assault Occasioning Actual Bodily Harm in Company'. You were convicted and fined $3000 plus $61 court costs and placed on a Section 9 Good Behaviour Bond for a period of Eighteen (18) months. The charge of 'Affray' was subsequently withdrawn by the Director of Public Prosecutions. You lodged an appeal against the severity of your sentence, which you subsequently withdrew.

[11]

I note that alcohol, in particular, the apparent excessive consumption of alcohol, has been put forward as an issue in mitigation of the offence. This was acknowledged and accepted by the relevant judicial officers and you received the benefit of the leniency of the Court. I note that you have submitted in mitigation that your behaviour was out of character and that had you not been under the influence of alcohol at the time of the incident it may not have occurred. I also note your efforts in addressing your alcohol abuse and the remorse you have shown for the incident by your plea of guilty at court. The behaviour you exhibited on this occasion is not, however, the behaviour that I expect of a professional police officer. The assault by Mr Gleeson upon yourself was unlawful and I note that he has been dealt with by the Court. The actions of Mr Gleeson cannot be excused either. Notwithstanding this assault, the CCTV footage which I have viewed provides a most telling account of the assault that was then occasioned upon Mr Gleeson in what I regard as a wanton and deliberate manner. That footage is a damning indictment of a personal loss of self-control from you. There can be no excuse for your behaviour when as a police officer you would have known the law as it related to Mr Gleeson's attack upon you, and notwithstanding that level of requisite knowledge you chose and equally unlawful path in your participation in the assault upon Mr Gleeson. Magistrate Syme reflected in her judgment on the community's expectation of police officers. By any test the conduct you exhibited was not to that standard, nor do I believe of the standards of the New South Wales Police. I have carefully reviewed all of the material associated with this matter and see no mitigation or reason that would provide me with any basis not to lose my confidence in your suitability to remain a police officer. 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. I therefore remove you from your position as a police officer.

[18]

29 Boland J noted that Mr Evans' case was that his removal from the Police Service was too severe a penalty in all of the circumstances. His Honour accepted that there had been provocation, but like Magistrate Syme also took the view that 'the victim was clearly very drunk at the time, that should have perhaps given Mr Evans a clue not to respond in the way that he did'. He concluded that 'the response of Mr Evans was not commensurate with the attack on him.' (at [40]) 30 Boland J regarded Mr Evans' early guilty plea to demonstrate remorse and an acceptance of his responsibility for his conduct, which he regarded to be an important consideration. He also regarded Mr Evans' consumption of alcohol to be 'hugely excessive and self-inflicted', but accepted the evidence as to counselling taken by Mr Evans for his binge drinking and Mr Evans' confidence, that he now had this problem under control. His Honour also noted 'the dreadful effect it had on his family, particularly his wife, who attended the hearing.'(at [42]) 31 Boland J further noted that 'Mr Evans' removal from the Police caused significant personal and economic dislocation.' (at [43]); the depression his wife had suffered as a result; the forced sale of the family home following a reduction in income from $66,000 to $40,000 annual salary, with his earnings then being $42,000 for a six day, 48 hour week. Boland J also accepted Mr Evans' good character up to the time of the incident; that his participation in the assault was an aberration and the references which spoke highly of him as police officer. Boland J described Mr Evans' youthful ambition to serve as a police officer and his dedication to that work. He concluded that 'In my opinion, Mr Evans remains capable of providing valuable service to the Police.' (at [47]) 32 Boland J also referred to a number of cases relied upon for Mr Evans, where other police officers involved in an assault had not been removed from the police service. At [48] his Honour concluded:

[57]

36 Mr Evans complained that the Commissioner had failed to comply with the orders made by Boland J, because he had not been returned to operational police duties and on that basis, sought refusal of the application for leave to appeal and the dismissal of the appeal. 37 An appellant's failure to comply with the Commission's orders, in the absence of a stay being granted, is, of course, a serious matter and accordingly, directions were given by Walton J prior to the hearing of the appeal, as to the filing of affidavit evidence as to the contested factual circumstances. 38 The work Mr Evans was given when he returned to the Police Service at the rank of Senior Constable was, on his case, clerical in nature and not the work of a police officer. Complaint was also made that he had not been provided with a police uniform and various accoutrements he was obliged to carry as a police officer. The appellant's case was that the orders had been complied with. Mr Evans had returned to the Police Service following his resignation from the other employment he had obtained after his removal; he was then not only paid the relevant remuneration, he was given various police duties to perform, albeit not operational duties, consistently with his Honour's order. Whether or not Mr Evans had been supplied with a uniform and other necessary accoutrements was not, however, entirely clear. 39 It became apparent at the hearing that the directions given prior to the hearing had not been adequately complied with by the parties. The hearing of the appeal was adjourned, so that both parties could take steps to ensure that the factual circumstances were properly put before the appeal bench. The parties both filed further affidavit material and submissions. 40 In Nutshack, the Full Court was dealing with s 106 proceedings where the trial judge had made various orders, including orders in relation to the payment of money. The orders had not been complied with; no stay had been sought and still the unsuccessful appellant sought to challenge the trial judge's orders on appeal. The Full Court took the view that given the provisions of the Act as to the finality of decisions made by the Court, subject to leave to appeal being sought and an appeal granted, or a stay of the orders made being sought and granted, that continued disobedience of the Court's orders at first instance amounted to an abuse of process. 41 Consequently in Nutshack, the application for leave to appeal and appeal were stayed, until further order of the Court. That left open the possibility that the abuse would cease. In that event, the Full Court noted that the abuse would become relevant to a consideration of the appellant's application for leave to appeal (at 363). 42 The circumstances here before the Court are quite different to those in Nutshack. In November 2005, Boland J ordered Mr Evans' reinstatement to his former position, in six months' time - that is from a date in May 2006. In the meantime, various conditions were imposed. Firstly, Mr Evans was to 'return to the New South Wales Police at the rank of Senior Constable Level 1 Step 1.' Secondly, Mr Evans was to 'be subject to an appraisal of his performance in accordance with the usual method or program applying to such appraisals'. 43 Reinstatement to Mr Evans' former position, at the end of six months, depended upon his performance being satisfactory in the meantime. Boland J made no order that Mr Evans be given any particular position in the Police Service, if he returned, nor did he deal with the duties Mr Evans was to be given in respect of which his performance was to be assessed. These were matters left to the discretion of the appellant. Mr Evans' reinstatement to his former position, depended on the appellant assessing his performance in the work he was to be given, in that six month period. 44 On the evidence, there was never any question that upon his return to the Police Service, Mr Evans was paid at the appropriate Senior Constable's rate. What was initially at issue was whether Boland J's order required that he be given operational police duties to perform, immediately upon his return to the Police Service and subsequently, whether the duties he had been given were non-operational police duties as asserted by the appellant, or rather clerical work, as Mr Evans complained. 45 There were also questions as to whether Mr Evans had been given necessary accoutrements such as a police badge, uniform and so on, which would have enabled him to carry out operational police duties, if called upon to do so and which he was required to wear and carry, as a member of the Police Service, no matter what duties he was allocated. 46 The argument developed for Mr Evans by Mr Docking of counsel, relied upon the submission that the Commission's power under s 89 of the Act was one of reinstatement and the nature of such a reinstatement order, when made. The decision of the High Court in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 was relied upon. There the nature of a reinstatement order made under s 170C of the federal Workplace Relations Act 1996 was considered. Such an order was variously described as not being confined to a restoration of contractual relations, but

[64]

The applicant is to be reimbursed for all lost salary and entitlements from the date of termination to reinstatement less the salary the parties agree the applicant received through alternative employment. 51 While a cross appeal was filed by Mr Evans, in which it was argued that his Honour's orders were not within jurisdiction, the cross appeal was abandoned at the hearing, Mr Evans accepting that pursuant to s 89 of the Act, his Honour was entitled to order his reinstatement prospectively and subject to the terms imposed. 52 Under s 89 of the Act, Boland J was not obliged to, and did not, as he could have, order Mr Evans' immediate reinstatement to his former operational position. Boland J explained the difficulty he had, in coming to the conclusion that Mr Evans' dismissal was harsh. That difficulty no doubt explains the exercise of discretion, which resulted in the imposition of conditions on the reinstatement order made. Undoubtedly, in adopting this approach his Honour had regard to the evidence before him as to the serious nature of the offence of which Mr Evans had been convicted. 53 His Honour chose to give Mr Evans the opportunity to return to the Police Service at the rank of Senior Constable level 1 and there to have his performance assessed, as a precondition to his reinstatement. There was nothing in the order which his Honour made, which required the appellant to give Mr Evans any particular type of work upon his return to the Police Service, other than the obvious - that it had to be work of the kind which a Senior Constable is employed to perform in the Police Service, so that his performance could later be assessed, as the order required. 54 It was plainly open to Boland J to have directed the position and type of duties which Mr Evans was to be given during the first six months of his return to the Police Service, rather than simply specifying a return at a particular rank. He did not adopt that approach. The duties Mr Evans was to be given was a matter which he left to the Police Commissioner, understandably in circumstances where his Honour had real concerns about the conclusions he had reached. After all, he had described Mr Evans' conduct to have been that of a 'thug'; concluded that the assault which he had committed amounted to serious misconduct and had expressed serious reservations about the reinstatement, which he finally concluded should be ordered. 55 Undoubtedly, what was initially advanced for Mr Evans in relation to the failure to comply with the orders Boland J had made, was bound up with the cross appeal against that part of the orders imposing conditions on the prospective reinstatement ordered. Consistently with the approach taken by in Blackadder, the argument advanced was that of necessity, a reinstatement order required a return to the previous operational work being performed by Mr Evans, prior to his removal from the Police Service. Once it was accepted that Boland J had a discretion to impose conditions he thought fit on the reinstatement order, it followed that the exercise of the discretion carried with it the possibility that Mr Evans would not be required to be given operational duties to perform, prior to his reinstatement to his former position in May 2006. Such an outcome would not result, unless either expressly, or by necessary implication, the order made required that Mr Evans be given operational duties to perform. 56 The argument that the orders had not been complied with was not abandoned, when it was decided not to press the cross appeal. Mr Evans' complaint about the duties he was given was pressed because of the view taken that some of the duties Mr Evans was given involved clerical work, not non-operational police duties. The appellant's alleged failure to ensure that Mr Evans was put in a position where he could wear the uniform and carry the accoutrements which he was required to wear and carry, as a police officer in the Police Service was also pressed. 57 It is convenient to observe at this point, that it was more than a little surprising that the Full Bench was called upon to consider whether or not the orders appealed against had been complied with by the appellant and that it proved necessary to adjourn the hearing, to permit the parties to put adequate material before the Court, so that proper consideration could be given to whether what was done, amounted to proper compliance with the order made. Given the nature of this appellant, the Court would expect that in the absence of a stay being granted, both the spirit and letter of any order made at first instance would be complied with forthwith. 58 On all of the evidence finally led, it was demonstrated that Mr Evans did return to the Police Service once he had resigned his other employment and that he was then given a variety of duties of a non-operational kind. On Mr Evans' own evidence, as well as the evidence called by the appellant, which included evidence as to Mr Evan's conduct after his return to the Police Service, I am unable, finally, to conclude that those duties were not those of a police officer of the rank to which he returned. I also have no doubt, however, on the evidence led by the appellant, that the steps initially taken to provide Mr Evans with the requisite uniform and accoutrements necessary for any police officer to meet the obligations of that office, were not such that the Court could have any confidence that this necessary incident of the orders made at first instance had been complied with. Steps taken since the complaint about these deficiencies was raised by Mr Evans and questions were addressed to the appellant by the appeal bench at the hearing, appears on the material finally led to have attended to such deficiencies. 59 In so concluding I make the obvious point - compliance with the orders made by Boland J was entirely a matter for the appellant to ensure from the outset. The appropriate course, if strict compliance with the orders appealed against was thought to be inappropriate pending the hearing of the appeal, was for the stay initially sought to be pressed. That it was not thought necessary to do so, given the proximity of the appeal hearing, provides no basis for any failure to comply with the order. The evidence led by the appellant made it plain that the appellant did not initially take the necessary steps to ensure that the order was complied with. That is a very serious matter, involving as it does an abuse of process. The appellant could not leave it to Mr Evans to pursue steps necessary for the appellant to take, to ensure that the order was being complied with - such as ensuring that Mr Evans was issued with a police badge and uniform, which Mr Evans was required to wear as a member of the police service. 60 Failure to take the positive action which the orders required, if not properly attended to, could have had the result that the abuse of process involved would cause the Court to decline to hear the appellant's application for leave to appeal. It is also relevant to the question of whether the Court should grant leave to appeal, a matter to which I shall return. In this case however, on all of the evidence finally led, I am satisfied that the appellant should not be denied consideration of the question of leave. This case is not one where the conclusions reached in Nutshack are available on the evidence. Even if they were, the proper course would be to stay the proceedings until the orders were complied with, not to dismiss the application for leave to appeal, without any hearing. Leave to Appeal 61 Undoubtedly, as the appellant argued, this was an unusual case. Mr Evans was not convicted merely of assault, but of an assault committed in company. Boland J found the evidence to have shown that he had engaged in serious misconduct, which provided prima facie grounds for his removal from the Police Service. That Mr Evans was extremely drunk when the assault occurred was regarded as providing no mitigation. Boland J described Mr Evans' conduct to have been that of a 'thug'. He also found that it was understandable that the Police Commissioner had lost confidence in Mr Evans as a result. Despite these conclusions, Mr Evans' reinstatement was ordered. 62 That reinstatement order flowed from his Honour's conclusion that the dismissal would be harsh in Mr Evans' personal and economic situation. Boland J described the balancing act necessitated by the circumstances presented at [51]:

[66]

63 The appellant argued that there was no 'tripartite test' to be applied under s 181F, which deals with the procedure to be followed in the review provided by s 181E. Section 181F (3) mandates two matters to which the Court must have regard, in addition to matters which it may have regard, in determining whether a removal from the Police Service is harsh, unfair or unjust. A mere finding that a dismissal was harsh in its personal or economic circumstances, was insufficient to satisfy the requirements imposed by the section. While relevant, it could not be conclusive. The gravity of the misconduct in question also had to be considered. Whether a dismissal is harsh must be determined in an objective sense. It followed that Boland J had failed to adequately have regard to the public interest, as s 181F(3) required. 64 Furthermore, it was argued, Boland J had failed to explain how the public interest in the maintenance of the integrity of the Police Service, a matter which he was required expressly to take into account by s 181F(3), was in this case outweighed by the personal interests of the applicant. 65 For Mr Evans it was argued that the case sought to be brought on appeal was significantly different to that argued before Boland J and leave to appeal should therefore be refused. In truth, the appeal raised no question of construction of the applicable provisions, but amounted to a challenge to factual findings open on the evidence. 66 For my part, I am satisfied that the 'tripartite test' to which Boland J was referring at [51] of the judgment, was the question of whether Mr Evans' removal from the Police Service was 'harsh, unfair or unjust', as s 181E of the Police Act provides. That was what his Honour was called upon to decide in the proceedings below. There was no error in so approaching the task before him. 67 As is also well settled now in the authorities, the provisions of Part 6 Chapter 2 of the Act 'have application, albeit modified, in relation to reviews under Part 9 Division 1C of the Police Act' to a consideration of that tripartite test' (see Hosemans at [101]). 68 While leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance, I am satisfied, for reasons which I will develop below, that leave to appeal must be granted in this case. An appeal bench is concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].) 69 The appeal raises the question of the operation of the modifications made to the provisions of Part 6 Chapter 2 of the Act by the Police Act and whether his Honour's conclusions were available on the evidence before him, given those modifications. 70 In coming to that conclusion, I was considerably troubled by the approach adopted by the appellant to the implementation of the orders made by Boland J. It led me to seriously consider refusing leave. Also necessary to be considered in determining the question of leave however, are the requirements imposed by s 181F of the Police Act, upon a review initiated under s 181E, which also expressly apply to this appeal, by virtue of s 181J. The evidence of the steps taken by the appellant to rectify the deficiencies I have earlier outlined, led me to conclude, on balance, that leave to appeal may not properly be refused in this case.

[78]

82 Similarly, in considering whether a dismissal was harsh, s 181F(3) also requires that consideration must be given to 'the public interest (which is taken to include the interest of maintaining the integrity of NSW Police, and the fact that the Commissioner made the order pursuant to section 181D (1)'. Just as a consideration of the consequences of removal cannot be overlooked in a s 181E review, consideration of such consequences may not overbear a consideration of the other limb of s 181F(3) - the public interest. 83 His Honour did indicate that he had considered 'all of the relevant considerations' he had earlier identified and that he had struck what he considered to be 'a proper balance' between the competing interests embodied in s 181(3). Nevertheless, he gave no explanation of how his conclusion that Mr Evans' removal was 'harsh in its consequences for his personal and economic situation', the consideration required by s 181F(3)(b), was balanced with the considerations required by s 181F(3)(b) - the public interest. This is an aspect of the mandatory review process established by the Police Act, which cannot be overlooked by a trial judge. 84 His Honour adopted the approach explained by Watson J in Metropolitan Meat Industry Board. Consistently with that decision, Boland J found that the removal was 'too harsh a sanction', given the nature and degree of what was 'an aberrant act which will never be repeated in my opinion.' This conclusion flowed, no doubt from his Honour's acceptance of Mr Evans' remorse, demonstrated by the entry of an early guilty plea; his prior good character; and the steps he had taken to deal with his drinking problems; as well as the personal and financial consequences of the removal. In proceedings brought under Part 6 of Chapter 2, a conclusion that a dismissal was harsh, on the basis of such evidence, would plainly be open, even in a case of serious misconduct. What was not required to be considered in Metropolitan Meat Industry Board, however, and which must be considered in proceedings such as this, together with the conclusions reached in relation to the interests of an applicant, is how those conclusions are balanced with the public interest in the maintenance of the integrity of the Police Service. 85 This mandatory requirement introduced into proceedings such as this by s 181F(3), forms a part of the modifications which the Police Act introduced to the usual approach adopted in proceedings brought under Part 6 of Chapter 2 of the Act. Whatever the outcome, the exercise required by s 181F(3) must be undertaken and reasons for the conclusions reached must be given. 86 In a particular case, such an exercise may well lead to the same conclusion as would be reached in the absence of that requirement, namely that the dismissal was harsh, notwithstanding the serious misconduct in question. Alternatively, it may lead to the conclusion that the dismissal was not harsh, given the public interest considerations arising in the particular case. 87 As the High Court's decision in Byrne illustrates, in unfair dismissal proceedings brought under Part 6 Chapter 2 of the Act, a conclusion in a particular case that the personal consequences of a dismissal are harsh, will not necessarily result in a finding that the dismissal was harsh, in the statutory sense. Byrne was a case concerned with misconduct which would have warranted summary dismissal if it had, in fact, occurred. The employees in question had been dismissed for pilfering and the complaint advanced related to the procedures adopted by the employer prior to the dismissal, which it was alleged made the dismissal relevantly unfair. McHugh and Gummow JJ, who for example discussed in the joint judgment at p 465 a dismissal which might be 'harsh in its consequences for the personal and economic situation of the employee', nevertheless also observed at p 468, in relation to the particular circumstances of the case, that:

[80]

88 In this case, what arose for consideration was a removal from the Police Service flowing from an assault resulting in a criminal conviction which was found by the trial judge to have amounted to serious misconduct. How continued employment in the Police Service of a person convicted of such an assault accorded with the public interest in the maintenance of the integrity of the Police Service, in the particular circumstances revealed by the evidence, was a matter which required determination, having regard to the modifications introduced by s 181F. That is what, in my view, distinguishes this case from other cases which have been brought under s 181E of the Police Act and which were relied upon for Mr Evans. 89 Boland J unequivocally found that the assault of which Mr Evans was convicted in company with another off duty police officer, amounted to serious misconduct. He found that it was a cowardly attack and described the behaviour recorded on the video footage as that of a 'thug'. Boland J endorsed the Police Commissioner's general attitude, that in the absence of extenuating circumstances, that such conduct was appropriate for removal from the Police Service. None of these findings were challenged. Having reviewed the video tape of the assault, they are conclusions with which I agree. 90 Consistently with authority and the requirements of s 181F(3)(a) Boland J proceeded on the basis that while the assault provided prima facie grounds for removal, that circumstances revealed in the evidence might show that the removal was, nevertheless, harsh. Those circumstances were found, but without his Honour explaining how these conclusions were weighed with the considerations required by s 181F(3)(b). In coming to a conclusion that a removal is harsh, s 181F requires that the trial judge expressly have regard to the public interest in the maintenance of the integrity of the Police Service, as well as taking into account the interests of the applicant. 91 In my view, had Mr Evans been convicted of some less serious offence, perhaps a conclusion that the removal was harsh, might have been available on the evidence in this case. Given, however, the public duties which all police officers are required to perform by virtue of their important office, so that order may be maintained in our society, and the serious nature of the assault of which Mr Evans was convicted, as the High Court observed in Byrne, I am unable to see how, consistently with the requirements of the statutory scheme established by the Police Act, that it could be concluded on the evidence that this removal was harsh. The consequences which undoubtedly flowed in a personal sense from Mr Evans' removal from the Police Service cannot, in this case, detract from that conclusion. 92 The reasons the Police Commissioner gave Mr Evans for his removal advised that he had considered what Mr Evans had advanced in relation to his remorse for what had occurred, which involved conduct which was out of character and the steps he had taken to deal with his alcohol problems. Having reviewed the video footage of the assault, the Police Commissioner, nevertheless, concluded that the assault: ' ... was occasioned in what I regard as a wanton and deliberate manner. That footage is a damning indictment of a personal loss of self-control from you. There can be no excuse for your behaviour when as a police officer you would have known the law as it related to Mr Gleeson's attack upon you, and notwithstanding that level of requisite knowledge you chose an equally unlawful path in your participation in the assault upon Mr Gleeson. Magistrate Syme reflected in her judgment on the community's expectation of police officers. By any test the conduct you exhibited was not to that standard, nor do I believe of the standards of the New South Wales Police.

Parties

Applicant/Plaintiff:

Commissioner of Police

Respondent/Defendant:

Evans

Cases Cited (25)

Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 353 Blackadder v Ramsey Butchering Services Pty Ltd (2005) 139 IR 338 Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 CASES CITED: Inspector Moore v Blacktown City Council (2003) 124 IR 59 King v State Bank of New South Wales (No 2) (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Martin Evans v NSW Police [2005] NSWIRComm 404 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 Newton v NSW Police Service (1999) 87 IR 66 Nutshack Franchise Pty Ltd and Others v Smith and Another (1999) 90 IR 355 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265 De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 Starr v Commissioner of Police (2001) NSWIRComm 226 Strathfield Group Ltd v Hall (2002) 121 IR 158 Van Huisstede v Commissioner of Police (2000) 98 IR 57

(1999) 92 IR 32

(2000) 100 IR 420

(2005) 139 IR 338

(2004) 138 IR 159

(2001) 105 IR 325

(1995) 185 CLR 410

(1999) 92 IR 264

(1993) 32 NSWLR 683

(1999) 47 NSWLR 151

(2003) 124 IR 59

(2002) 126 IR 407

(1999) 95 IR 380