Commissioner of Police v Evans

10 As Mr Gleeson backed away, Mr Maher threw a punch at his face. Mr Gleeson ran across the road with Mr Evans and Mr Maher following him. As Mr Gleeson reached the footpath on the other side of the road he slipped and fell to the ground. Mr Evans, in close pursuit, fell on top of him and commenced grappling with Mr Gleeson. Mr Maher attempted to kick Mr Gleeson whilst he was on the ground. Mr Gleeson stood up and was punched a number of times by both Mr Evans and Mr Maher. The assault continued with Mr Maher doing most of the punching. The assault ceased and Messrs Evans and Maher, together with Constable Axisa, left the scene in a taxi.

11 Mr Gleeson later attended hospital for treatment of his injuries. They were not serious. He sustained soft tissue injuries to his face and nose and suffered a nosebleed.

21 Mr Evans was later charged with a criminal offence to which he pleaded guilty. Boland J referred to the proceedings before the Local Court, where Magistrate Syme convicted Mr Evans, observing in imposing sentence that his retribution for Mr Gleeson's attack involved an excessive degree of force, despite provocation; that the fact that he was a serving police officer involved in a joint enterprise with another police officer, was an aggravating matter which required a conviction, notwithstanding that Mr Evans would, as a result, face other proceedings, apart from the criminal charge. Boland J noted that her Honour described the evidence before her as showing: Thereafter, the defendant and the co-offender proceeded to attack the victim, substantially attack the victim and the observation of this defendant's involvement is that he attacked him with punches in the company of the co-offender. At one stage the video could not show the extent of the attack as it was hidden from view, however it is clear from the injuries of the victim and from what I was able to view from the video that the defendant was certainly involved in more that (sic) one punch and the defendant and the co-offender acting together were involved in a serious assault on the victim, a very serious assault.

There are of course aggravating features in this charge and the most aggravating feature is the fact that the defendant, and apparently the co-offender although I'm not specifically advised but certainly the defendant, is a serving police officer who was off duty at the time. That I do take into account as an aggravating feature as police officers are expected to behave in a manner that befits their position and does not bring discredit on themselves or indeed the police force. It is an important issue that goes to the heart of policing, the heart of community expectation and confidence in the police and the police force and the administration of justice in general. Therefore, I find that the fact that the defendant is a police officer to be an aggravating feature.

In relation to the issue of mitigation I have already referred in the summary of facts to the issue of provocation. I have been correctly addressed in relation to how provocation should be treated and I have already noted that the degree of provocation proffered by the victim on this occasion was quite substantial. I noted that the degree of force that the victim appeared to use on the defendant was indeed quite substantial. In relation to the time between the imposition of that force and the reaction of the defendant certainly the reaction of the defendant was not immediate and I would guess about some 30 seconds passed between the victim doing what he did and the defendant doing what he did. That certainly was sufficient time for the defendant to have another think about what he was about to do and to consider a better course of action. I also note that the defendant had friends with him, he was not alone, indeed the presence of the co-offender clearly did not help the situation at all and probably made the situation somewhat worse.

22 Magistrate Syme considered, but rejected the imposition of a custodial sentence or community service order. The maximum fine for the offence was $5,000. Her Honour imposed a fine of $3,000 and a good behaviour bond, having regard to the degree of seriousness of the offence, its criminality and Mr Evans' prior good character and lack of previous convictions. Mr Evans appealed against the severity of the sentence, but withdrew the appeal. The other police officer involved in the incident was also charged and convicted, but appealed, with the result that he was placed on a good behaviour bond only. 23 Boland J noted the process undertaken by the Police Commissioner under the Police Act, which resulted in Mr Evans' removal, with the reasons given on 24 February 2005 for the decision being:

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.

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.

24 In his consideration of Mr Evans' application for reinstatement, Boland J indicated his concern with Mr Evans' conduct, observing at [23] to [24]:

23 On one view of this matter it is understandable why the Commissioner of Police lost confidence in Mr Evans. He was a police officer of some 11 years' standing with the rank of Leading Senior Constable. That rank carries with it significant responsibility and the Commissioner's trust and confidence. Part of Mr Evans' role was to impart his knowledge, experience and the values of NSW Police to junior officers; he was supposed to be a role model. On 5 and 6 December 2003 Mr Evans became drunk and in company with another off-duty officer assaulted a member of the public. It was an unnecessary attack by an officer who had received the training and had acquired sufficient experience to understand the need for restraint given his role as a serving police officer. In the company of Mr Maher it was also a cowardly attack, notwithstanding the provocation.

24 That he was drunk was put forward in mitigation. I was not impressed by that submission. That a serving police officer allowed himself to reach such a level of intoxication after nearly 12 hours of drinking such that he was not able to exercise self-restraint in the circumstances in which he placed himself cannot, in my opinion, excuse his conduct. Further, being off-duty does not provide a license to act like a thug. 25 Boland J accepted that assault of the kind engaged in by Mr Evans constituted serious misconduct (at [26]). He took the view however, that while the approach of the Commissioner of Police in various other cases reflected strong disapproval of such conduct, that nevertheless, each case must be decided on its own facts. Although assault might provide prima facie grounds for removal of a police officer, circumstances may exist that make removal harsh and that either reinstatement should be ordered, or some other remedy applied. (at [31]) 26 His Honour noted that the approach of the Full Court in Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159 was binding on him. It was there observed:

104 We agree with the approach of those authorities. As a matter of statutory construction there can be no doubt that a review under the Police Act is akin to unfair dismissal proceedings under the Industrial Relations Act (subject to limited modifications). Contrary to his Honour's conclusions a review has as its legislative underpinning proceedings under Division 6, Part 2 of the Industrial Relations Act relating to unfair dismissals. The language of s181G(1) of the Police Act unambiguously states that the provisions of the Industrial Relations Act apply to an application for review in the same way as they apply to an application relating to an unfair dismissal under Part 6 Chapter 2 of the Industrial Relations Act subject only to the modifications denoted. Those modifications have no material impact upon the considerations applicable in this matter (and in any event are quite confined). Further, those modifications do not detract in any fundamental sense from what we see is the overriding intention and purpose of s181G, that is, as expressed by the Full Bench in Newton (No 2) to which we have earlier referred. We concur with and reaffirm the view expressed on that occasion (at 80) as follows: The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. Relevant to the matter of concern raised by Mr Hendy is the limitation placed upon the introduction of new evidence by s 181G(1)(f) and (2); the protection thereby afforded to a dismissed police officer is manifest.

It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply. 27 In considering whether Mr Evans' removal was 'harsh, unreasonable or unjust', Boland J applied the approach taken by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233. That was to give consideration to 'whether or not termination was too severe a penalty in all the circumstances' and whether, 'because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.' 28 Boland J noted that having viewed the video, he disagreed with the Police Commissioner's assessment of the facts in one respect - namely he did not agree that Mr Evans had kicked Mr Gleeson, but concluded that:

The Commissioner was wrong in this regard and to the extent he was, it weakens the strength of the case for removal against Mr Evans but not, I must say, in a material way. The assault, on any view of it, was serious.

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:

48 All that can reasonably be concluded from these examples is that not all police officers that have committed assault have been removed from the Police. That is, there has not been any hard and fast rule that if an officer commits assault he or she will automatically be removed. Rather, it would appear the relevant Police Commissioner at the time has been prepared to consider the individual circumstances of the case and to exercise his discretion not to remove an officer if satisfied there were, for want of a better term, extenuating circumstances. This is as it should be.

33 Boland J considered that there were two significant hurdles facing Mr Evans in the case he advanced - the fact that the assault constituted serious misconduct and that the Court was required to have regard to the public interest, which 'is to be 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).' (at [49]) His Honour also accepted that it 'would not be consistent with any requirement to maintain the integrity of NSW Police to in any way condone the sort of conduct engaged in by Mr Evans on 6 December 2003.' 34 Boland J also concluded that Mr Evans' removal was 'harsh in its consequences for his personal and economic situation: Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; Wells v Commissioner of Police (2000) 100 IR 106 at 118' and 'too harsh a sanction' having regard to 'the nature and degree of what was an aberrant act that will never be repeated in my opinion.' (at [51]). Boland J took the view that it would not be impracticable to reinstate Mr Evans on the evidence before him and concluded at [53]:

53 Section 89(8) of the Industrial Relations Act gives the Commission power to make an order under the section on such terms and conditions as the Commission determines. I propose to order that from the date of this decision he will return to the Police at the rank of Senior Constable Level 1, Step 1. For a period of six months after the date of this decision Mr Evans shall be subject to an appraisal of his performance in accordance with the usual method or program applying to such appraisals. Provided his performance is satisfactory, Mr Evans shall be reinstated to the rank of Leading Senior Constable from a date six months after the date of this decision on terms not less favourable than those that would have applied to him if he had not been removed from the Police Service. Mr Evans shall not be entitled to any payment for the period from 24 February 2005 to the date of this decision.

35 The sections of the Police Act relevant to what here arises for consideration provide:

(1) The Commissioner may, by order in writing, remove a police officer from NSW Police if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.

(2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister.

(3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and

(b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and

(c) must take into consideration any written submissions received from the police officer during that period.

(4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from NSW Police.

(5) The removal takes effect when the order is made.

(a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and

(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission.

(7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.

(7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from NSW Police under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from NSW Police.

(9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action.

(1) A police officer who is removed from NSW Police by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission ) for a review of the order on the ground that the removal is harsh, unreasonable or unjust.

(2) An application under this section does not operate to stay the operation of the order in respect of which it is made.

(3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 181F Proceedings on a review

(1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from NSW Police,

(b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust,

(c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case.

(2) The applicant has at all times the burden of establishing that the removal of the applicant from NSW Police is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.

(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and

(b) the public interest (which is taken to include the interest of maintaining the integrity of NSW Police, and the fact that the Commissioner made the order pursuant to section 181D (1)).

181G Application of Industrial Relations Act 1996 to reviews

(1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications:

(a) section 83 (Application of Part) is to be read as if subsection (3) were omitted,

(b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and

(ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review,

(d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted,

(e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made,

(f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or

(2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information,

(b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously,

(c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision.

181J Application of Division to both reviews and appeals from review decisions

This Division applies not only to proceedings before the Commission on a review under this Division but also to proceedings before the Full Bench of the Commission on an appeal from a decision of the Commission under this Division.

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

'So far as practicable, the employees to be given back his 'job' at the same place and with the same duties, remuneration and working conditions as existed before the termination.'(McHugh J at [14]) 'The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante.' (Kirby J [34]) 47 The High Court in Blackadder was considering an order made under s 170C(3) of the Workplace Relations Act, which provided:

"(3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by: (a) reappointing the employee to the position in which the employee was employed immediately before the termination.

(b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination." 48 Section 89 of the Act is in relevantly different terms:

(1) The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.

(2) If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (8) An order under this section may be made on such terms and conditions as the Commission determines. 49 In accordance with the powers granted under s 89, Boland J ordered Mr Evans' reinstatement to his former position prospectively - on a date six months after the judgment, in May 2006. That order was conditional upon him, in the meantime, returning to the Police Service as a constable and being subjected to an assessment of his performance. 50 By way of contrast, the orders in question in Blackadder were:

1. The applicant shall be reinstated to the position in which he was employed prior to the termination of his employment without loss of continuity of service or entitlements within 21 days from the date of this decision.

2. 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]:

I have considered each limb of the tripartite test as to whether Mr Evans' removal was harsh, unreasonable or unjust. In taking into account all of the relevant considerations I have identified in this decision, and in striking what I consider to be a proper balance between the competing interests embodied in s 181F(3) of the Police Act , I have concluded, not without some reservation, the removal of Mr Evans from NSW Police was harsh in its consequences for his personal and economic situation: Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; Wells v Commissioner of Police (2000) 100 IR 106 at 118. If the removal was to stand I consider that Mr Evans' future life and that of his family would be severely affected. Removal in those circumstances, having regard to the nature and degree of what was an aberrant act that will never be repeated in my opinion, would be too harsh a sanction.

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.

Consideration 71 The review provided for in s 181E of the Police Act is of a decision made by the Police Commissioner under s 181D, that he 'does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.' 72 Section 181F(1) requires that in conducting that review, the Court, 'must proceed', in a particular way:

(a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from NSW Police,

(b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust,

(c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. 73 Section 181F(3) requires that as well as taking account of other matters which it may have regard to, the Court 'must have regard to':

(b) 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)).' 74 This obligation is in addition to those which ordinarily fall upon the Commission under s 146(2) of the Act, when considering unfair dismissal applications brought under Part 6 Chapter 2, to have regard to the public interest. There it is provided that the Commission is to have regard to:

(b) the state of the economy of New South Wales and the likely effect of its decisions on that economy

75 It is in this way that the hearing of applications under Part 6 Chapter 2 of the Act have been modified by s 181F of the Police Act - both in terms of the process which must be adopted at the hearing and the matters to which regard must be had, in determining whether the removal in question was harsh, unfair and unjust. While it was observed in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [67] that the requirement as to process does not alter the usual procedure adopted in a way which is 'of great significance', it is nevertheless an alteration which must be observed, given the requirements of s 181F(1). (See Newton v NSW Police Service (1999) 87 IR 66 at 79). 76 So too must the modifications which the requirements of s 181D(3) introduce be observed. In coming to a conclusion that a removal under s 181D was harsh, unreasonable or unjust, both the interests of the applicant and the interests of the public must be weighed by the Court. While those interests are not necessarily incompatible, that the exercise is undertaken is a matter of no small moment in proceedings brought under s 181E. As Walton J observed in Starr v Commissioner of Police (2001) NSWIRComm 226 at [339]:

The public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so: see Van Huisstede at 110. Although s181E(3) does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer, the effect of the section is to direct the Commission's attention to the important public interest in ensuring that unsuitable or incompetent officers are not permitted to remain in the Police Service.

77 In my view, so understood, it becomes clear that Boland J erred in the approach adopted at first instance. His Honour's judgment makes clear that he had not overlooked the Commissioner's reasons for removing Mr Evans, in the conclusion which he reached, however the judgment does not explain why the public interest in the maintenance of the integrity of the Police Service in a case where a police officer has been convicted of a serious criminal offence, was in this case outweighed by the personally harsh consequences for that police officer, of his resulting removal, so as to make available the conclusion that it was harsh, in the statutory sense, as s 181E provides. Section 181F(3) requires that both factors be weighed in coming to such a conclusion. As earlier noted, His Honour explained the view he had come to in this way:

[51] In taking into account all of the relevant considerations I have identified in this decision, and in striking what I consider to be a proper balance between the competing interests embodied in s 181F(3) of the Police Act , I have concluded, not without some reservation, the removal of Mr Evans from NSW Police was harsh in its consequences for his personal and economic situation: Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; Wells v Commissioner of Police (2000) 100 IR 106 at 118. If the removal was to stand I consider that Mr Evans' future life and that of his family would be severely affected. Removal in those circumstances, having regard to the nature and degree of what was an aberrant act that will never be repeated in my opinion, would be too harsh a sanction. 78 Boland J failed, however, to explain how it was that 'the competing interests' embodied in s 181F(3) were resolved by the conclusion that that the removal was harsh for Mr Evans' personal and economic situation. How the public interest in the maintenance of integrity in the Police Service, had featured in that conclusion, was not explained. Section 181F(3) required that this be explained. 79 His Honour's earlier findings were entirely supportive of the Police Commissioner's reasons for removal. It had been concluded that the assault in company, of which Mr Evans had been convicted, involved conduct which could not be condoned; which involved the behaviour of a 'thug'; which amounted to serious misconduct; and which understandably caused the Police Commissioner to lose confidence in Mr Evans as a result. 80 His Honour had also earlier noted that the fact that the assault amounted to serious misconduct and the need to take account of the public interest, provided two significant hurdles for Mr Evans' pursuit of reinstatement. How those hurdles were overcome, was not explained. 81 In Little, the Full Court explained at [69], that given the requirements of s 181F(3):

... any exclusion of consideration of the consequences of a removal (even if prima facie the decision was in some way said to be 'justified') is erroneous as such an approach would effectively remove from consideration essential aspects of the statutory tripartite test, such as, whether the removal was, in all the circumstances 'harsh'.

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:

... it remains for the Full Court to determine whether Hill J had erred in his findings of fact as to complicity in pilfering. If those things were upheld it would be very difficult to see how the dismissal of the appellants could be regarded as harsh, unjust, or unreasonable.

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.

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.'

93 Boland J noted the difficulty he had in reaching the conclusion that reinstatement should be ordered in this case. That difficulty also throws light on the importance of a trial judge explaining how the two aspects of s 181F(3) were considered on the evidence in the particular case. I am satisfied that in this case, when considered in the way the section requires, that the evidence cannot result in a conclusion favourable to Mr Evans. 94 This result follows not simply from a member of an appeal bench taking a different view of the facts than the trial judge, but rather from my view that there was a failure by the trial judge to weigh the evidence in the manner required by the applicable legislative scheme. When that exercise is undertaken and the public interest, as well as the interests of Mr Evans, are balanced, as s 181F(3) requires, it is inescapable that the conclusion that the dismissal was harsh in the sense provided in s 181E, was not available. The trial judge's findings as to the serious nature of this misconduct, in the context of the Police Service and the public interest in the maintenance of its integrity, make that the conclusion unavoidable, notwithstanding Mr Evans' resulting personal circumstances. In this case, Mr Evans' undoubted interest in the maintenance of his former position in the Police Service, given his personal circumstances, cannot outweigh the public interest in ensuring that a police officer in whom the Police Commissioner has lost confidence, because of the serious criminal offence here in question, of which the officer was rightly convicted, is not reinstated to the Police Service. Orders

95 For all of the reasons given, I would grant leave to appeal, would uphold the appeal; would set aside the decision of Boland J and would quash the orders made. JUDGMENT OF STAFF J

96 I have read the draft judgments of Walton J, Acting President and Schmidt J. I agree with the judgment and proposed orders of Walton J.

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