Commissioner of Police v Fordyce

The Decision

1. To comprehend the basis on which the Application is brought, we reproduce the following extracts from the Decision: "Submissions 46. The applicant's case was two-fold. The first was that it was improbable and inherently unlikely that the Alleged Conduct occurred. 47. In support of this submission the applicant relied on the decision of Deputy President Sams, in Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police [2009] NSWIRComm 51… 48. In support of this submission, the applicant pointed to his evidence concerning the absence of a reason to wipe down the screwdriver as well as the multitude of 'character references' that were annexed to his witness statement, the location in which the Alleged Conduct occurred and not wiping the obvious part of the screwdriver, being the handle. 49. The second part of the applicant's case, is that the evidence, including that adduced by way of cross examination is insufficient to form a proper basis on which to support the finding that the Alleged Conduct occurred. 50. Further, it was submitted by the applicant that the evidence before Ms Cook was limited to interview responses extracted from two fellow officers who provide inexact, inconsistent and uncorroborated accounts of virtually every facet of the events. 51. As to the question of public interest, the applicant submitted that it is in the public interest that the Force properly investigate and identify disciplinary issues. 52. The respondent's primary submission was that the applicant in failing to call a further witness or some other form of objective evidence to support his denial of the Alleged Conduct had failed to meet his onus and thus the application fails. In the alternative, the respondent put that if the onus had shifted then the Commission would accept the evidence advanced on her behalf that the Alleged Conduct occurred and the application should be dismissed. 53. As to the issue about inconsistent evidence the following submission was made: Now, there's been much made about the inconsistencies in the case. One also suggests that if there was only consistencies, that is each of the officers gave the exact same evidence, there might be a suggestion that they were colluding or there is collusion. Commissioner, you would treat the inconsistencies in the favour of the respondent in that these witnesses have been genuine and have been honest about what they did see and what they didn't see. That is, they've not made up things that they haven't seen to simply help their employer or help their own employment. If they didn't see it, they didn't see it and they didn't hear it. 54. Apart from submitting that the Commission should give no weight to the 'character references', the respondent did not address the applicant's submission regarding implausibility. 55. As to public interest, it was submitted that it operates adversely to the interests of the Applicant and that the public interest encapsulates the notion that the organisational integrity of the NSWPF must be preserved, and future misconduct must be deterred. Decision 56. In relation to the submission of the applicant concerning implausibility, I do not consider that the 'character references' of any assistance [sic]. However, I do accept that the applicant has made out that it is completely implausible that the Alleged Conduct occurred given: (1) the absence of any cogent reason for the applicant to undertake the Alleged Conduct; (2) the Alleged Conduct involved the wiping the metal part of the screwdriver and not the handle of the screwdriver, which is logically the part of the screwdriver that fingerprints and DNA would be on; and (3) undertaking conduct, that could form the basis of a criminal charge, in an open area of a police station. 57. As to the material relied upon by Ms Cook in determining to make the Order, being the records of interview of Ms Logue and Mr Johnstone, are [sic] inexact and inconsistent and as such do not provide a proper basis for the making of the Order. 58. Additionally, the evidence of Ms Logue, following cross examination is so imprecise that I give it very little weight, other than she sees at some point a white piece of paper in the applicant's hand and at another point in time a shiny implement. In reaching this conclusion, I note that it was Ms Logue's first shift and there was no reason for her to pay any attention to what the applicant was doing. 59. This leaves the Commission to consider the evidence of the applicant and Mr Johnstone, which are [sic] at odds. I accept the submissions of both parties that I do not need to form a view as to whether the either [sic] person is being untruthful, rather it is an exercise of determining whether I am satisfied to the necessary standard or not. 60. I am not satisfied that the evidence of Mr Johnstone on its' [sic] own, is such that I am persuaded that the Alleged Conduct occurred, particularly given the implausibility of the Alleged Conduct occurring. 61. Finally, I do find that the public interest favours the revoking of the Order for the reason articulated by the applicant in his submission referred to above. 62. I am satisfied that the applicant has met his onus by casting sufficient doubt on the reasoning process of Ms Cook, and as such the Order is unreasonable or unjust. 63. For the reasons set out above I make the following order: (1) An order pursuant to s 177(1)(a) of the Police Act 1990 (NSW) that the order made by the Commissioner of Police, through his delegate, on 27 October 2021 under s 173(2) of the Police Act 1990 (NSW) is revoked."

The Application

1. The grounds on which the Police Commissioner relies in applying for leave to appeal and, if leave is granted, to appeal the Decision are set out in the Application as follows: "G. The reasons why leave to appeal should be granted are: 1. the Decision is attended by sufficient error of fact and law so as to warrant a grant of leave; 2. the public importance in the need to settle the law with respect to the onus in proceedings brought under s 174 of the Police Act at the appellate level; and 3. the public importance in the need to settle the law with respect to any public interest requirement for the Appellant to conduct an investigation prior to issuing an order under s 173(2) of the Police Act, having regard to ss 171(2) and 173(4) of the Police Act. H. The grounds of the appeal are: 1. the Commission has erred in finding that the Respondent had cast sufficient doubt on the Appellant's reasoning in issuing the s 173 Order so as to discharge his burden of proof under s 175(2) by merely denying the conduct, making submissions about the implausibility of his conduct and attacking the credit of the Appellant's witnesses; 2. the Commission erred, at Decision [51] and [61], by finding the public interest requires the proper investigation of disciplinary issues and was in favour of revocation of the s 173 Order; 3. the Commission erred in failing to have sufficient regard to the fact of the s 173 Order; 4. the Commission has erred in finding that the public interest required proper investigation before the s 173 Order was issued, in circumstances where it is the Commission's task to conduct a fresh and independent review of the s 173 Order and to determine, on the basis of that review, whether the s 173 Order was harsh, unjust, unreasonable and/or beyond power; 5. the Commission erred in not finding that s 175(4)(b) of the Police Act only applies where it is adverse to the interests to the police officer: see Commissioner of Police v Eaton (2013) HCA 2; 252 CLR 1 at [27] in relation to s 181F(3)(b) of the Police Act; 6. the Commission has erred in finding at Decision [56], that the Alleged Conduct was implausible; and 7. the Commission has erred, at Decision [59] and [60], by effectively casting the onus on the Appellant contrary to s 175(2) of the Police Act to 'persuade' the Commission that the Alleged Conduct occurred."

Leave to appeal

1. In support of her application for leave to appeal, the Police Commissioner made the following submissions: 1. appeal grounds 1, 6 and 7 raise the following important points of law and principle: 1. whether an applicant may cast sufficient doubt on an order made pursuant to s 173 of the Police Act by way of a denial of the alleged conduct, and/or submissions about the implausibility of the alleged conduct, and/or attacking the credit of witnesses relied on by the Police Commissioner; and 2. whether the reasoning in Commissioner of Police, New South Wales Police Force v Zisopoulos (2020) 299 IR 314; [2020] NSWCA 236 ("Zisopoulos") at [84] has application in proceedings under s 174 of the Police Act; 1. appeal ground 2 raises an important point of law and principle in respect to the relevance of any investigation conducted into alleged conduct prior to the commencement of the statutory processes prescribed in s 173(5) of the Police Act; and 2. appeal grounds 3, 4 and 5 raise an important jurisdictional question about s 175(4)(b) of the Police Act. On the reasoning in Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 ("Eaton"), this is a "mandatory provision". Absent the Commission stating in the Decision that it had regard to the public interest as being adverse to an applicant, there is a question as to whether the Commission has complied with this jurisdictional requirement in conducting the review.
2. We have determined to grant leave to appeal. Grounds 1 and 7 of the appeal raise questions as to the approach that the Commission is to take to proceedings under s 174 of the Police Act. These include, in particular, the approach to the evaluation of evidence led in such proceedings in the context of the onus of proof under s 175(2). Although ground 6 challenges a particular finding, it should be considered in the context of the matters arising under grounds 1 and 7.
3. Grounds 2, 4 and 5 give rise to the following questions: 1. Does the reasoning of the High Court in Eaton, and in particular the observations of Heydon J at [27], have the effect that, when considering the public interest as required by s 175(4)(b) of the Police Act, the Commission may only have regard to matters that operate adversely to an applicant? 2. If so, did Commissioner O'Sullivan err by finding that the public interest requires the proper investigation of disciplinary issues, as this was not a matter adverse to the interests of Senior Constable Fordyce? 3. Even if Eaton does not have the effect for which the Police Commissioner contends, is the investigation process undertaken (or not undertaken) by the Police Commissioner a relevant consideration for the purposes of a review under s 174 of the Police Act?
4. Ground 3 raises the question as to what is required for the Commission to demonstrate that, in having regard to the public interest, it has taken into account "the fact that the [Police] Commissioner made the order pursuant to section 173".
5. The questions identified at [22]-[24] above each "raise substantial issues of law and principle, and have implications for the wider jurisprudence of the Commission", to adopt the language of Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association.
6. Further, we have determined that the Decision is affected by appellable errors identified in these grounds. Correcting such errors is both in the public interest and a matter "going to the proper administration of justice": Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409 at [5].

Consideration

1. The seven appeal grounds on which the Police Commissioner relies can broadly be broken into two categories. Grounds 1, 6 and 7 challenge the bases on which Commissioner O'Sullivan found that Senior Constable Fordyce had not engaged in the misconduct alleged against him. Grounds 2, 3, 4 and 5 contend that the Commissioner did not apply, or misapplied, the requirement in s 175(4)(b) of the Police Act that in determining an application for review the Commission have regard to the public interest.
2. As it will be necessary to make repeated references to the provision, it is convenient to reproduce here s 175 of the Police Act, which is relevantly in these terms: 175 Proceedings on a review … (2) The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) In determining the applicant's claim, the Commission may take into account such matters as it considers relevant. (4) 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 fact that the Commissioner made the order pursuant to section 173).

Grounds 1 and 7

1. The Police Commissioner addressed grounds 1 and 7 together. She submitted that Commissioner O'Sullivan misstated and misapplied the onus of proof applicable in proceedings brought under s 174 of the Police Act. The submissions advanced by the Police Commissioner in support of these grounds can be distilled to several propositions.

First proposition - whether proceedings must be conducted in "two separate stages"

1. The first proposition arises from the observations of Commissioner O'Sullivan at [15] of the Decision, in which he stated that the onus of proof on an applicant "can be met by raising sufficient doubt in the factual basis upon which the decision maker based the decision, which can be achieved through cross examination of the respondent's witnesses and by way of submissions". The Police Commissioner contends that this misstated the correct approach and "conflated two separate stages". That is: 1. an applicant must first cast sufficient doubt on the reasoning process of the Police Commissioner based on the strength of their own evidence and/or by presenting a credible alternative hypothesis; and 2. only after the applicant has done so is the evidence of the Police Commissioner, including the credit of her witnesses at the hearing, to be considered.
2. For the reasons which follow, we do not accept the Police Commissioner's contention.
3. The premise of the Police Commissioner's position, as she submitted at the hearing of the appeal, is that "the case law makes clear…that there is a difference between legal onus and evidentiary burden. They need to be treated differently." In support of this contention the Police Commissioner relied on a number of authorities which considered the onus on an applicant in the context of s 181F(2) of the Police Act, with particular emphasis on Tredinnick v Commissioner of Police [2016] NSWIRComm 14 ("Tredinnick") and Zisopoulos.
4. The Police Commissioner referred to the following passages from the judgment of Bell P (as his Honour then was) in Zisopoulos: "83. Depending upon the basis of the Police Commissioner's decision, as the Full Bench said at [27] citing Starr, the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust may be satisfied in a given case by casting sufficient doubt on the Police Commissioner's reasoning process so as to justify the IRC's intervention. But it is important always to remember that 'sufficient doubt' is not 'any doubt', and the raising of a doubt, sufficient or otherwise, does not in any way alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. So also, the mere 'going into evidence' by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that a removal was harsh, unreasonable or unjust nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner's original decision and of the strength of the evidence led by the removed officer and or the credibility of the alternative hypothesis. 84. If what the Full Bench in the present case referred to as 'sufficient doubt' is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust."
5. The Police Commissioner also drew our attention to the following passage from Commissioner of Police v Platts [2021] NSWIRComm 1021 ("Platts"): "72. The correct approach, under s 181F(1)(b) requires the Commission, after considering the Statement of Reasons pursuant to s 181F(1)(a), to consider the case by the applicant for review (the respondent to the appeal) and determine whether he has met his onus to establish that the dismissal was harsh, unjust, or unreasonable. This may require the evaluation of the evidentiary cases of both parties but the legal onus remains always with the applicant (respondent here) to establish their case that the order was unfair at all times. The burden never shifts to the respondent. The respondent (appellant here) may evaluate that he has no case to answer with respect to the applicant's case and adduce no evidence to answer it. It will only become necessary for the respondent to do so if sufficient doubt is cast upon the Statement of Reasons by the applicant for review. If the applicant for review has raised sufficient doubt then the Commission must consider the case of the appellant in reply, but this may occur in the context of evaluating all of the evidence against the applicant for review's case why the order is unfair."
6. The Police Commissioner submitted that in this passage the Full Bench recognised "that the application of the onus under s 181F(1)(b) (the analogue to s 175(2)) involved, in practical terms, an evaluation of the applicant's evidentiary case first to determine whether the appellant has cast sufficient doubt to place a tactical burden on the Commissioner of Police to adduce evidence to rebut the case".
7. The Police Commissioner submitted that the jurisprudence of the Commission "makes [it] clear that the approach adopted in proceedings brought under s 181E of the Police Act will also be adopted in applications brought under s 174", citing Writer v Commissioner of Police (No 2) [2021] NSWIRComm 1023 ("Writer") at [32]. We do not regard Writer as authority for that proposition. That case goes no further than to say (at [32(1)]) that in determining the approach to take the cases arising under s 174, decisions of the Commission in proceedings under s 181E "are of assistance". The approach to be taken by the Commission must be determined by the terms of the legislation.
8. In broad outline, s 173 of the Police Act permits the Police Commissioner to take "reviewable" or "non-reviewable" action against a police officer who is found to have engaged in misconduct or whose performance is unsatisfactory. A police officer who is subject to an order for reviewable action under s 173 may apply to the Commission for a review of that order under s 174 on the basis that it is beyond power, or harsh, unreasonable or unjust. Part 9 Division 1A of the Police Act ("Division 1A"), which includes s 174, relates to such applications.
9. Section 181D of the Police Act empowers the Police Commissioner to order the removal of a police officer from the NSW Police Force. Section 181E provides that a police officer who is subject to such an order may apply to the Commission for a review of the order on the basis that it is harsh, unreasonable or unjust. Part 9 Division 1C of the Police Act ("Division 1C"), which includes s 181E, relates to such applications.
10. There are significant differences between the provisions of Division 1A and those of Division 1C. These differences argue against the terms of the former being construed as having the effect for which the Police Commissioner contends.
11. In relation to Division 1A, s 175(3) of the Police Act permits the Commission to "take into account such matters as it considers relevant" in determining a claim. Section 178(1) of the Police Act, which finds a close counterpart in s 163(1) of the Industrial Relations Act, provides that the Commission is not bound to act in a formal manner, is not bound by the rules of evidence, may inform itself on any matter in any way that it considers to be just, and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
12. By contrast, proceedings under s 181E are subject to s 181F, which provides as follows: 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 the NSW Police Force, (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 the NSW Police Force 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 the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)).
13. Section 181G(1)(f) modifies the operation of s 163 of the Industrial Relations Act in relation to proceedings under s 181E so as to provide that new evidence may not be adduced before the Commission unless a party has given notice of its intention to lead such evidence, or the Commission grants leave.
14. It is apparent that Division 1C imposes a rigidity on the conduct of proceedings under s 181E that is not to be found in the terms of Division 1A. The Police Commissioner submitted that the combined effect of ss 173, 174 and 175 results, in practical terms, in the same sequence for which s 181F(1) provides. As a matter of statutory construction, we have difficulty in inferring such a legislative intention, given that the legislature could have but did not include a counterpart to s 181F(1) in Division 1A.
15. Further, it is difficult to reconcile the Police Commissioner's submission that the Commission may only take into account an applicant's evidence unless and until it forms a view that sufficient doubt has been cast on the reasoning of the Police Commissioner for making an order, with the broad discretion conferred on the Commission by s 175(3) to take into account such matters as it considers relevant.
16. We also do not consider that the authorities on which the Police Commissioner relies support her contention. Each of Tredinnick, Zisopoulos and Platts explored the application of the onus in s 181F(2) of the Police Act, which provides that an applicant "has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust". The observations of the President in Zisopoulos at [83]-[84], reproduced at [33] above, followed a discussion in which his Honour canvassed the distinction between a legal onus and a "tactical onus" (see in particular [61], [68] and [69]). That distinction was also recognised in Tredinnick (at [73] and [76]) and in the passage in Platts reproduced at [34] above.
17. In Zisopoulos, Macfarlan JA, who was in agreement with the President, described the "tactical onus" as being "a practical burden to adduce further evidence because the other party has produced enough evidence to win if that does not occur" (at [96]). However, his Honour went on to observe: "97. As stated in J D Heydon, Cross on Evidence (online ed, March 2020, LexisNexis Australia) at [7210] this type of burden is 'devoid of legal significance because there is no means of telling when it has been brought into existence or when it has been discharged'. This is because those conducting a case will not know whilst the case is in progress what the judicial officer is thinking about who will win if no further evidence is adduced. There is good reason therefore to avoid reference to the concept during a hearing. If reference is to be made to it in a judgment describing, in retrospect, the course that the hearing took, a name, such as 'tactical onus', should be used to preclude ambiguity."
18. At the hearing of the appeal, Senior Constable Fordyce submitted that this passage revealed that the concept of a "tactical onus" is: "not a very useful concept in any practical respect, because the tribunal member or judicial officer is not under any obligation to provide some running commentary as to what they're thinking about the case. It's up to the parties to make forensic judgments about how they conduct litigation of this type, and the onus doesn't change that provision."
19. The onus imposed on an applicant by s 175(2) is to prove that the relevant order was beyond power, or harsh, unreasonable or unjust. Once the applicant has put on their evidence and submissions, the Police Commissioner must make a forensic decision as to whether there is a case to answer. That is, to adopt the language of Macfarlan JA, has the applicant produced sufficient evidence to win if the Police Commissioner does not respond to their case? It is this forensic decision that is reflected in the adjectives "tactical", "practical" and "evidentiary" that qualifies the onus or burden which the authorities identify might come to repose on the Police Commissioner.
20. The authorities do not support the proposition that, in the context of proceedings under s 174, the Commission must draw a hard and fast distinction between any "tactical onus" and the legal one, and positively determine that the first has arisen before proceeding to determine the second.
21. The Police Commissioner drew our attention to the following passage in Platts: "74. The Commissioner then erred in effectively determining the matter on the basis that the appellant bore the evidentiary onus to disprove the respondent's version of events, rather than pausing at that point to determine whether the respondent had established sufficient doubt to justify his intervention: Zisopoulos No 3 at [84], and then if he was satisfied sufficient doubt existed to require his intervention, considering the appellant's case in answer to the respondent's case."
22. The Police Commissioner relied on the use by the Full Bench of the word "pausing" to indicate that a sequential approach is necessary in proceedings commenced under s 181E and s 174. To our mind, the Full Bench, in Platts, was doing no more than reflecting the order in which proceedings under s 181E are to be conducted, as mandated by s 181F(1). For the reasons we have already canvassed, care must be taken to avoid slavishly or blindly applying principles from cases arising under Division 1 C with those under Division 1A.
23. In the proceedings below, the Police Commissioner made the decision to lead evidence and make submissions in response to Senior Constable Fordyce's case. Having done so, her case was open to be tested, including through cross-examination of her witnesses. It was entirely appropriate for Commissioner O'Sullivan to have regard to that evidence in determining whether the Order was harsh, unreasonable or unjust.
24. In Platts at [72] (reproduced at [34] above), the Full Bench stated that the determination as to whether an applicant has met their onus to establish that their dismissal was harsh, unjust, or unreasonable "may require the evaluation of the evidentiary cases of both parties", noting that the legal onus remains always with the applicant. That is, once the Police Commissioner has made the tactical decision to go into evidence, her evidence is available to be evaluated in determining whether an order is harsh, unreasonable or unjust.
25. For these reasons, we accept the following submissions advanced by Senior Constable Fordyce at the hearing: "It is important that the burden attaches to that question, the ultimate question: was the order harsh, unjust or unreasonable? If at the end of the case, having considered the evidence before it, the Commission is not positively persuaded that that is the proper conclusion to be reached, then the applicant is unsuccessful. That is the effect of the onus provision, not that the Commission in some artificial way segregates and looks at, having heard all of the evidence, only that part of the evidence led by the applicant, closes its mind to anything else it's heard over the four days of hearing that has occurred in this matter and considers only that evidence, and if it is not satisfied there is sufficient doubt cast upon the reasoning, dismiss the matter. It is that at the end of the day, the applicant is at the risk of the Commission not being persuaded of the ultimate outcome."
26. Commissioner O'Sullivan's observation at [15] of the Decision must, in context, be read as referring to the legal onus on Senior Constable Fordyce. On that basis, and for the reasons set out above, we do not consider that there is any error in the Commissioner's statement in that paragraph.

Second proposition - the case presented by Senior Constable Fordyce did not shift the evidentiary burden

1. This leads to the Police Commissioner's second proposition, namely that the case advanced by Senior Constable Fordyce amounted to no more than a "bald denial and presenting an alternative hypothesis (i.e. that he had no motive and would not be foolish enough to engage in the misconduct in an open area where his misconduct would be witnessed)". The Police Commissioner submitted this was "insufficient to shift the evidentiary burden" and that "a bald denial and a mere attack on the credit of the Appellant's key witnesses cannot be used to create sufficient doubt to shift the evidentiary burden onto the appellant".
2. For the reasons set out above, this is to some extent an academic question. It was for the Police Commissioner to determine whether an "evidentiary burden" rested on her, and she made the decision to go into evidence and submissions.
3. In any event, the contention advanced by the Police Commissioner does not accurately reflect the case led by Senior Constable Fordyce. He contended that he had "denied the conduct, submitted that (for a range of reasons) the allegations were improbable and implausible, that the accounts relied upon by Superintendent Cook were inconsistent and unreliable, that other evidence did not support the allegation, including that other officers who were present did not observe the alleged conduct, and that he had a record of good conduct which did not suggest he was likely to engage the conduct [sic] as alleged".
4. We accept these submissions. The case as summarised in them is reflected in Senior Constable Fordyce's response of 12 February 2021 to the Investigator's Report (noting that the allegation against him was couched in different terms to that appearing in the Order), in his response of 31 August 2021 to the Notice and in his evidence in the proceedings below.
5. We are satisfied that Senior Constable Fordyce has denied the allegation against him since he was first interviewed on 3 December 2020. This denial was more than a "bald" one. He contextualised his denial by reference to the evidence, including the circumstances in which the alleged conduct was said to have taken place. In his evidence in the proceedings below, he provided his own version of the events of the shifts in question, including his recollections as to how he had come to "book" the screwdriver as an exhibit. The broader factual context formed the basis of his "alternative hypothesis", namely the implausibility of him having engaged in that conduct. The cross-examination of the Police Commissioner's witnesses was more than a "mere attack" on their credit, rather it went to testing the evidence which formed the basis of Superintendent Cook's finding that Senior Constable Fordyce had engaged in the conduct alleged against him.
6. By way of example, under cross-examination Constable Logue was challenged on her recollection of the events of 14 October 2020. She could not confirm that Senior Constable Fordyce had been holding a screwdriver, but only that he was holding a silver implement. She stated that it was probable that Senior Constable Fordyce had not applied hand sanitiser to that implement, but that another "wet substance" was used, most likely water, before conceding that she had no idea what the substance was. She stated that it was probable that Senior Constable Fordyce could have been cleaning his hands and holding something metallic. She conceded that she could not say with any great certainty what she had seen Senior Constable Fordyce doing with the implement in his hands.
7. These are more than "mere attacks" on Constable Logue's credit. Her evidence under cross-examination goes to the key facts underpinning the allegation against Senior Constable Fordyce.
8. The case Senior Constable Fordyce presented in the proceedings below provided a sufficient basis to cast doubt on the basis of the Order.

Third proposition - failure to conduct a fresh and independent review

1. The third proposition to be derived from the Police Commissioner's submissions is that Commissioner O'Sullivan failed to conduct a fresh and independent review of the Order. Distilled to their essence, the Police Commissioner's submissions contend that the Commissioner erroneously confined his consideration to the Order, and the factual basis for the Order, without having regard to all of the evidence before him. For the reasons which follow, we accept these submissions.
2. At [57] of the Decision, Commissioner O'Sullivan identified the "material relied upon by Ms Cook in determining to make the Order" as being "the records of interview of Ms Logue and Mr Johnstone". His analysis of the evidence before him was confined to those witnesses, and how their evidence compared with that of Senior Constable Fordyce. He concluded (again at [57]) that the evidence of Senior Constable Johnstone and Constable Logue was "inexact and inconsistent" and did not provide a proper basis for the making of the Order. At [58] the Commissioner determined that the evidence of Constable Logue was to be given "very little weight". At [60] he stated that he was not satisfied, on the evidence of Senior Constable Johnstone "on its own", that he was persuaded that the alleged conduct occurred. (Although not entirely clear on the face of the paragraph, we take this to be a finding that Senior Constable Fordyce did not engage in the misconduct.) This led to the Commissioner concluding at [62] of the Decision that Senior Constable Fordyce had "met his onus by casting sufficient doubt on the reasoning process of Ms Cook, and as such the Order is unreasonable or unjust".
3. The Police Commissioner contended that Commissioner O'Sullivan erred by confining himself to the terms of the Order and the evidence of Senior Constable Johnston, Constable Logue and Senior Constable Fordyce. She submitted (albeit in respect of ground 6): "61. In any event, the Commissioner is not limited to the Order in determining whether the reviewable action order was harsh, unjust or unreasonable based on a fresh and independent review. The Commissioner must consider the case advanced at trial by the parties."
4. In Writer, Commissioner Sloan observed: "32. The jurisprudence of the Commission in proceedings under Pt 9 Div 1A has been developed in a number of cases. The following principles can be distilled from those authorities: … (2) The Commission's review is not 'de novo', but is closer to a merits review than judicial review: Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 ('Zisopoulos') at [83] (Bell P). (3) The correct approach is that the Commission is to make a fresh and independent review of the decision itself, based on the material before the Commissioner as well as any new evidence admitted: Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253 ('Hosemans') at [134]. (4) Part 9 of the Police Act contemplates that the Commission will assess allegations of misconduct or unsatisfactory performance and determine if those allegations are properly based, and then determine if those matters justify the relevant reviewable orders: A (a pseudonym) v Commissioner of Police at [45]. …"
5. The premise of the conclusion expressed by Commissioner O'Sullivan at [62] of the Decision is that the Order was "unreasonable or unjust" because Senior Constable Fordyce had cast "sufficient doubt" on the reasoning process of Superintendent Cook. This misapprehended the task before the Commissioner. By confining himself to what he considered to be the reasoning process of Superintendent Cook, Commissioner O'Sullivan failed to undertake "a fresh and independent review" of the Order.
6. Further, in the context of the Decision and coming immediately before Commissioner O'Sullivan's order, the reference in [62] of the Decision to Senior Constable Fordyce having "met his onus" must be read as a reference to his onus under s 175(2) of the Police Act. In proceeding to refer to Senior Constable Fordyce having raised "sufficient doubt on the reasoning process of Ms Cook", the Commissioner appears to have conflated what is required to give rise to a "tactical onus" on the part of the Police Commissioner within the meaning of Zisopoulos, with that which is required to discharge the legal onus under s 175(2).
7. The Police Commissioner submitted that the approach adopted by Commissioner O'Sullivan led to him failing to consider all of the evidence before him. This included the material before Superintendent Cook beyond the evidence of Senior Constable Johnstone and Constable Logue. In this regard, she submitted that Commissioner O'Sullivan was incorrect in determining that Superintendent Cook's consideration was limited to the evidence of Senior Constable Johnstone and Constable Logue. She drew our attention in particular to the evidence of Constable James Baker, which is referred to in the Order under the heading "Background", reproduced at [17] above.
8. Senior Constable Fordyce sought to persuade the Full Bench that there was no error in Commissioner O'Sullivan's approach. He submitted that the reasoning of Superintendent Cook was confined to being satisfied "that two officers witnessed [him] wiping a screwdriver down with sanitiser".
9. The position advanced by Senior Constable Fordyce rests on the fact that in the Order, under the heading "Consideration", Superintendent Cook referred to being satisfied "that two officers witnessed [Senior Constable Fordyce] wiping a screwdriver down with sanitiser". However, this statement came after her saying that she had reviewed "all of the material associated with this matter".
10. This was reinforced in the proceedings below. In her written evidence, Superintendent Cook stated that she had decided to make the Order having considered Senior Constable Fordyce's submissions and after "considering all of the evidence, including the Lancaster Documents". She described the "Lancaster Documents" as being "a number of supporting documents that were obtained as evidence in relation to [Senior Constable Fordyce's] alleged conduct". Under cross-examination she confirmed that she had been provided with "documents obtained during the investigation process" and that she had "effectively based her decision" on the Lancaster Documents.
11. The Lancaster Documents were exhibited to Superintendent Cook's statement. They amount to approximately 100 pages of documents. It is not necessary to describe all of the documents. It suffices to say that they are not confined to evidence obtained from Senior Constable Johnstone or Constable Logue.
12. At [28] of the Decision, Commissioner O'Sullivan observed that Superintendent Cook "in determining to issue the Order, took into account the Response and the evidence in the 'Lancaster Report'".
13. In light of the evidence, we consider that Commissioner O'Sullivan made a material error of fact in concluding at [57] of the Decision that the "material relied upon by Ms Cook in determining to make the Order" was confined to "the records of interview of Ms Logue and Mr Johnstone". To that extent, the Commissioner's analysis of the reasoning process in the Order was based on a false premise.
14. The Police Commissioner submitted that Commissioner O'Sullivan erred in failing to consider all of the evidence before him. This included the totality of the evidence led by the Police Commissioner in the proceedings below, and the case advanced by the Police Commissioner as to the credibility of Senior Constable Fordyce's case, having regard to his evidence during the investigation, the show cause process and at the hearing in his affidavit evidence and under cross-examination.
15. There is nothing on the face of the Decision to suggest that Commissioner O'Sullivan had regard to the totality of the case led by the Police Commissioner. Where certain evidence is important or critical to the proper determination of the matter and is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 (Meagher JA), cited in Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 ("Redmond") at [39(a)].
16. The Full Bench in Redmond also cited with approval the following passage from the decision of McColl JA (with whom Mason P and Hunt AJA agreed) in Ainger v Coffs Harbour City Council [2005] NSWCA 424: "53. Although the primary judge made passing reference to some of the evidence upon which the appellant relied, he gave no reasons for apparently according it little or no weight. Significantly, his Honour failed to address the theory of the appellant's case, turning as it did on the respondent's role in creating and failing to rectify the trip hazard she had encountered. This omission leads to the inference that he failed to examine all the material relevant to the question whether the respondent had breached its duty of care…so that there was an 'error in the process of fact finding'."
17. Having regard to these authorities, the Police Commissioner's submissions, the terms of the Decision, our finding at [76] and the cases advanced by the parties before Commissioner O'Sullivan, we are prepared to, and do, infer that in his analysis as to whether the Order was harsh unreasonable or unjust, the Commissioner failed to examine or give consideration to all of the material relevant to that question.
18. The Police Commissioner also challenged Commissioner O'Sullivan's findings as to the probative value of the evidence of Senior Constable Johnstone and Constable Logue. Based on the orders that we have determined to make, we do not propose to traverse these matters. We confine ourselves to making two observations.
19. First, Commissioner O'Sullivan determined the matter on the basis that sufficient doubt had been cast on the reasoning process of Superintendent Cook. However, this conclusion was reached after finding that Constable Logue's evidence, following cross-examination, could be given "very little weight" (at [58]). As a matter of logic, Superintendent Cook's reasoning process cannot be impugned on the basis of material arising under cross-examination before the Commission on review.
20. Second, in her oral submissions on appeal (and for the first time), the Police Commissioner observed that at [59] of the Decision, Commissioner O'Sullivan had acknowledged that, on the approach he had adopted, he had been left with competing versions of the events of 14 October 2020, namely those of Senior Constable Fordyce and Senior Constable Johnstone. The Police Commissioner submitted that it was incumbent on Commissioner O'Sullivan to determine whose version of events he preferred and set out his reasons why, and that he had failed to do so.
21. Senior Constable Fordyce disputed that Commissioner O'Sullivan had erred in this regard. He submitted that the Commissioner had explained why he considered that it was "completely implausible" for the alleged conduct to have occurred, and for those reasons preferred the evidence of Senior Constable Fordyce.
22. On the approach to the proceedings he had adopted, Commissioner O'Sullivan was faced with irreconcilable evidence from Senior Constable Fordyce and Senior Constable Johnstone. That conflict was at the heart of the question as to whether Senior Constable Fordyce engaged in the conduct alleged against him. In order to determine that question, it was necessary for the Commissioner to decide which witness's version of events was to be preferred and explain why.
23. It can be inferred that Commissioner O'Sullivan preferred the evidence of Senior Constable Fordyce, although that conclusion is not expressly stated. Further, there is no complete explanation as to why the Commissioner formed that view. The implausibility of the alleged conduct appears to have had a bearing on the matter, but on the face of [60] the Decision that does not appear to have been the only factor to which the Commissioner had regard (noting the use of the word "particularly"). The Commissioner did not state what other considerations he took into account.

Additional observations on ground 7

1. The submissions of the Police Commissioner did not directly address the terms of ground 7. This ground asserts that at [59]-[60] of the Decision, Commissioner O'Sullivan erroneously placed the onus on the Police Commissioner to persuade the Commission that the alleged conduct occurred.
2. On its terms, this ground appears to place too much emphasis on the Commissioner's use of the word "persuaded" at [60], and requires the Commissioner's observations at [59]-[60] to be read in isolation from the balance of the Decision. Read properly and in context, the Commissioner at [60] was doing no more than recording his conclusion that Senior Constable Fordyce had not engaged in the conduct alleged against him.

Conclusions

1. For the reasons set out above, and noting in particular our conclusions at [68] and [80], we are persuaded that ground 1 discloses error in the Decision. Ground 7 does not disclose error in the Decision.

Ground 6

1. Ground 6 challenges Commissioner O'Sullivan's finding at [56] of the Decision that it was "completely implausible" that Senior Constable Fordyce engaged in the conduct alleged against him. The Police Commissioner's submissions in support of this ground can broadly be summarised as a contention that in drawing the conclusions at [56(1)-(3)] of the Decision, on which his finding was based, Commissioner O'Sullivan did not properly engage with the case advanced by her.
2. Senior Constable Fordyce submitted that the Police Commissioner was seeking to construct a case different to that found in the Order. Further, he noted the observation of Commissioner O'Sullivan at [54] of the Decision, which is not challenged on appeal, that the Police Commissioner "did not address the applicant's submission regarding implausibility".
3. In some respects, it is difficult to comprehend fully the Police Commissioner's position. For example, there are number of inconsistencies in her submissions. On the one hand, she contended that Senior Constable Fordyce "acted negligently, without thinking". However, she also submitted that his "apparent intention was to make his colleagues laugh, and to avoid coming under adverse notice for his own fingerprints being found on the screwdriver and/or for failing to handle the screwdriver properly and carefully as an exhibit in the first place". Further, the second motivation (to avoid coming under adverse notice) is at odds with the Police Commissioner's contention that it was not her case that Senior Constable Fordyce "acted with the intention of contaminating the exhibit and understood the full consequences of his actions".
4. Further, it does not appear that the motivations that the Police Commissioner seeks to ascribe to Senior Constable Fordyce were advanced in the proceedings below. At the hearing of the appeal, the Police Commissioner asserted that these hypotheses had been put to Commissioner O'Sullivan, but when pressed she was unable to demonstrate where this had occurred.
5. We also observe that the Police Commissioner submitted (albeit in relation to grounds 1 and 7) that Commissioner O'Sullivan "failed to have regard to the reasons set out in the Order…which found that [Senior Constable Fordyce] had wiped the screwdriver because he treated it as part of a joke". No such finding is to be found in the Order. The Order does not attribute any intention to Senior Constable Fordyce.
6. Despite these shortcomings, we consider that there is force to the Police Commissioner's submission that the conclusion at [56] of the Decision was not the result of a fresh and independent review of the Order. In this respect, we note our analysis at [66]-[80] above.
7. The Police Commissioner placed emphasis on the evidence she had led in the proceedings below to the effect that Senior Constable Fordyce had made a joke or other comments at the time of handling the screwdriver. She noted that Constable Logue gave evidence that she recalled Senior Constable Fordyce "making a joke about it being lube-d [sic] up". Senior Constable Darren Miller gave evidence that he remembered a joke about the matter at the time and that there was laughter. Constable Baker deposed that he had heard "people laughing about his prints being on [the screwdriver] or if he had accidentally touched it or contaminated it". As we have already observed, Constable Baker's recollection that there had been laughter at the time of the incident and a comment as to whether the screwdriver had been contaminated was referred to in the Order.
8. This evidence clearly has relevance to the context in which Senior Constable Fordyce allegedly wiped the screwdriver. It has some, and a potentially significant, bearing on whether it would be implausible for him to have engaged in that conduct. There is nothing on the face of the Decision to suggest that Commissioner O'Sullivan considered that broader context or took it into account in making his finding.

Conclusions

1. The case advanced by Senior Constable Fordyce as to the implausibility of him engaging in the alleged conduct provided a basis for Commissioner O'Sullivan, as the first instance decision-maker, to form a view that "sufficient doubt" had been raised. Once such a view was formed by the Commissioner, this placed an evidentiary onus on the Police Commissioner. However, in making a finding regarding implausibility without considering the totality of the evidence before him, and placing significant reliance on it to determine (in effect) that the alleged conduct did not occur, the Commissioner erred.

Grounds 2, 3, 4 and 5

1. These grounds rest on the requirement in s 175(4)(b) of the Police Act that in determining an application for review, the Commission "have regard to…the public interest (which is taken to include the fact that the [Police] Commissioner made the order pursuant to section 173)".
2. At [6] of the Decision, Commissioner O'Sullivan reproduced s 175 of the Police Act, observing that it "provides the required process". At [51] he summarised Senior Constable Fordyce's submissions regarding the public interest as being "that it is in the public interest that the Force properly investigate and identify disciplinary issues". He summarised the Police Commissioner's submissions as to the public interest at [55]. At [61] he concluded that the public interest favoured the revocation of the Order "for the reasons articulated by" Senior Constable Fordyce.
3. In essence, grounds 2, 4 and 5 challenge that conclusion. Ground 3 asserts that Commissioner O'Sullivan erred by failing to have sufficient regard to the fact of the Order, as mandated by s 175(4)(b).

Is it necessary to deal with these grounds?

1. Senior Constable Fordyce submitted, in effect, that it was not necessary to deal with grounds 2, 3, 4 and 5. He contended that a precondition to the making of an order under s 173 of the Police Act is that the police officer has engaged in misconduct. As Commissioner O'Sullivan determined that Senior Constable Fordyce had not done so, the revocation of the Order was the necessary and only consequence of the proceedings. Senior Constable Fordyce submitted that, in these circumstances, even had Commissioner O'Sullivan erred in his consideration of the public interest (which was disputed), it was immaterial to the outcome.
2. As we have already observed, at [60] of the Decision Commissioner O'Sullivan can be seen to be concluding that Senior Constable Fordyce did not engage in the misconduct alleged against him. Senior Constable Fordyce's submissions about the effect of Commissioner O'Sullivan's consideration of the public interest would carry some weight if it were not for the Full Bench's decision to uphold grounds 1 and 6.
3. However, as we have found, the Commissioner's conclusion was reached after he undertook a process which misapprehended that required by the Police Act. The Commissioner failed to undertake a fresh and independent review of the Order, which resulted in him failing to consider all of the evidence before him.
4. Whether or not Senior Constable Fordyce engaged in the alleged misconduct can only be determined after a review required by the Police Act is undertaken. If the Commission then concludes that the misconduct did not in fact occur, there may be a question as to the materiality of the public interest to the Commission's determination of the matter. If a different conclusion is reached, the significance of the public interest in that determination is more apparent.
5. Given the basis on which we have determined this appeal, and the orders that we make, it is necessary to address the questions arising from grounds 2, 3, 4 and 5 to provide clarity regarding the requirements of s 175(4)(b) in properly determining Senior Constable Fordyce's application under s 174.

What is the effect of Eaton?

1. The Police Commissioner submitted that, based on the reasoning in Eaton, the public interest can only operate in a manner that is adverse to the officer. She argued that as the adequacy of the investigation was not a matter adverse to Senior Constable Fordyce, Commissioner O'Sullivan erred in taking it into account as relevant to the public interest.
2. This submission forms the basis of ground 5. It was also advanced by the Police Commissioner in support of grounds 2 and 4.
3. Eaton concerned proceedings under s 181E of the Police Act. In connection with such proceedings, s 181F(3)(b) (reproduced at [41] above) requires the Commission to have regard to "the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1))". There is an apparent similarity, but not identicality, between this provision and s 175(4)(b).
4. At [27] of Eaton, Heydon J stated that s 181F(3)(b) "operates adversely to the applicant under s 181E reviews" and that "[t]he Commission's duty to have regard to the public interest as defined in s 181F(3)(b) is adverse to the interests of applicants seeking reviews under s 181E of orders made under s 181D". The Police Commissioner contended that the effect of these observations, extrapolated to s 175(4)(b), is that in considering the public interest the Commission may only have regard to matters that operate adversely to an applicant. For the reasons which follow, we do not accept that contention.
5. In the first place, it is not apparent on the terms of his judgment that Heydon J intended the outcome pressed by the Police Commissioner. His Honour's comments must be placed in the context of his decision as a whole.
6. The question before the High Court in Eaton was whether a probationary constable dismissed under s 80(3) of the Police Act could challenge that dismissal under Ch 2 Pt 6 of the Industrial Relations Act. Justice Heydon (and the plurality) answered that question in the negative. In reaching that conclusion, Heydon J considered, inter alia, the differences in the processes mandated by the Police Act for applications under s 181E and those applying to an application under s 84 of the Industrial Relations Act.
7. The observations of Heydon J on which the Police Commissioner relies must be seen in this context, as reflected in the following extracts from his judgment: "25. If a probationary constable dismissed under s 80(3) of the Police Act could apply to the Commission under s 84(1) of the IR Act, that probationary constable would enjoy a right of review superior to that of a confirmed constable. Indeed, that probationary constable would enjoy a right of review superior to that of any police officer of higher rank. That would, in turn, produce remarkable anomalies. … 27. Another anomaly stems from the fact that s 181F(3)(b) of the Police Act operates adversely to the applicant under s 181E reviews. Section 181F(3)(b) provides: '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: … (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1)).' This is a reference to the 'public interest' in a different sense from the 'public interest' referred to in s 146(2) of the IR Act. Section 146(2) requires the Commission to: 'take into account the public interest in the exercise of its functions and, for that purpose, [the Commission] must have regard to: (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy.' The objects of the IR Act are stated in s 3. They are broad, but they relate essentially to industrial relations. The matters referred to in s 181F(3)(b) of the Police Act stand outside s 146(2) of the IR Act. The Commission's duty to have regard to the public interest as defined in s 181F(3)(b) is adverse to the interests of applicants seeking reviews under s 181E of orders made under s 181D. An applicant for a remedy under s 84(1) of the IR Act does not face that obstacle."
8. It is apparent that Hayden J's observations regarding the "adverse operation" of s 181F(3)(b) are based on the terms of that provision. We note his Honour's reference to the Commission's duty "to have regard to the public interest as defined in s 181F(3)(b)" (our emphasis). The fact that the public interest "is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the [Police] Commissioner made the order pursuant to section 181D(1)" is clearly adverse to the interests of an applicant.
9. That said, at [27] of Eaton Hayden J can be seen as doing no more than comparing and contrasting the terms of the legislation before him. His statements as to the "adverse operation" of s 181F(3)(b) go no further than reflecting the language of the section. There is nothing in the decision to suggest that his Honour had turned his mind to the matters that might be considered by the Commission in having regard to the public interest, much less positively pronouncing that the Commission may not take into account factors which are not adverse to an applicant.
10. Further, while the plurality in Eaton (Crennan, Kiefel and Bell JJ) agreed with the orders proposed by Hayden J, it did not adopt his reasoning. At [70] the plurality compared the requirements under each of the Industrial Relations Act and the Police Act to have regard to the public interest, and went no further than observing that the matters of public interest to which the Police Act directs attention are different to those under the Industrial Relations Act.
11. Senior Constable Fordyce referred us to a number of decisions which explored how a court would approach a statutory requirement to have regard to the public interest. We will not traverse them all, but note the following in particular.
12. In O'Sullivan v Farrer (1989) 168 CLR 210, the majority observed (at 216): "Indeed, the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'…"
13. This passage has been cited with approval by the Commission in a number of cases: KU Children's Services (Other Than Teachers) (State) Award 1998 [2000] NSWIRComm 94 at [255]; Elura Mine Enterprise (Consent) Award 2001 [2003] NSWIRComm 218 at [140]; Kellogg (Aust) Pty Ltd v National Union of Workers, New South Wales [2003] NSWIRComm 167 at [64]; NSW Ministry of Health v Health Services Union New South Wales and anor (No. 2) [2019] NSWIRComm 1081 at [69].
14. O'Sullivan v Farrar was also cited by the plurality in Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [69] as authority for the proposition that the expression "that it is in the public interest" imports a judgment to be made by reference to the subject, scope and purpose of the applicable Act.
15. In Gregory v Qantas Airways Ltd (2016) 241 FCR 72; [2016] FCAFC 7 Buchanan J (with whom Bromberg and Rangiah JJ agreed) observed: "55. In other words, assessment of what is in the public interest, so far as it concerns matters coming before the FWC, and the assessment of when the public interest requires a grant of permission to appeal in an unfair dismissal case, is primarily a matter for the Full Bench, unless it pays regard to some matter extraneous to its task or to that evaluation, or fails to pay attention to relevant matters or misunderstands the nature of the examination required."
16. In Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, Barwick CJ (with whom Murphy J agreed) observed (at 480) that the public interest "must be the interest of the public and not mere individual interest which does not involve a public interest". Justice Jacobs observed (at 487) "the public interest may tell against the grant of a mining lease even though the particular interests of an individual are the only interests primarily affected".
17. Having regard to these and the other authorities to which Senior Constable Fordyce drew to our attention, we accept his submission that a matter is not, by definition, irrelevant to the public interest simply because it might favour an applicant succeeding in proceedings under s 174. Indeed, in decisions handed down in proceedings under the Police Act before and after Eaton, the Commission has had regard to matters that are not "adverse to the applicant" in considering the public interest.
18. In Commissioner of Police v Evans (2006) 153 IR 144; [2006] NSWIRComm 170 Walton J, Acting President (as his Honour then was), with whom Staff J agreed, observed: "4. The essence of the appellant's submissions - reflected in her Honour's judgment - is that the Commission should accord the public interest greater weight than other factors when determining whether a removal under s 181D was harsh, unreasonable or unjust. Indeed, there is an even stronger proposition implicit in her Honour's judgment: that prima facie, the Commissioner's decision to remove an officer on the basis of loss of confidence will be in the public interest, and any departure from such a decision must be justified. 5. Equivalent submissions have been rejected by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 (at [67]-[68]) and Hosemans v Commissioner of Police (2004) 138 IR 159. Section 181F does not alter the test to be applied: it is the test applied under s 84 of the Industrial Relations Act 1996, that is, whether the dismissal was harsh, unjust or unreasonable. The most comprehensive discussion of the significance of the public interest in this context is at [216]-[219] of Van Huisstede v Commissioner of Police (2000) 98 IR 57. In short, it is one factor to be taken into account. Moreover, it will seldom be unitary: cases such as these present the possibility of many, and often competing, public interests. 6. The decision at first instance represents an orthodox application of these well-settled principles and discloses no error. Boland J took the public interest into account in several guises: first, the public interest in the integrity of the Police Service (at [49]); and secondly, the public interest in maintaining the employment of a highly trained officer who has the strong support of colleagues and his Local Area Commander and remains capable of providing valuable service to the Police (at [52]). His Honour then considered whether the removal was harsh, unreasonable or unjust, taking into account all relevant factors and striking what he considered to be an appropriate balance between the competing interests embodied in s 181F(3)." (Other than in respect of case citations, the italics are ours.)
19. These passages were cited with approval by the Full Bench in Commissioner of Police v Collins (2008) 180 IR 191; [2008] NSWIRComm 162 at [53], which was in turn cited with approval by Walton J, Vice President (as his Honour then was) in Lawrance v Commissioner of Police (2010) 199 IR 139; [2010] NSWIRComm 149 at [318]. In Lawrance, the Vice President went on to observe: "319. Here, there is required a balancing of considerations between the Commissioner's determination, the maintenance of the integrity of the Police Force (by the upholding of appropriate standards, even in off duty situations) and the elimination of conduct which may bring the Police Force into disrepute (such as the impugned conduct), and, the maintenance of the service of a highly trained officer who has the strong support of his colleagues (because of his performance in the Police Force) and who is capable of providing valuable service to the Police Force in the future. This is also a case where the subsequent rehabilitation of the officer has the real potential to eliminate the very conduct (or conduct of that type) which caused the Commissioner to lose confidence. The interests of the applicant are reflected in his desire to rectify or ameliorate the very significant detriment in terms of his finances, career and reputation he has suffered as a consequence of the removal." (Emphasis added)
20. In Commissioner of Police v Smith [2010] NSWIRComm 162 at [2] Walton and Staff JJ stated that "[i]t is in the public interest that medical conditions arising from employment of the kind experienced by Mr Smith receive the same recognition, acceptance and compassion as physical illnesses, injuries and infirmities".
21. In Morris v Commissioner of Police [2016] NSWIRComm 1034 Commissioner Newall observed: "117. In my view the public interest includes a consideration of the fact that the NSW public, who pay for the Police Force, have invested 24 years in developing Mr Morris as a police officer. I am not convinced that in this case the public interest is best served by discarding him. There is a real public interest in maintaining a capable and experienced Police Force. … 119. I take account of the discipline imposed on him in 2009, but in sum, the evidence disclosed that Mr Morris was an effective general duties police officer capable of providing leadership to junior officers and of acting with personal courage in dangerous situations. There is a public interest in having such officers in the NSW Police. In my view Mr Morris is, to use the words in Lawrance, capable of providing valuable service to the Police Force in the future." (Emphasis added)
22. In refusing the Police Commissioner leave to appeal against Commissioner Newall's decision, the Full Bench in Commissioner of Police v Morris [2017] NSWIRComm 1010 observed: "25. Contrary to the submissions of the appellant, Newall C did not consider the personal interests of the respondent as part of the public interest. What the Commissioner did consider, as forming part of the public interest, was the benefit to the NSW public in retaining, as part of the Police Force, an officer in whom the public had invested 24 years in developing to a point that, even after the events of 8 and 9 October 2010 were known to the appellant, the respondent was, nevertheless, awarded a Region Commander's Commendation in relation to an arrest of a violent armed offender in 2011. In 2012, again after the events in question, the respondent was given the responsibility for leading, monitoring and reporting on a 'cluster' team of some 20 constables. His evidence was that the teams in the cluster that he led became leaders in the command in response to crime, proactive strategies, case management and training. There is nothing impermissible in the Commission taking such matters into account when having regard to the public interest."
23. Commissioner Newall's decision in Morris was cited with approval in Rodney Lockley v Commissioner of Police [2019] NSWIRComm 1016 at [126].
24. In Stefan Elias v Commissioner of Police [2019] NSWIRComm 1026 Chief Commissioner Kite SC referred (at [204]) to the "public interest in the Police Force having the benefit of the services of a dedicated and talented young officer".
25. Commissioner Sloan's summary of the principles to apply in proceedings under s 174 of the Police Act in Writer (at [32]) included: "(11) The requirement that the Commission have regard to the public interest 'operates adversely to the applicant': Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [27]. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service: Van Huisstede v Commissioner of Police (2000) 98 IR 57; [2000] NSWIRComm 97 ('Van Huisstede') at [216]."
26. Those observations should be read in the context of, and subject to, the discussion above.

Is the adequacy of any investigation undertaken by the Police Commissioner a relevant consideration?

1. The Police Commissioner contended that Commissioner O'Sullivan erred in finding that the public interest favoured the revocation of the Order on the basis that it is in the public interest that the NSW Police Force properly investigate and identify disciplinary issues (being the combined effect of [51] and [61] of the Decision). This contention underpins grounds 2 and 4 of the appeal.
2. There were two limbs to the Police Commissioners submissions. First, she contended that the adequacy or otherwise of any investigation undertaken by the Police Commissioner is not a relevant consideration in a review under s 174. Second, she argued that that the Commissioner failed to specify the shortcomings in the investigation, and how they adversely affected the material evaluated by Superintendent Cook.
3. On the first limb, the Police Commissioner's submissions included the following contentions: 1. the Commission is required to undertake a fresh and independent review as to whether an applicant has established to the requisite standard that they have not engaged in the alleged conduct and/or whether the order is otherwise harsh, unreasonable or unjust; 2. whether or not the Police Commissioner conducted a proper investigation is irrelevant to the question of whether the Order was harsh, unreasonable or unjust; and 3. the "centrepiece" of the Commission's review process are the grounds set out in the order being reviewed, as opposed to the investigative process giving rise to those grounds, citing McGhee v Commissioner of Police (No 2) (2020) 200 IR 22; [2010] NSWIRComm 165 ("McGhee") at [16]-[17].
4. The Police Commissioner's submissions were well summarised in her written submissions in reply, as follows: "…[W]hether an employer may not have properly informed itself by failing to investigate a matter is ultimately irrelevant to the Commission's task in determining whether the alleged misconduct occurred and the reviewable action was justified. The Commission's task under s 174(1) is to conduct a fresh and independent review on the merits. Whether or not the Commissioner of Police has properly investigated the claim is irrelevant. It is the task of the Commission to assess whether the reviewable action was harsh, unjust and/or unreasonable based on the evidence before it and not whether the Commissioner of Police should have undertaken an investigation at all."
5. To repeat the observations in Writer that are reproduced at [67] above, the Commission's review is not de novo, but is closer to a merits review than judicial review: Zisopoulos at [83] (Bell P). Importantly, the subject of the review in proceedings under s 174 is the decision to make an order under s 173. The fact that an order has been made is the starting point, and it is for the applicant to demonstrate that it is beyond power, or harsh, unreasonable or unjust. The Commission does not "sit in the shoes of the decision maker" to determine the correct and preferable decision in the circumstances.
6. The Police Commissioner's submissions overlook s 175(3), which provides that the Commission "may take into account such matters as it considers relevant". Whether or not the Police Commissioner considers the adequacy or otherwise of the investigation process to be "ultimately irrelevant" is not to the point. The Police Commissioner must demonstrate that the broad discretion conferred by s 175(3) does not extend to a consideration of the investigation process. She has not done so.
7. Further, Senior Constable Fordyce submitted that "one reason a dismissal may be found to be harsh, unreasonable or unjust is that the dismissal was unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer", citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465. We regard this as well settled.
8. The Police Commissioner cited McGhee as authority for the proposition that the investigative process is irrelevant to the question of whether an order under s 173 is harsh, unreasonable or unjust. We do not read the decision as having that effect.
9. In McGhee, the Full Bench had been asked to reconsider the correctness of the Full Bench's majority decision in Commissioner of Police v Reid-Frost (2010) 192 IR 363; [2010] NSWIRComm 2 ("Reid-Frost"). The matter concerned proceedings under s 181E of the Police Act. In the passages in McGhee to which the Police Commissioner referred us, the Full Bench stated: "16. Before considering whether leave should be granted to allow for a reconsideration of Reid-Frost, it is necessary to be clear as to what the decision stands for. The respondent undertook the task of identifying the relevant aspects of the decision as they concern s 181D(3)(c) and (4) of the Police Act and we consider he did so fairly and accurately: First in review proceedings, the Commission is to consider complaints about alleged failure by the Commissioner to comply with the requirements of s 181D(3) and (4) of the Act, as part of the fabric of the merit review rather than as complaints as to the 'validity' of the order made: see Reid-Frost at [4], [6]-[7] 11, [23] and [27]-[30]. Second, procedural failures, particularly those relating to the statutory requirements of s 181D(3) and (4), may play a marked role in the resolution of the questions requiring determination in applications brought under s 181E, but such applications will not be finally resolved by a preliminary adjudication with respect to those factors: see Reid-Frost at [10]-11 and (b). Third, the significance of procedural issues raised will vary depending upon the gravity of the failure and its effect on the opportunity for the police officer to receive a fair hearing when all the relevant circumstances of the particular case are taken into account: see Reid-Frost at 11 and (f). Fourth, whilst the procedural failure (revealed as part of the assessment of the merits may, per se, render a removal order harsh, unjust or unreasonable) this is only likely to be so in circumstances where 'very serious procedural failures' of 'some gravity' such as where the procedural unfairness has caused a 'substantial and irrevocable prejudice' to the employee or where a dismissal has been based upon an unfair procedure which had caused the employer to ignore, or fail to receive, an innocent explanation: see Reid-Frost at 11-(l), see also [41], [23] (Significance of procedural failure will depend upon 'the extent and consequence of any departure') and also 67 (in the postscript). … 17. Whilst only some of these conclusions have been made the subject of this preliminary challenge, we consider it would be useful for the proper administration of this aspect of our jurisdiction to state that we agree with the statements of law and principle expressed by the majority in Reid-Frost. …"
10. The "relevant aspects" of Reid-Frost, as endorsed in McGhee, do not support the conclusion that the investigation process is irrelevant to proceedings under s 181E or, by extension, to those brought under s 174.
11. Having regard to Byrne v Australian Airlines Ltd, and the discussion in McGhee, we accept Senior Constable Fordyce's submission that if an employer has not properly informed itself by investigating an allegation, a dismissal on the basis of that allegation may be unreasonable for that reason. The failure to investigate is at least relevant to, but not determinative, of that question. This extends to the consideration as to whether an order under s 173 of the Police Act is harsh, unreasonable or unjust.
12. We turn now to the second limb of the case advanced by the Police Commissioner. At the hearing of the appeal she submitted that "if one is to say that there's a public interest to properly investigate the matter, as Commissioner O'Sullivan found, there needs to be a finding that there was an improper investigation in the first place, and it would be a matter which would justify such an order being made, or such a consideration being taken into account". The Police Commissioner submitted that no such finding had been made and as a consequence the Commissioner erred. We accept those submissions.
13. Commissioner O'Sullivan accepted Senior Constable Fordyce's submission that "it is in the public interest that the Force properly investigate and identify disciplinary issues". It is implicit that he considered that the NSW Police Force had not done so. However, there is no positive finding in the Decision as to the ways in which the investigation process was deficient, or how those deficiencies had a bearing on whether the Order was harsh, unreasonable or unjust.
14. It might be possible to infer from the Decision the basis on which Commissioner O'Sullivan formed that view. He identified that Superintendent Cook did not interview any of the persons whose records of interview were contained in the Lancaster Documents. He referred to the inconsistencies in the evidence on which he determined that Superintendent Cook had relied, being the evidence of Senior Constable Johnstone and Constable Logue. It might be inferred that the Commissioner considered that Superintendent Cook should have taken further steps to resolve the conflicts in the evidence on which she relied.
15. However, whether or not these inferences are properly to be drawn and reflect, in whole or in part, the Commissioner's reasoning is a matter of speculation. His implicit acceptance that the NSW Police Force failed to properly investigate and identify disciplinary issues in respect of Senior Constable Fordyce was the only basis on which he found that the public interest favoured the revocation of the Order. It was incumbent on him to properly set out his reasons for drawing that conclusion and he did not do so.
16. Further, as we have already canvassed, the focus of the Decision was the reasoning process by which Superintendent Cook came to make the Order. It appears from the Decision that the Commissioner equated what he considered to be the shortcomings in Superintendent Cook's reasoning process with a failure to properly investigate and identify disciplinary issues. For the reasons set out at [70]-[76] above, the Commissioner's analysis does not reflect the full extent of the information to which Superintendent Cook had regard before making the Order.

Did the Commissioner, when considering the public interest, fail to have regard to the fact that the Police Commissioner made the Order?

1. Ground 3 asserts that Commissioner O'Sullivan erred in failing to have sufficient regard to the fact of the Order when considering the public interest, as required by s 175(4)(b).
2. There is no question that Commissioner O'Sullivan had regard to the fact of the Order in a general sense. The Decision opens at [1]-[2] with a description of the disciplinary action imposed by the Order and the allegation underpinning that action. The Commissioner made observations at [32]-[33] about Superintendent Cook's reasoning process and the conclusion she reached as contained in the Order. He analysed at [37]-[44] the evidence of Senior Constable Johnstone and Constable Logue, on whose records of interview he found Superintendent Cook relied to make the Order. The Commissioner concluded at [57] that this evidence did not provide a proper basis for the making of the Order.
3. However, the question arising from ground 3 was whether Commissioner O'Sullivan had regard to the Order in the specific context of s 175(4)(b) - that is, by having regard to the public interest as including the fact that the Order had been made. There is nothing on the face of the Decision to suggest that he did so. The Commissioner's consideration of the public interest is confined to his summaries of the parties' submissions at [51] and [55] of the Decision, and his conclusion at [61].
4. The Police Commissioner drew our attention to the following observations of the plurality in Eaton: "76. The regime provided for in Pt 9 of the Police Act for the claims of confirmed police officers evidences a concern that the processes of Pt 6 of the IR Act are not in all respects appropriate to be applied to decisions of the Commissioner to dismiss or make other like orders. Part 9 maintains a focus on the Commissioner's decision, a focus which is not provided by the general provisions of the IR Act. Part 9 elevates the Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force. The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material."
5. In her written submissions in reply, the Police Commissioner submitted: "58. …[T]he Commission failed to have regard to the fact that the Order was made as required under s 175(4)(b) as part of the public interest. That is because the Commissioner of Police's judgment should be given due weight as the head of the NSW Police Force and the person responsible for its management. Her having formed the view that an order should be made is itself in the public interest. As the plurality noted at [76] in Eaton, the fact an order [sic] is the starting point for the review: The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material. 59. It is a different exercise for the Commission to refer to the order and disagree with the reasoning process. In doing so, the Commission did not, in fact, take into account the fact of the order as part of the public interest in a manner adverse to the Respondent but adverse to the Appellant. That approach is contrary to what the High Court found to be correct construction of the provision in Eaton."
6. Leaving aside the asserted operation of Eaton (that the public interest must be applied in a manner adverse to the applicant), with which we have already dealt, we accept those submissions. The language of s 175(4) is in mandatory terms. While Commissioner O'Sullivan set out his reasons for disagreeing with the reasoning process in the Order, he does not appear to have considered the fact that it was made in having regard to the public interest.

Conclusions

1. For the reasons set out at [107]-[130] above, we reject the Police Commissioner's contention that the observations of Heydon J in Eaton at [27] compel the Commission, when considering the public interest, to have regard only to matters that operate adversely to an applicant. That is sufficient to dispose of ground 5, which we find discloses no error in the Decision.
2. The same reasons dispose, in part, of the submissions advanced in respect of grounds 2 and 4. Further in respect of those grounds, for the reasons set out at [135]-[143] we do not accept the Police Commissioner's contention that the adequacy or otherwise of any investigation undertaken by the Police Commissioner can never be a relevant consideration in a review under s 174. Whether and to what extent an investigation has relevance will depend on the circumstances of the case.
3. However, we accept that the Decision failed to identify the shortcomings in the investigation identified by Commissioner O'Sullivan, and how they had a bearing on the question of whether the Order was harsh, unreasonable for unjust. Given the Commissioner's implicit acceptance that the NSW Police Force failed to properly investigate and identify disciplinary issues in respect of Senior Constable Fordyce was the only basis on which he found that the public interest favoured the revocation of the Order, he erred in not setting out his reasons for coming to that view. To that extent, we find that grounds 2 and 4 disclose error.
4. For the reasons set out at [149]-[154] above, we find that ground 3 discloses error in the Decision.

Determination

1. Based on our findings at [89], [98], [157] and [158] above, we have determined to uphold grounds 1, 2, 3, 4 and 6 of the appeal. Our findings as to grounds 1 and 6, in particular, call into question Commissioner O'Sullivan's determination that Senior Constable Fordyce did not engage in the misconduct on which the Order was based. Our findings as to grounds 2 and 4 go to whether the public interest favoured the revocation of the Order, as found by the Commissioner. As these were the only premises on which the Commissioner decided that the Order should be revoked, his order to that effect cannot stand.
2. The Police Commissioner submitted that, in the event that the Full Bench upheld any of the appeal grounds, the order made by Commissioner O'Sullivan should be set aside, and the Full Bench conduct a rehearing of the matter based on the material before it. She stated that if the matter was remitted for hearing, then "it would be appropriate that it be allocated to a different member to Commissioner O'Sullivan".
3. Senior Constable Fordyce opposed the matter being determined by the Full Bench or remitted to a member of the Commission other than Commissioner O'Sullivan. He submitted: "This matter turned upon a factual finding as to whether the alleged conduct occurred which was subject of disputed evidence [sic]. The members of the Full Bench are not in a position to determine the question fairly having not seen or heard the witnesses give evidence. If the appellant were to succeed on any of its grounds, the application must be remitted."
4. We accept those submissions. Commissioner O'Sullivan took evidence over three days and heard submissions on a fourth. He is peculiarly well-placed to evaluate the evidence and submissions, informed by his impressions over the course of the hearing. The Police Commissioner has not offered a cogent reason why, in these circumstances, it would be more "appropriate" for the matter to be remitted to another Commissioner.
5. COMMISSIONER WEBSTER: I have had the benefit of reading in draft the reasons of the majority of the Full Bench. I would grant leave to appeal as some of the appeal grounds raise substantial issues of law and principle and have implications for the wider jurisprudence of the Commission: Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 at [21]. Specifically, the appeal raises the issue of the correct approach of the Commission in determining applications for review of disciplinary orders commenced under s 174 of the Police Act. I would uphold appeal grounds 1 and 6 and dismiss ground 7 for the reasons contained in the majority decision at [29]-[98]. As Commissioner O'Sullivan found that the alleged misconduct did not occur, he should have revoked the Order on the basis that it was made beyond power: see s 173(2). For the reasons advanced by Senior Constable Fordyce and summarised at [102] of the majority decision, it is unnecessary to address the remaining appeal grounds 2, 3, 4 and 5 relating to the requirement of the Commission to take into account the public interest (which is taken to include the fact the Commissioner made the order pursuant to section 173): s 175(4)(b). I agree the matter should be remitted to Commissioner O'Sullivan.

Orders

1. The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Commissioner O'Sullivan of 4 August 2023, that the order made by the Police Commissioner, through her delegate, on 27 October 2021 under s 173(2) of the Police Act 1990 be revoked, is quashed. 4. The file in matter 2021/00326768 will be returned to Commissioner O'Sullivan for determination in accordance with this decision.

Amendments 29 February 2024 - Cross-reference hyperlinks updated at [89] and [95] 19 March 2024 - Matter number corrected at Decision and [164] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2024