26 Following a thorough review of the Commissioner's Confidence Submission, the proceedings in the Local Court and the appeal proceedings in the District Court, Haylen J addressed the submissions of the parties. In doing so his Honour considered the task to be undertaken on a review of the Police Commissioner's decision to remove a police officer and, in particular, the requirements under s 181F of the Police Act. His Honour concluded in that respect at [99] that:
[T]he approach to be adopted upon a Review under the provisions of the Police Act , it is appropriate to state that this Review will be conducted in accordance with the approach set out by the Full Bench in Little (No 2) even though that judgment acknowledges that some issues as to process and procedure may still be unresolved. In Little (No 2) , the Full Bench stated that a Review had to have regard to matters beyond whether there was adequate justification for the removal and that there was, in fact, a tripartite test to be applied - even where a decision to remove may have justification, the Commission will still be required to consider whether the decision was harsh, unjust or unreasonable and have regard to the merits of the application.
27 In his consideration of the Jones Incident, Haylen J noted that at the time the Police Commissioner made his decision to remove Mr Brennan, he was aware that there had been a conviction in relation to the Jones Incident for common assault. But at that stage, the Commissioner was unaware whether the Magistrate would impose a penalty of imprisonment, having regard to the fact that Mr Brennan was a first offender and that the maximum penalty available in the Local Court was 12 months imprisonment. His Honour considered that it was of significance that, on a review of the Commissioner's determination the nature of the assault was "importantly different" from the detail set out in the allegations recorded in the Commissioner's Confidence Submission and that both the Local Court and the District Court regarded the assault as falling within the lower range of penalties that might be imposed for such a breach.
28 His Honour also considered it to be significant that, in the District Court, the submission that Mr Brennan had behaved in anger and that anger had continued from the time he assaulted Mr Jones until he had sprayed Mr Bishop was specifically rejected. There was further significance his Honour believed, in the fact that, on appeal, Judge Flannery placed both incidents in the context of two groups of brawling young people who constantly abused police and displayed aggressive and shouting behaviour in circumstances where it became necessary to call in additional police support. It was clear from the evidence, his Honour said, that many of the players, including Mr Jones and Mr Bishop, were well affected by alcohol and the dynamics of a crowd in those circumstances might well have heightened the possibility of an actual violent response.
29 The trial judge considered the interests of Mr Brennan and the competing public interest at [111]:
[111] Mr Brennan's justification for his behaviour was that Mr Jones had committed an offence by drinking alcohol on railway property and had acted defiantly. He believed that Mr Jones had broken free of his grip and therefore needed to be detained. Mr Jones was described as one of the ringleaders who had been abusing and shouting at police during the evening. In considering the operation of s 181F(3), the assault on Mr Jones is the only conviction that stands after the District Court proceedings. At the time of the incident, Mr Brennan was 35 years of age, had no prior convictions and had served in the Police service for approximately four years, having had prior experience in the Department of Corrective Services. He was an officer who had received training in other areas and had worked with Detectives. There was already a significant use of resources to bring Mr Brennan to that point in his career and, while he had the expectation of building a career, there was also a public interest in having police officers remain in the Police service but only if they were suitable for the Police service. The public interest demands that, like other citizens, police officers obey the law: their very office requires that they take care in the way in which they behave and exercise their powers. There is a clear public interest in maintaining the integrity of the New South Wales Police service and the Commissioner found that Mr Brennan had not maintained the highest professional conduct required of a police officer…
30 At [112] his Honour determined that the removal of Mr Brennan was harsh:
[112] In relation to the assault of Mr Jones, therefore, there are competing issues, some favouring Mr Brennan's case and some favouring the Commissioner's case. The essence of the Jones's incident was not in any denial by Mr Brennan that there had been an incident, but whether he had been justified in throwing Mr Jones against the lift doors and arresting him in relation to a minor offence for which a Penalty Notice could have been issued. On balance, I am unable to find Mr Brennan's misjudgement as evident in this single incident and limited as it is, when compared with what was alleged against him, to be of such significance that his career as a police officer should be terminated and that the Police service should lose a person who has some apparent aptitude for the policing task. The Police service in its Codes does not suggest that it operates on a "nil tolerance" basis: offences involving dishonesty, assault, unauthorised access or use of confidential information, the supply or use of illegal drugs, offences involving prescribed concentrations of alcohol or driving under the influence of alcohol or drugs are all matters that would be investigated under s 181D under the terms of the Code, but this conduct "may" result in removal from the New South Wales Police service. The terms of the Code itself recognise what is evident in the behaviour of many citizens, namely, that, almost inexplicably on occasion, people with a good record and good standing in their community will break the law. The justice system requires consideration of all relevant matters before imposing an appropriate penalty notwithstanding the fact that there has been a breach of the law. Each case has to be considered on its own facts. In the present case, it can be accepted that Mr Brennan has already lost an amount of salary although his work has, from time to time, been able to return to him more than he might have earned as a Constable: overall, there was likely to have been a loss in total salary (especially during the period of suspension on pay without penalties), although not necessarily a substantial loss. What is evident, from a consideration of all the matters referred to above, is that this single act of assault punished by the imposition of a two year good behaviour bond did not warrant the loss of his career as a police officer. The circumstances surrounding the assault and the nature of the assault itself demonstrated it to be of a low level and a one-off incident where a good behaviour bond was appropriate as punishment. By moving before either the Magistrate or the District Court had dealt with penalty, the Commissioner deprived himself of the opportunity of taking into account the level of penalty imposed as reflecting the objective seriousness of the offence. It might well have been too much to have required the Commissioner to hold his hand until after the District Court appeal had been concluded, but there was significant value in waiting the relatively short time before the Magistrate passed sentence on Mr Brennan for this offence. The assault was demonstrably less serious than that alleged in the documents before the Commissioner. The Commission is therefore of the view that, while the action of Mr Brennan was not warranted and constituted a common assault, the removal of Mr Brennan from the Police service was a harsh penalty in all the circumstances.
31 Turning to the Bishop Incident, Haylen J considered that the circumstances of that incident altered quite significantly as a result of the District Court appeal. His Honour observed that at the time the Commissioner made the decision to remove him, Mr Brennan had been convicted of two assaults. Haylen J considered that the fact that there were two separate assaults on the same night was likely to have weighed heavily with the Commissioner when he made his decision to remove Mr Brennan from the Police Force. This was especially so when the evidence in the Commissioner's possession indicated that Mr Brennan had acted in an angry state and that anger was present in both assaults, which were separated by only 15 minutes. His Honour noted at [114] that:
On Review in this Commission, the submissions for the Commissioner of Police concentrated upon the breach of the Code of Behaviour and the training given to Mr Brennan which prohibited the use of the capsicum spray unless it was required for controlling people where violent resistance or confrontation had occurred or was likely to occur. The original Notice served on Mr Brennan alleged that there was both an assault and a breach of the Code of Conduct and Ethics. The Code relevantly stated: "Whatever your position, you may not act beyond the powers the law and the NSW Police give you".
32 His Honour then proceeded to compare the material relied upon by the Commissioner in the Confidence Submission relating to the Bishop Incident and the evidence in the Local and District Courts. In relation to the proceedings in the District Court, Haylen J stated at [121]-[122]
121 On appeal in the District Court, this material was again considered and Judge Flannery accepted that Mr Bishop was at the fence at the time of the confrontation with Mr Brennan. Her Honour accepted that Mr Bishop was swearing and carrying on in an abusive way and was not prepared to find that Mr Brennan apprehended that the four men were returning to get Mr Bishop's mobile telephone since Constable Maziarz did not recall any such conversation and there was a real possibility that Mr Bishop was so intoxicated that he was unlikely to be particularly coherent. Her Honour accepted the evidence that the capsicum spray was not to be used as punishment or as a threat to enforce directions: it was to be used if there was violent resistance or confrontation occurring or likely to occur. Her Honour found that there was a reasonable possibility that Mr Brennan believed that his action was necessary in order to defend himself. One Constable was concerned enough about the situation to warn the police over the radio that the situation might escalate again and did so, based on his contact with a very intoxicated, very loud, very obnoxious Mr Bishop a short time prior to the incident with Mr Brennan. It was also noted that Constable Maziarz was concerned enough about the situation to have his OC spray ready for use (although no mention was made that there was evidence that Constable Howarth also had her canister out of its holder).
122 As earlier indicated, her Honour rejected the idea that Mr Brennan's actions were a continuum of his anger, anger that was present in his conduct and handling of Mr Jones and that had continued some 15 minutes later with his spraying of Mr Bishop. Her Honour noted that, frequently, arrests were made in circumstances of excitement, turmoil and panic and it was unfair to the Police to sit back in the comparative calm and leisurely atmosphere of a courtroom to make minute criticisms of what an arresting constable might or might not have done or believed in the circumstances. Her Honour did note, however, that, whilst other police might have responded differently in the circumstances and that it would have been preferable if Mr Brennan had adopted a more measured approach to the situation, she was not prepared to find that the Crown had proved beyond reasonable doubt that Mr Brennan had not acted in self-defence.
33 At [124] his Honour expressed the view that on a proper consideration of the findings of the District Court, they presented a "very different set of circumstances" to the findings made by the Magistrate and were also "significantly different" from the facts contained in the Commissioner's Brief:
[124] The Commissioner of Police did not have the opportunity of considering this conduct of Mr Brennan absent a finding of common assault. Senior Counsel strongly submitted for the Commissioner of Police that, having regard to the comments of Judge Flannery the conduct of Mr Brennan was that he had acted inappropriately and contrary to his training. That submission fails to give significance to the context in which this confrontation occurred or the fact that a number of officers had expressed their concern in various ways immediately before Mr Bishop was sprayed. The submission can be accepted that use of the spray was use of a weapon, and one specially issued to police officers for use in circumstances that are circumscribed: however, the use of the spray depended on an assessment of the circumstances in each case. While it might be suggested that Mr Brennan could have entered into more communication with Mr Bishop, the evidence was that Mr Bishop was the ringleader and was literally out of control with his screaming and abuse of police, that he had already been told to leave the area and returned in circumstances that gave a number of police officers real concern. In those circumstances, Mr Brennan had directed him on more than one occasion to leave the area or he would be sprayed: he failed to leave as directed. Her Honour's finding that Mr Bishop was at the fence (as also found by the Magistrate) rather suggests that she did not accept the evidence that he stepped back, had stepped back a number of steps or that Mr Bishop had put his hands in the air in a submissive way. Her Honour found as a fact that there was no conversation between Mr Brennan and Mr Bishop about returning to get the mobile telephone, that is, there was a genuine reason offered by Mr Bishop for returning to the Leagues Club. It seems, on a proper consideration of the findings of the District Court, a very different set of circumstances had been found to exist in relation to the spraying of Mr Bishop and those findings were quite different from the findings made by the Magistrate and were also significantly different from the facts contained in the Commissioner's Brief.
34 After discounting the evidence of other police officers that the OC spray was unwarranted his Honour stated:
[127] On Review, the Commissioner's case ultimately seems to rest on the view expressed in the District Court that it would have been preferable if Mr Brennan had adopted "a more measured approached to the situation". That statement falls well short of a finding of a breach of the Police Code or police training. Indeed, that expression was used in the context of stating that other police may have acted differently but it could not be concluded that Mr Brennan had not acted in self-defence. Ultimately, Mr Brennan made a fine line judgment call that some other police officers may not have made: the Police Code accepts that what is reasonable is to be gauged by the circumstances. The Commission, in considering all this material, has real doubt that a breach of the Code and police training occurred in this incident, especially as many of the elements necessary to establish such a breach were matters that were relevant to the assault charge. Once the District Court found that it was reasonable for Mr Brennan to feel that his actions were necessary in order to defend himself and that there was a reasonable response to the circumstances he perceived he faced, the Commissioner's case on Review effectively becomes an assertion that Mr Brennan should not have felt under threat. That is, in the present circumstances, a very difficult case to establish. No details of his training were placed in evidence to support such a conclusion. Even if Mr Brennan's action amounted to an inappropriate use of the spray, having regard to his training and relevant codes, it was conduct that was at a low level of culpability.
…
[129] There is an undoubted public interest in ensuring that police officers follow the rules and protocols laid down for the use of any weapon, including capsicum spray. The Commissioner of Police has an interest in ensuring that the public are not put in fear of their safety by police officers using such a weapon without justification. However, the overall picture of what occurred in this incident strongly suggests action taken in volatile circumstances, even though Mr Brennan might have considered other methods. The use of the spray in these circumstances might well have prompted the Commissioner of Police, in the absence of an assault having been made out, to have Mr Brennan undertake further training but this incident, in its proper context, did not warrant the removal of Mr Brennan from the Police service. For the reasons earlier expressed about Mr Brennan's loss of salary and the loss of a career at a very early stage, the Commission is satisfied that, in relation to this episode, it would be harsh to remove Mr Brennan from the Police service.
35 Upon a consideration of the totality of Mr Brennan's conduct Haylen J was unable to reach the conclusion that it represented conduct inimical to continued service with the Police Force. His Honour stated that whilst due regard was to be paid to the fact that the Commissioner had made a determination that he had lost confidence in an officer and great regard was to be paid to ensuring the integrity of the Police Force:
[T]he penalty of removal from the Police service was disproportionate to the gravity of the conduct of Mr Brennan as ultimately found in the District Court, making the Commissioner's action harsh in removing him from the Police service. The weight to be accorded to the Commissioner's Determination is somewhat diluted in the present circumstances where the sentencing of the Magistrate had not taken place when the Determination was made to remove Mr Brennan from the Police service. Significantly, the Magistrate considered that Mr Brennan was unlikely to offend again and that the harm inflicted was not substantial. As was stated by the Full Bench in Little (No 2) , the Commission on Review must have regard to matters beyond whether there was adequate justification for the removal.
…
Mr Brennan has made some errors of judgment but they are not of such order that the State should lose an officer capable of fulfilling the important duties required under the Police Act. He has discharged the onus of showing that his removal was harsh. He should be returned to the Police service although, undoubtedly, the Commissioner would wish to give consideration to the appropriateness of his continuing at his previous location and to additional training that he should undertake. The Commissioner has not raised any other material that suggests that reinstatement is impracticable.
36 His Honour concluded by indicating his view about how Mr Brennan should be returned to duty:
[133] In all the circumstances, it seems appropriate that sufficient time should be given to Mr Brennan to make arrangements about terminating his existing employment and also to permit the Commissioner of Police to give consideration to where he should be appropriately placed on his return to duties. It is the Commission's view that Mr Brennan should be returned to employment with the Police service with continuity of service for the time over which he was absent from the service but without any payment for that period. Any financial loss in this period, which appears to be moderate, is a relatively modest burden that he should bear in all the circumstances. The parties should confer in relation to the orders proposed by the Commission and contact my Associate as soon as possible in order to have the matter re-listed for the making of formal orders and to hear any further, brief submissions that might be necessary in relation to the form of the orders. That re-listing should take place, having regard to the Commission's intention that Mr Brennan should resume his employment as a police officer, within seven days of the date of this judgment.
GROUNDS OF APPEAL