Commissioner of Police v Hugh Gerrard Brennan

Crimes (Appeal and Review) Act 2001 s 18 Crimes (Sentencing Procedure) Act 1999 ss 3A, 9 LEGISLATION CITED: Crimes Act 1900 s 61 Industrial Relations Act 1996 ss 187, 188 Police Act 1990 ss 6(1), 7, 7(b), 7(h), 14, 181D(1), 181F, 181F(3)

Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113 Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) and Others (1952) 85 CLR 237 Commissioner of Police v Dobbie (2006) 157 IR 44 Enever v The King (1906) 3 CLR 969 Hosemans v Commissioner of Police (2004) 138 IR 159 Hugh Gerrard Brennan v Commissioner of Police [2007] NSWIRComm 229 CASES CITED: James Peter Engert (1995) 84 A Crim R 67 Johnston v Commissioner of Police [2007] NSWIRComm 293 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Markarian v The Queen (2005) 228 CLR 357 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 Starr v Commissioner of Police [2001] NSWIRComm 226 Van Huisstede v Commissioner of Police (No 1) (2000) 98 IR 57 Veen v The Queen (No 2) (1988) 164 CLR 465

APPELLANT: Mr J N West of Queens Counsel Mr S R Meehan of Counsel Solicitors: Mr S M Jauncey Henry Davis York Lawyers LEGAL REPRESENTATIVES:

RESPONDENT: Mr B G Docking of Counsel Solicitors: Mr A L Howell Police Association of NSW

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Commissioner of Police for leave to appeal and appeal from a judgment of Justice Haylen given on 6 September 2007 in Matter No IRC 2864 of 2006

1 The Commissioner of Police has, pursuant to ss 187 and 188 of the Industrial Relations Act 1996, applied for leave to appeal and, if leave is granted, to appeal from a judgment of Haylen J given on 6 September 2007 in Hugh Gerrard Brennan v Commissioner of Police [2007] NSWIRComm 229. In that matter his Honour held that the removal of Mr Brennan by the Commissioner from the NSW Police Force was harsh and returned him to his employment.

2 The Police Commissioner is empowered to remove a police officer if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct: s 181D(1) of the Police Act 1990. The Commissioner exercised that power in relation to Mr Brennan on 21 July 2006. 3 The Police Act further provides that a police officer who is removed from the NSW Police Force by an order under s 181D may apply to the Industrial Relations Commission for a review of the order on the ground that the removal is harsh, unreasonable or unjust: s 181E(1). On 7 August 2006 Mr Brennan made such an application in which he sought an order for reinstatement. BACKGROUND

4 Mr Brennan was a police constable. He was sworn in on 31 August 2001, at the age of 31 years. He was confirmed as a constable in 2002. He performed general duties and had also obtained specialist training as an Operational Safety Trainer, had completed the Operations Support Group course and had worked from the Detective's office. At the time of removal, he was stationed at the Campbelltown Local Area Command. 5 Mr Brennan's removal arose out of two incidents on 22 May 2005, which occurred in the vicinity of Leumeah railway station. They may be referred to as the 'Jones Incident' and the 'Bishop Incident' respectively. In respect of both incidents, criminal charges were brought against Mr Brennan for common assault under s 61 of the Crimes Act 1900. The maximum sentence for each offence charged in the Local Court was imprisonment for 12 months. 6 At the time that the Commissioner made his decision to remove Mr Brennan from the NSW Police Force, Mr Brennan had been convicted (on 27 June 2006) in the Local Court on both charges, but had not been sentenced. He was sentenced on 4 September 2006 to perform community service work for 220 and 130 hours respectively. 7 Mr Brennan subsequently appealed to the District Court against his convictions pursuant to the Crimes (Appeal and Review) Act 2001. Judge Flannery SC heard the appeal in each matter by way of rehearing on the transcripts of evidence and exhibits pursuant to s 18 of the Crimes (Appeal and Review) Act. In respect of the Jones Incident, on 20 April 2007, Mr Brennan's conviction was upheld. Her Honour ordered, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, that Mr Brennan enter into a good behaviour bond for a period of two years. In respect of the Bishop Incident, Flannery DCJ allowed the appeal and quashed the conviction. 8 A general picture of what occurred in both the Jones Incident and the Bishop Incident may be obtained from the proceedings in the District Court. Jones Incident

9 At around 2.00 am on 22 May 2005, police were called to the Western Suburbs Leagues Club in Leumeah in response to a brawl. Police found two groups of youths in front of the club with one group consisting of Kyle Jones, Robert Bishop and others. The two groups had fought each other and Mr Bishop had been punched in the nose by an unknown male and was bleeding. When spoken to by the police, the youths were loud and aggressive and were seeking to locate the person who had punched Mr Bishop. The group was told by police to stop causing trouble by being loud and aggressive and to go home. 10 The group began to walk towards Leumeah railway station with Mr Brennan and other police following them. To get to the Western side of the station the group had to cross an overpass that took them into a car park on the western side of the station. As the group walked they continued to yell abuse at the police. Cameras were located on both sides of the railway station and on the overpass. 11 CCTV footage showed that between 2.15 and 2.17 am a group of young people were walking across the overpass and down the stairs towards the Western side of the railway station. Mr Brennan, Senior Constable Wilson, Constable Maziarz and Constable Grey are seen following the group. Kyle Jones and a person by the name of Tyson Olling are seen following the police.

12 Messrs Jones and Olling proceeded down the stairs. The respondent suddenly turned around at about the time he was level with Mr Jones. When Mr Brennan and Kyle Jones reach the top of the stairs Mr Brennan is holding onto Kyle Jones with his right hand, he places his left hand in the same vicinity and moves in front of Mr Jones. He then moves to the right side of the stairs and pulls across his body. As he does so Mr Brennan plants his feet and bends his right knee. He then throws Mr Jones into the lift doors at the top of the overpass. Mr Jones was 17 years old at the time. 13 Flannery DCJ found that Mr Brennan committed the assault in his employment as a police officer; that Mr Brennan's behaviour in relation to Mr Jones was extremely serious; and that Mr Brennan did not show any remorse. 14 In sentencing Mr Brennan, Flannery DCJ stated in relation to the assault on Mr Jones: The assault was committed by the appellant in his employment as a police officer and whilst the situation he found himself in was not an easy one he had been well trained to deal with such a situation and in my view his behaviour in relation to Mr Jones was extremely serious. Bishop Incident

15 This incident involved Mr Brennan discharging Oleoresin Capsicum spray ("OC Spray") in the face of Mr Robert Bishop. OC Spray is an airborne delivery system used to convey an inflammatory agent to the subject's location to restrain or limit the subject's actions. It is designed to be sprayed directly into the subject's face. It causes the eyelids to spasm and shut, blood vessels to dilate, bronchial tubes to constrict, mucous membranes to secrete profusely and blood to rush to the upper body, weakening the extremities. The evidence accepted in the District Court was that OC Spray is not to be used by police as punishment or as a threat to enforce directions but is to be used if there is violent resistance or confrontation occurring or likely to occur. 16 In the appeal proceedings before Flannery DCJ, her Honour set out the relevant background to the Bishop Incident as follows: When Constable Wilson of the Dog Squad was on the western side of the station a person who was probably Robert Bishop came up to the vehicle he was in and said, "I've got to go back to the club I can't find my phone." Senior Constable Wilson said to him, "You can't go back, you've been told not to, you'll be arrested." Mr Bishop said, "I don't give a fuck." Robert Bishop at this point according to Constable Wilson was very intoxicated, very loud, very obnoxious and swearing but was not as aggressive as he had been earlier. Senior Constable Wilson then warned over the police radio that Robert Bishop was fairly agro. He did this because he believed the situation might escalate again. 17 Mr Brennan was in the vicinity of Leumeah railway station with Constables Howarth, Woollard and Maziarz. He observed Mr Bishop, Tyson Olling, Daniel Stanton and Steven Whitelaw walking down the stairs to the eastern side of the railway. They turned left and walked along a footpath near a green iron fence that was 1.01 metres high. Mr Bishop and his companions were on one side of the fence, Mr Brennan on the other. The respondent's evidence considered in the District Court was that he said to Mr Bishop "You've been told to leave, now leave". 18 In her appeal decision, Flannery DCJ referred to the respondent's evidence in the following terms: The [respondent] said that he saw at least two others with Robert Bishop. He agreed that he used the words "piss off" but denying (sic) saying "fuck off". The [respondent] continued towards the fence until he was about one metre away from it. At that time Mr Bishop was leaning over the fence waving his hands around and saying things like "You fucking dog cunts, you can't tell me what to do, we're going to get them". He said Mr Bishop was being aggressive towards him and that he deemed that there was a threat to him. He said that he did not hear Mr Bishop say anything about a telephone. He raised his OC spray and adopted a defensive stance. He then discharged the one second burst of OC spray directly into the face of Robert Bishop. Mr Bishop and his friends then ran towards the western side of the railway station.

19 Flannery DCJ accepted that Mr Bishop was at the fence at the time there was a confrontation between Mr Bishop and the respondent. Her Honour also accepted that Mr Bishop was "swearing and carrying on in an abusive way". As to Mr Bishop's claim he was returning to retrieve his mobile phone, her Honour found that Mr Brennan was not aware that was the case. 20 Flannery DCJ stated that whilst it would have been preferable if Mr Brennan had adopted a more measured approach to the situation, and it was not an "arrest situation", her Honour was not satisfied beyond reasonable doubt that the Crown had proven beyond reasonable doubt that Mr Brennan did not act in self-defence. That is to say, there was a reasonable possibility that Mr Brennan believed that his conduct was necessary in order to defend himself and that what he did was a reasonable response to the circumstances, as he perceived them to be. The appeal in respect of the Bishop Incident was upheld. Local Court proceedings

21 In relation to the Jones Incident, Magistrate Bartley made the following findings: · the potential for physical violence on 22 May 2005 towards police occurred during the confrontation between two groups of youths at the Leagues Club. For the rest of the night the aggression was solely verbal and not physical. · there was no evidence of threats of physical violence towards police officers. · Mr Brennan grabbed Mr Jones by his clothing at the back of the neck and pulled him up the stairs. · Jones was not argumentative. · Jones offered no resistance at the top of the stairs or from the first moment of apprehension on the stairs.

· the events at the top of the stairs was described by the prosecutor. His Honour accepted as correct the following description by the prosecutor: "When the accused reaches the top of the stairs while still holding onto Jones with his right hand, the accused places his left hand in the same vicinity, moves in front of Jones, then as he moves to the right side of the stairs the accused pulls Jones across his body. As the accused conducts this manoeuvre he plants his feet and bends his right knee allowing him to use more force. The accused then throws Jones into the lift doors at the top of the overpass. This action of the accused is deliberate, intentional and excessive. The accused's feet are clearly planted when he pulls Jones across his body. He did not lose his grip as he suggested in his own evidence to the Court. He was not moving towards the elevator when he pulled Jones across his body." · the throw of Jones by the accused into the lifts was a deliberate throw using very excessive force. · Constable Maziarz was a completely honest witness and his evidence generally was cogent. · it was the accused's anger at Jones' back answering and defiance and having been a smart arse that was on his mind and that was the reason why he apprehended Jones on the western staircase of Leumeah railway station.

· there were several instances of the accused making up his evidence as he went along, trying to tailor it to the evidence that had emerged during the hearing or to what was being put to him. · the arrest of Jones was inappropriate. · it was beyond reasonable doubt that the accused assaulted Jones from the time he grabbed him on the western stairs of Leumeah railway station to the time that Jones first struck the lift doors at the top of the overpass, having been hurled into the doors by the accused. 22 In relation to the Bishop Incident, Magistrate Bartley made the following findings: · outside the Leagues Club Mr Bishop was extremely intoxicated and swearing and being aggressive towards police in the sense of refusing to move. Not in the sense of being physically aggressive to police. · Mr Bishop was very loud and obnoxious; he was verbally aggressive rather than physically aggressive. · Constable Maziarz said that it would not be easy to get over the fence separating the police from Mr Bishop and his colleagues. His Honour accepted that evidence.

· there was not a serious risk that Robert Bishop could quickly whip around the north end of the green fence and attack the accused. · at the time he was sprayed Mr Bishop was at the fence and Mr Brennan was one and a half metres to the east of the fence. · when he was at the fence Mr Bishop told Mr Brennan he wanted to go back to the Club to get his mobile phone. · the police were not threatened by Mr Bishop at the fence; it was only verbal aggression. · there was no question of Mr Bishop quickly being able to go around the north end of the fence; Bishop was between the third and fourth post from the north. · Mr Bishop had not moved in effect a hand, a foot or a leg to the slightest degree preparatory to going over the fence. · there were ways for the accused to de-escalate the situation with Robert Bishop. · the accused was well trained and experienced in operation tactics in relation to both the use of equipment and methodology, including dialogue. · Mr Brennan frequently dissembled in his evidence. He was an unimpressive witness. He was untruthful in many respects. · the accused did not believe that his conduct was necessary to defend himself; there was not a reasonable possibility that the accused believed his conduct was necessary in order to defend himself when he sprayed Robert Bishop. · the Crown negatived self-defence by proving beyond reasonable doubt that the accused did not genuinely believe that it was necessary to act as he did in self-defence. · the accused assaulted Robert Bishop as alleged by spraying him with the capsicum spray. From a position of adequate safety and without imminent fear of violence the accused struck Robert Bishop with a fine jet of capsicum spray of one second duration not in self-defence and without legal justification. However, there was substantial provocation from Robert Bishop. 23 In sentencing Mr Brennan in relation to the assault on Mr Jones, the Magistrate inferred there was no contrition or remorse on Mr Brennan's part.

24 There were two grounds in the s 181D(3)(a) notice issued by the Police Commissioner on 8 May 2006 as providing the basis for considering Mr Brennan's suitability to continue as a police officer, taking into account his conduct: 1. On 22 May 2005, you attended the vicinity of Western Suburbs Leagues Club in response to a brawl. You were one of a number of police that attended the location. When you arrived you were met by a number youths that were loud and aggressive. The youths were told to go home and commenced walking towards Leumeah Railway station. You followed the youths towards the station overpass where one of the youths, Mr Kyle Jones, was told by Constable Scott Maziarz to leave the area. You were with Constable Maziarz.

Mr Jones complied with this request and commenced walking down the stairs at which point you asked him if he had been drinking. He replied 'no'. Mr Jones had a can of alcohol in his possession. You grabbed Mr Jones by the shirt and dragged him up the stairs of the overpass and threw him against the lift doors at the top of the overpass. You then handcuffed Mr Jones with his hands to the rear and walked him to a caged police vehicle. You released him a short time later without charge or without obtaining any details from him.

An 'Adverse Finding' was made against you for assaulting Mr Jones. It was established that you were not justified in arresting Mr Jones and you used excessive force during the arrest. You entered the criminal justice system charged with 'Common Assault' upon Mr Kyle Jones. You pleaded not guilty to the offence and appeared at Downing Centre Local Court on 27 March 2006 where the matter was heard. The matter has been adjourned to 24 June 2006 at Central Local Court at which time a judgement will be handed down by the Magistrate.

Your actions have also breached the Code of Conduct and Ethics - Limitations of Authority which states: Whatever your position, you may not act beyond the powers the law and the NSW Police give you.

Additionally you have breached the Code of Practice for Custody, Rights Investigation, Management and Evidence which states: The amount of force you may use will vary according to the resistance to the arrest. You can only use such force as is reasonably necessary to make the arrest or prevent the escape of the person after the arrest. You will be judged on the reasonableness of your actions on the basis of the circumstances at the time.

2. In the early hours of 22 May 2005, you attended the vicinity of Leumeah Railway Station in response to a disturbance which involved a number of youths which police had earlier been dealing with. You were one of a number of police which attended the location. Upon arriving you approached a group of people outside the railway station. One of those people was Mr Robert Bishop. At the time of approaching the group you were holding your canister of Oleoresin Capsicum (OC) spray in your hand with your arm extended, pointing the OC spray in the direction of the group of youths. There was a one and half metre fence dividing yourself and the youths.

You told the youths to go home or they would be sprayed. Mr Bishop informed you that he wanted to go to the Western Suburbs Leagues Club to get his phone, which they had advised him had been located. Whilst Mr Bishop was speaking to you he had his hands raised above his head. You walked forward and sprayed Mr Bishop in the face with a one second burst of capsicum spray, whilst he was walking backwards from the fence and attempting to ask a question. At the time you sprayed Mr Bishop you were in the company of two other police and were separated from the youths by the fence. Upon your return to the station, you created COPS event E26083388 justifying your use of OC spray due to a violent confrontation.

An Adverse Finding was made against you for assaulting Mr Bishop. It was established that you were not justified in the circumstances to use the OC spray. You were charged with 'Common Assault' upon Robert Bishop. You pleaded not guilty to the offence and appeared at Downing Centre Local Court on 27 March 2006 where the matter was heard. The matter has been adjourned to 24 June 2006 at Central Local Court at which time a judgement will be handed down by the Magistrate.

Your actions have also breached the NSW Police Code of Conduct and Ethics - Limitations of Authority which states: Whatever your position, you may not act beyond the powers the law and the NSW Police give you.

I am aware that on 9 May 2001, you signed an acknowledgement that you had received and read the NSW Police Code of Conduct and Ethics. … 25 These grounds were repeated in the Commissioner's Statement of Reasons for removing the respondent from the Police Force and, additionally, the Statement referred to Mr Brennan's convictions in the Local Court in the following terms: You pleaded not guilty to both offences and appeared at Downing Centre Local Court on 27 March 2006 where the matters were heard. On 27 June 2006, you appeared at Central Local Court where you were found guilty and convicted of the assaults on Mr Jones and Mr Bishop. You are due to be sentenced on 4 September 2006. Decision at first instance

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

37 There were two grounds of appeal: 1. That Justice Haylen erred in finding that the removal of the respondent from the NSW Police Force by order of the appellant made pursuant to s 181D of the Police Act was harsh. 2. That Justice Haylen erred in finding that the respondent should be returned to employment with the NSW Police Force, with continuity of service for the time over which the respondent was absent from the NSW Police Force but without payment for that period.

38 The appellant's case was summarised by Mr J West QC in the following way: The nub of our contention is that his Honour misdirected himself upon the approach which he was to take to the answering of the question: Whether or not this termination was harsh, unfair or unjust and, if it was, what he should then do about it, if anything?

To put not too fine a point on it, the critical error which his Honour made was to treat the conduct in relation to both the first offence, which was found proven, and the second offence which was proven, as of a lower level of culpability than was attributed to it by the criminal court.

Secondly, to put into the mix of issues to which he would have regard under the statute, of either Mr Brennan's interest or the public interest, the criminal sentence visited upon Mr Brennan by the criminal court.

The third fundamental error was to treat a statement by the criminal court, to the effect that the Crown had failed to negative a possibility on the criminal standard that Mr Brennan might have been acting in self defence in relation to the second issue, as being a positive finding that he acted in self defence. His Honour could not make that third conclusion, absent Mr Brennan getting in the witness box and giving evidence and testing the veracity of his statement. That did not happen ergo his Honour's treatment of the conduct which lay at the heart of the Commissioner's decision that this man had acted in such a way as to cause the Commissioner to lose confidence in him, could not be reversed.

It certainly couldn't be reversed without there being some evidence before his Honour, which his Honour could test and be satisfied about, to fill in the gap that he needed to fill in to convert what was not available in the criminal court findings to something it was, and that is where he went off the rails.

So that you are left with a case where the Commissioner acted at a time when there were two convictions for common assault found against this officer. The Commissioner had no interest in the penalty which might be awarded, none whatsoever. It didn't bear upon whether or not the man had lost the Commissioner's confidence. What the criminal law would award by way of sanction for a breach of it, having regard to the criminal sentencing provisions, is one thing; what the Commissioner was concerned with was that an officer had been found guilty of criminal conduct. Whether he got a bond, whether he got a sentence of penal servitude or whether the Court had found the conduct proven but elected to record no conviction made no difference; his Honour thought it did and that was a fundamental misdirection.

39 The respondent's case consisted of the following propositions: (1) This is an appeal stricto sensu on both fact and law, and not by way of a hearing de novo . (2) The Full Bench should not substitute its own judgments as Haylen J has not fallen into error of law or has not made a finding of fact that is clearly wrong or is not reasonably open on the evidence. The Full Bench is duty bound not to reverse decisions of a trial judge merely because the appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made.

(3) Arguments that Haylen J "failed to give sufficient weight" or "the correct approach to the weighing" or "… the significance was far outweighed …" or "…should properly have concluded that the interests of Mr Brennan were outweighed …"or "it was erroneous for Haylen J to elevate or assign to Mr Brennan's interests such weight as would outweigh the public interest …" do not justify appellate intervention for the reasons that: a. The Full Bench is duty bound not to reverse decisions of a trial judge merely because the appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made; b. the appellant said at first instance: "The assessment can be made differently by different people". Thus, as reasonable minds can differ on the assessment, it does not evince appealable error just because one party is dissatisfied with the result of the balancing exercise; c. the appellant's arguments regarding the weighing of the police officer's interests against the public interest are inconsistent with the most comprehensive discussion of the significance of the public interest in Van Huisstede v Commissioner of Police (No 1) (2000) 98 IR 57 and were rejected by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [67] - [68], the Full Bench in Hosemans v Commissioner of Police (2004) 138 IR 159 and the majority of the Full Bench in Commissioner of Police v Evans (2006) 153 IR 144; d. section 181F(1)(3) does not dictate what weight or influence each of the particular matters is to have in the decision to be made: Commissioner of Police v Dobbie (2006) 157 IR 44 at [67]; e. contrary to what may be inferred from the appellant's submission, Haylen J did take into account that the appellant relied upon an assault by the respondent of Mr Jones that occurred in the course of duty; and f. in having regard to the public interest (s 181F(3)(b)) there is even internally competing aspects. It is in the public interest that the 15,000 or so police officers are able to have any s 181E review conducted by the application of the 35 year old principles adumbrated by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 (" Metropolitan Meat "). There is a general industrial principle that the interests of employees are an important aspect of public interest: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325. (4) The appellant's contentions in relation to the "NSW Police Code of Conduct and Ethics" should not secure appellate intervention for the reasons that: a. Haylen J correctly interpreted and understood the meaning of that Code; b. the appellant should not be permitted on appeal to pursue arguments that are inconsistent with submissions and concessions he made at first instance. There was no dispute at first instance that there has never been a policy that being found guilty of an assault offence by itself would trigger as a matter of policy a lack of confidence. (5) As to the description of the respondent's conduct as a "misjudgment", only one aspect of the Jones Incident was ultimately found proven, namely, there was an excess of force used in throwing Mr Jones into the elevator door. All other aspects alleged by the appellant and relied upon in the removal decision were not proven. The reference to a "misjudgment" is clearly to the justification advanced by the respondent for the throwing action and that the respondent made some errors of judgment. (6) As to the appellant's contention that Haylen J erred in taking into account what was an "appropriate penalty" or the criminal sentence; they do not evince appealable error for the reasons that: a. the appellant refers to no authority in s 181E reviews or unfair dismissals that grounds the arguments; b. the approach of Haylen J is consistent with Watson J in Metropolitan Meat at 233. The principles in Metropolitan Meat are well settled and permit "considering whether or not the termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified" and "because of mitigating circumstances or past conduct, termination has been shown to be too harsh a consequence"; and c. as seen from Little (No 2) , Haylen J was obliged to take into account the District Court sentence as it was part of the material before the Commission. (7) As to arguments relating to the Bishop Incident that Haylen J erroneously elevated, to the status of positive findings of fact, findings in the District Court, they are misconceived for the following reasons: a. the appellant's arguments involve the erroneous approach of a fine appellate tooth-comb; b. the appellant does not understand the impact of s 418 of the Crimes Act 1900. (8) The acts by Mr Bishop intentionally, or recklessly, caused the respondent to apprehend immediate and unlawful violence. The respondent who, according to the circumstances as he understood them, genuinely believed that he was threatened with an attack, was not obliged to wait until the attack began. A person so threatened could use reasonable measures to make the situation safe, and he did not act unlawfully merely because he forestalled or tried to forestall the attack before it began (9) As to the arguments that Haylen J should have determined for himself whether the use of OC spray was appropriate in the circumstances, whether the conduct constituted a breach of the Code, or whether use of the OC spray was necessary for the respondent to defend himself; none of these arguments evince appealable error for the following reasons: a. the appellant does not read fairly or as a whole the reasons of Haylen J; and b. the appellant ignores the settled position in s 181E reviews that the appellant himself bore the evidentiary burden of proving such alleged misconduct. (10) Interference at appellate level regarding the relief granted may only be justified where the conclusion reached by the judge at first instance has resulted in a failure to exercise the discretion conferred. It is not sufficient that the appeal Bench merely takes a different view to that of the trial judge. The conditional remedy involves a clear warning (which the respondent no doubt appreciates) that he cannot expect the same treatment on a future occasion ( Metropolitan Meat at 234.5). The very clear message from his Honour was that in having been provided with this opportunity of remaining in NSW Police the respondent has used up all of his chances ( Dobbie at [61]).

40 The interaction of the Police Act with the provisions of the Industrial Relations Act in the context of considerations involving the removal of police officers has often produced issues of some complexity. To a significant degree the issues have been resolved in such cases as Van Huisstede v Commissioner of Police (No 1) (2000) 98 IR 57; Starr v Commissioner of Police [2001] NSWIRComm 226; Little v Commissioner of Police (No 2) (2002) 112 IR 212; Hosemans v Commissioner of Police (2004) 138 IR 159; and Commissioner of Police v Dobbie (2006) 157 IR 44. 41 This case does not so much raise issues regarding the interaction between the two statutes, but it does raise for appellate consideration at least one important matter namely, the correctness or otherwise of the trial judge taking into account any sentence imposed under the criminal law on a police officer in assessing the nature and quality of the officer's conduct for the purpose of review under s 181F of the Police Act. There is also a substantial issue of law as to whether Haylen J erred in reaching critical conclusions in relation to the OC Spray Incident without first making relevant findings of fact as to whether the use by Mr Brennan of the OC Spray was appropriate in the circumstances, whether the conduct constituted a breach of the Police Code, or whether use of the OC Spray was necessary in the circumstances confronting Mr Brennan. 42 The circumstances that led to Mr Brennan's removal occurred whilst the respondent was on duty and involved criminal charges being brought against him for assault. In the light of the trial judge's decision that the removal of Mr Brennan was harsh and his Honour's decision to reinstate the respondent, we consider the appeal has wider implications for the jurisprudence of the Commission as it affects the Police Force in particular. 43 Accordingly, we propose to grant leave to appeal. CONSIDERATION

44 The decision of the Police Commissioner to remove Mr Brennan was made following on investigation of his conduct by Detective Senior Sergeant Patterson. The outcome of the investigation was contained in the document known as the Commissioner's Confidence Submission. On the basis of that investigation Mr Brennan was provided with the notice under s 181D(3)(a) inviting him to show cause why he should not be removed. Mr Brennan subsequently provided a submission to the Commissioner as to why he should not be removed. On 21 July 2006, the Commissioner removed Mr Brennan from the Police Force for the reasons earlier recited in this decision. 45 We would observe that the Commissioner's decision to remove Mr Brennan was not based wholly or, in our opinion, even substantially on the findings of guilt in the Local Court for the two assaults. It is apparent that the internal investigation of the Jones and Bishop Incidents led the Commissioner to require Mr Brennan to show cause why he should not be removed and not the Local Court outcome. Then, in providing his reasons for the removal, the Commissioner effectively repeated what had been put to Mr Brennan in the notice under s 181D(3)(a). The fact that Mr Brennan had been convicted of two criminal offences since the s 181D(3)(a) notice had been issued was obviously a matter taken into account by the Commissioner, but we do not regard the fact of those guilty findings as being the core basis upon which the removal decision was made. Rather it was Mr Brennan's conduct as described in the Commissioner's Statement of Reasons for removing the respondent. 46 In his consideration of Mr Brennan's claim for reinstatement, Haylen J stated it was of significance that, on a review of the Commissioner's determination, in relation to the assault on Mr Jones, 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. 47 As to the 'important differences', it would appear that his Honour was referring to the statement in the Confidence Submission to the effect that Mr Brennan grabbed Mr Jones by the shirt and dragged him up the stairs of the overpass and, at the top of the stairs, had thrown Mr Jones against the lift doors; that during the incident, Mr Brennan was alleged to have hit Mr Jones with his head, although it was uncertain whether the head butt was intentional; that Mr Brennan was not justified in arresting Mr Jones; and to the reference in the Submission to a statement from Matthew Kelleher that he had seen Mr Brennan shove Mr Jones into the elevator door "a couple of times" (see [102] of the decision at first instance). His Honour observed that, "there was no statement by the Commissioner as to which of these numerous allegations was found to be established: it appears that the Commissioner took into account all the allegations." 48 The reason his Honour seems to have considered that the foregoing matters represented important differences from what was found on review was because neither the Local Court nor the District Court on appeal found that Mr Jones was, in terms, "dragged up the stairs". Nor did they find that Mr Brennan shoved Mr Jones into the elevator door "a couple of times", nor did they find Mr Brennan head butted Mr Jones intentionally, nor did they find Mr Brennan was not justified in arresting Mr Jones. 49 However, in his notice under s 181D(3)(a) and in the Statement of Reasons the Commissioner did not refer to either head butting or to Mr Jones being shoved into the elevator doors twice or to the arrest not being justified. It is difficult, in those circumstances, to understand how it appeared to his Honour that the Commissioner "took into account all the allegations" in arriving at his decision to remove the respondent. 50 The Commissioner did refer, in his Statement of Reasons, to Mr Jones being dragged up the stairs. Magistrate Bartley found that Mr Brennan took Mr Jones up the stairs "very quickly" and that "The accused was acting outside the execution of his duty when he pulled Jones up the stairs". Flannery DCJ could not see from the CCTV footage exactly what happened on the stairs and was not prepared to find that whatever happened on the stairs involved the use of excessive force so as to constitute an assault. 51 We also viewed the CCTV footage. And whilst it is not entirely clear what did happen on the stairs, the footage is capable of supporting the view that Mr Brennan dragged Mr Jones up the stairs. As Mr Brennan reached the top of the stairs he could be seen pulling Mr Jones behind him by the latter's clothes. As to the arrest, Magistrate Bartley found it was "inappropriate". Judge Flannery also found the arrest was inappropriate and the offence was punishable by fine only. 52 In suggesting there were important differences between the allegations in the Confidence Submission and the findings on review, Haylen J took the view that the assault on Mr Jones was not as serious as the Confidence Submissions made out. At [112] his Honour stated, "The circumstances surrounding the assault and the nature of the assault itself demonstrated it to be of a low level." Further, his Honour appears to have considered that view was supported by the fact 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. 53 We do not agree with his Honour. Firstly, the reliance on the Confidence Submission and/or the s 181D(3)(a) notice as the basis on which the Commissioner made his decision to remove Mr Brennan was wrong. But even if one were to accept that it was appropriate to consider the Confidence Submission alone, the differences between it and the findings of the Local Court and the District Court, findings relied upon by Haylen J in reviewing the Commissioner's removal decision, were insubstantial when one considers the core conduct of Mr Brennan that constituted the assault on Mr Jones. The differences between the Commissioner's Statement of Reasons for removing Mr Brennan as to the respondent's conduct and the findings of the two criminal Courts as to that conduct were even more marginal, as we have explained. 54 The essence of the assault charge and findings relating to Mr Jones was, as Magistrate Bartley described it, the "deliberate throw" by Mr Brennan of Mr Jones into the lift doors "using very excessive force". Judge Flannery found the assault on Mr Jones to be "extremely serious". The CCTV footage bears those descriptions out. Given those findings, the portrayal by Haylen J of the assault as a "misjudgement" gravely underrates the seriousness of Mr Brennan's conduct. 55 The findings of the two criminal Courts in relation to Mr Brennan's guilt for the assault on Mr Jones are consistent with the Commissioner's reasons for removing Mr Brennan. In one sense, they confirm the correctness of the Commissioner's assessment of Mr Brennan's conduct. We have reviewed all of the material before the two Courts and which was the subject of the review at first instance. We find ourselves in agreement with the description of Flannery DCJ that the assault was "extremely serious". 56 His Honour noted at [107] 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" and at [112]: 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…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. 57 It is apparent that his Honour considered that the criminal penalty imposed on Mr Brennan in respect of the assault on Mr Jones reflected an offence with a low level of culpability. Not only is it difficult to reconcile such a view with that of Flannery DCJ, which we agree with, that the offence was "extremely serious", but also the purposes for which a court may impose a sentence on an offender (see s 3A of the Crimes (Sentencing Procedure) Act 1999) are entirely different from the purpose of the Commissioner in removing a police officer and may involve a complex mix of objective and subjective factors, which in the weighing up process may sometimes entail conflicting considerations.

58 In Veen v The Queen (No 2) (1988) 164 CLR 465 Mason CJ, Brennan, Dawson and Toohey JJ said at 476: [S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

59 In James Peter Engert (1995) 84 A Crim R 67 Gleeson CJ said at 68 after discussing Veen v The Queen (No 2): A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. … It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise. 60 In Markarian v The Queen (2005) 228 CLR 357 at [27] the High Court observed that sentencing is a discretionary exercise and that there is no single correct sentence.

61 Punishment, being one of the purposes of sentencing, is not the objective in removing a police officer and it is not the Commission's task in assessing whether the removal was harsh, for instance, to assess whether or not removal was the appropriate punishment. What his Honour was required to do pursuant to s 181F(3) was to 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)). In other words, the Commission is required to weigh up the competing interests of both an applicant and the public interest, which includes maintaining the integrity of the Police Force. In doing so, the Commission is required to consider, amongst other things, whether the conduct of the police officer that led to his or her removal was such that it so undermined the Force's integrity as to outweigh the applicant's interests. An assessment of the level of culpability of the officer's conduct based on the sentence for a criminal conviction is not the correct focus of the inquiry under s 181F(3) and may lead the trial judge into error which, in our opinion, is what occurred here.

62 His Honour's approach to the assessment of Mr Brennan's conduct led him to conclude that the "extremely serious" assault on Mr Jones was not a matter that, in the public interest, should outweigh the interests of Mr Brennan. His Honour considered that the public interest was best served by retaining a person who had some apparent aptitude for the policing task. 63 Whilst the trial judge gave approriate consideration to the interests of Mr Brennan, especially at [112] of his decision, we do not consider that his Honour gave proper consideration to the public interest, in particular, the maintenance of the integrity of the Police Force. Mr Brennan committed the assault on Mr Jones during the course of his duty as a police officer. We agree with the appellant's submission that conduct of a criminal nature involving the use of excess force against a member of the community is fundamentally at odds with the functions of the NSW Police Force and the specific duties of a police officer. 64 As the appellant observed, the statutory mission of the NSW Police Force is to work with the community to reduce violence, crime and fear: s 6(1) of the Police Act. The values enshrined in s 7 of the Police Act to which members of the Police Force are required to adhere in carrying out their duties include: upholding the rule of law (s 7(b)); and ensuring that authority is exercised responsibly (s 7(h)). Section 14 of the Police Act provides that, "In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State." 65 At common law the office of constable was regarded as a public office: Enever v The King (1906) 3 CLR 969 at 975-976 per Griffith CJ; Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) and Others (1952) 85 CLR 237 (High Court of Australia); Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113 (Privy Council). This remains the position. 66 The appellant submitted that the public interest, reflected in the conferral of the power in section 181D of the Police Act is concerned with maintaining a police force whose members are not only sworn to uphold and enforce the statutory mission and functions referred to above, as well as undertake the special responsibilities of the public office, but do so in fact. We agree with this submission. 67 It was further submitted by the appellant that the public interest is served by ensuring that police officers who are convicted of criminal conduct involving excessive use of force on members of the community do not hold office. This is not a submission that we accept without qualification. We are not prepared to endorse a position that may be regarded as giving blanket approval to the automatic removal of any officer convicted of criminal conduct involving excessive use of force. Each case will need to be decided on its own facts according to the requirements of Div 1C of Pt 9 of the Police Act and, in particular, s 181F. 68 In the present case, the respondent was a well-trained police officer with nearly four years' experience of policing at the time of the assault. Mr Jones did not struggle or resist in any way and was not argumentative. It was only Mr Brennan's anger at Mr Jones' back answering and defiance and having been a 'smart arse' that was on his mind and that was the reason why he apprehended Mr Jones. The action of Mr Brennan in throwing Mr Jones against the lift doors was described as "deliberate", "intentional" and "very excessive". The assault was "extremely serious". The arrest of Mr Jones was unnecessary and a fine would have sufficed. 69 The only possible mitigating factors in relation to the assault on Mr Jones were what the Magistrate described as Mr Jones' insolent answer to the question of whether he was drinking from a can of alcohol and the abuse and recalcitrance of the Jones' group at the front of the Leagues Club prior to the first offence. However, given Mr Brennan's training and his obligations under the Police Act and at common law, those factors that might be said to provide an excuse for his conduct carry little weight, as the Magistrate concluded. Moreover, Mr Brennan showed no remorse for his actions. Indeed, in his submissions before Haylen J the appellant submitted that in conducting himself in relation to Mr Jones that "he was acting entirely within the execution of his duty".

70 In addition to these public interest considerations, we have considered what his Honour found in relation to the respondent's interests. We have also taken into account what Watson J stated in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233, which has been regarded (see Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [70]) as applicable to proceedings such as this, namely, that even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal.

71 We have concluded that Haylen J erred in finding that the removal of Mr Brennan was harsh. His Honour should properly have concluded that the interests of Mr Brennan were outweighed by the public interest and that his removal as a consequence of the assault on Mr Jones was not harsh. Bishop Incident 72 We turn to the Bishop Incident. It is worth recalling the situation as it developed in relation to Mr Brennan's conduct in spraying OC Spray into the face of Mr Bishop. There had been a confrontation in front of the Leagues Club between two groups of people. Mr Bishop was one of the main agitators. He was extremely intoxicated and was particularly aggressive and abusive, although not in the sense of being physically aggressive. The police on the scene began to disperse the crowd and ushered some of them, including Mr Bishop, towards the western side of the railway station. 73 At about 2.26 am Mr Bishop and three others (Whitelaw, Olling and Stanton) headed back towards the eastern side of the station to retrieve Mr Bishop's mobile phone. Mr Bishop advised Senior Constable Wilson of this intention. Senior Constable Wilson was in his vehicle on the western side. He said Mr Bishop was very intoxicated, very loud, very obnoxious and swearing, but that he was not as aggressive as he originally was. Senior Constable Wilson advised on his radio that the four were returning and that "one of them's fairly aggro". 74 Mr Bishop and his three colleagues came down stairs on the eastern side of the station and turned to walk on the footpath where there was a one metre high pool-type fence separating the footpath from the roadway. On the roadway on the other side of the fence was Mr Brennan who had heard Senior Constable Wilson's radio call, with Constables Woollard, Maziarz and Howarth. Constable Ragen was also in the vicinity. Mr Bishop was between the third and fourth post from the northern end of the fence. The Magistrate found there was no serious risk that Mr Bishop could quickly whip around the northern end of the fence and attack Mr Brennan. 75 Mr Brennan and Constable Maziarz had taken the OC Spray canisters from their holders. Constable Maziarz said he had pulled out his canister of spray when he was approaching the fence, but well back from it, because he then thought there was a likelihood of confrontation, but he said the likelihood receded as he approached the fence. His assessment was that as he approached closer, the prospect of violence changed to verbal aggression and just yelling. The Magistrate found there was no evidence of any threat to police. 76 Mr Bishop continued to be loud, verbally aggressive and hurling abuse. He was swearing at the respondent. The respondent said he told the group to leave. Mr Bishop by this stage was at the fence. The respondent in his evidence in the Local Court conceded that Mr Bishop did not make any move to scale the fence or move around it and never made any move towards the respondent. Mr Brennan also conceded that there was nothing to prevent him from taking a step back if Mr Bishop did make any move to scale the fence. Mr Brennan was within about 1.5 metres of the fence. Nevertheless, he claimed that he believed that Mr Bishop was going to jump the fence or come around it. He sprayed a one second burst of OC Spray into Mr Bishop's face. The can of OC spray was less than one metre from Mr Bishop when it was sprayed. Mr Brennan said he sprayed Mr Bishop "because of his demeanour and the way he was leaning up against the fence and the fact that he was very aggressive towards me". Mr Bishop and his three colleagues then ran towards the western side of the railway station. 77 It was Constable Maziarz's evidence that Mr Bishop took one or two steps back with his palms out when the spray was pointed at him. He said Mr Bishop had his hands out at chest height and was non-threatening. Constable Ragen said that Mr Bishop took at least one step back before being sprayed. The Magistrate regarded Constable Maziarz as a completely honest witness. 78 Magistrate Bartley found, after proceedings extending over nine days in the Local Court, that the Crown had negatived self-defence by proving beyond reasonable doubt that Mr Brennan did not genuinely believe that it was necessary to act as he did in self-defence, and proceeded to find that Mr Brennan assaulted Mr Bishop by spraying him with capsicum spray. On appeal, however, Flannery DCJ was not satisfied beyond reasonable doubt that the Crown had proved that the respondent had not acted in self-defence. 79 In considering the Bishop Incident, Haylen J reviewed again in summary form, the decision in the Local Court and the matters that influenced Magistrate Bartley in coming to his decision regarding the assault. His Honour then referred again to the decision on appeal in the District Court and at [127] stated: 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. 80 Whilst in earlier parts of his decision the trial judge correctly reflected the decision of Flannery DCJ regarding the self-defence issue, at the critical point in his judgment where his Honour was considering the effect of what Judge Flannery found, Haylen J's depiction of what her Honour found was wrong. Flannery DCJ did not make a positive finding 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". Whilst it is not easy to find the basis of her Honour's finding, her Honour found that the Crown had not discharged its onus of proving beyond reasonable doubt that Mr Brennan did not act in self-defence. That is to say, what Judge Flannery found was that the Crown did not negative the possibility that Mr Brennan acted in self-defence. 81 Having taken the view that Flannery DCJ had made a positive finding that Mr Brennan acted in self-defence, Haylen J found that "the Commissioner's case on Review effectively becomes an assertion that Mr Brennan should not have felt under threat" and that "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 approach to the situation", the latter statement being one which, in his Honour's opinion, "falls well short of a finding of a breach of the Police Code or police training". 82 His Honour's encapsulation of the appellant's case below was not as we apprehended it. As we understood the Commissioner's submissions at first instance in relation to the Bishop Incident, they were that although it was accepted that Mr Brennan was acquitted of the assault charge on Mr Bishop there was, nevertheless, a "significant transgression of the Police Code of Conduct " and his conduct was otherwise inappropriate having regard to his specific training in the use of OC Spray, which prohibited the use of capsicum spray unless it was required for controlling people where violent resistance or confrontation had occurred or was likely to occur. 83 In submissions at first instance it was put for the Commissioner that: s the assessment that Mr Brennan made of the situation was seriously defective,

s he should not have closed with Mr Bishop to a metre and a half away,

s if he actually felt in danger, continuing to close with him made no sense,

s his action was pre-emptive and uncalled for and it was contrary to the way in which an officer in that situation would be expected to act,

s it was not a situation where it was apparent that anyone was armed,

s Mr Bishop was conducting himself in an unpleasant and verbally offensive way, but was not violent and he was not offering resistance. He was simply standing behind a fence waving his arms about, verbally abusing the police and Mr Brennan in particular,

s Mr Brennan should have made the same assessment as Constable Maziarz - who said that he was with Mr Brennan and not far from him, and had his capsicum spray out as they began to approach, but as they approached, kept re-assessing the situation and formed the view that there was no threat. 84 The position taken by counsel at first instance in relation to the Bishop Incident, in light of the appeal decision in the District Court, was not inconsistent with the reasons given by the Commissioner in his Statement of Reasons for removing Mr Brennan. The Commissioner did refer in those Reasons to the criminal conviction imposed by the Magistrate (and later overturned by Flannery DCJ) but he also relied on: the allegation that Mr Brennan was not justified in the circumstances to use the OC Spray; the alleged breach by Mr Brennan of the Police Force's Code of Conduct and Ethics; and the alleged breach of the Code of Practice for Custody, Rights Investigation, Management and Evidence.

85 To interpret the finding by Flannery DCJ as a positive finding that Mr Brennan acted in self-defence and, therefore, that the appellant was left with little more than a contention that Mr Brennan should have taken a more measured approach to the confrontation with Mr Bishop, mistakes not only her Honour's finding but it also fails to meet the requirements for review under Div 1C of Pt 9 of the Police Act. 86 It was incumbent on the trial judge to determine for himself (on the civil standard of proof) whether, having regard to the requirements of s 181F of the Police Act and, in particular, the weighing up process required by s 181F(3), the conduct of Mr Brennan was such as to justify his removal from the Police Force. In doing so, notwithstanding that the assault conviction was overturned, his Honour needed to determine for himself whether use of the OC Spray was appropriate in the circumstances and whether the conduct constituted a breach of the Police Codes, and whether use of the OC Spray was necessary for Mr Brennan to defend himself. None of these matters were the subject of findings in the District Court. But even if they were, given those matters constituted reasons for Mr Brennan's removal, the trial judge was required to undertake his own independent review of them in the context of the requirements of s 181F of the Police Act. Importantly, it should be noted that it was not contended by Mr Brennan at first instance that he did act in self-defence and no finding was made by the trial judge about the self-defence issue except to the extent of the mistaken view of the decision in the District Court. 87 As the appellant correctly submitted, the Full Bench may determine for itself the matters that his Honour should have determined for himself, but did not so determine, based on the evidence before the Commission: see Johnston v Commissioner of Police [2007] NSWIRComm 293 at [26]. 88 First, contrary to his Honour's finding at [127] there was considerable evidence regarding Mr Brennan's training. His own evidence in the Local Court was that he had successfully completed the weapons trainers operational safety trainers (OST) course on 15 July 2003. The first phase of the OST course involved a week of training to become a teacher to train small groups. He successfully completed that. He then moved on to four weeks which included training in batons, OC Spray, handcuffs, the Glock pistol, knowing the nomenclature and the effects that each of those appointments have, and advanced teaching in weapons control and defensive tactics. Phase two of his training involved going back to his Local Area Command. He went back to Macquarie Fields Local Area Command as an instructor level 1 and assisted the full time weapons training unit at Wetherill Park as a part time instructor in the teaching of police officers in all aspects of handcuffs, batons, OC Spray, weapons control, 'deftac' and first aid. Mr Brennan then completed his level 2 accreditation that involved teaching participants in the course. At the completion of the course he became a level 2 operational safety trainer. Mr Brennan applied for and was successfully granted allocation to the Operations Support Group Training that consisted of the basic operators' course that commenced on 21 July 2003 and involved a 13-day intensive course that covered public order management and crowd control. His evidence was that he was a weapons trainer, with specialised skills far above other police officers. 89 In the written submissions to the District Court made on his behalf, Mr Brennan stated that he was a highly trained police officer and Operational Support Group officer. 90 Mr Brennan's training in the use of OC Spray included the giving of proper commands to control and instruct a subject prior to spraying. The training manual on the use of OC Spray published by the School of Operational Safety & Tactics at the NSW Police Academy provides that OC Spray is to be used only for: · protection of human life · a less than lethal option for controlling people where violent resistance or confrontation occurs (or is likely to occur) · protection against animals. 91 Mr Brennan conceded in his evidence before the Local Court that OC Spray may only be used if you are defending yourself or someone else and that OC Spray could not be used to threaten someone. Mr Brennan also conceded that he did not use proper verbal commands to control and instruct Mr Bishop prior to spraying him. He also stated that he did not attempt to communicate with Mr Bishop because he "didn't want to and didn't have to". Mr Brennan said in his evidence before the Local Court: I told him [Mr Bishop] to leave now and then he started swearing at us and I said, " Move back or I'll spray you." He didn't move back so I sprayed him. 92 Whilst OC Spray may be used where a violent confrontation is occurring, or likely to occur, we note that in completing his COPS report in the early hours of the morning of 22 May 2005, Mr Brennan justified the use of OC Spray on Mr Bishop because there was "a violent confrontation occurring". In his evidence in the Local Court Mr Brennan said he "had a fear that there was going to be a violent confrontation". 93 It is quite clear from the evidence that no violent confrontation was actually occurring and, on our view of the evidence, no violent confrontation was likely to occur. On Mr Brennan's own evidence in the Local Court: · there was a metre high fence separating Mr Brennan and his police colleagues from Mr Bishop and his three companions,

· At the time Mr Brennan sprayed Mr Bishop: Bishop was leaning against the fence; his hands were being waved around; and he did not have his hands down on the fence to push up,

· Mr Bishop did not make any move to scale the fence or move around it,

· there was no physical threat from or use of physical force by Mr Bishop, · no threats were made against Mr Brennan by any of the group who were present with Mr Bishop at the time,

· there was nothing to prevent Mr Brennan from taking a step back if Mr Bishop did make a move to scale the fence. 94 In addition, Magistrate Bartley found on the evidence: · the potential for physical violence on 22 May 2005 towards police occurred during the confrontation between two groups of youths at the Leagues Club. For the rest of the night the aggression was solely verbal and not physical,

· Constable Maziarz said that it would not be easy to get over the fence separating the police from Mr Bishop and his colleagues and His Honour accepted that evidence,

· Constable Maziarz had his capsicum spray out as they began to approach the fence. As he approached he observed that Mr Bishop and his companions were noisy and aggressive but not committing any offence. Constable Maziarz's assessment was that as he approached close to the fence that the prospect of violence changed to being just verbal aggression. His Honour accepted this evidence,

· there was not a serious risk that Robert Bishop could quickly whip around the north end of the green fence and attack the accused,

· at the time he was sprayed Mr Bishop was at the fence and Mr Brennan was one and a half metres to the east of the fence,

· the police were not threatened by Mr Bishop at the fence; it was only verbal aggression,

· Mr Bishop had not moved in effect a hand, a foot or a leg to the slightest degree preparatory to going over the fence,

· there were ways for Mr Brennan to de-escalate the situation with Robert Bishop,

· Mr Brennan was well trained and experienced in operation tactics in relation to both the use of equipment and methodology, including dialogue. 95 On any analysis, the evidence did not support a conclusion that there was a violent confrontation occurring or likely to occur. Here was an experienced officer, well trained in the use of capsicum spray, said to be not acting out of anger in a situation that patently did not require the spray to be used. In those circumstances, the use of the OC Spray was not only inappropriate and unwarranted and contrary to Mr Brennan's training, but it amounted to a breach of the Police Force's policy and instructions regarding the use of capsicum spray such that Mr Brennan acted beyond the powers the law and the NSW Police Force gave him, thereby rendering him in breach of the Police Force's Code of Conduct and Ethics. 96 Haylen J considered that the Commissioner's view regarding the inappropriate use of OC Spray was based on the statements made largely by junior officers. His Honour stated at [126]: The evidence of Constable Maziarz was highly regarded by the Magistrate, but he had only been on active duty that week and was a far less experienced officer than Mr Brennan whose training was more extensive in the area of crowd control. No explanation was offered in the evidence in the Local Court as to why two other officers had felt it necessary to draw their canister of spray or for how long they held the spray ready for use. 97 His Honour also seemed to consider there was some significance in the fact that Mr Brennan was not acting in anger. His Honour stated at [128]: Use of the spray before a violent attack requires an assessment of often evolving situations during which decisions have to be made in a split second. The Magistrate had placed great weight on the finding that Mr Brennan was in an angry state during both events and accentuated that point in his judgment. That finding was not followed on appeal and the notion of Mr Brennan acted in anger was rejected. 98 In relation to Constable Maziarz and his evidence about the unwarranted use of the spray, it will be recalled that the Magistrate preferred his evidence to that of Mr Brennan. Further, it seems to us there is an alternative view to that favoured by his Honour, which is that an inexperienced officer is more likely to find a violent confrontation, or the prospect of it, far more disconcerting and making the officer fearful for his or her safety than an experienced officer trained in such matters as public order management and crowd control. Yet, it was Constable Maziarz's evidence that the prospect of violence receded as he drew nearer to the fence and that the use of OC Spray against Mr Bishop was unwarranted. 99 As to the anger issue, if it be accepted that Mr Brennan was not angry at the time he sprayed Mr Bishop one may safely assume he had control of his emotions and that, notwithstanding his training and experience, in the absence of any physical threat from Mr Bishop and his companions, he took a deliberate, lucid decision to use his capsicum spray. 100 At [127] Haylen J stated: 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. 101 Given there was no violent confrontation, or the likelihood of such confrontation, given Mr Brennan's calculated use of OC Spray in the absence of any physical threat, given Mr Brennan's experience and training which should have precluded the use of the spray and given the effect of OC Spray on an individual as described earlier, we are unable to agree with his Honour's view that Mr Brennan's conduct should be regarded as being at a low level of culpability.

102 In his decision, Magistrate Bartley observed that many members of the public might think that because of Mr Bishop's "protracted, recalcitrant, offensive and obnoxious conduct" he got what he deserved. However, his Honour stated: [A]s professional police officers like the accused would know, the law does not permit summary justice to be determined by police officers as they think fit without regard to the law.

We concur with those observations. 103 The use of the capsicum spray on Mr Bishop came only about 15 minutes after the Jones Incident. That is, in a relatively short space of time Mr Brennan seriously assaulted Mr Jones and contrary to his training discharged capsicum spray into the face of Mr Bishop in circumstances that were unwarranted and in breach of the Code of Conduct and Ethics. Whilst there was provocation in both of these occurrences it did not, by any means, justify Mr Brennan's conduct. 104 Contrary to what Haylen J found at [131], we are of the view that having regard to the totality of Mr Brennan's conduct, it represented conduct inimical to continued service with the Police Force. We propose to uphold the appeal and set aside the decision of Haylen J as well as the orders made by his Honour on 26 September 2007. Orders

105 The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The decision of Haylen J of 6 September 2007 in Matter No IRC 2864 of 2006 and the orders made by his Honour on 26 September 2007 are set aside. (4) The stay orders made by Wright J on 4 October 2007 are dissolved. ________________________

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