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Credit 136The appellant submitted Walton J erred in not finding that the respondent's statements about his future conduct were inherently implausible/unreliable for the reasons that the respondent: (a) had engaged in the misconduct after being counselled about the Wanaaring incident; (b) proffered spurious defences (presumably the alcohol defence); (c) offered unconvincing expressions of remorse and contrition; (d) lacked integrity because he failed to be candid about the reasons for his behaviour; (e) disregarded s 7 of the Police Act and Oath of Office; (f) showed lack of insight into his obligations, the significance of past warnings, and community expectations as to indecent exposure. 137As to the first three matters and the last matter identified above, we consider we have dealt with those earlier in our decision. With regard to integrity, the appellant eschewed any reliance on lack of integrity at first instance. We, therefore, do not propose to countenance reliance on it on appeal. As to disregard of the values of members of the Police Force in s 7 of the Police Act and the respondent's Oath of Office, Walton J dealt with those matters directly and found that they had been infringed. His Honour stated at 296: The Commissioner referred to s 7 of the Police Act , Reg 9(1) of the Police Regulation 2008 and points (1) and (4) of the Police Code of Conduct and Ethics. Although there are questions as to the degree of encroachment upon these standards in this case, these norms were, nonetheless, infringed by the applicant's misconduct. Further, the Commission should evaluate the conduct of police officers having regard to the special character of their employment and the need for discipline and high repute. ... 138In considering the respondent's credit, Walton J had the distinct advantage of seeing the respondent give his evidence. It is clear from a reading of his Honour's decision that he did not regard the case as clear-cut. He had serious reservations concerning the respondent and had the difficult task of judging the respondent's credibility having regard to all of those matters raised by the appellant on appeal. Ultimately, after a painstaking consideration evident from the decision in the case, his Honour was satisfied he could believe the respondent about his future conduct and that there would not be a recurrence. We are unable to find that his Honour erred regarding his interpretation of the facts and the inferences he drew from them. 139We are reminded that in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said at 479: More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact ( Brunskill [1985] HCA 61; (1985) 59 ALJR 842; Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' ( SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has acted on evidence which was 'inconsistent with the facts incontrovertibly established by the evidence' or which was 'glaringly improbable' ( Brunskill (1985) 59 ALJR at 844; 62 ALR at 57). 140In assessing the credibility of the respondent, we do not consider the primary judge failed to use or palpably misused his advantage or acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence or which was glaringly improbable.

Offensive Conduct 141Here, it was submitted the primary judge placed insufficient weight on the fact that a number of people, even within the respondent's own party, were offended by the "party trick"; that a number of others left the verandah to avoid being a party to, or a witness of, such unacceptable behaviour; and that his Honour erred by failing to draw the available and overwhelming inference that the respondent's staff members and their wives who said they were not offended, probably adopted that stance with a view to not contributing to the "trouble" the boss had brought upon himself and/or out of fear that if they spoke up against him that it may have adverse consequences for them in the workplace (especially if he was not removed from the Police Force). 142Again, we should note this is not a matter that is relevant to the issue of mitigation. We also note it was not the appellant's case that his Honour mistook the law, or made a material error of fact, or failed to deal with the question of offensive conduct or with the fact that some persons may have been offended by the respondent's conduct. His Honour dealt with those matters directly. What the appellant contended, as he did in respect of many of the issues of which he complained, was that his Honour did not give sufficient weight to these matters and, therefore, erred. 143Walton J accepted the appellant's submission at first instance that the respondent's conduct forced some members of the restaurant party to remove themselves, "not by a simple, uneventful choice, but by necessity to avoid the conduct, which was to them, in various degrees, repugnant or unacceptable." This was a consideration his Honour took into account in gauging the seriousness of the misconduct: see 210 and 296. It was a consideration that clearly operated adversely against the respondent. Given the mix of considerations the primary judge was required to weigh up and that his Honour only found by a "fine margin" the removal of the respondent was harsh, we are unable to agree that insufficient weight was given to the fact that some members of the party found the respondent's conduct repugnant or unacceptable. 144As for the submission about the views "probably adopted" by the respondent's staff members and their wives who had said they were not offended, we can find no basis for accepting that submission.

Character References 145The appellant submitted his Honour erred in that he placed too much weight on the fact that there were a significant number of hand picked, supportive "character" references that the appellant did not have regard to in arriving at his removal order decision, in circumstances where the appellant is the statutory officer with the sole responsibility for forming and expressing his own personal opinion as to his "confidence" in an officer's suitability to continue as a police officer under s 181D of the Police Act. His Honour erred, it was submitted, in affording too much weight to the "supportive" references provided by the senior police officers in circumstances where: (a) seemingly unconditional support and endorsement of the calibre of the respondent, implicitly rested on an entirely unacceptable tolerance of deliberate indecent exposure in a public place and preparedness not to regard such behaviour as serious; (b) in an addition to the natural bias/sympathy of friendship, the bulk of the referees were led to believe that intoxication was (at least) a significant causal factor, in circumstances where this was not the case; (c) the referees were not aware that the respondent had a well established practice of performing his "party trick" in restaurants, night clubs and saw it as a "bit of fun"; and (d) their support for the retention of the respondent rested, in effect, on the dangerous, untenable and unacceptable notion that if the "captain" leads his team with distinction on the field, then there should be a higher tolerance for his off field antics, even when very serious, because he is good for the team and the club (his "value" outweighs any odium or disrepute associated with such tolerance). 146It was further submitted his Honour also erred in considering the character reference evidence as having the same level of significance as the character evidence in Alexander v Commissioner of Police [2009] NSWIRComm 3 and in McCabe v New South Wales Police Service [1996] NSWIRComm 105; (1996) 99 IR 361 in circumstances where both those cases, in stark contrast to this case, involved probationary police officers and evidence (from "day to day" senior observers) that focused specifically on the applicants' acceptable attitude, respect for authority and performance. This case, it was submitted, was about serious misconduct by a senior officer where the character evidence was often based on inadequate and/or misleading information and focused on the respondent being a good police officer who has and can continue to provide "valuable" service to the Police Force. This assessment was, according to the appellant, "in the heartland of the Commissioner's expertise and responsibility and so there was no proper basis for his views on this issue being 'trumped' by hand picked supporters of the respondent." 147At [314] Walton J stated:

Harshness and seriousness of misconduct - separate issues 78The appellant submitted his Honour demonstrated confusion and, therefore, error between a proper and necessary (separate) assessment of the seriousness of the misconduct and the separate question of whether the removal of the respondent was "harsh" in all the circumstances. The appellant referred to the decision of the Full Bench in Director of Public Employment by his agent the Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) [2008] NSWIRComm 221; (2008) 184 IR 134 . There it was held that considerations relevant to a determination of whether or not the decision to dismiss was "harsh, unreasonable or unjust in the circumstances", were not relevant to a determination of the seriousness of the misconduct in question. It was held the Deputy President erred in having regard to matters relevant to harshness in considering the seriousness of the misconduct. 79In the present appeal, it was submitted the primary judge erred in the same way as occurred in Brown and that this was evident from what his Honour said at [308]:

Mitigating/Extenuating Factors 110The appellant submitted his Honour erred in concluding that there were mitigating/extenuating factors that were sufficient to outweigh/overcome the respondent's serious (and wilful) misconduct, such that a conclusion that the removal was "harsh" was then seen as reasonably open, albeit only by a "fine margin". The appellant proceeded to identify these factors as follows: (a) Course of Conduct; (b) Seniority/Status; (c) Alcohol Defence; (d) Risk of Recurrence; (e) Contrition/Remorse; (f) Credit; (g) Offensive Conduct; (h) Character References; (i) Public Interest.

Course of Conduct 111The appellant submitted his Honour had understated the significance of the earlier episodes of indecent exposure and placed insufficient weight on the fact that this was a well established course of conduct case, given that the respondent had admitted that he had exposed himself in public on at least three prior occasions, with the Wanaaring Hotel incident resulting in formal "counselling" that such behaviour was totally unacceptable. It was submitted his Honour erred in suggesting, in effect, that the stance of the Police Force in relation to the Wanaaring incident may not have been conveyed clearly enough to the respondent, who at the time was a Senior Constable, that his conduct was totally unacceptable. 112We should observe that we did not understand the primary judge to have considered the previous incidents as matters relevant to mitigation. The previous conduct was relied upon by the appellant to support his decision to remove the respondent, not by the respondent as matters to take into account on mitigation. 113In any event, we dealt earlier in this decision with the previous incidents. However, the appellant now submits the previous incidents should also be seen in the context of a "course of conduct" by the respondent in that his Honour failed to give any appropriate weight to the fact that the respondent: (a) Had an established course of conduct in taking his penis out of his trousers in public with a view to impressing/entertaining anyone interested in looking at the "Prince Albert" piercing through the end of his penis (and/or any object hanging from that piercing); (b) (Hence) had an established practice of introducing the topic of body piercing and then volunteering that he had a penis piercing, undoubtedly for the purpose (by overwhelming inference) that those persons would then request (out of interest) or demand (out of disbelief) to see his pierced penis; and (c) (Then) quite untenably, actively relied on these invitations/dares to expose himself as part of his defence or explanation for his totally unacceptable conduct. 114It is evident from the primary judge's decision that he was conscious of the fact that there had been a repetition of the respondent's misconduct on at least three occasions. However, contrary to what the appellant sought to have established, his Honour found there was no premeditation on the part of the respondent in 2008. That finding was open to his Honour and would seem to put paid to the contention that the respondent had an established course of conduct. To find that there had been a course of conduct it would have to have been established that there was premeditation; that the respondent planned to carry out his "party trick" whenever the opportunity presented itself. That was not made out on the evidence.

Seniority/Status 115It was submitted for the appellant his Honour gave insufficient weight to the fact that the respondent, as a Sergeant, had "significant responsibility and the Commissioner's trust and confidence... (and the) role was to impart his knowledge, experience and the values of the New South Wales Police to junior officers (and to be) a role model": see Evans at [23]. 116Again, this issue does not appear to be relevant to the question of mitigation. However, we dealt with the question of the respondent's seniority earlier in this decision when we considered the appellant's submission that the respondent's seniority was a factor aggravating the seriousness of the misconduct.

Alcohol Defence 117The appellant submitted his Honour incorrectly concluded, as it was not reasonably open to do so, that the respondent's alcohol consumption on the night in question had, in some way, precipitated, or contributed to, the respondent's decision to expose himself. Further that, in any event, his Honour erred in placing weight on the "drunkenness defence" in circumstances where it should not have been accepted as a defence/mitigating factor at all, especially when any level of intoxication was "self inflicted" and where, as the most senior police officer present, he clearly had a responsibility to function as a role model and to guard the integrity of the New South Wales Police Force at all times. 118Where a police officer consumes alcohol, on or off duty, to the degree the officer becomes intoxicated and consequently commits an act of misconduct the Commission would not, in the normal course, accept that as an excuse for the misconduct such that the officer's intoxicated state is taken into account in mitigation in any consideration of an application for review under s 181E of the Police Act . However, no hard and fast rule has been laid down to the effect that intoxication contributing to misconduct will never be taken into account in mitigation. There may be circumstances, for example, where expert evidence demonstrates an illness arising from alcohol dependency that should have been, but was not addressed by the Police Force through an assistance program; it may be that the officer recognises that he or she is alcohol dependent (which contributed to the misconduct) and is taking or has taken appropriate steps to overcome that dependency (see Evans at [7], Collins at [67] and Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44 at [34] and [52]). These might be legitimate matters to be taken into account in mitigation. 119In the present case, as the primary judge recorded at [253]: It was submitted for the applicant that he had not advanced the consumption of alcohol as an excuse, but as an "explanation" and that the role of alcohol had been to impair his judgment and reduce inhibitions that might otherwise militate against such misbehaviour. The respondent did not rely on his alcohol consumption to excuse or defend his conduct. 120Walton J concluded that alcohol was a contributing factor in the respondent's behaviour. However, his Honour also found that factor could not wholly justify or excuse the behaviour, and constituted a mitigating factor to be taken into account in the Commission's consideration (at [260]). 121This finding cannot be viewed in isolation. We agree with the respondent that the primary judge's focus was on rehabilitation and risk of recurrence. As the respondent submitted, his Honour: (a) concluded, on the basis of the respondent's evidence and evidence forthcoming from witness accounts relied upon by the appellant, that the respondent was affected by alcohol on the night in question; (b) accepted the unchallenged evidence of Ms McCartney that the respondent had an alcohol or drinking problem; (c) accepted the evidence of Ms McCartney that the respondent had taken steps successfully to address the drinking problem; and (d) relied on this fact to conclude that this lessened the likelihood of the incident occurring again in the future. 122Walton J had earlier in his decision observed that, "The authorities make clear that relevant considerations in mitigation are whether the misconduct was due to an excessive consumption of alcohol and if the officer had taken steps to seek professional help to overcome that problem" (at 26) (emphasis added). 123We consider the benefit the primary judge afforded the respondent by way of mitigation was not simply that alcohol constituted a mitigating factor, but rather it was that fact combined with the respondent's efforts in taking steps successfully to address his drinking problem and that, in doing so, this lessened the likelihood of any future recurrence.

Risk of Recurrence 124It was submitted the primary judge erred in placing weight on the evidence of the respondent and the psychologist that the "treatment" he had been having with respect to his asserted alcohol problem provided a basis for "confidence" that he would not "re-offend", in circumstances where there was no proper evidentiary basis for finding a causal connection between his public exposure and the level of his alcohol consumption, in the first place. 125It was further submitted his Honour erred in not rejecting the respondent as creditworthy with respect to the recurrence issue because his Honour's acceptance of the respondent about this important issue rested, inter alia , on the credibility of his "alcohol" defence. Yet, the asserted extenuating circumstance of being "drunk at the time" should have been rejected as of no more significance/probative value than the respondent's other general/usual defences to his indecent exposure conduct, namely, that he (seemingly) considered himself to be obliged to expose himself when people doubted that he had a Prince Albert piercing through his penis or expressed a desire to see it out of interest. 126The primary judge did not accept that alcohol was a complete explanation for the respondent's misconduct. His Honour said at [259] "... even given this description of the [respondent's] alcohol problem, an element of the [respondent's] behaviour involved self determination, probably driven by a desire to engage in the exhibition he ultimately undertook, and that he did so, contrary to what maybe reasonably expected of an officer of his seniority." His Honour also said at [254]:

Factors adding to the gravity of the misconduct 55The first such factor identified by the appellant was that the primary judge failed to consider that the respondent's position as a senior Police Officer was an "aggravating" factor, rendering the misconduct more serious than it might otherwise be regarded if engaged in by a person not following the "calling" of the Police Force. The appellant relied on a "schedule of criminal law cases" supporting the proposition that the position held by the respondent was an aggravating factor to be taken into account: for example, see Wright v R (No 2) [1968] VR 174 at 181. 56As the respondent submitted, the schedule of criminal cases were not put before his Honour at first instance, notwithstanding that his Honour specifically raised, at least with the appellant, whether there were any authorities supporting the matter relied upon by the Commissioner of Police, namely, that the respondent's rank of Sergeant was an aggravating factor in assessing the seriousness of the misconduct. No authorities were forthcoming. Nevertheless, the appellant was entitled to refer to authorities supporting his case, although reliance on them does not lead us to conclude his Honour erred. 57At 296, in the context of identifying those factors which were, "in sequence, those adding to the gravity of the misconduct and those which mitigate or ameliorate", the primary judge commenced with the following: Further, the Commission should evaluate the conduct of police officers having regard to the special character of their employment and the need for discipline and high repute: (see the minority judgment of Kirby J in Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at [113]). 58There is no basis for the contention that his Honour "did not, thereafter, in fact, evaluate the Respondent's conduct by reference ..." to the fact that his Honour was dealing with a senior police officer. His Honour was conscious throughout he was dealing with a person holding the rank of Sergeant. His Honour acknowledged the need to evaluate the respondent's conduct having regard to the special character of his employment and the need for discipline and high repute. Further at 296, his Honour stated: The fact that the applicant held a senior rank and was responsible for a number of junior officers who attended the Christmas party, in my view, is a factor which adds to the seriousness of the misconduct. I agree with the Reasons in that respect. 59The appellant has not established a basis on which the Full Bench should intervene because of any failure by the primary judge to have regard to the special nature of the respondent's employment. 60It was next submitted Walton J understated the unlawfulness of the conduct having regard to the offence of obscene exposure under s 5 of the Summary Offences Act 1988. His Honour observed at 296 that: [I]t appears that, in the absence of charges being laid against the applicant, the most that may be said of that matter is that the applicant may have, in other circumstances, attracted attention under the Summary Offences Act (s 5) and that the statute offers some guide, in these proceedings as to community views about what may constitute offensive behaviour. 61No charge was laid against the respondent under the Summary Offences Act or any other statute. The appellant contended that was because of "good luck" rather than good management for the reason that the respondent's: [J]unior officers and their wives/partners were obviously not going to agree to be witnesses in criminal proceedings (or in these review proceedings) and say that they were offended by his "party trick" , knowing too well the consequences that that would, or could, have for the Respondent, but also for the junior officers themselves, a matter admitted by the Respondent himself. 62As the respondent observed: [A] number of the witness statements tendered by the appellant [before Walton J] were from junior officers and had they been required by the respondent for cross-examination, they would have become witnesses giving oral evidence in the review proceedings. The inference to be drawn from the appellant's submission is that the appellant believes that his own witnesses at first instance were not truthfully disclosing matters including any "offence" at the respondent's conduct. 63The fact is the appellant decided, for reasons of his own, not to prosecute the respondent for a criminal offence. It cannot now contend that despite that failure to prosecute the Full Bench should, in effect, regard the respondent's conduct as being the equivalent of him having been charged and convicted under s 5 of the Summary Offences Act and, as Walton J had not found to that effect, his Honour had erred. The reliance on the "good luck" proposition takes the appellant nowhere. 64Walton J did not err in making his finding at 296. 65It was next submitted the primary judge seriously understated the level of "incompatibility" between the respondent's conduct, his duties and his position as the most senior officer at the Christmas party. There is no substance to this contention. His Honour agreed with the Commissioner that the respondent held a senior rank and was responsible for a number of junior officers who attended the Christmas party and that this was a factor that added to the seriousness of the misconduct. 66At 296 the primary judge made the following finding: (i) I accept the submission of the Commissioner (and his reasons in this regard) that the impugned conduct occurred as a result of a deliberate step being taken by the applicant to prepare for the 'party trick' but only in the sense that the applicant had clearly decided, after his discussion with other guests, to carry out the 'party trick'. To that extent, the conduct was not strictly a 'spur of the moment' act and this is indicated by the amount of time taken to prepare for the 'party trick'. However, to suggest, as Mr Murphy did, that the conduct was "premeditated" is an exaggeration not reflecting the level of contemplation and reasoning engaged in by the applicant on the evening. His actions plainly emerged from a discussion which occurred late in the evening, albeit at the applicant's instigation, and, as I have found, were partially but significantly influenced by the effects of alcohol. There is certainly a link between the excitement and exuberance of the Christmas party, the applicant's involvement with his companions, and the actions he then undertook. Whilst the applicant's conduct does involve elements of self-determination and gratification, at least to the extent of providing entertainment for friends and colleagues, this case bears none of the hallmarks of Morgan v Commissioner of Police [2010] NSWIRComm 67 (at [6]) (and see the decision of Marks J, sustained on appeal, in Morgan v Commissioner of Police [2009] NSWIRComm 184) where the police officer's conduct was described as involving a deliberate and knowing breach of applicable rules and standards of fundamental importance (and, for that matter, issues of integrity involving unlawfulness). 67The appellant contended his Honour's own findings could only lead to a conclusion that the respondent's conduct involved "a deliberate and knowing breach of applicable rules and standards of fundamental importance" and also ruled out, contrary to his Honour's further finding, acceptance of a submission that conduct was not "premeditated" . 68His Honour found that the conduct was not "spur of the moment" nor "premeditated". We understand that what his Honour meant by finding the conduct was not "premeditated" was that the respondent did not come to the restaurant planning to carry out his "party trick". His Honour did not consider it was a "spur of the moment" decision either, because of the amount of time taken to prepare. His Honour found the respondent's actions emerged from a discussion that occurred late in the evening, albeit at the respondent's instigation, partially but significantly influenced by the effects of alcohol and in the "excitement and exuberance of the Christmas party". All this was open to his Honour to find on the evidence. 69As to the reference to Morgan v Commissioner of Police [2009] NSWIRComm 184, his Honour took the view that the respondent's conduct was not in the same class as the applicant in that case. In Morgan , Marks J refused to make any orders in favour of the applicant (a decision not disturbed on appeal). His Honour found the applicant had accessed the COPS system on two occasions, access which was unauthorised and was untruthful about his explanation for such unauthorised access. 70In referring to Morgan, Walton J was making a distinction between, on the one hand, a deliberate and knowing breach of rules that went to the question of the applicant's integrity and, on the other hand, misconduct that was unplanned and which occurred late in the evening at a Christmas party function where the respondent was significantly affected by alcohol. There was no error on his Honour's part in not following Morgan .

Earlier incidents down played 71The appellant contended that the primary judge erroneously "down played" the significance of the Wanaaring incident in 2005 and, as well, two further earlier incidents of public indecent exposure, on the basis that the respondent had, in effect, "got off lightly" with respect to the Wanaaring incident, and the two prior occasions had not been the subject of any action by the appellant. 72At [300]-[302] the primary judge stated:

Decision of Kavanagh J 195I have had the benefit of reading the majority judgment of the Full Bench in this matter. I am unable to agree with their Honours' decision to uphold the reasoning of Walton J, Vice-President who came to the conclusion there was established "serious misconduct" but given the "ameliorating" circumstances, the termination of the employment by the Commissioner of Police of the respondent, a sergeant of police, was "harsh".

Commissioner's Decision to Terminate Employment 196The Commissioner published "Reasons" for finding he did not have confidence in the respondent's suitability to continue as a police officer. The Commissioner held the respondent "inappropriately exposed" his penis at a work Christmas function in 2008 where the exposure was significantly aggravated by the fact the officer admitted to having deliberately attached a bottle opener to a piercing in his penis as a "party trick". Subsequent conduct allowed another serving officer to open a beer bottle with the bottle opener while it was still attached to his penis. The exposure was to a number of other police officers and at least two civilians. It occurred at a work-related function in a public place in close proximity to other members of the public. The exposure followed a written warning from Professional Standards Command about the dangers of excessive alcohol at work Christmas/end of year functions. The incident was not the first time he had engaged in that type of conduct and he had been counselled in September 2005. 197The Commissioner found "the fact that you conducted yourself in this manner, in the presence of work colleagues and other civilians is and of itself serious misconduct". He found: the preparation by the officer before performing his party trick was "deliberate"; the exposure of his penis had occurred twice that evening (with suggestions he offered to do so a third time); the conduct "was highly likely to be offensive". 198The Commissioner then opined the conduct was contrary to the Police Act 1990 , the Police Regulation 2008 and the NSW Police Force Code of Conduct and Ethics and in breach of s 7 of the Police Act which states the expected " values of members of NSW Police Force"; Regulation 9(1) of the Police Regulation which stated the expected " Responsibilities of off-duty officers"; Point 1 of the NSW Police Force Code of Conduct and Ethics which relevantly requires upholding the good reputation of the Police Force on and off duty; Point 4 of the Code which requires an officer to treat all with respect; Point 5 of the Code which requires compliance with lawful direction; Point 6 of the Code which requires compliance with the law whether on or off duty. 199The Commissioner went on to conclude the following: I have taken into consideration all of the circumstances, the nature and extent of the allegations given your history of the similar behaviour in 2005 and the fact that you were provided a warning on this occasion. You appear to have a blatant disregard for this previous warning. I have also taken into consideration that you were issued with a Region Commander's Warning Notice in 2002, I am satisfied that you must have been aware that any further issues may result in reviewable action or your removal from the NSW Police Force. As a Sergeant in the New South Wales Police Force you are required to have an understanding of appropriate behaviour and maintain positive and professional relationships with your colleagues and the community. Prior to attending the police function at the Yamba Hotel a message was circulated as a warning to officers to behave appropriately. In your position as sector supervisor you should have been upholding these standards. You also appear to have a blatant disregard for this warning. In all the circumstances, I consider that your conduct has fallen well below the standards and expectations of both the community and the NSW Police Force. I expect and the law demands that New South Wales police officers will uphold their Solemn Oath of Office at all times. Our Oath requires all New South Wales police officers will act: professionally at all times; with ethics and integrity; and in accordance with the law. This is our sworn duty. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Code of Conduct and Ethics. 200The Commissioner, therefore, relied upon a number of reasons to reach his decision, before concluding the respondent was not suitable to be a police officer leading to the decision to terminate his employment, namely: the nature and extent of the allegation of "serious" misconduct in 2008, the fact there had been prior counselling arising from a "similar incident" in 2005, the fact that the misconduct constituted a breach by the officer of the standards required of a senior officer under the Police Code of Ethics and, as well, was conduct in breach of community standards.

Decision at first instance 201The challenge by the respondent before Walton J was not to the Commissioner's finding as to serious misconduct (although some facts were disputed) but to the Commissioner's decision to terminate. The respondent contended before Walton J that the decision to terminate the employment was, in the circumstances, "harsh". Walton J, acknowledged the position of the Full Bench in Hosemans v Commissioner of Police (No 2) [2004] NSWIRComm 253; (2005) 138 IR 159 at [134] when he noted his task was to make at [19]: a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted. 202His Honour at [39] determined to first resolve "factual controversies" raised by the respondent related to the "impugned conduct" which he clearly identified as the December 2008 incident.

The 2008 "Impugned Conduct" 203His Honour considered the facts related to the 2008 incident as follows at [210]: 2. ... The applicant initiated a discussion regarding "tattoos and body piercings". During the course of that discussion the applicant explained he had his penis pierced. He further revealed he had a 'party trick'. ... 3. At some stage during or at the close of the discussion, the applicant went to the toilet to prepare for his 'party trick'. On this occasion, the trick involved inserting a ring attached to a bottle opener through his penis piercing (known, when a ring is attached, as a 'Prince Albert' piercing). This preparation took five to ten minutes. It was during his movement to or from the toilet that he noticed all other patrons, other than the party attendees, had left the restaurant. 4. Upon returning from the toilet ... He stood, unzipped his trousers and exposed his penis with the ring and the bottle opener attached. At the time the applicant was facing the plastic sheeting with his back to the inside area of the restaurant. This was the first occurrence of the impugned conduct, which lasted a matter of seconds. 5. Sometime later in the evening, the applicant was involved in the second occurrence of impugned conduct. Again, the applicant, with his back to the restaurant, stood and removed his penis from his trousers. However, on this occasion, he allowed [name] to open his Corona with the bottle opener still attached. The extent to which the applicant's penis protruded out of his trousers during this occurrence was unclear, but the applicant was holding his penis, thereby, to some extent, obscuring visibility of it (although the nature of the act being engaged in would have been plain enough to a nearby observer). ... 6. There is some doubt about whether the applicant engaged in the impugned conduct on a third occasion. ... I have proceeded on the basis that there may have been a third occasion in which the applicant engaged in the impugned conduct on the evening in question but there is some uncertainty as to who witnessed the third occurrence ... 7. As to the exposure of the conduct to the public, I have found there were no other members of the public in the restaurant at the time of the impugned conduct other than attendees of the party. ... His Honour also concluded some officers: 8. ... did not find humour in the applicant's behaviour (as other officers inside the restaurant did) and disassociated themselves from the conduct. ... the true nature and impact of the conduct which ... forced some members of the party to remove themselves, not by a simple, uneventful choice, but by necessity to avoid the conduct, which was to them, in various degrees, repugnant or unacceptable. 204His Honour examined evidence and considered the contribution of alcohol to the 2008 incident and concluded at [260]: ... alcohol was a contributing factor in the applicant's behaviour. However, that factor cannot wholly justify or excuse this behaviour, and must simply constitute a mitigating factor which will be taken into account in the consideration of the applicant [sic] before the Commission.

The Second 2005 incident 205His Honour, as to the respondent's conduct in 2005 (the so called "Wanaaring Incident") (which the Commissioner referred to as being "similar behaviour") and which was followed by a police "warning" which was in the manner of counselling described this incident as follows at [230]: ... The applicant, who was off duty at the time, played pool with [name], [name] and [name]. The applicant had a friendship with the women. A conversation arose about tattoos and body piercings that each of them had. [name] asked to see the applicant's 'Prince Albert' piercing and they went to an area in the hotel near the poker machine wall with a view to avoiding public observation. The applicant then undid his fly and removed enough of his penis to show her his piercing. He was wearing a ring at the time. This occurred for a matter of seconds and, as the evidence reveals, both laughed before returning to the other women at the pool table. [name] took no offence. The applicant stated he was not intoxicated. His Honour then chose to compare the 2005 and 2008 incidents, reasoning at [234]: ... it may be accepted that there were similarities between parts of the impugned conduct [2008] and the applicant's conduct in 2005. The similarity extends to the applicant exposing his penis with the 'Prince Albert' piercing (to the extent that there was a ring inserted in the penis on both occasions) to another person in a public place, albeit with some attempt to avoid disclosure to any other person wider than the intended audience. The two events differed in a number of respects. The impugned conduct occurred in front of a larger group of people who had gathered at a work-related function. It included more than one display; the second, in one respect, in a more exaggerated form. The Wanaaring incident occurred when the applicant was off duty and playing pool in a hotel with some female friends. Further, the impugned conduct occurred over a period of time; was deliberate (at least for entertainment purposes) and largely (but no wholly) initiated by the applicant. The impugned conduct [2008] also involved him additionally attaching a bottle opener to his penis (and using it). ... there were similar elements ... but the impugned conduct was more serious. He also concluded at [238] that the fact that the 2005 conduct: ... gave rise to an investigation should have made him more aware of the adverse consequences of performing his 'party trick' on 11 December 2008. ...

New evidence of similar conduct 206Evidence before his Honour however also revealed two other incidents of exposure in a public place. These incidents were not revealed to the Commissioner nor during the police investigation into the 2008 event. The Commissioner had relied upon the limited admission of the respondent during the police investigation of the 2005 Wanaaring incident where the respondent revealed: unfortunately I've had a, a previous issue, similar issue to this when I was stationed in the west of the State where somebody had heard about me doing my party trick.

Incident in 2002 207The Commissioner took the above admission to refer to the Wanaaring incident in 2005. However, the respondent revealed in evidence before his Honour at [239]: Q. Can you tell His Honour when and where that occurred? A. There was a Christmas party or a work Christmas party in 2002 when I was working in Sydney where myself and a couple of fellows I worked with were out drinking late at night and I showed those 2 fellows and we were in a nightclub. ... 208His Honour concluded from all the evidence placed before him as to this 2002 incident at [240]:

Appeal grounds/Appellant's submissions 31Whilst there were 19 grounds of appeal in the amended application for leave to appeal and appeal, and extensive written submissions that addressed both the question of leave to appeal and the merit issues, senior counsel for the appellant helpfully encapsulated in his oral submissions, the appellant's position in the appeal under seven grounds, namely, that the primary judge erred: (1) in failing to have proper regard to the innate seriousness of the respondent's misconduct; (2) in finding the respondent was genuinely contrite and remorseful; (3) in failing to pay proper regard and given proper weight to earlier episodes of misconduct; (4) in accepting that an "alcohol defence", whether such be characterised as an "excuse" or as an "explanation", was available at all and in finding that such a defence was made out on the evidence, in the sense that a causal connection was established; (5) in relation to the weight to be given to the public interest factors identified in s 181F(3)(b) of the Police Act in light of the Court of Appeal decision in Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Sewell [2009] NSWCA 198; (2009) 185 IR 458 (" Sewell ") at [77]; (6) in finding there was power to order re-employment to a lower level; and (7) even if there were power, in finding that there was a proper basis for the making of that order, especially in light of his Honour's finding it was impracticable for the respondent to be reinstated as a Sergeant.

Respondent's submissions 32The respondent dealt with each of the appellant's grounds and, in summary, submitted: (1) the primary judge did not err in relation to the nature of the misconduct. Given the concession by the appellant at first instance that this conduct did not fall within the most serious category of cases that come within the Commission and given that Walton J found that the misconduct did not fall within the lowest category of seriousness it is difficult, if not impossible, to see what error the judge is alleged to have made. The finding that the seriousness of the misconduct fell somewhere along the spectrum other than at the lowest end or at the most serious end, is not a finding of fact which is clearly wrong, nor is it a finding of fact that was not reasonably open on the evidence; (2) there was no error by the primary judge in relation to contrition and remorse. His Honour dealt with this issue comprehensively and it was properly taken into account as a mitigating factor; (3) the manner in which his Honour dealt with prior misconduct disclosed no error: see Lawrance at [300]-[302]. The appellant did not suggest that the response to the Wanaaring incident was wrong in any respect, leaving it well open to the judge to conclude that the shift from guidance and counselling notice, to removal under s 181D, might disclose some lack of coherent discipline. The appellant did not articulate why the prior misconduct should have been accorded any different weight, to the point of establishing an error that would involve the intervention of the Full Bench; (4) the appellant's submissions regarding the "Alcohol Defence" are a distortion of both the case put by the respondent at first instance, and the treatment of that issue by the primary judge. As recorded in the decision at [253]: "It was submitted for the [respondent] that he had not advanced the consumption of alcohol as an excuse, but as an 'explanation' and that the role of alcohol had been to impair his judgment and reduce inhibitions that might otherwise militate against such misbehaviour." The respondent did not rely on his alcohol consumption to excuse or defend his conduct. There was otherwise evidence available to conclude that alcohol had contributed to the incident occurring. This was not limited to general conclusions concerning the disinhibiting effects of alcohol, but were found in the report by psychologist, Wendy McCartney, tendered without objection and without Ms McCartney being required for cross-examination. The appellant incorrectly characterises Walton J's treatment of the respondent's admitted alcohol consumption as involving a mitigation of the seriousness of the conduct. Whilst this may have been a small part of the way in which the alcohol consumption was viewed, the focus of Walton J was on rehabilitation and risk of recurrence. There is no inconsistency in, on the one hand, disavowing using alcohol consumption as an excuse for behaviour, and on the other, recognising that alcohol consumption, and indeed a wider alcohol/drinking problem contributed to his conduct and needed to be addressed on a broader level. (5) the appellant's submission concerning treatment of the issue of public interest is without merit: see Sewell at [73]-[77]. The submission presumes that public interest considerations are limited to one side of the assessment process - that is, against the interests of the respondent. The concept of the public interest will rarely be unitary in nature. The appellant's submissions amount to little more than a complaint about the conclusion reached by Walton J. The complaint is made in circumstances where the appellant made no submissions about the public interest, integrity of the Police Force, or the way in which these matters should have been weighed at first instance; (6) in respect to the challenge to the power to order re-employment, the appellant did not take this point at first instance, and indeed put a contrary position to the trial judge. The appellant should not be allowed to raise the matter on appeal. In the alternative, the appellant has not identified in what way a decision to re-employ at a lower rank offends s 89(2). The fact that this sub-section, unlike sub-section 89(1), does not specify that such re-employment is to be "not less favourable" is destructive of the appellant's argument. The appellant assumes that the decision to re-employ constitutes punishment, ignoring the fact that the facility to re-employ at a lower level is wholly consistent with the jurisdiction imposed on the Commission to consider an alternative remedy if reinstatement is found to be impracticable. In this case the reduction in responsibilities associated with re-employment at a lower rank accommodates the concerns that led the Commission to conclude that reinstatement was impracticable. Further, although the Police Act specifically excludes the operation of some parts of the unfair dismissal regime in the IR Act, it does not exclude s 89(2). The reference by the appellant to Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 appears to imply that the introduction of some part of the Police Act impliedly repeals s 89(2) of the IR Act. There is no support for this proposition in Ferdinands , which involved different legislation to that operating in this jurisdiction; (7) the decision to order Mr Lawrance's re-employment as a Senior Constable involved an exercise of discretion on the part of the judge at first instance, and accordingly a different, and even more stringent approach to the appeal applies: see Mace v Murray [1955] HCA 2; (1955) 92 CLR 370. Walton J specifically referred to the responsibilities of a Sergeant in performing duties as Station Manager or Shift Supervisor when deciding that re-employment as a Senior Constable was the appropriate remedy. There is no basis to suggest that his Honour was not mindful of the responsibilities of a Senior Constable, neither can it be suggested that those responsibilities are the same as those of a Sergeant. There is no error in his Honour concluding that the immaturity of character displayed by the respondent in engaging in the misconduct : (a) Made reinstatement to the rank of Sergeant impracticable; (b) Did not preclude re-employment as a Senior Constable; It is unfair for the respondent to have to deal with these matters freshly on appeal, when the appellant chose not to detail any reasons for his submission below. In any event, the arguments are without merit.

Leave to appeal 33The appeal involves, amongst other issues, the question of the Commission's power to order the re-employment of a former Police Officer at a lower rank. That is a matter that has not previously been determined in this jurisdiction at appellate level. Although the respondent is correct in submitting the appellant at first instance accepted that the primary judge had the power to order re-employment to a lower rank, on appeal the Commission cannot assume a statutory power it does not have based merely on the concession of a party at first instance. Moreover, it does not appear to us the respondent is in any way prejudiced and this is not a case where evidence could or would have been led bearing on the question of power had the appellant indicated there was no power to re-employ at a lower level when the matter was raised with the parties. 34It is a matter "of great importance in the conduct of litigation that a litigant should be bound, on appeal, by the manner in which his case has been conducted at first instance": Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1 at 19-20 per Wilson and Dawson JJ, citing McCormack v Federal Commissioner of Taxation [1979] HCA 18; (1979) 143 CLR 284 at 305 and Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481 at 483. However, regard must be had to the circumstances of the case: Babaniaris at 20. In this case a serious question has arisen as to whether the Commission had the power to order re-employment and that is a matter that may not be disregarded on appeal. 35The respondent referred to Toll Transport Pty Ltd v Transport Workers' Union of New South Wales [2010] NSWIRComm 58; (2010) 194 IR 144 at [97] where Kavanagh J (Boland J, President and Walton J, Vice-President not disagreeing on this point) cited several authorities dealing with the principles to be applied if a different case is sought to be litigated on appeal to that which was litigated at first instance. Those authorities, however, are not inconsistent with what we have said in the immediately preceding paragraph. 36We propose to grant leave in respect of the question of the Commission's power to order the re-employment of a former police officer at a lower rank. 37In considering the question of leave regarding the other matters raised on appeal, we have decided to also grant leave in respect of them. The decision at first instance addressed important aspects of the applicable law and the Commission's jurisprudence concerning the removal of police officers. A consideration of those aspects at appellate level may assist in settling any ambiguity or uncertainty and reduce the incidence of appeals in this area.

Principles governing appeal 38This is an appeal in the strict sense: s 191 of the IR Act; King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [65] et seq and the authorities referred to therein. That is to say, it is an appeal to a tribunal the function of which is to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given. 39In Abboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32 at 43-44, the Full Bench described the role of an appellate tribunal in an appeal stricto sensu : In the case of an appeal from a judge in the strict sense, the appellate court will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact which is clearly wrong or are not reasonably open on the evidence: Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688. Otherwise, the appellate court should not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley , Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1998) 160 ALR 588] all show that courts such as this court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made. 40The question of whether removal of a police officer was harsh involves mixed issues of fact and law, rather than the exercise of a discretion: see Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at 181-182 and Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [4]. Accordingly, the Full Bench is in as good a position as the primary judge to assess the evidence and the findings of fact and inferences to be drawn from that evidence so as to evaluate whether there was any error of law or principle in the conclusion that the removal was harsh: see Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. 41If a consideration of the circumstances relating to the removal of the police officer leads to a decision favourable to the dismissed employee then the next issue involves the exercise of a discretion as to what, if any, relief should be allowed: Burge at [4]. That is to say, the decision to order Mr Lawrance's re-employment as a Senior Constable involved an exercise of discretion on the part of the judge at first instance, and accordingly the principles enunciated in Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 apply (at 378): The jurisdiction of this Court is to review the decision of the Full Court, applying to the case the principles that were applicable by that court, and, if necessary, to make such order as the Full Court should have made. The principles to be applied in such a case are not in doubt. The order of the learned primary judge was made in the exercise of a discretionary judgment; and it has been repeatedly laid down by this Court, following decisions of the highest authority in England, that in such a case a court of appeal is not justified in interfering with the decision appealed from unless it reaches a clear conclusion that by reason of some error, whether of fact or of law, the primary judge not only has taken a view different from that which the judges of the court of appeal would have taken if they had been in his place, but has failed properly to exercise the discretion committed to him: House v. The King [1936] HCA 40 ; (1936) 55 CLR 499 , at pp 504, 505; Lovell v. Lovell [1950] HCA 52 ; (1950) 81 CLR 513 , at pp 518-520, 526, 528, 532-534; Pearlow v. Pearlow [1953] HCA 77 ; (1953) 90 CLR 70 , at pp 76, 77; Paterson v. Paterson [1953] HCA 74 ; (1953) 89 CLR 212 , at pp 218-224. Moreover, the order of McLelland J. was made with the advantage of having seen and heard the witnesses, and particularly the parties, as they were examined and cross-examined in the witness-box; and that was an advantage not only in considering the credibility of the witnesses but also in appreciating the character and personality of each of the three persons whose future relationship to the child the court had the responsibility of deciding. The case was pre-eminently one for the application of well-known words originally used by Lord Shaw and since approved by other learned lords: "In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself ... the question: Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment": Clark v. Edinburgh & District Tramways Co. Ltd. (1919) SC (HL) 35 , at p 37; see Powell v. Streatham Manor Nursing Home (1935) AC 243 , at p 250; Watt or Thomas v. Thomas (1947) AC 484 , at p 488. 42Heydon JA (Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 said, at [45], that a challenge to a primary judge's discretionary decision can succeed only if the judge: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. 43We propose, with respect, to follow these established principles.

Seriousness of the misconduct 44In attacking the primary judge's findings regarding the seriousness of the respondent's misconduct, the appellant submitted the following propositions: (i) the primary judge erroneously did not consider that the earlier Wanaaring incident - the respondent exposing his penis in the public bar of the Wanaaring Hotel - as "so grave" that its repetition "of a somewhat more significant character" necessitated s 181D removal; (ii) his Honour placed too much weight on the fact that, in his Honour's view, only a small number of people at the restaurant actually witnessed the "trick" , as this did not alter or lessen the innate offensiveness and seriousness of this public indecency; (iii) as to those factors identified by his Honour as "adding to the gravity of the misconduct" : (a) his Honour did not evaluate the respondent's conduct by reference to the special character of his employment and the need for discipline and high repute . His Honour should have concluded, but did not, that the respondent's position as a senior Police Officer was an "aggravating" factor, rendering the misconduct more serious than it might otherwise be regarded if engaged in by a person not following the "calling" of the Police Force; (b) by concluding that in the absence of charges being laid against the respondent the most that may be said of that matter is that the respondent may have, in other circumstances, attracted attention under the Summary Offences Act ( s 5), his Honour understated the unlawfulness of the conduct - especially as there was clear evidence of "offence", and the fact that it was only good luck (versus good management) that the respondent was not charged with a criminal offence; (c) in stating there were "some elements of incompatibility between the [respondent's] conduct and his duties" his Honour seriously understated the level of that "incompatibility" between the respondent's conduct and his duties and his position as the most senior officer at the Christmas party; (d) in finding "one of the episodes (the second occurrence) involved opening a bottle with the bottle opener attached to the respondent's penis (irrespective of whether the penis could be seen or not) does tend to elevate the seriousness of the misconduct", his Honour erred in understating the obvious offensive, bizarre and serious nature of this misconduct; (e) his Honour found that "the impugned conduct occurred as a result of a deliberate step being taken by the [respondent] to prepare for the 'party trick', but only in the sense that the [respondent] had clearly decided, after his discussion with other guests, to carry out the 'party trick'. To that extent, the conduct was not strictly a 'spur of the moment' act and this is indicated by the amount of time taken to prepare for the 'party trick' ... Whilst the [respondent's] conduct does involve elements of self-determination and gratification, at least to the extent of providing entertainment for friends and colleagues, this case bears none of the hallmarks of Morgan v Commissioner of Police ". However, his Honour's own findings can only lead to a conclusion that the respondent's conduct involved a deliberate and knowing breach of applicable rules and standards of fundamental importance and also ruled out, contrary to his Honour's further finding, acceptance of a submission that conduct was not "premeditated" (versus " spur of the moment " ); (iv) his Honour erroneously downplayed the significance of the 2005 incident and two further earlier incidents of public indecent exposure, on the untenable basis that the respondent had, in effect, "got off lightly" with respect to the Wanaaring incident, and the two prior occasions had not been the subject of any action by the appellant, respectively; (v) his Honour found that "the conduct engaged in by the [respondent] could not be described... as lying in the lower end of the scale of seriousness. Beyond that, I do not consider it is helpful for the Commission to engage in a process of specifying where the misconduct lies in a theoretical range of the gravity of misconduct unguided by judicial authority to that effect in this area of jurisprudence. Rather, I will consider that matter in the final mix of considerations as to whether there was harshness in the removal of the [respondent]". In this respect, his Honour erred not only in understating the seriousness of the misconduct by reference to the real world "scale of seriousness" but he also demonstrated a confusion between a proper and necessary (separate) assessment of the seriousness of the misconduct and the separate question of whether the removal of the respondent was "harsh" in all the circumstances: see Director of Public Employment by his Agent Director-General of Dept of Juvenile Justice v Public Service Association (on behalf of Brown) [2008] NSWIRComm 221 at [57]-[74]. His Honour's confusion and error in this regard is further confirmed by his later conclusion as to "seriousness" reached following a "proper balancing of the factors described in para [296]" of his decision; (vi) in addition his Honour erred in that he failed to afford any, or any sufficient, weight to the following "potent considerations", namely: (a) his Honour erred in not treating the Respondent's status as a senior officer in the Police Force as an "aggravating" factor in considering the seriousness of the misconduct; (b) any person (let alone a Sergeant of Police) pulling out his penis in a public place is a fundamental affront to community values/standards, criminal conduct and conduct to be rejected as totally repugnant; (c) both the obviousness and the seriousness of the propositions in (a) and (b) above is reflected in the fact that Australia wide research suggests that there has only been one occasion wherein a male worker who has "exposed" himself has been reinstated (and then mental condition was said to have been involved); (d) this was not "one off", "aberrant", "out of character" behaviour by a junior police officer, but planned/deliberate behaviour by a Sergeant of Police (and the most senior officer at the restaurant/party) who had not only engaged in such public indecent exposure on several prior occasions, but also been formally counselled about the total unacceptability of that behaviour only two years earlier; (e) the respondent's inability to grasp the seriousness of the misconduct that he engaged in was a matter that clearly troubled His Honour, yet such concerns were not then properly taken into account when assessing the seriousness of the misconduct and impracticability of re-employment (based, inter alia , on an erroneous conclusion that there was a "confident" basis that the cause of the misconduct had been eliminated); (f) his Honour failed to focus on what, in particular, was required to ensure that the "public interest" in "maintaining the integrity of the New South Wales Police Force" was properly taken into account, and failed to pay proper regard to the fact that the community would regard such public "exposure" as entirely unacceptable. 45The thrust of the appellant's submissions regarding the seriousness of the misconduct was to attempt to portray that misconduct in the worst possible light. The misconduct was said to be "innately serious", "extremely serious", a "fundamental affront to community values/standards", "criminal conduct", "conduct to be rejected as totally repugnant" and "a deliberate and knowing breach of applicable rules and standards of fundamental importance". It is evident that the appellant wishes the Full Bench, in judging the misconduct according to the "real world ' scale of seriousness '", to regard it as being of the worst kind. 46This portrayal is at odds with the appellant's position at first instance where it was volunteered by the appellant that the misconduct "did not fall within the worst class of cases of this kind coming before the Commission" (at [308]). His Honour accepted that concession. In that circumstance it could not reasonably be expected this Full Bench would find, without question, that his Honour erred by not classing the misconduct as being of the worst kind. 47It, therefore, becomes necessary to examine each of the matters in respect of which the appellant contended the primary judge erred. We commence by dealing with each of the appellant's complaints regarding seriousness.

Implications of the Wanaaring incident 48The primary judge found at [323]: