Consideration
38We deal first with the appellant's challenge to the primary judge's treatment of the first ground relied upon by the Commissioner to remove the respondent from the Police Force, namely, that the respondent used unreasonable force upon Mr Orey Travalos on 10 June 2006.
39The matters that appear to have influenced the primary judge regarding this ground in arriving at the conclusion that the dismissal was harsh, are as follows:
(a)the respondent was a senior constable with 11 years' service without him coming under adverse notice in that time;
(b)on 10 June 2006, the police fears that there was a potential for further anti-social behaviour at the Lemon Tree Passage community event were well founded and a potentially volatile situation developed;
(c)Mr Travalos was "pretty drunk"; he was kicking the inside of the police van with such force that it caused the van to rock back and forward;
(d)there was a conflict in the evidence of SC Hawkins and SC Scott on the one hand and the respondent on the other, as to whether Mr Travalos had ceased thrashing around inside the van shortly before the cage door of the van was opened by the respondent. Hawkins, Scott and the respondent each may have been mistaken regarding their recollection of events bearing in mind the circumstances of the night. However, the difference in the evidence was not decisive to the outcome of the Commission's review;
(e)there was a further conflict in the evidence as to whether Mr Travalos kicked out at the respondent when he opended the door of the police van. The evidence of both SC Hawkins and SC Scott was that they did not see Mr Travalos kick out. However, both witnesses conceded that they lost sight of Mr Travalos for a moment when the door of the van was opened and the applicant stepped towards the van. Nevertheless, in light of the ultimate conclusion that his Honour reached, it was unnecessary to resolve this conflict in the evidence;
(f)in his reasons for removing the respondent, the Police Commissioner did not refer to the respondent's evidence that he took the action he did in an attempt to prevent Mr Travalos from injuring himself, inciting others and causing mob conduct on the night;
(g)the Police Commissioner took the decision to remove the respondent without the benefit of the findings of Frearson DCJ upholding the appeal by the respondent against his conviction for assault;
(h)the decision of the Magistrate was of no assistance;
(i)the Commission was confronted with a situation where the key basis of the decision of the respondent had dissolved and the reasons for dismissal therefore rested on a much narrower foundation than the decision that was made which is the subject of these proceedings;
(j)the reasons of Frearson DCJ in upholding the appeal and quashing the Magistrate's decision were persuasive and must be given appropriate weight;
(i)Mr Pimm, a former police weapons trainer, gave evidence that the circumstances of a handcuffed person in a police van did not preclude the use of OC spray. Mr Pimm's evidence was that it was open to the respondent to form the view that it was appropriate to use OC spray. This was not challenged other than to the effect that SC Hawkins was not necessarily wrong when she formed her view that the use of OC spray was inappropriate. The appellant did not call any evidence that contradicted the evidence of Mr Pimm that if the respondent formed the view, due to the circumstances, to use the OC spray, then it was an appropriate use of the spray.
(j)Senior Constable Scott, in cross-examination, conceded that if there was a belief held by an officer that a detained person in a van was liable to injure him or herself, then the use of OC spray was appropriate. She volunteered that she had used OC spray in a similar circumstance, although in a difference type of police van. SC Hawkins also conceded that the use of OC spray was not inappropriate because a prisoner was confined in a police truck or van;
(k)the respondent relied on his state of mind on 10 June 2006 in believing that the use of OC spray was reasonable. The respondent was suffering from PTSD at the time and subsequently. Dr Wade, a psychiatrist, had stated:
the events of 10th June 2006 - his reactions and over-reactions - are highly consistent with suffering Post Traumatic Stress Disorder, in particular, where depressive symptoms would also add to blurred judgment. ... He can be exceedingly anxious, his mind is over-active with negatives, seeing danger, being very scared of what might happen next and also in this state increasingly going into a dissociative state - ...
and later:
The PTSD has worn him down and as is often the case, the PTSD is often a dance of fear and aggression, much like the two chase one another's tails;
(l)the medical evidence was that the respondent had a pre-established injury. The respondent's cessation of work in 2007 was unrelated to the events on 10 June 2006. The respondent's condition may well have played some part in how he perceived the intensity or severity of what was occurring on that particular night. The respondent's evidence was that he was fearful and overwhelmed by the events of that evening and came to a conscious decision to use the OC spray. It was never put to the respondent that his understanding of the circumstances at the particular time he used the spray was wrong, nor was it said that his intention was wrong, or that he had any other motive in respect of Mr Travalos, who was unknown to him. The respondent's description of his mental process and his thoughts on the evening of 10 June 2006 were never challenged;
(m)the appellant referred the respondent to HealthQuest on 11 March 2008 to determine the respondent's medical condition and fitness for duty. An inference may, therefore, be drawn that the appellant, prior to issuing the Notice pursuant to s 181D(1), had given consideration to the fact that the respondent was, as a result of injuries sustained during the course of his employment, possibly no longer able to fulfil his duties of office. However, the appellant proceeded to determine the complaint pursuant to s 181D prior to a decision being made by HealthQuest which found the respondent unfit;
(n)the appellant did not seek to challenge the medical evidence relied upon by the respondent before the primary judge. However, the appellant submitted there was competing medical evidence as to whether the respondent suffered from PTSD (a reference to the opinion of Dr Kaplan of HealthQuest who diagnosed the respondent with an adjustment disorder). This was appealed and the Workers Compensation Commission found the respondent was suffering from PTSD;
(o)in respect of the appellant's submission to the primary judge that, on the one hand, the respondent contended that he acted completely reasonably on 10 June 2006 and on the other hand, the respondent contended that his judgment at the time was impaired, his Honour accepted the respondent's submission that he had always contended that he acted reasonably, but pointed to his medical condition at the time as a mitigating factor.
40The appellant contended the primary judge erred in his approach to the unreasonable force ground by having regard to respondent's capacity to form rational judgments because of his then disability of post-traumatic stress. This approach, it was submitted, was subjective when the test of whether the respondent used unreasonable force upon Mr Travalos required an objective approach.
41The task of the primary judge was not to determine, either objectively or subjectively, whether the respondent used unreasonable force for the purpose of determining whether he was guilty of contravening s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002. His Honour's task was to determine whether the removal of the respondent was harsh, unreasonable or unjust in accordance with the relevant provisions of Pt 9 of the Police Act.
42However, even if the primary judge had determined the force used by the respondent, viewed objectively, was unreasonable it would not automatically follow that the removal was justified. The primary judge was required, amongst other matters he considered relevant, to have regard to the interests of Mr Ross and to the public interest: s 181F of the Police Act. Staff J acknowledged this was his task: see [62], [83] and [84] of the first decision.
43In referring to the decision of Frearson DCJ in the District Court, the primary judge said he found the findings "persuasive" and should be given appropriate weight. Frearson DCJ was unable to conclude to the required standard (that is, beyond reasonable doubt) that Mr Ross' actions were unreasonable and, accordingly, his actions could not amount to assault.
44The findings of Frearson DCJ included the following:
the situation at the community event on 10 June 2006 was disturbing and chaotic;
there was drunken misbehaviour inside the police truck and outside the police truck and a degree of chaos and a degree of irresponsibility by people who should know better;
Ross may well have believed that his actions would help control the people outside the truck;
45Staff J reached similar conclusions to Frearson DCJ and was obviously strengthened in that by the decision of Frearson DCJ. Were these similar conclusions open to his Honour? First, there is no doubt on the evidence that the situation on the evening of 10 June 2006 was "disturbing and chaotic". As the primary judge observed in his first decision, on 10 June 2006, a community carnival took place at Lemon Tree Passage. In the previous year, attendees at the carnival had become violent. In 2006, Operation Viking was set up by the Lower Hunter Local Area Command in an attempt to prevent a recurrence of violence from the previous year. The respondent was on duty at the carnival with approximately 10 other police officers although it would appear that not all of these officers were initially present.
46Senior Constable Scott acknowledged in her evidence before the primary judge that there were a large number of juveniles, the police were outnumbered, bottles were being thrown at police and the situation was "volatile".
47Mr Travalos was a "large" youth. Senior Constable Collier was present on the night. He said Mr Travalos was with a group of people and he started yelling at police, "swearing... using offensive language in the middle of Lemon Tree Passage Road." Senior Constable Scott was involved in the arrest of Mr Travalos and together with two other officers - because it took three officers to hold him down - managed to handcuff the arrestee. When asked in cross-examination whether she considered Mr Travalos "was a person who was or had the potential for some violence", SC Scott replied, "Absolutely". In her statement to DSC White, SC Scott said that in the process of arresting him Mr Travalos "was yelling and kicking out and carrying on like a fool". SC Hawkins agreed in cross-examination that Mr Travalos "had been particularly violent on that night [10 June 2006]..."
48Two residents, Mr and Mrs McGee, made statements about what they saw in connection with the arrest of Mr Travalos. Mrs McGee said:
My view of the street was partially blocked because of where the vehicles were parked. I could see peoples' heads and I could hear a male person swearing and yelling abuse. I saw some police trying to get a male into the back of the Police truck. This male was struggling and he was yelling out and swearing.
After the Police put the male into the back of the truck I saw what I would describe as a violent attack come from inside the van. The male who had been placed inside was screaming out and was swearing unreservedly. I was shocked by the noise he was making inside the ruck. The behaviour of the male was appalling. He was extremely aggressive and violent.
The male was in the back of the van for a number of minutes and his attack continued. The male was continually swearing. After a while the rocking stopped and the male settled down. I am unaware as to why he did settle.
49Mr McGee said:
I saw some police struggling with a particular male. They placed him into the back of a Police truck and shut the door.
After being locked in the truck the make began to kick into the inside of the truck. It sounded like he was demolishing it from the inside. I am of the opinion that the male must have had his back against one wall of the truck and was kicking into the other side with his feet. The truck was rocking so much that I said to Helen:
"He'll have very sore feet in the morning."
The male continued to kick in the truck and yell abuse and swear for a short period of time. There were a large number of people around the Police vehicles and ambulance.
A short time after the male settled down the Police truck drove away....
50SC Hawkins agreed in cross-examination that Mr Travalos caused the van to rock and "There was a lot of kicking and banging going on". SC Hawkins also agreed that at some point Mr Travalos "was probably banging on the van with his head". SC Scott also agreed in her ERISP interview that Mr Travalos "could have been" banging his head in the van.
51Mr Travalos, during his oral evidence, agreed that he had been jumping side to side and up and down in the back of the police vehicle. He said he was kicking at the door of the vehicle for approximately 15 minutes. The respondent said in his evidence that Mr Travalos was yelling to be let out of the van and using offensive language which "made the crowd's intensity increase and they began shouting and I could sense from my years of training and experience the situation was escalating."
52Her Honour Magistrate Truscott described the scene thus:
Whilst in the rear of the truck he [Travalos] kicked and banged the inside walls and floor of the truck and shouted and swore. The crowd of predominantly intoxicated youth around the truck were unruly, evidenced by throwing bottles, yelling, swearing, verbally abusing each other and abusing the police. There were fears that the crowd, in reaction to what the accused was doing in the truck would attempt to free him or be hostile towards the police. They began to approach the truck causing police to move them back across the road.
53A critical issue before the Magistrate was whether Mr Travalos was sitting quietly or still kicking the vehicle when the door of the van was opened immediately prior to Mr Ross spraying Mr Travalos. Her Honour considered that if Mr Travalos was sitting quietly there could have been no reasonable excuse for deploying the OC spray to prevent a violent confrontation in the truck. Her Honour considered Scott and Hawkins to be "certain and clear witnesses" and favoured their testimony over other police officers present. The evidence of SC Scott and SC Hawkins was that at the time Mr Ross opened the van door, Mr Travalos was behaving. SC Hawkins' evidence was that Mr Travalos "had calmed down" and he was "sitting staring straight ahead".
54Magistrate Truscott discounted the value of SC Collier's evidence, which was that:
Once inside, the young person began yelling "Get me out of here, fucking come on". This appeared to be directed at the crowd that had formed and was growing. He then began to kick the inside of the cage repeatedly. At this time, I walked past the kerbside door (of the truck) toward my vehicle and retrieved my notebook when I heard Snr Const Ross say "Open the door". At this time the young person was still kicking the inside of the cage. I looked back and saw the door being opened by Snr Const Ross and I kept walking to my car. As I retrieved my notebook I heard members of the crowd saying things like "That's pepper spray, they sprayed him".
55Senior Constable Collier was cross-examined about this evidence and agreed, "it was possible the kicking could have stopped before the accused approached and opened the door." Her Honour found that SC Collier "did not know whether the kicking stopped before or after the spray was used."
56Magistrate Truscott also considered whether Mr Ross used the OC spray to help the police control the crowd or whether he used it because he was concerned that Mr Travalos might hurt himself "from all the kicking and jumping around". Her Honour dismissed the first proposition on the basis that Mr Ross was not charged with guarding, securing or protecting Mr Travalos and there was no evidence SC Scott and SC Hawkins were failing in their guarding duties. Her Honour dismissed the second proposition on the basis that Mr Ross had the OC spray in his hand before opening the van door, which was inconsistent with any concern that Mr Travalos was hurting himself and in any event "looking through the window [of the van] would have allayed any concerns about Travalos's welfare...."
57In the proceedings before the primary judge SC Hawkins disagreed with the proposition put in cross examination that up until the time Mr Ross had opened the van door Mr Travalos had been making "violent noises... in the rear of the truck". In her ERISP interview SC Hawkins said that Mr Travalos had calmed down by the time the van door was opened; that Mr Travalos only "thrashed about" for a couple of minutes from the time he was placed in the van. SC Scott said in her ERISP interview that Mr Travalos "wasn't making the same racket as what he was a few minutes earlier than [the door being opened]... the noise and racket had stopped". In her evidence before the primary judge, SC Scott confirmed what she said in her ERISP interview, namely, the noise in the van stopped a few minutes prior to the van door being opened. However, in cross-examination, SC Scott conceded that whilst Mr Travalos had stopped "banging" he may have been "yelling out" at the time Mr Ross asked for the van door to be opened.
58The respondent's evidence before the primary judge was that he pursued a course of action in an attempt to prevent Mr Travalos from injuring himself, inciting others and causing mob conduct on the night. The respondent also claimed that when he opened the door of the police van, Mr Travalos kicked out at him. However, the respondent did not claim he used the OC spray in self defence. The respondent said he already had it in his mind that he was going to spray Mr Travalos before the van door was opened.
59The evidence about whether, at the time Mr Ross requested the van door to be opened, Mr Travalos had calmed down is not clear-cut. SC Scott conceded he may have still been yelling out. SC Collier ultimately could not be sure and despite his initial view that Mr Travalos was still kicking inside the van when the door was opened he ultimately conceded that it was possible the kicking could have stopped prior to the door being opened. Apart from Mr Travalos himself, who by his own admission was "pretty drunk" at the time, only Senior Constable Hawkins remained certain Mr Travalos had completely calmed down prior to the door being opened.
60It is clear, however, that the scene was "chaotic" and the van in which Mr Travalos was being held had become the centre of the large mob's attention. As Magistrate Truscott observed, there were fears that the crowd, in reaction to what Mr Travalos was doing in the truck, would attempt to free him or be hostile towards the police. There is every possibility that the distraction of the mob, the concern about bottles being thrown and dealing with Mr Travalos' violent conduct on the evening all blurred perceptions of time and events.
61It is not without reservation that we refrain from adopting the Magistrate's evidentiary findings. Her Honour considered all of the evidence carefully and in considerable detail. But the circumstances of the events of 10 June 2006 do not present a black and white picture where one is able to easily reach conclusions about what occurred and why. Moreover, the legal task her Honour undertook was quite different to the task undertaken by Staff J.
62It seems to us it cannot be discounted that Mr Travalos was continuing to misbehave in the police van at or very close to the time Mr Ross asked for the door to be opened and that Mr Ross' motive in using the OC spray was out of concern that Mr Travalos' conduct could incite the mob to further violence. The Magistrate's reason for refusing to accept Mr Ross was motivated to use OC spray on Mr Travalos to assist in the control of the crowd was that Mr Ross was not charged with guarding, securing or protecting Mr Travalos and there was no evidence SC Scott and SC Hawkins were failing in their guarding duties. However, Mr Ross was a police officer assigned to assist in ensuring violence did not break out and there was no evidence that it was impermissible for him to use his initiative to quell or avert violence if he perceived the threat of violence from the mob that had gathered near the police van.
63Mr Ross said he was also concerned Mr Travalos was banging his head insider the van and he was concerned about him injuring himself. As we earlier noted, SC Hawkins agreed that at some point Mr Travalos "was probably banging on the van with his head". SC Scott also agreed that Mr Travalos "could have been" banging his head in the van. However, in the circumstances, we are inclined to believe it was unlikely that concern Mr Travalos might injure himself was a reason for Mr Ross' resort to OC spray. As the Magistrate observed, it was a simple matter of Mr Ross looking through the window of the van to allay any concern about injury.
64The primary judge found in relation to the conflicting evidence about whether Mr Travalos had calmed down prior to the door being opened that:
I formed the view that each of the witnesses was endeavouring to accurately recall the events of 10 June 2006. In my view, it was quite possible that either Ms Hawkins, Senior Constable Scott, or the applicant, were mistaken in respect of this aspect of the incident, bearing in mind the circumstances of the night. As I will discuss shortly, the difference in the evidence is not decisive to the outcome of this review.
65The primary judge did not make a specific finding - objectively or subjectively based - as to whether the use of the OC spray was unreasonable. His Honour appears to have taken the view that he could not be certain what occurred on 10 June 2006, a view strengthened by the similar findings of Frearson DCJ. In addition, his Honour seems to have taken the view that the key basis upon which the Commissioner removed the respondent was the conviction for assault. With that conviction being overturned by Frearson DCJ the key basis had dissolved.
66The Commissioner certainly did have regard to the conviction for assault in deciding to remove the respondent. Whether it could be regarded as the key basis for the Commissioner's decision is doubtful. The Commissioner did canvass what he considered to be the relevant material from the Commissioner's Confidence Supporting Documentation and quite independently of the Magistrate's decision, concluded the use of OC spray was "inappropriate and unreasonable", that the disobedience of a reasonable direction was an even more serious ground justifying removal and that the respondent's conduct breached various obligations that bound the respondent as a police officer. The overturning of the conviction may have removed one plank upon which the Commissioner relied for removing Mr Ross, but that did not render the Commissioner's reasons entirely invalid.
67Thus, it is apparent the primary judge's reasoning was that the conviction for assault had been overturned and his Honour was left to determine whether, nevertheless, there remained proper grounds to remove the respondent. His Honour then considered the events of the evening of 10 June 2006. That led him to similar conclusions to those of Frearson DCJ including that Mr Ross may have believed that his actions would help control the people outside the truck. These conclusions were open to him on the evidence. The primary judge indicated (at [83] of the first decision) that he had given significant weight to the findings of Frearson DCJ "that the actions of the [respondent] were not unreasonable."
68We note Frearson DCJ's finding was that his Honour was "unable to conclude to the required standard that the actions were unreasonable." The standard of proof to be applied by Frearson DCJ was that of beyond reasonable doubt. So, it may be concluded that his Honour was not satisfied beyond reasonable doubt that the actions of Mr Ross were unreasonable. Staff J was mistaken in stating that Frearson DCJ found the actions of Mr Ross were not unreasonable. Did this mistaken view taint his Honour's decision to the extent it was wrong? We do not think so.
69 Staff J did not make a finding based on his mistaken understanding of what Freason DCJ found. That is to say, Staff J did not make a finding based on his understanding of what Frearson DCJ found that on the balance of probabilities (the standard of proof his Honour was required to apply) Mr Ross's actions were not unreasonable. His Honour did not adopt the findings of Freason DCJ, he only gave them "significant weight" and found them "persuasive". Unlike Frearson DCJ and Magistrate Truscott, his Honour found it unnecessary to resolve key conflicts in the evidence for the purpose of deciding whether the respondent's actions were unreasonable. This was because his Honour's task was to determine whether the removal of the respondent was harsh, unreasonable or unjust, not whether the use of force was unreasonable or amounted to assault.
70Having concluded the reliance by the Commissioner on an assault conviction was not available and having found it was unnecessary to decide whether the actions of the respondent were unreasonable (such finding having been made against the background of his Honour placing significant weight on the findings of Frearson DCJ), Staff J proceeded to consider relevant additional matters regarding the unreasonable force ground. These included that: the respondent had a pre-existing illness that heightened his sense of anxiety and fearfulness; the appellant failed, in removing the respondent, to have regard to the respondent's claim he pursued a course of action in an attempt to prevent Mr Travalos from injuring himself, inciting others and causing mob conduct on the night; and that it was open on the evidence for the respondent to form the view that it was appropriate to use OC spray.
71As to the pre-existing illness, the respondent had been diagnosed with PTSD in 2004. However, the appellant submitted that there was no evidence the respondent was suffering from the effects of PTSD on the evening of 10 June 2006. What is more, the appellant submitted, the respondent could not maintain in his defence that his use of OC spray on Mr Travalos was appropriate and at the same time claim his judgment was impaired because he was suffering from PTSD.
72The primary judge referred to medical evidence that the respondent's "actions and over-reactions" on 10 June 2006 were "highly consistent" with suffering PTSD, added to blurred judgment and that:
He can be exceedingly anxious, his mind is over-active with negatives, seeing danger, being very scared of what might happen next and also in this state increasingly going into a dissociative state - ...
73Staff J referred to the fact that in his reasons for removing the respondent the Commissioner stated he could see no additional mitigation or reasons for the respondent's conduct that would provide him with any basis not to lose confidence in his suitability to remain as a police officer. Staff J disagreed and relevantly found the respondent's PTSD:
[M]ay well have played some part in how he perceived the intensity or severity of what was occurring on that particular night. The applicant's evidence was that he was fearful and overwhelmed by the events of that evening and came to a conscious decision to use the OC spray. It was never put to the applicant that his understanding of the circumstances at the particular time he used the spray was wrong, nor was it said that his intention was wrong, or that he had any other motive in respect of Mr Travalos, who was unknown to him. The applicant's description of his mental process and his thoughts on the evening of 10 June 2006 were never challenged.
74The primary judge, in our opinion, was entitled to take into account the fact that the Commissioner did not consider the respondent's mental condition to be a mitigating factor in circumstances where the medical evidence was that the respondent's PTSD may have affected his judgment on 10 June 2006. As for the appellant's submission claiming an inconsistency in the respondent's position, an inconsistency does not necessarily arise. That the respondent may have believed he acted appropriately does not deny the fact he was suffering from PTSD, which as the primary judge found, may have "played some part in how he perceived the intensity or severity of what was occurring on that particular night." It was a reasonable conclusion on his Honour's part that this was a mitigating factor not taken into account by the Commissioner.
75The primary judge found that the Commissioner, in his reasons for removing the respondent, made no reference to the respondent's claim he pursued a course of action in an attempt to prevent Mr Travalos from injuring himself, inciting others and causing mob conduct on the night in question. We have discounted that the respondent was motivated out of a concern that Mr Travalos might injure himself. As to the incitement of others and causing mob conduct, on the evidence we have discussed above the possibility that the respondent acted to prevent further mob violence could not be discounted and, accordingly, Staff J was correct in identifying this as a relevant consideration for the Commissioner, but which was overlooked.
76The primary judge referred to the Commissioner's reliance upon a purported breach of the NSW Police Handbook and Pocket Guide in respect of the use of OC spray. His Honour referred to the evidence of Mr Pimm to the effect that the circumstances of a handcuffed person in a police van does not preclude the use of OC spray and that it was open to the respondent to form the view that it was appropriate to use OC spray. His Honour noted this was not challenged other than to the effect that SC Hawkins was not necessarily wrong when she formed her view that the use of OC spray was inappropriate. Staff J also noted the appellant did not call any evidence that contradicted the evidence of Mr Pimm that if the respondent formed the view, due to the circumstances, to use the OC spray, then it was an appropriate use of the spray. In relation to this last matter, of course two of the appellant's witnesses, SC Hawkins and SC Scott, did give evidence that the use of OC spray was inappropriate.
77The primary judge also sought to take some comfort in the concession of SC Scott that if there was a belief held by an officer, that a detained person in a van was liable to injure him or herself, then the use of OC spray was appropriate. His Honour referred to SC Hawkins' concession that the use of OC spray was not inappropriate because a prisoner was confined in a police truck or van. These concessions, made in cross-examination, were of a very general nature and their probative value is relatively minor in the face of the adamant evidence of these two officers that it was completely inappropriate in the circumstances to use OC spray on Mr Travalos.
78Nevertheless, if it cannot be discounted that Mr Ross was concerned about the prospect of further mob violence and acted to avert it by using OC spray on Mr Travalos because he was inciting the mob, the Police Guide on the use of OC spray would not have prohibited its use by the respondent in those circumstances. Further, Mr Pimm gave evidence, accepted by his Honour, that the circumstances of a handcuffed person in a police van did not preclude the use of OC spray and that it was open to the respondent to form the view that it was appropriate to use OC spray.
79In relation to the second removal ground, disobedience of a reasonable direction, the primary judge noted that the respondent had, at all times, conceded that he erred in approaching and speaking to SC Hawkins after being directed not to contact any officers involved in the incident and that he was remorseful. His Honour found there was no oral discussion of the actual event on the evening of 10 June 2006 in such a way as to impugn either SC Hawkins or the respondent. The primary judge concluded that the respondent did not have an improper motive in speaking to SC Hawkins.
80The appellant submitted that contrary to a clear direction from Chief Inspector McPhee that he was not to speak to the other officers involved about "the matter" the respondent, both on that evening and thereafter on one further occasion, deliberately breached that direction and sought to engage SC Hawkins in private conversation about the matter (and the second approach occurred, in spite of her resistance to engaging in such discussions with him on his first approach). The appellant submitted this was a clear and deliberate breach of the direction from the respondent's superior as the internal investigation found, and his attempts to sanitise and downplay this aspect of his behaviour should have been rejected by his Honour as, at the very least, disingenuous.
81It was submitted the only reasonable inference to be drawn, and the inference that should have been drawn, was that the respondent immediately and repeatedly disobeyed the direction of his superior with a view to maximising the prospect that SC Hawkins would actively or at least passively assist him (by making no complaint) with his quest to avoid responsibility for behaving improperly towards Mr Travalos.
82We do have reservations about his Honour's conclusion that the respondent did not have an improper motive in speaking to SC Hawkins. Nonetheless, the primary judge had the advantage of seeing SC Hawkins and Mr Ross as they were examined and cross examined in the witness box. To overturn the judge on this matter we would have to find he was plainly wrong (Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 at 378). Whilst there was undoubtedly a breach of the direction by the Chief Inspector and that was a serious matter, "there was no oral discussion of the actual event in such a way as to impugn either SC Hawkins or the [respondent]." We do not consider we are in a position to find otherwise nor are we in a position to come to a different conclusion to his Honour that the Commissioner's second removal ground was not sufficient to justify the respondent's removal from the Police Force.
83As he was required to do pursuant to s 181F of the Police Act, the primary judge had regard to the public interest and to the interests of Mr Ross. In relation to the public interest, his Honour was of the view that sustaining the order removing the respondent may have resulted in a significant injustice. In relation to the respondent's interests, Staff J acknowledged his good service record, his remorse in respect of his failure to comply with the directive to speak with SC Hawkins, the impact of removal on the respondent's superannuation entitlements and the forfeiture of any rights he may have had pursuant to the Crown Employees (Police Officers Death and Disability) Award 2005 given his disability.
84The primary judge concluded that the removal of the respondent from the Police Force was harsh: at [92] of the first decision. Having regard to all of the matters his Honour took into consideration in determining the removal was harsh, we find there was no error in his Honour reaching that conclusion.