(2005) 146 IR 113
Box Valley Pty Ltd v Price [2000] NSWIRComm 117
(2000) 97 IR 484
Briginshaw v Briginshaw [1938] HCA 34
(1938) 60 CLR 336
Coulton v Holcombe [1986] HCA 33
(1986) 162 CLR 1
Department of Attorney General and Justice - Corrective Service and Richard Woelfl and others [2013] NSWIRComm 73
Source
Original judgment source is linked above.
Catchwords
(2005) 146 IR 113
Box Valley Pty Ltd v Price [2000] NSWIRComm 117(2000) 97 IR 484
Briginshaw v Briginshaw [1938] HCA 34(1938) 60 CLR 336
Coulton v Holcombe [1986] HCA 33(1986) 162 CLR 1
Department of Attorney General and Justice - Corrective Service and Richard Woelfl and others [2013] NSWIRComm 73(2013) 237 IR 198
Egge and Pitt v Corrective Services [1993] NSWIRComm 29
Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38(2000) 98 IR 1
Fox v Percy [2003] HCA 22214 CLR 118
Fraser v Corrective Services NSW [2014] NSWIRComm 21
Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 15188 IR 202
Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409(2005) 150 IR 265
House v R [1936] HCA 40(1936) 55 CLR 499
Humphries v Cootamundra Ex-Services Memorial Club [2003] NSWIRComm 211(2003) 128 IR 37
Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886(2000) 106 FCR 51
King v State Bank of New South Wales (No 2) (2002) 126 IR 407
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66(1992) 110 ALR 449(1992) 67 ALJR 170
NSW Department of Education and Training v NSW Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210
(2006) 155 IR 257
Palmer v The Queen [1998] HCA 2
(1998) 193 CLR 1 at 7 to 8
F (1995) 83 A Crim R 502
Pfennig v The Queen [1995] HCA 7
Judgment (22 paragraphs)
[1]
Background
At the time of his dismissal the respondent had been employed by the appellant for approximately 26 years. During his employment, the respondent worked as a First Class Correctional Officer at Port Macquarie Police Cells.
Following consideration of allegations concerning inappropriate conduct against the respondent involving a female inmate, a formal investigation commenced in February 2013 into allegations that the respondent may have engaged in misconduct within the meaning of s 43 of the Public Sector Employment and Management Act 2002 (the PSEM Act).
The respondent was subsequently advised by letter that allegations of misconduct relating to incidents at Taree Court "on or about May 2012" were to be dealt with as a disciplinary matter under the PSEM Act.
On 28 June 2013, the respondent was advised the appellant had formed the opinion that he, the respondent, had engaged in misconduct as follows:
1. That you engaged in inappropriate sexual conduct with inmate Natasha Slack (sic).
2. That you behaved in an unacceptable, inappropriate and unprofessional manner towards inmate Slack (sic).
Specifically, as to the first charge, on 11 May 2012 Ms Slacke was attending Taree Court and was in the holding cells waiting to be taken back to the Correctional Centre where she was detained. It was alleged against Mr Fraser that on that day:
1. He befriended Ms Slacke and became increasingly suggestive towards her, asking her twice to:
"Show me your boobs"
1. and saying further words to the effect:
"You have a nice butt" and "You are too good looking and too nice of a person to be locked up here."
1. When Mr Fraser was placing handcuffs on Ms Slacke he reached through the cell door with his right hand and touched Ms Slacke on her left breast;
2. He then said to Ms Slacke:
"I would like to do more with you and with these cuffs"
1. As Ms Slacke was stepping up into a transport truck to return her to the Correctional Centre the respondent placed his right hand on her left buttock and dug his fingers into her buttocks.
Harrison DP found that the respondent was not guilty of the misconduct alleged against him in the first charge.
The second charge of misconduct was based on a statement by Ms Slacke concerning an incident that was said to have occurred on 7 July 2012 as follows:
10. I remember after getting out of gaol a couple of days after 7 July 2012 that I had to appear at Taree Local Court. I was standing out the front of the court house having a cigarette on a brown bench seat and Officer Fraser came up to me. He was in his uniform and he sat beside me. He said, "I have been looking you up on the computer system to find out where you were going to court next. I am trying my hardest to make sure that I would be at the court house on the days you went to court so I could see you again:.
11. I said, "What for I've got a man even though he's locked up". He said, "Yeah, there you go see he's locked up, give us your phone number". I said, "Nah, I'm not giving you my number". He said, "I go up to Kempsey sometimes, I could take you out to lunch or dinner". I said, "Nah, I'm not going to do that, I'm faithful even though he's locked up". Officer Fraser said, "What is happening today at court", I said, "It's just an adjournment".
12. Officer Fraser then lent in and gave me a kiss on the left cheek and placed his left hand on my right shoulder. Right before he kissed me on the cheek he looked around as if to see if anyone was watching and as though he knew he shouldn't be doing it. He then walked away.
In relation to the second charge, Harrison DP found it had not been made out. The appellant did not pursue the matter on appeal. That leaves for consideration on appeal whether Harrison DP erred in relation to his findings about what was alleged to have occurred on 11 May 2012.
We turn to what was alleged to have occurred on 11 May 2012 and how it came to be the subject of an investigation by the appellant.
As we have already noted, the respondent was a first class Correctional Officer and had been since 1990. He was part of the Port Macquarie Court Escort Security Unit. Steven White was another first class Correctional Officer with 22 years' service, also part of the Port Macquarie Court Escort Security Unit. Leanne Matthews was a casual Court Security Officer based at Port Macquarie and former police officer.
Mr Fraser, Officer White and Officer Matthews were together on 11 May 2012. Their tasks that day included taking two inmates from Port Macquarie cells to Taree for court proceedings and return. One of the inmates was Natasha Slacke.
In a statement tendered in evidence before Harrison DP, Ms Slacke stated:
To the best of my recollection I was attending court on that date and I was in the holding cells at Taree. I remember Officer Steven Fraser being very friendly to me that day. At the start I asked him for a pen and paper and he even gave me cigarettes and stuff. While I was in the holding cell. The holding cell was the cell immediately beside the stairs that go up to the court.
We had a general conversation and I asked him how long has he been in the job. I can't remember exactly the words he said but it was along the lines of "I shouldn't be talking to you because I have been in trouble for stuff like this before." I said, "Like what sort of stuff"? And he said, "For being inappropriate towards females."
He was getting more suggestive towards me as the day went on by that I mean he kept coming up to me more than I thought he should not have. At some stage of the day he came up to the cell door and said, "Show me your boobs". He said this about two times.
He also said, "You have a nice butt and you was too good looking and too nice of a person to be locked up here". I recall when he was placing the hand cuffs on me that day at the cells, I put both my hands through the cell door hatch and he placed the cuffs on me. He let go of them and reached through with his right hand and touched me on the left breast.
At that moment I saw a female correctional officer on my right coming around the corner and Officer Fraser quickly withdrew his hand from the hatch in the cell door. I could tell that the female officer saw that something was going on by the way she looked and then turned to have closer look. She did not say anything and turned to walk back up the corridor. I remember him saying something like, "I would like to do more with you and with these cuffs". I recall saying, "I bet you would you dirty cunt". When I said this it was with a nervous giggle he kind of laughed back. He kept staring at me which continually made me uncomfortable. It made me feel bad and I pulled away. I felt helpless and shameful because he is an officer and in charge. Officer Fraser walked quickly away to join the female officer.
The tone of voice he used when he said these words to me was of a normal sounding conversational tone that only we could hear. I remember him returning to talk to me later but the female officer kept following him and watching what he was doing. Later he came and got me to get on the truck to go back to the Mid North Coast Correctional Centre. I walked with him to the side of the truck and went to get on. I ducked my head and stepped and I felt his right hand on my left buttocks. I felt his fingers digging into my buttocks, in fact he was grabbing it. It was unnecessary as I could easily get into the truck and have never needed help before. When he did this I turned my head and glared at Officer Fraser. I was disgusted as if how dare you take advantage of me. At no stage did I give him permission to touch me or ask for any assistance. The touching of my buttocks by this person made me feel offended and dumbfounded.
In a statement tendered in evidence before Harrison DP, Officer Matthews stated:
On that day I was working 0930hrs to 1515 hrs at the Taree court cells. During the shift I was performing duties as court security. About 1510 hrs, we proceded to the holding cell area for the purpose of cuffing the inmates prior to them boarding the escort vehicle. Officer Fraser walked directly to the female cell which required him to walk past the male cell. I stopped at the male cell and proceeded to cuff a male inmate where he remained in the cell, I then walked down the corridor and turned the corner to the right where First Class Correctional Officer Steven Fraser was attending the holding cell occupied by inmate Natasha SLACKE.
As I walked toward the holding cell I heard Officer Fraser say, "see what you do to me". I then observed Officer Fraser to be on his knees with both his arms in the door slot past his elbows. Despite Officer Fraser being aware of my presence Officer Fraser continued to keep his arms in the slot up to his elbows and continue cuffing inmate SLACKE. This seemed unusual to me as I have never seen anyone else apply cuffs to an inmate in this manner before nor have I ever applied them myself in this way. My first thought as I saw this was that Officer Fraser was behaving inappropriately with a female prisoner.
To the best of my recollection I remained present until we left the area together. For the remainder of my shift each time Officer Fraser attended the holding cell area I accompanied him as I had concerns he may act inappropriately. We then proceeded to load the inmates onto the escort vehicle which was located in the van dock as it is known. We then placed the male inmate on the escort vehicle and I then left Officer Fraser at the vehicle whilst I went to the holding cell to retrieve inmate SLACKE.
Officer Steven White and I walked Inmate SLACKE to one of the side compartments and Officer Fraser was already standing there waiting. I remained within a meter behind inmate SLACKE as she walked towards Officer Fraser who was standing at the open door of the compartment. Inmate SLACKE turned to step up and into the compartment and as she did she placed her foot up on the step. At this point I observed Officer Fraser to move his hand in an under and upward direction at a quick speed appearing to be grabbing at the buttocks area possibly the vaginal area of inmate SLACKE. My view was obstructed by something that prevented me actually seeing the connection however my suspicion is that a connection was made. I observed Officer Fraser giggle as this occurred.
This made me feel angry and pissed off that Officer Fraser would behave inappropriately whilst I was watching. I went home from work that day feeling disgusted and made contemporaneous notes which I now produce as part of me (sic) statement.
Mr Fraser denied any misconduct and asserted those that were involved in persecuting him did so falsely and had fabricated their version of events. He believed there was a "vendetta" against him arising from an assault by an officer, Mark King, on Mr Fraser in October 2012. Apparently, Mr King was suspended from duty over the assault and it was Mr Fraser's contention that senior officers within Corrective Services, including Senior Assistant Superintendent Sundin and Senior Assistant Superintendent Leanne Cook (both of whom were involved in aspects of the investigation that was carried out into Mr Fraser's conduct), were pursuing him in order to "assist Officer Kings endeavours to return to Port Macquarie cells from suspension".
Officer White was present at the time of the alleged "buttocks incident". He said in his statement in evidence before Harrison DP:
On this day, we were taking inmates from Taree court cells back to Port Macquarie Police Cells. Steve had gone to the cells with Leanne to cuff the inmates and he brought the male inmate first. The male inmate was placed into the middle pod of the prison van. I walked the female inmate with Leanne and Steve Fraser was already at the truck. When we got her to truck, Steve was standing between the front and middle pods. Leanne stopped at the front of the truck. I walked towards the rear and stood watching as the inmate boarded the van. Steve did not touch her as she boarded the van. As she stepped up into the van I saw Steve step forward and shut the wire inner door and I closed and locked the solid outer door.
Andrew Sneddon, a senior assistant superintendent with the Investigations Branch of the appellant, carried out the investigation into the allegations of misconduct by the respondent. His investigation report was in evidence. Mr Sneddon concluded that there was sufficient evidence to sustain the allegations against Mr Fraser.
It is relevant to describe the process by which Mr Fraser's alleged misconduct came to be the subject of an investigation. The trigger for the investigation was a conversation Officer Matthews had with two other officers on 26 June 2012, those officers being Officer Emma Stewart and Senior Correctional Officer Peter Stace. Officer Matthews referred to the conversation in her statement:
In June 2012 whilst I was working at the Taree court cells I was having a conversation with Officer Emma Stewart and SCO Peter Stace in the office area and Officer Frasers name was mentioned. I said, "if I tell you something, can this stay here". SCO Stace said, "that depends on what you tell me". I then directed my conversation at Officer Stewart because she is a female and I wanted to make her aware of Officer Frasers behaviour with female inmates and to keep an eye on him. I felt I needed to unload what I had witnessed and tell someone as I was distressed by what had occurred.
It was Officer White's evidence that in June 2012 (no specific date was given) he was in a tea room in the office at Port Macquarie when he overheard a conversation between SAS Leanne Cook and Officer Stewart that Mr Fraser had "touched up" a female inmate at Taree when he was working with her. Ms Slacke's name was mentioned as the inmate concerned. Officer White checked to see if he was on duty on 11 May 2012 and discovered he was. He described in his oral evidence that what Officer Stewart said as "bullshit" but said nothing about his opinion to any person within Corrective Services. It is to be noted that SAS Cook was party to the conversation with Officer Stewart, but there was no evidence she followed up on what Officer Stewart had told her. Neither SAS Cook nor Officer Stewart gave evidence in the proceedings.
It was not until 24 October 2012 that Officer Stewart submitted a written report to management in which she recounted the conversation with Officer Matthews on 26 June. In her report Officer Stewart stated:
At approximately 12.00pm on 26/June/2012 I was carrying out my duties as Taree Court Officer when the following incident occurred:
Whilst performing my duties at Taree court I was having a conversation with TSCO Leanne Matthews and SCO Peter Stace during the conversation with Officer Matthews she told me that on a previous date she had witnessed inappropriate behaviour from Officer Steven Fraser towards a female inmate.
Leanne informed me that Officer Fraser was down on his knees with his arms fully in the hatch and appeared to be laughing with the inmate.
Leanne said whilst they were placing the inmate on the truck she witnessed Officer Fraser grab the female inmate on the buttocks, the female then turned and laughed at Officer Fraser.
I then said something like, I cannot believe Fras is acting like that.
I cannot recall what Officer Stace said during the conversation.
Officer Stace provided a statement to the investigator in January 2013. However, he was unable to recall the conversation of 26 June 2012.
Officer Stewart's report, it is to be noted, was lodged the day after Officer King was suspended from duty as a consequence of the altercation with Mr Fraser. This was the basis of Mr Fraser's allegation that friends of Officer King within the Service had plotted to have Mr Fraser removed and Officer King reinstated at Port Macquarie.
Officer Stewart's report led SAS Sundin on 1 November 2012 to recommend to the General Manager, Court Escort Security Unit, that the incident be reported to the Professional Conduct Management Committee for consideration as to whether there should be a formal investigation. SAS Sundin attached to his reports a number of previous reports relating to past behaviour by Mr Fraser. These included the following:
1. On 29 June 2001 a Letter of Warning was issued to Mr Fraser designed to persuade him to be truthful in his future professional dealings. This followed a finding in an internal review that Mr Fraser had given untruthful evidence to a parole board hearing. Mr Fraser denied he was untruthful.
2. Officer Stewart made a complaint regarding an incident that was alleged to have occurred on 3 May 2010. It was alleged that whilst Officer Stewart was seated and had her legs on a chair, Mr Fraser lifted her pants and rubbed her left leg. When challenged by Officer Stewart as to what he was doing, Mr Fraser was said to have replied that he was just checking to see if she had hairs. According to Officer Stewart this caused her shock and embarrassment. Mr Fraser stated Officer Stewart's complaint was a complete fabrication.
3. Allegations by a former female inmate that in January 2010 the respondent sexually harassed an inmate whilst she was showering by looking at her and making inappropriate comments to her. It was alleged that the respondent returned to a showering facility whilst the inmate was getting undressed, causing the inmate to place her hands over her breasts. It was in that context the inmate complained about Mr Fraser's breach of her privacy and the inappropriateness of his comments to the effect: "Don't worry I've seen them before" referring to her breasts.
4. On 8 June 2010 the respondent was issued with a second warning letter by Don Rodgers, A/Deputy Commissioner. Mr Rodgers regarded the respondent's conduct in the shower incident as sexual harassment of the inmate. The letter also referred to a traffic incident in which the respondent was involved and an incident in January 2010 where the respondent was alleged to have become "so aggressive towards staff that they feared for their safety". The appellant regarded the respondent's behaviour as serious and transferred him the Mid North Coast Correctional Centre for a period of 12 months. The respondent was placed on a Performance Management Plan for six months. The standards of behaviour that the respondent was expected to observe under the Plan relevantly included:
Use respectful language towards women and to refrain from any sexualised comments, sexual innuendo and banter; and not to touch female staff members (or female offenders) or accidentally brush against them.
The letter stated:
In addition to this I warn you that I expect your attitude towards senior officers of this service to improve and your inappropriate behaviour towards women to cease immediately. Should I receive another report detailing any aggressive and inappropriate conduct by you, then I will take disciplinary action against you.
1. In early February 2011, Mr Fraser entered the staff meal room and addressed all present (including females) with the comment: "Hey lesbians". This resulted in a third warning letter being given to Mr Fraser on 27 July 2011. In the letter it was stated:
It concerns me that despite evidence being put to you that two officers had heard the comment and the officer who you directed the comment at spoke to you specifically about what you had said to her, you continued to deny that the above occurred.
The comment "Hey lesbians" is discriminatory and unlawful and in breach of the Anti-Discrimination Act 1977.
[2]
Decision at first instance
The Deputy President at [8] described the two main allegations of misconduct made against Mr Fraser as being:
(1) On 11 May 2012 whilst in the process of putting handcuffs on Ms Slacke he touched her left breast.
(2) On 11 May 2012 whilst Ms Slacke was being placed in transport to convey her from Taree cells to Port Macquarie he groped her buttocks.
The Deputy President described the first of these allegations as the "handcuffing allegation" and the second as the "transport allegation". A further allegation that Mr Fraser had inappropriate communications with Ms Slacke, including a request that she "show him her boobs" was described by his Honour as "undeveloped allegations".
It is evident from the early paragraphs of the Deputy President's decision that his Honour had serious misgivings about the strength of the appellant's case. For instance, his Honour noted at [17] that Officers Stewart and Stace were not called to give evidence; at [18] his Honour observed that Mr Sneddon confirmed that Mr Fraser offered the defence that the altercation with Officer King was behind the accusation, however, he had refused to investigate this or pursue that line of enquiry as he considered it a separate matter; and at [20] to [21] stated:
[20] There are a number of matters which give rise to concern over the investigation in addition to the failure to examine a line of defence offered by Mr Fraser. The explanation given is that Officer White was not identified in the brief received from Manager of Security, Brian Cullen, and Officer Matthews told him that Officer White did not directly see anything.
[21] The matters of concern are:
(1) Failure to interview Officer White who was a direct participant;
(2) Affording inappropriate weight to the advice from Officer Matthews that she did not actually see anything but was only suspicious;
(3) The interview of Officer Emma Stewart, who was not present, on the accuracy of any of the allegations;
(4) Failure to specify the conduct alleged;
(5) Finding that allegations of misconduct were sustained without any reasoning or consideration of credibility;
(6) Failure to undertake any sort of investigation into the defence offered by Mr Fraser;
(7) The approach to Ms Slacke, three days prior to her preparing her statement for the investigation, informing her that the investigator was aware of inappropriate touching and behaviour toward her. This approach was not an open enquiry of Ms Slacke and as such carries the difficulty of being suggestive to her.
[3]
Grounds of appeal
The grounds of appeal were as follows:
1. The Deputy President erred in not finding established the key allegations of misconduct against the respondent, that on 11 May 2012:
1. Whilst putting handcuffs on a female inmate at Taree Court cells, the respondent inappropriately touched the female inmate on her left breast; and
2. Whilst the female inmate was stepping into a transport vehicle to convey the female inmate from the Taree Court cells to Port Macquarie, the respondent inappropriately grabbed the female inmate's buttocks.
1. The Deputy President erred in not taking into account, or giving sufficient weight to numerous material facts relating both to factual matters and to issues of credit in respect of witnesses.
2. The Deputy President erred in discounting from the assessment of facts and of credit of the respondent the tendency and/or propensity evidence (giving rise to a concern of a pattern of inappropriate behaviour towards females by the respondent) relating to:
1. The complaint by another female inmate of sexual harassment by the respondent;
2. The express inclusion in a prior Performance Management Plan for the respondent of a specific area of concern being "inappropriate behaviour towards female inmates, offenders and staff"; and the requirement that the respondent not touch female staff or inmates or accidentally brush against them;
3. The incident shortly after the completion of the Performance Management Plan whereby the respondent entered the staff meal room and addressed all present (including females) with the comment, "Hey lesbians", which had the Performance Management Plan still been in operation, would have breached the directive that the respondent "use respectful language towards women and to refrain from any sexualized comments, sexual innuendo and banter";
4. The incident relating to the complaint by a female officer involving inappropriate touching and comments.
1. The Deputy President erred in finding that the complaint by the female officer, Officer Stewart, was never raised with the respondent and that he had no opportunity to respond to that complaint.
2. The Deputy President erred in finding a letter of warning that had previously called into question the truthfulness of evidence by the respondent at a parole board hearing was irrelevant to the assessment of the respondent's character and credit.
3. The Deputy President erred in not taking into account, or giving sufficient weight to, the changed accounts of the respondent in relation to the "Hey lesbians" incident from one of denial to one of admission in the assessment of the respondent's character and credit.
4. The Deputy President erred in failing to give adequate reasons for preferring the credit of Mr Fraser and Officer White over the evidence of Inmate Slacke and Officer Matthews.
5. The Deputy President erred in finding that the evidence of Officer Matthews lacked substance.
6. The Deputy President erred in finding the internal investigation to be "fatally flawed" for the reasons given.
[4]
Leave to appeal
The appellant submitted leave to appeal should be granted for the following reasons:
1. The central issue the Full Bench is asked to consider in this appeal is whether the findings of fact in relation to serious misconduct involve sexual harassment of a female inmate were wrong or not reasonably available on the evidence.
2. If, as is contended by the appellant, there is a substantial basis upon which to conclude that such a contention was made out, then consistent with past authority, there is a significant basis for the grant of leave in order to ensure the proper administration of justice.
3. The grant of leave to appeal to ensure the proper administration of justice in the public interest.
In its narrative on leave, the appellant submitted:
In the Appellant's Outline of Submissions, the Appellant sets out a substantial basis upon which to conclude that it was not reasonably open to the Deputy President to absolve Mr Fraser of two serious allegations of misconduct.
The appeal thus raises significant issues as to the proper administration of justice in this jurisdictional area and requires grant of leave in the public interest.
The case also raises serious issues concerning the lack of adequate reasons to explain why the Deputy President made key forensic decisions and why he omitted to make any reference to evidence of significant probative value. In this context "probative value" of the relevant evidence means the extent to which that evidence could rationally affect the assessment of the probability of the existence of facts in issue. The key facts in issue were whether serious allegations of misconduct were proven to the requisite degree.
The respondent opposed leave being granted. He contended the appeal merely raised questions of a factual nature. It was submitted the decision of the Deputy President involved a fairly unremarkable application of settled principles relevant to a finding of fact involving an allegation of serious misconduct upon which an employer intended to rely in dismissing an employee from employment. The preference for the evidence of the respondent and Officer White over that of Inmate Slacke was really unexceptional given the matters to which the Deputy President referred. There is no basis for appellate intervention where the findings made could not be said to be reasonably open nor has 'clear error' been demonstrated. The application for leave to appeal and the appeal should be dismissed.
[5]
The appellant
The appellant's case was that the Deputy President failed to give reasons or adequate reasons for his decision and was led into error on a number of fronts. The appellant contended the Deputy President made findings of fact that were not reasonably open to make and did not consider relevant matters pertaining to both fact and credit.
The appellant submitted that the decision under appeal was not one of a discretionary nature of the kind considered in House v R [1936] HCA 40; (1936) 55 CLR 499, but rather involved the consideration of the question whether the dismissal was harsh, unreasonable or unjust in the circumstances, which involved mixed issues of fact and law, rather than the exercise of discretion per se: see Humphries at [82]; Burge at [4], citing Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151; 88 IR 202 at [181] to [182]; and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at [59]. As such, the appeal is an appeal stricto sensu: see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [70].
In Humphries at [83], the Full Bench considered the relevant principles to be applied on appeal in circumstances involving mixed issues of fact and law may conveniently be adopted from the decision of the Full Bench in Burge at [7]:
The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1979) 142 CLR 531 at 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107; Autobake Pty Ltd v Budd (1986) 19 IR 18 at 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178; Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 153-155; and Port Macquarie Gold Club Ltd v Stead (1996) 64 IR 53 at 59.
The appellant submitted the decision of the Court of Appeal in Brown did not in any way undermine the principles set out in Humphries.
[6]
The respondent
The respondent submitted that the Deputy President had correctly determined the dismissal was harsh, unjust and unreasonable. The Deputy President's findings in relation to the breast touching allegation were open to him on the evidence.
The Deputy President was correct to observe that there were significant difficulties in accepting Ms Slacke's version of events. The mere fact that the respondent was said to have touched her breast whilst a female officer was present was fairly described as implausible. The physical implausibility associated with the respondent having placed his hand through the hatch to the cell door whilst Ms Slacke's hands were handcuffed and outside the cell door was another difficulty posed with accepting her version of events.
The respondent's position was that there was no issue in the evidence about where the respondent's arms and hands were relative to the cell door. There was a significant issue about the plausibility of Ms Slacke's claim that her arms were outside the cell door when the incident occurred. Ms Slacke's evidence differed to that of Officer Matthews and the inconsistency raised in her evidence cast much doubt upon its accuracy.
It is relevant that Officer Matthews did not see the respondent touch Ms Slacke and contrary to her version of events, Officer Matthews said that the respondent handcuffed Ms Slacke whilst her arms were inside the cell. This discrepancy is significant because Officer Matthews' evidence was that the respondent had his arms inside the cell door. Ms Slacke's evidence was that when Officer Matthews appeared, the respondent quickly withdrew his hand from the hatch in the cell door. Accordingly, there was no 'concurrence' at all as to what happened when Officer Matthews arrived at the cell door. Ms Slacke's credit was impugned by the inconsistency of her evidence when compared with Officer Matthews' evidence.
What Officer Matthews said she heard the respondent say, "See what you do to me", is similar to what the respondent said, "Look see my hands, put your hands like this."
The absence of corroboration of Ms Slacke's version of what occurred, the implausibility of what was alleged to have been said and done by the respondent and the respondent's denial, was a sufficient and sound basis to find that the allegation was not proven, especially having regard to the level of satisfaction required to be had. The Deputy President's finding was reasonably open to him in those circumstances and was correct.
[7]
Misconduct
There are a number of general matters we need to address before turning to the central issues in the appeal. First, there was no issue that the respondent was a "public sector employee" whose employment was subject to the PSEM Act and Pt 6 of Ch 2 of the Act dealing with unfair dismissal (whilst the PSEM Act has been repealed, it relevantly applied in the period leading up to and including the respondent's dismissal). Section 43 of that Act defined "misconduct" to include "performance of duties in such a manner as to justify the taking of disciplinary action".
Section 46 of the PSEM Act prescribed the process for dealing with allegations of misconduct and provided authority for the Department Head to decide to deal with misconduct allegations as a disciplinary matter in accordance with the procedural guidelines. Section 42 provided that disciplinary action that could be taken against an officer included (a) dismissal from the Public Service or (b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time.
All of the statutory provisions we have referred to in the PSEM Act were in Pt 2.7. The objects of that Part, set out in s 41 were:
a) to maintain appropriate standards of conduct and work-related performance in the Public Service;
(b) to protect and enhance the integrity and reputation of the Public Service;
(c) to ensure that the public interest is protected.
The appellant submitted that the respondent's conduct described in the handcuffing and transport allegations constituted sexual harassment, that it was a contravention of the Anti-Discrimination Act 1977, that such conduct amounted to misconduct within the meaning of the PSEM Act, and that the appropriate response to such misconduct was dismissal or a direction to resign. If the allegations or either one of them is made out we agree it would constitute sexual harassment under the Anti-Discrimination Act (see s 22A) and amount to misconduct. Such misconduct would, prima facie, justify disciplinary action in the form of dismissal in order to meet the objects of Pt 2.7 of the PSEM Act. Sexual harassment of a prison inmate by a prison officer is completely unacceptable conduct.
These observations need to be understood in the context, however, of the nature of the proceedings before Harrison DP. The matter concerned an application brought under Pt 6 of Ch 2 of the Act. Putting aside discretionary considerations as to remedy arising under s 89, the relevant test under that Part was whether a termination of employment is harsh, unreasonable or unjust and not whether the employee, the subject of the dismissal, had engaged in misconduct, per se (although that question will influence the determination of whether the dismissal was harsh, unreasonable or unjust). We refer, in that respect, to the decision of Walton J (with which Staff J agreed) in Department of Attorney General and Justice - Corrective Service and Richard Woelfl and others [2013] NSWIRComm 73; (2013) 237 IR 198 at [68] and [69], as follows:
68 The adjudication of unfair dismissal matters does not require a decision as to whether the decision or threat to dismiss was lawful (or may have been lawful), per se, but whether any decision to dismiss was, in the circumstances, harsh, unreasonable or unjust (see NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [45]). So, too, the exercise of power under s 89(7) does not ultimately concern whether a decision to threaten dismissal was lawful, or any decision which may result in dismissal may be lawful, but whether the threatened dismissal met that tripartite test.
69 Nonetheless, the question as to whether the officers had engaged in misconduct, and its character and severity, were plainly relevant to the consideration as to whether the statutory criteria in s 84 were met: Casari v Sydney South West Area Health Service [2009] NSWIRComm 103 at [57]; Hargreaves at [45]; Commissioner of Police v Lawrance [2011] NSWIRComm 109 at [82] to [83] and [89] and Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at (74) and (84) and, hence, whether orders should be made under s 89(7).
[8]
Standard of proof
The second issue concerns standard of proof. The relevant standard is the civil standard, that is, on the balance of probabilities. The respondent submitted before Harrison DP that the "Briginshaw standard" (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) applied. There did not appear to be any demur from the proposition although Harrison DP does not appear to address the standard of proof in his decision.
In Briginshaw, Dixon J stated at 362:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Earlier, at 361, Dixon J said:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; (1992) 67 ALJR 170, after quoting Briginshaw, the joint judgment said at 17:
[T]he strength of the evidence necessary to establish the fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary where so serious a matter as fraud is to be found. Statements to that effect ... should be understood as ... reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach to the court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
[9]
Tendency
On the appeal the appellant sought to rely on previous misconduct relating to the respondent's alleged treatment of women as tendency evidence. That is, that the respondent exhibited a pattern of behaviour that revealed a tendency to engage in the sexual harassment of women. The tendency submission included references to the provisions of the Evidence Act 1995 and in particular s 97, which sets out the tendency rule. Section 97(1) provides:
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Reference was also made to Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51, in which Sackville J described at [61] the kind of evidence to which s 97(b) of the Evidence Act was directed:
The critical question in a case in which the tendency rule stated in s 97(1) is said to apply to evidence of conduct is whether the evidence is relevant to a fact in issue because it shows that a person has or had a tendency to act in a particular way. To adopt the language of Cowen and Carter, the question is whether the evidence of conduct is relevant to a fact in issue via propensity: insofar as the evidence establishes the propensity of the relevant person to act in a particular way, is it a link in the process of proving that the person did in fact behave in the particular way on the occasion in question?
In the proceedings before Harrison DP there was no objection raised by Mr Fraser to evidence being tendered by the appellant in respect of three previous incidents. In relation to those incidents it had been alleged that he had acted inappropriately towards women. In the absence of objection the appellant had not found it necessary to rely on the provisions of the Evidence Act or the common law relating to tendency evidence in order to have that evidence admitted. The issue regarding tendency arose in the context of the appellant's bare assertion before Harrison DP that the prior incidents demonstrated a propensity on the respondent's part to act inappropriately towards women. There was no reliance placed on, or reference to, the Evidence Act or relevant case law, or the common law, to assist the Deputy President who, in any event, found that none of the three incidents was of any assistance in determining the issue before him.
[10]
Handcuffing allegation
The bases upon which the Deputy President found that the respondent was not guilty of the handcuffing allegation appear to be that:
1. The approach to Ms Slacke by the investigator informing her that the investigator was aware of inappropriate touching and behaviour toward her, carried the difficulty of being suggestive to her (at 21).
2. There was a conversation between Ms Slack and Mr Fraser as Mr Fraser was in the process of placing handcuffs on Ms Slacke in which Ms Slacke alleged Mr Fraser said "you have a nice butt and you was too good looking and too nice of a person to be locked up here". Mr Fraser then allegedly touched Ms Slacke's left breast. He then said something like, "I would like to do more with you and with these cuffs" (at [74]).
3. Ms Slacke's evidence is that this conversation took place while Officer Matthews was present. Officer Matthews' evidence is that she did not hear any conversation, only Mr Fraser saying what she thought was: "Look what you do to me". Officer Matthews was close enough to hear if anything was said, her evidence does not include reference to any other indistinguishable comment or conversation, which, in my view, supports the denial by Mr Fraser (at [75], [76] and [77]).
4. Officer Matthews was present in the area when Ms Slacke alleges Mr Fraser put one hand through the hatch to touch her on the breast. It is highly improbable that anyone would undertake that sort of conduct whilst knowingly being observed (at [81] and [82]).
5. There is nothing in the evidence of Officer Matthews which supports Ms Slacke's version of events (at [82]).
6. Having regard to the size of the cuffing hatch, it is difficult to accept that it is physically possible, had Ms Slacke had both hands through the hatch, with handcuffs on, that Mr Fraser could have put a hand through the available space (at [82]).
7. Officer Matthews corroborated the evidence of Mr Fraser that Mr Fraser's arms were through the hatch and she did not see him touch Ms Slacke (at [83]).
8. That Officer Matthews did not act on her suspicions further supports a conclusion favouring Mr Fraser's testimony (at [84]).
We say the foregoing matters appear to be the bases upon which the Deputy President determined the misconduct did not occur, because there was a lack of precision in the reasoning when precision was important. For example, in relation to the proposition that the investigator informed Ms Slacke he was aware of inappropriate touching and behaviour toward her, the Deputy President said it carried "the difficulty of being suggestive to her". Does that mean the "difficulty of being suggestive" constituted a reason why the Deputy President came to the conclusions he did or was it simply an observation? We do not know, but it will be necessary to deal with it because it may have been a matter upon which the Deputy President based his findings.
[11]
The transport allegation
The allegation was that on 11 May 2012, whilst Ms Slacke was stepping into a transport vehicle to convey her from the Taree Court cells to Port Macquarie, the respondent inappropriately grabbed her on the buttocks. The appellant again relied on the evidence of the alleged victim, Ms Slacke, and what the appellant asserted was the supporting evidence of Officer Matthews.
It was Ms Slacke's recollection, when it was time to be moved, that Mr Fraser collected her from the cell with Officer Matthews and walked her to the transport van. The appellant accepted this account was mistaken and contrary to the evidence of Officer Matthews, as well as that of Mr Fraser and Mr White. They all concurred that Ms Slacke was collected by Officers Matthews and White with Mr Fraser waiting by the open, front pod of the transport van (thus showing her where to go when she arrived at the van).
The evidence of Ms Slacke about what occurred next was set out at [88] of Harrison DP's decision. Ms Slacke stated that as she went to get on the van she ducked her head and stepped up and felt Mr Fraser's right hand on her left buttock. She elaborated by saying she felt his fingers digging into her buttocks and that he was grabbing it. This behaviour by Mr Fraser was both unwelcome and offensive so far as Ms Slacke was concerned.
Ms Slacke strongly defended her recollection of the event and in cross- examination responded to one question in the following manner :
Witness: Well, yeah, that's what I did say, but - but yeah, but all I recall is that he touched me inappropriately, like on the breast and when I was getting up on the truck, you know, he pushed me up on - and grabbed me on the bum, on the truck, no one needs help in getting up on the trucks. I am not, you know, I've got two legs and stuff, I can step up in there alright.
There followed shortly thereafter this exchange:
Q: I want to suggest that at no time did Mr Fraser touch you, whether on the buttocks or anywhere else, when you were walking onto the truck?
A: Well now you're lying because he did.
The evidence of Officer Matthews regarding the alleged incident is at [87] of his Honour's decision. Because of her concern that Mr Fraser may have acted inappropriately with Ms Slacke in the holding cell, Officer Matthews said she accompanied the respondent each time he attended the holding cell area. Officer Matthews said she and Officer Steven White walked Ms Slacke to one of the side compartments of the truck and Mr Fraser was already standing there waiting. Officer Matthews then stated:
I remained within a meter (sic) behind inmate SLACKE as she walked towards Officer Fraser who was standing at the open door of the compartment. Inmate SLACKE turned to step up and into the compartment and as she did she placed her foot up on the step. At this point I observed Officer Fraser to move his hand in an under and upward direction at a quick speed appearing to be grabbing at the buttocks area possibly the vaginal area of inmate SLACKE. My view was obstructed by something that prevented me actually seeing the connection however my suspicion is that a connection was made. I observed Officer Fraser giggle as this occurred.
[12]
Conclusion re errors in first instance decision
For the foregoing reasons, we consider that the decision at first instance constituted errors warranting appellate intervention. Further, the reasons given for the decision and orders reached as to whether the dismissal of the respondent was harsh, unjust or unreasonable, in the respects we have outlined, were inadequate. Both such considerations warrant the appeal being upheld and the orders at first instance being set aside. Having so concluded, it is necessary for us to determine the proper outcome of the appeal including whether we should substitute our own decision: PSA 2014 at [37].
Having regard to the paucity of credit findings below, the submissions of the parties (the appellant sought that the Full Bench make its own determination as to the matter and the respondent made no submission as to that issue) and our assessment of the evidence, we shall substitute our own decision as to the matter: see TD Preece & Co Pty Ltd v Industrial Court of New South Wales [2008] NSWCA 285; 177 IR 172 at [77]. The following considerations concern that question including some additional steps required for the final disposition of the matter.
[13]
Consideration re disposition of the appeal
It is relevant to commence that discussion with reference to the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 where their Honours discussed the obligations of an appeal court hearing an appeal stricto sensu (footnotes omitted):
[23] The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[24] Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence….Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts….
[25] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in ... operation"[38].
[26] After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
[27] The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
[28] Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
[29] That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
[14]
Mr Fraser
Earlier in this decision we found there was insufficient evidence to support a finding that the respondent had a tendency to sexually harass women. That is not a finding that Mr Fraser was innocent of the allegations made against him by Officer Stewart and Ms Kathleen Stewart.
The respondent's employment record is not an enviable one. Three complaints were made against him of inappropriate conduct towards women. Two of those he denied, but we note the complaints by Officer Stewart and Ms Stewart were tendered as business records and, as we noted earlier, thereby constituted exceptions to the hearsay rule.
Mr Fraser also initially denied the "Hey lesbians" complaint but the evidence against him was overwhelming and he eventually accepted that the remark was inappropriately sexist and contrary to the standards of behaviour expected under the Performance Management Plan that the respondent had only recently completed. The Plan required Mr Fraser to "use respectful language towards women and to refrain from any sexualised comments, sexual innuendo and banter"; and that he was "not to touch female staff members (and female inmates) or accidentally brush against them".
In the context of credibility, it is instructive to consider the circumstances of how Mr Fraser came to change his account of the "Hey lesbians" incident which, we might add, Harrison DP failed to relevantly refer to or give sufficient weight. As the appellant submitted, the ultimate acceptance by the respondent that he made the remark was preceded by a denial of the allegation which had been reported by another officer, Officer Martin; the respondent's denial was in the strongest of terms (that is the claim was asserted to be vexatious and untruthful, malicious, untruthful and slanderous, and that it was part of a vendetta against the respondent by Officer Martin); that in cross-examination the respondent gave multiple accounts of his recollection of the incident vacillating between recalling making the statement; recalling because he had seen reports since; denying any actual recall but accepting he did say it due to all the other people who stated they heard him say it.
As we earlier noted, on 29 June 2001, according to Mr Fraser's Personnel File, there had been a Letter of Warning issued to Mr Fraser designed to persuade him to be truthful in his future professional dealings. This was consequent upon the findings in an internal review that Mr Fraser had given untruthful evidence to a parole board hearing. Mr Fraser denied receiving the letter, although he said he did recall the investigation into the matter, and he denied giving any untruthful evidence. Harrison DP disregarded this evidence as being of no assistance whereas the appellant asserted it was relevant (considered with other evidence) to assist the tribunal of fact to better understand Mr Fraser's character and credit. His Honour gave no reason as to why he considered the warning letter of 29 June 2001 was of no assistance.
[15]
Ms Slacke
In R v Uhrig (unreported, Court of Criminal Appeal (NSW), 24 October 1996) at 16 to 17, Hunt CJ at CL said:
A motive to lie where it does exist is a very relevant factor in judging a witness's credit. It will almost inevitably have substantial probative value in relation to the issue of credit.
The absence of a motive to lie would also seem to us to be a relevant factor in judging a witness's credit. In R v Palmer at 6 the High Court referred to the text Wills on Circumstantial Evidence, 6th ed (1912) at 256 to 257; Taylor on Evidence, 12th ed (1931), vol 2, par 1442 in which it was stated:
It is frequently therefore of the highest importance to investigate the motives of the complainant, and to ascertain whether they are such as may have led to the institution of a false charge. The just course of inquiry in such circumstances was thus laid down by Mr Justice Cresswell. 'The jury,' he said, 'had nothing to do with the prosecutor's motives except so far as if it should appear that there was any motive for the prosecution of an unworthy character made out, it would then be their duty to watch such a case much more narrowly than one in which no such motive appeared. Even in that case, however, if the evidence satisfied them of the truth of the charge, they had no right to look at the motives that had induced the prosecutor to prefer it, but were bound to say that the accused person was guilty.
There was no evidence adduced to support any logical motive as to why Ms Slacke would fabricate her version of events against Mr Fraser. There were no communications between Ms Slacke and Officer Matthews as to their respective recollections of what occurred on 11 May 2012 yet, as the appellant correctly submitted, their separate accounts have key points of commonality which support a finding that the evidence of each was truthful as each recalled the events in question.
There was no evidence of any latent hostility by Ms Slacke towards Mr Fraser other than her exception to be treated in the sexist manner she alleged. There was no evidence that Ms Slacke was part of any vendetta against Mr Fraser.
The respondent sought to undermine Ms Slacke's credibility by referring to Harrison DP's findings regarding the alleged encounter between Ms Slacke and Mr Fraser at the Taree Court House on 7 July 2012. His Honour found that Ms Slacke was not at the Court House on 7 July 2012. His Honour stated:
[106] The Taree court lists for 7 July 2012 (Ex 13) tendered by Mr Reitano show that Ms Slacke's case was not dealt with on that day whilst she was still in custody. Ms Slacke acknowledged that she would have participated by video link. The Taree court lists do not show Ms Slacke appearing again until 8 August 2012.
[107] At the conclusion of arbitration proceedings Mr Benson sought and was granted leave to make further enquiries of the Taree Court Registry and the capacity to put further submissions by 22 April 2014.
[108] Correspondence was subsequently received advising that the Respondent would not file any further material.
[109] Mr Fraser and Ms Slacke were not at Taree Court on the same day after her release from Silverwater Correctional Centre until 8 August 2012. This was not immediately after her release, as put by Ms Slacke. There is nothing to support the allegation.
[16]
Officer Matthews
Harrison DP described Officer Matthews' evidence as "truthful". We agree. There was no evidence Officer Matthews had a motive to lie or that she was hostile towards Mr Fraser such that she would fabricate her evidence in order to do him damage. Officer Matthews' evidence was, in important respects, corroborative of Ms Slacke's evidence and in the absence of any evidence of collusion between the two, Officer Matthews' evidence, albeit circumstantial, is independent evidence.
Additionally, there is the business record of Ms Stewart's statement indicating that Officer Matthews described the buttock grabbing incident to her in June 2012 including the hand movements of Mr Fraser.
[17]
Officer White
The appellant submitted Officer White was not, given his antecedents, a witness of credit and that in the face of conflicting accounts with others their accounts should be preferred unless Officer White's evidence was supported by independent, reliable evidence.
The appellant's contention below that Officer White was not a reliable witness was noted by Harrison DP at [65] of his Honour's decision, but not addressed when his Honour came to determining whether to accept Officer White's account in preference to others (see [93]). This failure to provide reasons for rejecting this aspect of the appellant's case constituted appealable error, it was submitted.
The appellant asserted the antecedent evidence relevant to an assessment of Officer White's credit was as follows:
1. Officer White had worked in the Investigation Unit of Corrective Services NSW for just under two years and acknowledged with this background that he understood the importance of honesty and integrity in the discharge of his duties.
2. Even so, on 8 June 2005, Officer White was issued a Letter of Warning (by way of remedial disciplinary action) as the consequence of a claim that he had acted dishonestly in relation to an application for carer's leave designed to fraudulently obtain a benefit of leave to which he was not entitled.
3. In 2006, Officer White was found to have engaged in plagiarism in the preparation of an application for an internal position and to have included in his accompanying resume a false statement that he had completed the "Aboriginal Issues Course" for the purpose of misleading the selection panel and to obtain recognition for merit to which he was not entitled. In cross-examination, Officer White admitted his intention was to embellish his application in a misleading way. In other words, Mr Ian McLean, Deputy Commissioner, was correct when he stated in a Letter of Caution to Officer White dated 30 June 2006 that:
I consider that when you prepared your resume and application you were not honest and truthful, and by signing and submitting the application form you made a statement that was false and misleading.
The appellant submitted that if Harrison DP had given proper regard to this material relating to Officer White's credit, it ought to have led to the resolution of any credit conflict between Officer White and both Ms Slacke and Officer Matthews in the latter's favour.
[18]
Handcuffing allegation
We conclude that on 11 May 2012 the respondent touched Ms Slacke's breast as he was in the processing of handcuffing Ms Slacke at the Taree holding cells. There is no basis to disbelieve Ms Slacke that the touching occurred. Whilst Officer Matthews did not witness the actual touching, her evidence supports a strong likelihood that the touching occurred and thereby corroborated the evidence of Ms Slacke. The respondent was in a position where he could touch Ms Slacke's breast and given that we prefer the evidence of Ms Slacke and Officer Matthews over that of the respondent there is little doubt he did so. We note, as earlier discussed, that Ms Slacke and Officer Matthews gave independent, but consistent accounts of this incident without any communication between the then inmate and the prison officer (there was no evidence of collusion between those persons).
We do not accept the respondent's evidence that Officer Matthews was present at all times while he handcuffed Ms Slacke and that Officer Matthews actually assisted him with the handcuffing process. To accept that evidence would mean that Officer Matthews deliberately set about concocting a false scenario in order to support Ms Slacke's version of events and we find that glaringly improbable.
Dixon J said in Briginshaw that the tribunal must feel an actual persuasion of the occurrence or existence of a fact in issue before it can be found. In this case we are actually persuaded the respondent touched the breast of Ms Slacke.
[19]
Transport allegation
Similarly, we further conclude Mr Fraser grabbed Ms Slacke on the buttocks as she was entering the prison van. Again, there is no reason to disbelieve Ms Slacke and the observations of Officer Matthews regarding the respondent's hand movement and his giggle corroborates to a significant degree the evidence of Ms Slacke. Officer Matthews' close observation of Mr Fraser at the time of the incident is also significant in this respect.
We prefer the evidence of Ms Slacke and Officer Matthews to that of Officer White. It may be that Officer White was truthful in not witnessing anything untoward by Mr Fraser. It may have been he was momentarily distracted after he had passed by Mr Fraser at the van walking towards the rear. As the appellant submitted, Ms Slacke was not a threatening inmate and as Officer White passed Mr Fraser, Ms Slacke was then effectively under both Mr Fraser's and Officer Matthews' care and control. Further, Mr White gave evidence that he had taken on the task of "doing the bookwork" associated with the escort duties at the same time. As Officer White explained in cross-examination, for each and every inmate movement there was a requirement to provide a record of the time of any inmate movement; inmate's name; the name of the persons who were the escorting officers and where the inmate was taken. It is thus conceivable Officer White was focused on his bookwork at the critical moment.
[20]
Whether dismissal harsh, unreasonable or unjust
Harrison DP found that as the allegations against Mr Fraser were not made out his dismissal was, therefore, "harsh, unreasonable and unjust".
We have found his Honour erred and, in reaching our own conclusion as to this matter, the misconduct of which the respondent is guilty constitutes sexual harassment by a correctional officer of an inmate. Such conduct is unacceptable.
Other than reference to the respondent's age and his "good employment record" over 26 years, little attention was given by the respondent to the consequences for him if the Deputy President had upheld the dismissal. Consequently, there is very little information (or submissions) available to the Full Bench to weigh in the balance the competing considerations of the seriousness of the misconduct and any exculpatory or mitigating factors in favour of the respondent so as to determine whether the dismissal was, nonetheless, harsh, unreasonable or unjust (Vouden v Commissioner of Police [2014] NSWIRComm 25 at [480] and [610]) and, if an affirmative finding was made in that later respect, whether a remedy under s 89 of the Act may appropriately be granted in favour of the respondent.
Accordingly, we shall permit the parties to make further submissions, if they choose to do so, to assist the Full Bench as to the matters referred to in the previous paragraph.
[21]
Orders
The Full Bench makes the following orders:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The decision and orders of Harrison DP in Matter No IRC 823 of 2013 are quashed.
4. The parties shall make any further submissions on the disposition of the appeal in accordance with [210] and [211] of this decision by the appellant filing any submissions in writing within seven days of the date of this decision and the respondent filing written submissions in reply seven days thereafter. Parties should indicate in their written submissions if a short oral hearing in supplementation of the written submissions is required. We give liberty to apply with respect to these directions.
[22]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 February 2015
) 150 IR 265
House v R [1936] HCA 40; (1936) 55 CLR 499
Humphries v Cootamundra Ex-Services Memorial Club [2003] NSWIRComm 211; (2003) 128 IR 37
Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51
King v State Bank of New South Wales (No 2) (2002) 126 IR 407
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; (1992) 67 ALJR 170
NSW Department of Education and Training v NSW Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210; (2006) 155 IR 257
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at 7 to 8; F (1995) 83 A Crim R 502
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53
Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112
R v Uhrig (unreported, Court of Criminal Appeal (NSW), 24 October 1996)
R v War Pensions Entitlement Appeal Tribunal and another; ex parte Bott (1933) 50 CLR 228
Sheldon v Sun Alliance Australia Limited (1989) 53 SASR 97
State of New South Wales v Gayle Maree Brown [2014] NSWCA 365
TD Preece & Co Pty Ltd v Industrial Court of New South Wales [2008] NSWCA 285; 177 IR 172
Vouden v Commissioner of Police [2014] NSWIRComm 25
Texts Cited: Wills on Circumstantial Evidence, 6th ed (1912)
Taylor on Evidence, 12th ed (1931)
Category: Principal judgment
Parties: Corrective Services NSW (Appellant)
Steven Fraser (Respondent)
Representation: Counsel:
S B Benson (Appellant)
R Reitano (Respondent)
Ultimately, as we have already indicated, his Honour's concerns led him to conclude in relation to the handcuffing allegation that he preferred Mr Fraser's evidence to that of Officer Matthews and Ms Slacke. In relation to the transport allegation, the Deputy President preferred the evidence of Mr Fraser and Officer White to that of Ms Slacke and Officer Matthews
The relevant findings by the Deputy President regarding the handcuffing allegation were recorded at [74] to [84] of the decision:
[74] Ms Slacke's evidence in respect to this event is deposed in her Statement …:
7. He also said, "you have a nice butt and you was too good looking and too nice of a person to be locked up here." I recall when he was placing the hand cuffs on me that day at the cells, I put both my hands through the cell door hatch and he placed the cuffs on me. He let go of them and reached through with his right hand and touched me on the left breast.
8. At that moment I saw a female correctional officer on my right coming around the corner and Officer Fraser quickly withdrew his hand from the hatch in the cell door. I could tell that the female officer saw that something was going on by the way she looked and then turned to have closer look. She did not say anything and turned to walk back up the corridor. I remember him saying something like, "I would like to do more with you and with these cuffs." I recall saying, "I bet you would you dirty cunt." When I said this it was with a nervous giggle he kind of laughed back. He kept staring at me which continually made me feel uncomfortable. It made me feel bad and I pulled away. I felt helpless and shameful because he is an officer and in charge. Officer Fraser walked quickly away to join the female officer.
[75] Ms Slacke's evidence is that this conversation took place while Officer Matthews was present.
[76] Officer Matthew's evidence is that she did not hear any conversation, only Mr Fraser saying what she thought was: "Look what you do to me".
[77] Officer Matthews was close enough to hear if anything was said, her evidence does not include reference to any other indistinguishable comment or conversation, which, in my view, supports the denial by Mr Fraser.
[78] In cross examination…Ms Slacke conceded that she could not remember whether she had the handcuffs on or not when Mr Fraser touched her breast.
[79] There are significant discrepancies between the evidence of Officer Matthews and Ms Slacke.
[80] Officer Matthews confirms the evidence of Mr Fraser that he had his arms through the hatch, whilst Ms Slacke deposed that she had her arms out through the hatch.
[81] Officer Matthews was present in the area when Ms Slacke alleges Mr Fraser put one hand through the hatch to touch her on the breast.
[82] It is highly improbably (sic) that anyone would undertake that sort of conduct whilst knowingly being observed. There is nothing in the evidence of Officer Matthews which supports Ms Slacke's version of events. Further, having regard to the size of the cuffing hatch, it is difficult to accept that it is physically possible, had Ms Slacke had both hands through the hatch, with handcuffs on, that Mr Fraser could have put a hand through the available space.
[83] On the balance of probability I prefer the version of events of Mr Fraser, corroborated by the evidence of Officer Matthews, that Mr Fraser's arms were through the hatch and she did not see him touch Ms Slacke.
[84] The fact that Officer Matthews did not act on her suspicions, even to ask Ms Slacke if she was comfortable or okay, further supports a conclusion favouring Mr Fraser's testimony.
In relation to the transport allegation his Honour noted, first, that Mr Fraser denied the allegation. Harrison DP then quoted the evidence of Officer Matthews regarding her version of events and then the evidence of Ms Slacke regarding her version. His Honour also quoted Officer Stewart's report of the conversation on 26 June 2012 with Officer Matthews. In doing so, the Deputy President noted that Officer Stewart recorded that Officer Matthews had said that whilst Ms Slacke was being placed on the truck Officer Matthews witnessed Mr Fraser grab Ms Slacke on the buttocks, who then turned and laughed at Mr Fraser. His Honour stated that the mention of laughter was not found in Officer Matthews' evidence and was denied by Ms Slacke, suggesting an embellishment of the event either by Officer Matthews to Officer Stewart or by Officer Stewart herself. After quoting Officer White's statement as to what he witnessed, Harrison DP's decision continued as follows:
[92] In cross-examination, Officer White was unshaken in his evidence that he had a close view of Ms Slacke and Mr Fraser while Ms Slacke climbed into the transport unaided. Officer White was challenged on this. The transcript records…:
Q. So what I want to put to you is you walked past Mr Fraser, there was no need for you to continue to observe what was happening because Mr Fraser and Officer Matthews had it under control, and you didn't observe Ms Slacke arrive into the vehicle?
A. I did observe her getting into the vehicle, as I said I had set routine that I do after an incident I was involved in some time ago when I'm loading a truck, to make sure the prisoners are on that truck.
[93] In light of this evidence it is difficult to accept Ms Slacke's evidence.
[94] Mr Fraser did not collect Ms Slacke from the cells, Officer White did. Officer White observed the entire event. Officer Matthews' evidence goes no further than she was suspicious; however, she is at pains to be clear that she did not see Mr Fraser touch Ms Slacke.
[95] I prefer the evidence of Mr Fraser and Officer White. The fact that Officer Matthews did not act on her suspicions at the time, at least by an enquiry to Officer White as to "what went on there" is cause for disquiet.
[96] Officer Matthews is hostile to Mr Fraser; however, her evidence, which I accept as truthful, supports that of Mr Fraser and Officer White that Mr Fraser did not collect Ms Slacke from the cell.
[97] It was suggested that Officer White is a friend of Mr Fraser and would support him on that basis. This assertion is not made out. The evidence is that they have met socially only twice in a number of years; once when Mr Fraser attended Officer White's 40th birthday party in response to an invitation to all staff posted on the notice board; and once when Officer White attended a hotel in Mr Fraser's neighbourhood to hear a band and Mr Fraser happened to be there.
[98] I accept Officer White's evidence as truthful and without bias.
[99] The objectivity of Officer White's evidence is supported by the fact that when asked by Officer Matthews what she should do when asked for a report, Officer White made no attempt at any time to dissuade her from putting in the report.
The orders his Honour made were as follows:
(1) Pursuant to section 89 (1) of the Industrial Relations Act 1996 Corrective Services NSW is ordered to reinstate Mr Steven Fraser to his former position on terms not less favourable than those that would have been applicable but for dismissal within 14 (fourteen) days of the date of this decision.
(2) Pursuant to section 89 (3) of the Industrial Relations Act 1996 Corrective Services NSW is ordered to pay to Mr Steven Fraser the remuneration he would, but for being dismissed, have received before being reinstated in accordance with the order.
(3) Pursuant to section 89 (4) of the Industrial Relations Act 1996 the period of employment of Mr Steven Fraser by Corrective Services NSW is taken not to have been broken by the dismissal.
The respondent also referred to the decision of the Court of Appeal in State of New South Wales v Gayle Maree Brown [2014] NSWCA 365 ("Brown") in support of the proposition that the Full Bench should adopt a cautious approach to the grant of leave to appeal and should only consider granting leave in circumstances where it forms an opinion that the issues are of such importance that it is in the public interest to do so. At [2] to [3], Basten JA stated:
[2] The first question is the standard to be applied by this Court in deciding whether to grant leave to appeal under s 403B of the Industrial Relations Act 1996 (NSW), set out at [34] below. Section 403B is in substantially the same terms as s 188 of the Industrial Relations Act, dealing with appeals to the Full Bench of the Commission. However, in considering the general approach to leave applications adopted by the Full Bench of that Commission, a number of aspects of the changed jurisdictional arrangements are to be borne in mind. First, s 188 applied to all appeals to a Full Bench of the Industrial Relations Commission: it was not limited to appeals from a decision of the Commission in Court Session ("the Industrial Court"). Section 403B applies only to appeals from the Industrial Court to the Supreme Court.
[3] Secondly, the language of s 403B(2) (which is not replicated in other aspects of this Court's jurisdiction) is imprecise and not easy to apply. Thus, it identifies the circumstances in which the Court "is to" grant leave, leaving open the possibility that leave might also be granted in other situations. Further, the Court must be satisfied that "the matter" is of sufficient importance that it be "in the public interest" to grant leave. Matters can be important in different ways, but it appears that at least the mandatory operation of this provision requires that the importance extend beyond importance to the parties, or perhaps even to a small group of persons. The implication from the phrase "of such importance" suggests that a reasonably high threshold is being set.
What the Court of Appeal stated in Brown is entirely consistent with the approach taken by Full Benches of this Commission and the principles they have consistently applied: see Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 265 at [5]. Leave to appeal will not be lightly or automatically granted and leave will not generally be granted unless it is demonstrated the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of the Commission including whether the decision has widespread practical application.
It is true that in this appeal the appellant seeks to challenge to a great degree findings of fact. That is a significant hurdle in obtaining leave: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484 at [4]; Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 353; (2005) 146 IR 113 at [5]; NSW Department of Education and Training v NSW Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210; (2006) 155 IR 257 at [14].
The appellant, however, referred to the decision of the Full Bench in Humphries v Cootamundra Ex-Services Memorial Club [2003] NSWIRComm 211; (2003) 128 IR 37 at [77]:
Secondly, the central issue, which we have been asked to consider, is whether the findings of fact in relation to serious misconduct were wrong. If, as in this matter, there is a substantial basis upon which to conclude that such a contention may be made out, there emerges significant basis for the grant of leave in order to ensure the proper administration of justice. As was said by a Full Bench of this Commission in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at 326:
The extent to which, if at all, those errors be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. In themselves we are satisfied they raise serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal.
We consider that there are serious issues to be tested regarding the Deputy President's treatment of the evidence and which were reasonably arguable. As it was observed in Burge, these are issues that may only be determined on a full hearing. (We will ultimately find that there were serious errors in the decision of Harrison DP.)
Additionally, the appeal raises a matter of such importance that, in the public interest, leave should be granted. That matter involves allegations of sexual harassment of a female prison inmate in the care and custody of a prison officer, which if found proven amounts to misconduct of a serious kind. As Cullen J observed in Egge and Pitt v Corrective Services [1993] NSWIRComm 29:
The administration of a prisons system, in my opinion, requires a higher degree of trust and confidence in prison officers in discharging the very onerous and difficult task of dealing with prisoners. This trust and confidence must be mutual.
In circumstances where real questions arise about the Deputy President's treatment of the evidence regarding alleged sexual harassment of a prisoner it is in the interests of the prison system for that treatment to be carefully reviewed on appeal.
We propose to grant leave to appeal.
The appellant submitted that the Deputy President failed to give reasons or adequate reasons for his decision. There is an obligation on decision makers to give adequate reasons: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [45] ("PSA 2014").
The appellant also submitted the Deputy President made findings of fact that were not reasonably open to make. While correctly identifying the serious allegations relied upon by the appellant relating to the breast touching and buttock groping incidents, the appellant noted that at [58] of his decision the Deputy President stated that in the event he found the misconduct alleged to have occurred, the dismissal would not have been harsh, unreasonable or unjust.
In relation to the hand cuffing incident on 11 May 2012, the appellant submitted it was probable that Ms Slacke had placed her hands through the cell door hatch where the respondent placed the cuffs on her wrists and when she withdrew them he followed her through with his hand and subsequently grabbed her breast. The appellant further submitted that Officer Matthews observed the respondent was on his knees when she entered the cell area, with both hands through the opening. Her evidence was consistent with Ms Slacke's version of events. Ms Slacke's recollection was that she had placed both hands through the cell door hatch and the respondent had reached through with his right hand and touched her breast. However, when she saw a female correctional officer on her right "coming around the corner", the respondent "quickly withdrew his hands from the hatch in the cell door". The appellant contended this evidence "lays the foundation" for the hand cuffing incident.
Moreover, it was also Ms Slacke's evidence that the female officer had observed something untoward at the time and had also looked closely towards her cell door area. Ms Slacke contended that the banter conversation between the respondent and herself at the time she was being handcuffed was conducted in normal conversational tone. Officer Matthews' evidence was that she heard the respondent say to Ms Slacke, "see what you do to me". However, the Deputy President at [77] determined that Officer Matthews' evidence "does not include reference to any other distinguishable comment or conversation, which in my view, supports the denial by Mr Fraser".
The appellant asserted that the Deputy President erred at [81] when he found Officer Matthews was present in the cell area at the time Ms Slacke alleged the respondent put his right hand through the hatch and touched her breast. In support of that proposition, the appellant submitted that Officer Matthews' evidence was that Ms Slacke was alone with the respondent when being handcuffed. That view was also supported by Ms Slacke, whereas the evidence of the respondent was that Officer Matthews was present at all times. Accordingly, the Deputy President failed to give proper consideration to the credit of the respondent and the evidence of Officer Matthews and Ms Slacke.
It was Officer Matthews' evidence that when she was confronted with the handcuffing incident, she considered the respondent may have acted inappropriately towards Ms Slacke. Accordingly, she decided to accompany the respondent each time he was required to attend the holding cells area. Ms Slacke corroborated Officer Matthews' evidence when she contended a female Correctional Officer commenced following the respondent shortly after the breast touching incident.
The appellant submitted the Deputy President erred in determining that the respondent did not grab her buttocks when loading her onto a transport vehicle on 11 May 2012. The evidence of Ms Slacke was that she felt the respondent's "right hand on her left buttocks". She also felt his fingers digging into them. Officer Matthews' evidence was that she observed the respondent "move his hand in an upward direction at quick speed appearing to be grabbing the buttocks area possibly the vaginal area of Inmate Slacke". Officer Matthews subsequently demonstrated the respondent's hand gesture in the course of giving her evidence.
Officer White's evidence was that he saw Ms Slacke enter the transport vehicle. He did not see the respondent touch her. The Deputy President ultimately preferred the evidence of the respondent and Officer White over Officer Matthews and Ms Slacke. In considering whether or not there was evidence to substantiate Ms Slacke's allegations concerning the respondent grabbing or pinching her buttocks, the Deputy President failed to give consideration to the stated concerns of Officer Matthews that she feared the respondent may have acted inappropriately towards Ms Slacke earlier when she was being handcuffed. He also failed to give adequate weight or proper reasons for not accepting the evidence of Officer Matthews and Ms Slacke or the nature of the contemporaneous note made by Officer Matthews later on the day regarding the incident.
The Deputy President erred in giving little or no weight to the body of evidence that addressed the respondent's credit and established a pattern of behaviour against which the tendency of the respondent to act in the way alleged might be weighed. In relation to issues of credit and tendency evidence based on the respondent's past performance and disciplinary actions, the appellant relied on the letter of warning dated 29 June 2001 which urged him to be truthful in his future dealings, following a finding that he gave untruthful evidence to a parole board hearing. This evidence was disregarded by the Deputy President at [47] to [48].
The appellant submitted the fact that the respondent consistently denied he had engaged in misconduct as alleged, gave rise to issues of credit. In that regard, the respondent denied the allegation raised by then inmate Kathleen Stewart that he failed to afford her privacy on 2 January 2010 when she was preparing to take a shower. The Deputy President failed to take into consideration the appellant's finding that the respondent's conduct towards Inmate Stewart may be deemed sexual harassment of sufficient gravity to warrant it taking disciplinary action under the PSEM Act.
At [43] to [46], the Deputy President dealt with the complaint of Officer Stewart, who alleged that on 3 May 2010, the respondent lifted her pants and rubbed her left leg while she was seated on a chair. Shortly stated, the Deputy President did not consider this allegation to be of assistance. Contrary to the Deputy President's finding that this particular allegation was not raised with the respondent, the relevant complaint formed part of the Investigation Report.
With reference to the Performance Management Plan that also formed part of the Investigation Report, the Deputy President failed to give sufficient weight to the direction that the respondent use respectful language towards women, refrain from sexual innuendo and banter, and not touch female staff members or inmates, or accidentally brush against them. It was contended by the appellant that the purpose of the Performance Management Plan was to address a perceived pattern of behaviour that had been identified by the various complaints and reports made concerning the respondent's past inappropriate conduct. In addition, the appellant contended the Deputy President did not give proper consideration to the respondent's "Hey lesbians" comments put to male and female staff in the lunch room in early February 2011.
The respondent contended the buttock incident suffered many of the same problems. First, the independent evidence of Officer White, which was not disturbed in cross-examination, was that he observed Ms Slacke moving into the vehicle and he did not see the respondent touch her. Second, Ms Slacke said that the respondent, not Officer White, had walked her from the cells. This statement was contrary to all of the other evidence. Third, there was no evidence that corroborated Ms Slacke's version of events at all. Officer Matthews did not see the respondent touch her.
The respondent also raised the inconsistencies in the way this particular allegation was described, which ranged from "grabbing at the buttocks area, possibly the vaginal area" to "buttock pinching", "grabbed her around the buttocks" and "fingers digging into my buttocks". The absence of corroboration of Ms Slacke's evidence, the existence of inconsistencies in her evidence, the fact that Officer White corroborated the respondent's version of events and the utter implausibility of the respondent conducting himself in the way alleged in front of two other officers was a sufficient and sound basis for concluding that the allegation was not proven. The Deputy President was confronted with the respondent's version of events corroborated by Officer White and indirectly corroborated by Officer Matthews in circumstances where it was "word against word" in respect of Ms Slacke and the respondent.
The respondent contended the tendency evidence put to the Deputy President was not relevant to the alleged conduct relied upon by the appellant. The appellant had relied upon unproven allegations of misconduct that were denied by the respondent in the proceedings before the Deputy President and are also denied on appeal. The respondent admitted saying the words, "Hey lesbians", when he entered the staff meal room in February 2011 and has agreed such comments were inappropriate. However, these matters have no relevance to the alleged conduct in this case.
There was also no explanation in the evidence of Officer Matthews as to why the incident on 11 May 2012 was not reported at the time. The claim by Officer Matthews that she remained in the respondent's company for the rest of the shift based on a suspicion was disingenuous. The respondent considered it curious that, despite Officer Matthews' claim that she felt disgusted about the incident, all she did was make a file note for future reference.
It is not necessary for a tribunal of fact to find that a person has any motive to fabricate a version of events in order to reject evidence: Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at 7 to 8; F (1995) 83 A Crim R 502 at 511 to 512. This is especially so where the evidence is shown to be unreliable, was uncorroborated, or was otherwise not to be preferred. Nor was there any evidence at all that the respondent "had a tendency to act in the way alleged". The Deputy President was correct to disregard the alleged warning of 29 June 2001, especially given the respondent's denial of ever having received the letter. The evidence of Officer Stewart's complaint was likewise denied by the respondent. No evidence was called to establish her version of events and nor was she called to give evidence in the proceedings. It was not for the respondent to conduct the appellant's case by requiring witnesses to be called.
In Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1 the Full Bench, after referring to Briginshaw, stated at [12] to [15]:
[12] The Briginshaw v Briginshaw principle is now embodied in s 140 of the Evidence Act 1995. That section provides:
140. Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
[13] The principle in Briginshaw v Briginshaw has been applied by the Commission in unfair dismissal cases when considering allegations against an employee of serious misconduct involving allegations of criminal activity. For example, in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463 - 464, the Full Bench said:
The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding.
[14] Nevertheless, the Full Bench made it clear that:
... the evidence in a reinstatement case involving criminal activity may well establish that the employee was guilty of conduct which, whilst falling short of criminal conduct, nevertheless constitutes serious and wilful misconduct justifying dismissal and refusal of reinstatement.
See also Coles Myer Ltd v Shop, Distributive and Allied Employees Association (1989) 27 IR 299 at 304 and Bigg v NSW Police Service (1998) 80 IR 434 at 456.
[15] Ordinarily, the principle in Briginshaw v Briginshaw is applicable to findings of criminal conduct or fraud (see, for example, Neat Holdings), however, the statements of principle may be applied to allegations of a broader nature. In all matters, it is necessary for a tribunal to consider the nature and seriousness of the allegation made before finding it proved at the requisite level. In this case, the finding made by the Commissioner was that "the termination of the [respondent's] employment was not unconnected with the raising of complaints by him about the alleged work-related harassment".
Given the serious nature of the allegations against the respondent and the consequences for the respondent if the appeal is upheld, it is appropriate that we apply the civil standard of proof as enunciated by Dixon J in Briginshaw in considering the issues arising in this appeal.
The appellant contended his Honour erred in failing to treat the prior incidents as evidence establishing a tendency or propensity on the part of the respondent to sexually harass women. However, we have some doubt about whether the appellant should be permitted to rely on its tendency argument on appeal to the extent it now wishes: see Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. It does not seem to us that the appellant's contentions before Harrison DP rose any higher than that the respondent's past behaviour demonstrated that the respondent was more likely than not to have perpetrated the acts in issue. That was not sufficient in our view to establish a propensity to sexually harass women. It was necessary for the appellant to draw a logical and reasonable connection between each of the past incidents and the alleged misconduct, and that was not done. Nor was there any debate about whether the probative value of the evidence regarding the prior incidents was or was not substantially outweighed by the danger that the evidence might be unfairly prejudicial to the respondent.
Nevertheless, we propose to deal with the tendency issue. In doing so, it is to be noted the Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just (s 163(1)(b) of the Act). Further, the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 163(1)(c) of the Act). Accordingly, neither the Evidence Act nor the common law rules relating to tendency evidence apply. That is not to say that the Commission will not have regard to the Evidence Act and common law in helping to inform itself and more often than not does so in the course of exercising its functions. We refer, in this respect, to the observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal and another; ex parte Bott (1933) 50 CLR 228 at 256, as follows:
Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice".
In order to be satisfied that previous behaviour towards women established a tendency or propensity to sexually harass women, the fact finder would first need to be satisfied such previous behaviour occurred. Secondly, evidence simply of past behaviour which is said to show that the respondent was more likely than not to have perpetrated the acts in issue would not be evidence of significant probative value. The evidence would need to be logically probative, that is, having regard to all of the circumstances, the past conduct had a reasonable connection to the alleged misconduct. As it was stated by Mason CJ, Deane and Dawson JJ in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461at 482:
Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency so long as it has some specific connection with or in relation to the issues for decision in the subject case.
In Sheldon v Sun Alliance Australia Limited (1989) 53 SASR 97, Bollen J (with whom Prior J agreed) stated at 144:
[Propensity evidence] is circumstantial evidence. It should be admitted where it is logically probative of a fact in issue. The safeguards required in criminal proceedings are not required in civil proceedings.
Bollen J further observed at 144:
I do not think that evidence can be admitted simply of past behaviour which is said to show that a person was more likely than not to have perpetrated an act in issue. It is the whole concatenation of events making up the past acts on the one hand and the concatenation of events making up the act in issue which count. Not just behaviour simpliciter.
Consideration would also need to be given to whether the probative value of the evidence of past conduct was outweighed by its prejudicial effect: see, for example, s 135 of the Evidence Act.
Before Harrison DP the appellant relied on three incidents of previous behaviour to establish propensity:
1. The incident that allegedly occurred on 3 May 2010 when Officer Stewart said Mr Fraser lifted her pants and rubbed her leg. Mr Fraser denied the allegation as a fabrication.
2. The complaint by former inmate Kathleen Stewart (the shower incident), which contributed to Mr Fraser being transferred, being placed on a Performance Management Plan and being warned that his inappropriate attitude towards women was to cease immediately.
3. The incident in the meal room when he called out "Hey lesbians" when men and women were present.
As to the first incident, Officer Stewart did make a report to her general manager on 10 May 2010 about the incident but asked that it remain confidential. Accordingly, no action was taken against Mr Fraser. Officer Stewart's report found its way into Mr Sneddon's report as to Mr Fraser's conduct, in this respect, and thereby found its way into the evidence in the proceedings before Harrison DP. There was no objection to Officer Stewart's report being received into evidence as part of the Sneddon report. The appellant submitted on appeal that Ms Stewart's report of the incident constituted a business record pursuant to s 69 of the Evidence Act and was, therefore, an exception to the hearsay rule.
Mr Fraser had been provided with a copy of the Sneddon report and was on notice it would be relied upon in the proceedings before Harrison DP. Mr Fraser did not address Officer Stewart's complaint in his statement in the proceedings and only denied the incident occurred under cross-examination. There was no notice served on the appellant requiring Officer Stewart for cross-examination or the other officer who Officer Stewart asserted witnessed the incident, Officer Kelly. Officer Stewart did not give evidence.
There was an issue of whether rubbing Officer Stewart's leg was, without more, conduct of a sexual nature amounting to sexual harassment. However, there is no need to explore that issue further because we do not think the evidence is sufficient to prove to a satisfactory standard that the incident did occur according to the report and, accordingly, that it constituted evidence of a propensity to sexually harass women.
We acknowledge that the respondent had every opportunity to challenge Officer Stewart's report and did not do so until his denial in cross-examination. But we think that if the appellant wanted to prove such a damaging fact against the respondent it had the onus of corroborating Officer Stewart's version of the incident by, for instance, calling the eyewitness, Officer Kelly. As the evidence stands, it is Officer Stewart's word against that of Mr Fraser.
The second incident was the shower incident. This was referred to in a Letter of Warning to the respondent dated 8 June 2010. The Letter also referred to "an incident that occurred on 3 May 2010 where you behaved inappropriately towards a female officer". We can only presume this was the incident involving Officer Stewart, otherwise there was no other evidence regarding it.
The Letter referred to other incidents involving the respondent, but apart from the shower incident they do not appear to involve unwelcome conduct of a sexual nature. It appears the incidents, collectively, caused the A/Deputy Commissioner to transfer Mr Fraser and place him on a Performance Management Plan. The respondent was also warned his inappropriate behaviour towards women was to cease immediately and he was given instructions about how he was to conduct himself.
In relation to the shower incident the respondent, in his statement tendered in the proceedings before Harrison DP, said he at all times had denied "any unacceptable inappropriate and unprofessional behaviour towards that inmate". The appellant's evidence included a handwritten complaint about the incident by the inmate, Ms Kathleen Stewart. The complaint was annexed to Mr Sneddon's report and was claimed to be a business record. Ms Stewart was not called to give evidence. Thus proof of a prior incident of sexual harassment is again problematic. Again, for the same reasons that we were not prepared to accept that the incident involving Officer Stewart constituted an episode of sexual harassment, we are unable to accept the incident involving Ms Kathleen Stewart constituted sexual harassment; the proof is simply not sufficient.
The third incident was the "Hey lesbians" incident, that occurred not long after the respondent completed his Performance Management Plan where the remedial action required of Mr Fraser was that he "use respectful language towards women and to refrain from any sexualised comments, sexual innuendo and banter" and that he was "not to touch female staff members (and female inmates) or accidentally brush against them".
After denial and prevarication the respondent was forced to admit he made the comment. That denial and prevarication was relevant to the consideration of the respondent's credibility. However, one incident that might be construed as sexual harassment cannot establish a pattern of behaviour such as to show a tendency to engage in sexual harassment of women.
Even if the three incidents were found to constitute sexual harassment of women we doubt whether the appellant has made a logically probative connection between the prior incidents and the alleged misconduct. Whilst the common thread might be sexual harassment there must be "evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it". We do not consider that has been demonstrated.
Whilst we do not consider the Deputy President gave adequate reasons for his conclusion that the evidence of the incidents was not of any assistance in his deliberation, we do not, for the reasons we have given, consider there is any proper basis for upholding the appeal in this respect, as we have for different reasons reached effectively the same ultimate conclusion as that reached by Harrison DP (albeit we do consider the respondent's evidence regarding the "Hey lesbians" incident goes to his credit). The evidence as to the three prior incidents of alleged sexual harassment or inappropriate behaviour towards women did not support a tendency or propensity on the part of the respondent to sexually harass women.
Mr Sneddon phoned Ms Slacke on 9 January 2013. According to his report, he rang:
[R]egarding an alleged incident involving an officer and herself at the Taree Court cells whereby she was inappropriately touched on the buttocks prior to getting onto an CSNSW escort vehicle.
Mr Sneddon's report continued:
Natasha SLACKE was able to provide that the officer was Steven Fraser and that whilst she was boarding a transport vehicle departing the court cells to the MNCCC she was 'groped' by the officer on the buttocks. Natasha SLACKE stated that prior to that incident she recalled Officer Fraser being extremely friendly towards her and making comments about her breasts and at one point attempted to grab at them whilst she was in the holding yards. She said that she had repeatedly been asked by Officer Fraser to show him her breasts to which she refused. Natasha SLACKE claimed that Officer Fraser told her that he had already been in 'big' trouble over touching up the 'girls'.
The Investigator asked if Natasha SLACKE had made a formal complaint in writing or verbally prior to her leaving custody to which she said, "No". Natasha SLACKE stated that she was a little surprised by the Investigators phone call because she had not reported it and wasn't sure if anyone had witnessed the incident. Natasha SLACKE agreed to make a Formal Statement to the Investigator at the Kempsey Police Station on 11 January 2013.
Mr Sneddon was cross-examined about his phone call to Ms Slacke and the issue whether he revealed details of the allegation to Ms Slacke. The following exchange occurred:
Q. So you suggested to her what the allegation was before you asked her any questions?
A. Asked her if she knew anything about an incident of that kind.
Q. So you told her, that is the complainant, if you like, that the allegation was…
A. Asked her if she knew anything about it.
Q….an incident involving an officer whereby she was inappropriately touched on the buttocks prior to getting on the escort vehicle; correct?
A. Correct.
Ms Slacke was also cross-examined about the phone call. The following exchange occurred:
Q. .., Mr Sneddon contacted you a couple of days before you prepared your statement, is that correct?
A. Yes.
Q. What did he say to you when he contacted you by telephone?
A. Yes.
Q. Where were you when he contacted you?
A. I was at home in Kempsey.
Q. Was it on a mobile phone?
A. Yes.
Q. What did he say to you when he rang you?
A. He rang me up saying that he knew of an incident that happened with another correctional officer touching, being inappropriate to me, touchingly (sic) me inappropriately and I was actually quite shocked. I didn't know how he found out or yeah knew because I don't recall saying anything or doing anything about it because I was going through my own little dramas, you know, I just, yeah.
Q. Did I understand you correct to say that he told you about him knowing of an incident that involved I think inappropriately touching you, is that what you said?
A. Yes, yeah.
Q. Did he tell you that he knew of an incident that involved inappropriately touching you on the backside?
A. No.
Q. He didn't tell you that?
A. No, it was just, yeah, inappropriate touching me.
Q. When he told you of that did he tell you anything else about any other allegations?
A. No, no. And he just asked me if I wanted to, you know, make a statement.
Q. When you say that he asked you, did you want to make a statement what did he say?
A. It was yeah like he mentioned about the inappropriate thing and yeah just asked me if I wanted to make a statement, yeah.
Q. What did you say?
A. I said yes.
There is an obvious conflict between the evidence of Mr Sneddon and Ms Slacke that was not resolved at first instance. Accepting though that Mr Sneddon did mention touching on the backside to Ms Slacke, we take the view that it did not unacceptably taint Ms Slacke's evidence. In the telephone conversation Ms Slacke not only identified Mr Fraser by name as having inappropriately touched her, but expressly claimed that whilst she was boarding a transport vehicle departing the court cells she was "groped" by Mr Fraser on the buttocks; and that prior to that incident she recalled Mr Fraser being extremely friendly towards her and making comments about her breasts and at one point attempted to grab them whilst she was in the holding cells.
The scope of disclosure to Ms Slacke of the subject matter of Mr Sneddon's investigation was extremely narrow and did not extend to:
identifying the perpetrator of the inappropriate touching as Mr Fraser;
identifying any concern about earlier inappropriate behaviour by the Correctional Officer towards her, let alone that it occurred in the holding cell;
identifying that the Correctional Officer had been in trouble of any relevant kind previously of a disciplinary nature (for example, making inappropriate suggestive remarks or inappropriate contact with females);
identifying what, if anything, any other officer (for example Officer Matthews) may have observed.
There was no evidence that Ms Slacke had any other conversation with an officer of Corrective Services prior to providing her statement, which reflected what she had told Mr Sneddon over the phone although in considerably more detail. There is no reasonable basis to conclude that Ms Slacke's written statement was in any material way compromised.
Harrison DP found that Officer Matthews was present the whole time whilst Ms Slacke was being handcuffed and during the alleged conversation recorded at [74] of his Honour's reasons for decision. This finding was based on Mr Fraser's evidence. In his statement to the investigator, Mr Fraser stated:
As I recall Officer Matthews and I cuffed all inmates together, Officer Matthews held the cuffs and I put the cuffs onto the inmates. After finishing with the males I went to the female cell and officer Matthews followed. Inmate Slack (sic) was mucking around in the cell so I kneeled down in front of the cell door in front of the hatch to speak with Slack and demonstrate to her how I wanted her hands placed for cuffing. I said, "look see my hands, put your hands like this". Inmate Slack did this and I cuffed her hands just inside the cell door. Officer Matthews and I returned to the office to confer with Officer White if all was ready for loading.
The statement of Ms Slacke described the breast touching incident in the following terms:
I recall when he was placing the handcuffs on me that day at the cells, I put my hands through the cell door hatch and he placed the cuffs on me. He let go of them and reached through with his right hand and touched me on the left breast.
At that point in time, on Ms Slacke's version of events, she was alone with Mr Fraser. That, of course, conflicted with Mr Fraser's evidence. This conflict in the evidence was put to Mr Fraser in cross-examination:
Q. You say as you recall Officer Matthews and I cuffed all inmates together. I want to put to you that that's not correct; that you cuffed Ms Slacke by yourself?
A No, I did not.
Q I want to put to you in regard to your comment on the next line that Ms Matthews did not hold the cuffs and you put the cuffs onto the inmates?
A Yes, she did.
Q She did not do that in respect to Ms Slacke, that you cuffed Ms Slacke yourself?
A Yes.
Q Not with any assistance by Ms Matthews?
A Ms Matthews was present.
Q I put to you that she approached you towards the end of you doing that from behind?
A No, that's incorrect.
...
Q In the paragraph commencing about half way down you make the statement "Throughout this cuffing procedure Officer Matthews was present and makes no mention of this conversation". I want to put to you that she was not in fact present at that time?
A She was, she was with me at all times.
In contrast, Ms Slacke's account of what occurred at about the moment that Mr Fraser had touched her left breast, was as follows:
At that moment I saw a female correctional officer on my right coming around the corner and Officer Fraser quickly withdrew his hand from the hatch and cell door. I could tell that the female officer saw that something was going on by the way she looked and then turned to have a closer look. She did not say anything and turned to walk back up the corridor. I remember him saying something like, "I would like to do more with you and with these cuffs". I recall saying "I bet you would you dirty cunt". When I said this it was with a nervous giggle he kind of laughed back. He kept staring at me which continually made me feel uncomfortable. It made me feel bad and I pulled away. I felt helpless and shameful because he's an officer and in charge. Officer Fraser walked quickly away to join the female officer.
The tone of voice he used when he said these words to me was of a normal sounding conversational tone that only we could hear. I remember him returning to talk to me later but the female officer kept following him and watching what he was doing .
The female correctional officer was Officer Matthews. Her account was as follows:
About 1510 hrs, we proceded to the holding cell area for the purpose of cuffing the inmates prior to them boarding the escort vehicle. Officer Fraser walked directly to the female cell which required him to walk past the male cell. I stopped at the male cell and proceeded to cuff a male inmate where he remained in the cell, I then walked down the corridor and turned the corner to the right where First Class Correctional Officer Steven Fraser was attending the holding cell occupied by inmate Natasha SLACKE.
As I walked toward the holding cell I heard Officer Fraser say, "see what you do to me". I then observed Officer Fraser to be on his knees with both his arms in the door slot past his elbows. Despite Officer Fraser being aware of my presence Officer Fraser continued to keep his arms in the slot up to his elbows and continue cuffing inmate SLACKE. This seemed unusual to me as I have never seen anyone else apply cuffs to an inmate in this manner before nor have I ever applied them myself in this way. My first thought as I saw this was that Officer Fraser was behaving inappropriately with a female prisoner.
It will be seen that Ms Slacke and Officer Matthews both concurred that as Officer Matthews arrived on the scene (which coincided with the moment in time when Mr Fraser had allegedly touched Ms Slacke's breast) Mr Fraser had either one (on Ms Slacke's recollection) or both arms (on Officer Matthews' recollection) in the cell door "up to his elbows".
The evidence of Ms Slacke and Officer Matthews was entirely at odds with that of Mr Fraser. Given the evidence of Ms Slacke and Officer Matthews, it is difficult to see how the Deputy President arrived at the conclusion at [81] that "Officer Matthews was present in the area when Ms Slacke alleges Mr Fraser put one hand through the hatch to touch her on the breast" or at [82] that "there is nothing in the evidence of Officer Matthews which supports Ms Slacke's version of events". Further, if it was the case that Officer Matthews was not present during the whole time as Mr Fraser claimed there was no basis for his Honour's statement at [82] that:
It is highly improbably (sic) that anyone would undertake that sort of conduct whilst knowingly being observed.
His Honour does not explain why he preferred Mr Fraser's evidence that Officer Matthews was present the whole time and rejected the evidence of Ms Slacke and its corroboration by Officer Matthews that Officer Matthews only arrived on the scene at the moment Ms Slacke alleged Mr Fraser touched her left breast. It is true that Officer Matthews did not see the touching because she was approaching from behind and to the left hand side of Mr Fraser and the cell door had a thick metal panel, where the locking devices were located, that would have also limited Officer Matthews' vision of what Mr Fraser was doing with his hand or hands in the cell.
Officer Matthews was, nevertheless, suspicious that Mr Fraser was "behaving inappropriately with a female prisoner". Her suspicions were aroused in part because she had never seen an officer on his knees with both his arms in the door slot past his elbows in order to handcuff a prisoner.
Harrison DP dealt with Mr Fraser's version of events at [71] of his Honour's reasons, noting Mr Fraser stated that he had knelt low to "put both arms through the cuffing hatch" to demonstrate to Ms Slacke how he required her to put her wrists. It is not apparent why Mr Fraser found a need to demonstrate the cuffing procedure to Ms Slacke. As Ms Slacke said in cross-examination:
But he didn't show me because I didn't need to be shown, I know what the process (is), because as I've been incarcerated many times or a few times before, so I know what to do.
In any event, the Deputy President stated at [82] that:
[H]aving regard to the size of the cuffing hatch, it is difficult to accept that it is physically possible, had Ms Slacke had both hands through the hatch, with handcuffs on, that Mr Fraser could have put a hand through the available space.
It was Mr Fraser's evidence, as we noted, that he put both arms through the cuffing hatch to demonstrate how Ms Slacke was required to place her wrists. It was Ms Slacke's evidence that she put both her hands through the cell door hatch and Mr Fraser placed the cuffs on her. Ms Slacke said Mr Fraser then let go of the cuffs and reached through with his right hand and touched her on the left breast. Officer Matthews' evidence was that she observed that Mr Fraser continued to keep his arms in the slot up to his elbows and continue cuffing Ms Slacke.
Both Mr Fraser and Officer Matthews said Mr Fraser had both arms inside the cuffing hatch. That is inconsistent with Ms Slacke's evidence, which was an inconsistency relied upon by Harrison DP. The Deputy President, however, seems to have presumed that Ms Slacke left her hands (with cuffs on) outside the cuffing hatch whilst Mr Fraser reached in and touched her breast. Ms Slacke could just as well have withdrawn her cuffed hands inside the cuffing hatch as Mr Fraser reached in and touched her breast. There is nothing in Ms Slacke's evidence to say that did not occur. Indeed, when asked what the cuffing procedure involved, Ms Slacke stated in cross-examination:
You put your hands through and you get cuffed on and then you pull your hands back out and they open up the door and take you down to the truck.
However, making the reasonable presumption that Ms Slacke withdrew her cuffed hands after the cuffing was completed, it was at that point, according to her evidence, that Mr Fraser reached in and touched her breast then quickly withdrew his hand. That is inconsistent with Officer Matthews' evidence that what she saw, which according to Ms Slacke's evidence would have been immediately after Mr Fraser touched her breast, was that Mr Fraser had both arms inside the cell and was continuing to cuff Ms Slacke; that she saw him "putting the cuffs on and move away from the cell". In that respect, Mr Fraser's evidence as to where his hands were is consistent with that of Officer Matthews. If the respondent did touch Ms Slacke's breast the most likely scenario, given the evidence, is that he did so while both hands were inside the cell and as he realised Officer Matthews was approaching withdrew a hand from the breast and made as though he was continuing to cuff Ms Slacke.
The inconsistencies in the evidence are not easily reconciled. What is clear, however, is that contrary to Mr Fraser's evidence, Officer Matthews was not present the whole time that the respondent was cuffing Ms Slacke and the respondent had the opportunity, and was physically in a position, to touch Ms Slacke's breast, whether he had one arm or two arms inside the cell.
The Deputy President stated at [76] to [77]:
[76] Officer Matthew's evidence is that she did not hear any conversation, only Mr Fraser saying what she thought was: "Look what you do to me".
[77] Officer Matthews was close enough to hear if anything was said, her evidence does not include reference to any other indistinguishable comment or conversation, which, in my view, supports the denial by Mr Fraser.
These findings were based on the premise that Officer Matthews was present when the alleged conversation recorded at [74] occurred. In our view that was a false premise for the reasons we earlier explained.
Officer Matthews did say, however, she heard Mr Fraser say, "Look what you do to me" as he was kneeling down with his arms through the cuffing hatch. She heard this as she approached the holding cell. Ms Slacke said the words Mr Fraser used were, "I would like to do more with you and with these cuffs". Mr Fraser said the words he used were, "Look see my hands, put your hands like this", as he demonstrated the cuffing procedure.
It is unnecessary to determine who said what. The issue relates to what Harrison DP found at [77], which was that Officer Matthews was close enough to hear if anything was said and that as she did not hear anything other than the snippet she described, it supported Mr Fraser's denial that the conversation as recited by Ms Slacke did not occur.
It was not put to Officer Matthews that she was close enough to hear the conversation and it is clear that Officer Matthews was only present at the holding cell for a short space of time. Ms Slacke said in her evidence that:
At that moment I saw a female correctional officer on my right coming around the corner and Officer Fraser quickly withdrew his hand from the hatch in the cell door. I could tell that the female officer saw that something was going on by the way she looked and then turned to have closer look. She did not say anything and turned to walk back up the corridor. (our emphasis)
Ms Slacke said the tone of voice Mr Fraser used was of a "normal sounding conversational voice that only they could hear".
The evidence simply does not support a finding that Officer Matthews was present all the time and would have heard the full conversation between Ms Slacke and Mr Fraser. There was no sound evidentiary basis to find that Mr Fraser's denial of the conversation with Ms Slacke was supported by Officer Matthews being present and not having heard any conversation (other than a snippet of it).
Contrary to his Honour's finding at [84] that Officer Matthews did not act on her suspicions, Officer Matthews' evidence was that because of her concern Mr Fraser may act inappropriately for the remainder of the shift, each time Mr Fraser attended the holding cell area she accompanied him. Ms Slacke corroborated this by saying that after the breast touching incident Mr Fraser returned to talk to her later but "a female officer" (now identified as Officer Matthews) kept following him and watched what he was doing.
Finally, in relation to the handcuffing allegation, we agree with the appellant that there was no evidence to indicate Ms Slacke had any motive to concoct a story damaging to Mr Fraser or to give false evidence. Ms Slacke made no complaint contemporaneously with the events of 11 May 2012 and only submitted a statement of what occurred after she was approached by Mr Sneddon seven months later. There was no evidence Ms Slacke was coached about what to say in her statement and her statement was, in important respects, corroborated by Officer Matthews.
In summary then, we find that:
1. The Deputy President erred in finding that the approach to Ms Slacke by the investigator informing her that the investigator was aware of inappropriate touching and behaviour toward her, carried the difficulty of being suggestive to her.
2. The Deputy President erred in finding that Officer Matthews was present and would have heard the conversation, if it had taken place, between Ms Slacke and Mr Fraser where Mr Fraser was alleged to have said, "you have a nice butt and you was too good looking and too nice of a person to be locked up here" and allegedly said something like, "I would like to do more with you and with these cuffs".
3. His Honour erred in finding Officer Matthews was present in the area when Ms Slacke alleged Mr Fraser put one hand through the hatch to touch her on the breast. That being so, there was no basis for the observation that it was highly improbable that anyone would undertake that sort of conduct whilst knowingly being observed.
4. His Honour erred in finding there was nothing in the evidence of Officer Matthews which supported Ms Slacke's version of events.
5. His Honour erred in finding that Ms Slacke had both hands through the cuffing hatch, with handcuffs on and that, therefore, when Mr Fraser reached through the cuffing hatch it was difficult to accept that it was physically possible that Mr Fraser could have put a hand through the available space.
6. His Honour found that Officer Matthews corroborated the evidence of Mr Fraser that Mr Fraser's arms were through the hatch. However, that corroboration did not extend to the proposition that Mr Fraser did not touch Ms Slacke's breast. Moreover, his Honour's finding that Officer Matthews did not see Mr Fraser touch Ms Slacke did not corroborate Mr Fraser's evidence that he did not touch Ms Slacke's breast and to the extent his Honour found it did was to wrongly construe the evidence.
7. His Honour erred in finding that as Officer Matthews did not act on her suspicions that supported a conclusion favouring Mr Fraser's testimony.
The statement of Officer Matthews indicated that she went home "feeling disgusted" and made a contemporaneous note so that she could refresh her memory at some future time should that be necessary.
The contemporaneous note recorded that it was made at 5.30pm on 11 May 2012 and related to events that occurred between 3.10pm and 3.15pm that same afternoon. In so far as the buttock grabbing allegation was concerned, the contemporaneous note made by Officer Matthews stated:
.... Fraser stayed at truck & White & I escorted SLACKE from cell to truck. I think White went to rear of truck - not real sure. When SLACKE stepped up into truck Fraser grabbed her around the buttocks.
The only reference to the contemporaneous note of Officer Matthews in the decision is at [32] where his Honour stated:
Officer Matthews' reluctance to file a report and her decision to do nothing other than make a contemporaneous note is inconsistent with the concern expressed to Ms Stewart.
The report referred to was the report of the discussion on 26 June 2012 with Officers Stewart and Stace wherein Officer Matthews made Officer Stewart aware of Mr Fraser's behaviour with female inmates and encouraged her to "keep an eye on him".
It will be recalled that on 24 October 2012, Ms Stewart submitted a written report to management in which she recounted that Officer Matthews had told her on 26 June 2012 that Officer Matthews had witnessed inappropriate behaviour by Mr Fraser towards a female inmate in the following terms:
Leanne informed me that Officer Fraser went down on his knees with his arms fully in the hatch and appeared to be laughing with the inmate. Leanne said whilst they were placing the inmate on the truck she witnessed Officer Fraser grabbing the female inmate on the buttocks, the female then turned and laughed at Officer Fraser.
It was the receipt of that report by Officer Emma Stewart that led SAS Sundin to recommend on 1 November 2012 to the General Manager, Court Escort Security Unit, that the incident be reported to the Professional Conduct Management Committee for consideration of formal investigation.
The report of Mr Sundin also relevantly noted that he had contacted Officer Matthews to discuss the matter. After Officer Matthews had "acknowledged the incident" to Mr Sundin, his report indicates he requested Officer Matthews to contact him once her report was completed and he would travel to a location of her choice to collect the said report. Officer Matthews testified this proposal reflected, in her view, the importance Mr Sundin was giving to the report.
Officer Matthews informed Mr Sundin that she had not been able to locate her notes that were made on the day of the incident and that she would not feel comfortable about submitting her report without refreshing her memory from her notes.
In fact, in cross-examination Officer Matthews disclosed she did have a recollection of events when Mr Sundin asked her for her report, but she was trying to avoid doing it (which Officer Matthews succeeded in doing until the formal investigation in January 2013).
It was in Officer Matthews' formal statement of 18 January 2013 that she qualified the record set out in her contemporaneous note from:
When SLACKE stepped up into truck Fraser grabbed her around the buttocks.
to the account set out in [87] of his Honour's decision to the effect:
Officer Stephen White and I walked inmate SLACKE to one of the side compartments and Officer Fraser was already standing there waiting. I remained within a metre behind inmate SLACKE as she walked towards Officer Fraser who was standing at the open door of the compartment. Inmate SLACKE turned to step up and into the compartment and as she did she placed her foot on the step at this point I observed Officer Fraser move his hand in an under and upward direction at a quick speed appearing to be grabbing at the buttocks area possibly the vaginal area of inmate SLACKE. My view was obstructed by something that prevented me actually seeing the connection however my suspicion is that a connection was made. I observed Officer Fraser giggle as it occurred. (Emphasis added.)
In cross-examination Officer Matthews explained the inconsistency between her contemporaneous note and formal report:
Q: Could you read to yourself the last sentence of your note?
A. Yep. "Fraser grabbed her around the buttocks".
Q. That wasn't right?
A. That was my assumption, they were my own personal notes, that's what I thought. I didn't write in there I thought I saw him do this, I saw a movement, that was my assumption, they were my personal notes and as far as I'm concerned that's what happened.
In re-examination Officer Matthews was asked whether as a result of what she had seen she "felt angry and pissed off". Officer Matthews replied:
Yeah, when he did that, that going into the van, he did something a second time in front of me knowing that I was there, that's what I thought, "Why? Why would you do that in front of me?"
Mr Fraser denied the buttock grabbing incident occurred. In a submission to Corrective Services NSW dated 11 December 2013, the respondent stated Ms Slacke "entered the vehicle without incident or contact by myself". He further stated he then closed and locked the internal compartment door as Ms Slacke stepped onto the top shelf of the escort vehicle. He said this account was corroborated by Officer White.
Harrison DP referred to Officer White's evidence at [91] and [92]:
[91] Officer White's evidence is …:
6. On this day, we were taking inmates from Taree court cells back to Port Macquarie Police Cells. Steve had gone to the cells with Leanne to cuff the inmates and he brought the male inmate first. The male inmate was placed into the middle pod of the prison van. I walked the female inmate with Leanne and Steve Fraser was already at the truck. When we got her to truck (sic), Steve was standing between the front and middle pods. Leanne stopped at the front of the truck. I walked towards the rear and stood watching as the inmate boarded the van. Steve did not touch her as she boarded the van. As she stepped up into the van I saw Steve step forward and shut the wire inner door and I closed and locked the solid outer door.
[92] In cross examination Officer White was unshaken in his evidence that he had a close view of Ms Slacke and Mr Fraser while Ms Slacke climbed into the transport unaided. Officer White was challenged on this. The transcript records …:
Q. So what I want to put to you is you walked past Mr Fraser, there was no need for you to continue to observe what was happening because Mr Fraser and Officer Matthews had it under control, and you didn't observe Ms Slacke arrive into the vehicle?
A. I did observe her getting into the vehicle, as I said I had set routine (sic) that I do after an incident I was involved in some time ago when I'm loading a truck, to make sure the prisoners are on that truck.
At [89] the Deputy President referred to Officer Stewart's report of 24 October 2012 in which she recounted that Officer Matthews had said in the June conversation that when Mr Fraser grabbed Ms Slacke on the buttocks, Ms Slacke then turned and laughed at Officer Fraser. At [90] his Honour stated:
The mention of laughter is not found in Officer Matthews' evidence and is denied by Ms Slacke, suggesting an embellishment of the event either by Officer Matthews to Officer Stewart or by Officer Stewart herself.
If what his Honour stated at [90] is to be regarded as a finding it is inconclusive and bears no relevance.
At [93] the Deputy President considered that in light of Officer White's evidence that Mr Fraser did not touch Ms Slacke as she entered the van, it was difficult to accept Ms Slacke's evidence. His Honour does not give a reason for arriving at that conclusion. There is no indication at all as to why his Honour felt unable to accept Ms Slacke's evidence. What his Honour said at [113] and [114] appears only to relate to the alleged encounter between Ms Slacke and Mr Fraser on 7 July 2012. It must be found that his Honour's reasons were inadequate in this respect, particularly given the importance of the resolution of the conflict in the evidence to the Deputy President's ultimate conclusion.
In relation to Officer Matthews, his Honour observed at [94] that her evidence went no further than that she was suspicious and at pains to be clear that she did not see Mr Fraser touch Ms Slacke. His Honour erred in finding Officer Matthews' evidence went no further than suspicion. Her evidence was that she saw Mr Fraser "move his hand in an under and upward direction" at a quick speed. This was an observation of fact and appeared to Officer Matthews to be Mr Fraser grabbing at the buttocks area of Ms Slacke. Officer Matthews also stated she observed Mr Fraser "giggle as this occurred". It is clear that Officer Matthews genuinely believed, despite not witnessing Mr Fraser's hand come into actual contact with Ms Slacke's buttocks, that, in fact, was what occurred.
Officer Stewart's October 2012 report of what she recollected having been told by Officer Matthews on 26 June 2012 was supplemented by a statement dated 10 January 2013 which formed part of the Investigation Report. In the supplementary report Officer Stewart clarified the point in her formal report of the conversation with Officer Matthews in which she advised Officer Stewart that Mr Fraser had grabbed the inmate on the buttocks. Officer Stewart stated that Officer Matthews "motioned during the conversation with her left hand open in an upward manner as if to push the inmate onto the escort vehicle". Harrison DP did not refer to the supplementary report and it may, therefore, be found that his Honour failed to take it into account.
Given Officer Matthews' concern about Mr Fraser's conduct vis á vis Ms Slacke there was a perfectly plausible connection to be made by Officer Matthews between the hand movement she saw in close proximity to Ms Slacke as she climbed into the van and the grabbing of Ms Slacke's buttocks. Officer Stewart confirmed that Officer Matthews had demonstrated the hand movement to her in June 2012. Harrison DP did not address the evidence of the hand movement in circumstances where he should have in order to assist him in determining a fact in issue. This proposition is reinforced by the finding of his Honour at [96] that Officer Matthews' evidence was truthful.
At [95] of his decision, the Deputy President found that Officer Matthews did not act on her initial suspicions at the time. That was an error. Officer Matthews acted on her concerns by consciously monitoring Mr Fraser's interactions with Ms Slacke. Within three hours of the alleged incidents, Officer Matthews had written a contemporaneous note of events. Within a week, Officer Matthews had checked with police to ascertain if there was any CCTV footage of the cell areas to support a report from her which she otherwise felt would be Mr Fraser's word against hers. Moreover, Officer Matthews disclosed to Officer Stewart on 26 June 2012 the substance of what she believed was Mr Fraser's inappropriate behaviour as she wanted to make Officer Stewart aware of Officer Fraser's behaviour with female inmates and "to keep an eye on him".
Officer Matthews said that she did not raise her concerns with Officer White because she thought he had gone to the rear of the van and would not have seen anything. It is relevant in this regard that in Officer White's statement of evidence he stated that Mr Fraser was standing between the front and middle pods of the van when Ms Slacke was brought to the van and that Officer Matthews stopped at the front of the truck whilst he "walked towards the rear". This was consistent with Officer Matthews' qualified recollection in her contemporaneous note to the effect that she thought Officer White had gone to the rear of the truck but was not really sure. However, in re-examination, Officer White's account changed from his initial statement to assert that he in fact "stopped in between the front pod and the middle pod". This goes to Officer White's credibility, which we shall address shortly.
At [96] his Honour found that Officer Matthews was hostile to Mr Fraser. However, his Honour does not explain how he came to that conclusion and there appears to be no evidentiary basis for such a finding.
In summary, we find that Harrison DP erred in the following respects in addressing the transport allegation:
1. Failing to provide reasons for arriving at the conclusion that it was difficult to accept Ms Slacke's evidence that Mr Fraser grabbed her buttocks as she was entering the van.
2. In finding Officer Matthews' evidence regarding what she saw as Ms Slacke was entering the van went no further than suspicion.
3. Harrison DP did not refer to the supplementary report of Officer Stewart regarding Officer Matthews' demonstration of what she saw as Ms Slacke entered the van. The absence of any reference to this corroborating evidence indicates it was not taken into account.
4. Harrison DP did not address Officer Matthews' evidence of the hand movement in circumstances where he should have in order to assist him in determining a fact in issue. Because his Honour did not address this evidence it indicates it was probably not taken into account.
5. Harrison DP erred in finding that Officer Matthews did not act on her initial suspicions at the time.
6. Harrison DP erred in failing to provide reasons for finding that Officer Matthews was hostile to Mr Fraser and, in any event, the finding lacked any evidentiary basis.
The documentary material regarding Mr Fraser giving untruthful evidence was said to have been tendered as a business record. However, in the face of the respondent's denial he was untruthful and in the absence of any corroborative evidence from the appellant, little can be made of the warning letter on its own. We could not conclude, for example, that in light of the warning letter Mr Fraser had a tendency to be untruthful.
However, we are entitled to be sceptical of the extraordinary litany of denials by Mr Fraser whenever he has been confronted with allegations of misconduct. Mr Fraser:
denied he was untruthful in the parole board hearing in 2001 despite strong evidence against him;
denied the incident in 2010 of rubbing Officer Stewart's leg ever took place, indeed he described it as a complete fabrication, despite there being no evidence that Officer Stewart had a motive for concocting the incident and had made a reasonably contemporaneous report of the incident;
denied the shower incident in 2010 involving the inmate Ms Stewart, despite the absence of any evidence that Ms Stewart had reason to fabricate the incident;
initially denied the "Hey lesbians" incident in the strongest terms (blaming another officer for a vendetta against him) and made the sexist remark shortly after completing a plan aimed at improving his attitude towards women;
denied the handcuffing incident ever occurred where it was alleged he touched Ms Slacke's breast, despite there being no evidence that Ms Slacke or Officer Matthews had reason to fabricate the incident; and
denied the transport allegation ever occurred where it was alleged he grabbed Ms Slacke's buttocks as she entered the prison van, despite there being no evidence that Ms Slacke or Officer Matthews had reason to fabricate the incident.
In relation to the last two allegations, Mr Fraser contended they were part of a vendetta against him arising from an altercation between Mr Fraser and another officer, Officer King. His theory was as follows:
I contend that I am the innocent victim of a group of people that have a vendetta and continue to make vexatious allegations and untruthful reports to discredit me in another matter where I was assaulted in the workplace at Port Macquarie Cells by Officer Mark King on October the 19th 2012.
Officer King is a personal friend of the SAS Leanne Cook and husband Officer Darren Cook and is well supported by Deputy Brian Cullen and SAS Graham Sundin as is evidenced by reports written against myself and others at Port Macquarie since October 19th 2012.
This evidence of bias against me can be seen in comments and reports from the assault on me on October 19th these comments and reports came from Deputy Brian Cullen and supported by General manager Craig Osland…' In report dated 6th/11/12 by Mr Cullen states allegedly that Fraser was the initial aggressor. I don't know who Mr Cullen has spoken to but the only witness to the assault did not state that I was the aggressor in any report submitted to CSNSW or NSW Police.
Before any investigation into the assault of Natasha Slack matter Mr Cullen makes the recommendation that I be removed from Port Macquarie. I believe the purpose of this was to assist Officer Kings endeavours to return to Port Macquarie cells from suspension.
The principal matters Mr Fraser referred to in support of his conspiracy theory were that:
Officer Stewart did not make a formal report about her conversation with Officer Matthews which occurred on 26 June 2012 until 24 October 2012, some five days after Officer King allegedly assaulted Mr Fraser. There was no explanation for the delay in submitting the report.
SAS Sundin contacted Officer Matthews on 25 October 2012 seeking a formal report regarding the events of 11 May 2012. Officer Matthews was reluctant to provide such a report and only did so when she was afforded three hours paid time to complete it. Mr Sundin then directed her to refrain from posting or emailing the report, rather he drove from his base in Grafton to Ms Matthews' residence in Forster to collect it. The reason for this was not explained.
Why Officer Matthews did not report the incidents of 11 May 2012 at the time.
The coincidence of Officer Stewart providing a report four months after her conversation with Officer Matthews and five days after Mr King allegedly assaulted Mr Fraser is troubling because it was not explained or sought to be explained by the appellant other than to submit it was a "red herring". However, two things need to be said about it. Mr Fraser's counter-attack to the allegations against him was that there was a vendetta against him. If there was anything significant to be made of that in the proceedings one would have thought Mr Fraser would have at least taken the opportunity available to him to require Officer Stewart to be available for cross-examination and to explore the coincidence and/or the reason why it took Officer Stewart four months to file her report. He did not do so. Secondly, there was no evidence at all that Officer Stewart had any connection with the alleged vendetta, nor was there any evidence Officer Matthews was involved in it. No adverse inference against the appellant can be drawn from these matters.
At [29] and [30] the Deputy President opined that it was "somewhat disturbing" that the disputed conversation between Officers Matthews, Stace and Stewart did not lead to any action until after Officer King was removed from the roster and that it was "of deep concern" there was no investigation of the King incident and its proximity to action against Mr Fraser. His Honour does not, however, explain how his concern about these matters had any bearing on his conclusions.
Harrison DP stated at [31] of his decision:
There is further cause for disquiet arising from the manner in which the report was requested by Mr Sundin. Officer Matthews was reluctant to do such a report and only did so when she was afforded three hours paid time to complete it. Mr Sundin then directed her to refrain from posting or emailing the report, rather he drove from his base in Grafton to Ms Matthew's residence in Forster to collect it. The reason for this remains unexplained.
Once again, his Honour did not explain how his disquiet bore on his conclusions. There is no evidence there was anything sinister about SAS Sundin's approach to Officer Matthews. A reasonable explanation for his conduct is that he was aware of Mr Fraser's history and saw the report he had been commissioned to prepare as a serious matter that warranted immediate investigation.
At [95] Harrison DP stated that it was a cause for disquiet that Officer Matthews did not act on her suspicions at the time, namely, 11 May 2012. This was said in the context of his Honour preferring the evidence of Mr Fraser and Officer White to that of Officer Matthews. As we noted earlier, Officer Matthews' evidence was that she did act on her concerns by consciously monitoring Mr Fraser's interactions with Ms Slacke. Within three hours of the alleged incidents, Officer Matthews had written a contemporaneous note of events. Within a week, Officer Matthews had checked with police to ascertain if there was any CCTV footage of the cell areas to support a report from her which otherwise she felt would be his word against hers. In relation to Officer White, Officer Matthews said that she did not raise her concerns with Officer White because she thought he had gone to the rear of van and would not have seen anything.
His Honour gave no consideration to Officer Matthews' evidence as to why she did not act on her suspicions at the time.
Our opinion of Mr Fraser's credibility is that his evidence needs to be treated with some caution and should not be accepted unless corroborated by reliable and independent evidence.
Harrison DP's findings regarding the alleged Court House encounter was not challenged on appeal. The appellant's explanation was that was because the evidence relating to that matter was "word against word", thus making the task of satisfying the requisite standard of proof difficult.
We note that Ms Slacke was due to appear at the Taree Court on 7 August 2012, not 7 July 2012, and that Mr Fraser was rostered on duty at Taree on that day. It may have been Ms Slacke mistook the dates, because she did not resile from her version of events.
Our opinion of Ms Slacke is that she was a witness of truth. She had no reason to lie. The only reservation we would have regarding her evidence is the accuracy of her recollection of detail, such as dates and the position of hands during the breast touching allegation. These matters go to the reliability of her evidence. In that respect, Ms Slacke's recollection of the breast touching and buttock grabbing incidents was clear and unshaken in cross-examination. That she may not have recalled accurately whether Mr Fraser had two arms or one arm in the cell when he allegedly touched her breast does not, in our opinion, detract in a material way from her evidence that Mr Fraser touched her breast.
The appellant further submitted the question might reasonably be asked as to why Officer White would give false evidence in support of Mr Fraser. The answer, it was submitted, might be related to one or more of the following:
(a) They worked together in a small work group from 2006 and both had been the subject of serious disciplinary proceedings;
(b) It is possible (although denied by both Officer White and Mr Fraser), that they had a reasonably close relationship as evidenced by the fact that Mr Fraser went to Officer White's 40th birthday party; Mr Fraser had confided in Officer White that he had previously been the subject of a complaint by a female inmate relating to a showering incident; and Mr Fraser had asked Officer White to be an independent observer at a disciplinary review relating to the "Hey lesbians" matter;
(c) Both officers appear to have serious working relationship issues with their immediate supervisor (SAS Leanne Cook) with Mr Fraser asserting that SAS Cook was part of a vendetta against him whilst Officer White had recently been the subject of an allegation, which he denied, that he had referred to Senior Assistant Superintendent as a "blonde bimbo".
Our view is that there is a shadow over Officer White's credibility, although in coming to that view we have not adopted the appellant's submission as to why Officer White might have given false evidence. We agree with the appellant that in the face of conflicting accounts with Officer Matthews and Ms Slacke their accounts should be preferred unless Officer White's evidence was supported by independent, reliable evidence.