Dare v Commissioner of Police

Evidence

1. Evidence in the form of witness statements were filed from 10 witnesses for the applicant, being: 1. The applicant; 2. Dr Alexandra Tachil, a friend of the applicant, and the spouse of the applicant's best friend; 3. Sarah D'Urso, a former partner of the applicant; 4. Elouise Cocker, a former partner of the applicant; 5. Elizabeth Cocker, Elouise Cocker's mother; 6. Stephen Dare, the applicant's father; 7. Kris North, a forensic psychologist; 8. Bill McDonald, a clinical psychologist; 9. Sergeant Andrew Smith; and 10. Chief Inspector Timothy Winmill.
2. Evidence in the form of witness statements were filed from 3 witness for the Commissioner, being: 1. The victim; 2. Superintendent David Driver; and 3. Superintendent Barry Vincent.
3. Of those filing a witness statement, the following were required for cross examination: 1. The applicant; 2. The applicant's father; 3. Sergeant Smith; 4. The victim; 5. Superintendent Driver; and 6. Superintendent Vincent.
4. The Commissioner also wished to test Chief Inspector Winmill's evidence through cross examination, but he was unavailable because he was unwell. The Commission does not consider this unduly prejudiced the Commissioner. Although Chief Inspector Winmill supported the applicant's retention as a police officer, his evidence was not entirely favourable to the applicant.
5. Given that the applicant agreed that the misconduct had occurred, and accepted the details alleged in the Commissioner's Reasons, most of the contested facts were about surrounding events. These fell into two categories: 1. Events which, on the case of the Commissioner, tended to show that the applicant was not genuinely remorseful; and 2. Events which, on the case of the Commissioner, showed that the conduct of the applicant, occurring after the misconduct, supported the Commissioner's decision to remove the applicant, or weighed against his reinstatement.
6. The timeline of events between the misconduct and the applicant's removal can be adequately summarised as: 16 June 2019 The misconduct occurs. 19 June 2019 The applicant is placed on an interim risk management plan; shortly thereafter the applicant's Leading Senior Constable status was revoked. 11 September 2019 The applicant was charged with sexual touching and with the alternative charge of common assault. 29 October 2019 The applicant's duties were significantly restricted because of his diagnosed alcohol abuse disorder, and he was treated under the care of a police psychologist. January 2020 The applicant was restored to largely normal duties. Although there was a dispute between the parties as to the extent of restrictions on his duties, it was accepted that there were some restrictions on his duties, including a complete restriction on him attending domestic violence matters, for a limited period. Early 2020 The applicant offered to plead guilty to the common assault charge, but this was not accepted by the prosecutor. December 2020 Both charges were heard in the Local Court. After three days the matter was adjourned part heard with the victim still in the process of being cross-examined. 15 March 2021 The applicant pleaded guilty plea to the charge of common assault, following withdrawal of the charge of sexual touching. A conviction was recorded, and a nine-month community corrections order imposed. 16 March 2021 The applicant's commander recommended that the applicant be suspended following the conviction and sentencing in the Local Court. 19 March 2021 The applicant was suspended. 8 July 2021 The District Court upheld an appeal against the sentence imposed by the Local Court, and instead imposed a conditional release order for 12 months, without conviction. 30 July 2021 The applicant's suspension was lifted, and he returned to duties, apparently largely the full duties of a general duties police officer but subject to an interim risk management plan. 10 August 2021 Police Command's investigation into the misconduct was completed and the applicant's commander began to prepare notices requiring responses from the applicant. 11 January 2022 The investigator's report was served on the applicant. 4 March 2022 The applicant provided his response to the investigation through his legal representative. 18 March 2022 The applicant's commander referred the matter to the Commissioner's Advisory Panel (CAP) with a recommendation of disciplinary action pursuant to s 173 of the Police Act in the form of a loss of increment, a Regional Commander's Warning Notice and a management-initiated transfer. 1 July 2022 The CAP considered the matter and determined to refer the applicant to the Commissioner for her to consider removal of the applicant. 4 July 2022 The applicant was again suspended following the recommendation of the CAP that he be considered for removal by the Commissioner. 14 November 2022 The Commissioner sent the applicant a show cause letter, giving him an opportunity to set out why he should not be removed from the NSW Police Force. 23 January 2023 The applicant responded to the Commissioner's letter. 25 May 2023 The Commissioner made her determination, pursuant to s 181D of the Police Act and removed the applicant as a police officer.

Statutory framework

1. Divisions 1B and 1C of Part 9 of the Police Act set out the power of the Commissioner to remove a police officer, and the power of the Commission to review that order. The relevant provisions are: Division 1B Summary removal of police officers in whom Commissioner does not have confidence 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. … (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. … Division 1C Review of Commissioner's decision under Division 1B 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. … 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows - (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to - (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). …

The application of the statutory framework

1. In both his written Outline of Submissions, filed prior to hearing, and in a written Outline of Closing Submissions (AOCS), the applicant set out a similar summary of what he said were the powers of the Commission. As expressed in the AOCS, the applicant submitted that: "Powers of the Commission on review 5. Section 181D of the Police Act gives the Respondent the power to remove an officer where the Respondent no longer has confidence in the officer's suitability to remain a police officer having regard to the officer's competence, integrity, performance, or conduct. 6. A person who is the subject of a decision to remove him or her from the Police Force may apply for a review of that decision pursuant to s 181E of the Police Act. The way the Commission must conduct the review is set out in s 181F of the Police Act … … The Applicant always has the burden of establishing that the removal of the Applicant from the Police Force is harsh, unreasonable, or unjust. 7. The hearing before the Commission is a hearing de novo, not a review of an administrative act. 8. Section 181F requires the Commission firstly to consider the Respondent's reasons for the decision to remove the Applicant from the Police Force, which are those set out in the Statement of Reasons. 9. It is then for the Applicant to make out a case that the decision to remove him from the Police Force was harsh, unreasonable, or unjust. 10. The purpose of the Respondent's case is to make answer to the Applicant's case. If the Applicant advances any evidence or argument that might go to establishing that the removal was harsh, unreasonable, or unjust, the onus of addressing that case, including that evidentiary case, then falls on the Respondent: Tredinnick v Commissioner of Police [2016] NSWIRComm 14 at [78]. 11. 'Harsh, unreasonable or unjust' in these proceedings have the same meaning as that given to them in proceedings under Part 6 of the Industrial Relations Act 1996: Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 at [20]. However, the Commission must consider the matters set out in s 181F(3)(b) of the Police Act which the Commission, in an application brought under s 84 of the Industrial Relations Act, does not have to consider. Amongst other things, in determining an application pursuant to s 181E of the Police Act, the Commission must have regard to a 'public interest' which, because it is partly defined in s 181F(2)(ii), is not the same as the 'public interest' referred to in s 146(2) of the Industrial Relations Act: Commissioner of Police v Easton [2013] HCA 2 at [27]. 12. Each application for review of an order must be considered on its own particular facts and circumstances, with the Commission being required to reach a decision, based on an overall assessment of the evidence as to whether the decision to remove the Applicant was harsh, unreasonable, or unjust and, where relevant, whether reinstatement should be ordered." [Emphasis in original.]
2. The respondent did not take issue with the applicant's submissions as to the Commission's powers, or the application of those powers.
3. In his oral submissions, Mr Doherty of counsel for the applicant agreed with the Commission that the proper test is "sufficient doubt", not "any doubt". In Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236, Bell P, as he then was, set out: "84. Depending upon the basis of the Police Commissioner's decision, as the Full Bench said at [27] citing Starr, the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust may be satisfied in a given case by casting sufficient doubt on the Police Commissioner's reasoning process so as to justify the IRC's intervention. But it is important always to remember that 'sufficient doubt' is not 'any doubt', and the raising of a doubt, sufficient or otherwise, does not in any way alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. So also, the mere 'going into evidence' by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that a removal was harsh, unreasonable or unjust nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner's original decision and of the strength of the evidence led by the removed officer and or the credibility of the alternative hypothesis. 85. If what the Full Bench in the present case referred to as 'sufficient doubt' is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust."
4. Whether doubt cast upon the Commissioner's reasoning rises to the relevant level will therefore be a focus in considering the case presented by the applicant.
5. It should also be observed that paragraph 12 of the ACOS better sets out the task of the Commission than does paragraph 7 of the ACOS. The Commission is to conduct a fresh and independent inquiry into the decision of the Commissioner to remove the applicant. It is not, as the applicant acknowledges, a remaking of that decision.
6. Unlike a true administrative review, the 181D Order is presumptively correct, and the applicant has the onus of establishing that order is harsh, unreasonable or unjust. This is made clear by s 181F(2).

The Commissioner's reasons - s 181F(1)(a)

1. The Commissioner's reasons are set out in a 12-page document dated 25 May 2023, and titled Statement of Reasons. Some of this can be summarised, but it is appropriate that key portions are reproduced in full.
2. The Statement of Reasons sets out: 1. On 16 June 2019 the applicant attended a party at a private residence with other police officers, including the victim. At the conclusion of the house party those present agreed to continue drinking at a nearby bar; 2. The applicant was a Leading Senior Constable and the victim was a Probationary Constable at the time; 3. The applicant was intoxicated, and while at the bar was observed "spilling drinks everywhere", and observed to fall over; 4. As those present were leaving the private residence, and in the course of the victim placing a bag in the boot of a car, she leant over the boot. The applicant lifted the victim up and into the boot and closed the boot on her; 5. A sequence of events at the bar. These can be sufficiently summarised, using the applicant's words, as the applicant having: "… followed [the victim] around, stood close to her, put my arm around her waist, over her shoulder and played with her hair." [Exhibit A1, Applicant's witness statement, paragraph 27] 1. One police officer reported telling the applicant that the victim was uncomfortable with his conduct. Other officers told the applicant he was intoxicated to the point where he should leave and that the victim's boyfriend was present; 2. The victim was upset and crying and consoled by other police officers, although this is not stated to have been conveyed to the applicant at the time; 3. The applicant sent the victim messages after leaving the bar, including: "16 June 2019 at 10.52pm: 'Hey sorry appariantly mr bad' (SIC) 'ffs' 'ciao' 'sigh' "wtf fuck my life' 'sorry'" [Reproduced verbatim.] 1. The applicant also sent the victim's boyfriend a text message in the same period: "Hopefully you trust [the victim] if not me. We are mates that is it. I am absolutely sorry if you thought I was out of line, but I have no aspirations or feeling for [the victim]." 1. Under a heading "Criminal Interview", the applicant participated in an interview in which he admitted to being "moderately to well affected by alcohol"; denied that he was acting or attempting to act in a sexual manner towards the victim; and stated that he did not intend to put his hand under the victim's sweater and that he was careful not to touch her breast when he hugged her; 2. Under a heading "Criminal Proceedings": "On 12 September 2019, you were charged with an offence of 'sexual touching', which was later withdrawn. On 15 March 2021, you entered a plea of guilty to a charge of 'common assault'. You were sentenced to a nine month Community Corrections Order. On 8 July 2021, you appealed against the severity of the sentence, which was set aside, and you were sentenced to a Conditional Release Order for 12 months with no recorded criminal conviction." 1. Under a heading "Statement of Agreed Facts": "Statement of Agreed Facts Your plea of guilty in the criminal proceedings was based upon a Statement of Agreed Facts (Agreed Facts). The Agreed Facts state that you and Senior Constable Moorhouse were a part of the Red team which was a group of general duties police from Northern Beaches. They say that the members in the team found you annoying and socially awkward, particularly after consuming alcohol. The Agreed Facts outline that at the Curl Curl House Party you and [the victim] were moderately affected by alcohol and as the party was winding down, approximately 10 of the partygoers decided to continue the party at the Manly Wharf Bar. The Agreed Facts state that the CCTV depicted you standing close to [the victim], putting your arm around her waist, over her shoulder and playing with her hair. They state that [the victim] felt uncomfortable but never conveyed this orally to avoid appearing impolite. In relation to the touching incident that gave rise to the criminal offence, the Agreed Facts stated: The offender approached the victim from behind, standing in close proximity to the victim's left-hand side. The victim offered the offender a slice of pizza from her right hand, which the offender declined. The victim then moved her left hand towards the offender's face momentarily. Around this time the offender moved his right hand underneath the victim's red baggy jumper and placed his hand on the victim's torso, near her ribs: … The victim felt the offender's hand or fingertips around her rib area. The victim did not consent to this touching. The offender kept his hand under the victim's jumper for approximately 2-3 seconds before removing it..." [Emphasis in original.] 1. Under a heading "Lancaster Reply", on 4 March 2022 the applicant provided a written statement through his legal representative to what was termed "the investigation", setting out the following: 1. That the applicant joined the NSW Police Force as he enjoyed helping people rather than performing an office job; 2. Highlighting that he had been awarded a Commander's Commendation on three occasions and other positive notes of his career, including setting out that he had relieved as an "Acting Sergeant and Supervisor"; 3. Noting that his Leading Senior Constable designation had been revoked and he had been restricted from performing user pays duties; 4. Noting that he had commenced consulting with a clinical psychologist and continued to see them at that point on a monthly basis; 5. Observing that he had offered to plead guilty to the charge of common assault; 6. A list of factors which the applicant asked be considered: "You have asked that several factors are considered, including: a. The touching was confined to the placing of a hand on [the victim's] torso on one occasion was not skin on skin contact. b. The touching was only momentarily. c. The touching was not hostile in any way and involved no violence. d. The touching was not premeditated in the sense that it formed part of any planned organised criminal activity; it was simply a hug in response to a short interaction with [the victim]. e. I was not on duty at the time, albeit I was socialising in a group containing New South Wales police officers. f. I did not obtain or seek to obtain any benefit from the touching. g. At the time I was moderately to well affected by alcohol and that informed my behaviour. h. At the time I was also suffering ill health, albeit I did not recognise it. j. I am likely unlikely to reoffend again in a similar manner; this incident has shaken me to the core, and I am more conscious than ever of acting lawfully and ensuring I am mentally well enough to undertake my duties." [Reproduced verbatim] 1. References to the decision in the District Court including Smith SC DCJ's comment that, from a criminal perspective, the conduct was at the lower range of objective seriousness, and noting that Smith SC DCJ had referred to the applicant's alcohol use, mental health issues and ADHD with hyperactivity and impulse control issues which had led to difficulties in forming interpersonal relationships and the applicant's lack of social awareness; and 2. Providing character reference from the applicant's father, partner, ex-partner and friends, and two police officers. 1. Under a heading "Medical Reports", a summary of medical reports provided by the applicant from a forensic psychologist and a clinical psychologist. They set out that the applicant had been diagnosed with ADHD, adjustment disorder and alcohol use disorder. The reports noted these issues as contributing factors in the "index offence" and observed that a "common aspect of ADHD is impaired ability to interpret subtle social cues. Excess alcohol will naturally dampen that awareness". 2. Under a heading "Your Response": "Your Response On 24 January 2023, you provided a Response to the Notice via your legal representation. You repeated details of your personal history and early experiences in the NSW Police Force that were provided in your Lancaster Reply and considered in the Notice. You admit that '(as a prank)', you placed [the victim] into the boot of a motor vehicle. You say you were moderately to well affected by alcohol by 8.30pm. You admit that at the Manly Wharf Bar, you followed [the victim] around, stood close to her, put your arm around her waist, over her shoulder and played with her hair. You admit that at around 9.44pm, you moved your right hand underneath her jumper and placed it on her torso, near her ribs, for 2-3 seconds. You acknowledge this was a completely inappropriate action, which made her feel uncomfortable and you acknowledge that she did not consent to this touching. You say that you were not aware that your behaviour was making her feel uncomfortable, which you submit is consistent with the evidence given by [the victim] and the Agreed Facts. You deny that you intended to sexually harass her. You say you accept and understand that there is no excuse for your behaviour, especially given your rank and position. You say that you do not proffer your medical conditions as an excuse but to provide some background and a potential explanation for your behaviour. You also say that you have suffered the embarrassment of informing your close family and friends of this incident and asking for moral support and character references. In your Response, you say that it was a degrading experience of committing an offence in front of your colleagues. You state that you were criminally charged and upon appeal were placed on a 12-month Conditional Release Order with no conviction recorded. You say you suffered shame and humiliation attending court as a criminal and the associated media attention. You say that you have spent more than $50,000 in legal fees and lost over $45,000 (over 3 years) in base salary after your Leading Senior Constable designation was revoked. You say that you have stopped drinking alcohol, continued to seek professional help for your mental health and moved to a different location to improve your health and lifestyle. You say that your service history and good character should be taken into account as you want to continue working as a police officer. You submit that the incident was 'out of character' for which you say you have suffered professionally and personally. You say you have diligently complied with the Interim Risk Management Plan and had been performing full operational duties since August 2021 without any issues. You say that if you are removed you will have limited career prospects as you are concerned you will be unable to use your law qualifications and may be unable to obtain a security operative license. You attached several character statements to your Response including from your ex-partner Sarah D'Urso, Dr Alexandra Tachil, Brad Howell, Elouise Cocker, Chief Inspector Tim Winhill and Sergeant Andrew Smith." [Emphasis in original.]
3. The Commissioner's Statement of Reasons then set out: "Allegation I am satisfied that there are grounds for me to conclude, that on 16 June 2019, you intentionally touched and grabbed [the victim] on several occasions. In particular, you: 1. lifted her by the legs and placed her in the boot of a car outside an address in Curl Curl; 2. repeatedly touched her body, grabbed her on at least one occasion, and touched her hair while at the Manly Wharf Hotel; and 3. placed your hand underneath [the victim's] jumper and placed your hand on her torso, near her ribs without her consent (which resulted in a charge of common assault). Furthermore, I am satisfied that there are grounds for me to conclude, that your conduct at 2 and 3 above amounts to sexual harassment. In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulation 2015, the Crimes Act 1900 (NSW), the Anti-Discrimination Act 1977, and the NSW Police Force Code of Conduct and Ethics. Section 7 of the Police Act 1990 relevantly states: Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals … Clause 9 of the Police Regulation 2015 relevantly states: Responsibilities of off-duty police officers (1) A police officer who is off-duty (whether rostered off-duty, on annual leave, suspended or otherwise absent) - (a) is subject to the provisions of this Regulation and the Police Code of Conduct, and Section 61 of the Crimes Act 1900 (NSW) Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. Section 22A of the Anti-Discrimination Act 1977 relevant states: For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. Section 22B of the Anti-Discrimination Act 1977 prohibits an employee from sexually harassing another employee. The NSW Police Force Respectful Workplace Behaviours Guidelines relevantly state: All NSWPF employees are required as a condition of their employment to ensure that their behaviour is consistent with the standards of behaviour set out in the Code of Conduct and Ethics, including but not limited to: • interacting with others in a professional, courteous and polite manner that does not interfere with the health, safety and comfort of others • treating others in the way they wish to be treated • … In NSWPF, a workplace equity matter involves behaviour outlined in the NSWPF Respectful Workplace Behaviours Policy Statement and these guidelines and falls under one or more of the following categories: • … • sexual harassment; • … Harassment is unlawful under both State and Commonwealth legislation if: • it is unwelcome, uninvited or unreciprocated; and • a reasonable person would anticipate that the recipient would be offended, humiliated, intimidated; and • it is either sexual in nature or targets a person on a discriminatory ground. … Harassment can occur regardless of whether or not a person intended to harass another person. It does not need to be repeated or continuous; one-off incidents are capable of constituting harassment. It is important to note that what is acceptable to one person may not be acceptable to others. The test is whether, having regard to all the circumstances, a reasonable person would be offended, humiliated or intimidated. … Sexual harassment Examples • … • sexual or physical contact, such as slapping, kissing, touching, hugging or massaging • … • unnecessary familiarity, such as deliberately brushing up against someone … • behaviour which would a/so be a criminal offence such a physical assault, indecent exposure, sexual assault, stalking or obscene communications. Point 1 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty. Whether on or off duty your conduct will reflect on the NSW Police Force. All employees must protect the reputation of the NSW Police Force through appropriate behaviour. You must always act lawfully and never in a way that brings or is likely to bring discredit to the NSW Police Force. Point 4 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must treat everyone with respect, courtesy and fairness. All NSW Police Force employees must act with fairness and impartiality to other employees and customers ... It is unlawful to harass, vilify, victimise or discriminate against any person based on: … • sex … Point 6 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must comply with the law whether on or off duty. The NSW Police Force is responsible for upholding the law. Unlawful and / or criminal conduct by employees of the NSW Police Force is incompatible with that role and also likely to bring the NSW Police Force into disrepute. All employees of the NSW Police Force are expected to comply with the law at all times. Consideration As set out in the Notice, I am very concerned by your conduct as detailed above. I expect the highest standards of behaviour from sworn officers of the NSW Police Force and for all NSW Police Force officers to place integrity above all. I expect that you will always adhere to your obligations under the NSW Police Force Code of Conduct and Ethics, whether you are on or off duty. I am disappointed that you failed to do so. I have given careful consideration to the issues you raised in your Response. I have taken into account that you pled guilty to the offence of common assault and that you were ultimately placed on a Conditional Release Order for 12 months, with no conviction recorded. As mentioned in the Notice, your criminal proceedings are separate from any determination I make under s 181D of the Police Act 1990. I have made findings independently from your criminal proceedings and have determined that your behaviour was contrary to the values of the NSW Police Force. The NSW Police Force strives to eliminate any form of behaviour that could amount to sexual misconduct or sexual harassment. You have engaged in conduct that goes to the very heart of your personal judgement and integrity. They are also contrary to your Oath of Office. As a police officer, you have an obligation to uphold the law. I am satisfied that you repeatedly touched your colleague without her consent on 16 June 2019. Your behaviour was completely unacceptable and fell well below the expected standards required and expected of a sworn officer. I have carefully reviewed your Response to my Notice. I have taken into account that you have admitted, and expressed remorse for, your conduct towards [the victim]. While you admit that you engaged in the conduct set out in the Allegation, you deny intending to sexually harass [the victim]. While I accept that you may have been intoxicated at the time of your conduct, this does not excuse or justify your behaviour. I have also taken into consideration the opinions expressed in the reports of Ms North and Mr MacDonald, including that you suffer from ADHD and Alcohol Use Disorder. I take into account your submission that you have stopped consuming alcohol and have continued to seek professional help for your mental health. In your Response, you refer to the comments made by Judge Smith stating that you are 'unlikely to re-offend at all' and submit that you performed unrestricted duties without issue following your return to work in August 2021. As a senior officer with 12 years of service, I expect you to conduct yourself in accordance with the highest standards of behaviour, and to set an appropriate example. I am disappointed that despite having completed training in the Code of Conduct and Ethics, Respectful and Inclusive Workplaces, and Respectful Workplace Behaviour, you engaged in highly inappropriate and completely unacceptable conduct towards a junior colleague. There is no place for that type of behaviour in any NSW Police Force workplace. I am satisfied that you acted in a highly inappropriate and unacceptable manner by repeatedly touching [the victim] without her consent. It is a duty of all members to protect the reputation of the NSW Police Force through appropriate behaviour at all times. I am satisfied that your behaviour has fallen short of the standards expected and has brought you and the NSW Police Force into disrepute. I have carefully reviewed all of the material associated with this matter and taken into account the character evidence and details of your career history within the NSW Police Force as supplied by you with your Response. I have taken into account the personal and professional impact that your conduct has had on you, including your financial situation. However, given the gravity of your conduct I see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. l expect and the law demands that New South Wales police officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act professionally at all times, including off duty with ethics and integrity, and in accordance with the law. This is our sworn duty. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers, and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Code of Conduct and Ethics. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer." [Emphasis in original]
4. The substance of the allegation is set out in five sentences under the heading "Allegation", amounting to 3 discrete actions by the applicant. It is clear from the Statement of Reasons that the Commissioner treated the three discrete actions as constituting a single combined allegation.
5. While the first action, of placing the victim in a car boot, is somewhat removed in time from the other two actions, and if taken alone would be objectively less serious than the other two actions, there is a very real sense in which the first action of the applicant sets the scene for the later actions.
6. Importantly, the first action begins a pattern of unreasonable harassment of the victim by the applicant. In the context of the later actions, the first action becomes more serious than it would have been by itself.
7. The applicant did not criticise the way in which the combined allegation was constructed.
8. Immediately after setting out the allegation, the Statement of Reasons sets out the Commissioner's findings as to a range of acts, regulations and codes which the Commissioner has concluded are breached by the misconduct.
9. It is not necessary to address each of the acts, regulations or codes set out by the Commissioner. The reference to each instrument is narrowly focused and each appears to the Commission to be a relevant finding in relation to the sustained misconduct of the applicant.
10. This is not a case where each of the instruments alleged to have been breached significantly overlap and are repetitive: each instrument set out is limited to its essence and focused tightly on the misconduct.
11. Under "Consideration", the Commissioner carefully set out that her decision takes into account the applicant's guilty plea to the offence of common assault which was the criminal charge ultimately sustained against him, but notes the distinction between the applicant's behaviour being contrary to the values of the NSW Police Force, and his pleading guilty to the charge of common assault.
12. Relevantly, the Commissioner observes that the applicant had an obligation to comply with the law.
13. The Commissioner sets out that she places significant weight on the efforts of the NSW Police Force to eliminate any form of behaviour which could amount to sexual harassment or sexual misconduct. She considers the applicant's conduct to be antithetical to that aim and expressly considers that his conduct has fallen below her expected standards for a sworn officer.
14. It is difficult to see her conclusions as anything but reasonable. They are based on a consideration of the relevant facts, from which she could reasonably have drawn her conclusions.
15. Based on Commissioner's reasons, the removal of the applicant was not unjust. There was a proper basis for her to act against the applicant given the misconduct, the more so since the applicant had admitted the substance of the misconduct and admitted the gravity of the misconduct.
16. The Commission considers that the matters set out above at [13(f)], particularly items c. and d. in that list, suggest both an ongoing lack of understanding of the gravity of the misconduct, and an attempt to downplay the misconduct in a way which is unreasonable in the circumstances. This supports the Commissioner's conclusion that the applicant had not fully grasped the seriousness of the misconduct.
17. The Commissioner then proceeded to consider a range of matters which were put as either mitigating of the circumstances or related to the disproportionate impact of a decision to remove the applicant.
18. Expressly, the Commissioner considered: 1. Smith SC DCJ's sentencing remarks, including that the applicant was unlikely to reoffend; 2. That the applicant had performed unrestricted duties without issue following his return to work and the totality of his service with the NSW Police Force; 3. Character evidence provided on his behalf; 4. The applicant's financial situation and the impact of the misconduct on his personal and professional life; and 5. Medical evidence as to the applicant's ADHD and Alcohol Use Disorder and that he had sought professional help and stopped consuming alcohol.
19. The Commissioner concluded that the gravity of the misconduct was such that when considered in light of the various instruments breached by the misconduct, she did not have confidence in his suitability to remain a member of the NSW Police Force.
20. The Commissioner did not expressly set out or rely on the impact of sexual harassment on female police officers. The Commission does not consider it essential for the Commissioner to have expressly set this out in order for the Commission to take this into account in considering the Commissioner's reasons. It is inherent to her reasoning.
21. The Commissioner did set out in her consideration that the NSW Police Force was striving to eliminate sexual harassment. It is self-evident that, when faced with conduct of the kind engaged in by the applicant, a failure by the Commissioner to take strong action will have a negative impact on the recruitment and retention of women as police officers.
22. The Commissioner sets out the applicant's position as a sworn officer of "12 years of service", and her consequent expectation of him to maintain high standards and to be an example in the workplace. She notes that he had completed training in "Code of Conduct, Respectful and Inclusive Workplaces, and Respectful Workplace Behaviour".
23. The Statement of Reasons addressed the bases on which the applicant submitted to the Commissioner that removal for his admitted misconduct would be harsh. Her logic is rational, and not obviously intemperate.
24. On the face of the Statement of Reasons, it is not apparent that the removal was harsh.
25. It is clear from the Statement of Reasons that there was a period of approximately four years between the events which led to the applicant's removal, and the 181D Orders.
26. It is also clear from the Statement of Reasons that a large part of this time can be explained by the extended period taken by court proceedings against the applicant, including the appeal of the sentence to the District Court.
27. It is nevertheless apparent from the Statement of Reasons that the process for removal of the applicant took longer than it could have done.
28. The Statement of Reasons suggest that the process for consideration of the applicant's removal was thorough and allowed the applicant to make any response which he saw fit including those in mitigation of the misconduct or as to the harshness of the proposed decision on him personally. Those responses were considered, and each addressed in the Statement of Reasons.
29. The Statement of Reasons do not in totality expose any obvious unreasonableness in the 181D Orders.

The case presented by the applicant - s 181F(1)(b)

1. In express terms the applicant admitted the events set out in the allegation.
2. The applicant also expressly admitted that the misconduct was contrary to the Police Act 1990, the Police Regulation 2015, the Crimes Act 1900, the Anti-Discrimination Act 1977, and the NSW Police Force Code of Conduct and Ethics, as alleged by the Commissioner.
3. The applicant did not expressly concede there was no claim by him that his removal was unjust although the foregoing concessions, and his failure to make any express submission that his removal was unjust, effectively amount to such a concession.
4. The applicant submitted several reasons, covering a wide set of issues, as to why his dismissal was harsh or unreasonable, or both.
5. Some of these were further developed before the Commission, but the Commissioner is correct when she submits that in substance the same matters were raised by the applicant when he responded to the Commissioner's show cause process.
6. The Commission is nevertheless required to address independently each of these reasons to determine whether the removal of the applicant was harsh, unreasonable or unjust. As is set out in Zisopoulos at [84], while the applicant at all times bears the onus of establishing that the removal was harsh, unreasonable or unjust, it is possible for this to be established by demonstrating a flaw in the logic of the Commissioner.

Unreasonable

1. The applicant advanced one reason why his removal was unreasonable, being that: "… it was tantamount to the Respondent having a view that the finding of guilt on the plea of guilty to the charge of common assault and the admission of the misconduct amounting to sexual harassment warranted removal and the Respondent, therefore, did not give proper weight and consideration to matters raised by the Applicant in mitigation." [AOS: paragraph 47]
2. It is apparent that a substantial part of the Commissioner's reason for removing the applicant is indeed the applicant pleading guilty to a charge of common assault, the admission of the misconduct, and that the misconduct amounted to sexual harassment. It is abundantly clear to the Commission that these would form a just basis for removal of a police officer.
3. How establishing this as the basis for removal demonstrates that the Commissioner did not give proper weight and consideration to matters raised in mitigation is not explained in this submission.
4. This submission cannot advance the applicant's case because of that lack of explanation.
5. The logic to explain this was somewhat developed in other submissions of the applicant and that logic is addressed below I considering those submissions.

Harsh or unreasonable

1. The applicant advanced 11 bases on which he submitted that his removal was harsh or unreasonable, or both. These bases were: 1. Removal was disproportionate to the gravity of the misconduct; 2. Insufficient weight had been given to the sentencing comments of Smith SC DCJ; 3. The misconduct "falls towards the lower end of seriousness for the type of assault and sexual harassment involved", albeit accepting that the misconduct was not trivial and that sexual harassment in the workplace is to be taken seriously; 4. The applicant has demonstrated insight into his conduct and shown sincere remorse; 5. The medical evidence showing that his ADHD and use of alcohol were contributing factors in the misconduct; 6. The applicant was suffering from an alcohol use disorder which he has now addressed through controlling his drinking and providing an undertaking as to abstaining in the future; 7. The applicant has received therapy and has learnt to address and manage difficulties caused by his ADHD; 8. The misconduct was an aberration and out of character; 9. The "unlikelihood of the behaviour re-occurring" especially given the applicant's reduced alcohol consumption; 10. His seniority as a Senior Constable and "13 years of good service in the Police Force"; and 11. For its impact on him in his personal circumstances and the hardship the order would cause him.
2. The applicant's submissions significantly overlap, and to some extent develop from each other.
3. For the reasons set out below, to the extent that the applicant submits that his removal was disproportionate to his admitted misconduct, his submissions do not persuade the Commission. Relatedly, and as already observed above at [65], removal of a police officer for sexual harassment and common assault would on its face be just.
4. Insofar as the criminal charge of common assault is concerned, the comments of Smith SC DCJ, and in particular as to the conduct being at the lower end of such matters coming before the District Court, are relevant and do tend to support the submissions of the applicant. The charges against the applicant were sustained to the criminal standard but it is clear that the charge sustained is among the more minor charges which can be laid for an assault.
5. In this context the medical evidence is supportive of the applicant's submission that removal was unreasonable or harsh, but this must be balanced against a recognition that the misconduct occurred in the context of the applicant being significantly impaired by the consumption of alcohol.
6. In so far as the misconduct of the applicant constitutes sexual harassment, it is difficult to see that the comments of Smith SC DCJ, the applicant suffering from alcohol use disorder, the applicant's insight into the gravity of the misconduct and his sincere remorse, the claim that the misconduct was out of character, or the unlikeliness of the behaviour re-occurring significantly contribute to a finding that the removal was harsh or unreasonable..
7. In reaching this conclusion it is important to disentangle the criminal charge from the sustained allegation of sexual harassment. Conduct does not need to be repeated for it to amount to sexual harassment.
8. In a very real sense, the applicant's submissions amount to a proposition that a police officer should generally not be removed for their first act of sexual harassment, especially if they subsequently come to understand that the conduct was unacceptable and demonstrate sincere remorse. The Commission does not accept that this is a correct expression of the law.
9. The medical evidence provides some support for the applicant's submission that his removal was harsh or unreasonable to the extent that his ADHD made it more difficult for the applicant than it might have for others to have recognised expressions of discomfort by the victim.
10. What this submission does not address is that the applicant's conduct continued after another person present told him that his conduct towards the victim was wrong.
11. It is striking that the accounts of the applicant's conduct, by several of those present but in particular and relevantly of the applicant, appear to place as much weight on the affront to the victim's boyfriend by the misonduct as they do on the impact on the victim herself.
12. Given the gravity of the misconduct, in totality it is difficult to accept that removal was disproportionate to the misconduct. The unlikeliness of the conduct being repeated, the applicant's subsequent insight and remorse and other steps taken by him subsequent to the misconduct provide insufficient reason to alter this conclusion.
13. The impact on the applicant in his personal circumstances and the hardship that the order has created for him are serious matters. The applicant pointed to the difficulty he would face as a removed police officer in obtaining security licenses, and to the lengthy period since he obtained his law degree making this qualification less useful than might otherwise be thought.
14. The applicant also pointed to lost income during the period between his misconduct and his removal and provided the unchallenged evidence that this had amounted to approximately $50,000.
15. There is no doubt the totality of these has and will continue to have a seriously negative impact on the applicant. There is however little doubt that these impacts are the same or very similar to the negative impacts most removed former police officers will face.
16. While the power of the Commission to determine that a removal is harsh is not premised expressly on relative outcomes, there must necessarily be some comparative consideration. Otherwise, any removal would, almost by definition, be harsh, given that all removals will involve serious consequences for the person removed.
17. The Commission is not persuaded that the totality of the applicant's personal circumstances either directly, or in combination with other factors, lead to the conclusion that the removal was harsh or unreasonable pursuant to s 181E of the Police Act.

Harsh

1. Two further specific bases on which the removal was said to be harsh were advanced. The first of these was the extensive delay between the misconduct on 16 June 2019 and his eventual removal on 25 May 2023. The second was that the removal was harsh because he was treated unreasonably by the delay and the multiple suspensions, reassignments and transfers between the misconduct and his removal.
2. The Commission considers that this is really one compound set of facts amounting to a single complaint.
3. The applicant conceded that whilst this treatment of him would not be a determining factor it is nevertheless a factor which would add to the overall harshness of the removal order.
4. The series of events between the misconduct on 16 June 2019 and the applicant's removal by the Commissioner on 25 May 2023 encompasses suspensions on pay at different times, reassignment and closer scrutiny under various management plans. Each of these events corresponds to different stages of criminal investigations into the misconduct, the process and outcome of court proceedings, Police Command investigations into the misconduct, and Police Command's consideration of actions to be taken against the applicant because of the misconduct.
5. It is clearly unsatisfactory that four years elapsed between the misconduct and the decision of the Commissioner to remove the applicant from the NSW Police Force. Many events during those four years contributed to the delay. Some of them were largely outside the control of the Commissioner, but many of them were directly within her control.
6. The Commission considers that there is little criticism which can properly be made of the delay between the misconduct and completion of the criminal proceedings in the District Court in July 2021. For part of this period the applicant had been suspended, and for much of it he had been under particular supervision arrangements.
7. That the Commissioner did not act to remove the applicant prior to July 2021 is understandable. Indeed, it is apparent that the Commissioner appropriately prioritised completion of the criminal charges before considering disciplinary action against the applicant.
8. The applicant was again suspended on 2 July 2022 and remain suspended until his removal on 25 May 2023.
9. The Commission has in evidence the series of events during the 22 months between completion of the criminal proceedings against applicant and his removal from the NSW Police Force.
10. The Commission has concluded that although submitted as amounting to harshness, this ground is really about the reasonableness of the Commissioner's decision. This is in fact how the applicant described the "harshness" arising.
11. Dealing first with the period between 2 July 2022 and the applicant's removal, the Commission observes that criticism of this period arises in the context of the unreasonableness of his future hanging in the balance for such a lengthy period.
12. There is criticism to be had of the length of time between suspension and removal, but it is questionable whether this alone could amount to relevant unreasonableness. This is because the applicant was on paid suspension during this period and more prompt action by the Commissioner would simply have put the applicant in the position in which he now finds himself at an earlier time.
13. The period between July 2021 and July 2022 is to some extent explained by the evidence of Superintendent Driver. Superintendent Driver's evidence establishes that some of the delay was occasioned by an initial intention by Police Command to take action against the applicant short of removal.
14. However, it is clear that a large part of the delay arose from simply taking an unacceptable time to address and consider the misconduct.
15. This raises the serious question of whether it is reasonable for the Commissioner to maintain that she has lost confidence in the capacity of the applicant to remain a police officer when for over a year after the completion of the criminal cases against him she did not take action which would have led to her even considering his removal.
16. This question, in and of itself, raises sufficient doubt that, without an appropriate response from the Commissioner, it would be likely that the removal of the applicant would be unreasonable.
17. When combined with concerns held by the Commission concerning the ten-months between suspension and removal, this application becomes one where the Commission will need to give serious consideration to the case put by the Commissioner in response.
18. The applicant proffered five personal references: one from his father and four from friends. Each was formally filed as an attachment to a witness statement. Only the applicant's father was required for cross examination, and this was because of matters unrelated to his reference for the applicant.
19. Each of the references were first prepared for use in respect of the criminal proceedings against the applicant. This was clear from the covering witness statements, but also from the content of the references, which were re-adopted via the filed witness statements.
20. Each of the references spoke positively of the character of the applicant, and each set out that he had learned from the consequences of the misconduct, and that he had changed to be more thoughtful and reflective since those events.
21. Each set out, in the context of the criminal proceedings, the writer's view that the applicant would be unlikely to re-offend.
22. The respondent submitted that his father's reference added little because of that relationship. The reference was nevertheless given, it spoke well of the applicant, and it set out reasons why the applicant was generally of good character, beyond simple platitudes.
23. Notably, the four other personal references were all from women. Two were from former domestic partners, relationships which were each of several years, and one from the mother of one of those former partners.
24. It was not directly raised by the applicant, but clearly this was intended to convey that the applicant is able to engage with women in a considerate and respectful manner. Given that two of the women were his now ex-partners, and one was the mother of one of those women, and that to obtain the reference the applicant would have been obliged to describe the misconduct, they are unequivocally positive for the applicant.
25. The applicant also proffered two professional references; one from the Sergeant who mentored him for a "number of years whilst [the applicant] was on his Interim Risk Management Plan (IRMP)" and one from a Chief Inspector who was the Duty Officer in charge of the applicant, on the same IRMP.
26. The professional references were both initially given in the context of the applicant responding to the show cause letter and are addressed to the Commissioner. These are both positive and express support for the applicant to remain a police officer.
27. That said, they are more nuanced than the personal references, and set out negative aspects of the applicant's conduct as a police officer, in addition to positive aspects.
28. As to whether the applicant is likely to re-engage in conduct similar to the misconduct, all the references reinforce that unlikelihood. This is not substantially in dispute, and the Commission accepts this is unlikely.
29. As to whether the applicant has expressed genuine remorse, the references are supportive, but must be seen in the context of more equivocal statements and submissions of the applicant himself.
30. As to whether the applicant is the kind of person who should be retained in the NSW Police Force, the professional references are of some, but not overwhelming support to him. The references contain both positive and negative remarks.
31. The fact that both officers supported the applicant remaining a police officer is positive but must be given less weight than the views of the Commissioner and that of the CAP. Both because they are more senior and have a wider perspective of such matters, and because the Police Act says so.
32. The applicant also relied on the treatment plan created by his forensic psychologist, and implemented by his clinical psychologist to demonstrate that he had addressed both his alcohol disorder and gained understanding into how his ADHD affected his interactions with others.
33. In a related submission, the applicant initially offered that he would undertake not to drink alcohol whilst knowingly in the company of any member of the NSW Police Force, were he reinstated. During the proceedings, this became an unconditional offer by him to refrain from consuming alcohol at all, were he reinstated.
34. Each of these matters was in and of itself positive in so far as the applicant's case was concerned although in total the Commission has concluded not a great deal of reliance can be placed on them for a number of reasons.
35. Firstly, the treatment that applicant received in relation to his ADHD and as to his alcohol disorder both predated the criminal proceedings against him. There was no evidence by him that he had sought ongoing treatment, or any follow-up assessment that he continued to benefit fully from the earlier treatment.
36. The applicant's offer in relation to abstinence from the consumption of alcohol, initially partial and later full, developed in a way which appeared haphazard.
37. His initial offer not to consume alcohol whilst knowingly in the presence of a member of the NSW Police Force was not presented in the context of professional advice.
38. His later offer to refrain completely from the consumption of alcohol, arising as it did responsively during the proceedings, was clearly not the outcome of a considered commitment by the applicant. It equally did not arise in the context of any professional assessment of his capacity to keep such a commitment.
39. The later offer did not arise in the context of a person appearing before the Commission and pointing to a significant period of abstinence prior to the hearing.
40. The Commission observes that total abstinence was the position put by the applicant in his response to the Commissioner's show cause letter.
41. The applicant reasonably objected to the Commission placing much weight on the opinion of Superintendent Driver that the applicant's offer was unlikely to be fulfilled, because the Superintendent had previously observed one other person failing to comply with that undertaking. But, the absence of a considered plan, similar absence of evidence of support from professionals or others, and the fact that the offer was made "on the run" do not persuade the Commission that a great deal of weight can be placed on the applicant's offer to completely abstain from the consumption of alcohol.
42. It should be observed that the Commission was not presented with any coherent explanation as to why this would be such a significant factor in a change of conduct by the applicant. It seemed to the Commission to be a symbolic gesture rather than a practical one. This is because it was accepted that a repeat of the misconduct by the applicant was unlikely.
43. The applicant's submissions as to his work prospects outside the NSW Police Force were, as the Commissioner submitted, essentially the subjective opinions of the applicant as to his prospects. Those expressed opinions were rational but lacked much evidence in support.
44. During cross examination for example, the applicant admitted that he had applied for only three jobs since his removal from the NSW Police Force. He gave no evidence of attempting to obtain employment in the security industry, nor of attempting to obtain any employment which would make use of his law or marketing degrees.
45. The applicant submitted that evidence of his acceptance of the misconduct, and his acceptance that such behaviour could not be accepted by the NSW Police Force, could be drawn from his accepting that he should have been subject to disciplinary action pursuant to s 173 of the Police Act for the misconduct.
46. The parties agreed that, in determining a s 181E application, the Commission was not empowered to substitute a decision pursuant to s 173 of the Police Act. The Commission is required and empowered to determine whether the removal of the applicant was harsh, unreasonable or unjust, no more and no less.
47. The submissions of the applicant, that he should have been subjected to an order pursuant to s 173 of the Police Act, being a reduction in grade within the rank of Senior Constable, were traversed during an exchange between the Commission and Mr Dougherty about the powers of the Commission to substitute a s 173 order in this proceeding.
48. The Commission expressed a view that, were there a conclusion the removal was harsh, unreasonable or unjust, a more appropriate s 173 order would be reduction in rank to Constable. Through Mr Dougherty, the applicant soon offered that he would accept such a reduction in rank, if it were imposed on him by the Commissioner following an order requiring his reinstatement.
49. Insofar as the current proceedings are concerned, the Commission has formed the view that the late offer by the applicant to accept such a reduction in rank adds further to the Commission's impression that the applicant has only slowly, and perhaps even incompletely to date, come to understand the seriousness of the misconduct.
50. The consequence of which is that while his contrition may be genuine, that contrition is diminished by his lack of understanding of the seriousness of the conduct to which that contrition responds.

The case presented by the Commissioner in response - s 181F(1)(c)

1. The Commissioner first addressed the Statement of Reasons, submitting that the Statement of Reasons addressed each of the mitigating factors raised by the applicant in responding to the show cause letter and concluded that those factors did not outweigh the gravity of the misconduct.
2. The Commissioner specifically pointed to the Statement of Reasons setting out that the applicant was a "senior officer" with 12 years' service, trained in Code of Conduct and Ethics, Respectful and Inclusive Workplaces, and Respectful Workplace Behaviour but that he nevertheless "engaged in highly inappropriate and completely unacceptable conduct towards a junior colleague".
3. Consistent with earlier observations by the Commission, that submission is correct in summarising that the Statement of Reasons are logical, thorough and rational.

Reasonableness

1. The Commissioner's case took the Commission to a number of alleged actions of the applicant in the period after the misconduct for the purpose of illustrating two of her submissions.
2. The first submission was that various acts of the applicant demonstrated that his remorse should not be accepted as genuine. The second submission was that, in his conduct as a police officer after the misconduct, he had demonstrated why the Commissioner's lack of confidence in him as a police officer was justified.
3. In the first category were alleged acts by the applicant such as: 1. Eye rolling, smirking and face pulling in the Local Court, directed at the victim, while she gave evidence to the Court; 2. Words spoken by the applicant in response to words spoken by his father in the foyer outside the court room during the Local Court proceedings, being: "Stephen Dare: 'Why are we here?' Applicant: 'yep' [in a sarcastic tone]" [Exhibit R1, Victim's witness statement, paragraph 16] and 1. An interaction between applicant and the victim while both were on duty subsequent to the misconduct.
4. The first and second events relied largely on the evidence of the victim, with the third apparently occurring whilst at least one other person was present.
5. The Commission has had difficulty accepting the versions pressed by the Commissioner in respect of each of the events, but in particular in relation to events occurring during proceedings in the Local Court.
6. To uphold in full version of events pressed for by the Commissioner, the Commission would need to find that the applicant engaged in obvious and grossly improper conduct over an extended period, which the presiding Magistrate had completely failed to observe.
7. Present during proceedings in the Commission was a police officer who had acted as a support person for the victim during the Local Court proceedings. The victim's evidence was that she had reported the applicant's conduct to that officer at the time of the Local Court proceedings. That officer was not called to give evidence to the Commission.
8. The applicant denied any conduct of the kind advanced by the Commissioner.
9. The conduct alleged against the applicant during the local Court proceedings cannot be sustained by the Commission. This is because of the improbability that the presiding Magistrate would have missed such obviously egregious behaviour, the fact that no report was made to the Local Court, and because an available witness who could have corroborated at least that a report had been made contemporaneously was not called.
10. In reaching this finding the Commission is far from reaching a conclusion that the victim has conducted herself in a way that any adverse finding could be made against her credit as a witness.
11. The applicant denied the third event, providing an alternative version of the events, not simply a bare denial. On the Commissioner's case, a third person was present, and a document created. Neither was produced to the Commission. It is not possible in such circumstances for the Commission to conclude the third event occurred as submitted by the Commissioner.
12. As to the second event, the applicant's father gave evidence disavowing that he had spoken the words attributed to him in the court foyer; the applicant denied recalling the conversation. Contrary to the submissions of the Commissioner, the Commission does not make any findings against the credibility of applicant's father as a witness. He impressed as a witness of credit and historical reliability.
13. The Commission has been unable to positively conclude the second event occurred. Even if events largely matching those described did occur it was not alleged that the words were directed to the victim. It would therefore be difficult to ascribe to them the meaning the Commissioner pressed, even taken at their highest.
14. In totality the Commission is not persuaded that as much can be made of these events, even to the extent that it might be accepted that some of them occurred in a fashion at least similar to that alleged by the Commissioner. Importantly, none of these events featured in the Statement of Reasons.
15. The Commissioner also submitted that she had placed appropriate weight on other mitigating factors such as the sentencing remarks of Smith SC DCJ, the applicant's alcohol use disorder and his degree of intoxication at the time of the misconduct, the applicant having learnt from his conduct, and his rehabilitation in the context of his alcohol consumption.
16. The Commissioner submitted that the conduct of the applicant was unacceptable, even if it had been conduct with which the victim was comfortable, because of the power imbalance between the applicant and the victim at the time of the conduct.
17. The Commissioner also submitted that whilst the applicant had undertaken rehabilitation in respect of his alcohol consumption, he had not undertaken rehabilitation in relation to respectful workplace conduct, and again referenced the comments allegedly made by the applicant during the criminal trial.
18. The Commissioner further submitted that whilst the medical reports and the comments of Smith SC DCJ were relevant to the common assault charge they are not relevant to the applicant's conduct in so far as it constituted sexual harassment.
19. Finally, the Commissioner submitted that the removal decision was made in the context of the NSW Police Force seeking to eliminate sexual harassment in the workplace. The Commissioner's submissions emphasised that a failure to remove the applicant would have been inconsistent the recommendations made in the Broderick Report, would have brought NSW Police Force into disrepute and in particular would have caused the victim to resign from the NSW Police Force.
20. The Commissioner took the Commission to the history of the Police Command's review and consideration of the misconduct after the conclusion of proceedings in the District Court. The submission of the Commissioner was that the lengthy period between the conclusion of those court proceedings and the suspension and subsequent removal of the applicant was explained because during that period Police Command had initially pursued consideration of disciplinary action pursuant to s 173 of the Police Act, and had concluded that in fact removal should instead be considered.
21. Other than two aspects, these submission accord with the Commission's observations above.
22. Firstly, as set out above, the Commission has been unable to accept that there is a basis to conclude that the words alleged against the applicant in the foyer of the Local Court were said in the form or context submitted by the Commissioner. Importantly, the date on which those words were allegedly uttered pre-dates the removal by 2 years and forms no part of the Statement of Reasons.
23. Also forming no part of the Statement of Reasons are the Broderick Report and the fact that the victim had told the Commissioner she would resign from the NSW Police Force if the applicant remained a police officer. Each of these details was known to the Commissioner well before she made the decision to remove the applicant.
24. Nevertheless, as the Commission has already observed, the impacts of conduct such as the applicant's on the recruitment and retention of women to the NSW Police Force is self-evident, with or without the Broderick Report.
25. The Commission accepts that the Commissioner's case in response goes a considerable way to explaining the lengthy delay between the conclusion of the criminal proceedings against the applicant and his removal from the NSW Police Force. Indeed, the submissions were sufficient for the applicant's counsel to concede that the period should be described as lengthy rather than unexplained.
26. In totality, the submissions of the Commissioner in response do impact the balance reached after consideration of the applicant's case. They impact the balance because there is a rational basis, supported by relevant evidence, to explain how the applicant remained a working police officer for 12 months after the conclusion of the criminal proceedings against him.
27. Nevertheless, the Commission concludes they do not fully remove the doubt raised by the applicant as to the reasonableness of the removal, because the applicant continued as a police officer for 12 months after the conclusion of the criminal proceedings.
28. The Commissioner submitted that it would have been fair to put matters to Superintendent Driver about the delay between July 2021 and July 2022 and about the second delay between July 2022 and May 2023 if the applicant intended to rely on that delay in advancing his case. Otherwise, the Commissioner was effectively denied proper procedural fairness.
29. The Commission does not accept the Commissioner's argument in this respect. It was always part of the applicant's case that the delay in this period was unreasonable to the applicant. Indeed, the applicant's initial position was that this period was unexplained as well as excessive.
30. Superintendent Driver set out a history of the main events during each period. It was the Commissioner's task to lead evidence as to the reason for the delay, not the applicant's to fill in the gaps during cross examination.
31. In reaching this conclusion, the Commission observes that no explanation was provided by the Commissioner as to the delay between suspension and ultimate removal.

Harshness

1. In answer to the applicant's case that his removal was harsh, the Commissioner divided her submissions into two parts. The first dealt with proportionality, and the second with the applicant's "personal interests", which the Commission addresses here as submissions concerning harshness in the context of the applicant's personal circumstances.
2. Consideration of the same, or largely identical, issues is addressed separately below in specifically addressing the personal interests of the applicant and the public interest, as required by s 181F(3).
3. As to proportionality, the Commissioner set out part of the applicant's Written Submissions, being: "… the nature of the assault itself demonstrated it to be towards the bottom of the range of objective seriousness for the offence of common assault within the diversity of offences that the court sees and it was a one-off incident where a good behaviour bond without conviction was appropriate as punishment …" [Respondent's Outline of Submissions, paragraph 33]
4. The Commissioner made three submissions in response, being: 1. The applicant's submission has limited application in the context of the matter before the Commission because this is an employment matter rather than a criminal proceeding; 2. Sexual harassment does not require intent and can be constituted by "one-off incidents"; and 3. The misconduct should not properly be described as "one off", given that it occurred at two locations over a considerable period of time.
5. In answer to the applicant's case that the removal was disproportionate to the nature of the misconduct, and particularly in consideration of his 13-year career in the NSW Police Force and otherwise good character, the Commissioner firstly relied on the matters set out above at [153] - [158] in submitting that removal was not disproportionate.
6. The Commissioner also submitted that little weight should be placed on the applicant's character evidence and his assertions of his good work history subsequent to the misconduct in July 2019.
7. In this respect, the Commissioner relied on the evidence of Superintendent Vincent, who gave evidence of various incidents of disrespectful behaviour, specific actions constituting misconduct, and of the applicant being subjected to disciplinary action and extended supervision in the period between July 2019 and his suspension in July 2022.
8. Other than the submission that the misconduct extended over a period, and occurred at two separate locations, the submissions of the Commissioner are largely in line with observations made above by the Commission in considering the case presented by the applicant.
9. The Commissioner's submission against the misconduct being "one off", are accurate in their terms, but add little to the consideration already set out above.
10. It was clearly part of the Commissioner's consideration, as set out in the Statement of Reasons, that the misconduct extended over a period of time. That said, it was not suggested either in the Statement of Reasons or in proceedings before the Commission that any similar conduct had been engaged in by the applicant since July 2019.
11. The Commission's consideration above at [71] - [85] is also relevant as to whether the removal was harsh and does not need setting out again.
12. The Commission has concluded that the totality of the Commissioner's case as to the weight to be placed on the character evidence and the submitted good work history of the applicant since the misconduct in July 2019 adds little to the matters which the Commission must weigh up.
13. As already observed above at [103] - [116], the character evidence submitted on behalf of the applicant is largely positive, without persuading the Commission that it would be a significant factor.
14. There are several difficulties with the Commissioner's submissions as to the performance and conduct of the applicant in the period between July 2019 and July 2022.
15. The most fundamental of these is that, although they all predate applicant's removal, none of them are referenced in the Statement of Reasons.
16. Their absence, individually and collectively, from the Statement of Reasons makes it difficult to accept submissions from the Commissioner that any of them brought into question the applicant's character, challenged the applicant's integrity to continue serving as a police officer, established that he undermined his superiors, or that he engaged in unprofessional behaviour sufficient to be relevant to the Commission's consideration.
17. There is also difficulty in accepting many of the matters in the way submitted by the Commissioner. Some appeared to the Commission to be overstated, and others were found by the Commission to be unsustainable given that the Commissioner pressed them on the basis of "information and belief" of Superintendent Vincent, when more direct evidence, or at least supporting documentary evidence, appeared obviously available but was not before the Commission.
18. Some of them were either directly denied by the applicant, in circumstances where that denial was not seriously challenged, or were explained by the applicant such that the seriousness of events was plausibly challenged.
19. The Commission was left was left with the impression of a police officer under substantially greater scrutiny than usual, whose conduct was observed and recorded more closely than would ordinarily be expected, in circumstances where, because of the misconduct, criminal charges arising from them and the prospect of serious disciplinary outcomes, the applicant was operating under substantial stress.
20. The events, interactions and conduct described, when considering the totality of the evidence are consistent with a police officer who does not demonstrate exemplary conduct and behaviour but falls well short of demonstrating one whose conduct and behaviour would warrant removal for the conduct and behaviour in that period.
21. The Commissioner submitted that the evidence showed the applicant had undertaken no additional training or education on what constituted sexual harassment, appropriate workplace conduct and behaviour, or any other related matters, above that required by the NSW Police Force.
22. The Commissioner also submitted that the evidence demonstrated that the applicant had undertaken no further treatment relating to the consumption of alcohol beyond that undertaken because he was directed to by the NSW Police Force or under the supervision of his psychologist prior to the criminal proceedings.
23. Each of these submissions has force and relevance. The completion of such courses, evidence of further counselling, or of professional support to maintain a reduced consumption of alcohol would have been powerful evidence of the applicant's commitment to change.
24. The absence of such evidence, which the applicant conceded was because there was no such evidence to give, adds further to an impression that the applicant has struggled to understood the seriousness of the misconduct.
25. Given the conclusion set out above at [85], the applicant had not advanced a case, either for disproportionality or because of the impact of him in his personal circumstances, that raised sufficient doubts that the Commissioner would have needed to respond. Accordingly, while the Commission does not accept all of the Commissioner's response as to harshness, the Commission remains unpersuaded that the applicant's removal was harsh.

The interests of the applicant and the public interest - s 181F(3)

1. It is apparent from the structure of s 181F(3), especially given its context within the section more broadly, that the consideration of the applicant's interest and of the public interest is largely a consideration of competing interests.
2. That said, it is accepted that the public interest would not be universally adverse to the interests of an applicant. Several decisions of the Commission have considered the public interest to include the benefit to the public in the retention of trained and experienced police officers. The submission of the Commissioner that the public interest is always adverse to the interests of the applicant is not accepted by the Commission.
3. The Commission accepts the substance of the applicant's submission as to the way in which the competing interests should be considered by the Commission, and in particular the submissions made by the applicant as to consideration of the public interest. The Commission accepts that neither the public interest, nor that the fact that the Commissioner made the removal, should be elevated by definition above the interests of the applicant.
4. The Commission also accepts that the Police Act does not presume that the public interest will in every case require the Commission to uphold the removal.
5. Conversely the applicant's interest could not be elevated such that the ordinary consequences on a police officer of removal would require a finding that the officer's removal was harsh.
6. The Commission also accepts the applicant's submission that the requirement of a police officer to act with integrity cannot be interpreted with such rigidity that any transgression must lead to a removal being upheld.
7. The Commission considers that the matters set out at [81] - [85] properly and sufficiently take into account the applicant's interests and address the applicant's submissions as to the way which his interests should be taken into account by the Commission.
8. In this matter, the Commission considers that any public interest in retaining the applicant as a police officer, because of the expense invested in training him and in the benefits provided to the public because he has over a decade of experience, is counterbalanced by the public interest in recruiting and retaining the services of women as police officers.
9. Additionally, and specifically, it is counterbalanced by the loss of the service of the victim which, based on the evidence before the Commission, would be lost if the applicant is reinstated. While the applicant clearly has a substantially greater experience as a police officer than the victim, it is clear that the public interest would be on the side of retaining the victim over the perpetrator.
10. In this respect, the public interest clearly favours upholding the decision of the Commissioner to remove the applicant.
11. This compounds when consideration is given to the fact that the Commissioner removed the applicant. This is because of the reason that the Commissioner removed the applicant and the self-evident and positive impact that removal will have on the recruitment and retention of women as police officers.
12. Quite clearly the public interest is also advanced by Police Command action which supports workplaces in which workers can confidently expect that they will be free from sexual harassment.

Conclusion

1. The Commission considers that the totality of the matters set out above, and for the reasons set out, lead to the conclusion that only the question of the period between July 2021 and July 2022, where the applicant was performing his duties and the Commissioner allowed him to do so, and the period between July 2022 and his removal in May 2023, because of the delay itself, raise questions as to whether his removal was harsh, unreasonable or unjust.
2. The Commission has concluded that none of the other matters raised by the applicant raise sufficient doubt about his removal that the applicant has even an arguable case that he has discharged his onus. The Commission rejects any of these matters as a basis for finding his removal to be harsh, unreasonable or unjust. This is for the reasons set out above in considering the Commissioner's reasons and the case presented by the applicant.
3. The Commissioner's case in response rationally explains the process undertaken by Police Command between July 2021 and July 2022. It sets out that initially the Police Command response to the misconduct was consideration of disciplinary action short of removal. After more senior, and more central, members of Police Command considered the proposed disciplinary action they elevated the proposed action to consideration of the applicant's removal.
4. While this goes some way to explaining the length of time between completion of the court proceedings and the applicant's suspension for the final time it is ultimately inadequate in countering the cogent submissions of the applicant that he was left to perform the duties of a police officer for that period. This 12 month period was more than two years after the misconduct which led to his removal.
5. Although finely balanced, because of the nature of the misconduct, because he was on restricted and more tightly supervised duties, and because there was active consideration of the disciplinary action being taken against him, it is difficult for the Commission to accept that the Commissioner can have lost such confidence in the applicant's suitability to be a police officer and yet have left him performing those duties for 12 months before suspending him.
6. Absent the requirement for the Commission to specifically consider the public interest, and in particular that the Commissioner had removed the applicant, this would have resulted in a determination by the Commission that the applicant's removal was unreasonable. That is, that it was unreasonable for the Commissioner to remove the applicant for the reason that she had lost confidence in his ability to perform the duties of a police officer having left him to perform those duties for 12 months.
7. The Commission has taken into account the evidence of Superintendent Driver that when more central Police Command reviewed the proposed disciplinary action, they considered it inadequate and acted to take more serious disciplinary action and promptly suspended the applicant.
8. This action, though, is diminished in significance by the 10 months taken after that time to remove the applicant.
9. As is set out above, the public interest weighs heavily against a finding that the applicant has discharged the onus borne by him.
10. When the public interest is balanced in the consideration prescribed by s 181F as a whole, what would otherwise have been finely balanced in the applicant's favour tips in the Commissioner's favour. That is, when the public interest is incorporated in the consideration, the Commission concludes that the applicant's removal was not unreasonable.
11. Given that the Commission has, above at [208], determined that no other matters can lead to the removal being harsh, unreasonable or unjust, the application must be dismissed.

Order

1. The application for review is dismissed. C Muir Commissioner

Amendments 24 June 2024 - Typographical errors corrected in paragraphs [124] and [208] 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: 24 June 2024