Duncan v Commissioner of Police

Background

1. The background facts relevant to this matter are largely not in dispute.
2. The applicant is currently 50 years of age. He is divorced, lives by himself and jointly supports two children. He suffered from a stroke in 2016 and has been diagnosed with Post Traumatic Stress Disorder (PTSD).
3. On 18 July 2017, working in the Investigation Unit in the PSC, the applicant learned that DSC Milles was under investigation by the Manning Great Lakes Local Area Command in respect of an incident involving him at a licenced premises (the Milles investigation). At the time, the applicant had directly supervised DSC Milles for about six months and had known him as a work colleague for about three years. The applicant gave evidence that it was at the request of Acting Superintendents Glynn and Glasser that he agreed to act as a support person for DSC Milles. The investigation was initially being undertaken by CI Fidock.
4. The applicant gave evidence that after he had returned from a period of leave, DSC Milles approached him and told him that: 1. CI Fidock had verballed a number of witnesses in the investigation by suggesting to them that he had said or did certain things contrary to their recollection; 2. he was being pressured to give an electronic interview; and 3. he wanted to give his version of events but was concerned that he too would be verballed.
5. On 31 August 2017, CI Fidock emailed DSC Milles requesting he participate in a criminal interview, under caution in relation to the incident the subject of the investigation.
6. On 4 September 2017, DCS Milles responded, asking CI Fidock to outline the allegations as well as provide details regarding the complainant of the alleged offence.
7. On 6 September 2017, CI Fidock emailed a response providing further details of the allegations as follows: The people allegedly intimidated were the supervisor at the Tuncurry Bowling Club, this is the person you referred to as the little bloke who had cancer when we spoke last week, at the Bellevue, the employee of the premises. Offensive conduct I am investigating the allegation of your actions, and language allegedly used by yourself at either location prior and during the times you were left the premises. Fail to quit licensed premises, I am investigating the allegation of whether your actions, movement, or getting involved in other incidents while moving out of the premises, may constitute an offence. I hope that this helps you in your decision making.
8. The applicant gave evidence that also on 6 September 2017, DSC Milles approached him again complaining that: 1. he had been verballed by the CI Fiddock in respect of a telephone call he had with him; 2. the investigation was not being conducted fairly; 3. he was concerned about the integrity of CI Fidock; 4. he may need to do a written response; and 5. he was being pressured to give an interview but he could not trust CI Fidock to not "lie like this".
9. The applicant gave evidence that DSC Milles complained on more than one occasion over the next week with words to the effect, "I am genuinely concerned that if I go into an interview with Chief Inspector Fidock, he will later attribute words to me that weren't said by me, either prior to or after the electronic recording that would be adverse in nature. It is my clear preference to respond to the allegations in writing."
10. On 12 September 2017 at 5:36 am, DSC Milles emailed CI Fidock expressing dissatisfaction with the specifics of the information supplied about the allegations and declining to be interviewed or to provide a response. The applicant was copied into this email.
11. The applicant gave evidence that on 12 September 2017, DCS Milles told him that he had asked for and had not received more details about the allegations from CI Fidock and he needed these to give a written response.
12. On 12 September 2017 at 9:04 am, the applicant sent an email to CI Fidock, copying DCS Milles in the following terms (the 12 September email): I act as Detective Senior Constable Milles support person in these matters. Detective Senior Constable Milles will give careful consideration to responding to the allegations in these matters. To do this, he understandably requires the full extent of the allegations be outlined to him. His preference is to provide you with a written response to the allegations rather than participate in an electronic interview. This is a choice available to him and procedural fairness. There are a number of issues of concern within these matters that Detective Senior Constable Milles would like to place on the record once he has had the opportunity to read the full extent of the allegations. I would respectively (sic) request that you forward the interview questions you have prepared/will prepare to Detective Senior Constable Milles outlining the full nature and extent of the allegations and any CCTV footage that is relied upon in these matters for his consideration.
13. On 13 September 2017, AC Thurtell (then the Manning Great Lakes Area Command Commander) wrote to the applicant in an email titled, "Your email to Chief Inspector Allan Fidock". After setting out the 12 September email as contained in the paragraph above, he stated: Senior Constable Milles is well aware that the matters for which is currently being investigated are criminal matters and therefore the investigation is an evidence based criminal investigation and not subject to procedural fairness as provided for in Part 8A complaint investigations. It is also not standard criminal investigation practice to provide a person of interest with 'interview questions or 'CCTV footage' in order for the person of interest to determine whether or not they are prepared to be interviewed or respond to the allegations. As the Commander of the Manning Great Lakes LAC, I am satisfied that the Notice to Interview and subsequent information provided to Milles is sufficient for him to decide whether or not he wishes to participate in a record of interview or whether or not he should seek appropriate legal advice. Finally, I like to comment on your decision to send the investigating officer an email. As a senior investigator with Professional Standards Command, I find it extraordinary that you would make direct contact with an investigating officer in a veiled attempt to influence the investigator to provide information to an officer under investigation for criminal offences. Whilst you have indicated that you are the officers 'Support Person' the role of the support person does not extend to communicating with the investigator officer, in fact the Support Package clearly states, 'As a general rule police officers are not prohibited from being a support person to a police colleague during a criminal interview. However it is preferable that the support person is not a police officer due to the potential for a conflict of interest, or a perception thereof, to arise.' In my view you should have been aware that your actions were not only inappropriate but could have influenced a fellow officer to act outside of standard criminal investigation practices and potentially damage the prospects of a successful prosecution. My concern is such that I have included Assistant Commissioner Jones and Detective Superintendent Lewis in this email. (The emphasise appears as it did in the email)
14. On 21 September 2017, the applicant responded to the email above directly to AC Thurtell, after seeking permission to do so from Acting Assistant Commissioner Jones on 18 September 2017, though not showing him the contents of the communication at that time. Given the centrality of this correspondence to the matter before the Commission, it is set out below in full (the applicant's Report): ISSUE: Response to email from Superintendent Thurtell dated 13 September, 2017. BACKGROUND: About 11 September, 2017 Detective Senior Constable Milles approached me with concerns about the current investigation being conducted by the Manning Great Lakes Local Area Command. He approached me in my capacity as his Supervisor and his Support Person within this internal investigation of which he is the Subject Officer. At this date I was aware that on 29 August, 2017 Detective Senior Constable Milles had been asked by the investigating officer Chief Inspector Fidock to participate in an interview "regarding the complaints against you." I was also aware that on 4 September, 2017 Detective Senior Constable Milles had written to Chief Inspector Fidock requesting that he "outline the allegations in relation to the offences listed in your notice to interview." Detective Senior Constable Milles further requested of Chief Inspector Fidock, "Could you tell me who and how it Is alleged that I have intimidated somebody on the nights in question?", "What is the alleged offensive conduct?" and "How have I allegedly refused to quit a licensed premise?" Detective Senior Constable Milles further indicated within this email that he will utilise this information to "determine in consultation with my legal representatives whether I wish to be criminally interviewed." On 6 September I am aware that Chief Inspector Fidock replied to Senior Constable Milles. I was later shown this reply by Detective Senior Constable Milles. The reply from Chief Inspector Fidock was, "The people allegedly intimidated were the supervisor at The Tuncurry Bowling Club, this is the person you referred to as the little bloke who had cancer when we spoke last week, at the Bellevue, the employee of the premises." Offensive conduct I am investigating the allegations of your actions, and language allegedly used by yourself at either location prior and during the times you were left the premises. Fail to quit licensed premises, I am investigating the allegation of whether your actions, movement or getting involved in other incidents whilst moving out of the premises, may constitute an offence." This information supplied by Chief Inspector Fidock provides little or no response to Detective Senior Constable Milles reasonable and fair request on 4 September, 2017 to provide further details about "how it is alleged that I have intimidated somebody on the nights in question", "what is the alleged offensive conduct?" and "How I have allegedly refused to quit a licensed premise?" The responses by Chief Inspector Fidock are essentially 'motherhood' statements reaffirming the offences being investigated without providing any details of the alleged 'words or actions utilised' by Detective Senior Constable Milles at the time of the incidents. The alleged 'words or actions utilised' by Detective Senior Constable Milles are the salient matters within these criminal allegations. The apparent reluctance by Chief Inspector Fidock to transparently outline the alleged 'words or actions' used by Detective Senior Constable Milles understandably did not further Detective Senior Constable Milles knowledge of the nature of the allegations or assist in his decision making as to whether to provide a response to these allegations. About 11 September, 2017 Detective Senior Constable Milles briefed me on a phone conversation he had with Chief Inspector Fidock on 29 August, 2017. Detective Senior Constable Milles was very concerned about the dishonesty of Chief Inspector Fidock within Chief Inspector Fidock's email response to him on 6 September, 2017 specifically the words attributed to him by Chief Inspector Fidock, "..this is the person you referred to as the little bloke who had cancer when we spoke last week..." Detective Senior Constable Milles was shocked at this statement attributed to him by Chief Inspector Fidock and said to me that this was a complete fabrication by Chief Inspector Fidock. Detective Senior Constable Milles said to me, "How could I trust him or go into an interview with him if he can lie like this?" Detective Senior Constable Milles said "I don't even know the bloke he's talking about I've never even met him before. I don't usually drink at that club." Detective Senior Constable Milles made contemporaneous notes of this phone conversation with Chief Inspector Fidock on 29 August, 2017 which I have viewed. This alleged dishonesty is in breach of Point 1 of the NSWPF Code of Conduct that an "employee of the NSW Police Force must behave honestly and in a way that upholds the values and reputation of the NSW Police Force whether on or off duty." This allegedly false statement by Chief Inspector Fidock if utilised within any future court proceedings could also amount to a criminal offence such as Perjury or Perverting the Course of Justice. I read the email sent by Chief Inspector Fidock to Detective Senior Constable Milles on the 6 September, 2017. I immediately identified that Chief Inspector Fidock did not formally or informally address Detective Senior Constable Milles in his reply. I would submit this demonstrates a distinct lack of respect for Detective Senior Constable Milles by Chief Inspector Fidock. Detective Senior Constable Milles and Chief Inspector Fidock are not corresponding as current work colleagues or former work colleagues. Detective Senior Constable Milles is the subject of criminal allegations being investigated by Chief Inspector Fidock which have the potential to impact on his employment status. In these circumstances the failure by Chief Inspector Fidock to utilise Detective Senior Constable Milles title and/or name within his response to Detective Senior Constable Milles on 6 September, 2017 demonstrates a lack of respect and courtesy which is a breach of Point 4 of the NSWPF Code of Conduct. I would further submit that this lack of respect and courtesy is indicative of Chief Inspector Fidock's decision not to furnish Detective Senior Constable Milles with the details of the allegations specifically the alleged 'words or actions utilised' by Detective Senior Constable Milles. I have had a number of conversations with Detective Senior Constable Milles in relation to his concerns about the dishonesty of Chief Inspector Fidock. Detective Senior Constable Milles indicated that he wished to provide his version of events within these criminal allegations but was distrusting of proceeding to an interview situation with Chief Inspector Fidock given the previous false statement that Chief Inspector Fidock attributed to Detective Senior Constable Milles. At this time Detective Senior Constable Milles indicated he did not wish for me to raise this matter as a complaint issue. In these circumstances, I suggested to Detective Senior Constable Milles that as an alternative he provide a written submission in response to the allegations. It has been previously outlined that the fundamentals of these allegations being the alleged 'words or action utilised' by Detective Senior Constable Milles despite a written request by Detective Senior Constable Milles to Chief Inspector Fidock have not been supplied by Chief Inspector Fidock. Detective Senior Constable Milles indicated to me that whilst he was reluctant to have any further interaction with Chief Inspector Fidock and that he would prefer to make a written statement about these allegations once he had been provided with the specific allegations. The New South Wales Police guidelines on 'Questioning Suspects' confirms on page 7 that Detective Senior Constable Milles is not obliged to participate or provide his responses within an electronically recorded interview if he refuses to have the questions electronically recorded. Further on page 16 of these guidelines under the heading Statements instructs investigating police, "If someone wants to hand you a prepared statement, either from themselves or their legal representative, accept it." It is a clear impediment to obtaining an accurate, fair and thorough response to these allegations from Detective Senior Constable Milles by not providing him with the allegations outlining at least "the words or actions utilised" by himself as he has requested. On page 2 of this document it describes the importance of fairness within the criminal interview process stating, "Once a suspect makes it clear that they will not answer anymore questions, as a matter of fairness to them, put the details of the allegations to them (e.g In fairness to you I am going to put the allegation to you. Do you understand that?" In the circumstances described I would suggest that this requirement for fairness should be no different given Detective Senior Constable Milles decision to provide a written submission to the allegations. On 12 September, 2017 Detective Senior Constable Milles again requested via email to Chief Inspector Fidock that he specify the nature of the allegations that he was investigating. Detective Senior Constable Milles also rebutted in writing Chief Inspector Fidock's previous reference to "the little bloke who had cancer'' telling him that this reference "certainly did not come from me during our conversation on the 29/8/17.'' This is reflective of the seriousness that Detective Senior Constable Milles held Chief Inspector Fidock's alleged false statement. Detective Senior Constable Milles indicates his willingness to supply a version of events "either through a record of interview or a written response to your allegations. However as procedural fairness dictates I need to know what those allegations are prior to such version being supplied." Whilst this is indeed a criminal investigation, Detective Senior Constable Milles is legally entitled to decline the offer of an electronic interview and make a written response to the allegations. It is inherent fairness that the accuracy and thoroughness of this written response is assisted by a reasonable description of the allegations being made against Detective Senior Constable Milles as opposed to the general overview of the offences provided by Chief Inspector Fidock. In the NSWP document Introduction to Evidence authored by now Superintendent Dickson page 10 states, "Relevance, reliability and fairness are the cornerstones of admissibility." How can Detective Senior Constable Milles prepare a written response without knowledge of the specific words that are alleged to have been used by him when he allegedly intimidated someone, used offensive conduct or failed to quit licensed premises? I would submit that the court would view this as inherently unfair in denying him the opportunity to respond to these allegations in his preferred written format without the knowledge of the 'words or actions' he is alleged to have utilised. The basis of NSWP criminal investigators training has been for many years been advanced as 'a search for the truth.' The Brief Preparation Guide published by the NSWP Education and Training Command May 2017 states on page 20, "Exculpatory evidence is evidence which tends to disprove or negate a conclusion you have reached. It may assist a subject's case and go towards disproving your case. It may be the 'spanner in the works' which throws doubt on other evidence you have complied." Detective Senior Constable Milles is being denied the opportunity of providing what may well be exculpatory evidence. There is a clear reluctance exhibited by the Manning Great Lakes Local Area Command to allow Detective Senior Constable Milles the opportunity to provide his version of events in his chosen written format with details that are sufficient for him to supply an accurate and thorough version of events. It is submitted that if this was the genuine consideration of Manning Great Lakes Local Area Command in this instance they would provide Detective Senior Constable Milles with sufficient information to provide an accurate and thorough written response to these allegations. It is apparent that there is reluctance to unearth the truth by allowing Detective Senior Constable Milles to provide a considered written response to the allegations. This process was in fact conducted and endorsed by the Professional Standards Command within a criminal allegation the author had in mid 2015 when a written response to a criminal allegation was both allowed and taken into consideration rather than an electronically recorded interview. The NSWP Brief Preparation Guide states on page 20, "As an investigator you must not only search for the truth, you must remain a lateral thinker. Generally police investigate evidence which implicates the accused. When they do receive evidence that tends to indicate innocence they must investigate that evidence." Detective Senior Constable Milles is being denied legal and procedural fairness by the deliberate withholding of the salient details of the allegations by the Manning Great Lakes Local Area Command which prevents him from formulating an informed written response. In terms of the concerns raised by Detective Senior Constable Milles about the integrity of the investigation by Chief Inspector Fidock, his lack of meaningful response and discourteous manner of the reply to Detective Senior Constable Milles on 6 September, 2017 I decided to write to Chief Inspector Fidock on 12 September, 2017 on behalf of Detective Senior Constable Miles. This email is outlined with Superintendent Thurtell's email to myself, Acting Assistant Commissioner Jones and Detective A/Chief Superintendent Lewis on 13 September, 2017. This email was courteous in nature and did not raise any of the previous integrity concerns with Chief Inspector Fidock that I had been appraised of by Detective Senior Constable Milles. My email states in part, "To do this, he understandably requires the full extent of the allegations be outlined to him. His preference is to provide you with a written response to the allegations rather than participate in an electronic interview. This is a choice available to him and procedural fairness." In terms of your comment that "it is not standard criminal investigation practice to provide a person of interest with 'interview question or CCTV footage' in order for the person of interest to determine whether or not they are prepared to be interviewed or respond to the allegations." It is agreed this is the case although given the circumstances and information previously outlined there is either no legal or policy restrictions to supplying the details requested to enable an accurate and thorough written response to the allegations. This should be in the interest of gathering all relevant information within the investigation or searching for the truth. Further, there is nothing improper about requesting this material which will clearly only increase the accuracy and thoroughness of the written response by Detective Senior Constable Milles. This is the same material that would be provided to Detective Senior Constable Milles within an ERlSP interview and not something he should be disadvantaged by should he elect to provide a written response as he is legally and procedurally entitled to do. The apparent reluctance to provide this information by the Manning Great Lakes Local Area Command cannot be over concerns in regards to the identification of witnesses given Chief Inspector Fidock's detailing of a witness as "Supervisor at the Tuncurry Bowling Club...". Detective Senior Constable Milles has been entered into an Interim Risk Management Plan with conditions not to attend the Tuncurry Bowling Club or the Bellevue Hotel Tuncurry which provides the necessary risk management to protect witnesses from those establishments together with the inherent legislative protections. The motive can further not be that there are concerns about Detective Senior Constable Milles 'taking flight' once he is appraised of the allegations as may be the case within 'standard criminal investigations.' Superintendent Thurtell indicates that he is "satisfied that the Notice to Interview and subsequent information provided to Milles is sufficient for him to decide whether or not he wishes to participate in a record of interview..." The information supplied thus far by Chief Inspector Fidock does not outline the salient issues within these allegations being the 'words or actions' alleged to have been used by Detective Senior Constable Milles by the witnesses to enable him to provide an accurate and thorough written response. Detective Senior Constable Milles is being prevented the obvious fairness from confirming or denying these allegations and more than likely presenting the investigator with further avenues of investigation prior to the consideration of prosecution. It [is] logical that the more information provided by the Manning Great Lakes Local Area Command can only enhance the accuracy of the written response by Detective Senior Constable Milles and accordingly the information that may be put before Legal Services or the New South Wales Office of Director of Public Prosecutions responsible for adjudicating on criminal charges or the courts. I understand you were not aware of the integrity concerns surrounding Chief Inspector Fidock and the according reluctance by Detective Senior Constable Milles to participate in an electronic interview with Chief Inspector Fidock at the time the email from myself was sent to Chief Inspector Fidock on the 12 September, 2017 or at the time of writing your reply to myself on 13 September, 2017. It was not an issue that Detective Senior Constable Milles wished to raise as a complaint issue at the time. In terms of your statement that you find it "extraordinary that you would make direct contact with an investigating officer in a veiled attempt to influence the investigator to provide information to an officer under investigation for criminal offences." In the circumstances outlined there is nothing procedurally or legally that prevents Chief Inspector Fidock from supplying the requested information in the circumstances that Detective Senior Constable Milles wishes to submit an accurate and thorough written response to these allegations. In fact, if he and the Manning Great Lakes Local Area Command genuinely wished to obtain all available versions of the alleged events for consideration of whether to commence legal proceedings they should be encouraging this written response with the provision of the requested information in a genuine attempt to put all available information before the court if Detective Senior Constable Milles is to be charged. The role of the investigator is to 'gather all available evidence' not just evidence that may lead to a "successful prosecution." There is also nothing procedurally or legally improper for myself or Detective Senior Constable Milles to request this information. It is apparent that you are of the mistaken belief that the only way a person under criminal investigation can respond to criminal allegations is by participating in an electronically recorded interview. I am not aware of any legislation that states that an accused person shall be deliberately provided with less information to prepare an accurate and thorough written response to criminal allegations should they elect to provide a written response to those criminal allegations than if they were to participate in an electronically recorded interview. It is apparent that this view is not held by the Manning Great Lakes Local Area Command in the circumstances and in my view actively diminishes the opportunity for the court to hear Detective Senior Constable Milles version of events and damages the fairness and integrity of the investigation. What is the motive for holding back the nature of the allegations that would otherwise be given freely within an electronically recorded interview other than it is deemed as "outside of standard criminal investigation practices." Hypothetically, Detective Senior Constable Milles could agree to participate within an electronically recorded interview and be informed of all of the salient details of these allegations that he has requested whilst electing not to answer questions. It would then be open for Detective Senior Constable Milles to provide his preferred written response at a date after that electronically recorded interview. In these circumstances I am an unaware of the rationale behind the current position of the Manning Great Lakes Local Area Command to deny Detective Senior Constable Milles the details of these allegations. You make further adverse comment on my role as a Support Person for Detective Senior Constable Milles. There is no policy that prevents myself from performing that role, in fact The (sic) policy states "it is preferable that the Support Person is not a police officer due to the potential for a conflict of interest, or a perception thereof, to arise." In almost four years at the Investigations Unit Professional Standards Command and involvement in many investigations I have not seen a person performing the role of a Support Person for a police officer under investigation who is not themselves a police officer. There is no 'conflict of interest' or potential perception of a 'conflict of interest' to arise for myself in this matter. I am not involved in the criminal investigation in anyway, I am not a witness, I do not know any of the witnesses, there is no potential for me to be involved with the witnesses within my policing duties nor do I know or have ever met Chief Inspector Fidock. I have no personal relationship with Detective Senior Constable Milles or have ever socialised with him whilst off duty. The claims that my "actions were not only inappropriate but could have influenced a fellow officer to act outside of standard criminal investigation practices and potentially damage the prospects of a successful prosecution" are ludicrous. The clear intent of my email to Chief Inspector Fidock on 12 September, 2017 was partly in response to integrity concerns raised to me by Detective Senior Constable Milles and also to request the "full extent of the allegations be outlined to him (Detective Senior Constable Milles)" to enable fairness during the preparation of a written response to the allegations. As documented, a written response to the allegations is a procedural and legal entitlement available to Detective Senior Constable Milles in these circumstances and it is inconsequential whether or not a written response is considered "outside of standard criminal investigation practices." The allegation that this email was "inappropriate but could have influenced a fellow officer to act outside of standard criminal Investigation practices".... is flawed with this evidenced in the comment that this could "...potentially damage the prospects of a successful conviction." The aim of any criminal investigation is to 'search for the truth' and to put all available information and evidence before the NSW Office Department of Public Prosecutions to consider criminal prosecution and later the court that has jurisdiction over the matter. This will not be possible without Detective Senior Constable Milles being given the opportunity of being appraised of the 'words and actions' leading to the allegations and allowed to respond in his chosen written format. It is apparent that Manning Great Lakes Local Area Command is focussed on securing a conviction at the expense of 'searching for the truth' and placing all available information before NSW ODPP for the determination of criminals (sic) charges or ultimately the court system. l would submit that contrary to claims that my actions may damage "the prospects of a successful prosecution" that my request to Chief Inspector Fidock if fairness is considered may indeed save the New South Wales Police Force embarrassment at any future court proceedings. Detective Senior Constable Milles will be represented by Mr Ken Madden should this matter proceed to court. On what basis would representatives of the Manning Great Lakes Local Area Command provide evidence that it was a 'fair' decision not to outline the salient fundamental issues within this criminal investigation to heighten the accuracy and thoroughness of Detective Senior Constable Milles written response? These are the same issues that would be outlined to a further degree within any electronically record of interview. It is inherently unfair that the determining entity for criminal prosecution or the courts are denied the opportunity of hearing Detective Senior Constable Milles informed version of events. The NSWP Brief Preparation Guide published by the Education and Training Command further provides direction to 'Officer in charge of cases' in terms of 'Disclosing Relevant Material.' It states, "You have a duty to tell the police prosecutor or DPP about any relevant information, documents or other things obtained during an investigation, or which come into your possession, that are not contained in the brief of evidence and that might reasonably be expected to assist the case for the prosecution or the case for the accused." If the Manning Great Lakes Local Area Command continue to deny Detective Senior Constable Milles the opportunity to be provided with the salient matters within these allegations and thus deliberately frustrate a thorough and accurate written response to these allegations will this fact be disclosed to the ODPP as 'relevant information'? On what basis can this be justified given that it is Detective Senior Constable Milles belief that such a written response aided by the provision of the accurate allegations will assist his case? The integrity concerns surrounding Chief Inspector Fidock and raised by Detective Senior Constable Milles have been further supported with information received by Detective Senior Constable Milles' wife. On Monday 18 September, 2017 Detective Senior Constable Milles reported to me that his wife informed him that she was approached by a witness in this matter who had met with Chief Inspector Fidock and that Chief Inspector Fidock had attempted to "put words in his mouth" specifically stating "did you hear him say you're a dog or a cunt.' This is a clear attempt to 'lead' the witness and influence their recollection of events rather than obtaining an independent account of the circumstances. The integrity of this investigation is further questionable given this information and the previous information supplied by Detective Senior Constable Milles. I would submit that Chief Inspector Fidock's alleged conduct is reflective of the Manning Great Lakes Local Area Command focus on securing a "successful prosecution" at the expense of conducting a fair investigation and 'searching for the truth' to enable all relevant, reliable and fairly gathered evidence to be assessed by the Office of Director Public Prosecutions and/or the courts. The NSWP 'Support Package for police officers interviewed in relation to a complaint' states that "Subject Officers are entitled to have complaints made against them dealt with in a swift, fair, impartial and equitable manner." In the circumstances l would submit that the denial of the opportunity for Detective Senior Constable Milles to examine the salient issues within these criminal allegations and provide a written response is not fair or equitable. Further, it is not impartial as the NSW ODPP will not have the benefit of making a fair and informed determination on this matter with the information that Detective Senior Constable Milles will provide once he is appraised of the full nature of the allegations. The NSWPF 'Support Package for police officers interviewed in relation to a complaint' states on page 7, "Procedural fairness is not owed to everyone involved in the Part 8A investigation. The obligation generally arises only in relation to those people for who statements or conclusions in an investigation report, or decisions arising out of an investigation might affect a right or interest." It is argued that any response given by Detective Senior Constable Milles to these criminal allegations can and would be utilised lawfully for the ensuing departmental investigation should this matter not proceed criminally or should Detective Senior Constable Milles not be convicted at court. There is no doubt that in these circumstances this matter would proceed as a departmental investigation. The real potential for any response to these criminal allegations to be utilised departmentally dictates that Detective Senior Constable Milles should be afforded the additional protection of 'procedural fairness' in that it is entirely possible that the "statements or conclusions in an investigation report, or decisions arising out of (this) investigation, might affect (his) right or interest. This right or interest being Detective Senior Constable Milles employment with the possibilities for a sustained departmental finding ranging from the loss of an increment to dismissal. I am personally aware and have been appraised by members of the Investigations Unit, PSC of a number of investigations where this has been the case. I would ask if the Manning Great Lakes Commander is in a position to provide a written guarantee to Detective Senior Constable Milles that any response he provides to this criminal allegation will not be later utilised within departmental proceedings? If this is not the case, Detective Senior Constable Milles should be rightfully afforded the key features of procedural fairness that exist during a Part 8A complaint investigation being (page 7 NSWPF 'Support Package for police officers interviewed in relation to a complaint); "1. The subject officer will be given the opportunity of examining the allegations (evidence adverse to the officer) and at least the substance of any proposed adverse comment or finding, before the investigator finalise the matter." The Common Law duty imposed on decision makers to comply with Procedural Fairness for police officers under investigation requires investigators, "..to act fairly in the making of administrative decisions which affect a person's rights, interests and legitimate expectations. The duty to afford procedural fairness exists unless there is a specific statutory removal of that right." (Page 5 NSWP 'Guidelines on procedural fairness & Part 8A evidence based investigations). Further within this document page 7 a ruling by Lord Lorebum in the case of Board of Education v Rice (1911) AC 179 is quoted as requiring investigators to "fairly listen to both sides" being "a duty lying upon everyone who decides anything." I would submit that this notion of 'fairness' and 'listening to both sides' will not be met with the continual denial of Detective Senior Constable Milles request for details of the allegations. On page 6 of this document it provides further guidelines for investigating officers in terms of 'disclosure to the subject officer of all relevant material before making a decision (that affects a person's rights or interest)." This supports Detective Senior Constable Milles requests to be supplied with reasonable and fair details of the allegations that he is currently subject to in order to prepare both an accurate and thorough response to these allegations in the circumstances that any response supplied is likely to be used administratively at a later date within a departmental investigation. It states, "The best way to test the reliability or credibility of information collected during the investigation is to disclose the allegations and the relevant evidence relied upon to form provisional conclusions to the affected person in advance of a final decision. The subject officer must be provided with information, in sufficient detail to enable the officer to understand the allegations being made, the evidence gathered in support of the allegations and at least the substance of proposed adverse comment. They must be given the opportunity to make a full and proper response, before any finding of fact is made." This continues, "For an investigator or decision maker, this step is an important means of checking facts and of identifying major issues. Comments made by the subject officer may provide an innocent explanation for the facts and/or expose any weaknesses in the investigation, the decision making process or the information on which a decision is to be based. This can assist in avoiding later embarrassment and will provide advance warning on which the investigation report or decision is likely to be challenged." I would suggest these principals of 'fairness' should be applicable within this matter involving the allegations against Detective Senior Constable Milles given that any written response provided by Detective Senior Constable Milles is highly likely to be utilised within any departmental Investigation arising should the criminal complaints not proceed or be dismissed at court. This departmental investigation has the real potential to affect the 'rights and interests' of Detective Senior Constable Milles employment status. In these circumstances Detective Senior Constable Milles should be afforded the opportunity to respond knowing the full extent of the allegations against him. I am aware of a number of serious inadequacies within this investigation that have the potential to cause embarrassment to the New South Wales Police Force in addition to the issues I have documented. However, given the accusation that my actions have been described albeit erroneously as a "veiled attempt to influence the investigator to provide information to an officer under investigation for criminal offences" and that I have acted outside my capacity as a Support Person/Supervisor I will not further document these at this stage. I would further state that I am completely unaware of the circumstances that took place during the allegations that have been made. I do not support misconduct by police officers or Detective Senior Constable Milles. My involvement in this matter is purely to 'speak up' about issues that I perceive involve in general terms unfairness to Detective Senior Constable Milles. The Respectful Workplace Behaviours Policy Statement "encourages a 'speak up' culture in which employees feel safe to raise issues and 'listen culture' in which employees are encouraged to seek out alternative views to their own." I do not wish to enter into any further 'debate' about these issues with the Manning Great Lakes Local Area Command I have raised. I am accepting of their determination and/or action with the knowledge that Detective Senior Constable Milles has alternate avenues to address his concerns now that these matters have been placed on the record. Regards Rob Duncan Detective Chief Inspector Investigations Unit 21 September, 2017 (the emphasise appears as it does in the applicant's Report)
15. On 26 September 2017, after receiving the applicant's Report, AC Thurtell created his own report titled "Formal complaint against Chief Inspector Robert Duncan attached to Professional Standards Command", which he forwarded to his Commander at the time. In his report, AC Thurtell made a formal complaint about the conduct of the applicant in producing the applicant's Report and recommended that it be forwarded to the Commander of the PSC. He further recommended that the allegations against him and CI Fidock be provided to the Professional Standards Unit at Northern Region for their consideration and potential investigation.
16. From June 2018, the applicant performed duty as a Chief Inspector/Duty Officer in uniform at the Eastern Suburbs Police Area Command pursuant to an Interim Risk Management Plan (the IRM Plan).
17. On 13 June 2018, DCI Duncan was served with a notice under s 173(5) of the Police Act indicating that Assistant Commissioner Lanyon (AC Lanyon) (subsequently promoted to Deputy Commissioner) was considering making a reviewable order against the applicant (the First Notice).
18. A further notice was served pursuant to s 173(5) upon the applicant on 12 July 2018 signed by AC Lanyon (the Second Notice). The Second Notice was issued after the applicant raised concern with the content of the First Notice, as there was a reference to historical misconduct that was in error.
19. The Second Notice alleged that the applicant had misused NSW Police Force (NSWPF) property (by using a NSWPF issued phone for personal use when on personal leave), hindered a criminal investigation and sending an unprofessional email to CI Fidock (in reference to the 12 September email), and a further unprofessional report to (then) Superintendent Peter Thurtell (in reference to the applicant's Report).
20. Through his solicitors, the applicant responded to the Second Notice at considerable length on 17 August 2018 and additionally providing further character references on 20 August 2018. These responses were addressed to Deputy Commissioner Hudson (DC Hudson) as the applicant alleged that the AC Lanyon had an actual and perceived conflict of interest.
21. On 15 February 2019, the applicant attended a meeting with respect to the allegations in the Second Notice with DC Hudson. Also in attendance at the meeting was Inspector Ryan, DC Hudson's staff officer and Sergeant McCrystal. The applicant and Sergeant McCrystal gave evidence that at this meeting DC Hudson: 1. confirmed that the allegation relating to the use of a NSWPF phone would not be sustained; 2. the allegations relating to his involvement in the Milles investigation would be sustained; 3. said that it was good to see the applicant "sticking up" for junior police; 4. if somebody rung him and told him how to do something, he would tell them "to get fucked" and that he did not believe the applicant had the capacity to interfere with the Milles investigation; and 5. in response to the applicant asserting that he had been targeted by the IRM Plan, in support of the applicant, said that the reasons for the IRM Plan were "a load of shit" and that the applicant was "in charge of 'kids' without supervision."
22. The applicant tendered into evidence a document authored by DC Hudson dated 15 February 2019 titled, "Review of complaint matters P1700004 and P1703296 relating to Detective Chief Inspector John (sic) Duncan of the Professional Standards Command" (the DC Hudson Memo). The DC Hudson Memo sets out that he agreed to review the matter after the applicant gave an undertaking that he would not raise a conflict of interest with him through his solicitors. The DC Hudson Memo documents his view that: 1. the allegation of misuse of a work issued mobile was unduly harsh; and 2. the allegations relating to the applicant's interference with the Milles investigation was sustained.
23. However, relevant to the applicant's case, DC Hudson made the following statements in the DC Hudson Memo: I do however question his ultimate ability to influence the manner in which the complaint was conducted or influence the eventual outcome. He has communicated, albeit perhaps inappropriately, with a peer of equal rank. Whilst I consider this approach unprofessional, as any perceived issues with the conduct of the investigation should have been communicated in a different manner, I question his ability to influence the investigation and the findings made regarding same. I would ask that this finding made as a result of his behaviour is reviewed to ensure the delegate is comfortable with such a finding being sustained. ……… Detective Chief Inspector Duncan accepted that he needed to be transferred from PSC. He indicated he was happy to work with the Commander of PSC to identify a suitable location. Recommendation: Forwarded for reconsideration by the Internal Review Panel or Commander PSC as delegate.
24. On 14 March 2019, a further order was served upon the applicant's solicitors pursuant to s 173(2) of the Police Act signed by AC Talbot, as she had been asked by DC Hudson to act as the Commissioner's delegate in regards to the matter (the Final Order). The Final Order declared that she was satisfied that the applicant had acted unprofessionally as set out above at [3]-[4].
25. The Final Order made clear that the allegation relating to the misuse of NSWPF property (mobile phone for personal use) was no longer being pursued and documented the findings of AC Talbot that the applicant's conduct was contrary to the Police Act and the following NSWPF Policies (Policies); 1. the Guidelines for NSW Police Force Employees providing support during police complaint investigations 2015, Support Persons; 2. the NSW Police Force Code of Conduct and Ethics; and 3. the NSW Police Force Conflict of Interest Policy.
26. For ease of reference, I set the aspects of the Police Act and Policies relied upon by the respondent in the Final Order below.
27. Section 7 of the Police Act provides: 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, …….. (g) makes efficient and economical use of public resources, (h) ensures that authority is exercised responsibly
28. The Guidelines for NSW Police Force employees providing support during police complaint investigations states: Clause 1.1 Setting boundaries Your role is not to provide legal advice or gather information that may exonerate the employee you are supporting. In most cases these issues will not arise, however, it is very important that you know the boundaries of your role so as not to put yourself in a position where your role as a support person is compromised. You can seek advice and guidance from your professional standards duty officer (PSDO), professional standards manager (PSM) or equivalent and / or the Professional Standards Command (PSC).
29. The NSW Police Force Code of Conduct and Ethics provides at Point 1: 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. You must act honestly, truthfully and with integrity in all of your dealings with other employees and the public.
30. Point 3 of the NSW Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must know and comply with all policies, procedures and guidelines that relate to their duties. If you are going to work lawfully and effectively you need to understand and act in accordance with the standards that govern your duties. The NSW Police Force has a responsibility to ensure all employees know and understand the requirements of their job by providing access to training and advice as well as documented policies, procedures and guidelines. Employees are also responsible for their own professional development and education. This includes maintaining an up to date knowledge of relevant policies, procedures and guidelines and applying them appropriately. All NSW Police Force policies, procedures and guidelines are available through the NSW Police Force Intranet or in your workplace.
31. 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.
32. Point 7 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must take responsibility to avoid conflicts of interest, report those that cannot be avoided and co-operate in their management.
33. The NSW Police Force Conflict of Interest Policy relevantly states: A conflict of interest occurs when the private interests of a NSW Police Force employee interferes with or influences, or appears to interfere with or influence their official duties and responsibilities or where an employee uses their official status to influence private interests. Where a conflict of interest arises you are required to put the public interest before your private interests, whether on or off duty.
34. The Final Order also set out and references the applicant's disciplinary history during the course of his employment with the NSWPF as follows: 1. On 4 May 2011, the applicant received a warning in relation to the inadequate security of his firearm. 2. On 10 December 2011, the applicant received counselling in relation to the inadequate security of his firearm. 3. On 16 February 2017, the applicant was served with an Assistant Commissioner's Warning Notice. This related to the misuse of the NSWPF Email Systems, specifically the use of the 'signoff block' and significant personal email use. The alleged conduct was that in June 2015, the applicant sent inflammatory emails to various people concerning the reappointment of an Oztag coach. The emails were sent from the applicant's NSWPF email address which stated his name, rank and employment location in the 'signoff block'. Following an audit, it was revealed 43% of emails sent by the applicant between January 2015 and 3 July 2015 were non-work related.
35. In addition to the above instances of disciplinary action being taken against the applicant, there was evidence given in respect of the applicant being counselled in relation to a sustained finding for failure to comply with the NSW Police Force Code of Conduct and Ethics. In respect of this matter, it was found that the applicant emailed Legal Aid NSW making representations in relation to his partner's ex-husband receiving assistance. The email was sent from the applicant's NSWPF email address. A further email was sent to Legal Aid threatening to make a complaint to the relevant minister if the applicant's partner's ex-husband continued to receive Legal Aid.
36. The counselling most likely occurred in 2014. The date of the counselling of the applicant was inconsistently identified in the evidence before the Commission as occurring in May 2013 (despite the conduct occurring in November and December 2013) and May 2015 (in the Final Order): see R3 at 41; and the Final Order, Exhibit GT at page 315. In evidence was a reply to the counselling from the applicant dated 15 May 2014. The applicant appears to document that he does not agree with the sustained finding in his performance appraisal documentation in a notation by him dated 22 April 2014.

Evidence

1. Both the applicant and respondent relied upon a significant amount of evidence in the proceedings.
2. The applicant relied upon the following witness evidence: 1. Statements of the applicant dated 14 May 2019 and 27 June 2019. 2. Medical reports of Dr Selwyn dated 7 May 2019 and 27 August 2019. 3. Statement of Mr Peter Milles dated 13 May 2019. 4. Statement of Sergeant Paul McCrystal dated 14 May 2019.
3. The respondent relied upon the following witness evidence: 1. Affidavit of Assistant Commissioner Peter Thurtell dated 13 June 2019. 2. Affidavit of Assistant Commissioner Gelina Talbot dated 13 June 2019. 3. Statement of Chief Inspector Anthony Power dated 12 July 2018.
4. Not all of the evidence relied upon by the parties is set out here. I have referred to the evidence in this decision where relevant.

Submissions

1. Both the applicant and respondent filed an outline of submissions before the matter was heard; gave both oral and written submissions at the conclusion of the hearing; and with the leave of the Commission, filled additional submissions after the hearing of the matter had concluded. A summary of the submissions is set out below.

The applicant's submissions

1. The applicant argued that the Final Order is beyond power, or alternatively, was harsh, unreasonable and/or unjust.
2. The applicant's case was that the applicant did not commit misconduct as outlined in the Final Order and therefore the Final Order was beyond power. The applicant submitted that the 12 September email and the applicant's Report should be understood as him merely trying to point out what he believed to be the deficiencies in the procedure adopted by CI Fidock during the Milles investigation.
3. Robust differences of opinion occur in the NSWPF the applicant argued, even between senior or more junior officers and this cannot amount to misconduct. It was argued that the applicant held a bona fide view that DSC Milles was entitled to the procedural fairness he was arguing for and this view was supported by the NSW Police Force Complaint Handling Guidelines (the Complaint Guidelines). The applicant argued that he did not seek to improperly interfere with the investigation or misuse his position.
4. It was put that the applicant's Report must be read in context and fairly as a response and defence to the email of AC Thurtell of 13 September 2017 and that it should be characterised as a complaint properly made against CI Fidock and AC Thurtell pursuant to section 211F of the Police Act which relevantly provides: 211F Members of NSW Police Force under duty to report misconduct of police officers (1) A police officer who has reasonable grounds to suspect that another police officer has engaged in police misconduct or serious maladministration is under a duty to report that police misconduct or maladministration or alleged misconduct or maladministration in writing to another police officer who is of the rank of sergeant or above and is more senior in rank than the police officer with a duty to report (a senior police officer).
5. The applicant argued that his conduct in sending the 12 September email and the applicant's Report was allowed and consistent with the respondent's, Respectful Workplace Behaviours Policy Statement & Guidelines (the RWB Policy) which "encourages a 'speak up' culture in which employees feel safe to raise issues and a 'listen culture' in which employees and managers are encouraged to seek out alternative views to their own."
6. The applicant submitted that the policies relied upon by the respondent were in conflict and applying the contra proferentem rule, they ought to be resolved in favour of the applicant and that even if his understanding was wrong.
7. The applicant denied any conflict of interest arose in respect of the relevant events.
8. The applicant submitted that the principles in the often quoted case of Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 ought to be applied to this case.
9. It was put that the Final Order was "out-of-step" with the views of DC Hudson and AC Thurtell and that the findings with respect to the 12 September 2017 email were extravagant, lacked balance and are 'over-the-top'. The applicant argued that by making the Final Order, AC Talbot failed to follow the "chain of command" because DC Hudson had recommended that there be a process of working with DCI Duncan to identify a suitable location outside of PSC.
10. With respect to the submission that the Final Order was harsh, unreasonable and/or unjust, the applicant pointed to the following: 1. The reduction in increment or rank will cause the Applicant to suffer significant loss. 2. The Applicant will lose seniority and suffer the self-assessed humiliation of being demoted in rank from a 15 year (on rank Detective Chief Inspector) to a 6th year Inspector. 3. The transfer returns the Applicant to uniform duties and takes him off a weekday job to return to shift work. This impacts deleteriously on the Applicant's family duties in relation to the access and custody of his children he has with his former wife. 4. The Applicant has already been punished significantly by being moved from PSC to the Eastern Suburbs Police Area Command and placed on an IRM Plan. 5. The manifestly false premise in the IRM Plan in June 2018 authorised by AC Talbot said to justify moving the applicant from PSC to the Eastern Suburbs Police Area Command. This false premise, namely to "ensure you are subject to a closer level of supervision and support" in fact provided neither (see paragraphs 30, 31, 32 & 33 of Exhibit Al).
11. The applicant argued that the rationale underpinning his move to the Eastern Suburbs Police Area Command pursuant to the IRM Plan, namely, to provide him "with meaningful duties taking into account the associated risks that ensure you are subject to a close level of supervision and support" was "false and misleading" because he was often the senior officer in charge, managing between 20 to 30 junior police and he did not have the same level of support from colleagues as he does at the PSC.
12. The applicant does not pursue a return to his position at the PSC. Rather, he seeks an outcome from the Commission that he and the respondent's delegate work together to relocate him to another suitable position.
13. The applicant submits that the Commission ought to consider the imposition by the respondent of "non-reviewable penalties" including the service of a Region Commander's Warning Notice and the imposition of a Conduct Management Plan for 6 months to commence after the application is determined, which would increase the period of "intrusive supervision" to over two and a half years. He says that the time already spent in the Eastern Suburbs should be taken into account in any decision and order made by the Commission.
14. It was argued that the Commission is entitled to consider the nature and extent of the interim action taken by the respondent, along with the period of time that has elapsed since the Final Order was made in determining whether it is harsh, unreasonable and/or unjust.

The respondent's submissions

1. The respondent contended that the Final Order was within power and not harsh, unreasonable and/or unjust.
2. The respondent pointed to the significant and important role the NSWPF plays in our society and the importance of the rank and file structure that upholds it. It was put that the public interest the Commission must consider in these proceedings includes, ensuring that police officers always prioritise the interest of the NSWPF over any personal interests and that officers do not behave insubordinately towards officers that are senior in rank.
3. In arguing that the applicant engaged in misconduct, the respondent urged the Commission to find that the applicant: 1. sought to improperly interfere in the Milles investigation by the 12 September email, and in particular, sought to misuse his experience, rank and position to: 1. exert pressure on CI Fidock to conduct his criminal investigation into DSC Milles in a particular (and inappropriate) way different to the manner in which CI Fidock had chosen; 2. write comments on a report prepared by DSC Milles, supporting contentions he was making about CI Fidock being biased and unethical, and that he was being treated unfairly, despite being presented with no objective evidence in support of those contentions; and 3. obtain preferential treatment towards DSC Milles, by seeking to persuade CI Fidock to provide him with a range of material in advance of a voluntary criminal interview, being material far in excess of what an ordinary accused person would receive as part of a criminal investigation, 1. placed himself in a position of conflict between acting as a quasi-advocate for DSC Milles against the NSWPF who was investigating his criminal behaviour, in circumstances where he was also DSC Milles' manager and supervisor, and his role as a police officer sworn to prevent and detect crime, and attached to the PSC, being that part of the NSWPF responsible for detecting criminal conduct and misconduct by police officers; and 2. circumvented the chain of command and behaved in an insubordinate and unprofessional manner toward a senior officer, being AC Thurtell by sending him the applicant's Report that was replete with inappropriate commentary.
4. It was argued that applicant has displayed no insight into his misconduct and its impact on others, nor is he remorseful and this was particularly grave given the seniority of the position he holds within the NSWPF.
5. The respondent complained of the applicant's conduct in the proceedings, arguing that he had sought to introduce irrelevant, baseless and spurious contentions into evidence.
6. The respondent argues that the medical evidence only confirms the applicant's fitness for duties at Eastern Suburbs and not the PSC so the upholding of the disciplinary transfer must follow.
7. It is put by the respondent that the alleged conduct constitutes misconduct drawing upon the definition of "police misconduct" in the Law Enforcement Conduct Commission Act 2016 (NSW) where section 9 provides that "police misconduct" can involve but is not limited to criminal behaviour, corrupt conduct, unlawful conduct, or behaviour that constitutes a "disciplinary infringement" which includes, misconduct, irregularity, neglect of duty, breach of discipline or substantial breach of a code of conduct, or other matter that constitutes or may constitute grounds for disciplinary action under any law. The respondent contends that the conduct complained of constitutes misconduct so defined, because the applicant: 1. was insubordinate towards a colleagues that is senior in rank to him; 2. placed himself in a position of conflict as a sworn police officer; and 3. improperly interfered in a criminal investigation, including his rank, authority and position with a view to trying to secure beneficial treatment for a third party.
8. In summary, the respondent made the following points in response to the applicant's argument that he merely pointing out deficiencies to CI Fidock through the 12 September email and the applicant's Report: 1. An objective and fair reading of the 12 September email and the applicant's Report does not support this conclusion. 2. CI Fidock did not do anything improper or unorthodox in conducting the investigation to warrant the relevant communications and the evidence of the applicant's position on these matters was self-serving and an attempt to justify his "unjustifiable conduct". 3. Even if there were deficiencies in the approach being followed by CI Fidock in the Milles investigation (which is denied), there were more appropriate ways for the applicant to have addressed it.
9. In answer to the applicant's reliance upon the respondents RWB Policy the respondent submitted in summary: 1. The Respectful Workplace Behaviours Policy Statement (RWB Statement) is directed towards the elimination of bullying, discrimination and harassment in the workplace and is not intended to authorise misconduct by police officers in the ways the respondent allege the applicant did. 2. There were more appropriate methods the applicant could have adopted to "speak up". 3. The applicant's argument that the right to "speak up" applied to the circumstance of the case is misconceived and is indicative of his propensity to provide evidence that suits his purposes. 4. The applicant has breached the RWB Policy by his insubordination and discourteous behaviour.
10. The Respondent submitted that the investigation being conducted by CI Fidock was entirely orthodox, while the applicant was advocating for an approach more akin to the internal disciplinary investigation of police officers under investigation for misconduct. The Commission was urged to reject the applicant's evidence that he was genuine in his belief that he was making representations that were consistent with his own understanding of the procedures that should be adopted in the Milles investigation.
11. In summary, the respondent argued that the Final Order was not harsh because: 1. the impact of the reduced increment must be considered in the context of his annual salary of $175,348 (gross), which will be reduced to $166,512 (gross). 2. the applicant will not lose seniority under the Final Order and is not being demoted in rank, which will remain that of Inspector. 3. the applicant does not have a right to choose the type of duties he performs under clause 8 of the Police Regulations 2015, which obliges all police officers to serve where directed, whether or not during their rostered hours of duty. Moreover, the impact of working shift work is the same for many police officers or anyone working in a shift industry. 4. The IRM Plan was not implemented pursuant to s 173 of the Police Act and is not relevant to an evaluation or harshness. 5. The applicant has an extensive disciplinary history and non-reviewable sanctions imposed to date have been unsuccessful in reforming his recalcitrant conduct. The sanction is required to bring about a change in the applicant's conduct. 6. The applicant's seniority.
12. The respondent ultimately submits that the applicant's case must fail and he is not entitled to the relief he seeks.

Legislation and principles

1. Part 9 of the Police Act provides for "Management of conduct within NSW Police Force."
2. Section 173 of the Police Act gives the respondent the power to make orders that "reviewable action" be taken with respect to a police officer who engages in misconduct. Section 173(2) is in the following terms: (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate.
3. Section 174 provides that a person who is the subject of an order for reviewable action made under s 173 of the Police Act may apply to the Commission for a review on the ground that the order is beyond power or is harsh, unreasonable or unjust.
4. The manner in which the Commission must conduct the review is set out at s 175 of the Police Act: 175 Proceedings on a review (1) The Commission is to commence hearing an application for a review under this Division within 4 weeks after the application is made. (2) The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) In determining the applicant's claim, the Commission may take into account such matters as it considers relevant. (4) 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 fact that the Commissioner made the order pursuant to section 173).
5. The relevant principles and approach of the Commission in proceedings such as these has been considered in a number of cases. In determining the principles to be applied in cases arising under Pt 9 Div 1A, decisions of the Commission arising under s 181D of the Police Act (concerning the removal of police officers) are instructive: Laird v Commissioner of Police [2001] NSWIRComm 253 at [50]-[51]; Mahoney v Commissioner of Police [2003] NSWIRComm 67 at [124]; Saliba v Commissioner of Police [2006] NSWIRComm 200 at [90]-[91]; Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police (2009) 183 IR 176; [2009] NSWIRComm 51 at [8]; and, McDiarmid v Commissioner of Police [2012] NSWIRComm 100 at [88].
6. Importantly, the hearing before the Commission is a hearing de novo, not a review of an administrative act: Beck v Commissioner of Police (No 3) (2015) 254 IR 186; [2015] NSWIRComm 1023 at [24] (Newall). In Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253 (on which Newall C in Beck relied) the Full Bench stated at [134]: "[134] … The correct approach is that the Commission is to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted."
7. Parts 8A and 9 of the Police Act require that the Commission assess allegations of misconduct or unsatisfactory performance and determine if these allegations are properly based, and then whether these matters justify the relevant reviewable orders.
8. The applicant's case will be dismissed if he is unable to establish that the Disciplinary Order was harsh, unreasonable or unjust. The Full Bench stated in Hosemans (at [131]) (cited with approval in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 ("Tredinnick (No 2)") at [78]): "… the legislative stipulation in s181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s181F and does not offend s 181F (2). But the important point here is the primary onus that falls on the applicant."
9. The words of s 181F(2) of the Police Act mirror the wording of s 175(2) of the Police Act, and the primary onus falls on the applicant in proceedings under each section. However, if the applicant advances any evidence or argument that might go to establishing that the Disciplinary Order was harsh, unreasonable or unjust, the onus of addressing that case, including that evidentiary case, then falls on the respondent: Tredinnick (No 2) at [78].
10. The Commission is to apply the same approach to the phrase "harsh, unreasonable or unjust" as it appears in s 174(1) of the Police Act as is applied in proceedings under Ch 2 Pt 6 of the Industrial Relations Act 1996 (NSW). As stated by Newall C in Beck at [28]: "[28] The obligation to make out that the decision was harsh, unreasonable or unjust is laid squarely on the applicant, as subs 181F(2) makes expressly clear. If the applicant cannot demonstrate that the order to remove was harsh, unreasonable or unjust, the application cannot succeed. I proceed on the basis that the effect to be given to the words 'harsh, unreasonable or unjust', which are disjunctive terms, is the same as the effect to be given to them in proceedings under Part 6 of the Industrial Relations Act 1996, noting of course the other matters bearing on the conduct of proceedings and the exercise of discretion prescribed in the Act. As it was held in Hosemans, these proceedings are 'essentially the same as the unfair dismissal regime subject to specified modifications.' (at [97], [104])"
11. Each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. In Corrective Services NSW v Danwer [2013] NSWIRComm 61 the Full Bench stated: "[21] … It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: 'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'"
12. In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, the Full Bench made the following observations: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made."
13. Section 175(4) of the Police Act provides that, in considering applications for review made under s 174 of the Police Act, the Commission must take into account the officer's interests and the public interest which includes the fact that the Commissioner (or his delegate) made the order pursuant to section 173 of the Police Act.
14. Relevantly, in Commissioner of Police v Eaton [2013] HCA 2, Heydon J stated (at [27]): "… The matters referred to in s 181F(3)(b) of the Police Act stand outside s 146(2) of the IR Act. The Commission's duty to have regard to the public interest as defined in s 181F(3)(b) is adverse to the interests of applicants seeking reviews under s 181E..."
15. Further, in Commissioner of Police v Wayne Edward Collins [2008] NSWIRComm 162 the Full Bench said at [53]: "We would add that it is important when balancing the applicant's interest against the various countervailing factors relevant to the public interest, that no one factor should be accorded any greater weight than any other factor, or factors."
16. In Saliba, Sams DP considered the approach to considering the applicant's and the public interest at [92]-[94]: "[92] It is to be observed that in respect to the public interest, Grayson DP, in Laird, adopted the conclusions of Walton VP in Van Huisstede v Commissioner of Police (2000) 98 IR 57 and said: 50 As to the public interest, it seems to me that the observations of Walton J, Vice President when dealing with the relevantly similar provisions of s 181F(3) of the Act - that is to say, relevantly similar to s175(4), are apposite here and I would respectfully adopt them. 51 In Van Huisstede v Commissioner of Police (2000) 98 IR 57, his Honour said this: '216. The intent of the subsection is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interest and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. 217. However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other.' [93] As to the weight to be accorded to the public interest vis a vis the applicant's interests, I refer to a recent judgment of Walton J, Acting President and Staff J (Schmidt J dissenting) in Commissioner of Police v Evans [2006] NSWIRComm 170. At paras 4-5 the Full Bench said: '[4] The essence of the appellant's submissions - reflected in her Honour's judgment - is that the Commission should accord the public interest greater weight than other factors when determining whether a removal under s 181D was harsh, unreasonable or unjust. Indeed, there is an even stronger proposition implicit in her Honour's judgment: that prima facie, the Commissioner's decision to remove an officer on the basis of loss of confidence will be in the public interest, and any departure from such a decision must be justified. [5] Equivalent submissions have been rejected by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 (at [67]-[68]) and Hosemans v Commissioner of Police (2004) 138 IR 159. Section 181F does not alter the test to be applied: it is the test applied under s 84 of the Industrial Relations Act 1996, that is, whether the dismissal was harsh, unjust or unreasonable. The most comprehensive discussion of the significance of the public interest in this context is at [216]-[219] of Van Huisstede v Commissioner of Police (2000) 98 IR 57. In short, it is one factor to be taken into account. Moreover, it will seldom be unitary: cases such as these present the possibility of many, and often competing, public interests.' [94] I would respectfully adopt the conclusions of the majority and apply the same principles to the consideration of the public interest and the applicant's interests in s174 reviews under the Act."
17. Section 177(1) of the Police Act provides that the Commission may determine the application when, in the Commission's opinion, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful by: 1. revoking the order; 2. revoking the order and making such other order as it considers appropriate, whether or not it is an order that the Commissioner is empowered to make under s 173; 3. upholding the order; or 4. dismissing the application.
18. If the Commission revokes the order, it may also direct the payment of compensation for any loss suffered by the applicant as a consequence of the making of the order.

Consideration

1. The first task of the Commission in this matter is to determine whether the applicant has discharged his onus of establishing that he has not engaged in misconduct.
2. If there is a finding of misconduct, the second task is to consider whether the Final Order is harsh, unreasonable and/or unjust.

Did the applicant act unprofessionally when he sent the 12 September email to CI Fiddock and the applicant's Report to AC Thurtell?

1. The 12 September email from the applicant to CI Fidock is set out above at [18] and the applicant's Report at [20]. I consider that by sending the 12 September email and the applicant's Report, the applicant engaged in unprofessional conduct constituting misconduct. The applicant has not discharged his onus to establish a sufficient basis upon which the Commission could find that the respondent was wrong in making those findings.
2. The 12 September email is not discourteous in its tone, even if it is inaccurate in what it says about the rights of DSC Milles in the investigation process. It probably would not have been controversial had it been sent by a legal representative of DSC Milles to the respondent. However, in sending the email and making the representations therein, the applicant did not, nor could he avoid the potential outcome that because of the seniority of his position and the nature of the role he occupied within the NSWPF, it could influence the investigating officer's next steps even though CI Fidock was the same rank as the applicant. The fact that CI Fidock was not influenced by the communication is irrelevant.
3. The applicant's evidence was that indeed, he was trying to influence the direction of the investigation. At the time the applicant sent his email, he was aware that DSC Milles had already sent an email requesting the particulars of the allegations against him and received a response he believed to be inadequate. The applicant hoped that his email would deliver a different result.
4. In contrast to the 12 September email, the tone of the applicant's Report is not professional. Having been informed in the clearest of terms by a superior, AC Thurtell in his email of 13 September 2017 that he took issue with his involvement with the Milles investigation, the applicant sailed past the implicit warning that he was straying into dangerous territory, opting to intensify his advocacy on behalf of DSC Milles.
5. The applicant's Report forcefully advocates that DSC Milles is entitled to the particulars he sought in the 12 September email. It also introduces accusations against CI Fidock of the most serious kind. The applicant's Report accuses CI Fidock of breaching the Code of Conduct by acting dishonestly and displaying a lack of respect and courtesy for not using DSC Milles' title and/or name in correspondence to him. It also speaks of CI Fidock acting dishonestly in various ways including by attributing false statements to DSC Milles, without any suggestion that these accusations might be wrong.
6. The applicant also states in the applicant's Report that there is a "reluctance to unearth the truth" in respect of the investigation and that the Manning Great Lakes Local Area Command is focussed on securing a conviction at the expense of "searching for the truth" and was damaging the "fairness and integrity" of the Milles investigation. These too are very serious accusations aimed at the integrity of the Local Area Command. The applicant's Report is devoid of balance or perspective. In his first statement tendered into evidence the applicant maintained CI Fidock and AC Thurtell's management of the investigation was "deficient, inappropriate and improper, and the action of Chief Inspector Fidock should have been properly investigated as misconduct."
7. The applicant's Report also states that he is aware of a number of "serious inadequacies in the investigation that have the potential to cause embarrassment to the New South Wales Police Force in addition to the issues I have documented. However, given the accusation that my actions have been described albeit erroneously as a "veiled attempt to influence the investigator to provide information on an officer under investigation for criminal offences" and that I have acted outside my capacity as a Support Person/Supervisor I will not further document these at this stage."
8. This passage particularly highlights the applicant's lack of insight into the obligations he owed to his employer which conflicted with those interests of DSC Milles for whom he was advocating.
9. The applicant argued that by communicating the 12 September email and the applicant's Report he did not engage in misconduct because: 1. DSC Milles was in fact entitled to the information he sought through those communications, and/or he held a bona fide belief that he was entitled to the information based on a reading of the Complaint Guidelines and as a basic principle of fairness applying to criminal investigations. 2. DC Hudson questioned in his review whether the applicant could have influenced the course of the Milles investigation through his communications. 3. The applicant was merely "speaking up" pursuant to the respondent's RWB Policy. 4. The applicant was making a complaint pursuant to s211 of the Police Act.
10. I consider these arguments in turn.

DSC Milles' entitlement to the particulars sought

1. The applicant argued before the Commission that through the process of the criminal investigation relating to DSC Milles, he was in fact entitled to the particulars he sought on his behalf through the 12 September email. Although this was originally predicated on provisions of the Complaint Guidelines relating to the investigation of complaints against police officers, under cross-examination, the applicant agreed that the reference to procedural fairness in the Complaint Guidelines only applies to Part 8A investigation and not criminal investigations.
2. However, under cross-examination the applicant gave the following evidence: (commencing at Tcpt, 1 July 2019, p 73 (48)): Q. Well, the guidelines don't actually provide for procedural fairness in relation to criminal investigations, and they only apply to departmental investigations. A. That's a very narrow look at that guideline. Where a person's rights and interests may be affected, ie, their employment, they're entitled to procedural fairness, and in my experience in investigating criminal matters with police officers, if they fall over, ie, don't go ahead, found not guilty, the department relies on internal sanctions, which include the response to the criminal offence, so in that circumstance, Milles' response to this criminal investigation could later be used in the departmental.
3. It would seem the applicant was arguing that because the employment rights and interests of DSC Milles might be affected by the criminal proceedings, he had a right to procedural fairness which was greater or different to what might ordinarily arise in the context of being asked to participate in an interview. This was a point of view the applicant also expressed in his evidence in chief.
4. This argument is counter-intuitive, firstly because it suggests that police officers, because of their employment, will be treated differently to other citizens when being criminally investigated. It is not just police officers who may have their "rights and interests" in their employment impacted by a criminal investigation. It is common for matters that are criminally investigated to also be of interest to employers and may, whether the relevant events have arisen directly within the employment context or not, result in a disciplinary outcome to the person being criminally investigated.
5. There is no support for the suggestion that there is a right to procedural fairness in the context of a criminal investigation in the Complaint Guidelines. The Complaint Guidelines provides for a separation of the criminal and administrative investigations, with the criminal investigation process usually taking precedence. They document the need for procedural fairness if the matter is pursued in the context of a Part 8A investigation.
6. The applicant also gave evidence during the proceedings that as a general principle of fairness, people who are the subject of criminal investigations are entitled to know upfront what they are accused of before giving their account.
7. The applicant also sought to rely upon the fact that DSC Milles was ultimately provided with an opportunity to view the CCTV footage at the commencement of his criminal interview conducted by Chief Inspector Anthony Power in the Milles investigation.
8. Before the Commission, the applicant initially agreed that in criminal investigations, the steps and propositions contained in the evidence of AC Talbot as set out below are accurate ([75] of Exhibit R3): In conducting a criminal investigation into DSC Milles, the investigator would gather all available and relevant evidence. At some point in the process, and at the investigator's discretion, it is likely (but not essential) that DSC Milles be offered an opportunity to participate in a criminal interview under caution. There is no obligation, in conducting a criminal interview, to provide a potential accused person with any or all details of the allegations against them.
9. The applicant later recanted his evidence and disagreed with AC Talbot's account of how a criminal investigation would usually be conducted. He gave evidence that when dealing with a member of the public in the context of an investigation, he would provide as much detail as possible about the matters alleged against a person being investigated. He stated that (Tcpt, 1 July 2019, p 78 (16-17)): You should always start out - in 30 years of interviewing people, I tell them what the allegation is as full as I can and they're allowed to respond.
10. AC Thurtell also gave evidence with respect to the usual practices adopted in criminal investigations which contradicted and rejected the applicant's views that DSC Milles was entitled to procedural fairness.
11. AC Thurtell and AC Talbot were impressive and reliable witnesses. Their evidence was clear and consistent. On the other hand, the applicant's evidence was argumentative and often inconsistent. Some of the inconsistencies in the applicant's evidence are considered below.
12. I accept the evidence of AC Talbot and AC Thurtell with respect to the usual practice that would be adopted in seeking a version of events from a person the subject of a criminal investigation. While I accept the practice of putting the allegations to a person in an interview as described by the applicant may occur, I do not accept that there is an obligation upon an interviewing officer to do so. Moreover, there is no proper basis to conclude that it is usual practice to provide the types of particulars sought in the 12 September email at the commencement or prior to an interview. Similarly, a citizen does not have a right to receive the particulars of an allegation made during the course of an investigation so they might decide whether to make a written statement. DSC Milles' rights in the context of the Milles investigation were no different to any other citizens being investigated.
13. It is concerning that the applicant, as a senior police officer maintained that he genuinely believed that DSC Milles had an entitlement to the particulars he sought on his behalf. At the time the 12 September email was sent, the applicant was a commissioned officer, occupying the role of the Investigations Manager leading a small team of criminal investigators within the Investigations Unit of the PSC with the designated responsibility to investigate Part 8A complaints against police officers involving allegations of criminal acts and/or allegations of misconduct and maladministration. As the PSC is charged with ensuring other officers within the NSWPF act with integrity, avoid conflicts of interest and act in the interests of the respondent, there is a clear need for those in operational roles within the PSC to understand and act consistent with these obligations. The role occupied by the applicant at the PSC is a senior position within the NSWPF.
14. Even if the applicant was correct with respect to the entitlement of DSC Milles to the information he sought, or held a bona fide view that he was entitled to it, it was still inappropriate for him to send the 12 September email to CI Fidock and the applicant's Report to AC Thurtell because it exceeded the role of support person to DSC Milles. The email advocated on behalf of DSC Milles. The applicant gave evidence that he was aware of the boundaries of the role of support person given his role at the time at PSC.

DC Hudson's views on whether the applicant could influence the Milles investigation

1. The applicant argued that the opinion of DC Hudson questioning the applicant's ability to influence the manner in which the complaint was conducted or the eventual outcome of the criminal investigation was relevant.
2. It was argued that DC Hudson's opinion as set out above at [29] should be respected because he is senior, more senior that AC Talbot and she should have accepted his comments.
3. As a hearing de novo, the Commission must determine for itself whether there has been misconduct. To the extent that DC Hudson's opinion is relevant to that evaluation, I note that all he asked in his Memo was that the relevant finding be reviewed to ensure the delegate is comfortable with the associated findings. There is no evidence to support the submission that AC Talbot acted contrary to the "chain of command". To the contrary, AC Talbot states in the Final Order that she has "carefully considered Deputy Commissioner Hudson's review, recommendations."
4. In any event, AC Talbot was acting as delegate of the Commissioner for Police in making the Final Orders.

A right and/or obligation to "speak up"

1. Despite the boundaries of the role of support person, the applicant claimed that he had a right, if not an obligation to "speak up" pursuant to the RWB Policy. The applicant put before the Commission three documents relating to this RWB Policy: 1. Respectful Workplace Behaviours Policy Statement (the RWB Policy Statement); 2. A powerpoint presentation containing an overview of the policy titled "Respectful Workplace Behaviours developed by the Workplace Relations & Equity Unit"; and 3. The Respectful Workplace Behaviours Guidelines (RWB Guidelines).
2. It is clear that the RWB Policy is directed at creating an inclusive work environment free from inappropriate workplace conduct. That intent is articulated in the RWB Statement as follows: "The NSW Police Force has a responsibility to provide a work environment that is safe, ethical, inclusive and productive. This means bullying, discrimination, harassment, vilification and victimisation will not be tolerated."
3. Among other things, the RWB Statement says that: "Our commitment is to ensure that the NSW Police Force: ……. Encourage a speak up culture in which employees feel safe to raise issues and a "listen culture" in which employees and managers are encouraged to seek out alternative views to their own."
4. Read in the context of the overarching purpose of the RWB Policy, the commitment of ensuring a "speak up" culture is a reference to encouraging employees to not remain silent with respect to bullying, discrimination, harassment, vilification and victimisation. The applicant's reliance upon the RWP Policy is misplaced. I am also unable to accept that the applicant held a genuine view that the RWP Policy was designed to encourage the conduct he engaged in when sending the 12 September email and applicant's Report.

The applicant was making a complaint pursuant to s211 of the Police Act.

1. The applicant also argued that the 12 September email and the applicant's Report ought to be read as a complaint properly made against CI Fidock and AC Thurtell pursuant to section 211 F of the Police Act set out above at [51]. He gave evidence that that he was acting in his substantive position as a senior, commissioned NSW police officer with 15 years on rank as an Inspector/Chief Inspector who had a concern brought to his attention by DSC Milles. I am unable to accept this was the case. The 12 September email was not an attempt to report misconduct or maladministration to "another police officer who is of the rank of sergeant or above and is more senior in rank than the police officer with a duty to report." Rather, the applicant's evidence was that it was an email directed at an officer of equal rank, CI Fidock seeking to persuade him to provide further particulars of the allegations against DSC Milles in his investigation.
2. The applicant's Report was not a document created for the purposes of complying with section 211F of the Police Act. It was a response to the email of AC Thurtell of 13 September 2017. The applicant's evidence demonstrates that he was affronted by this communication, accusing AC Thurtell of "unlawfully targeting me for making the complaint against an officer under his command."
3. Even if it were a complaint made pursuant to section 211F of the Police Act, it was unprofessional in its presentation of the accusations and given some of these was measured directly at the Manning Great Lakes Local Area Command, should not have been directed at AC Thurtell who was the Commander of that area.
4. Accordingly, I have not been able to find any of the reasons provided by the applicant as adequately explaining or justifying his conduct. The applicant inappropriately sought to influence the Milles investigation by the 12 September email and the applicant's Report. The applicant knowingly breached the respondent's policies with respect to the role of support person and placed himself in a position of conflict in acting for DSC Milles advocating on his behalf to the NSWPF in circumstances where his seniority and position at the PSC may have influenced the course of the investigation. The applicant's Report is a demonstration of insubordination towards a superior, is unprofessional and of itself, constitutes misconduct. The applicant was ineffective in identifying and managing the conflict of interests that arose in the circumstances of his acting as support person for DSC Milles. I find that the applicant through his conduct breached each of the respondent's policies as set out above at [33]-[39]. The applicant acted unprofessionally and engaged in misconduct.
5. I now turn to consider whether the Final Order is harsh, unjust and/or unreasonable.

Was the order harsh, unjust and/or unreasonable?

1. The Final Order provides for: 1. the applicant's incremental level be reduced to Inspector 6th year (from 8th year); and 2. a disciplinary transfer from the PSC to Eastern Suburbs Police Area Command.
2. The applicant is a long serving employee of the respondent, albeit not with an unblemished disciplinary history. He has been promoted to a senior position and has received awards for his work including for his role as Duty Manager the night of the Cronulla Riots in 2005 and a Bravery Decoration for arresting an offender armed with a firearm in Greenacre. Through his service to the respondent and the NSW community as a police officer, he has acquired PTSD and serious physical injuries.
3. There was no evidence before the Commission that there have been any issues or complaints about the applicant since he was placed on the IRM Plan. Further, there was in evidence a number of performance appraisals which document the applicant receiving positive feedback from his supervisors over a lengthy period of time.
4. The total direct financial loss that will be suffered by the applicant as a consequence of the reduced increment is $11,000, over a period of two years. The applicant says that this constitutes a significant loss.
5. There was limited evidence from the applicant to demonstrate how the reduction would have a significant impact upon him. The applicant is divorced, living by himself and jointly supporting two children. The applicant gave evidence that the impact of the reduction may be compounded if he is medically retired due to his PTSD. The applicant gave evidence that his superannuation benefits are calculated based on remuneration earned in the last three years of his employment prior to retirement. However, there is not a proper evidentiary basis upon which the Commission could conclude the likelihood the applicant will be retired within the next three years.
6. The applicant gave evidence that he is currently repaying a substantial mortgage, however, there is no evidence of how much the repayments are or what other liabilities or assets he has to give an accurate overall picture of his financial situation and the hardship the reduction would cause him.
7. The applicant is a high income earner, with an annual salary of $175,348 (gross), which will be reduced to $166,512 (gross). The impact of the decrease in remuneration is likely to have less of an impact than it would on someone earning an average wage or less.
8. The applicant has not made out his submission that the reduction in remuneration will have a significant impact upon him.
9. The applicant argued that the reduction in increment also represents a loss of seniority and this would cause him to suffer "self-assessed humiliation". However, the Final Orders do not provide for a reduction of the rank of the applicant. He will remain an Inspector, although in the position he is to be transferred he is referred to as "Inspector" rather than "Detective Chief Inspector". I accept that the applicant will feel a level of humiliation resulting from the reduction in increment and the change in his position title.
10. The applicant agrees that he should not be returned to the PSC. The parties put to the Commission as an agreed position; there is no medical impediment to the applicant serving as a police officer at the Eastern Suburbs Local Area Command. However, the applicant says that he should be allowed to work with the respondent's delegate to find another suitable location for him to be relocated to. The argument was put that this would be consistent with the DC Hudson's Memo as set out above at [29] where it was documented (after noting the applicant accepted that he would need to move from the PSC), that he "was happy to work with the Commander of PSC to identify a suitable location."
11. DC Hudson's statement in his memo is not in the form of a recommendation but rather appears from its context to record the applicant's acknowledgment of the need to move from his PSC. I am not persuaded that DC Hudson intended to convey through his memo that the delegate should not impose a disciplinary transfer upon the applicant. In any event, as I have already noted, AC Talbot was acting as delegate of the Commissioner of Police when she made the Final Order.
12. The applicant also submitted that AC Thurtell thought that a rebuke to the Applicant was an appropriate response to the 12 September email. But of course, the conduct under consideration not only includes the 12 September email, but also the applicant's response to it by the applicant's Report to AC Thurtell. When the applicant responded to the 12 September email with the applicant's Report, AC Thurtell forwarded the report for investigation of any misconduct, by himself or anyone else, including the applicant.
13. AC Thurtell's evidence was to initially describe the report as "both unprofessional and unethical in the extreme", expressing the view that it was "extraordinary that a senior officer attached to [PSC] would interfere in a criminal investigation in such a manner and send such an unprofessional report".
14. AC Thurtell did not give any evidence that could be relied upon to conclude that he thought the Final Order was harsh. In any event, if this was the opinion of AC Thurtell, it could at best have only marginal relevance to the Commission's evaluation of this question.
15. The applicant says that the disciplinary transfer to the Easter Suburbs Local Area Command is harsh because it returns him to uniform duties and takes him off a weekday job to return to shift work. It was put that this impacts deleteriously on the applicant's family duties in relation to the access and custody of his children he has with his former wife.
16. I accept that working shift work is less desirable for the applicant and impacts upon his capacity to balance his family commitments. Though it may be of lesser value to him than not having to work shift work, it should be noted that the applicant receives an extra week of annual leave per year for working shift work.
17. The applicant sought to attack the decision of AC Talbot to place the applicant at the Eastern Suburbs Police Area Command on the basis that the reasoning for his transfer was false, namely that he would be subject to greater supervision and support. I accept the evidence of the applicant that he had a greater support network of colleagues at the PSC and that he is usually the most senior person working in the Eastern Suburbs Police Area Command as a Duty Manager. I also accept the evidence of AC Talbot that the reasons the location were selected included the past performance of the applicant in a similar role in Hurstville Local Area Command and the benefit he might receive from being supervised by Superintendent John Duncan, whom she described as very experienced and mature. There was no objective evidence that AC Talbot chose the location for any hidden or illegitimate reason. I note also that the Final Order is not remedial in nature.
18. The applicant argued that the Commission should take into account that he has already been punished significantly by being moved from PSC to the Eastern Suburbs Police Area Command and placed on the IRM Plan from June 2018. The respondent argued that the IRM Plan was not implemented pursuant to s 173 of the Police Act and is not relevant to an evaluation of the harshness of the Final Order.
19. While the Commission is not tasked with evaluating the fairness of the IRM Plan, the fact that the applicant was moved to the Eastern Suburbs Police Area Command under it as a consequence of the same facts that gave rise to the Final Order under review is a part of the broader factual context I must take into account in determining the fairness of the Final Order. The effect of the applicant commencing these proceedings is that the Final Order is stayed by s 173(8)(b) of the Police Act and that this will most likely mean that the applicant will be required to serve at the Eastern Suburbs Local Area Command for at least a further three years from the date of this decision.
20. The applicant's disciplinary history as set out at [40] is also relevant here. Two incidents are of particular relevance to this matter.
21. The first incident involved the applicant using his work email to write to Legal Aid making representations with respect to the grant of assistance to his partner's ex-husband as set out above at 40. The applicant disputed the sustained findings in the matter and did not acknowledge that it was improper for him to use his work email in these communications. In his response statement dated 15 May 2014, the applicant wrote: …… I am required to report or criminal offences whether they emanated from my private life or not, I am at a loss [as] to how this could be a "conflict-of-interest". I did not make improper use of my position as I did not sign the letter off with my rank or position just my name. My actions have been justified in that legal aid has now been withdrawn from the complainant thus saving the public up to $100,000 in fraudulent funding. ………
22. The applicant also placed a note in his performance review on 22 April 2014: I do not agree with the sustained findings within the LMI issue that I was recently the Subject Officer although I note there is no formal appeal mechanism. I would respectively (sic) submit that the reporting only of a serious criminal offence to an external agency for independent investigation should not have been judged as a 'conflict of interest' due to the fact that it was identified through my personal life.
23. The counselling session with respect to this matter placed the applicant on notice that the respondent expected that he is aware of his obligations with respect to not using his position in order to inappropriately influence the outcome of a private matter.
24. This second matter involved the applicant misusing his work email and signature block in the context of the applicant sending emails concerning the reappointment of an Oztag coach as set out above at [41]. This resulted in the applicant receiving an Assistant Commissioner's Warning Notice dated 16 February 2017. This should have served to heighten the applicant's awareness of the respondent's expectations with respect to ensuring that he did not place himself in a position whereby he might be perceived to be inappropriately using his position to influence an outcome. This warning was issued about 7 months prior to the events which have led to this matter before the Commission.
25. It is also relevant in this matter that the applicant was effectively given an opportunity to reconsider his actions at the time that he received the email from AC Thurtell on 13 September 2017 before sending the applicant's Report.
26. Furthermore, although the applicant apologised in his evidence if anyone was offended by the 12 September email and applicant's Report, at no time has he conceded that he engaged in misconduct, nor demonstrated an understanding of the seriousness of his transgressions of the respondent's policies. Through his evidence before the Commission, the applicant displayed a distinct lack of insight in respect of how he may have approached things differently. This is especially concerning because of the seniority of the applicant's position and the fact that he occupies a leadership role within the NSWPF.
27. Indeed, the applicant made a number of serious allegations against other police officers in his evidence before the Commission which were not pursued. He also gave evidence that the Final Order is targeted, retributive or disingenuous though there was no objective evidence to support this assertion before the Commission.
28. There is an obvious need for the applicant to be deterred from engaging in conduct which is contrary to the respondent's uncontroversial policies. In particular, there is a public interest in the community of New South Wales being served by police officers in the NSWPF who understand and comply with the respondent's Code of Ethics and who identify and manage conflicts of interest appropriately.
29. Balancing all of these matters, including the interests of the applicant, I have determined that Final Order is not harsh, unreasonable and/or unjust in all of the circumstances. In making this decision, I acknowledge that the applicant has already been serving at the Eastern Suburbs Local Area Command under the IRM Plan since June 2018. I nonetheless find that the sanctions imposed by the Final Order are not harsh, unjust and/or unreasonable.

Conclusion

1. The applicant has not discharged his onus to demonstrate that the Final Order was inappropriately made.
2. The matter is therefore dismissed.

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: 30 March 2020