Duncan v Commissioner of Police

The Appeal

1. The Appeal contained the following: F. The questions raised by the appeal are: 1. Whether the Commissioner misconstrued s.173(2) of the Police Act 1990 (NSW) by finding that the appellant engaged in misconduct by reason of merely acting "unprofessionally" or engaging in "unprofessional" conduct? 2. Whether the concept of "misconduct" for the purposes of s.173(2) of the Police Act 1990 (NSW) involves wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose and does not extend to mere mistakes, errors in judgment, unsatisfactory conduct or errors of judgment not made in bad faith 3. Whether the Commissioner failed to make findings with respect to the motivation or intentions of the appellant sufficient to address the question of whether the appellant had engaged in "misconduct" in the sense of engaging in wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose? 4. Whether the Commissioner erred in finding that the appellant placed himself in a position of conflict of interest in circumstances in which it was not suggested that the private interests of the appellant interfered with or influenced the performance of his duties or that the appellant used his official status to influence private interests? 5. Whether the Commissioner erred in finding that the order made with respect to the appellant was not harsh, unreasonable and/or unjust in all the circumstances? G. Reasons why leave to appeal should be granted: 1. The matter involves issues of such importance that, in the public interest, leave to appeal should be granted. 2. The appeal raises significant questions as to the proper interpretation of the concept of "misconduct" for the purposes of s.173(2) of the Police Act 1990 (NSW) having potential application to all police officers, in particular whether it is necessary for there to be conduct that is wrongful, improper or unlawful conduct and motivated by premeditated or intentional purpose. 3. The decision of the Commissioner causes uncertainty and confusion in relation to the proper interpretation and application of the powers of the Commissioner under s.173(2) of the Police Act 1990 (NSW) by conflating concepts of unprofessional or unsatisfactory conduct with misconduct which should be clarified by the Full Bench. 4. The decision of the Commissioner raises significant questions as to the concept of conflict of interest in the context of the policies of the respondent, in particular the need to identify whether the private interests of the appellant interfered with or influenced the performance of his duties or that the appellant used his official status to influence private interests. 5. The decision of the Commissioner had seriously prejudicial consequences to the appellant in circumstances in which the order was affirmed having the effect of reducing the seniority of the appellant from a 15th [sic 8th] year to a 6th year Inspector, resulting in a return to uniform duty and shift work and would have a significant financial impact. H. Grounds of the appeal are: 1. The Commissioner erred in finding that the appellant engaged in misconduct for the purposes of s.173(2) of the Police Act 1990 (NSW) in that the Commissioner did not make findings that the appellant engaged in conduct capable of constituting misconduct for the purposes of the section. 2. The Commissioner erred and misconstrued s.173(2) of the Police Act 1990 (NSW) by finding that the appellant engaged in misconduct by reason of merely acting "unprofessionally" or engaging in "unprofessional" conduct and thereby conflating the concept of "misconduct" with unprofessional conduct. 3. The Commissioner erred in failing to apply the correct interpretation of "misconduct" for the purposes of s.173(2) of the Police Act 1990 (NSW), namely, that misconduct involves wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose and does not extend to mere mistakes, errors in judgment, unsatisfactory conduct or errors of judgment not made in bad faith. 4. The Commissioner erred in finding that the appellant placed himself in a position of conflict of interest in circumstances in which it was not suggested that the private interests of the appellant interfered with or influenced the performance of his duties or that the appellant used his official status to influence private interests. 5. The Commissioner erred in finding that the appellant breached each of the respondent's policies set out at paragraphs [33]-[39] of the Commissioner's decision in circumstances in which the Commissioner did not identify or describe the manner in which it was alleged that the appellant had breached each of the identified policies. 6. The Commissioner erred in finding that the order made with respect to the appellant was not harsh, unreasonable and/or unjust in circumstances in which: (a) The Commissioner relied upon the need for the appellant to be deterred from engaging in conduct contrary to the respondent's policies without identifying how the appellant had breached those policies; (b) The appellant had already been punished considerably by reason of being transferred as part of an Interim Risk Management Plan imposed in June 2018; (c) The order had the effect of reducing the seniority of the appellant from a 15th [sic 8th] year to a 6th year Inspector and resulted in a return to uniform duty and shift work; and (d) The reduction in the incremental level of the appellant would have a significant financial impact.
2. In support of his claim for the grant of leave to appeal, the appellant relies on the following written submissions: 1. This is an application for leave to appeal and to appeal by Robert Andrew Duncan ("the appellant") against a decision of Commissioner Webster made on 24 February 2020 in Duncan v Commissioner of Police [2020] NSWIRComm 1011 ("Decision Below"). In the Decision Below, the Commissioner dismissed an application made pursuant to s 174(1) of the Police Act 1990. 2. The appeal involves issues of such importance that, in the public interest, leave to appeal should be granted under s 188(2) of the Act or that, otherwise, leave to appeal should be granted pursuant to the general discretion of the Full Bench. The principles applicable to the determination of an application for leave to appeal are well-known: see, for example, Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45]; Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 at [5]. 3. The Full Bench has adverted, in prior decisions, to some circumstances where leave may be appropriately granted, including whether an appeal "...raises substantial issues of principle or law or has wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application": Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382; Allchin v Commissioner of Police (No 2) (2007) 168 IR 170 at 114]. Leave to appeal will frequently be granted where an appeal raises a question as to the jurisdiction of the Commission: Speirs v Springvale Coal Pty Ltd (2010) 200 IR 133 at [48]. 4. Issue of importance and general application arise in this appeal. Firstly, the appeal concerns the proper interpretation of s 173(2) of the Police Act and in what circumstances an order made under s 173(2) by the Commissioner of Police or his delegate should be considered to be beyond power. In circumstances where no proper finding of misconduct should have been made, the application of s 173, and the proper determination that the Order was beyond power, raises a question of significant importance. 5. Secondly, the decision made by the Commissioner did not properly deal with whether a purported breach of a code of conduct would constitute misconduct. It is not the law (at least in so far as it appears the law has been applied) that any breach of a code of conduct will automatically translate into a finding of misconduct being made. It appears in the current case that the Commissioner assumed that "unprofessional conduct" can be equated with misconduct. It is important for the jurisprudence of the Commission that the distinction between unprofessional conduct and misconduct be clarified. 6. Thirdly, the NSW Police Force Conflict of Interest Policy which was considered in these proceedings applies to all police officers. The requirement for a conflict to be present centres on permitting a "private interest" to interfere or influence official duties or responsibilities. This is a case where the appellant was acting as a support person for an officer the subject of investigation. The Commissioner failed to deal with what might be considered to be a private interest. The question of the application of the Conflict of Interest Policy and what might constitute a conflict of interest for a police officer is a matter of importance and general application that should be clarified. 7. Fourthly, and more generally, the term misconduct is an oft used term especially in the employment context yet there does not appear to be a recent decision of the Commission which seeks to explain the elements and indicia which may need to be present to constitute a finding of misconduct in the employment context. Whilst at one end of the spectrum identifying misconduct may be easy, such as payment for favours/bribery, assaulting a civilian whilst on duty or other serious criminal action which will likely then constitute misconduct, each of those situations contains a mental element and requires intention to commit a criminal act. However, clarification of what is capable of constituting misconduct in the context of s 173(2) may have more general implications for the Commission's jurisdiction. 8. Fifthly, the decision the subject of the appeal fails to grapple with where on the spectrum of misconduct the alleged failings of the appellant sit. It is not a case in which the misconduct (remembering of course that the misconduct is not admitted) was intentional or involved a mental element. It is necessary to determine the objective seriousness of alleged misconduct before determining whether the punishment to be imposed is harsh in all the circumstances. Without such an exercise occurring it would be open to interpretation that all misconduct is identical and that any misconduct as proven sits on the one level of seriousness. 9. For these reasons, leave to appeal should be granted.
3. In opposing the grant of leave to appeal, the respondent relies on the following written submissions (footnotes omitted): 1. The Appellant seeks leave to appeal pursuant to s. 188(1) of the Industrial Relations Act 1996 (NSW) from the decision of Commissioner Webster on 24 February 2020 (Decision). 2. The Decision was made in respect of review proceedings under section 174 of the Police Act 1990 (NSW) (Police Act), brought in respect of the Respondent's order to take reviewable action against the Appellant in the form of a reduction in increment and disciplinary transfer. 3. As the Appellant has identified in his narrative regarding leave to appeal (AN), the Full Bench is only to grant leave to appeal if the matter is of such importance that, in the public interest, leave should be granted. The principles concerning leave to appeal are well settled. 4. The Appellant's application for leave to appeal does not raise any matter of general importance, nor a substantial issue of law, or any matter relevant to the proper administration of justice. To the extent the Appellant seeks to challenge factual findings made below, each of those findings were open to the Commissioner below to make. None of those findings are infected by error, let alone could they be characterised as 'demonstrably wrong'. 5. As to AN [4], the proper interpretation of s 173(2) of the Police Act is well settled, and was not the subject of challenge below. It is clear the Respondent can only take reviewable (or non-reviewable) action against a police officer under s. 173(2) of the Police Act where there has been misconduct. To the extent the Appellant argues that "no proper finding of misconduct should have been made", this reveals that the appeal really seeks to challenge that factual finding below. No question of law arises. The Appellant is doing nothing more than seeking to disguise a factual finding, that he engaged in misconduct, which was open to be made on the evidence below, as a matter of law. 6. As lo AN [5], this was not an argument that was agitated below, nor does it reflect the findings in the Decision. In any event, the submission that "it is not the law...that any breach of a code of conduct will automatically translate into a finding of misconduct being made" is not consistent with the authorities. In Flynn, Constant C (as she then was) observed (at [89]) that "The Commission has held that breaches of the Police Regulation, or the New South Wales Police Force's Code of Conduct, or its policies, will be sufficient to establish misconduct..." 7. Further, as to the submission at AN [5], there is no practical utility in the Full Bench granting leave to appeal to determine if any breach of the Respondent's Code of Conduct and Ethics must necessarily amount to misconduct. This is because the true question is whether the Appellant's specific unprofessional behaviour amounted to misconduct. The Commissioner below did not 'assume' that unprofessional conduct is to be equated with misconduct. Rather the Commissioner found that the Appellant had engaged in unprofessional conduct amounting to misconduct: Decision [129]. 8. As to AN [6], while the Conflict of Interest Policy applies to all police officers, that does not give these proceedings any special character warranting leave to appeal. The same submission could be made about any policy document in any proceeding that an employee is said to have contravened. Further, the question of what may constitute a conflict of interest for a police officer has been the subject of ample consideration by this Commission. The Decision conforms with those authorities. 9. As to AN [7], the question of whether or not there has been misconduct in any given case, be it review proceedings under the Police Act 1990 or otherwise, is a factual question to be objectively determined by the Commission. That determination will be guided by settled authorities that broadly encapsulate the hallmarks of behaviour that can be classified as misconduct, but is otherwise to be determined with reference to the precise behaviour that occurred, and the context of that behaviour, including the employer's policies and procedures designed to regulate employee conduct. 10. Further, the question of what constitutes misconduct under the Police Act is determined by reference to the Law Enforcement Conduct Commission Act 2016 (NSW). It is apparent that the Commission cannot, and should not, accede to the Appellant's invitation to somehow limit what does and does not constitute misconduct by setting out some form of indicia or test, but rather, preserve the status quo referred to above; that is, leave the decision as to whether or not there has been misconduct to the discretion of the Commission, based on the facts and circumstances in every case. 11. Otherwise, the mere fact that there may not be a recent decision of this Commission commenting on what does, and does not, constitute misconduct at a high level, does not provide any warrant for leave to be granted in this case. If anything, this only reinforces the fact that the definition of misconduct has its ordinary meaning which will be determined by reference to the facts of each case. 12. As to AN [8], there is no obligation on the Commission, in any case, to state where certain behaviour sits on a spectrum of misconduct. No authority is cited for the proposition that such an exercise needed to be undertaken. There was no error on the part of the Commission below, and certainly no error of law, to not undertake such an amorphous and otiose exercise. As the Appellant accepts, the gateway to the Respondent taking reviewable action under s. 173(2) is a finding of misconduct. The gravity of the misconduct is only relevant to an assessment of harshness, being a determination made by the Commission in the exercise of its discretion. The Appellant does not argue (and nor can he) that the Commission failed to properly exercise its discretion below in this regard. 13. This appeal raises no matter of public importance, nor a question of law to be resolved. It is an attack on factual findings made by the Commission below that the Appellant engaged in misconduct. Those findings were entirely open to the Commission. The appeal is nothing more than an attempt by the Appellant to re-litigate his case. 14. In Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012, the Full Bench (Stanton, Murphy and Webster CC) stated:9 [39] The appellant is, in effect, attempting to retry before this Full Bench, the factual issues which were heard and determined against him at first instance. The authorities cited above at [24]-[26] above [sic] and the terms of section 191 of the IR Act make it clear that such a course is not open to an appellant in this jurisdiction. The Full Bench will only intervene to correct error. Having heard the appeal in its entirety, we are of the opinion that each of the findings of fact made by the Commissioner, and the conclusion she reached based on those findings as to the impracticability of reinstatement, were reasonably open on the evidence. In an appeal such as this, it is not open to the Full Bench to substitute its views for those of the Commissioner. 15. Leave to appeal should be refused.
4. In reply to the submissions of the respondent, the appellant relies upon the following submissions (footnotes omitted): 1. The respondent's submissions on both leave to appeal and the substantive appeal demonstrate that the law relating to what constitutes misconduct, the definition of misconduct and whether breaches of codes of conduct equate to misconduct is not settled and requires clarification. 2. The respondent's reliance on the Law Enforcement Conduct Commission Act 2016 (NSW) ("the LECC Act") to inform "what constitutes misconduct under the Police Act" has not been considered by the Commission and raises a new question of interpretation in the interaction between the LECC Act and the Police Act. Where the Commission has not considered the interaction between two pieces of legislation which bear upon the exercise of the Commission's jurisdiction a public importance arises in considering the matter. 3. The respondent's reliance on Zopf for the proposition that the appellant in this case is simply seeking to re-run his case before the Full Bench is of no relevance or assistance in the present case. Zopf concerned an exercise of discretion rather than a mixed question of fact and law as raised in this appeal. 4. Leave to appeal should be granted in this case as there is a public importance in this matter for all officers of the New South Wales Police Force. The definition of misconduct in s 173 is a matter which affects (or could affect) all current and future members of the NSWPF. This is an important factor to have regard to when determining whether leave to appeal should be granted under s 188(2) of the Industrial Relations Act 1996. The matter also raises for consideration and clarification the nature and degree of the behaviour required to determine whether a matter is one of misconduct rather than for example an error of judgment. 5. Finally, the appeal raises for consideration what constitutes a private interest under the Conflicts of [Interest] Policy. Again, the policy affects the employment of all members of the NSWPF and its clarification would be of assistance and therefore a public importance arises on that discrete issue also.

Leave to Appeal

1. The principles governing the grant of leave to appeal in this jurisdiction are well known. These principles were recently restated by a Full Bench of the Commission (Chief Commissioner Kite SC, Commissioner Sloan and Commissioner Webster) in Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 in the following terms: Legal principles to apply 27 An appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench: s 188(1) of the Act. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188(2) of the Act. 28 The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated: "10. It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him [sic]: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. 11. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]." 29 In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12]-[13]: "12. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held…that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. 13. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decision maker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal." 30 The principles outlined in the cases cited above have since been approved in numerous decisions of the Full Bench. It is not necessary to list them all. We will apply these principles.
2. We also intend to apply these principles.

Determination

1. We have determined to not grant leave to appeal in this matter for the reasons set out below.
2. We will deal with each of the reasons advanced by the appellant as to why leave to appeal should be granted, in the order that they are set out in the Appeal (at [11] above).

Reason G 1

1. The decision which is the subject of the Appeal affects one police officer. The Order impacted only on the appellant, and involved a temporary reduction in increment resulting in a loss to the appellant of $11,000 over two years as well as a disciplinary transfer.
2. Contrary to the submissions put on behalf of the appellant, this matter is not of such importance that, in the public interest, leave to appeal should be granted.

Reason G 2

1. The Appeal does not raise "significant questions as to the proper interpretation of the concept of 'misconduct' for the purposes of the s. 173(2) of the Police Act 1990". This Commission considers the concept of "misconduct" in a wide variety of contexts, including the context of section 173 of the Police Act. We do not consider that it is necessary, in the context of the present matter, for the Full Bench to embark upon an examination of "whether it is necessary for there to be conduct that is wrongful, improper or unlawful conduct and motivated by premeditated or intentional purpose".
2. The appellant relies upon a passage from the judgement of Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 which was cited with approval by Boland J in McDiarmid v Commissioner of Police [2012] NSWIRComm 100 as follows (at [124]-[125]): 124 The applicant relied on the definition of misconduct provided by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201 where his Honour stated: In the 1988 supplement to the Corpus, reference is made to Beaunit Mills Inc v Board of Review, Division of Employment Security, Department of Labor and Industry 128 A 2d 20 (1956). In that case, the New Jersey Superior Court held that "misconduct" does not mean mere mistakes, errors in judgment or in the exercise of discretion or minor but casual or unintentional, carelessness or negligence. It did not mean mere inefficiency, unsatisfactory conduct, failure of performance as a result of inability or incapacity inadvertent in isolated instances or errors of judgment which were not made in bad faith or some other ingredient. Numerous other recent cases are cited to support the proposition that, in the United States, "misconduct" generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. Similar approaches to the meaning of the word "misconduct" have been taken in Australia, outside the context of professional discipline: see, eg, O'Connor v Palmer (No 1) (1959) 1 FLR 397. The primary dictionary meanings confirm that this is also the way "misconduct" is used in everyday speech. 125 Subject of course, to the statutory context in which I am required to consider the question of misconduct, I am prepared to accept Pillai v Messiter (No 2) helpfully distinguishes between what is and what is not misconduct. Misconduct does not mean, "mere mistakes, errors in judgment or in the exercise of discretion..." or "unsatisfactory conduct", but rather "wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts." I would not place too much weight on the word "obstinate", however. If the misconduct was reckless or careless indifference I think the test in Pillai v Messiter (No 2) would be met.
3. It is clear from [95]-[99] of the Decision, reproduced at [7] above, that Commissioner Webster had concluded that the sending by the appellant of the 12 September email to CI Fidock and the appellant's Report to AC Thurtell was a deliberate and premeditated attempt by the appellant to influence the investigation by CI Fidock into the conduct of DSC Milles, and not conduct which could be characterised as "mere mistakes, errors in judgment or in the exercise of discretion..." or "unsatisfactory conduct".
4. Whilst the members of this Full Bench may have come to a different conclusion with respect to Commissioner Webster's conclusion that the 12 September email of itself constituted an attempt by the appellant to influence the investigation by CI Fidock, we have no such reservations with respect to the appellant's Report. In light of the evidence no significant questions as to the proper interpretation of the concept of "misconduct" for the purposes of section 173(2) of the Police Act are raised by the Appeal.

Reason G 3

1. At [94] of the Decision, Commissioner Webster characterised the conduct of the appellant as "unprofessional conduct constituting misconduct" (reproduced at [7] above).
2. In the Order it was asserted that the appellant "acted unprofessionally"; that the appellant's Report "was unprofessional"; that the appellant's "conduct has fallen below that which is expected by the community and the NSW Police Force of a sworn officer"; and that the appellant's "continued justification for [his] actions only aggravates the nature of [his] misconduct".
3. It is unsurprising that Commissioner Webster has also characterised the appellant's conduct as "unprofessional" and as "misconduct". Nothing that has been put to this Full Bench on behalf of the appellant supports the proposition that the conduct of the appellant could not be characterised as both "unprofessional" and "misconduct". There is no "conflation" of these concepts in the Decision which requires clarification by the Full Bench.
4. For the reasons set out above, we do not accept that the Decision "causes uncertainty and confusion in relation to the proper interpretation and application of the powers of the Commissioner under s.173(2) of the Police Act 1990 (NSW) by conflating concepts of unprofessional or unsatisfactory conduct with misconduct which should be clarified by the Full Bench". In this matter, the conduct of the appellant in sending the appellant's Report to AC Thurtell was unprofessional and unsatisfactory and constituted misconduct. We will deal further with the issue of the appellant's misconduct later in these reasons for decision when considering whether the appellant has been able to mount at least an arguable case pointing to appellable error.

Reason G 4

1. The appellant asserts that "decision of the Commissioner raises significant questions as to the concept of conflict of interest in the context of the policies of the respondent, in particular the need to identify whether the private interests of the appellant interfered with or influenced the performance of his duties or that the appellant used his official status to influence private interests".
2. In the Order AC Talbot stated: As a senior officer with close to 30 years' service, including duties within the investigations Unit of the Professional Standards Command, I would expect you to understand how your rank and position within PSC may have been perceived. Chief Inspector Fidock was attached to a separate command and was conducting a criminal investigation. As sworn police officers, you both have an interest, and have taken an oath, to enforce the law and detect and prevent crime. Instead, due to your association with Detective Senior Constable Milles, you behaved unprofessionally within that process. I expect you would recognise and avoid such conflicts of interest and avoid improper use of your authority and your position within PSC. Your failure to comply with your obligations shows an intentional disregard for those policies.
3. At [129] of the Decision, Commissioner Webster stated: 129 …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.
4. The factual situation that confronted both the respondent and Commissioner Webster was that the appellant, acting as support person for DSC Milles, used his rank and seniority in the NSW Police Force to attempt to influence the conduct if the criminal investigation into DSC Milles by CI Fidock. Whilst the members of this Full Bench may have come to a different conclusion, the finding by Commissioner Webster that this gave rise to a conflict of interest was open to her on the evidence before the Commission. More importantly, on the issue of leave to appeal, no significant questions are raised as to the concept of conflict of interest in the context of the policies of the respondent.
5. The Full Bench may also hold reservations as to the findings by Commissioner Webster that the appellant "knowingly" breached the respondent's policies, and that this included a breach of the "Guidelines for NSW Police Force employees providing support during police complaint investigations" referred to at [34] of the Decision. However, for the reasons set out elsewhere in this decision, including in particular at [33]-[36] below, such reservations do not warrant the granting of leave to appeal.

Reason G 5

1. We reject the proposition put on behalf of the appellant that the decision of Commissioner Webster had "seriously prejudicial consequences to the appellant in circumstances in which the order was affirmed having the effect of reducing the seniority of the appellant from a 15th [sic 8th] year to a 6th year Inspector, resulting in a return to uniform duty and shift work and would have a significant financial impact". As stated by Commissioner Webster at [2] of the Decision, the financial impact on the appellant of the Order is a reduction in his remuneration of $11,000 over two years, after which time the appellant will have been restored to his previous increment and rate of pay for Inspector 8th year. We do not regard this financial penalty, and the other matters raised in support of this reason, as warranting the grant of leave to appeal.

Appellable error

1. As the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error.
2. The grounds of appeal set out at [9] above focus essentially on the proposition that Commissioner Webster erred in finding that the conduct of the appellant constituted misconduct. Having heard the parties on the question of leave to appeal and on the merits of the Appeal, we have determined that the appellant has failed to mount an arguable case pointing to appellable error.
3. Further, putting aside the 12 September email and the issue of conflict of interest, we consider that conduct of the appellant in sending the appellant's Report to AC Thurtell, after having received AC Thurtell's email of 13 September 2017, constituted conduct that was not only unprofessional, but also wrongful, improper and motivated by premeditated or intentional purpose; in other words, misconduct. By way of example only, we point to the following extract from the appellant's Report: 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.
4. The NSW Police Force is a uniformed force that rightfully demands discipline and respect for authority from its officers, including its senior officers such as the appellant. If the attempt by the appellant to impugn the integrity of CI Fidock by passing on to AC Thurtell unsourced third hand hearsay of such a scandalous nature, described by the appellant as "information", does not constitute misconduct warranting disciplinary action, we struggle to conceive of what would constitute misconduct in the mind of the appellant. The level of insubordination displayed by the appellant to AC Thurtell in the face of the clear warning that he was given on 13 September 2019 has no place in the NSW Police Force.
5. Leave to appeal is refused.
6. We so order. Commissioner Stanton Commissioner Murphy Commissioner Sloan

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: 07 July 2021