Findlay v State of Victoria & Ors [2009] VSCA 294

Findlay v State of Victoria & Ors [2009] VSCA 294 - VSCA 2009 case summary — Zoe

[54]

Annexure A

Findings of fact which ought to have been made, as the Appellant's evidence on these matters either not challenged or not contradicted:

(a) In late 1995 or early 1996 while returning from duty at Birchip Cook abused the Plaintiff and accused her of wasting time in relation to the Plaintiffs decision to interview the victim of an alleged rape;

(b) Cook in the presence of other members including Lyons and Tompsett on numerous occasions while the Plaintiff was seated at her desk picked up and read reports and briefs which the Plaintiff was preparing and questioned the validity of charges and penalties which the Plaintiff was laying or issuing and ridiculed the Plaintiff in regard to her work performance and ability to be a 'real' T.O.G. member;

(c) Cook during the period when the Plaintiff was Acting Sergeant refused to follow proper instructions given by the Plaintiff and neglected the preparation of Running Sheets and maintenance of police vehicles. When the Plaintiff reminded Cook of his duty Cook replied. 'Why don't you do it. You're the fucking sergeant', or words to similar effect;

(d) Cook on occasions refused to compile or submit briefs of evidence for checking by the Plaintiff;

(e) Cook repeatedly told the Plaintiff that she was mentally unstable, should seek help, that everybody 'hated (her) guts' and that lots of civilian complaints had been made against the Plaintiff;

(f) Shortly following an audit conducted by Chief Inspector Button and Senior Sergeant Tanner, during which alcohol was discovered on police premises the (sic) Cook, Lyons and two other members gathered at the rear of the T.O.G. office and when the Plaintiff approached her vehicle to go home Cook and Lyons both shouted abuse at the Plaintiff and accused the Plaintiff of 'dobbing' them into the Command. Cook made further offensive remarks about the Plaintiffs mental stability. Her fitness to be a police officer and to be in charge of the T.O.G. while Sergeant Busiko was on leave;

(g) When the Plaintiff attended Swan Hill Police Station on a Rest Day in order to complete a confidential report for Divisional Command Cook approached the Plaintiff made derogatory remarks regarding the Plaintiffs inability to complete her work within rostered hours and snatched part of the document and began to read it;

(h) Cook slammed doors in the Plaintiffs face;

(i) Lyons in the presence of other members including Cook and Tompsett on numerous occasions while the Plaintiff was seated at her desk picked up and read reports and briefs which the Plaintiff was preparing and questioned the validity of charges and penalties which the Plaintiff was laying or issuing and ridiculed the Plaintiff in regard t her work performance and ability to be a 'real' T.O.G. member;

(j) Lyons during the period when the Plaintiff was Acting Sergeant, refused to follow proper instructions given by the Plaintiff and neglected the preparation of Running Sheets and maintenance of police vehicles. When the Plaintiff reminded Lyons of his duty Lyons replied 'Why don't you do it. You're the fucking Sergeant', or words to similar effect;

(k) Lyons on occasions refused to compile and submit briefs of evidence for checking by the plaintiff;

(l) Lyons falsified Running Sheets and on one occasion while on duty with the (sic) Cook, re-wrote a Running Sheet after being observed by the Plaintiff in central Swan Hill when they had been 'tasked' by the Plaintiff to perform duties elsewhere;

(m) Lyons on occasions crept up behind the Plaintiff and jumped so as to make a loud noise thereby alarming the Plaintiff and said, 'Don't get stressed, Pauline', or words to similar effect;

(n) Lyons slammed doors in the Plaintiffs face;

(o) Lyons refused to hand the Plaintiff the keys to Police vehicles instead throwing them across the room onto tables or benches;

(p) Lyons in the presence of the Plaintiff and others referred to the Plaintiff as 'loopy'.

Notice of Contention

[113]

During the period, the Plaintiff was bullied, obstructed, harassed, intimidated, abused and threatened in the performance of her work by the conduct of fellow members of the Victoria Police and in particular the Fourth and Fifth and Sixth Defendants ('the behaviour and course of conduct').

PARTICULARS OF THE BEHAVIOUR ALLEGED AGAINST THE FOURTH DEFENDANT

(a) In late 1995 and early 1996 the Fourth Defendant and Fifth Defendant jointly approached the Plaintiff and told her that afternoon shift work was causing the Plaintiff to suffer ill health. That she was raising a delinquent child and that she was neglecting her child's welfare. The Fourth Defendant and Fifth Defendant asked Sergeant Busiko to remove the Plaintiff from afternoon shift because she was unsatisfactory.

(b) In late 1995 or early 1996 while returning from duty at Birchip the Fourth Defendant abused the Plaintiff and accused her of wasting time in relation to the Plaintiffs decision to interview the victim of an alleged rape;

(c) The Fourth Defendant in the presence of other members including the Fifth Defendant and Sixth Defendant on numerous occasions while the Plaintiff was seated at her desk picked up and read reports and briefs which the Plaintiff was preparing and questioned the validity of charges and penalties which the Plaintiff was laying or issuing and ridiculed the Plaintiff in regard to her work performance and ability to be a 'real' T.O.G. member

(d) The Fourth Defendant during the period when the Plaintiff was Acting Sergeant refused to follow proper instructions given by the Plaintiff and neglected the preparation of Running Sheets and maintenance of police vehicles. When the Plaintiff reminded the Fourth Defendant of his duty the Fourth Defendant replied. 'Why don't you do it. You're the fucking Sergeant', or words to similar effect;

(e) The Fourth Defendant falsified Running Sheets and on one occasion while on duty with the Fifth Defendant re-wrote a Running Sheet after being observed by the Plaintiff in central Swan Hill when they had been 'tasked' by the Plaintiff to perform duties elsewhere;

(f) The Fourth Defendant entered the Plaintiffs locker room and told the Plaintiff that he wanted to 'sort the matter out' with the Plaintiff. The Fourth Defendant stood in the doorway, blocking the Plaintiffs exit. The Plaintiff slipped past the Fourth Defendant who followed the Plaintiff and became aggressive and shouted, 'You deserved to be assaulted', and that a report by the Plaintiff to Ethical Standards was 'bullshit' and that the Plaintiff should eave the T.O.G. and that it would be the Plaintiffs fault if 'all the bosses came down' on them;

(g) The Fourth Defendant said to the Plaintiff in a threatening tone of voice, 'You've got to fix this problem or something terrible will happen to you. 'When the Plaintiff enquired of the Fourth Defendant what he meant by this he replied, 'I don't know. Somebody could get a .38 and blow you away.';

(h) The Fourth Defendant repeatedly told the Plaintiff that she was mentally unstable, should seek help, that everybody 'hated (her) guts' and that lots of civilian complaints had been made against the Plaintiff;

(i) During a lunch break from a Breath Analysis in-service at Swan Hill, while the Plaintiff was driving a police vehicle back to the T.O.G. office, with other members as passengers including the Fourth Defendant as the front seat passenger, the Fourth Defendant pulled on the handbrake hard, without warning as the Plaintiff was performing a turn in the rear of the T.O.G. compound. This caused the police vehicle to slide broadside almost contacting the compound wall;

(j) The Fourth Defendant on occasions refused to compile or submit briefs of evidence for checking by the Plaintiff;

(k) Nonsensical memos were circulated around the T.O.G. office. The Fourth Defendant forged the Plaintiffs initials at the foot of these memos with the effect that they appeared to have come from the Plaintiff.

(l) The Fourth Defendant made false entries in official Victoria Police record books and logs including Equipment Registers and Speed Camera records in some cases over-writing entries made by the Plaintiff;

(m) The Fourth Defendant contrary from a direction from Force Command refused to cease consumption of alcohol on police premises and refused to remove the alcohol from the premises when so directed by the Plaintiff. The Fourth Defendant said to the Plaintiff, 'Get out of the fucking office. Get out. I hate your fucking guts and if you were a man I'd take you outside and punch your fucking head in. I'd punch your head in';

(n) Shortly following an audit conducted by Chief Inspector Button and senior Sergeant Tanner, during which alcohol was discovered on police premises the Fourth Defendant, Fifth Defendant and two other members gathered at the rear of the T.O.G. office and when the Plaintiff approached her vehicle to go home the Fourth Defendant and Fifth Defendant both shouted abuse at the Plaintiff and accused the Plaintiff of 'dobbing' them into the Command. The Fourth Defendant made further offensive remarks about the Plaintiffs mental stability, her fitness to be a police officer and to be in charge of the T.O.G. while Sergeant Busiko was on leave;

(o) When the Plaintiff attended Swan Hill Police Station on a Rest Day in order to complete a confidential report for Divisional Command the Fourth Defendant approached the Plaintiff made derogatory remarks regarding the Plaintiffs inability to complete her work within rostered hours and snatched part of the document and began to read it;

(p) The Plaintiff was locked out of the T.O.G. office on a number of occasions. On each such occasion the Fourth Defendant or Fifth Defendant or both the Fourth and Fifth Defendant were present within the office;

(q) The Fourth Defendant on occasions crept up behind the Plaintiff and jumped so as to make a loud noise thereby alarming the Plaintiff and said, 'Don't get stressed Pauline', or words to similar effect;

(r) The Fourth Defendant on occasions approached the Plaintiff while she was working at her desk stood very close to the Plaintiff and stared at her in a manner which the Plaintiff found intimidating. When on one such occasion the Plaintiff asked the Fourth Defendant to explain his behaviour the Fourth Defendant did not answer but strode from the office and slammed the door;

(s) During the period the Fourth Defendant stalked the Plaintiff and her child while the Plaintiff was off duty and out walking or shopping with her child. During the period n many occasions at night and in the early hours of the morning a T.O.G. police vehicle was driven past the Plaintiffs house. On these occasions the Fourth Defendant, Fifth Defendant and Sixth Defendant were rostered on duty;

(t) The Fourth Defendant ridiculed the Plaintiff when she asked for technical support or advice;

(u) The Fourth Defendant slammed doors in the Plaintiffs face;

(v) The Fourth Defendant refused to hand the Plaintiff the keys to Police vehicles instead throwing them across the room onto tables or benches;

(w) The Fourth Defendant refused to move vehicles which blocked the Plaintiffs entry to or exit from the T.O.G. compound;

(x) The Fourth Defendant failed to pass on to the Plaintiff both official and personal messages;

(y) The Fourth Defendant wrote a bogus message in the Members' Personal Message Book at the Swan Hill Police Station stating that another member with whom it was rumoured that the Plaintiff had a sexual liaison had telephoned the Plaintiff;

(z) The Fourth Defendant in the presence of the Plaintiff and others referred to the Plaintiff as 'loopy' and 'that fucking dog';

(aa) While performing 'group efforts' at roadside locations the Fourth Defendant turned his back towards the Plaintiff if the Plaintiff spoke to him or asked for help. Further, the Fourth Defendant would fail to warn the Plaintiff of oncoming traffic at Preliminary Breath Testing

(ab) The Fourth Defendant in the presence of the Plaintiff and/or the Fifth and Sixth Defendants referred to the Plaintiff in terms such as 'dyke', 'slut', 'frigid', 'bike', 'boofing the bosses' and 'needing a good fuck';

(ac) Knowing the Plaintiff had alleged an assault on her person by another police member named Kersten and that she had suffered injuries, the Fourth Defendant communicated directly with Kersten or indirectly with other persons associated with Kersten, information about the Plaintiff arising from her service at Swan Hill TOG for use in cross-examination of the Plaintiff at committal proceedings and the subsequent trial of Kersten upon charges related to the alleged assault including the following:

(i) the Plaintiff was addicted to a drug known as Ritalin;

(ii) searches of the Plaintiff's handbag and locker had been undertaken by members of Swan Hill TOG and/or a civilian named Sheryl Smith;

(iii) the Plaintiff's keys to the Swan Hill TOG office had been taken off her for disciplinary reasons;

(iv) the Plaintiff had been barred from entering the Swan Hill TOG;

(v) the Plaintiff had been removed from the Swan Hill TOG for disciplinary reasons;

(vi) the Plaintiff was psychologically impaired;

(vii) numerous complaints had been made against the Plaintiff whilst she was stationed at Swan Hill TOG;

(viii) that the Plaintiff had assaulted the Fourthnamed Defendant after he had pulled on the handbrake of a police vehicle which she was driving;

(ix) the Plaintiff had fabricated evidence against a motorist;

(x) that the Plaintiff was doctor shopping for medications which she was not entitled to be prescribed;

(xi) that the Plaintiff kept her medications and drugs in a little brown box the existence of which no person had been informed yet was known to members of Swan Hill TOG;

(xii) that the Plaintiff had fabricated evidence against the driver from the B & s Ball at Lake Boga;

(xiii) that the Plaintiff would go into dazes or stare vacantly into the air when serving with other members of Swan Hill TOG;

(xiv) that the Plaintiff had been tape recorded by the Fifthnamed Defendant and that it was proposed to play such tape which would demonstrate the Plaintiff was psychologically impaired or crazy;

(xv) that the Plaintiff had been removed from duties of Acting Sergeant at Swan Hill TOG because she was not doing a good job;

(xvi) that the Plaintiff drove a police vehicle at 120kph in a 60kph zone in McCallum Street, Swan Hill;

(xvii) that the Plaintiff was a marijuana smoker;

(xviii) that the Plaintiff had inappropriately handled a situation in which beer was stored in the Swan Hill TOG fridge contrary to regulations;

(xix) that everybody at the Swan Hill TOG hated the Plaintiff and that she had been removed from that station;

(xx) that the Plaintiff was involved in unwarranted outbursts of aggressive behaviour towards people;

(xxi) that the Plaintiff had made untrue complaints to the Ethical Standards Department of the Victoria Police;

(xxii) that the Plaintiff was herself under examination by the Ethical Standards Department of the Victoria Police;

(xxiii) that the Plaintiff was unable to look after her son properly;

(xxiv) that the Plaintiff had pulled a gun on a motorist.

The Plaintiff will seek to establish by evidence given and/or inferences to be drawn from evidence given that a source of the information referred to was the Fourth Defendant by reason of the evidence of the hostility and animosity demonstrated by the Fourth Defendant towards the Plaintiff, the Fourth Defendant's knowledge of the possibility of disciplinary proceedings being brought against him by reason of complaints made by the Plaintiff, further and Fourth Defendant's belief that Kersten was a nice guy and further the detail of the information provided to Kersten's counsel concerning the Plaintiff's service as a member of the Swan Hill TOG.

PARTICULARS OF THE BEHAVIOUR ALLEGED AGAINST THE FIFTH DEFENDANT

(a) In early 1996 the Fourth Defendant and Fifth Defendant jointly approached the Plaintiff and told her that afternoon shift work was causing the Plaintiff to suffer ill health, that she was rasing (sic) a delinquent child and that she was neglecting her child's welfare. The Fourth Defendant and Fifth Defendant asked Sergeant Busiko to remove the Plaintiff from afternoon shift because she was unsatisfactory;

(b) The Fifth Defendant in the presence of other members including the Fourth Defendant and Sixth Defendant on numerous occasions while the Plaintiff was seated at her desk picked up and read reports and briefs which the Plaintiff was preparing and questioned the validity of charges and penalties which the Plaintiff was laying or issuing and ridiculed the Plaintiff in regard t her work performance and ability to be a 'real' T.O.G. member;

(c) The Fifth Defendant during the period when the Plaintiff was Acting Sergeant, refused to follow proper instructions given by the Plaintiff and neglected the preparation of Running Sheets and maintenance of police vehicles. When the Plaintiff reminded the Fifth Defendant of his duty the Fifth Defendant replied 'Why don't you do it. You're the fucking Sergeant', or words to similar effect;

(d) The Fifth Defendant falsified Running Sheets and on one occasion while on duty with the Fourth Defendant, re-wrote a Funning (sic) Sheet after being observed by the Plaintiff in central Swan Hill when they had been 'tasked' by the Plaintiff to perform duties elsewhere.

(e) During the period when the Plaintiff was Acting Sergeant the Fifth Defendant requested the Plaintiff to forward a report direct to a Senior Officer in Force Command in Melbourne rather than through 'normal channels' which required entry into the Correspondence Register and passing on to the Second Defendant for information/comment and authorisation. The Fifth Defendant informed the Plaintiff that the Senior Traffic commander had directed him to bypass the 'normal channels' and send the report directly to him without any further recommendations or comment by District Command Acting on faith of the representations made by the Fifth Defendant the Plaintiff directed the Fifth Defendant to make certain corrections and have the report entered in the Correspondence Register. The Plaintiff signed the report as sighted and returned the report to the Fifth Defendant who then mailed the report via the internal police mail system. A short time later the Plaintiff was rebuked by the Second Defendant for breaching protocol. The Plaintiff subsequently accused the Fifth Defendant of lying to her. The Fifth Defendant laughed and said, 'See how inept you are? Don't try and make me responsible for your incompetence. Fuck off', or words to similar effect;

(f) The Fifth Defendant with the Fourth Defendant as a front seat passenger accelerated his (the Fifth Defendant) private motor vehicle towards and in close proximity to the Plaintiff as the Plaintiff was walking along the side of the T.O.G. office driveway. The Plaintiff was obliged to take evasive action to avoid being struck by the vehicle driven by the Fifth Defendant;

(g) The Fifth Defendant on occasions refused to compile and submit briefs of evidence for checking by the Plaintiff;

(h) The Fifth Defendant contrary to a direction from Force Command refused to cease consumption of alcohol on police premises and refused to remove the alcohol from the premises when so directed by the Plaintiff;

(i) Shortly following an audit conducted by Chief Inspector Button and Senior Sergeant Tanner, during which alcohol was discovered on police premises the Fifth Defendant, Fourth Defendant and two other members gathered at the rear of the T.O.G. office and when the Plaintiff approached her vehicle to go home the Fifth Defendant and Fourth Defendant both shouted abuse at the Plaintiff and accused the Plaintiff of 'dobbing' them in to Command;

(j) The Plaintiff was locked out of the T.O.G. office on a number of occasions. On each such occasion the Fifth Defendant or Fourth Defendant or both the Fifth and Fourth Defendant were present within the Office;

(k) The Fifth Defendant on occasions crept up behind the Plaintiff and jumped so as to make a loud noise thereby alarming the Plaintiff and said, 'Don't get stressed, Pauline', or words to similar effect;

(l) During the period the Fifth Defendant followed the Plaintiff and her child while the Plaintiff was off-duty. During the period on may (sic) occasions at night and in the early hours of the morning a T.O.G. police vehicle was driven past the Plaintiff's house. On those occasions, the Fifth Defendant, Fourth Defendant and Sixth Defendant were rostered on duty;

(m) The Fifth Defendant ridiculed the Plaintiff when she asked for technical support or advice;

(n) The Fifth Defendant slammed doors in the Plaintiffs face;

(o) The Fifth Defendant refused to hand the Plaintiff the keys to Police vehicles instead throwing them across the room onto tables or benches. The Fifth Defendant failed to return keys to their proper repository to enable the Plaintiff to commence duty;

(p) The Fifth Defendant failed to pass on to the Plaintiff both official and personal messages;

(q) The Fifth Defendant in the presence of the Plaintiff and others referred to the Plaintiff as 'loopy' and 'that fucking dog'.

(r) While performing 'group efforts' at roadside locations the Fifth Defendant turned his back towards the Plaintiff if the Plaintiff spoke to him or asked for help. Further, the Fifth Defendant would fail to warn the Plaintiff of oncoming traffic at Preliminary Breath Testing Stations and would send through large trucks and other vehicles so that the Plaintiff was 'sandwiched' between vehicles in the idle of the road;

(s) On 17th June, 1996 the Fifth Defendant refused to work with the Plaintiff on the basis of his alleged belief that she was 'dangerous', 'smoked marijuana' and had 'fabricated evidence against a motorist' in a brief of evidence. The Fifth Defendant claimed that the Plaintiff had 'made a scene while in uniform at a local supermarket which had brought the Police Department into disrepute' and 'pulled a gun on a motorist';

(t) The Fifth Defendant in the presence of the Plaintiff and/or the Fourth and Sixth Defendants referred to the Plaintiff in terms such as 'dyke', 'slut', 'frigid', 'bike' 'boofing the bosses' and 'needing a good fuck';

(u) The Fifth Defendant whilst travelling in a police vehicle with the Plaintiff refused and/or delayed returning to Swan Hill after the Plaintiff's son was admitted to hospital;

(v) Knowing the Plaintiff had alleged an assault on her person by another police member named Kersten and that she had suffered injuries, the Fifth Defendant communicated directly with Kersten or indirectly with other persons associated with Kersten, information about the Plaintiff arising from her service at Swan Hill TOG for use in cross-examination of the Plaintiff at committal proceedings and the subsequent trial of Kersten upon charges related to the alleged assault including the following:

(i) the Plaintiff was addicted to a drug known as Ritalin;

(ii) searches of the Plaintiff's handbag and locker had been undertaken by members of Swan Hill TOG and/or a civilian named Sheryl Smith;

(iii) the Plaintiff's keys to the Swan Hill TOG office had been taken off her for disciplinary reasons;

(iv) the Plaintiff had been barred from entering the Swan Hill TOG;

(v) the Plaintiff had been removed from the Swan Hill TOG for disciplinary reasons;

(vi) the Plaintiff was psychologically impaired;

(vii) numerous complaints had been made against the Plaintiff whilst she was stationed at Swan Hill TOG;

(viii) that the Plaintiff had assaulted the Fourthnamed Defendant after he had pulled on the handbrake of a police vehicle which she was driving;

(ix) the Plaintiff had fabricated evidence against a motorist;

(x) that the Plaintiff was doctor shopping for medications which she was not entitled to be prescribed;

(xi) that the Plaintiff kept her medications and drugs in a little brown box the existence of which no person had been informed yet was known to members of Swan Hill TOG;

(xii) that the Plaintiff had fabricated evidence against the driver from the B & s Ball at Lake Boga;

(xiii) that the Plaintiff would go into dazes or stare vacantly into the air when serving with other members of Swan Hill TOG;

(xiv) that the Plaintiff had been tape recorded by the Fifthnamed Defendant and that it was proposed to play such tape which would demonstrate the Plaintiff was psychologically impaired or crazy;

(xv) that the Plaintiff had been removed from duties of Acting Sergeant at Swan Hill TOG because she was not doing a good job;

(xvi) that the Plaintiff drove a police vehicle at 120kph in a 60kph zone in McCallum Street, Swan Hill;

(xvii) that the Plaintiff was a marijuana smoker;

(xviii) that the Plaintiff had inappropriately handled a situation in which beer was stored in the Swan Hill TOG fridge contrary to regulations;

(xix) that everybody at the Swan Hill TOG hated the Plaintiff and that she had been removed from that station;

(xx) that the Plaintiff was involved in unwarranted outbursts of aggressive behaviour towards people;

(xxi) that the Plaintiff had made untrue complaints to the Ethical Standards Department of the Victoria Police;

(xxii) that the Plaintiff was herself under examination by the Ethical Standards Department of the Victoria Police;

(xxiii) that the Plaintiff was unable to look after her son properly;

(xxiv) that the Plaintiff had pulled a gun on a motorist.

The Plaintiff will seek to establish by evidence given and/or inferences to be drawn from evidence given that a source of the information referred to was the Fifthnamed Defendant by reason of the evidence of the hostility and animosity demonstrated by the Fifthnamed Defendant towards the Plaintiff, the Fifthnamed Defendant's knowledge of the possibility of disciplinary proceedings being brought against him by reason of complaints made by the Plaintiff, the fifth Defendant's discussions by telephone with another member Chris Hulley concerning the Plaintiff whilst Kersten was present, further the notification by the Fifth Defendant to members of Kersten's defence that he had information to pass on concerning the Plaintiff and that she should be contacted for that purpose and further the detail of the information provided to Kersten's counsel concerning the Plaintiff's service as a member of the Swan Hill TOG.

[119]

PARTICULARS OF NEGLIGENCE AND/OR BREACH BY THE FIRST DEFENDANT

(a) Failing to supervise properly or at all the Fourth and Fifth and Sixth Defendants so as to prevent injury to the Plaintiff;

(b) Failing to discipline the Fourth and Fifth and Sixth Defendants;

(c) Failing to give any or any proper and adequate instructions to the Fourth and Fifth and Sixth Defendants, including prior to July, 1995;

(d) Failing to take any or any adequate steps to prevent harassment and intimidating conduct towards the Plaintiff by other members of the Swan Hill Traffic Operations Group and particularly the Third and Fourth and Fifth Defendants;

(e) Failing to transfer the Plaintiff from the Traffic Operations Group Swan Hill;

(f) Falling (sic) to transfer the Fourth and Fifth Defendants from the Traffic Operations Group Swan Hill;

(g) Failing to transfer the Plaintiff from the Prosecution Branch at Swan Hill;

(h) Failing to investigate properly, or at all, the complaints of the Plaintiff as to the behaviour and course of conduct of other members of the Swan Hill Traffic Operations Group;

(i) Failing to control the behaviour and the course of conduct instituted by members of the Traffic Operations Group including the Fourth and Fifth and Sixth Defendants;

(j) Failing to prevent the harassment, intimidation, abuse, obstruction, stalking and humiliation by other members of the Police Force including the Fourth and Fifth Defendants;

(k) Failing to issue a policy statement in respect of the Traffic Operations Group Swan Hill;

(l) Failing to properly investigate the Plaintiffs complaints and remedy the situation when requested by her to do so;

(m) Failing to properly investigate the allegations made against the Plaintiff by other members of the Victoria Police and the Fourth and Fifth Defendants at Swan Hill and also by Sheryl Smith, the Seventh named Defendant;

(n) Causing, permitting and allowing rumour, innuendo, false information and false allegations to be circulated amongst members of the Victoria Police at Swan Hill;

(o) Causing, permitting or allowing the continued behaviour;

(p) Causing, permitting or allowing investigations of the complaints against the Fifth Defendant to be conducted by a relative of the Fifth Defendant;

(q) Failing to properly instruct and supervise members of the Victoria Police;

(r) Failing to enforce the Code of Ethics of the Victoria Police;

(s) Failing to or refusing to institute disciplinary charges against members of the Victoria Police and particularly the Fourth and Fifth Defendants;

(t) Informing the Equal Employment Opportunity Office of the Victoria Police that the Plaintiffs complaint in respect of other members of the Traffic Operations Group Swan Hill had been withdrawn;

(u) Knowing that the Plaintiff was suffering medical and psychological symptoms of stress, failing to take any or any adequate steps to prevent the behaviour, the course of conduct and the continued behaviour from occurring;

(v) Acting on or accepting information from unreliable and inappropriate people in respect of the Plaintiff;

(w) Failing to check the source and veracity of information relating to the Plaintiff;

(x) Failing to heed the advice and warnings of Sergeant Busiko, the immediate superior of the Plaintiff, of the harm, damage or injury that was being occasioned to the Plaintiff by, inter alia, the Fourth, Fifth and Sixth Defendants;

(y) Failing to monitor the ongoing welfare of the Plaintiff especially after she complained about the conduct of TOG members;

(z) Permitting, causing or allowing the course of conduct and the behaviour to occur and continue to occur;

(aa) Failing to comply with the Ethical Standards of the Victoria Police and the provisions of the Police Regulation Act;

(bb) Failing to properly and adequately instruct the Fourth and Fifth Defendants and other police officers to cease the behaviour, the course of conduct and the continued behaviour;

(cc) Failing to comply with the provisions of the Equal Opportunity Act 1995.

[193]

There is no doubt whatsoever that the plaintiff concealed from her superior officers at Swan Hill the fact of her extensive significant psychological problems resulting from the alleged Kersten assault, the fact that she had seen a psychologist at Bendigo who had diagnosed her, at least by early December 1995, to be suffering from a post traumatic stress disorder at an extreme level, and the further fact that she was also receiving ongoing treatment from a psychologist at Swan Hill, Ms Baudinet-Johnson.
The Court is well satisfied that in the period encompassing the latter part of 1995, the plaintiff was suffering from significant mental health issues as a direct result of injuries received in the alleged assault by Kersten.
As a matter of commonsense and based upon the plaintiff's own admitted symptoms to Ms Coleman and Ms Baudinet-Johnson and their diagnosis, it would seem that the plaintiff may well have been unfit for operational duty as a police officer and that for such reason that she may well have required prompt assessment by a police medical officer in that regard.
As already stated, the plaintiff concealed from her superior officers the parlous state of her health following the alleged assault by Kersten by telling them, when they had raised the issue of the alleged assault and its consequences to the plaintiff, that it was none of their business.
One can sympathise in this regard with the plaintiff as she had only just arrived in Swan Hill trying to make a new life for herself, but the Court is of the very clear view that had Button and Henry known of the nature and extent of the plaintiff's then mental illness, she would not have been allowed to perform operational duties at SHTOG, much less being appointed as the acting sergeant when Busiko himself was away on sick leave. Rather, it would seem that had Button and/or Henry been seized at all of the relevant information, either officer would have referred the plaintiff for assessment by a police medical officer as to her ability to carry out operational police duties.

At a glance

Court

Decision date

Before

Source

Judgment (326 paragraphs)

Findlay v State of Victoria & Ors [2009] VSCA 294 (11 December 2009)

Parties

Legislation Cited (2)

Cases Cited (7)