Flanagan v Commissioner of Police

Flanagan v Commissioner of Police - [2009] NSWIRComm 106 - NSWIRComm 2009 case summary — Zoe

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History of Application 4 This application was first heard by Staunton J who delivered judgment on 17 February 2008. Her Honour declined the application for review of the Commissioner's decision and the order removing Mr Flanagan from the New South Wales Police Force was upheld. The judgment of Staunton J was appealed. The Full Bench granted leave to appeal and the appeal was upheld. The decision of Staunton J of 17 February 2008 was quashed and the application of Mr Flanagan was remitted for re-hearing. 5 The applicant in the re-hearing of the matter before the Commission was represented by Mr A.A. Hatcher, of Counsel and the Police Commissioner was represented by Mr P.M. Skinner, of Counsel. There was no agreement between the parties as to the conduct of the matter for example: in relation to the tendering of transcripts etc, (notwithstanding in the appellate court judgment there was a suggestion there was agreement as to the conduct of the rehearing). I therefore determined the matter would be by way of a hearing de novo. 6 The following were tendered by the applicant: three statements of Michael James Flanagan dated 7 November 2007, 7 December 2007 and 11 November 2008; a hand drawn diagram of the Wellington Hotel (place of the incident); a character reference from Sergeant O'Toole dated 7 November 2007; a character and work history reference from Paul Bousfield; a criminal history of Martin James Amatto; a bundle of documents signed by Senior Chief Inspector Haynes; an extract from C@TSI (Customer Assistance Tracking System Inquiry); a transcript of proceedings before Staunton J; three transcripts of criminal proceedings before the Local Court dated 5, 6 and 7 March 2007; a judgment of the District Court dated 6 August 2007 regarding the s10 benefit; a transcript of 21 July 2008, matter No. 263 of 2008; a COPS inquiry warning from 9 April 2009 regarding Martin Amatto and a COPS two page audit report dated 19 April 2009 regarding Martin Amatto. 7 The following were tendered by the Respondent: the Commissioner's Confidence Submission regarding Michael Flanagan; a CCTV footage disc of the relevant event at the Wellington Hotel; then Detective Chief Inspector Lanyon's Statement dated 14 November 2007; Constable Renee Smith's Statement dated 14 November 2007; Senior Constable Edwards' Statement dated 22 November 2007; Sergeant Hurst's Statement dated 29 November 2007; Aboriginal Strategic Direction 2003-2006; an Intelligence Information System Report Summary; first audit run and Martin James Amatto's affidavit sworn 11 March 2009. 8 The following witnesses were required for cross-examination: · Mr Flanagan; · Detective Chief Inspector Malcom Lanyon; · Constable Renee Smith; · Senior Constable Bradley Edwards; · Senior Sergeant Andrew Hurst; and · Martin James Amatto via video link. 9 Much of the documentation tendered through these witnesses included investigation reports, recommendations and personnel files covering the service of the applicant. The applicant was required for cross-examination. Many of the officers called were involved in the preparation of documentation, the conduct of investigations of events relied upon, or Police Officers who worked with the applicant. The applicant, in reply, gave a financial statement as to his post termination earnings and relied upon the documentation already filed before the Commission. 10 The Commissioner has the power to terminate an officer if he no longer has confidence in an officer's suitability to continue to serve in the Police Force and the procedures to be followed by the Commissioner in his decision making are defined in statute. The Commissioner issues a Notice and then, after considering any Reply to the Notice, he can issue an Order, with Reasons, in accordance with s181D of the Police Act. Section 181D relevantly states: 181D Commissioner may remove Police Officers (1) The Commissioner may, by order in writing, remove a Police Officer from the NSW Police Force if the Commissioner does not have confidence in the Police Officer's suitability to continue as a Police Officer, having regard to the Police Officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the Police Officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a Police Officer, and (b) must give the Police Officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the Police Officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the Police Officer from the NSW Police Force. (5) The removal takes effect when the order is made. 11 The Commissioner followed the procedure as defined in the Act. He issued a Notice re two alleged breaches by the applicant of the ethical standard required of a Police Officer, considered the applicant's reply to the Notice and the issues raised therein, then issued an Order With Reasons. It is necessary, however, to recite the contents of both the Notice and the Order with the Statement of Reasons issued in accordance with s181D of the Police Act to address a preliminary issue raised by the applicant.

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Applicable Legal Principles 16 The proceedings are governed by Division 1B of Part 9 of the Police Act. Section 181E of the Act provides a Police Officer may apply to the Industrial Relations Commission of New South Wales (the Commission) for a review of an Order removing a Police Officer from the Police Service on the grounds that the removal was harsh, unreasonable or unjust. By operation of s181G(1) of the Act, the provisions of the Industrial Relations Act 1996 (the IR Act) apply to the application for review, subject to some stated limitations in the same way as those provisions apply to an application brought under Part 6 of Chapter 2 of the IR Act. Relevantly, s181(F) guides the Commission in its consideration: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 17 The Commission, in an application under s181E, takes a number of matters into account. In Newton and New South Wales Police Service (No 2) (1999) 87 IR 66, the Full Bench held (at 75): While s 181F requires the Commission, first, to consider the reasons provided by the Commissioner of Police for the decision to dismiss, it also requires the Commission to consider, secondly, the case presented by the applicant as to why the dismissal was harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner of Police in answer to the applicant's case. and (at 77): Section 181F picks up those notions and, in reviewing a dismissal under s 181D, imposes a statutory obligation on the Commission to consider the three matters specified in s 181F(1) before finally determining the matter. and further (at 79): The passage emphasised confirms our consideration of s 181F; that the role of the Commission is to conduct a review of the merits of the decision of the Commissioner of Police, to consider the whole of the circumstances of the matter in a way determined by s 181F and apply the statutory criteria in that situation. 18 In Van Huisstede v Commissioner of Police (2000) 98 IR 57, Walton J, Vice-President, considered the role of the Commission thus: 193 the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree: … it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: … a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself … That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons. 194 What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner.

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And as was further said in Van Huisstede : 199 Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. 19 Not every fault in the procedure adopted by the Commissioner will require the Commission's intervention. As was said in Starr v Commissioner of Police [2001] NSWIRComm 226: 140 ... Each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case. I consider that there are features of this case which demand a full examination of the evidence relating to the conduct of the applicant which was relied upon by the Commissioner in removing him from the Police Service, although the deficiencies in the process adopted by the Commissioner will be relevant to the ultimate conclusion as to whether the removal was harsh, unreasonable or unjust. and: 325 ... Where the applicant brings into the proceedings facts and circumstances arising after his removal which bear upon the issues to be determined those matters must be taken into account in considering whether a removal was harsh unreasonable or unjust: s181F(1)(b). It is by this means that the later conduct of the applicant bears upon the determination in this matter as to whether his removal from the Police Service was harsh, unreasonable or unjust. In any event, as properly conceded by Mr Docking, that conduct goes to the applicant's credit as a witness. 20 In the decision of Commissioner of Police v Dobbie [2006] NSWIRComm 285, the Full Bench endorsed the approach set out in Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 to a review by the Commission of an Order made under s 181D at [29]: 29 The decision of the Full Bench in Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 at [134]-[136] is clear authority for the proposition that the Commission's task in undertaking a review of any order made under s 181D of the Police Act was to undertake the review and make a fresh and independent decision based on all of the material before the Commission and not merely a review of whether the Commissioner's decision was correct at the time it was made. 21 The Commissioner's reasons are "plainly a matter of particular significance" it was said in Little v Commissioner of Police (No. 2) (2002) 112 IR 212 at [74]. Further, Hosemans v Commissioner of Police (No 2) also dealt with issues of onus and burden of proof, saying at [31]: The issues of onus of proof and evidentiary burdens in matters relating to the removal of a police officer under s 181B of the Police Act was discussed at length in Starr and it is not necessary for us to explore those issues in detail in the present matter. However, it is worthy of repetition that the legislative stipulation in s 181F(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 s 181F and does not offend s 181F(2).

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The Charge 23 The first issue raised by the applicant for consideration is whether he was terminated on the ground of "conduct" alone or on the ground of his "conduct and integrity" as stated in the Order dismissing him. The Commissioner's power to remove a Police Officer as stated in s181D of the Act (see [10] above) empowers a termination after consideration of the Police Officer's "competence, integrity, performance or conduct" (emphasis added). The applicant notes the Order for Termination refers to his "conduct and integrity" but in the Notice and in the Reasons for Order, only "conduct" was relied upon. Therefore, the applicant contends he must defend his "conduct", as particularised, but not defend his "integrity" as the order indicates. 24 The respondent asserts in the circumstances surrounding his "conduct" it has ground to make a consequential attack on the applicant's "integrity" and this was made clear to the applicant through reference to the breach of the Police Code of Conduct and Ethics in the Notice and Order and Statement of Reasons. Further, the respondent contends as a fact the applicant has now conceded the two assaults have been found proven in law and this fact endorses the respondent's assertion his "integrity" is in issue. Generally, the respondent asserts, in a circumstance where a serving Police Officer, under the influence of alcohol, off duty, and who is found to have assaulted two persons in a public place, must, in such a circumstances, have his "integrity" under challenge. Further, the respondent submits, a person who accesses the COPS, without authority, for his own purpose rather than for a professional purpose, also brings his "integrity" into question. 25 It is difficult to determine whether there is a limitation on the Commission in considering Mr Flanagan's "integrity" - such limitation being placed on the Commission by the wording of the allegation as contained in the Notice and Reasons - without an analysis of the circumstance surrounding the alleged conduct. It is therefore necessary to consider the two "conduct" grounds relied upon in the termination before a determination on this issue.

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[9] Up until the incidents that gave rise to the s 181D Order, Mr Flanagan had no previous complaints on his record as a Police Officer. He attained the rank of Senior Constable in February 2001 and received Officer of the Year for the Granville/Rosehill Local Area Command in 1999 and again in 2003 for the Penrith Local Area Command. He also received an award for commitment to policing and the community in 2006. 28 I accept, therefore, from this history, the applicant could be described as "a well qualified Police Officer with an exemplary record and a record of achievement" when, on Saturday 15 April 2006 (Easter Saturday), he drove, accompanied by his girlfriend, Ms Humphries, from Penrith to Wellington. The applicant had young children who still lived with his ex-wife in the Wellington area. The applicant, accompanied by Ms Humphries, her father and a friend, at about 8.30pm, decided to go to the Wellington Hotel for drinks. The hotel was across the road from Ms Humphries' family home. 29 Mr Amatto, with his friend and cousin, Wade Hynch, arrived at the Wellington Hotel at approximately 9.30pm-10.00pm. Mr Amatto went into the poker machine room. He saw the applicant and pointed out to Mr Hynch that Mr Flanagan was "a copper. He used to work here". There was then, I accept, a verbal exchange between the off-duty Leading Senior Constable Michael Flanagan and Mr Amatto. The publican, Christopher Thompson, witnessed this exchange to some extent but could not give evidence as to its content. He was of the view the exchange was fiery and the raised voices and tone indicated to him in his hotel a situation that could escalate. However, before the Local Court, Mr Thompson opined it was Mr Flanagan's tone which troubled him. The content of that conversation is contentious. It is arising from the content of that conversation the applicant raises the issue of "provocation". 30 After the heated exchange, Mr Amatto left the poker machine room and went to the main bar in the Wellington Hotel. Ms Humphries, Mr Flanagan's partner, had gone into the main bar and she asserts there she saw Mr Amatto looking at the CCTV showing Mr Flanagan and at the same time she asserted Mr Amatto was muttering threats. She went back to the poker machine room and persuaded Mr Flanagan to leave the hotel. Mr Amatto was then returning from the main bar with two cans of an alcoholic beverage one in each hand when Mr Flanagan with Ms Humphries left the poker machine area and came across Mr Amatto in the hotel corridor. CCTV footage clearly shows Mr Flanagan started a melee. I concur, from sighting the CCTV footage, this melee was as described by her Honour, Magistrate Walquist on 7 March 2007 (in her decision in the Local Court) (at 81 - 82): ... certainly the video shows very clearly that the first aggressive step is taken by Michael Flanagan towards Martin Amatto and that he takes a step towards him, he puts his elbow out and strikes him, which seems to spin him around and then he grabs hold of him first with one hand, pulls him towards him, and then the other. ... Certainly viewing the video does not support the accused's account of Martin Amatto stepping into his space. That is not supported at all by the video it is completely the other way round. The accused account of holding, thinking that he held something and that he might stab him, is not supported by his actions in those circumstances. One would have thought that if he was seriously feeling under threat, that he would not have taken the action that he did which was clearly from the video an aggressive action. He moved towards him, he struck him, he then grabbed hold of him, he pulled him towards him. ... ...I am satisfied on the basis of that incident, the beginning of the incident that there is clearly an assault by Michael Flanagan on Martin Amatto. And that because clearly it was started by Michael Flanagan and it was not in self defence, there is no evidence of self defence from his body language or about anything he did. 31 And as to the assault on Mr Hynch, I am further satisfied again with her Honour Magistrate Walquist's description of what is sighted on the CCTV at [80]: ... Flanagan throws two punches at Hynch's head and I am satisfied they are not wild arm movements they appear to be two punches thrown fairly clearly one after another towards Mr Hynch who has his head turned away at the time.

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Having seen the CCTV footage, I adopt the above description of the assaults as described by her Honour, Magistrate Walquist and concur with the finding that Mr Flanagan struck both Mr Amatto and Mr Hynch. The two assaults were therefore proven. 32 Mr Flanagan, having argued self defence in the Local Court and having had the defence rejected by her Honour accepted the findings and appealed only on the penalty imposed by her Honour but not the conviction. His Honour, Judge A. Hughes heard the appeal and held on 6 August 2007 (at 3): ... he has now admitted to the assault. It was a one-off. His record is impeccable. He has no offences, not even traffic offences. The magistrate found that it was out of character. I am satisfied that it was out of character, given his exemplary record. I uphold the appeal, dismiss the charge without conviction and I find the offence proved but under s10 of the Crimes (Sentencing Procedure) Act , having regard to the good character and age of the defendant, and the extenuation circumstances, I am satisfied that it is inexpedient to inflict any punishment. I order that the charge be dismissed. 33 However, the Local Court Magistrate, in her Honour's reasoning, also made the following comment (at 82): Even if there had been words spoken and there had been some provocation, I am not satisfied that that justified the aggressive actions that he took that are displayed on that video. 34 The applicant, in this hearing, takes up the issue of "provocation" as addressed by her Honour and submits, in the circumstances surrounding the two proven assaults, this Commission should determine Mr Flanagan was "provoked" and take the element of provocation into account in its determination as to whether the termination of the applicant was harsh. 35 Evidence revealed Mr Amatto was a young Aboriginal man who was 23 years of age at the time of the incident. He has a long criminal record. From sighting that record it is clear his unlawful behaviour began as a youth, but progressed from stealing to drunkenness to drug taking and some later acts of violence (especially when under the influence of alcohol and generally in a domestic environment). 36 It is agreed between the parties and verified by an independent witness, Mr Thompson, the Hotel Proprietor (whose evidence before the Local Court was tendered) that there was a heated exchange between Mr Amatto and Mr Flanagan in the poker machine room, the content of which, Mr Flanagan suggests, caused him fear and concern. There was, between Mr Flanagan's version and that of Mr Amatto, conflict as to who began the abuse, whether it continued on at a table near the poker machines and whether Mr Flanagan's friends joined in. 37 Mr Amatto gave evidence. The applicant invites the Commission to reject Mr Amatto's recollection of the event and submits the Commission should accept Mr Flanagan's version in order to be persuaded Mr Flanagan was, prior to the assaults, "provoked". Mr Amatto, in evidence, agreed his excessive use of marijuana has had a negative affect on his memory. This was revealed in Mr Hatcher's cross-examination of Mr Amatto on 20 March 2009 with Mr Amatto appearing via video link: Q. Your usage of marijuana, has it affected your memory? A. Yeah.

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He stood up and pointed at me and said "I'm just saying, watch your back you mutt - I'll gut you". 39 Mr Amatto says of the event that he did ask Mr Flanagan what he was doing back and then Mr Flanagan went over to his friends. Mr Amatto says of the event: 5. He then got up from the machine and went and sat at a table with four other young blokes. I kept playing the poker machine and got some good pays on it. I could hear FLANNIGAN talking to the other people he was with. I was only catching every couple of words, cause of the noise in the room, but it sounded like he was saying, "Blacks" and "Theyre all scoundrels" I didn't hear what he said in between that because of the noise of the machines but I felt at the time that he was putting shit on me about being black. I turned around and saw that FLANNIGAN and the other four were all looking towards me, so I jumped up and said to him, "Who are you talking about mate, who you calling black scoundrels, are you calling us aboriginal people scoundrels?" He said, "Ah fuckoff, why don't you go and get your mates." I said, "Ah fuckoff." 40 This statement was given by Mr Amatto to the Police within 28 days of the event. In cross-examination before me by Mr Hatcher for the applicant, Mr Amatto's recollection of the event, as stated to the Police, was almost three years later and not recalled by him in its detail as provided in the statement to the Police or in his affidavit sworn on 11 March 2009. 41 However, I do not accept in a circumstance where Mr Amatto's oral evidence was often vague and inconclusive as to the details of events leading up to these two assaults that I should therefore accept Mr Flanagan's complete version of the event as submitted by the respondent. I am not persuaded all the detail recited by Mr Flanagan leading up to the proven assaults are established in order to be satisfied the assaults, or at least the assault on Mr Amatto, was "provoked". While Mr Thompson recognised from a distance the exchange was heated, he did not hear the specific words spoken in the exchange, so is unable to corroborate as to the language used. Further, he was of the view it was Mr Flanagan's tone which caused him concern. 42 Mr Flanagan, in this hearing, says he believes it is important for the Commission to understand his thinking at the time, which was that he was afraid so he decided to leave the hotel and that was why he was in the corridor and reacted in the admitted way. 43 This melee occurred after both protagonists had been drinking. Mr Flanagan had been at the hotel from 8.30pm. The melee occurred at approximately 10.30pm after the arrival of Mr Flanagan and Mr Amatto, who were both under the influence of alcohol. Constable Smith, who attended at the hotel after the melee, noted: While I was speaking with FLANAGAN, I observed that he was a bit unsteady on his feet and that his speech was slurred. I could also smell alcohol on his breath. I formed the opinion that he was well affected by alcohol. 44 The initial investigation recorded a finding Mr Flanagan was "well affected by alcohol". Mr Amatto agreed he had consumed significant amounts of alcohol even before he went to the hotel with Mr Hynch. Mr Hynch agreed they had consumed port mixed with lemonade and both he and Mr Amatto were "pretty much" intoxicated and then continued to drink at the hotel. I am satisfied both Mr Flanagan and Mr Amatto were under the influence of alcohol at the time of the event. 45 However, given the state of the evidence, I am willing to accept, for the purpose of my consideration as to whether the decision of the Commissioner to terminate Mr Flanagan's service in the Police Force was harsh, that following the heated exchange in the poker machine room with Mr Amatto, Mr Flanagan was scared. Mr Flanagan was, at the time, under the influence of alcohol. I accept his alcohol consumption could have caused in him an exaggerated reaction of fear and, arising from Mr Amatto's behaviour, he was therefore stressed by the exchange. However, I reject this stress/fear should be perceived as a "provocation" to the assault against Mr Amatto. An element of provocation cannot be claimed in relation to the applicant's proven assault on his friend and cousin, Mr Hynch. 46 Mr Flanagan now admits his behaviour was unlawful. He has been found to have committed two assaults. Mr Flanagan was, on 27 March 2007, suspended on full pay after the conviction and fine by the Magistrate. He was served a Notice on 4 June 2007. He was allowed an extension to reply to the Notice until after the District Court hearing of his appeal. 47 Therefore, a question for the Commission is whether, in this particular circumstance, an officer who now admits to two assaults, but, I accept, reacted to a verbal exchange with Mr Amatto and was afraid (rather than provoked) leading up to those assaults, should be terminated or whether in this particular circumstance, where there is evidence of "years of good performance of this Police Officer", such a termination was harsh.

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57 The audit conducted by Sergeant Hurst revealed that Mr Flanagan made regular inquiries on COPS related to events in the Wellington Area and that he had also checked Intelligence Reports in the COPS system on a number of persons residing in the Wellington area. There was no official purpose to these accesses (although his family lived in the Wellington area, Mr Flanagan, at the time, was stationed at Penrith). The audit revealed on 19 April 2006, Mr Flanagan made at least seven inquiries related to both the Wellington Hotel incident and he also checked, by "drilling down" into the system to get access to Mr Amatto's criminal history. Mr Flanagan then continued what was his practice of accessing events in the Wellington area. This is called "out-of-area" accesses. On 1 May 2006, he again checked an event related to Mr Amatto and on 2 May he again "drilled down" into Mr Amatto's criminal history. He also "drilled down" into the criminal record related to Ms Burns, Mr Amatto's companion. 58 Arising from the audits of Mr Flanagan's COPS access, the investigation questioned why Mr Flanagan was accessing reports out of his area and drilling down into a number of criminal records and Intelligence Reports on the COPS. 59 The applicant firstly contends the charge related to his asserted unauthorised access was restricted in the Notice/Reasons to the dates as particularised and by the limitation of the words in the Notice. The words of the allegation were as follows: 2. After this incident and while on duty you accessed the Computerised Operational Policing System (COPS) and made a number of enquiries that related to the incident at the Wellington Hotel. You also accessed the personal details and criminal history record of Mr Amatto. In total you made 14 unauthorised accesses during the period 13 April 2006 to 10 May 2006. 60 The applicant therefore submits the Commission should examine only the access related to the Wellington Hotel incident between the relevant dates. As to the COPS unauthorised access, the applicant contends: · the access on 19 April, including the drilling down into Mr Amatto's criminal record, was authorised by his superior, Detective Chief Inspector Lanyon; · the applicant had made a complaint about the serious threat made to him by Mr Amatto and it was not investigated by the Police Service. The drilling down occurred in the applicant's endeavour to persuade the Police Service that as Mr Amatto had a history of violence, the applicant's complaint should have been taken seriously and investigated; · the COPS access as to Wellington report was authorised but simply outside his service area; · access to COPS records are made at all times by all police; · the COPS access acts were not deliberate nor concealed; · the internal investigation of the COPS access recommended the breach be handled by the Local Area Command. 61 There was also an issue between the parties as to when Mr Flanagan contacted his superior, Detective Chief Inspector Lanyon, at Penrith to report the Wellington incident. The issue arose because Mr Flanagan asserts he was authorised by Detective Lanyon to write an Intelligence Information Report of the incident and he was so authorised before his first access to the Wellington event report. In a circumstance, if access is made in order to perform the professional work of a Police Officer (that is to make an Intelligence Report) it cannot be termed as an "unauthorised" access. Detective Lanyon said in his initial statement: About 6.40am on 19 April 2006, I was performing duty as the Duty Officer at Penrith Police Station. I was approached by Senior Constable FLANAGAN who advised that he wanted to let me know about an incident that had occurred at the Wellington Hotel, Wellington on the evening of Saturday 15 April 2006.

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I am unable to remember if it was later on the 19th of April or the following day, Senior Constable FLANAGAN spoke to me and advised me that he had been unable to get in contact with either Senior Constable EDWARDS or Constable SMITH. I advised him to continue attempting to contact those officers but having regard to the nature of the threats of violence made by AMATTO which were towards 'police' it was appropriate for him to create an information report setting out the threats for the information of police who may come in contact with him. 62 Mr Flanagan agrees, as the records from the audit indicate, he made the first COPS accesses at 6.04am to search the Wellington Police records. He asserts the first access regarding the Wellington event at 6.04am was on the instruction from Detective Chief Inspector Lanyon to prepare an Intelligence Report on the event. 63 Detective Chief Inspector Lanyon maintains his instruction was at 6.40 am and he recorded the conversation in his diary. This would be at odds with Mr Flanagan who asserts the first access was made under instruction and that was at 6.04am. However, Detective Chief Inspector Lanyon also confirmed he had two conversations that morning with Mr Flanagan. He agreed the longer conversation was the one recorded in the notebook. Detective Chief Inspector Lanyon accepted the note in his diary which read "view COPS system re" could be a record of either something he told Mr Flanagan to do, or something Mr Flanagan had told him he had done, and he therefore could not deny Mr Flanagan's proposition it was recording something that he had told Mr Flanagan to do. Further, he agrees he told Mr Flanagan to contact the investigating officers. Mr Flanagan says therefore the COPS access referred to in his email, which access triggered the COPS audit, was due to Detective Chief Inspector Lanyon's instruction and was an authorised access. Further, he submits the email itself, which revealed the asserted unauthorised access, was sent to the investigating officer (of the event) on instruction from Detective Chief Inspector Lanyon and does not reveal as contended, an unauthorised access. 64 These details become important to both the Commissioner's case and the applicant's case. Mr Flanagan asserts he was authorised to access COPS by Detective Lanyon as to the event. The Commissioner raises a challenge to Mr Flanagan's integrity and says rather the evidence supports an inference Mr Flanagan made up a story in his Intelligence Report of the event related to the evening at the Wellington Hotel because of his concern a complaint was to be made against him. 65 The Intelligence Report, Mr Flanagan wrote asserted, incorrectly, Mr Amatto assaulted him and Mr Amatto was the aggressor in the melee. He also recorded Mr Amatto "may make fresh allegations" and noted "Intel submitted for POI (Person Of Interest) threatening off duty police and the threat of stabbing police". 66 By May 2006, the Orana Crime Management Team took over the investigation from Sergeant Hurst who conducted the local investigation. A formal interview had been conducted with Mr Flanagan as part of the investigation. At his interview on 19 April 2006, Senior Constable Flanagan gave an assurance, as he had been made aware his COPS access was under question, he no longer continued his practice of reviewing the station summaries (events notices) of other commands. 67 After Mr Flanagan's interview, further inquiries and interviews were then conducted by the Orana Crime Management Team with police involved in both issues who were outside the Orana Command area. Persons outside the Police Force who could be involved (for example, Mr Thompson) were also interviewed. 68 The investigation file was then transferred to the Penrith Crime Management Team (as he was now stationed at Penrith) for a further examination of the applicant's general use of the COPS reporting system. 69 The inquiries identified three issues: Issue 1, the alleged assaults; Issue 2, a truthfulness/integrity issue; Issue 3, the unauthorised use of the COPS. The investigation concluded: The subject officer made over 41 enquiries on records relating to the Wellington Area. Nine of those enquiries can be unequivocally directly linked to the incident in which he was involved on 15 April 2006. During the directed interview, the subject officer stated that he enquired on the event and(sic) Martin AMATTO to find out if the matter had been reported appropriately. He also enquired so that he could see if there was any pending follow up action against himself so he could report it to a Duty Officer. He stated that he was advised by Chief Inspector LANYON to create an intelligence report in relation to the incident and to supply Chief Inspector LANYON with the event number of the incident. ... The COPS accesses following the incident on 15 April 2006, were again purely voyeuristic, for his own purpose, and to enquire on the status of the incident at the Wellington Hotel in which he was involved, and were again not for an authorised purpose.

[89]

From the foregoing, am I to assume the only issues against Flanagan are that of Assault (2) and Inappropriate COPS accesses with Penrith LAC to deal with the latter? Furthermore, that there is not issue of Untruthfulness levelled against Flanagan that requires further investigation. 72 It was confirmed by the internal investigator of the Orana Crimes Management Team to the Penrith Crimes Management Team this was their conclusion, namely; there was no issue of untruthfulness to be pursued against Mr Flanagan. Issue No. 1 was, therefore identified as the allegation of two assaults (arising from the viewing of the CCTV footage by police). Issue 2 became the unauthorised COPS access. 73 Therefore, the question as to "Untruthfulness and Integrity" was not further pursued. Further, the recommendation of the internal investigation with the involvement of both the Orana and Penrith Crime Management Teams was that the COPS access issue be handled internally, but it was also found there was "sustained" a finding that Mr Flanagan was "untruthful to the investigator" as to that access. The identified separate issues, as to whether Mr Flanagan perverted the course of justice and whether there should be a challenge to his truthfulness/integrity because of his submission and the content of his Intelligence Report, were considered and rejected. 74 Given the determination of the Police Service after its internal investigation, and the overview of the investigations conducted by the two Police Crimes Management Teams (at Orana and Penrith), I do not accept it is open for the respondent now to assert an inference should be cast as to Mr Flanagan's purpose, that is, his truthfulness/integrity in creating the Intelligence Report. The question was considered and then rejected by the Police in two Crime Management overviews of the investigation and I do not accept the Commission should go beyond that reasoning. In accordance with the reasoning in Byrne v Australian Airlines (1995) 185 CLR 410, matters that were known and not relied upon by the "Decision Maker" cannot be further relied upon. 75 Therefore, I find, as per the particulars relied upon, Mr Flanagan was removed for his "conduct" and his "integrity" was not considered by the Police Service to be an element of the charges he faced. His "untruthfulness" to the investigator as to his COPS access, the Police Service determined, should be handled internally. 76 However the fact of his unauthorised COPS access is relied upon by the Commissioner and must be given consideration. The Police Service in its inquiry revealed some 41 questionable accesses to COPS records. It chose, however, to rely upon only 14 of those unauthorised accesses as foundation for the second charge it relied upon as to his "conduct". A challenge is made to the applicant's assertion that many of the 14 were authorised. However, I am satisfied the audit in the pleaded period reveals there was unauthorised access to the COPS system on a significant number of occasions by Mr Flanagan. I am satisfied there is revealed a pattern of conduct by Mr Flanagan of unauthorised access to the COPS. I am satisfied the allegation he has to defend and which he was properly advised by the Commissioner was as to ALL his unauthorised accesses in the relevant period and not the access which he identifies as only related to the Wellington incident. I am satisfied the Notice, Reasons and Orders make clear that reliance was placed on all unauthorised accesses identified in the audit during the relevant period. 77 Mr Flanagan's explanation as to his acknowledged unauthorised access to the COPS over the particular period in April/May relied upon is as follows: he received an instruction from Detective Chief Inspector Lanyon after he reported to his superior of the Wellington event, he was authorised by Detective Chief Inspector Lanyon on 19 April to look for any "event" report from Wellington in order to prepare an Intelligence Report of the event where he asserted police safety was threatened, he was required to "drill down" into Mr Amatto's criminal record to complete his Intelligence Information Report. 78 However, the applicant's explanation for the "drilling down" to review again Mr Amatto's criminal record on 2 May 2006 and that of Mr Amatto's partner, Ms Burns, on the same day, I do not accept. Mr Flanagan asserts this access was to see if any other incidents re Mr Amatto were reported and as to the access to Ms Burns' history, its purpose was to check whether Mr Amatto had committed acts of violence against her. Mr Flanagan asserts overall he was concerned the Wellington Police "weren't looking into the matter involving the Wellington Hotel properly! ... If I had come across anything I was going to bring the information to the attention of my duty officer". That is, he says, he made such access because his complaint of Mr Amatto's asserted violence towards him and the Police Force generally was not being viewed seriously by the Police Service. I do not accept any of these explanations legitimises his access to Mr Amatto's and Ms Burn's criminal history on 2 May 2006. Further, Mr Flanagan gave an assurance he would stop his out-of-area access but that did not stop him accessing the COPS related to the event. 79 The COPS audit further revealed Mr Flanagan accessed, in the relevant period, not only "event" reports but other "intelligence" reports related to other persons he knew in the Wellington district. He asserted he did this to stay abreast of the policing environment in the areas he worked, lived and regularly visited. He saw this as being proactive and obtaining general intelligence gathering in order to be a good Police Officer. Further, he asserted, looking at station summaries and significant events was by senior officers "rammed down the throats of junior officers day in day out". Counsel for Mr Flanagan suggests what has been revealed is a case of access but no dissemination. However, I have no doubt, had the unauthorised access revealed any useful information, Mr Flanagan would have used it in his own interest as he himself acknowledged. He told the Commission he was looking to search for domestic disputes by inference to further support his proposition that Mr Amatto commits acts of violence. 80 The difficulty I have with the applicant's explanation to his unauthorised COPS access, even in accepting his access on 19 April 2006 (both to the event summary and to Mr Amatto's criminal record) was authorised by Detective Chief Inspector Lanyon, is when under investigation he continued to make unauthorised COPS access. Further, he used COPS to inquire about other persons mentioned in event reports, persons he knew from the Wellington area. 81 These in depth searches conducted on individuals, along with the applicant's regular access to the event reports and sometimes Intelligence Reports of the Wellington station, reveal a complete disregard for known policing principles by Senior Constable Flanagan as to the privacy and confidentiality of the COPS system. Such access indicates his disregard for the confidentiality of police records. The facts indicate a complete disregard by Mr Flanagan of his obligation as a serving Police Officer to respect an individual's privacy. It also shows a complete disregard for the confidentiality required in respect of general police work. The imperative of respecting the confidentiality of such police records must be, in this day and age of technological access to endless private information, be given the utmost respect. Many of the applicant's access to COPS in the relevant period had no legitimate professional purpose. 82 The warning which comes up on COPS on each access entry, the applicant asserted, became simply a procedural event because of its familiarity and it was his practice to quickly move on. In Mr Flanagan's Statement in Reply, filed 7 December 2007, he stated: I am sure that I would have read it when it first started to appear, but that was a long time ago and after a while it just becomes one of those things that you click straight through to get onto the system. I didn't appreciate that NSW Police considered the way that I was using the COPS system to be inappropriate.

[90]

To ignore, on a daily basis, this warning is not the conduct of a true professional. The applicant also relies upon the fact he was regularly audited as to his COPS access by the Police Service and in his years of service he was never brought to task for his practice of accessing out of area COPS reports. This is simply a commentary on the Police Force's audit system of COPS and does not give succour to Mr Flanagan's assertion his unauthorised access was therein approved. 83 I find, therefore, in the circumstances where two charges of assault have been found proven against the applicant and he has demonstrated a complete disregard for the guidelines related to the absolute confidentiality required of Police Officers in accessing the NSW Police Computerised Operational Policing System, that the termination in such circumstances was warranted. It was certainly not unjust nor unreasonable. 84 However, even if there were grounds for the termination, the Commission still has to consider, in evenly balancing the interests of both the applicant and the public interest, whether the termination was harsh. I accept as submitted by Mr Hatcher this must be a balancing exercise with no favour given to the public interest although the Commissioner's reasoning is to be considered as well as the integrity of the Police Force. It has already been noted the applicant had a good service record with commendations. He presented character evidence from senior officers who were happy to confirm they would continue to serve with him in the Police Force and he would have their absolute trust. 85 Subsequently the applicant has obtained suitable employment. He has not wasted away his time but continued in employment. He initially suffered a financial loss but now that loss is of minimal significance. He has proved by his subsequent behaviour he is a responsible citizen. He has enjoyed promotions. He is willing to forego any back-payment claim since he was terminated in a circumstance where he has significantly mitigated his ongoing financial loss.

[91]

86 The applicant relies on the reasoning in Toshack v Commissioner of Police, [2009] NSWIRComm 31, to assert his termination was, in all the circumstances, harsh. The Full Bench in Toshack held at [75]: 75 Given the seriousness of the appellant's misconduct, the importance of integrity in the Police Force and the particular significance that is to be attached to the reasons for the Commissioner's loss of confidence, we consider his Honour erred as a matter of fact and law in allowing himself to be influenced to the extent he did in having regard to the character evidence. His Honour could have only properly reached the conclusion that, in the light of that evidence the dismissal was harsh, if his Honour had accepted that the applicant was rehabilitated and that there was, therefore, an insufficient basis upon which the Commissioner could maintain his loss of confidence accordingly. No such conclusion was properly available on the evidence in this case. Evidence of fellow officers' perceptions of the appellant over a relatively short space of time where the appellant was most likely on his best behaviour is not sufficiently strong to counteract what was evidence of misconduct of the most serious kind and which was found by the trial judge to justify removal. 87 The applicant contends the assaults were an aberrant act over a short period of time by a good and experienced Police Officer. I accept there was no premeditation or calculation on that evening at the Wellington Hotel. I have accepted he reacted to sighting Mr Amatto with fear in his heart on the evening. However, given the state of his mind and while under the influence of alcohol, he also assaulted Mr Amatto's cousin and friend, Mr Hynch. 88 Even accepting the access to the COPS on 19 April was for the purpose of the preparation of his Intelligence Report and was authorised, nonetheless, the later access, when he drilled down again into Mr Amatto's criminal records and sought access to that of Ms Burns and, as well, continued access to the Wellington station "events" and "intelligence" reports, I do not accept can be explained away by Mr Flanagan's explanation he did it as a proper policing practice. He showed continually in the relevant period no compliance with proper Police procedures. He ignored on each access the reminder and warning that is given with each access. 89 Mr Skinner, counsel for the Commissioner, contended the conduct should, in the public interest, be considered in the light of the NSW Police Aboriginal Strategic Direction, aims of mutual respect and cultural awareness. The circumstances reveal conduct related to the relevant assaults occurred in a country town where local police are trained to be particularly sensitive to the on-going anti-social behaviour of some members in that community. He submitted it cannot be in the public interest for a Police Officer off duty but under the influence of alcohol, found to have committed an assault against a member of an aboriginal community, to be reinstated. However, I reject this submission. Once Mr Flanagan has had the assault on Mr Amatto and Mr Hynch found proven, he has been before the court and obtained his penalty. The fact of the aboriginality of Mr Amatto is not an issue which should be addressed at this late stage in these proceedings. The consideration made by the Commissioner did not rely upon this effect of the assaults but on the assault as a fact. Further, although it could be said ordering a Police Officer back to work into a community environment in which he has offered offence could raise the question of the public interest, it does not arise in this case as Mr Flanagan was not serving in the same community at the time of his dismissal. As to Mr Skinner's more general proposition that it is not in the public interest to have a serving police officer who has been found guilty of assaulting the two members of an Aboriginal community reinstated to perform police work, I reject this proposition. Reinstatement involves many and varied considerations. 90 Having regard to the competing interests: that of the public interest weighted evenly with that of the applicant as embodied in s181F(3) of the Police Act, I have concluded the circumstances before me do not reveal a simple aberrant act over one evening. The applicant committed two assaults. The circumstances reveal an off-duty Police Officer, under the influence of alcohol, brought public disgrace upon the Police Force with two criminal acts. His conduct after that event revealed a pattern of unauthorised access to the confidential COP System for his own personal reasons. I do not accept that the willingness of other officers to serve with the applicant persuades as to his rehabilitation. No doubt the applicant regrets the circumstances leading to his termination and I accept he is now working and is a responsible member of the community. However, in a circumstance where two assaults have been found proven against the applicant and where a pattern of behaviour related to his COPS access revealed a complete disregard for proper police procedures, I do not accept his termination was harsh.

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