Flanagan v Commissioner of Police

Flanagan v Commissioner of Police - [2010] NSWIRComm 7 - NSWIRComm 2009 case summary — Zoe

[37]

Her Honour erred in finding that she could not accept the Appellant's evidence as to his unauthorised COPS accesses because "when under investigation he continued to make unauthorised COPS access" [sic]. There was no evidence that Mr Flanagan was made aware of or knew about any such investigation until the interview on 19 May 2006, from which time he entirely ceased his practice with respect to COPS accesses. 9. Her Honour erred in finding that the Appellant completely disregarded policing principles in relation to COPS accesses, when the evidence clearly demonstrated that: (i) he had an honest and long-held belief that his practice of COPS accesses was appropriate, until he was told otherwise, at which time he stopped; (ii) his practices in this respect were the same as or similar to those of other police officers with whom he worked, who remain as police officers in good standing; (iii) his practices had been the subject of police audits over many years, with no problem with his accesses ever having been raised; and (iv) the police policies on the subject are expressed only in general terms and are unclear in effect. Appeal Ground 8 (COPS usage ground): 8. Her Honour erred in finding, on the basis of the Appellant's alleged acknowledgment, that the Appellant would have used any "useful information" from any alleged unauthorised COPS accesses "in his own interest". This finding was not open to be made, and the Appellant gave no such acknowledgment. Appeal Ground 10 (COPS warning ground): 10. Her Honour erred in finding against the Appellant on the basis that he had ignored warnings on the COPS computer system that identified his obligations as to access. The evidence in fact demonstrated that there was nothing in the warning which identified that the understanding he had as to what constituted permissible access was wrong. Appeal Ground 11 (COPS seriousness ground): 11. Her Honour erred in not taking account of the fact that, but for the assault matter, the issue of the COPS accesses would have been dealt with internally at the local level. Appeal Grounds 14, 15 and 16 (harshness grounds): 14. Her Honour erred in finding that the financial loss suffered by the Appellant was of "minimal significance".

[39]

14 It will be seen from the earlier extract from the appeal decision ([10(b)] that the Full Bench found Staunton J had erred by rejecting Mr Flanagan's evidence as to what had occurred in the gaming room with Mr Amatto, because '…we consider that the respondent conceded that her Honour should proceed on the basis that the words attributed to Mr Amatto in the gaming room were, in fact, uttered by him'. At [13] the Full Bench determined that '… there is no other sensible alternative than to remit the matter for re-hearing, particularly in the light of the respondent's submission as to the limits of the concession that it would offer in any remitted proceedings as to what had occurred between the appellant and Mr Amatto in the gaming room.' 15 The appellant submitted that the concession made by counsel for the respondent should have been maintained at the hearing on remittal; that is, as to Mr Flanagan's evidence as to what was actually said by Mr Amatto and him in the gaming room, but not as to the consequence or effect of this in terms of the subsequent assault incident. 16 The concession was not maintained at the re-hearing. At the commencement of the hearing, the respondent announced that there was no concession as to what was said in the gaming room and denied that it had indicated to the Full Bench that any concession would be maintained in a re-hearing. Mr Flanagan objected below to the respondent being permitted to abandon the concession it had indicated to the Full Bench would be maintained. However, her Honour determined to proceed on the basis of a 'hearing de novo' on all issues, 'notwithstanding the content of the Full Bench judgment'. 17 It is not entirely clear what the basis was for making the 'concession'. However, having regard to the transcript of the proceedings before the Full Bench hearing the appeal from Staunton J, we are prepared to accept senior counsel's explanation that the concession was made for the purpose of enabling the Full Bench to proceed to determine the appeal, but it did not extend to a re-hearing of the matter by way of remittal.

[40]

18 We identified earlier what Kavanagh J found in relation to the altercation at the Hotel: · Mr Amatto's oral evidence was often vague and inconclusive as to the details of events leading up to these two assaults; · nevertheless, her Honour was not persuaded all the detail recited by Mr Flanagan leading up to the proven assaults was established in order to be satisfied the assaults, or at least the assault on Mr Amatto, was 'provoked'; and · whilst Mr Thompson recognised from a distance the exchange was heated, he did not hear the specific words spoken in the exchange, so he was unable to corroborate as to the language used. Further, he was of the view it was Mr Flanagan's tone which caused him concern. 19 The question is whether the appellant was correct in contending the above findings of fact by Kavanagh J were wrong or not reasonably open: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 688; Wilson v Department of Education and Training [2000] NSWIRComm 20; (2000) 100 IR 1 at [61]-[62]. 20 The question of who was to be believed, and to what extent, was a crucial issue given Mr Flanagan's contention that in assaulting Mr Amatto he was provoked by what Mr Amatto allegedly said to him earlier. This included '[a]ll you coppers should be gutted'; 'you're all dogs'; 'I'm just saying all you coppers should be stabbed, you are all nothing but dogs'; and 'watch your back you mutt - I'll gut you'. It was Mr Flanagan's case that whilst the assault occurred, the fact that he was seriously provoked should be regarded as a mitigating factor of significance. 21 Whilst her Honour regarded Mr Amatto's evidence as 'often vague and inconclusive', Kavanagh J did not accept Mr Flanagan's 'complete version of the event as submitted by the respondent'. Whether the reference to 'respondent' was a typographical error and what was meant was 'applicant' or whether her Honour meant that, 'as submitted by the respondent Mr Flanagan's complete version of the event should not be accepted', is not clear. 22 Nevertheless, her Honour accepted there had been a 'heated exchange in the poker machine room', that Mr Flanagan was 'scared' and that alcohol consumption by Mr Flanagan had contributed to his state of fearfulness. If her Honour had accepted Mr Amatto's version of what occurred, there would have been no reason for Mr Flanagan to be fearful. In the circumstances, the only rational reason her Honour could have concluded Mr Flanagan was 'scared' or 'afraid', as her Honour put it, is if she accepted the words attributed to Mr Amatto by Mr Flanagan, or words that had the effect of scaring Mr Flanagan, had actually been said. 23 However, that conclusion sits oddly with the statement by her Honour at [41] that: [41] ... 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. 24 In other words, if Kavanagh J accepted that Mr Flanagan was fearful after the 'heated exchange' in the poker machine room, it must follow that something was done or said by Mr Amatto to cause that reaction. There was no evidence Mr Amatto did something to constitute a physical threat, so we are left with words alone. However, her Honour indicated that because Mr Thompson did not hear the exchange, there was nothing to corroborate Mr Flanagan's version of what was said. That would seem to suggest there was doubt in her Honour's mind that Mr Flanagan's version was truthful. Moreover, her Honour referred to Mr Thompson's evidence that it was Mr Flanagan's tone that caused him concern, as if Mr Flanagan was the aggressor, which does not follow at all if Mr Flanagan was reacting to threats of the kind he attributed to Mr Amatto.

[41]

25 It would appear that her Honour believed parts of Mr Flanagan's evidence, otherwise she could not have concluded he was scared as a consequence of the heated exchange in the poker machine room. However, her Honour indicated she was '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"' (our emphasis) and her Honour did not accept Mr Flanagan's 'complete version of the event as submitted by the respondent (sic)'. 26 The 'detail' leading up to the assaults was what occurred in the poker machine or gaming room. There were two conflicting versions about that. Kavanagh J did not say she had accepted Mr Amatto's evidence in any respect. Her Honour simply said his evidence was 'often vague and inconclusive'. Nor could her Honour have reasonably accepted Mr Amatto's version, or any part of it, not only because he was a completely unreliable witness, but also principally because there was nothing in that version that could rationally have led to Mr Flanagan being afraid. Her Honour indicated that she did not accept all of Mr Flanagan's evidence of what occurred, but obviously did accept enough of it to proceed on the basis that what occurred made Mr Flanagan afraid. 27 The only reason Mr Flanagan could have been afraid was if the threats alleged to have been made by Mr Amatto had, in fact, been made. It must follow that her Honour accepted at least the substance of Mr Flanagan's evidence of what occurred in the poker machine room, including the threats relating to stabbing or gutting, because the remainder of what Mr Amatto was alleged to have said, whilst disparaging and offensive, did not amount to a threat such as to cause Mr Flanagan to be afraid. That Mr Flanagan raised his voice in the manner described by Mr Thompson is consistent with what an ordinary person provoked to anger might do having just been spoken to in the manner attributed to Mr Amatto. That Mr Thompson did not hear Mr Amatto make the threats, is consistent with Mr Flanagan's evidence that Mr Amatto was 'mumbling loud enough so that I could hear it but not towards anyone in particular'.

[42]

28 Nonetheless, her Honour was not satisfied that what was said to Mr Flanagan by Mr Amatto was sufficient to provoke Mr Flanagan to carry out the assaults, notwithstanding it was enough to make Mr Flanagan afraid, a condition that Kavanagh J said was exacerbated by his alcohol consumption. In this respect, we note that the assault on Mr Amatto and Mr Hynch occurred some few minutes after the heated exchange in the gaming room, so it was not a matter of Mr Flanagan losing his self control in a fit of sudden anger immediately following the threats made to him. 29 The assaults were recorded on CCTV footage, which her Honour viewed, as did the Full Bench. It is difficult to avoid the conclusion that in passing Mr Amatto in the hallway that Mr Flanagan deliberately bumped Mr Amatto thereby re-igniting the confrontation. Mr Flanagan moved away from Ms Humphries who was on his right side and moved closer to Mr Amatto on his left and his left arm moved out from his body to bump Mr Amatto. Mr Amatto and Mr Flanagan both turned towards each other and following a verbal exchange Mr Flanagan grabbed Mr Amatto by the shirt front and the melee escalated from that point. 30 In our opinion, Mr Flanagan was both fearful and angry following the heated exchange with Mr Amatto in the gaming room. It was also probably the case that Mr Flanagan's alcohol consumption fuelled that fear and anger. That state of mind explains why Mr Flanagan bumped Mr Amatto in the hallway of the Hotel, but it by no means justifies his conduct in doing so. Whilst we accept that Mr Flanagan was leaving the Hotel with Ms Humphries to avoid any further confrontation with Mr Amatto, and Mr Flanagan was not seeking Mr Amatto out, the deliberate bumping was a thoughtless attempt to provoke Mr Amatto and inconsistent with the role and responsibility of a police officer whether on or off duty. 31 The CCTV footage shows that after the bumping incident there was a verbal exchange between Mr Amatto and Mr Flanagan when Mr Flanagan said he was further threatened by Mr Amatto saying to him words like 'have a go you dog, I'll gut you mutt'. There is no reason to disbelieve Mr Flanagan and the CCTV footage tends to support this because after the bumping episode Mr Flanagan did not immediately attack Mr Amatto and it was Mr Amatto who made the first move towards Mr Flanagan. It was only after a verbal exchange which, if the words attributed to Mr Amatto are true, it would have served to inflame Mr Flanagan further. Nevertheless, what cannot be overlooked is that if Mr Flanagan had not bumped Mr Amatto the physical confrontation would probably have been averted.

[47]

38 As to the first critical consideration raised by the appellant, we have largely dealt with that. We have accepted, contrary to her Honour's finding, Mr Flanagan was provoked in circumstances where he was affected by alcohol, but the degree to which that mitigated the seriousness of the assault incident was diminished by Mr Flanagan deliberately re-igniting the confrontation in the hallway of the Hotel. 39 As to the second critical consideration, Kavanagh J appears to have found against the appellant on two bases: that he committed two assaults thereby bringing 'public disgrace upon the Police Force with two criminal acts' and engaged in a pattern of unauthorised access to the confidential COP System for his own personal reasons. We will come to the COPS issues shortly. 40 In relation to the assaults, there is no doubt Mr Flanagan's conduct was treated in the District Court as being at the lowest end of the range of seriousness. Kavanagh J was aware of the outcome in the District Court, but her Honour did not give any explicit indication of what she regarded to be the level of culpability that the assaults manifested. Implicitly, her Honour seems to have regarded the level of culpability as high, referring to the assaults as two criminal acts that brought public disgrace on the Police Force. 41 Once Kavanagh J arrived at the conclusion there was no provocation, no further analysis occurred and it would appear that her Honour essentially accepted the Magistrate's assessment of the assaults. 42 A proper analysis would have revealed the following: (i) Mr Flanagan, an off-duty police officer, was drinking at the Wellington Hotel with his partner and members of her family and playing poker machines; (ii) in a heated exchange, Mr Flanagan was addressed by Mr Amatto in abusive terms including threats of violence. This caused Mr Flanagan to be angry and fearful. Both Mr Amatto and Mr Flanagan were under the influence of alcohol; (iii) Mr Amatto was a well known local criminal. He had been convicted on a large number of occasions and on a range of matters, including assault, malicious damage, larceny, carrying a cutting weapon upon apprehension, stealing from the person, assault police, resist police, assault occasion actual bodily harm, assault person with intent to resist/prevent apprehension, contravention of apprehended violence order, stealing property in a dwelling house, common assault, shoplifting, custody of an offensive implement in a public place, and resisting officer in execution of duty. He had been sentenced to imprisonment a number of times; (iv) after the heated exchange, Mr Amatto left the poker machine room and went to the main bar in the Hotel; (v) 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. There were no grounds to disbelieve Ms Humphries; (vi) Ms Humphries went back to the poker machine room and persuaded Mr Flanagan to leave the Hotel; (vii) Mr Amatto was returning from the main bar with two cans in his right hand when Mr Flanagan with Ms Humphries left the poker machine area and came across Mr Amatto in the Hotel hallway; (viii) Mr Flanagan moved away from Ms Humphries who was on his right side and moved closer to Mr Amatto on his left and his left arm moved out from his body to bump Mr Amatto such that Mr Amatto is pushed to the right. Mr Amatto and Mr Flanagan both turned towards each other. Mr Amatto moved towards Mr Flanagan and Mr Flanagan extended his arm and placed his palm on Mr Amatto's chest. At the same time there was a verbal exchange between the two men. Mr Flanagan was further threatened. Ms Humphries placed herself between the two men, facing Mr Flanagan. Mr Flanagan grabbed Mr Amatto by the shirt front and commenced to push him. Ms Humphries left to get her father. Mr Amatto pushed back. Ms Humphries' father intervened and grabbed Mr Amatto by the throat and pulled him away from Mr Flanagan. It appeared that Mr Flanagan swung two punches at Mr Amatto, although in respect to the first punch, it is not clear whether Mr Flanagan was attempting to knock Mr Amatto's arm away, rather than punch him. The second punch did not connect with Mr Amatto. The publican attempted to intervene. Mr Hynch arrived and attempted to separate Mr Flanagan and Mr Amatto by pushing against Mr Flanagan. Mr Hynch became involved in a confrontation with Mr Flanagan. Punches were thrown. The melee eventually settled down. Mr Amatto left, it appears, at the urging of Mr Hynch. There was no complaint of injury; (ix) Mr Flanagan's record was impeccable. He had no offences, not even traffic offences. What he did was out of character. Judge Hughes dismissed the charge without conviction and found the offence proved but under s 10 of the Crimes (Sentencing Procedure) Act ; (x) senior officers were happy to confirm that they would continue to serve with Mr Flanagan in the Police Force and that he would have their absolute trust; and (xi) Mr Flanagan regretted the circumstances which led to his termination. 43 With respect, we agree entirely with the approach taken by Judge Hughes in the District Court. It was on the spur of the moment that Mr Flanagan decided to bump Mr Amatto in the hallway and that decision was no doubt affected by alcohol; there was no premeditation. Nevertheless, it was an exercise of very poor judgment on Mr Flanagan's part, who was an experienced police officer. He should have realised that it would, in all likelihood, lead to a physical confrontation that should have been avoided. 44 However, what should not be lost sight of is that, shortly beforehand, Mr Flanagan was abused and threatened by a well known local criminal in circumstances where he was off duty and affected by alcohol and where the threats had induced a feeling of fear and anger. Mr Amatto's threats clearly amounted to provocation (even though, interestingly, Mr Amatto was not charged with assault). As her Honour did not weigh this as an important factor in the balance, there occurred an error requiring appellate intervention.

[48]

45 The second ground relied upon by the Commissioner to remove Mr Flanagan was said to be 14 unauthorised COPS accesses in the period 19 April 2006 to 10 May 2006. The accesses were said to be unauthorised because they concerned a different station or command, or concerned Mr Amatto or the Wellington Hotel incident. Mr Flanagan's case with respect to those COPS accesses was summarised as follows: (i) he had a genuine belief that it was an appropriate use of the COPS systems to access station summaries for an area where he had been stationed in the past and in relation to which he had an ongoing connection, in order to 'stay abreast of the policing environment'; (ii) his practice in that respect had been encouraged by other officers, and long pre-dated 19 April 2006; (iii) other officers, including more senior officers, engaged in the same or similar practices concerning the use of COPS; (iv) his COPS accesses had been audited many times, and this practice had never been identified as improper or problematic in any way; (v) he made no attempt to conceal what he was doing because he did not understand it was improper; the investigation about this commenced as a result of an email he sent on 19 April 2006 to Senior Constable Edwards (set out in [51] of the decision) in which he expressly disclosed that he had accessed the Wellington station summaries about the incident; (vi) insofar as he made accesses to Mr Amatto's criminal history and the report of the Wellington Hotel incident on 19 April 2006, it was authorised by his superior officer, Chief Inspector Lanyon; (vii) his access to events related to Mr Amatto on 2 May 2006 was because he was concerned that his complaint about Amatto's conduct in the gaming room was not being investigated properly (the evidence made clear that nothing was done about it), but in retrospect he realised it was a mistake; (viii) there was no suggestion in the removal order that he made any improper use of the information he had accessed; (ix) the warning which appeared on the COPS system prior to access was not expressed in terms which made it clear to him that his practice was not authorised; (x) the relevant policy documents were expressed in terms such that different officers might take different views as to what might be appropriate in specific situations, appears to have last been published in 1999 in the Police Service Weekly, and was difficult to access and not readily available to police officers; and (xi) he ceased his practice immediately after being first interviewed about his COPS accesses on 19 May 2006 and after a discussion with Chief Inspector Haines. 46 The appellant submitted her Honour was in error in finding at [66] that: 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. 47 It was submitted the interview took place on 19 May 2006, not 19 April 2006. The error was significant, it was submitted, because it placed the interview before or at the beginning of the series of accesses which were ultimately referred to in the s 181D removal order, rather than after them. It was contended that this finding of fact regarding the interview date was regarded by her Honour as of great significance in the consideration of Mr Flanagan's case. It was noted that at [78] her Honour said:

[51]

50 Kavanagh J was clearly in error in finding that Mr Flanagan was made aware on 19 April 2006 that his COPS access was under investigation. The interview that is referred to in [66] of her Honour's judgment took place on 19 May 2006. That renders her Honour's findings at [78] and [80] of her judgment wrong because after the interview on 19 May Mr Flanagan did stop accessing COPS in relation to the Amatto incident. 51 At [81] Kavanagh J found: [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. 52 The respondent submitted that her Honour's comments in [81] of her judgment were not founded upon Mr Flanagan first becoming aware of such 'policing principles' and guidelines through his interview on 19 May 2006. It was submitted the evidence established the extensive publication and promulgation of these policies throughout the Police Force, including on the first screen of computer access to the COPS. Further, that Mr Flanagan should have been well aware of the policies at the time he first started making enquiries about the ramifications of his actions on Saturday 15 April 2006, and his generation in the system of his own report about the events of that night, including that Mr Amatto supposedly may make false allegations. 53 To the extent that Kavanagh J was influenced by her incorrect understanding about when Mr Flanagan was advised he was under investigation in relation to his COPS accesses, her Honour also erred in her findings at [81]. Mr Flanagan did not act in 'complete disregard for known policing principles… as to the privacy and confidentiality of the COPS system' because once he was advised on 19 May 2006 that his access to COPS was under investigation he stopped the unauthorised accesses. 54 Kavanagh J found, however, that Mr Flanagan disregarded police procedures relating to COPS access prior to 19 May 2006 by failing to comply with Police policies regarding COPS access, including instructions that appear on the computer screen every time an officer accesses COPS. The instruction was to the effect that the information in the system was not to be accessed for personal reasons. That her Honour found Mr Flanagan had accessed COPS without authority during the relevant period, namely, 19 April to 10 May 2006, independent of her incorrect finding that he continued to access COPS after being warned, is apparent from what her Honour stated at [76], [78] and [88] of her decision: [76] ... 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. … [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.

[55]

61 The appellant submitted that the 'acknowledgement' appeared to be a reference to the evidence given by Mr Flanagan as summarised in [78] of the decision (extracted earlier), which was taken from his second statement of evidence. That evidence was as follows: I believe I conducted those two enquiries because I was concerned that the local 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. 62 This would appear to be correct, because we were unable to find any other statement of Mr Flanagan that could be regarded as the sort of acknowledgement referred to by her Honour. 63 The appellant further submitted her Honour's finding was in error because: (i) It did not diminish the fact that Mr Flanagan made no improper use of any information obtained from COPS. (ii) The finding (" I have no doubt … Mr Flanagan would have ") was speculative in nature and not related to his actual conduct, which constituted access only (which he accepted, in relation to the two accesses of 2 May 2006 referred to earlier, he should not have done). (iii) Mr Flanagan's evidence that he was going to bring any information to the attention of his duty officer could not possibly be taken to constitute improper use of information on the COPS system, and to describe this hypothetical conduct as "using the information in his own interest" was an unfair mischaracterisation of his evidence. 64 As to the first proposition, the respondent submitted that it was always his case that as a result of what Mr Flanagan had seen in his access to the COPS 'Event Ref E26561822' on the morning of 19 April 2006 he prepared his intelligence report as a pre-emptive 'spin' on the events of that night. However, Kavanagh J did not find this was the case. 65 The respondent also submitted that Mr Flanagan accessed the 'Event Ref E26561822' before he spoke to Detective Chief Inspector Lanyon at Penrith on 19 April 2006, and it was only after he saw that there was a detailed 'Event Ref' and a proposed complaint from Mr Amatto that he began formal processes in relation to his version of events that night. However, again Kavanagh J did not make the finding that Mr Flanagan had accessed the relevant COPS event on 19 April 2006 before he spoke to Detective Chief Inspector Lanyon. Her Honour accepted, at least provisionally, Mr Flanagan's evidence as to his COPS accesses on that day. 66 As the appellant submitted, an appeal court is in a good position to draw inferences from established facts as the trial judge, and where it considers that an inference drawn by a trial judge is wrong, it must give effect to its own judgment: Warren v Coombes (1979) 142 CLR 531; (1979) 23 ALR 405 at 551-3 per Gibbs CJ, Jacobs and Murphy JJ. 67 There was no basis for the inference drawn by Kavanagh J that Mr Flanagan would have used any information in his own interest if her Honour was inferring that the use of the information would have been improper. The fact that the appellant had indicated that if he had come across anything he was going to bring the information to the attention of his duty officer, could not be regarded as improper use of the information. COPS warning ground

[57]

69 Referring to the content of the warning message the appellant submitted it said no more than that access must be lawful, and must not be for personal, demonstration or training reasons. Counsel submitted: Given the evidence concerning the nature and origin of Mr Flanagan's misapprehension as to what constituted appropriate access to COPS, there was nothing in the warning screen that operated to disabuse him of that misapprehension. Mr Flanagan's own evidence about the warning screen… was that 'I didn't appreciate that NSW Police considered the way that I was using the COPS system to be inappropriate'. He could not in that context be characterised as simply "ignoring" the warning. 70 The respondent submitted that the conclusions of her Honour were well open to her and displayed no error at all, let alone any appealable error. 71 We have already expressed our scepticism about Mr Flanagan's understanding that he was not contravening any policy by accessing COPS in the way he did. It was wrong of Mr Flanagan to access COPS in an attempt to improve how his conduct might be viewed. COPS seriousness ground 72 The appellant submitted that accepting that he accessed the COPS in a way not approved by the NSW Police Force, it remained for her Honour to assess the seriousness of his conduct in this respect. One important matter in this connection, it was said, was the fact that, when his conduct was considered by the Police Force internally in isolation from the assault incident, it was referred to his Local Area Command to be dealt with at the local level. The appellant surmised that the matter came before the Commissioner only as a result of his compulsory s 181D nomination because of the criminal assault charges. The appellant submitted it could be inferred from this that, by itself, the COPS matter was not considered as being at a level of seriousness justifying removal. The appellant submitted this was a significantly relevant matter, but there was no indication in the decision that Kavanagh J took this into account when considering whether the removal was harsh. 73 There was no evidence about the manner in which the unauthorised accesses first came to the attention of the Commissioner and the views of any other person than him as to their seriousness does not carry much weight. 74 However, if it be accepted that provocation should have been a significant factor taken into account at first instance and was not and that Mr Flanagan did not continue to access COPS after 19 May 2006, the only other consideration is that Mr Flanagan engaged in unauthorised access of COPS for personal reasons, such access is to be viewed in the light of mitigating factors. Harshness grounds

[61]

79 At [90] of the first instance decision her Honour said: [90] ... I do not accept that the willingness of other officers to serve with the applicant persuades as to his rehabilitation. 80 The appellant submitted this conclusion appeared to indicate a view that Mr Flanagan might have a propensity to engage in further misconduct in the future. If so, such a conclusion was not open, it was submitted. There was no evidence to suggest that Mr Flanagan might engage in further misconduct, and such a proposition was not a feature of the respondent's case. 81 The appellant noted her Honour's reliance on the Full Bench decision in Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 at [75] where the Full Bench said: [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. 82 It was submitted that the elements of premeditation, calculation and deception were not present in this case. Therefore, the question of rehabilitation did not properly arise with respect to the consideration of harshness. 83 We agree with the appellant's submissions on this issue. Toshack concerned entirely different circumstances. There is no reason to believe that if reinstated or re-employed Mr Flanagan would engage in further misconduct. Consideration

[63]

87 In weighing the necessary considerations in this appeal we have, on the one hand, Mr Flanagan, a police officer of some 10 years standing at the time of the incident and a senior constable. Mr Flanagan 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. Apart from what occurred in 2006 his record was unblemished. 88 On 15 April 2006 Mr Flanagan was off duty and having visited Wellington for personal reasons, accompanied Ms Humphries and her father to the Wellington Hotel. Mr Flanagan had once been stationed at Wellington. At the Hotel, Mr Flanagan was abused and threatened by Mr Amatto, a well known local criminal with convictions for a variety of offences including assault, carrying a cutting weapon upon apprehension, assault police, assault occasion actual bodily harm, assault person with intent to resist/prevent apprehension, custody of an offensive implement in a public place, and resisting officer in execution of duty. Mr Flanagan was fearful of the threats and angry. 89 Notwithstanding there was a finding by Kavanagh J that Mr Flanagan became fearful following the heated exchange in the poker machine room, her Honour considered that Mr Flanagan had not been provoked. The basis upon which her Honour arrived at this conclusion is not entirely clear. We fail to see how the words of Mr Amatto could instil fear, but not be regarded as provocative to an off duty officer whose judgment was affected by alcohol. 90 We do not consider there is any doubt that Mr Flanagan bumped Mr Amatto in the hallway as a consequence of being provoked in the poker machine room. The provocation does not excuse Mr Flanagan's conduct, as we earlier indicated, but it is a significant factor that should have been taken into account in mitigating the seriousness of what occurred. In that respect, Mr Flanagan's conduct in bumping Mr Amatto was neither calculated nor premeditated. 91 In considering, on the other hand, the public interest and the fact the Commissioner made an order under s 181D(1) of the Act, it may readily be accepted that there is no public interest in retaining officers in the Police Force who have committed assault and, when all the circumstances are considered, what was found to have occurred was indefensible, a gross act of wrongdoing or without significant mitigating factors. But the very reason the Commission is required under s 181F(3) of the Act to have regard to both the applicant's interest and the public interest is so that it may, in a judicial sense, weigh the respective interests in the balance, consider all the circumstances, and decide whether the removal of the police officer was harsh, unreasonable or unjust. 92 In doing so in this case, we have concluded that the penalty of dismissal was harsh and unreasonable. The conduct of Mr Flanagan at the Wellington Hotel on 15 April 2006 was a single aberrant act mitigated by provocation. As an officer of 10 years' standing and an unblemished record, dismissal was punishment disproportionate to the gravity of the conduct, having regard to all of the circumstances. We do not accept there is any public interest in jettisoning Mr Flanagan, an experienced police officer with an exemplary record because of a single act that was completely out of character, in circumstances where, what led him to misconduct himself, was provocation by an individual with a serious criminal record. We consider that latter consideration to be important, as it is in the public interest that police officers not be subjected to intimidation by criminals or former criminals because the police officers had previously formerly (or potentially) discharged their duties in relation to those persons. We would have thought that may have been a matter of some concern to the Commissioner of Police. 93 In relation to the unauthorised COPS access by Mr Flanagan, it certainly aggravated the seriousness of Mr Flanagan's conduct overall. Nevertheless, given the mitigating circumstances, we are not satisfied it justified removal. Further, the seriousness with which Kavanagh J viewed the unauthorised COPS access was heightened by her Honour's belief that Mr Flanagan continued his unauthorised access despite knowing he was under investigation. That belief was wrong. 94 Whilst the unauthorised use of COPS involved a breach of confidentiality and Police policy and must be taken seriously, the use was not such that, of itself, it provided grounds for dismissal in this particular case. We note that in this case the unauthorised access was not accompanied by any untruthfulness on Mr Flanagan's part and there was no attempt to cover up the access (cf Morgan and Commissioner of Police [2009] NSWIRComm 184). We would make the observation that the effectiveness of placing a warning on a computer screen may diminish over time as a degree of indifference or perfunctoriness sets in. From time to time it may be necessary to reinforce the warning by some other means. Remedy

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