On 27 October 2021, the respondents' delegate, Superintendent Karen Cook issued an order (the "Order") pursuant s 173(2) of the Police Act 1990 (NSW) (the "Act") setting out the following disciplinary action in relation to the applicant:
that your increment be reduced to Senior Constable Level 2, Step 2; and
upon successful completion of a 12 month Conduct Management Plan, or upon expiry of 12 months from the date any Order takes effect, whichever is the latter, your increment level will revert to the level held at the time any Order takes effect.
The Order states that the allegation underpinning the disciplinary action is as follows:
I am satisfied that there are reasonable grounds for me to conclude that, on 14 October 2020, having seized a screwdriver from the vicinity of a person of interest, you wiped the screwdriver down with sanitiser (the "Alleged Conduct").
The applicant has filed an application under s 174 of the Act seeking a review of the Order.
[2]
Approach
The role for the Commission in relation to an application made under s174 of the Act is to determine whether the order is beyond power or is harsh, unreasonable or unjust.
As the applicant denies the Alleged Conduct, the sole matter for determination is whether he had wiped down a screwdriver with hand sanitiser removing any evidence from it on 14 October 2020.
In undertaking this exercise, s 175 of the Act provides the required process which is in the following terms:
175 PROCEEDINGS ON A REVIEW
(1) The Commission is to commence hearing an application for a review under this Division within 4 weeks after the application is made.
(2) The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.
(3) In determining the applicant's claim, the Commission may take into account such matters as it considers relevant.
(4) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to--
(a) the interests of the applicant, and
(b) the public interest (which is taken to include the fact that the Commissioner made the order pursuant to section 173).
The parties made various submissions concerning the application of the above approach, most of this centred upon the applicant's onus in ss 175(2).
The respondent relied on paragraph [34] of the decision of Commissioner Sloan in Writer v Commissioner of Police (No 2) [2021] NSWIRComm 1023 as to the principles applicable in a s 174 application. I do not intend to replicate that passage, other than to note that the learned Commissioner relied on a number of decisions relating to s 181D removal cases including New South Wales Police Force v Zisopoulos [2020] NSWCA 236, Tredinnick v Commissioner of Police [2016] NSWIRComm 14 and Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253.
In applying the principles relevant to this application and in particular the onus required to be met by the applicant, the respondent made the following submission:
The Applicant disputes engaging in misconduct. This is for the Applicant to establish, not merely by way of a bald denial, but by way of calling credible evidence that casts sufficient doubt on the factual conclusions in the Order. The Applicant has not advanced a case that the Order is harsh. The effect of the respondent's submission, was that for the applicant to meet his onus, he needed to call a further witness or some other form of objective evidence to support his denial of the misconduct.
The applicant's written submissions in response to this issue are found in the following passages of his written submissions in reply:
In response to paragraph [200] - [202] of the Respondent's submissions, the deficiencies and inconsistencies in the evidence accepted and relied upon by the Respondent, do not and cannot be addressed by additional evidence of the Applicant. The Commission would be in error if it were to find the Applicant was required to adduce further evidence to win.
The respondent's submission regarding the necessity of the applicant to always advance positive evidence to disprove a negative, is misconceived.
In Zisopoulous, at the Court of Appeal found that the onus of the applicant could be met by casting sufficient doubt on the respondent's reasoning.
The Full Bench in Bolton v Commissioner of Police (No 2) [2021] NSWIRComm 1055 in relation to sufficient doubt, made the following observation:
22. … Whether an applicant cast sufficient doubt on the Police Commissioner's reasoning process to warrant the intervention of the Commission will be a function of the basis of the Police Commissioner's decision, the strength of the evidence lead by the applicant and/or the credibility of any alternative hypothesis advanced. …
Also, the Full Bench in Tredinnick at [44] made the following findings in relation to the requirement to disprove a negative:
44 ... The burden of proof residing upon the appellant may include proof of a negative to displace a finding which constitute a basis for a removal.
Thus, an applicant is not always required, in a case such as this to disprove a negative, though sometimes this maybe the case. This onus can be met by raising sufficient doubt in the factual basis upon which the decision maker based the decision, which can be achieved through cross examination of the respondent's witnesses and by way of submissions.
The Commission is also required to take into account the applicant's interest as well as the public interest.
[3]
The evidence
The applicant relied upon his own evidence which was contained in two witness statements and on which he was cross examined.
The respondent relied upon evidence from the following witnesses, each of whom was cross examined:
1. Superintendent Karen Cook ("Ms Cook");
2. Detective Chief Inspector Andrea Panozzo ("Mr Panozzo");
3. Leading Senior Constable Jason Paull ("Mr Paull");
4. Senior Constable Darren Miller ("Mr Miller");
5. Senior Constable Mark Johnstone ("Mr Johnstone");
6. Constable James Baker ("Mr Baker"); and
7. Constable Madison Logue ("Ms Logue").
[4]
Undisputed evidence
The applicant attested as a Probationary Constable on 16 December 2011 and was promoted to Senior Constable on 16 December 2016.
On 12 October 2020, the applicant commenced a night shift at Sutherland Police Area Command.
At approximately 4.00am on the morning of 13 October 2020, the applicant attended on what is called a "stop" in the suburb of Menai. During the course of this stop, he saw a screwdriver about two metres away from some individuals who were being searched. The applicant removed the screwdriver from its' location and placed it into a paper bag. It eventually made its' way into one of the police vehicles, how it got there is uncertain, but nothing turns on this.
The applicant finished his shift at approximately 5.00am on 13 October 2020 and then starts a subsequent night shift later that evening.
Sergeant Wilkes advises the applicant at some time after 8.30pm on 13 October 2010 and prior to 1.29am on 14 October 2010, to register the screwdriver as an exhibit in EFIMS and to create a "job" (request) for analysis.
The applicant collects an exhibit bag from the muster room and then searches the police vehicles for the screwdriver, he then returns to the muster room with the screwdriver.
At some stage the screwdriver is placed by the applicant in the exhibit bag, he books it into the Exhibits Forensic and Miscellaneous Property System (EFIMS) at 1.46am on 14 October 2020 and it was then entered into EFIMS by Senior Constable Mark Johnstone at 1.47am.
It is unclear how many other officers were also in the muster room apart from the applicant at the time of the Alleged Conduct but it was possibly between five and seven.
Mr Johnstone did not report the Alleged Conduct until the 10.40am on 15 October 2020.
On 8 January 2021, the applicant was served with an investigation report, which made findings with respect to the Alleged Conduct. He was also provided with a number of supporting documents that were obtained as evidence in relation to his alleged misconduct, referred to as the Lancaster Documents.
The applicant through the Police Association of NSW provided a written reply on 12 February 2021.
On 10 August 2021, Acting Superintendent Matthew Ciregna, Acting Commander of Kings Cross PAC at that time, served the Applicant with a notice issued under section 173(5) of the Police Act (the "Notice"). The Notice proposed to:
1. reduce the applicant's increment to Senior Constable Level 2 Step 2 (from Senior Constable Level 3 Step 2); and
2. restore him to his prior increment upon his successful completion of a 12-month Conduct Management Plan (CMP), or upon the expiry of 12 months from the date the s 173 Order takes effect, whichever is the latter.
On 31 August 2021, the applicant through his legal representatives provided a written response to the Notice (the "Response").
Ms Cook in determining to issue the Order, took into account the Response and the evidence in the "Lancaster Report". Her evidence was that she did not interview any of the persons whose records of interview were in the Lancaster Report.
Under the heading of Consideration, Ms Cook reached the following conclusion:
I have reviewed all of the material associated with this matter. I have taken into account your denial that you wiped the screwdriver with sanitiser. However, I am satisfied that two officers witnessed you wiping a screwdriver down with sanitiser on the morning of 14 October 2020, and that one of those officers saw you place the screwdriver into an exhibit bag.
The two officers referred to by Ms Cook were Mr Johnstone and Ms Logue
[5]
Disputed evidence
The applicant, apart from denying the Alleged Conduct, stated that there was no reason for him to do this even if his fingerprints or DNA were on the screwdriver.
In cross examination, the applicant provided the following explanation as to why he was of the opinion that there was no reason for him to do so:
Because my fingerprints are already on the system and I was told very, very early in my career that in situations like this or at crime scenes or anything, we can take redaction - they can redact my prints from screwdrivers or crime scenes or anything that I attend. So it's never really been a concern of mine.
Of the respondent's witnesses, only Mr Johnstone and Ms Logue stated that they had seen the applicant perform the Alleged Conduct. They both put this in their records of interview, which were contained in the Lancaster Report and also in their filed witness statements.
The accounts given by Mr Johnstone and Ms Logue in their record of varied in a number of ways, including:
1. The positioning of various persons at the time of the Alleged Conduct;
2. Who was present in the muster room during the Alleged Conduct;
3. The manner in which the screwdriver was held;
4. The length of time over which the Alleged Conduct took place.
5. The manner in which the sanitiser was applied; and
6. The material used to wipe down the screwdriver.
Mr Johnstone's initially provided the following description of the Alleged Conduct in his record of interview:
A: In the early hours on the 14.10.2020 I was in Sutherland Police Station, standing near the rear table of the front muster room, the table the corridor that leads to custody, I have seen Senior Constable Fordyce appear, I don't know where he came from, he appeared to be holding a screwdriver, there was some hand sanitizer on that rear table, I have seen him place hand sanitizer on the screwdriver and wipe it down with a blue cloth, like a chux wipe. I was concerned that the screwdriver was an exhibit. I reported this to Inspector Panozzo.
Mr Johnstone also stated in the record of interview that the process took less than 15 seconds' and he could not see what colour the screwdriver was as he was holding it in his hand.
In cross examination, Mr Johnstone gave evidence that there was "one squirt onto the metal bit of the screwdriver" and then the applicant wiped it down with the blue cloth.
As to Ms Logue, the following extract of her record of interview sets out her initial version in relation to the Alleged Conduct:
A: It was early in the morning, there was a few people in the muster room of Sutherland Police Station, FORDYCE was one, and I do recall he was wearing gloves and sanitizing a screwdriver. I couldn't tell you who else was around or was in the room. That's about it.
Q: What do you mean by sanitizing a screwdriver?
A: He was wiping hand sanitizer over the screwdriver. Every part of it.
A: He was standing up. He was standing near a computer the first computer on the left opposite the printer. This was in the front muster room. He was standing on the second row on the left - first computer.
Q: Where was the hand sanitizer?
A: I think it was on the desk on the left side of the computer when facing the computer. Q: Was Senior Constable FORDYCE wearing gloves?
A: Yes.
Q: What was Senior Constable FORDYCE doing right before this?
A: I don't recall.
Q: What did Senior Constable FORDYCE do right after this?
A: I don't recall.
Q: How long did he spend wiping the screwdriver down? A: He did this for about 2-3 minutes.
Q: Did he say anything whilst doing this?
A: Yes. He was making a joke about it being lube-d up. Along the lines of that.
Q: Do you know where this screwdriver came from?
A: No.
Q: Did you see Senior Constable FORDYCE place this screwdriver into an exhibit bag?
A: Yes.
Under cross examination Ms Logue conceded that it was possible that the implement that she saw the applicant holding in his hand was not a screwdriver and could have been some other shiny object. She also conceded that it was possible that the applicant could have been cleaning his hands and holding something metallic at the same time.
Ms Logue's recollection of the events of the relevant time was noticeably lacking, which was made clear in these passages from her cross examination:
Q. Thank you. If you've said in your interview that you saw him wiping something over all of it, then you're only assuming that it had a handle, for example, is that right?
A. It's probable that it could have had a handle, yes.
Q. But you can't say under oath, with any certainty, that it was a handle of a screwdriver that he was holding in his hand?
A. It's probable it could have been a handle.
Q. The answer is you can't say with any certainty, is that right?
A. That's correct.
Q. Thank you. You can't recall who else was present at this time?
A. That's correct, I can't.
Q. You don't know what time of the night or night or early morning it was?
A. No, I can't recall what time it was.
Q. You don't know where you were in the room?
A. I can't recall.
Q. And you don't know how far away from you he was?
A. No, I can't recall.
Q. What I asked you was that you can't really say here with any great certainty about what you saw him doing that night with the implement in his hand, can you?
A. No, I can't.
Q. And you also can't say how long this wiping process went on for with any great certainty, can you?
A. No, I can't.
Q. In your interview you say it could have been two to three minutes, but you're not sure of that either?
A. No, I'm not sure. I wasn't timing Constable Fordyce when he was doing what he was doing.
Q. Because your were focused on something else?
A. That's correct.
Q. But you can't remember what that was at the time?
A. No.
Q. Or where you were in the muster room at the time?
A. No.
Q. Or who else was present?
A. Yes, I can't recall."
Mr Miller was the only other person whose evidence was that they saw the applicant holding a screwdriver, in or around the time the Alleged Conduct was said to have taken place. However, Mr Miller said that he did not see the applicant wiping down the screwdriver with sanitiser.
[6]
Submissions
The applicant's case was two-fold. The first was that it was improbable and inherently unlikely that the Alleged Conduct occurred.
In support of this submission the applicant relied on the decision of Deputy President Sams, in Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police [2009] NSWIRComm 51 and in particular the following two paragraphs.
256 It seems to me that such a conclusion is fortified by another pertinent rhetorical question. Why would anyone - indeed a police officer - for whatever sadistic purpose, conduct themselves in such a completely unacceptable - indeed unlawful - manner, not once, or a few times, but 18 times, in an open compound, within plain view of anyone who might be in the vicinity?
257 In postulating these inexplicable and illogical questions, it follows that I am satisfied that there is an inherent unlikelihood of such an incident having occurred. Accordingly, I would conclude, on the balance of probabilities, that this allegation against SC Gilmour, cannot be sustained. Even if I were to be wrong about this conclusion, I am satisfied that, on the state of the evidence, the Police Force has not satisfied the onus it bears of proving the misconduct as alleged. This leads the Commission to making observations and findings on the applicant's evidence, crucial inconsistencies in the eyewitness evidence and other improbable evidence.21
In support of this submission, the applicant pointed to his evidence concerning the absence of a reason to wipe down the screwdriver as well as the multitude of "character references" that were annexed to his witness statement, the location in which the Alleged Conduct occurred and not wiping the obvious part of the screwdriver, being the handle.
The second part of the applicant's case, is that the evidence, including that adduced by way of cross examination is insufficient to form a proper basis on which to support the finding that the Alleged Conduct occurred.
Further, it was submitted by the applicant that the evidence before Ms Cook was limited to interview responses extracted from two fellow officers who provide inexact, inconsistent and uncorroborated accounts of virtually every facet of the events.
As to the question of public interest, the applicant submitted that it is in the public interest that the Force properly investigate and identify disciplinary issues.
The respondent's primary submission was that the applicant in failing to call a further witness or some other form of objective evidence to support his denial of the Alleged Conduct had failed to meet his onus and thus the application fails. In the alternative, the respondent put that if the onus had shifted then the Commission would accept the evidence advanced on her behalf that the Alleged Conduct occurred and the application should be dismissed.
As to the issue about inconsistent evidence the following submission was made:
Now, there's been much made about the inconsistencies in the case. One also suggests that if there was only consistencies, that is each of the officers gave the exact same evidence, there might be a suggestion that they were colluding or there is collusion. Commissioner, you would treat the inconsistencies in the favour of the respondent in that these witnesses have been genuine and have been honest about what they did see and what they didn't see. That is, they've not made up things that they haven't seen to simply help their employer or help their own employment. If they didn't see it, they didn't see it and they didn't hear it.
Apart from submitting that the Commission should give no weight to the "character references", the respondent did not address the applicant's submission regarding implausibility.
As to public interest, it was submitted that it operates adversely to the interests of the Applicant and that the public interest encapsulates the notion that the organisational integrity of the NSWPF must be preserved, and future misconduct must be deterred.
[7]
Decision
In relation to the submission of the applicant concerning implausibility, I do not consider that the "character references" of any assistance. However, I do accept that the applicant has made out that it is completely implausible that the Alleged Conduct occurred given:
1. the absence of any cogent reason for the applicant to undertake the Alleged Conduct;
2. the Alleged Conduct involved the wiping the metal part of the screwdriver and not the handle of the screwdriver, which is logically the part of the screwdriver that fingerprints and DNA would be on; and
3. undertaking conduct, that could form the basis of a criminal charge, in an open area of a police station.
As to the material relied upon by Ms Cook in determining to make the Order, being the records of interview of Ms Logue and Mr Johnstone, are inexact and inconsistent and as such do not provide a proper basis for the making of the Order.
Additionally, the evidence of Ms Logue, following cross examination is so imprecise that I give it very little weight, other than she sees at some point a white piece of paper in the applicant's hand and at another point in time a shiny implement. In reaching this conclusion, I note that it was Ms Logue's first shift and there was no reason for her to pay any attention to what the applicant was doing.
This leaves the Commission to consider the evidence of the applicant and Mr Johnstone, which are at odds. I accept the submissions of both parties that I do not need to form a view as to whether the either person is being untruthful, rather it is an exercise of determining whether I am satisfied to the necessary standard or not.
I am not satisfied that the evidence of Mr Johnstone on its' own, is such that I am persuaded that the Alleged Conduct occurred, particularly given the implausibility of the Alleged Conduct occurring.
Finally, I do find that the public interest favours the revoking of the Order for the reason articulated by the applicant in his submission referred to above.
I am satisfied that the applicant has met his onus by casting sufficient doubt on the reasoning process of Ms Cook, and as such the Order is unreasonable or unjust.
For the reasons set out above I make the following order:
1. An order pursuant to s 177(1)(a) of the Police Act 1990 (NSW) that the order made by the Commissioner of Police, through his delegate, on 27 October 2021 under s 173(2) of the Police Act 1990 (NSW) is revoked.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 August 2023