Gough v Commissioner of Police; Rigelsford v Commissioner of Police

Background

1. These proceedings arose out of an extremely ugly incident that occurred at the police residence occupied by S/C Gough and his family, 62 Laidlaw Street, Boggabri, late in the evening of Sunday 6 October 2019 following the NRL grand final, which was played earlier that evening, and carried over to the early hours of Monday 7 October 2019. Neither S/C Gough nor S/C Rigelsford were rostered on shift at the time. They had gathered with their families and some other guests to watch the football. Alcohol was consumed by both officers and their wives throughout the event.
2. Following an altercation late in the evening of 6 October 2019 between Kate and Jodie, S/C Gough and S/C Rigelsford came to blows. The fight continued over a considerable period of time resulting in both officers receiving physical injuries. At one point a triple zero call was made and paramedics from NSW Ambulance, as well as police from neighbouring towns, were dispatched to the scene. S/C Rigelsford was transported to Boggabri Hospital for treatment and S/C Gough was treated at Tamworth Base Hospital on Monday 7 October 2019 for his injuries.
3. An investigation into the incident was conducted by Detective Sergeant Jason Ronczka who prepared a 66 page investigation report which he signed off on 30 March 2020. The investigation report contains an extremely detailed exposition of what, according to various persons present, occurred between S/C Gough and S/C Rigelsford during the incident. I do not propose to recount this detail in this decision. The following finding was made by Detective Sergeant Ronczka with respect to S/C Rigelsford: Even though there may be available exculpatory evidence (what has not been identified throughout this investigation), on balance there is more inculpatory evidence and so it is more likely (balance of probabilities) that Leading Senior Constable Lee RIGELSFORD did assault Senior Constable Ashley GOUGH, causing actual bodily harm, in relation to the incident occurring on 07 October 2020 (sic 2019) at 62 Laidlaw Street Boggabri,
4. Detective Sergeant Ronczka also found that, as the aggressor, S/C Rigelsford failed to comply with the NSWPF Code of Conduct and Ethics, Point 6, "An employee of the NSW Police Force must comply with the law whether on or off duty" and Point 1, "An employee of the NSW Police Force must behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty".
5. Detective Sergeant Ronczka also made a finding against S/C Gough for using "the force of an assault that appears in excess to that caused by Leading Senior Constable Lee RIGELSFORD". Detective Sergeant Ronczka also made findings against S/C Gough in similar terms to those made against S/C Rigelsford referred to at [15] above.
6. Neither officer was charged with any criminal offence.
7. On 12 October 2020, S/C Gough was served with a notice under s 173(5) of the Police Act which set out the allegation against him which was ultimately found to be sustained by Superintendent Endemi (at [5] above). In his written response to the notice dated 19 November 2020, S/C Gough claimed that he had acted in self defence and claimed that he was coward punched by S/C Rigelsford and set upon by him and Jodie and choked and strangled. S/C Gough stated that the action he ultimately took when he kneed S/C Rigelsford in the ribs and punched him to the head, rendering him briefly unconscious, was reasonable and proportionate in the circumstances. Attached to the response were a large number of character references from serving police officers and others as well as a petition signed by approximately 200 members of the Boggabri community supporting S/C Gough "in his appeal to retain his position as the Boggabri Police Officer".
8. On 18 November 2020, S/C Rigelsford was served with a notice under s 173(5) of the Police Act which set out the allegation against him which was ultimately found to be sustained by Superintendent Endemi (at [9] above). A written response dated 8 December 2020 was prepared by S/C Rigelsford's lawyer, Mr Greg Willis. In this response it is stated that the state of the evidence would not allow Superintendent Endemi "to be comfortably satisfied that S/C Rigelsford was responsible for this incident commencing, or that he was the aggressor. It is not possible to come to a firm conclusion either way".
9. Following the issuing of the s 173 orders on both officers on 18 March 2021, S/C Rigelsford filed his s 174 application on 1 April 2021 and S/C Gough filed his s 174 application on 7 April 2021.
10. On 21 July 2021, I made an order, which was sought by the respondent but opposed by both applicants, that the two applications be heard jointly (Rigelsford v Commissioner of Police; Gough v Commissioner of Police [2021] NSWIRComm 1057).

Case for S/C Gough

1. In a witness statement filed in these proceedings on 8 June 2021, S/C Gough claimed that, "I had not acted inappropriately or in contradiction to any values or statements I am required to abide by as a NSW police officer". He claimed that he had never been involved in a similar situation, on or off duty, prior to this incident and that he had attempted to use verbal communication to prevent an escalation of the situation. He considered his actions to be in complete self defence of himself, his property, his family and friends. He claimed to have the support of the local community.
2. Attached to S/C Gough's witness statement were the character references and the petition referred to a [18] above.
3. S/C Gough stated that, if he was transferred to Gunnedah, he would have to rent or buy a property which would require the sale of a property owned by him and his wife which they have rented out for the past 12 years. The loss of the police premises in which S/C Gough and his family reside paying rent of approximately $60 per week would impose a significant financial burden on the family if they were required to rent alternative premises.
4. Both of their children suffer from ADHD and to move them from their current stable school environment in Boggabri would increase their anxiety levels. Both children undergo counselling through the school and have developed a strong rapport with the counsellor. The alternative would be for the children to undertake a 25-30 minute bus trip to and from their current school.

Case for S/C Rigelsford

1. In a witness statement filed in these proceedings on 15 June 2021, S/C Rigelsford denied that he was the aggressor during the incident on 7 October 2019 and stated: I do not deny that I punched Ashley and that I also tried to punch him while he was attacking me. Any punches I threw at Ashley were in self defence, because I was trying to stop him from assaulting me.
2. S/C Rigelsford stated that he had lost the position of Leading Senior Constable costing him an estimated $10,000 per year in loss of income. He also stated that a suitable residence in Narrabri, where he is presently stationed, would cost in excess of $550.00 per week for an average three bedroom residence and that he is in debt in the sum of approximately $70,000 and does not have the means to pay removal costs, rental bond and rent in excess of $550.00 per week.
3. S/C Rigelsford's eldest son has been diagnosed with severe High Functioning Autism Anxiety, Depression and Suicidal Tendencies He currently attends Gunnedah High School in a specially designed class for children with multiple disabilities. If forced to move from the police residence in Boggabri, because of the distance between Narrabri and Gunnedah, he would have to withdraw his son from his current school and place him at Narrabri High School where he would be forced to endure main stream schooling. The two other children in the family are settled in the Catholic school system, one at Gunnedah and one at Boggabri, and would also have to change schools if forced out of their current residence in Boggabri.
4. S/C Rigelsford relied on a witness statement of his wife Jodie in which she confirmed S/C Rigelsford's evidence about their financial situation and their children.
5. S/C Rigelsford also relied on a number of witness statements from members of the Boggabri community which generally attested to his role as a police officer in the community and his good character and that of his family.

Case for the respondent

1. The chief witness for the respondent was the decision maker in these matters, Superintendent Endemi who prepared two witness statements, one in each application, which I will refer to as the Gough Statement and the Rigelsford Statement respectively.
2. Superintendent Endemi explained the operations of the Boggabri Police Station in both statements.
3. In the Gough Statement, Superintendent Endemi outlined her involvement in the disciplinary process that culminated in her order that S/C Gough be subject to a disciplinary transfer to Gunnedah Police Station.
4. Superintendent Endemi attended a community meeting at Boggabri on or about 11 February 2020 to assure the community that there was a regular police presence at Boggabri while S/C Gough and S/C Rigelsford were stationed at Gunnedah and Narrabri respectively. At that meeting, after speaking with some of those in attendance, Superintendent Endemi formed the view that the behaviour of the two officers on 7 October 2019 was disruptive and divisive to the small community and that the town of Boggabri could not continue to be served by either officer. She believed that there was a need to bring in two new police officers who would be able to restore the community's faith in the NSW Police Force (NSWPF).
5. Superintendent Endemi also gave evidence that she had "received a number of reports of problems between the Gough family and Rigelsford family since the incident" and gave some examples.
6. Superintendent Endemi then provided a detailed response to S/C Gough's account of the incident in his witness statement dated 8 June 2021.
7. In the Rigelsford Statement, Superintendent Endemi repeated what is referred to at [32] and [34]-[35] above. She also outlined her involvement in the disciplinary process that culminated in her order that S/C Rigelsford be subject to a disciplinary transfer to Narrabri Police Station and provided a detailed response to S/C Rigelsford's account of the incident in his witness statement filed on 15 June 2021.
8. The respondent also relied on a witness statement prepared by Sergeant Daniel Cooper which had attached to it a written statement prepared by him on 9 October 2019 in which he provided details of what he encountered when he attended the scene of the incident at about 1.27am on 7 October 2019.
9. The respondent had tendered into evidence a Region Commander's Warning Notice which had been issued to S/C Rigelsford on 30 May 2014 as well as a number of screen shots taken from the realestate.com.au website of rental properties in Boggabri, Narrabri and Gunnedah.
10. In addition, also tendered into evidence on behalf of the respondent were three written statements given to police on 7 October 2019 by two persons who were guests at the Gough residence on 6 and 7 October 2019 and who witnessed the incident.

The hearing

1. The hearing of the two applications occurred over three days, 2-4 May 2022. In their initial responses to the s 173 notices, and in the preparation of their evidence for the hearing, the two applicants pointed the finger of blame at each other and accused each other of being the aggressor. Each gave conflicting accounts of what had transpired during the incident and disputed the findings which had been made by Detective Sergeant Ronczka and Superintendent Endemi. However, at the outset of the hearing on 2 May 2022 things changed.
2. Counsel for S/C Gough, Mr Eurell, made the following opening statement: So can I just give this indication, Commissioner. We are not here to run a complicated case that involves disputed findings of fact. We're prepared to proceed on the basis of the principal findings in that investigation notwithstanding criticisms which might have been made of it in response to it, which would at this stage be largely immaterial. The balance of the applicant Gough's case is one that will go principally to whether or not as a result of those factual findings the disciplinary action that has been taken by the delegate here is proportionate and, secondly, whether or not the effects of it would be unduly harsh on the applicant and, more particularly, his family. He has two children who are in years 5 and 6 respectively in this community. Thirdly, the interests of the policed community which is addressed in a number of ways. … He accepts that his conduct did not reflect well upon him in all respects on this particular night but when one has a look at the detail of the findings in that investigator's report, I would ultimately submit that objectively taken it's towards the low end and that accordingly, as he has previously indicated, he would take some other form of disciplinary action quite happily if that was what the Commission thought should happen, such as a deferral of increment. His primary concerns here though is the potential effect of having to uplift the family or moving away from this particular community if this particular order holds. (T 02/05/22 P 8 L 16-28, P 9 L 1-9)
3. Counsel for S/C Rigelsford, Mr Nagle, made the following statements to similar effect: Sorry, before that happens, can I just indicate this is essentially going to be a plea by my client. We're not here to argue too many of the facts, he didn't cover himself in glory that night and he had consumed alcohol and engaged in conduct completely unbecoming. We acknowledge and accept that. We're just here to say that it's harsh, that it has a real impact on his children… … So that you understand where we're coming from. My client, Lee Rigelsford and his wife and their three children have resided in Boggabri for a decade or thereabouts. They have become part of the community in Boggabri. Their children or one of their children, their youngest, still goes to school in Boggabri, at the local Catholic School. Their eldest son - and this is essentially going to be a plea. Now, in terms of who did what on the night, both officers engaged in conduct unbecoming. Regardless of who started it or who finished it, they both ended up with quite significant injuries, unfortunately, as you're going to see. As Mr Eurell said, it is aberrant. He is regrettable. My client has been through a conduct management plan since. He's been asked to reflect on it since. He's got through his conduct management plan. They have both been at Boggabri together for two and a half years since this happened and, as Mr Eurell said, there really hasn't been any further incident. The community, it appears, has a desire for both of them to stay because of the transient nature of this position. Often, people come, people go, within a short period of time. My client does off duty work when he's in and around Boggabri. Members of the community come to his house to discuss matters. He does what we would consider to be good, honest, country policing and neither of their abilities, and I don't mean to run Mr Eurell's case for him, but they're on all fours. Neither of their abilities as country coppers is in issue here and they both served Boggabri well. What they didn't do that night, or my client didn't do that night, was serve himself and his family well and for that he is ashamed and he is remorseful and it is not the standard that he wants to set for his kids. He's given a version, he's given a few versions about who started what. But ultimately, at the end of the day, who did what and when isn't so much the way that this case should be decided. He accepts he did the wrong thing. He's lost his leading senior constable designation, that's $10,000 a year in terms of financial loss to him and, in the event that he would have to move to Narrabri, you're going to hear evidence that his eldest son, who does suffer from Autism and who is at a specialist school in Gunnedah - I get them confused, so we've got to watch out I don't start misnaming them - but his eldest son goes to school in Gunnedah at specialist facilities for his disability. There's no such school in Narrabri. He would be forced to travel significant distance to Gunnedah. My client's wife works in Gunnedah. And their second child attends the Catholic School in Gunnedah; there is no Catholic School in Narrabri. Essentially, the impact on my client has really as much of an impact on his family, by losing a lock-up keeper role it will cost in the order of $400 or $500 a week in rent. But, he more than enjoys his role as a country policeman in Boggabri. He engages with the community regularly and this is the evidence that you'll hear in both cases, really, is that these two men do serve their community well. It's regrettable that my client acted in the way that he did in 2019, we're now in 2022, and having gone through his conduct management plan, we will say that the Commission would be satisfied this would not happen again. We'd also ask you to take into account the physical ramifications that this had on my client. He spent some days in hospital, he had broken ribs and a punctured lung. This is really a matter of him coming to this Commission and trying to do the best by his family to keep them in Boggabri because the transfer to Narrabri wouldn't just impact him but it would impact his three children and his wife. As I said, he's lost $10,000 a year. If there's some other punishment imposed, if not a transfer, then I'll have to get instructions on what the final position would be that we put. But you're going to hear that neither of these men was charged criminally. This is a one-off for both of them, this is a one-off for my client. And that's really going to be our case. … Sorry, I should say, the most recent, (exhibit) R3, has a reflective statement in it that my client was required to do at the interview conduct management plan. It outlines starkly that he accepts that he likely breached or that it was found to be a breach of section 59 of the Crimes Act, by occasioning assault. And the other thing for you to consider, Commissioner, is you've got a community of 800 people that these two men police and a lot of them have said that they want them to stay. It's going to be my submission that the community's actually served by seeing the human element of these two people, because they know what happened, indeed they had a meeting in the town about it, to make sure that everyone knew and that's a giant leap. But, the community should be shown that these two police officers are man enough, as it were, to have learned from their mistakes, consider they're living next to each other and not have this sort of thing go on and improve their behaviour going forward, which, considering what they do is engage in the policing of the area and deal with criminals who, at times, are one-off criminals who are expected to improve and never do it again, it's important for the community to potentially see that these two humans have managed to get on with their lives, together and still be effective coppers in Boggabri. So, it's important to remember, you've got a town of 800 people and these two men work hard to serve them. So, in my submission, it's not going to be of assistance to the community to remove them when they're both putting a lot of their time and lives into helping the members of this community. (T 02/05/22 P 12 L 25-30, P 15 L 25 P 17 L 13)
4. S/C Gough gave the following evidence in chief: Q. If you were to lose the lockup keeper's residence, have you looked into what availability there exists for alternative accommodation in Boggabri? A. Yes. Q. And what can you tell the Commissioner about that? A. It's very limited. Most residences in Boggabri are two bedrooms. We've sort of got a girl and boy. We'd need at least three bedrooms. And then if it was - if there were residences available, it'd be around the 500 to $550 a week mark to rent. Or, sorry, in Gunnedah for that as well. Q. And have you and your partner looked at properties between Gunnedah and Boggabri? A. Yes. Q. Are there any available? A. No. Q. And have you been looking at that over the past two and a half years while‑‑ A. Yes. Q. You've read the investigator's report of this particular incident? A. Yes. Q. Do you accept that the findings set out therein are largely accurate? A. Yes. Q. That is to say, you accept that you punched Senior Constable Rigelsford? A. Yes. Q. But you say that that was in the context of the events which are set out in that investigator's report? A. Yes. Q. You'd worked with Senior Constable Rigelsford for about nine months prior to this incident? A. Yes. Q. Can you just tell the Commissioner what your relationship was like during that period of time? A. Good. We didn't have any issues throughout the entire time. Q. And for the last two and a half years you've resided next door to each other? A. Yes. Q. And has there been any repeat? A. No. Q. How is your relationship with Mr Rigelsford as it currently stands today? A. Whilst we were directed not to communicate with each other and as recent as I believe last week we had a minor or a conversation about the bins in relation or at the police compound. Q. Was it civil? A. Yes. Q. Would you expect that if the Commissioner did permit both you and Mr Rigelsford to remain at the lockup keeper's posts, that you would continue to be able to have civil relations? A. Yes. Q. Why is that? A. Time. Time has - so much time has gone past and, to be honest, we're both adults. I've no doubt we've both learnt from this experience and I've no doubt we couldn't move on and work amicably in the future with no further issues. (T 02/05/22 P 28 L 13 - P 29 L 29)
5. S/C Gough was cross-examined at length. He made a number of admissions about his conduct during and after the incident but was not shaken on the thrust of his evidence in chief. The following are some examples: WATTS Q. Senior Constable Gough, just listen carefully to my question. Do you accept, sitting here today in the witness box, that your actions when you kneed Senior Constable Rigelsford in the ribs was reasonable? A. In my mind at the time-- Q. No, no, sorry, sir-- A. Sorry. Q. --that's not what I asked you. A. Sorry. Sitting here now, it wasn't a reasonable thing to do. Q. Do you accept, sitting here today, that punching Senior Constable Rigelsford to the head, rendering him briefly unconscious, was reasonable in the circumstances that you faced? A. Sorry, on the night? Q. No. A. No? Q. Sitting there today, is your evidence to the Commissioner that when you punched Senior Constable Rigelsford to the head, rendering him briefly unconscious, that action was reasonable? Is that your evidence? A. Sitting here now, honestly you can say it's obviously not reasonable but on the night in my mind it was a reasonable course of action. Q. Well-- A. Sorry. Q. --you say on the night it was a reasonable course of action but, Senior Constable Gough, when you prepared this response to the 173 notice you clearly still thought it was reasonable. That's right, isn't it? A. Yes. EURELL: I object to that. Again, that's not what the paragraph says. The paragraph says, "I formed the basis in my mind," and he was describing the incident as he was experiencing it. My learned friend keeps doing this, Commissioner. He keeps conflating the witness' position on reflection as he sits here today in front of the Commission and his position as he experienced it on the night. Those are two very different things, as the witness has alluded to. WATTS Q. Senior Constable Gough, do you accept that when you kneed Senior Constable Rigelsford in the ribs that that was disproportionate in the circumstances you faced, sitting here today? A. I didn't think it was disproportionate, no. Q. I'm asking about now. Do you, sitting here now, do you accept that it was disproportionate to the circumstances you were facing for you to knee Senior Constable Rigelsford in the ribs? A. No. Q. So you're saying it is - sorry, just so now I'm clear, you're saying it is proportionate or it's not proportionate? A. So sitting here with all of the information-- Q. Yes? A. --obviously it was disproportionate. Q. Yes, thank you, and just to make sure that I've covered off on all of your counsel's concerns, when you punched - sitting here today - I withdraw that. Sitting here today, do you accept that when you punched Senior Constable Rigelsford to the head, rendering him briefly unconscious, that was disproportionate to the circumstances you faced? A. Well, today, yes. (T 02/05/22 P 61 L 25 - P 62 L 40) … Q. Do you seriously maintain that, sitting here today in the witness box, that you were on 7 October 2019 using self-control to ensure nobody was severely injured? A. I believe at that point I was referring to that I would - I ceased responding with physical force when the threat had stopped. My actions didn't continue after everything had been stopped. Q. I'll just ask my question again. Do you accept, sitting here today - I withdraw that. Do you maintain that you were using your own self-control to ensure nobody was severely injured on 7 October 2019? A. Sitting here today, obviously self-control, no. I can only refer to when it was happening I thought that that was controlled to a certain degree, if you could call it that. Yeah, obviously there's - it's obvious that there's limited self-control on the night. Q. Well, there was no self-control, was there? A. No. Q. And, of course, Senior Constable Rigelsford was severely injured. Do you accept that? A. Yes. (T 02/05/22 P 73 L 32 - 48)
6. S/C Gough gave the following response to a question in re-examination; Q. The last thing I wanted to address with you is you were asked some questions yesterday about arriving at the conclusion that you'd breached the Statement of Values and Code of Conduct and indicated that he had been a gradual process of reflection. Did you want to explain to the commissioner how you've arrived at conclusion today that you accept that you had engaged in misconduct? A. Yes at various times from the outset of this incident that occurred obviously my thought process was obviously from a criminal mindset when we had the responses and the decisions you handed down by Ma'am I was taking my view point from a police perspective. Over time, a good period of time I reflected back and I can identify that the injuries and the conduct that were sustained and then my conduct on the night was disgusting, to put it bluntly. Yeah, sorry and over the time that I took to step away from it and look at it objectively and not with that emotional side of things coming from me I was able to calm down, if you can put it that way and identify that yes, I had done the wrong thing and that was the process of working through my emotions and understanding and identifying that my actions were inappropriate and in breach of Code of Conduct and Ethics and the Statement of Values. In relation to the management action that Ma'am identified that was the approach that she was taking, I didn't think that my family, my children - (T 03/05/22 P 5 L 21-40)
7. S/C Rigelsford gave the following evidence in chief: Q. Can you tell the commission in your own words upon reflection the impact that the misconduct and let's get this clear; do you accept that what you did was engage in misconduct that night? A. Yes I do yeah. Q. Explain to the commission the impact that that has had on you and the reflections that you've made in that time? A. Well it's had an immense impact on myself. There's been I think almost on a daily basis I've felt sick, physically sick about what's happened. In relation to the way I acted that night, it was wrong, sorry I get a be emotional over it. One of my children witnessed that and every day I think to myself, how did I let that happen. I wanted to show my kids how to behave and grow up as an adult and what I did that night was not what I want my children to be like. Prior to that I've tried my hardest, I have five children all up due to a previous marriage and that's been difficult obviously when I see families split up but I believe I've done the best I can to raise my children and prior to that, I believed I've done a great job however, on that night what my children, or one of my children saw and obviously the impact that it's had on my other two children that are at home with me upset them immensely and obviously in turn it upsets me immensely because I was the one that did that and just every day since that happened I just wish I could turn back time. Sorry. Q. You can't turn back time? A. No I can't. … Q. In any event if you and Mr Gough were to be successful here, you'd be content to continue living next door to him? A. Of course and this is what I've been saying the whole time, I don't have any problem with Mr Gough, with Ash. I've known Ash obviously for nine months before this and what happened that night was not the person he is and it's not the person that I am. I was bullied badly as a child and violence is not one thing that I'm - it just makes me sick. You know I was bashed as a kid, I was tormented as a kid by other school kids and you know, that's something I never wanted to do and I think that night, I don't know what happened. I just - something snapped. Alcohol I think was probably a key factor in that. I just - I was probably clouded more than anything from the alcohol, I don't think if I wasn't intoxicated I wouldn't have acted the way I did. Q. Just so we're clear you're not blaming alcohol though are you? A. No I'm not blaming alcohol no. Q. And you accept that what you did was wrong? A. Of course I do and that's what I said obviously in my statement and that's where I stand. I'm not going to deny or argue that I didn't do anything wrong, because I did. It could've been handled a lot - I could've handled it totally different and I didn't. Q. And on oath you are sorry for your actions that night? A. I'm sorry for what I did, I'm sorry for what I've put my family through, I'm sorry for what I've put the Gough family and Ash and Kate through. (T 03/05/22 P 14 L 48 - P 15 L 21, P 15 L 38 - P 16 L 12)
8. S/C Rigelsford was also cross-examined at length and made a number of admissions against his interest such as the following: Q. The role of lock up keeper within the New South Wales Police force is a privileged position? A. Yes it is. Q. You're required in that position to work independently? A. Yes. Q. With limited if any supervision? A. Yes. Q. You have extra responsibilities compared to a general duties senior constable? A. Yes. Q. You need to have the trust of your local community in the role of lock up keeper? A. Yes. Q. You need to have the respect of the members of your local community as lock up keeper? A. That's correct. Q. And you'd expect that a physical fight between two lock up keepers undermines the trust the community would have in the police force? A. Yes it does. Q. In fact it brings the police force into disrepute doesn't it? A. Yes. (T 03/05/22 P 19 L 19-46) … Q. Now you said earlier in response to a question that Mr Nagel asked you that you won't argue that what you did on 7 October 2019 was wrong, do you remember giving that evidence? A. Yeah. Q. Do you accept that you have prior to today argued that what you did was in fact not wrong? A. Initially with my recollection of what happened that time on 7 or 8 October, I didn't not believe I did anything wrong at the time. I was affected by alcohol that obviously in relation to reflecting on what I'd done clouded my judgment in relation to what I believe happened on that night. Q. Just so that I understand, are you saying that your recollection of the events improved at some point after the incident? A. No I'm not saying that. Q. So you're saying that you simply have reflected on your behaviour and you have now come to the view that it was inappropriate? A. I have. Q. But you do accept that you have previously disputed the factual findings that Superintendent Endemi set out in her order? A. I'm not going to deny that yes. (T 03/05/22 P 21 L 27-49)
9. S/C Rigelsford was questioned as to why he declined to speak to police shortly after the incident on 7 October 2019 as follows: Q. Now later in the morning of 7 October 2019 this was after the sun comes up, you were the subject of an interview under criminal caution - I withdraw that that's not correct, I'll put it again. Later in the morning on 7 October 2019 you were invited to participate in an interview with police about what had happened in the early hours of that morning with Senior Constable Ashley Gough? A. Yes I was. Q. And in that interview you declined to answer any questions? A. Yes because I told them I was in no fit state to talk to them at the time. Q. Yes I was going to come to that but ultimately you don't say anything about the altercation to police on that particular occasion? A. No. Q. That includes not speaking to police about your injuries? NAGEL: He declined to be questioned, of course it concludes that. COMMISSIONER: Mr Nagel I think Mr Rigelsford is quite capable of answering that. NAGEL: Yes sorry. WITNESS: I'll answer that question. Even before I arrived back home from the hospital that morning there's two detectives at my door. As I pulled in the driveway, I walked inside, or I was assisted inside by my wife and the two detectives sat down on the lounge and said, "We want to speak to you," and I said, "I can't talk to you at the moment," and I was in that much pain I went and took two endone and they insisted that I sit down and talk to them and I told them, I said, "I can't," and obviously then they asked me several questions and I said, "I can't do it," and I was actually I was crying in pain and they still wanted to talk to me about it. It was like I almost had to tell them to leave. I didn't but I felt like it. And then a comment as they're walking out the door was, "This is going to be along one isn't it," that's as they were walking out the door. WATTS Q. What did you understand that they were saying when they said that? A. It's going to be a long investigation.
10. Superintendent Endemi gave evidence for the respondent. She was cross-examined by counsel for S/C Gough as follows: Q. You don't have any doubt, do you, that he has genuine regrets and remorse about the incident that we're here for? A. My conversations with Senior Constable Gough some time after the incident occurred, I did see remorse and regret in relation to what had transpired. Q. I think in your disciplinary order you would agree you assert two general pillars as the basis for the disciplinary order, the first being your conclusion that, due to the nature of the injuries sustained Mr Rigelsford, Mr Gough's actions had lost the essential characteristics of being entirely in self-defence as the first ground? A. Yes. Q. And secondly, that at least so far as you could discern from the written responses that has been exchanged up to that point, you weren't satisfied that he'd learnt from the experience? A. That's correct. Q. Could we agree, I know we've dealt with that first ground with respect to your findings in relation to self-defence and I thank you for the clarification you've made to paragraph 42, could I ask you this. Could we agree that since this incident and consistent with the remorse that Ashley Gough has shown, there has been a process through which he has gleaned insight into the extent to which his conduct on the night was inconsistent with the statement of values and code of conduct? A. Yes, a lengthy process. Q. And just in respect of that process, could we agree on this, that it was quite clear to you, wasn't it, from reading the written exchanges that for a not inconsiderable period of time after this incident Ashley Gough's position was that he only acted in self-defence on the night? A. Sorry, could you just repeat that? Q. Yeah, it might've been a clumsy question. Could we agree that for a considerable period of time after the incident Ashley Gough maintained that he was acting in self-defence throughout the evening? A. Yes. Q. And that that was really his primary concerned. He didn't quite appreciate that your concerns went beyond whether he'd acted in self-defence but were more broadly about whether or not he had generally conducted himself consistent with the statement of values? A. Yes. Q. And in more recent times, perhaps as product of time and reflection, he's come to realise that your concerns about the statement of values are well founded? A. I believe so. (T 04/05/22 P 5 L 16 - P 6 L 13)
11. Superintendent Endemi was also cross-examined by counsel for S/C Rigelsford to similar effect.
12. In re-examination by counsel for the respondent, Superintendent Endemi gave the following evidence: Q. And you also gave some evidence earlier that you've, in more recent times, received some expressions of remorse from both Senior Constable Ashley Gough and Senior Constable Rigelsford. Do you remember giving that answer? A. Yes. Q. And so what I want to ask, superintendent, is that in view of those recent discussions with members of the community and in view of those recent expressions of remorse from the applicants, has that changed your view about the disciplinary action to be taken in respect of both Senior Constable Ashley Gough and Senior Constable Rigelsford? A. It hasn't. Q. And why hasn't it changed your view? A. Because I strongly maintain that the level of misconduct undertaken by both Senior Constable Gough and Senior Constable Rigelsford is not commensurate with the role of a lockup keeper and two key community police officers in the township of Boggabri and I believe that that level of misconduct gives rise to transfers to the nominated locations.
13. Counsel for all parties made oral submissions which I have considered but see no need to canvass at any length in this decision.
14. Counsel for the two applicants focussed their submissions on the impact that the disciplinary transfers will have on themselves and their families, financial and otherwise, as well as their remorse for what occurred and their commitment to not transgress in any similar way again and to work cooperatively going forward.
15. Counsel for the respondent analysed in some detail the evidence of witnesses to the incident in order to rebut the conflicting versions of what occurred that were initially given by the two applicants in their responses to the s 173 notices and in their witness statements filed in these proceedings.

Determination

1. S/C Gough has been a member of the NSWPF since 2006, initially stationed at Hornsby Police Station. He attained the position of Leading Senior Constable in 2014 but relinquished that position when he and his family relocated to Boggabri in 2018 where he took up the position of Lockup Keeper. S/C Gough has no prior disciplinary history.
2. S/C Rigelsford has been a member of the NSWPF since 2004. He performed general duties in the Lower Hunter and Central Hunter Regions. On 30 May 2014 he was served with a Region Commander's Warning Notice following an incident between himself and his wife Jodie. On 27 July 2014 S/C Rigelsford was appointed to the position of Lockup Keeper at Boggabri. He attained a Leading Senior Constable position on 16 December 2018. As a consequence, I have given little weight to the Region Commander's Warning Notice served on him in May 2014.
3. Following the concessions made by counsel for both applicants at the outset of the hearing, which are referred to at [42]-[43] above, I have found it unnecessary to canvass in any detail the conflicting versions of the incident initially given by the two applicants. I accept the findings as to facts about the incident made by Superintendent Endemi. In stating that, however, I do not find that either applicant was deliberately dishonest during the investigation by Detective Sergeant Ronczka or in their responses to the s 173 notices or in the preparation of their witness statements filed in these proceedings. I have no doubt that both applicants were well and truly affected by alcohol prior to, during and after the incident and this affected how each of them remembered what had occurred. Having observed both applicants giving their evidence in the witness box, I formed the opinion that both of them were witnesses of credit and I accept the evidence that they both gave as truthful.
4. There is no doubt, and both applicants now accept, that their conduct during the incident on 6 and 7 October 2019 was entirely unacceptable for two serving police officers. However, it is the task of this Commission to determine whether or not, in all the circumstances, their conduct warranted the disciplinary transfers imposed upon them by order of Superintendent Endemi.
5. Provisions of the Police Act which are relevant to these proceedings are set out below: 174 Review generally (1) A police officer in respect of whom an order for reviewable action is made under section 173 may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust. (2) An application may be made on behalf of the police officer by an industrial organisation of employees. (3) An industrial organisation of employees may make one application on behalf of a number of police officers in respect of whom orders for reviewable action have been made at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications together or individually. (4) An application may not be made by or on behalf of a police officer more than 21 days after the date on which written notice of the making of the order to which it relates was served on the police officer. (5) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant, for inspection and copying, all of the documents and other material on which the Commissioner has relied, or to which the Commissioner has had regard, in deciding to make the order to which the application relates. 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). … 177 Arbitration where conciliation unsuccessful (1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the application - (a) by revoking the order, or (b) by revoking the order and making such other order as it considers appropriate, whether or not an order that the Commissioner is empowered to make under section 173, or (c) by upholding the order, or (d) by dismissing the application. (2) If the Commission revokes the order, it may also direct the payment of compensation for any loss suffered by the applicant as a consequence of the making of the order. (3) An order made by the Commission under subsection (1) (b) is to be given effect to in accordance with its terms. (4) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes an order or direction under this section. 178 Rules of evidence and legal formality (1) The Commission - (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence, but may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) (Repealed)
6. In considering the interest of the two applicants, I have given consideration to the impact of the disciplinary transfers not only on each of the applicants but also on their families, primarily their children who are the innocent parties in this situation. I accept the evidence of both applicants about the significant detrimental impact that the disciplinary transfers are likely to have on their children, especially those with special needs.
7. There was some debate in the proceedings as to the approach the Commission should take when having regard to the "public interest" as it is required to do under s 175(4)(b) of the Police Act. During final submissions, counsel for the respondent put the following: Contrary to what Mr Nagle submitted earlier, which was that the public interest is a matter that you can consider in the applicants' favour, what the High Court said in Eaton and in particular Heydon J at para 27 is that these two subparagraphs operate against one another. The applicants' interests are matters that you consider in favour of the applicants and the public interest is purely a matter that is to be considered in favour of the Commissioner of Police. That is how these provisions are to operate. (T 04/05/22 P 45 L 19-25)
8. Paragraph 27 of the judgement of Heydon J in Commissioner of Police v Eaton [2013] HCA 4 is as follows: 27. Another anomaly stems from the fact that s 181F(3)(b) of the Police Act operates adversely to the applicant under s 181E reviews. Section 181F(3)(b) provides: "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: ... (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))." This is a reference to the "public interest" in a different sense from the "public interest" referred to in s 146(2) of the IR Act. Section 146(2) requires the Commission to: "take into account the public interest in the exercise of its functions and, for that purpose, [the Commission] must have regard to: (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy." The objects of the IR Act are stated in s 3. They are broad, but they relate essentially to industrial relations. The matters referred to in s 181F(3)(b) of the Police Act stand outside s 146(2) of the IR Act. The Commission's duty to have regard to the public interest as defined in s 181F(3)(b) is adverse to the interests of applicants seeking reviews under s 181E of orders made under s 181D. An applicant for a remedy under s 84(1) of the IR Act does not face that obstacle.
9. Contrary to what was put by counsel for the applicant, Heydon J did not say "the public interest is purely a matter that is to be considered in favour of the Commissioner of Police". His Honour said: "The Commission's duty to have regard to the public interest as defined in s 181F(3)(b) is adverse to the interests of applicants seeking reviews under s 181E of orders made under s 181D". It may well be splitting hairs as to whether consideration of a particular matter is in favour of one party as opposed to being adverse to the interests of the other party, but it is clear that Heydon J was focusing on the "duty to have regard to the public interest as defined in s 181F(3)(b)" of the Police Act as being adverse to the interests of applicants (emphasis added). His Honour did not say that the outcome of the Commission's consideration of the public interest must inevitably be adverse to the interests of applicants or, as counsel for the respondent put it, in favour of the Commissioner of Police. The point his Honour was making was that the requirement that the Commission must have regard to the "public interest" as defined in s 181F(3)(b) (and s 175(4)(b), although the "the interest of maintaining the integrity of the NSW Police Force" is not referred to in this provision) in Police Act matters is not a consideration that arises with respect to unfair dismissal applications brought pursuant s 84 of the Industrial Relations Act 1996 (IR Act) where consideration of the "public interest", as is required under s 146(2), does not include having regard to the fact that the employer has dismissed the applicant.
10. The approach of this Commission to consideration of the "public interest" in Police Act matters was elucidated by the Full Bench (Walton J Vice-President, Staff J, Backman J) in Commissioner of Police and Wayne Edward Collins [2008] NSWIRComm 162 which was an appeal from a decision of Kavanagh J in which her Honour ordered the reinstatement of a police officer who had been removed from the NSWPF by the Commissioner of Police. The Full Bench stated: Public Interest under Section 181F of the Act 52 We wish to make a number of observations in relation to her Honour's approach to the issue of public interest under s 181F(3) of the Act. 53 Her Honour was aware of the requirement to balance the interests of the respondent with those of the public interest under s 181F(3). Her Honour was also aware that maintaining the integrity of the NSW Police Force was one of many factors to be taken into account in the public interest. We would add that it is important when balancing the applicant's interest against the various countervailing factors relevant to the public interest, that no one factor should be accorded any greater weight than any other factor, or factors. This point was clearly made in the Full Bench decision of Commissioner of Police v Evans (2006) 153 IR 144 at [4] - [6]: [4] The essence of the appellant's submissions -- reflected in her Honour's judgment -- is that the Commission should accord the public interest greater weight than other factors when determining whether a removal under s 181D was harsh, unreasonable or unjust. Indeed, there is an even stronger proposition implicit in her Honour's judgment: that prima facie, the Commissioner's decision to remove an officer on the basis of loss of confidence will be in the public interest, and any departure from such a decision must be justified. [5] Equivalent submissions have been rejected by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 (at [67]-[68]) and Hosemans v Commissioner of Police (2004) 138 IR 159. Section 181F does not alter the test to be applied: it is the test applied under s 84 of the Industrial Relations Act 1996 NSW, that is, whether the dismissal was harsh, unjust or unreasonable. The most comprehensive discussion of the significance of the public interest in this context is at [216]-[219] of Van Huisstede v Commissioner of Police (2000) 98 IR 57. In short, it is one factor to be taken into account. Moreover, it will seldom be unitary: cases such as these present the possibility of many, and often competing, public interests. [6] The decision at first instance represents an orthodox application of these well-settled principles and discloses no error. Boland J took the public interest into account in several guises: first, the public interest in the integrity of the Police Service (at [49]); and secondly, the public interest in maintaining the employment of a highly trained officer who has the strong support of colleagues and his Local Area Commander and remains capable of providing valuable service to the Police (at [52]). His Honour then considered whether the removal was harsh, unreasonable or unjust, taking into account all relevant factors and striking what he considered to be an appropriate balance between the competing interests embodied in s 181F(3). 54 In Commissioner of Police v Dobbie (2006) 157 IR 44, the point was re-affirmed by the Full Bench which held (at [67]) that, "[s]ection 181F(3) does not dictate what weight or influence each of the particular matters is to have in the decision to be made," (see also Johnston v Commissioner of Police (2007) 169 IR 301 at [62]). 55 More recent affirmations of the point may be found in two decisions of the Commission. The first of these is Flanagan v Commissioner of Police [2008] NSWIRComm 138 at [22] where the Full Bench said: [22] These are all matters about which we would have been prepared to grant leave to appeal. Whilst it is unnecessary to resolve these issues in light of the decision we have reached as to a denial of procedural fairness, we should mention two matters deriving from the further grounds. First, we think it is desirable that the approach to the question in s 181E of the Police Act should be undertaken as closely as possible in accordance with the language of the section and the applicable test there stated. Secondly, as to the operation of s 181F(3) of the Police Act, we agree with the observations of Walton J, Vice-President in Van-Huisstede v Commissioner of Police (No 1) (2000) 98 IR 57, where his Honour stated: [217] However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. [218] The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): "Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree." 56 The second decision is Commissioner of Police and Raymond Sewell [2008] NSWIRComm 147 where the Full Bench said: [7] There is no warrant for elevating the Commissioner's loss of confidence (based on misconduct), or according it some higher status, or place of prominence, or priority, above any other factor, or factors, which might fall for consideration as part of the balancing exercise between competing interests under s 181F(3) of the Act. Nor is there any authority which supports a proposition that a review of an order pursuant to s 181D(1) of the Act is subject to, by reason of some "special relationship" said to exist between the public and members of the police force and members (or between the Commissioner of Police and members of the police force), different considerations from an unfair dismissal claim under the Industrial Relations Act 1996. In relation to this latter point the review provisions under s 181G(1) of the Police Act import the statutory regime under the Industrial Relations Act relevant to unfair dismissal applications, subject to a few express and relatively minor modifications. 57 In contending that Kavanagh J gave inadequate consideration of the public interest the appellant relied on the following passage from the Full Bench decision in Commissioner of Police v Brennan [2008] NSWIRComm 52: [61] Punishment, being one of the purposes of sentencing, is not the objective in removing a police officer and it is not the Commission's task in assessing whether the removal was harsh, for instance, to assess whether or not removal was the appropriate punishment. What his Honour was required to do pursuant to s 181F(3) was to 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)). In other words, the Commission is required to weigh up the competing interests of both an applicant and the public interest, which includes maintaining the integrity of the Police Force. In doing so, the Commission is required to consider, amongst other things, whether the conduct of the police officer that led to his or her removal was such that it so undermined the Force's integrity as to outweigh the applicant's interests. An assessment of the level of culpability of the officer's conduct based on the sentence for a criminal conviction is not the correct focus of the inquiry under s 181F(3) and may lead the trial judge into error which, in our opinion, is what occurred here. 58 Whilst we agree generally with the opinion expressed by the Full Bench in the passage extracted above, we would wish to emphasise that the observations should be viewed in a proper context, as explained in Van Huisstede v Commissioner of Police (2000) 98 IR 57, where observations as to the content and purpose of s 181F(3) of the Act, with which we agree, were developed as follows ([216] to [220]): [216] The intent of the sub-section is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interests and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. [217] However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. [218] The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. [219] In this case, there are many factors which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable. [220] In my view, and having regard to the foregoing discussion of the legislative scheme and relevant principles, it is clear that the legislative scheme involves a review of the decision and orders of the Commissioner as a merit review, although in a situation where appropriate caution must be exercised in the light of the important public interest considerations involved and the process which preceded the Commission's review proceedings (that is, the process giving rise to and the fact of the decision made by the Commissioner).
11. Commissioner of Police v Morris [2017] NSWIRComm 1010 was an appeal from a decision of Newell C in which the Commissioner upheld the application for review of an order made by the Commissioner of Police removing the applicant, Roderick Morris, from the NSWPF. In relation to the question of the "public interest", the Full Bench (Tabbaa C AM, Acting Chief Commissioner; Stanton C; Murphy C) stated: 25. Contrary to the submissions of the appellant, Newall C did not consider the personal interests of the respondent as part of the public interest. What the Commissioner did consider, as forming part of the public interest, was the benefit to the NSW public in retaining, as part of the Police Force, an officer in whom the public had invested 24 years in developing to a point that, even after the events of 8 and 9 October 2010 were known to the appellant, the respondent was, nevertheless, awarded a Region Commander's Commendation in relation to an arrest of a violent armed offender in 2011. In 2012, again after the events in question, the respondent was given the responsibility for leading, monitoring and reporting on a 'cluster' team of some 20 constables. His evidence was that the teams in the cluster that he led became leaders in the command in response to crime, proactive strategies, case management and training. There is nothing impermissible in the Commission taking such matters into account when having regard to the public interest. 26. In light of this history, a heavy air of unreality hangs over the appellant's submission that the public interest must now be served by the removal of the respondent from the NSW Police Force. 27. There is nothing in the approach adopted by Newall C in his consideration of the public interest which would warrant the grant of leave to appeal or which discloses any appealable error.
12. In the matters presently before the Commission, there is evidence that both applicants enjoy significant support in the Boggabri community in the form of multiple character references and the petition in support of S/C Gough. I attribute more weight to this evidence than I do to what a number of unidentified members of the community apparently said to Superintendent Endemi on 11 February 2020 (see [34] above). In my opinion the Boggabri community will be well served by retaining these two experienced and well known police officers in their town.
13. Having regard to the "public interest", including the fact Superintendent Endemi has made orders pursuant to s 173 of the Police Act, I find that public interest considerations do not weigh against either applicant or are, at worst for the applicants, neutral.
14. As stated above at [58], I have no doubt that both applicants were well and truly affected by alcohol prior to, during and after the incident. In Commissioner of Police v Lawrance [2011] NSWIRComm 109, a Full Bench of the Commission (Boland J, President, Kavanagh J, Staff J) stated as follows (per Boland J and Staff J): 117. The appellant submitted his Honour incorrectly concluded, as it was not reasonably open to do so, that the respondent's alcohol consumption on the night in question had, in some way, precipitated, or contributed to, the respondent's decision to expose himself. Further that, in any event, his Honour erred in placing weight on the "drunkenness defence" in circumstances where it should not have been accepted as a defence/mitigating factor at all, especially when any level of intoxication was "self inflicted" and where, as the most senior police officer present, he clearly had a responsibility to function as a role model and to guard the integrity of the New South Wales Police Force at all times. 118. Where a police officer consumes alcohol, on or off duty, to the degree the officer becomes intoxicated and consequently commits an act of misconduct the Commission would not, in the normal course, accept that as an excuse for the misconduct such that the officer's intoxicated state is taken into account in mitigation in any consideration of an application for review under s 181E of the Police Act . However, no hard and fast rule has been laid down to the effect that intoxication contributing to misconduct will never be taken into account in mitigation. There may be circumstances, for example, where expert evidence demonstrates an illness arising from alcohol dependency that should have been, but was not addressed by the Police Force through an assistance program; it may be that the officer recognises that he or she is alcohol dependent (which contributed to the misconduct) and is taking or has taken appropriate steps to overcome that dependency (see Evans at [7], Collins at [67] and Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44 at [34] and [52]). These might be legitimate matters to be taken into account in mitigation.
15. In the present matters, there are no circumstances to be taken into account in mitigation. That two experienced police officers holding responsible positions in a small rural community allowed themselves to get as drunk as they obviously did does, in my view, add to their culpability rather than mitigate it.
16. I have no doubt that the behaviour of both applicants on 6 and 7 October 2019 constituted misconduct which warranted a significant disciplinary response. I find that the two s 173 orders made by Superintendent Endemi that both applicants be subject to disciplinary transfers are neither unreasonable nor unjust. I do, however, find these orders to be harsh, primarily due to the impact they are likely to have on the children of the two applicants and the significant financial burden on both families due to the loss of their police residences in Boggabri where they currently pay rent of approximately $60 per week. I propose to determine both applications by revoking both orders pursuant to s 177(1) of the Police Act. In their place I propose to make orders which will still impose a significant disciplinary penalty on both applicants for their admitted misconduct.
17. In Shelley Jackson v Commissioner of Police [2019] NSWIRComm 1033 the applicant, Sergeant Shelley Jackson, was found to have misconducted herself in relation to a number of sustained allegations against her. The Commissioner of Police had made an order pursuant to s 173 of the Police Act that Sergeant Jackson be reduced in rank to Senior Constable Level 6. Upon review, Commissioner Sloan made the following orders: 1. The order made by the Commissioner of Police on 8 October 2018 under s 173(2)(a) of the Police Act 1990 (NSW) reducing Sergeant Shelley Jackson from her current rank to that of Senior Constable Level 6 is revoked. 2. Pursuant to s 177(1) (b) of the Police Act 1990 (NSW) I order that Sergeant Shelley Jackson be reduced in rank from Sergeant to Senior Constable Level 6 for a period of two years, commencing from the date of this decision, and thereafter be restored to the rank she held immediately prior to this decision.
18. I propose to do something similar in the present matters.
19. S/C Gough currently holds the rank of Senior Constable Level 6 with a loaded annual salary of $113,294. A reduction in rank to Constable Level 5 with a loaded annual salary of $88,282 for a period of two years would impose a financial penalty of approximately $50,024 which I regard as an appropriate disciplinary outcome for the misconduct that S/C Gough engaged in on 6 and 7 October 2019.
20. S/C Rigelsford currently holds the rank of Senior Constable Level 6 with a loaded annual salary of $113,294. As a result of the misconduct he engaged in on 6 and 7 October 2019, he has lost his position of Leading Senior Constable Level 2 with a loaded annual salary of $119,945, a reduction of $6,651.00 per annum. S/C Rigelsford has also been denied the opportunity to earn additional income by way of wide load escorts. These are not matters that the Commission in these proceedings can redress. Further, in determining an appropriate disciplinary outcome for S/C Rigelsford, I have taken into account that he threw the first punch which precipitated the brawl that then followed, which makes him somewhat more culpable than S/C Gough. I have determined that S/C Rigelsford should also be reduced in rank to Constable Level 5 for a period of two years.
21. I am confident that S/C Gough and S/C Rigelsford will have a viable working relationship and a harmonious personal relationship moving forward. I am also confident that the restoration of them to their positions of Lockup Keepers at Boggabri Police Station will not cause disruption or division in the Boggabri community.
22. The applications for review of orders made under s 173 of the Police Act by S/C Gough and S/C Rigelsford are upheld.

Orders

1. I make the following orders: 1. The order made by the Superintendent Endemi on 18 March 2021 under s 173(2)(a) of the Police Act 1990 that Senior Constable Ashley Gough be subject to a disciplinary transfer to Gunnedah Police Station is revoked. 2. Pursuant to s 177(1) (b) of the Police Act 1990 I order that Senior Constable Gough be reduced in rank from Senior Constable Level 6 to Constable Level 5 for a period of two years, commencing from the date of this decision, and thereafter be restored to the rank he held immediately prior to this decision. 3. The order made by the Superintendent Endemi on 18 March 2021 under s 173(2)(a) of the Police Act 1990 that Senior Constable Lee Rigelsford be subject to a disciplinary transfer to Narrabri Police Station is revoked. 4. Pursuant to s 177(1) (b) of the Police Act 1990 I order that Senior Constable Rigelsford be reduced in rank from Senior Constable Level 6 to Constable Level 5 for a period of two years, commencing from the date of this decision, and thereafter be restored to the rank he held immediately prior to this decision. John Murphy Commissioner

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: 11 November 2022