Guru v Commissioner of Police

Statement of Reasons

1. The respondent's Statement of Reasons contained the following: Upon arrival at the Lidcombe Hotel, Constable Metcalfe says he sighted Mr Ra to be standing with his shoulders square to the security guard with body language which appeared to be aggressive. He says he intervened and removed Mr Ra from the situation. He says Mr Ra was walked to the rear of the caged police vehicle, where you both proceeded to search Mr Ra, who was facing the rear of the caged truck. Constable Metcalfe says Mr Ra was not pressed up against the truck as you both had hold of Mr Ra's hands while you both searched him. He says Mr Ra "mumbled incoherently" throughout this time. He says Mr Ra "became rigid in his movements" by pushing against both of you with his hands and body, resisting Constable Metcalfe's efforts to move his limbs in order to conduct the search. Constable Metcalfe says that as he was searching Mr Ra's lower limbs, with his face looking down away from Mr Ra, he heard a "thump" and saw you holding the back of Mr Ra's head. He says he then saw you push Mr Ra's head with force into the back of the police caged vehicle, and saw Mr Ra's head bounce off the rear of the vehicle cage. Constable Metcalfe says Mr Ra then said "Oh, you want me to do that, I can do it myself", at which point Mr Ra then hit his head against the rear of the vehicle a few more times, lightly "without much conviction". He says you said words to the effect, "Your [sic] a fucking idiot for coming back here." Constable Metcalfe says you all agreed, including Leading Senior Constable To, that the most suitable course of action would be to convey Mr Ra to Burwood Police Station and proceed with relevant charges. Mr Ra was placed into the rear of the caged vehicle, un-handcuffed. Constable Metcalfe says he noticed that there was no blood, swelling or bruising to Mr Ra's face. He says you both left the area with Mr Ra in your custody, with you as the driver. Constable Metcalfe says that as you were driving to Burwood Police Station, he conducted checks on Mr Ra on the Mobile Data Terminal. He says that while conducting the checks, he said "It looks like he's done a bit of time". He says you then looked over at the screen and noted other warnings and asked "What are the other warnings?" Constable Metcalfe says he replied "There's a warning for him being a CSO", to which you asked "What is a CSO?" Constable Metcalfe says he said "An Adult child sex offender". Constable Metcalfe says you ''then proceeded to drive for around five seconds before applying [your] brakes as hard as possible. The vehicle has come to a complete stop and I could hear RA tossed from the rear of the cage to the front where he collided with the wall." Constable Metcalfe says the sudden stop made him also jerk forward unexpectedly, and he looked forward sighting no obvious signs for the brakes to have been applied in such a manner. Constable Metcalfe says he concluded that you "applied the brakes in such a manner to purposely cause harm" to Mr Ra. He says he said to you, "Mate, you can't do that, seriously. I even almost hit my head''. He says you proceeded to laugh as you sped up. Constable Metcalfe says he looked in the rear-view mirror of the vehicle and saw Mr Ra attempting to take a seat. He says you continued to again speed up to what he believed to be above the posted speed limit and then applied the brakes to the vehicle "as quickly as possible at which time I saw RA fly through the back of the vehicle cage hitting his head on the vehicle wall." Constable Metcalfe says he said "What are you doing? You need to stop. Pull over", at which point you looked in the rear-view mirror and said "Oh shit, there's blood". He says you stopped the vehicle on Parramatta Road, Burwood and opened the rear cage door of the vehicle. Constable Metcalfe says he sighted blood dripping from Mr Ra's head and you said "It will be ok, we'll take you to Burwood and maybe hospital later". Constable Metcalfe says he said to Mr Ra "Are you alright?" to which Mr Ra replied "Do I look alright". He says you both closed the door to the cage and got back into the vehicle. Constable Metcalfe says he said to you, "What is wrong with you?" and you said "I heard CSO and something just came over me, like, anyway, it will be ok, I'm taking him to Burwood, they can treat him there, he hit his head anyway before we put him in so yeah". Constable Metcalfe says Mr Ra kicked at the closed door of the caged vehicle causing a loud bang and you said "Tell Burwood he is angry and has got like a cut on his head". Constable Metcalfe says he did so over the Police radio, and that he did this "because I knew that RA would get treatment and I was hoping that the Sergeants at Burwood custody would come out and assist." A transcript of Constable Metcalfe's call to Police Radio at 12:46am on 2 October 2015 records the following: Yeah thankyou radio, just for the advice of custody, that the person we are bringing back is carrying on like a bit of a goose at the moment, um he's been kicking and screaming in the back of the truck, he's also been head butting everything, he's um a bit aggressive at the moment. Constable Metcalfe says that once at Burwood Police Station, Mr Ra was treated for his laceration and medically assessed by paramedics. Constable Metcalfe says that as the paramedics left the room, Mr Ra said "Fuck you guys for doing this to me, I am not going to tell anyone but I shouldn't be here, I did nothing wrong. You don't listen to me. I won't tell but I don't want you to charge me, I have an upcoming court date". Constable Metcalfe says he proceeded to explain to Mr Ra the reasons for which he had been arrested and Mr Ra said "I want to complain, fuck you guys for doing this to me". Constable Metcalfe said "If you have a complaint then make sure to tell the Custody Sergeant when we're inside".
2. The Statement of Reasons then dealt with the conversation Constable Metcalfe had with Constable Jared Delandro and a call he made to Leading Senior Constable Sang To. The Statement of Reasons continued as follows: Constable Metcalfe says that while travelling back to Auburn Police Station at the end of the shift, you said "I don't know what happened, they normally stick their leg out when I do that", and also "I just heard when you said CSO and I was fucking pissed off man". Constable Metcalfe says he said "I don't really care how pissed off you were. You put me in a very uncomfortable situation. You put my job in jeopardy, your job in jeopardy and you put James' life in jeopardy. You went too far tonight man". He says you said "Yeah I know, but I heard CSO".
3. The Statement of Reasons then referred to a statement dated 9 October 2015 made by Leading Senior Constable To, in which he recounted a telephone conversation he had with Constable Metcalfe in which Constable Metcalfe recounted what had happened when he and the applicant were transporting Mr Ra to Burwood Police Station. Leading Senior Constable To reported the incident to the duty officer, Inspector Sean Gabin.
4. In a statement dated 2 November 2015 made by Detective Inspector Stuart Sweeney, he recounted a conversation he had on the evening of 3 October 2015 with Mr Ra in which he told the Inspector about how the applicant "was speeding, he was driving all over the place and fast, he slammed on the brakes and I hit the back of the truck" and further: I told you before when I was in the back of the police truck when he suddenly stopped two times and my head hit the front of the truck. I don't care about that but what pissed me off was that he thought it was a joke and he blamed me for the injury to my face.
5. Mr Ra initially declined to provide a written statement. However, on 6 October 2016, he did provide a written statement detailing what had occurred approximately one year previously.
6. On 31 March 2016, the applicant was charged with "drive motor vehicle furiously and do/cause bodily harm" pursuant to section 53 of the Crimes Act 1900, "drive recklessly, furiously or at speed or manner dangerous - first offence" pursuant to subsection 117(2) of the Road Transport Act 2013 and "Negligent driving (no death or grievous bodily harm)" pursuant to subsection 117(1)(c) of the same statute. The matter was heard by Magistrate Seagrave at Burwood Local Court on 18 January, 8 May and 15 June 2017. Judgment was delivered on 23 June 2017.
7. The Statement of Reasons then dealt at some length with the evidence given by Mr Ra, Constable Metcalfe and the applicant during the Local Court proceedings. It was noted that: Mr Ra gave evidence on 18 January 2017, during which he continually asked Magistrate Seagrave whether he could be excused. Mr Ra was treated as an unfavourable witness and continued to claim he could not recall anything from the night of 2 October 2015, or even making his statement on 6 October 2016. He said he just "want[s] to get on with his life".
8. The judgement of Magistrate Seagrave was referred to in the following terms: Magistrate Seagrave was not satisfied that the offences had been made out. Her Honour noted that your case was that Constable Metcalfe "contrived" an account against you to "thwart a complaint he knew [you] intended to make against him for want of duty at the time of the incident." Her Honour noted there were some discrepancies in Constable Metcalfe's evidence, and said "a good example, it will be recalled that after Ra was injured it was [Constable Metcalfe's] evidence that [you] told him to notify the custody manager at Burwood that Ra 'was angry and has got a cut on his head.' But the transcript of [Constable Metcalfe's] conversation with the radio operator... revealed he, that is [Constable Metcalfe] said something very different." Magistrate Seagrave said she was "sceptical" about Constable Metcalfe's evidence that you told him exactly what to say to the operator. She also doubted Constable Metcalfe's evidence that he told Constable Delandro and Leading Senior Constable To that his mention of the words "child sex offender" triggered your dangerous driving. Magistrate Seagrave said "these discrepancies aside", Constable Metcalfe's evidence "derives some support" from other evidence. Magistrate Seagrave also found your explanations as to why you did not make a complaint against Constable Metcalfe, and why you did not make a contemporaneous record of Constable Metcalfe's alleged misconduct, as "plausible." Magistrate Seagrave dismissed the criminal charges.
9. The respondent then canvassed the applicant's response to the departmental investigation into the five allegations against him. With respect to Allegation 1, the applicant admitted that he pushed Mr Ra's head into the back of the police vehicle but denied using anything other than reasonable force in accordance with his powers under the Law Enforcement (Powers and Responsibilities) Act 2002.
10. The applicant denied Allegation 2 and claimed that the injury to Mr Ra's face was "almost certainly self-inflicted and occasioned by Mr Ra striking his head on the inside of the pod".
11. In relation to Allegation 3, the applicant admitted that he travelled in excess of the 60kph sign posted speed limit on Parramatta Road without lawful reason or excuse and apologised for doing so. However, he denied that by doing so that he engaged in reckless driving.
12. The applicant denied Allegations 4 and 5.
13. The respondent then proceeded to make findings with respect to each of the five allegations against the applicant (at [2]).
14. The Statement of Reasons concluded as follows: Consideration As set out in the Notice, I am very concerned by your conduct as detailed above. I expect the highest standards of behaviour from sworn officers of the NSW Police Force and for all NSW Police Force officers to place integrity above all. I have carefully considered the issues you raised in your Response and all of the material before me. In relation to Allegations 1 and 3, I take into account that you admit you pushed Mr Ra's head into the back of Flemington 18 and that you admit you exceeded the speed limit on Parramatta Road. I also take into account that you say you pushed Mr Ra's head in accordance with your powers under LEPRA. I am satisfied that your admitted actions were unjustified and unreasonable. I find that you had no reason to push Mr Ra's head into the back of the police truck, nor drive in excess of the speed limit. Your conduct was clearly in contravention of NSW Police Force safety procedures and practices. You have failed to demonstrate that you adequately appreciate the risk to health and safety driving in excess of the speed limit presents. The manner in which you drove the police vehicle endangered the safety of your colleagues and a person in your care. In relation to Allegation 2, I understand that the criminal offences against you were dismissed, however I am not bound by the decisions of a criminal court. Instead, I am required to determine whether I am satisfied on the balance of probabilities that you engaged in the conduct alleged. In your Response, you maintain that Constable Metcalfe made the complaint against you because you had informed him on two occasions during the evening of 2 October 2015 that you would need to make a complaint about his actions and that they resulted in Mr Ra sustaining the injuries. You say that you advised Constable Metcalfe, en-route to Auburn Police Station, that you would speak with your supervisor after your days off. I note you failed to mention this version in your response to the departmental investigation dated 11 September 2017. In that response, you stated that you worked overtime on 2 October 2015 but did not make a complaint about Constable Metcalfe as you were tired and wanted to go home. You also say that you attempted to report Constable Metcalfe's alleged actions after the incident however, this is not supported on the evidence before me. I note that in your response to the departmental investigation, you say that you were contacted by Inspector Miller the following day about the complaint against you yet on your own account, you did not then attempt to inform Inspector Miller that the complaint was in retaliation to you informing Constable Metcalfe that you were planning on lodging a complaint against him. You say that in spite of the direction from Inspector Miller not to discuss the complaint, you spoke with a sergeant. In your Response, you have not provided any evidence from the unnamed sergeant or Inspector Miller, or indeed any evidence that confirms this exchange occurred. I note that you stated in your criminal proceedings that you mentioned making a complaint about Constable Metcalfe to Constable Delandro, who denies ever having that conversation with you. You submit that Constable Metcalfe did not report your alleged conduct to a senior officer however, the evidence shows that Constable Metcalfe spoke to Leading Senior Constable To within half an hour of him instructing you and Constable Metcalfe to arrest Mr Ra and convey him to Burwood Police Station. I have given careful consideration to the available evidence and determined that I prefer the evidence provided by Constable Metcalfe, particularly in circumstances where he prepared his report in relation to your actions at the end of his shift on 2 October 2015, and his version is supported by the evidence of Leading Senior Constable To; Constable Delandro; the reports of the paramedics who treated Mr Ra at Burwood Police Station; Detective Inspector Sweeney, who spoke with Mr Ra on 3 October 2015; and the statement of Mr Ra dated 6 October 2016, all of whom provide largely consistent versions. I am satisfied, on the balance of probabilities, that you deliberately applied the brakes of the police vehicle harshly to cause injury to Mr Ra. I am absolutely appalled that a sworn police officer deliberately engaged in conduct to cause injury to a member of the public that was in their care. Such conduct is absolutely inimical to the role and responsibilities of a sworn police officer. In these circumstances, I have determined that I no longer have confidence in you to continue performing policing duties. I am satisfied that the versions you recorded in your official police notebook, the COPS event and the Facts Sheet were false, and that you maintained this false version in the evidence you gave in the Local Court and in response to the departmental investigation. I am deeply disappointed that you not only recorded false information in NSW Police Force systems, but that you gave untruthful evidence to your Commander and to a court of law. You had a sworn duty to act professionally at all times, in accordance with the law. All sworn officers are expected to behave honestly and with integrity. I am disappointed that you have failed to uphold the values of the NSW Police Force and have conducted yourself contrary to the NSW Police Force Code of Conduct and Ethics. I have carefully reviewed all the material associated with this matter. I have taken into account the character evidence you have submitted, and details of your career history within the NSW Police Force as supplied by you with your Response. I have also considered your prior good service. However, given the seriousness of your misconduct I see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. I expect, and the Law demands, that New South Wales police officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Code of Conduct and Ethics. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer.

Case for the applicant

1. In these proceedings the applicant, in relation to Allegation 1, maintained that he pushed Mr Ra's head against the police vehicle's pod to stop him from resisting but used no more force that he thought was reasonably necessary to control Mr Ra. The applicant claimed that Mr Ra struck the front of his head on the pod and described "the deliberate strike of Mr Ra's head as forceful; it was more than a gentle tap and probably sufficient to cause bruising and discomfort".
2. With respect to Allegations 2 and 3, the applicant gave the following evidence: 37. Near Homebush, I heard muffled noises coming from the pod and Metcalfe and I had a conversation in words to the following effect: Me: "What is happening?" (referring to the noise coming from the pod) Metcalfe: "Nothing much man, he is kicking on. He is trying to look outside and peer through the gap by standing up in an awkward position, but he cannot, it is funny to watch though. Me: "Okay, fine. Just keep me updated because there is a bit of noise.". 38. I said this to Metcalfe to remind him of the provisions of the NSW Police Force Handbook, which require us to "take all reasonable steps to protect the detainee from ... injury (including self-harm)". As I approached the traffic lights at the intersection of Parramatta Road and Leicester Avenue, Homebush, I heard a really loud bang come from the pod. I was slowing down to stop anyway but I instinctively breaked a bit harder and we stopped more suddenly than I intended. I looked behind me into the pod and saw Mr Ra was getting back onto the seat although I was uncertain what had occurred. I had a conversation with Metcalfe in words to the following effect:- Me: "What's happening?" Metcalfe: "Nothing much man. Same, same old thing, he's been kicking on but he stopped banging his head." Me: "What do you mean banging his head?" Metcalfe: "Yeah, he was doing it before, a few seconds ago, but is not doing it now." Me: "Why didn't you tell me? You've got to let me know if there doing anything in the back, kicking on or anything of that sort. Custody will get really upset because right now he was just kicking on but we haven't updated them. They are going to say why didn't you let us know?" Metcalfe: "Okay Guru, sorry." Me: "Okay let me know when he does it again alright, there is a reason you are to keep an eye on him. He is been doing it since we arrested him." Whilst the vehicle was stationery, Metcalfe took out the Tasking sheet and started writing down what appeared to be details of the jobs we had attended during our shift. We then had a conversation in words to the following effect:- Me: "What are you doing? You need to look after him, the way he's kicking on. Stop writing on the tasking sheet". Metcalfe: "Bro, I know but we have been so busy today and if I don't write it now, I'll forget. I do not want to stay back doing this". Me: "It doesn't matter. I don't care if you stay back or not, your primary role is to look after him; we can fix that later". Metcalfe: "Relax Guru, I am a confirmed Connie now not a Probie. I know what I am doing." Me: "Okay, fine. Whatever." 39. At this stage I moved the rearview mirror, which was pointed towards Metcalfe in the front passenger seat, towards my seat so I had a clear view of Mr Ra through a clear plastic 'window' in the pod. Metcalfe looked at me for a second so I said to him words to the effect "Look, once you're done with it, you can change it, but you've got to make sure you look at him at all times." 40. When the traffic lights changed, I drove east on Parramatta Road. Metcalfe stopped writing on the Tasking sheet and started reading Mr Ra's criminal history on the Mobile Data (computer) Terminal inside the vehicle. I know he was doing so because we had a conversation in words to the following effect:- Metcalfe: "Mate, what are you doing? Metcalfe: "I just want to see." Me: "You've got to look after him." Notwithstanding my request, Metcalfe continued to look at the MDT. Metcalfe: "He is a crook, done a bit of time". Me: "Uh huh, uh huh." Metcalfe: "He's got a warning ...There's is a warning for him being a C.S.O." Me: "What is a C.S.O?" Metcalfe: "Child sex offender. Me: "Okay." Metcalfe: "He's confirmed twice" At this stage I was trying to focus on Mr Ra inside the pod as well as my driving at the same time. I did not believe now was the time to discuss these issues with Metcalfe. 41. At this moment I heard another bang from the pod. I looked in the mirror and saw Mr Ra banging his head on the side wall of the pod. I made a split-second decision to stop the vehicle to prevent Mr Ra from hurting himself, so I applied the brakes of Flemington 18 firmly. l do not know the speed we were travelling at the time, but we stopped quickly and probably a little quicker than I anticipated. We stopped just before the cross of Phillip Street and near the Crystal Car Wash, between 450 and 500 metres after stopping at Leicester Avenue. As we stopped, I recall Metcalfe exclaiming "What the fuck". l assumed he said this because he almost struck his face on the MDT as he was reading it. I ignored him and turned around and saw that Mr Ra had moved from the back of the pod to the front nearest the plastic window; his shoulder was up against the front wall and I could not see his face. He was motionless for a few seconds. I said to Metcalfe words to the effect of "Shit, he's not moving. Let's go check it out" (motioning to the pod). 42. I moved the vehicle towards the left-hand side of the road. I then got out of the vehicle as did Metcalfe. I looked through the perspex window into the pod. I noticed Mr Ra was bleeding and blood splattered on the floor of the pod. By this stage, Mr Ra was again seated inside the pod. I looked at Metcalfe and said words to the effect "Oh shit he is bleeding". 43. I opened the driver's side door to the pod and noticed the red liquid on the floor of the pod was blood and had come from Mr Ra's forehead, where I could see a laceration about 2cm long. I then had a short conversation with Mr Ra in words to the following effect:- Me: ''Are you alright?" Mr Ra: "Yes". Me: "Do you need an Ambulance? Are you sure you're alright?" Mr Ra: "Do I look fucking alright?" Me: "We will get you an ambulance then". Mr Ra: "No, I am alright, just get this done and over with. I need a smoke." Me: "Are you sure, man. You're bleeding." Mr Ra: "Yeah, yeah, I'm sure. It's alright, it's alright, don't worry about it." 44. Metcalfe and I re-entered the vehicle and I said to him words to the following effect "Can you request radio to get an ambulance to Burwood custody and update them with what's happened?" I heard Metcalfe do so although l did not pay particular attention to the form of words he used. This occurred a few minutes before 1.00am. We then had a conversation in words to the following effect:- Me: "Mate, look because of you not listening to me, like you know it's a pretty serious situation. I'm not sure if it leads to a complaint but I'll have a chat with my supervisor when we go back; it's pretty bad what happened right now. Not only because he's injured but because you didn't listen to me when I told you to look at him." Metcalfe: "Okay." 45. At that time, I believed Mr Ra's injury was occasioned by him deliberately hitting his own head inside the pod. I blamed Metcalfe for not keeping a closer eye on Mr Ra and not alerting me earlier to the fact he was deliberately hitting his head. Had he done so, I would have stopped the vehicle earlier and spoken to Mr Ra about his behaviour. 46. We arrived at Burwood Police Station a few minutes after 1.00am. We drove into the van dock, which is a secure area at the rear of the police station where prisoners can be transferred from a vehicle to a dock area or holding cell within the police station. I alighted from the vehicle, opened the door to the pod and observed Mr Ra seated inside. I then had a conversation with Metcalfe, who was still seated inside the vehicle, in words to the following effect:- Me: "Can you come out and watch him? It's your job and you're the passenger. As you know, you're supposed to keep tabs on what's happening, not me. I've done this before, all the shit work. I know how it feels." Metcalfe: "No man, can I rest, I am a bit tired?" 47. I did not say anything to him but walked to where I could see Mr Ra, whilst I waited for the Custody Manager to arrive from inside the police station. I saw Mr Ra reach into his pocket and take out a small bag containing what appeared to be tobacco. I immediately opened the door to the pod, reached inside and seized it from Mr Ra. I said to him words to the effect "Shit, where did you have it?' He said words to the effect "Right in my pocket." I said words to the effect "Give that to me and empty out your pockets". Mr Ra did so. I then walked over to where Metcalfe was seated playing on his mobile phone and we had a conversation in words to the following effect:- Me: "Mate, what the hell!. What search did you do? this guy still has shit in his pockets. What if he had something dangerous; he could've hurt himself or hurt you or me. This is a really bad search. I'll have to really speak to the sergeant right now and the fact you're not even looking after the crook right now is just really bad. I will speak to the sergeant, probably a complaint" Metcalfe: "Oops, sorry mate. You've gotta do what you've gotta do"
3. The applicant claimed that, while they were at Burwood Police Station, he had a further conversation with Constable Metcalfe during which he said that he might have to put in a complaint against Constable Metcalfe. He also claimed that he had a conversation with Constable Jarrod Delandro in which he complained that Constable Metcalfe had not listened to him and had conducted a "really poor search" of Mr Ra. The applicant also claimed that he had another conversation with Constable Metcalfe while they were travelling in the police vehicle back to Auburn Police Station when he again raised the prospect of speaking to the supervisor about Constable Metcalfe's conduct during the shift.
4. The applicant did not make a formal complaint against Constable Metcalfe. However, on the following day, Saturday 3 October 2015, while he was on days off, he was contacted by Inspector Miller and advised that he was the subject officer of a complaint arising from his previous shift.
5. It was the applicant's case that, following his raising of the prospect of putting in a complaint against Constable Metcalfe, he, Constable Metcalfe, effectively "got in first" and made a false complaint against the applicant. This is what led to the suspension on pay of the applicant on 16 October 2015, to the charges against him which were dismissed by Magistrate Seagrave on 23 June 2017 and to the service upon him on 30 May 2018 of a Notice pursuant to subsection 181D(3)(a) of the Police Act, which preceded the removal order made by the respondent on 3 December 2018.
6. The applicant was cross-examined about this proposition as follows: Q. Now, I want to put some propositions to you Mr Guru. You accepted that before 2 October 2015 there was no bad blood between you and Constable Metcalfe? A. Mm hm. Q. That's correct. You didn't make any formal complaint - sorry, you didn't make any complaint about Constable Metcalfe before 2 October? A. No. Q. You've made no complaint against him since that time? A. No. Q. You're not aware of any complaint or report made by Constable Metcalfe about the events before 2 October? A. Yeah. Q. You maintain in these proceedings that Constable Metcalfe's evidence about your driving on the morning of 2 October 2015 is false? A. Yes. Q. Can you - I'm just asking you for your view or your opinion. Can you offer any reason why, in the circumstances we've outlined, you accepted why Constable Metcalfe would give false evidence about your driving? A. Just because probably from what I believe and what I've seen is that he was worried that I would put a complaint first. Q. And what was it that you say Constable Metcalfe had to worry about? What exactly had he done wrong that would result in you putting in a complaint against him? A. He wasn't listening to the direction that was given. He wasn't looking after the person of interest and he conducted a bad search. ……………………………… Q. In effect, your argument here is that Constable Metcalf got in first with his complaint? A. Yes. Q. Under oath you say that's exactly what happened here, correct? A. Yes.
7. The applicant also relied upon character evidence from Senior Constables Kenneth Lau, Janahan Jeyaratnam, Rabih Sfarjalani as well as Danny Williamson, nurse, and Karl Nguyen, accountant.

Detective Inspector Stuart Sweeney

1. On 2 November 2015, Detective Inspector Sweeney made a police statement for the purpose of criminal proceedings against the applicant in the Local Court. This statement was annexed to his witness statement which was tendered into evidence in these proceedings.
2. In his police statement, Detective Inspector Sweeney set out the contents of a conversation he had with Mr Ra on 3 October 2015 at Mr Ra's parents' residence. Detective Inspector Sweeney observed "a considerable amount of swelling" to the left side of Mr Ra's face along with a "laceration to the left side of his face". Mr Ra told Detective Inspector Sweeney: After I got arrested the cops put me in the back of the truck to go back to the station. On the way he was speeding, he was driving all over the place and fast, he slammed on the brakes and I hit the back of the truck.
3. Mr Ra claimed that this had happened twice. He was then taken to Auburn Police Station where he stated: I told you before when I was in the back of the police truck when he suddenly stopped two times and my head hit the front of the truck. I don't care about that but what pissed me off was that he thought it was a joke and he blamed me for the injury to my face.
4. Mr Ra refused to make a written statement.

Constable Ryan Metcalfe

1. In his witness statement in these proceedings, Constable Metcalfe referred to a police statement he had made on 7 October 2015 which had attached to it a copy of a written report which he had made on 2 October 2015. Constable Metcalfe also made a supplementary statement on 16 March 2016. These statements were prepared for the purpose of the Local Court proceedings against the applicant.
2. In his witness statement in these proceedings, Constable Metcalfe recounted the events of 1 and 2 October 2015 involving himself, the applicant and Mr Ra in terms similar to those set out in the respondent's Statement of Reasons (at [6]). That part of the Statement of Reasons includes the transcript of Constable Metcalfe's call to Police Radio after Mr Ra had sustained his injuries. That transcript of the call records the following: Yeah thankyou radio, just for the advice of custody, that the person we are bringing back is carrying on like a bit of a goose at the moment, um he's been kicking and screaming in the back of the truck, he's also been head butting everything, he's um a bit aggressive at the moment.
3. Constable Metcalfe dealt with this transcript, and the conversation he had with the applicant prior to making the call, as follows: 38. At this point, having seen the injuries that Mr Ra had sustained, I was in a bit of shock. A part of me wanted to simply exit the police vehicle and call and wait for police back-up, but I was concerned about Mr Ra's injury and getting him help. At that time, I remember that Mr Ra was shouting in the cage, but I cannot recall exactly what he was shouting. 39. Mr Guru and I then had a conversation to the following effect: I said: What's wrong with you? Mr Guru: I heard CSO and something just came over me, like anyway, it will be okay, I'm taking him to Burwood, they can treat him there, he hit his head anyway before we put him in so yeah. I then heard Mr Ra kick the cage door causing a loud bang. Mr Guru: Tell Burwood he is angry and has got a cut to his head I said: What the fuck do you want me to say to them? How are you going to explain this? 40. In response to my question, and having now reviewed the radio operator transcript of my discussion with the radio operator on 2 October 2015, I say that Mr Guru's words in response to my question were the words that are recorded on that transcript. I said exactly the words that Mr Guru told me to use in response to my question when I spoke to police radio. I am confident of this because I repeated them seconds after he told them to me…
4. Constable Metcalfe was cross-examined about this aspect of his evidence as follows: Q. Just in relation to this radio broadcast, it's your version, isn't it, that Guru told you to say that, over the radio? A. That's correct. Q. Now, you understood by him telling you that, that was all part of Mr Guru's cover up? A. Sorry? Q. Sorry, you understood at the time that what Mr Guru was getting you to do over the radio formed part of his cover up? A. No, I didn't understand. Q. Up until here you've told, on your version, you said to Mr Guru, "He's got a CSO" and he slammed the brakes on? A. Correct. Q. And there's a thud and a bang in the back? A. Yes, sir. Q. And then you get out and have a look at him? A. This is-- Q. Mr Ra? A. This is after the second time? Q. Yes? A. Yes, sir. Q. Mr Ra, you see Mr Ra? A. Yes. Q. And then Mr Guru tells you what to say over the radio? A. That's correct. Q. So surely you would have thought at the time that this, him telling you to say that over the radio, was part of a cover up that he was trying to-- A. Oh, okay. Q. Yes? A. I understand. Yes, it was something that he was covering up, yeah. Q. Formed part of his-- A. Okay, yeah. Q. --"misconduct", I suppose you would agree? A. Yes, sir. Q. And it's a significant part of the incident then, isn't it? A. Yes, sir. Q. And it's a vital part of the narrative of what's happened, isn't it? A. Yes, sir. Q. The one that you knew at the time you needed to get as accurate as possible? A. Yes, sir. Q. And complete? A. Yes, sir. ……………………………. Q. So, within that broadcast, you're telling them, well, a number of things. First, that Mr Ra is carrying on like a bit of a goose, so that's the first piece of information that you're conveying to VKG? A. Yes, sir. Q. The second piece of information you're conveying to VKG is that he's been kicking in the back? A. Yes, sir. Q. You're also telling VKG he's been screaming in the back? A. Yes, sir. Q. You've also told and conveyed to VKG that he's been head butting everything; that's the fourth piece of information? A. Yes, sir. Q. And you're also telling VKG that he'd been a bit aggressive. So, there's five pieces of information, you would agree? A. Yes. Q. And then radio asks you whether you needed police to meet you in the dock, true? A. Yes, sir. Q. And you said, "No, we're fine. Ah, just giving the heads up. He's got lacerations", true? A. Yes, sir. Q. And that was information about the lacerations was information that VKG had asked you to provide and that you had provided them? A. I can't recall, sir, but I did say that.
5. Constable Metcalfe was also cross-examined in relation to the applicant's assertion to the effect that he, Constable Metcalfe, wanted to "get in first" with his complaint about the applicant's conduct because he was concerned that the applicant was going to make a complaint about his, Constable Metcalfe's, conduct. He responded as follows: Q. You understand what, essentially what Mr Guru says is that you knew he was going to complain about you and you got in first, you understand that that's what he says? A. Who says this? Q. You understand that what Mr Guru says is that you knew he was going to complain about you and you got your complaint in first? A. No sir, I didn't know that. Q. You know that now? A. I know that that's what he's alleging, but that's never happened. Q. Because that's actually what happened, that's the fact of the matter isn't it? A. No sir. Q. That was a false complaint? A. No sir. Q. Now we've spoken about a number of matters that you left out of your initial complaint, true? A. Yes sir. Q. You left out of your police statement, true? A. Yes sir. Q. And they are left out of your police statements and your complaint, because they never took place, aren't they? A. No sir.

Senior Constable Jared Delandro

1. Senior Constable Delandro gave evidence about a conversation he had with Constable Metcalfe at about 2:00am on 2 October 2015 at Burwood Police Station. In a police statement made by him on 13 November 2015, this conversation was set out as follows: METCALFE Said: "Dude, GURU fucked up big-time man….. Fuck" I immediately knew GURU as Constable Rahul GURU who Constable METCALFE was rostered to work with that night. I observed Constable METCALFE's body language and tone to appear worried and concerned by the way he was talking to me. I Said: "Why what's going on?" METCALFE Said: "We arrested this guy for failing to comply with a move on direction at Lidcombe and were driving here, he started carrying on in the back banging and kicking the window so GURU's hit the brakes and he's hit his head on the glass real bad" I Said: "Bullshit really? How fast was he going?" METCALFE Said: "Dude I don't know, like 70km's…. he's in a bad way" I Said: "What do you mean?" METCALFE Said: "He's got a golf ball on his forehead and a massive cut that poured blood everywhere; you should see the back of the truck" I Said: "Where is he now?" METCALFE Said: "Burwood are booking him in now, what the hell I do, I have to tell someone" I Said: "Yeah you need to call toey (Senior Constable Sang TO/ Flemington external supervisor) and tell him what's happened" METCALFE Said: "Yeah for sure, I have to I'll get in trouble if l don't" I Said: "Yeah man absolutely, you'll go down with this if you don't say anything, are you okay?" METCALFE Said: "Yeah I'm good, this is just messed up… go into custody and have a look at him, oh and don't speak to GURU about any of this". I Said: "Alright, call me if you need anything"
2. In his witness statement tendered in the these proceedings, Senior Constable Delandro stated: 10. l recall that after the Injury Incident l had had conversations with Constable Metcalfe regarding what had occurred. Though I cannot recall exactly what was said, I do recall that a few weeks after the Injury Incident, Constable Metcalfe mentioning to me that during their shift on 2 October 2015, Constable Metcalfe said something to Mr Guru about Mr Ra being 'an CSO' (which at the time Constable Metcalfe believed to stand for 'child sex offender'), but I cannot really recall the details of our discussion about that.
3. Senior Constable Delandro stated that he did not believe that the conversation which the applicant claimed he had with Senior Constable Delandro on 2 October 2015, which is referred to at [22] above, occurred.

Gey Houn (James) Ra

1. Mr Ra made a witness statement on 6 October 2016 for the purpose of the Local Court proceedings against the applicant. It contained the following: 4. The manager at the hotel, called the cops. The cops came. One with dark skin with a beard, and the other had fair skin, he was Australian. 5. I can't remember the exact conversation, but I do remember the dark skin police officer, holding me by the scruff of the neck, and taking me to the rear cage door, and he pushed my face into the closed door of the cage on the truck (plastic module), He slammed my face up against the door. 6. I said, "What are you doing... I didn't even start any trouble" And then the next thing I remember being driven to somewhere, I can't remember if I was handcuffed or not. I was in the back of the police truck. 7. As we were driving, I could see through the little window into the front, the dark skinned cop was driving. And as we were driving, he's turning corners, like a maniac, and I'm literally stopping myself with my legs on the side of the van, I was having trouble keeping upright. And he was doing it throughout the whole time. I could see through the front and I thought I could see that he was laughing, as he was driving. 8. All I know was what I could feel as he were driving in the truck, we were turning corners like a maniac, and it was fast and full on. I remember one time, losing balance, and falling on my side... but the corners were crazy. 9. And then the next thing that I remember, he was driving like an idiot throughout the whole trip, but what remember the most was, I think it was about two times, the first one was little mild, where we were driving along, and he stopped all of a sudden, and I went up on my feet to brace myself, and then all of a sudden drove again, l can't remember how fast it was, but it was pretty wild, and then all of a sudden "Bang" all I know is, it was a hard brake, and I'm flying forward, and I'm trying to stop my head going forward, but my face smashed into the Perspex on the back of the truck. I remember I've just collapsed wondering what's happened, then all this blood started coming out of my nose. 10. I stayed there for a few minutes, I can't remember exactly what happened, but I heard some laughing outside the van, I think I was in too much shock after the incident, as blood was pouring everywhere in the van. 11. I can't remember who got me out the truck, But I remember the dark skinned cop being smart, and I think I said, "you did this to me you fucking dog, after you put me in handcuffs..". And he didn't say anything and put me in to custody.
2. In his witness statement, prepared for the purpose of these proceedings, Mr Ra stated as follows: Previous statement 2. On 6 October 2016, I made a statement (Earlier Statement)… 3. The Earlier Statement remains true and correct to the best of my knowledge and belief. I seek to adopt their contents for the purposes of these proceedings. My recollection of events on 1-2 October 2015 4. On 1 October 2015, I attended the Lidcombe Hotel (Hotel) but was refused entry. I did not understand why I was refused entry by the Hotel but recall that on a previous occasion, I had attended the Hotel and I had sought to defuse a fight between two other patrons (whom I did not know). As a result of that fight, the patrons were kicked out of the Hotel, and I was also kicked out with them, even though I was not involved in their fight. 5. I do not recall much of my interaction with the security guard at the Hotel on 1-2 October, but I recall that the police were called and I was asked to leave and I was escorted home. 6. After that I returned to the Hotel. I do not remember exactly why I returned, but I was angry and upset about the fact that I was refused entry as I did not understand why this had happened. Once again, the police were called on me. 7. When the police arrived, a police officer who I now know to be Mr Guru was very aggressive towards me. The other police officer (who I now understand to be Mr Metcalfe) was not aggressive towards me. As I said in paragraph 5 of my Earlier Statement, Mr Guru held me by the scruff of my neck and once at the rear cage of the police vehicle, slammed my face against it. I do not know why he did that. I did not resist the police. 8. I was then placed into the pod of the police vehicle, which did not have any seatbelts and a short time later the vehicle started moving. 9. I refer to paragraphs 7 to 9 of my Earlier Statement. As I said in paragraph 7, Mr Guru was driving like a maniac. He took sharp corners at speed and braked quickly on at least two occasions that I can remember. I felt that he was driving this way deliberately to try to aggravate me, and to show that he had power over me. I say this because I remember on at least one occasion when he looked at me through the Perspex window and smirked and laughed at me. 10. At noted in paragraph 9 above, there were at least two occasions when I recall that Mr Guru braked suddenly. The first time it happened, I was thrown around in the pod. I was a little hurt from the impact. However, when he braked a second time, a bit later, the vehicle stopped so quickly that I went flying head first into the Perspex window at the front of the pod. 11. Hitting the pod hurt me. After I hit the pod blood started dripping from my head onto the floor of the pod. I didn't know where it was coming from, whether it was my nose or my head. I was in a state of shock. I also heard Mr Guru laughing, like he thought ii was funny and that really angered and upset me. 12. I do not remember Mr Guru saying or doing anything for me that showed that he cared at all that I had been hurt by what had happened. After I was released from custody, I went outside of Burwood Police Station and walked up to Burwood Road and took a taxi (with the $20 I had !eft in my wallet) to Concord Hospital where I was treated for my head injury. I was told that I had a concussion. ………………………….. 17. I refer to paragraph 38 of the Statement (of the applicant). Though I know this paragraph relates to a conversation between Mr Guru and Mr Metcalfe, it refers to me 'kicking on' and 'banging my head' in the pod. I did not bang my head in the pod intentionally. I did not want to hurt myself and I deny that I did anything to cause my injuries that night. 18. I refer to paragraph 41 of the Statement where Mr Guru said that 'he looked in the mirror and saw Mr Ra banging his head on the side of the pod'. This is false. I deny banging my head on the side of the pod. I also deny that I would have had my shoulder up against the front wall. I may have had my shoulder up against the wall at one stage as a result of trying to protect myself from injury when Mr Guru was driving the way that he was, but at the time when the vehicle braked suddenly for a second time (as described in paragraph 10 above) I was in my seat and I flew straight into the Perspex window because the car braked very suddenly and I wasn't expecting it. 19. I refer to paragraph 43 of the Statement. I do not recall this conversation, but I deny that Mr Guru asked me if I was alright at that time or at any time that evening. 20. I refer to paragraph 45 of the Statement. I say that I did not get my injury by deliberately hitting my own head inside the pod. As I said in paragraph 17 above, I did not intentionally cause injury to myself. ………………………………. My participation in criminal proceedings against Mr Guru 26. I do not now remember the dates, but I was required to give evidence as a witness in criminal proceedings that I understood were taken against Mr Guru. 27. At that time I was in prison and I was not in a good place mentally. Because of this, I did not want to participate in the criminal proceedings against Mr Guru. 28. I know that I was an uncooperative witness in those proceedings. But I was uncooperative because of my personal circumstances at that time. I wish now that I had given my evidence and if I had my time again I would have done so. 29. I have been made aware in preparing this statement that it was alleged in criminal proceedings that Inspector Laird had somehow tried to pressure me into providing the Earlier Statement. This is untrue. Inspector Laird never pressured me. I was very hesitant to provide a statement and it took me some time to agree to prepare one. I also didn't want to prepare one because I was going through a very rough time in my life, including periods of homelessness and family issues in circumstances where I was also trying to finish a university degree and looking for work at the same time. I simply wanted to forget about the incident with Mr Guru and move on with my life. I say that these were the motivators for me taking so long to make a statement and then not co-operate in the criminal proceedings. Additional comments on the matter 30. I understand from reading Mr Guru's Statement that he is alleging that I was being violent in the pod, that I was hitting my own head in the pod and that my injuries were caused by me. I strongly deny this. I am also really upset that Mr Guru says that I caused my injuries and is blaming me for what happened to me. I have spent a lot of time in prison, and even been homeless, and even taking those experiences into account, I say that I have never sustained the type of injury I sustained as a result of Mr Guru's driving. I have never been hurt so badly in my life. 31. As a result of the injury which I sustained, I was required to take time off my university studies. This was a huge disappointment for me, because I am the first in my family to attend university and getting a university degree means a great deal to me. 32. I have no reason to lie about how I sustained the injury to my head. I have always been reluctant to provide a statement in relation to how I was injured, as I have outlined in paragraph 29 above. However, what Mr Guru is saying about what happened to me is not right, and I feel that I have to explain what really happened to me.
3. Mr Ra was cross-examined by counsel for the applicant but did not resile from the evidence he had given.

Senior Constable Glen Morgan

1. Senior Constable Morgan made a police statement on 23 October 2015 for the purpose of the Local Court proceedings against the applicant. That statement detailed the conversation he had with the applicant after Mr Ra had been taken to Burwood Police Station on 2 October 2015. Senior Constable Morgan also referred to a conversation he had with Paramedic Chris Barron who attended the police station to treat Mr Ra's injuries and with Mr Ra himself.
2. In his witness statement prepared for the purpose of these proceedings, Senior Constable Morgan referred to the conversation he had with Mr Ra when Mr Ra, in response to a question about the injuries to his head, stated "They did it to me. But you wouldn't believe me".
3. Senior Constable Morgan was not required for cross-examination.

Leading Senior Constable Sang To

1. Leading Senior Constable To made a police statement on 9 October 2015 for the purpose of the Local Court proceedings against the applicant. In that statement he recorded a telephone conversation he had with Constable Metcalfe in the early hours of 2 October 2015 as follows: 16. Approximately half an hour later I received a call on the supervisor's mobile phone from Constable Metcalfe via Bluetooth as I was operating Flemington 14 with Constable Sharif in the front passenger seat. He said, "Are you alright to talk?" I said, "Yeah I'm with Sharif at the moment but yeah I can talk" He said, "Man l don't know what to do aye? I said, "What do you mean? What's wrong?" He said, "Man the bloke we conveyed earlier. He split his head open in the back" I said, "Was he carrying on and bashing his head inside the truck?" He said, "Nah. Guru was driving like a maniac speeding down Parramatta Road and smashed on the brakes and he smashed his head because of it" I said, "What? Did he do it on purpose?" He said, "Yeah. When he started speeding up I told him to slow down and he slammed on the brakes. I told him to stop and l told him that we had a duty of care to him. He laughed it off and started speeding up again. I told him to stop a second time and he slammed on the brakes and that's when I saw blood on his face" I said, "Do you think Guru's driving caused the injury?" He said, "Definitely" I said, "Mate you need to report it man. Do you want me to talk to the boss on your behalf?" He said, "Yeah if you don't mind. I'm still here doing the charge" I said, "Yeah no worries. Just come back when you're done"
2. Leading Senior Constable To was cross-examined by counsel for the applicant. The cross-examination included the following: Q. Going back a bit now to your conversation with Constable Metcalfe on the particular evening, on the morning of 2nd. In your police statement, when you set this out, you included speech marks, true? A. That's correct. Q. And that was to indicate your best recollection of the actual words Constable Metcalfe used? A. Yes. Q. And the words you used? A. Yes. Q. And when you spoke to Constable Metcalfe on this occasion it's your evidence, isn't it, that Metcalfe did not mention anything to you about Ra having a warning for being a child sex offender, is it? A. No. Q. Because he did not say that to you, did he? A. I don't recall him saying that. Q. If he did say it, you would have put it in your statement, true? A. Yes.

Determination

1. The allegations against the applicant which led to the respondent's order that he be removed from the NSW Police Force are extremely serious, as are the consequences of that order for the applicant. In adopting a cautious approach to the assessment of the evidence, for the removal order to be upheld the Commission needs to be reasonably satisfied on the basis of compelling evidence that the allegations have been substantiated (Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 361-2).
2. It is the applicant's case that, in essence, the allegations in the report made by Constable Metcalfe on 2 October 2015, which are set out in the respondent's Statement of Reasons (at [6]) and which have been repeated in Constable Metcalfe's police statements and in his witness statement in these proceedings, are a fabrication concocted by Constable Metcalfe in order to "get in first" before the applicant made a complaint against Constable Metcalfe for failing to comply with the applicant's directions and for conducting a "really bad search" of Mr Ra. A number of observations may be made about this proposition.
3. Firstly, whilst "inherent unlikelihood", in the sense discussed by Dixon J in Briginshaw (at 362), attaches to the allegations that the applicant assaulted and then deliberately engaged in a course of conduct to injure Mr Ra, it is also inherently unlikely that Constable Metcalfe would fabricate such serious allegations against a colleague in order to "get in first". To do so would constitute serious misconduct on the part of Constable Metcalfe.
4. Secondly, it was never satisfactorily established how getting in first would somehow protect Constable Metcalfe from the consequences of failing to comply with the applicant's directions and for conducting a "really bad search", had the applicant made a complaint about those matters and those allegations against Constable Metcalfe had been substantiated.
5. Lastly, from my observation of Constable Metcalfe in the witness box, I formed the opinion that he was an honest and credible witness who gave truthful evidence to the best of his ability. I formed a similar opinion of Mr Ra, who had nothing to gain from fabricating evidence against the applicant. I did not form such an opinion of the applicant who, at times, appeared to be evasive in his responses to questions asked. I set out an example below: Q. You also accept that in the early hours of 2 October 2015 that you drove above 60 kilometres an hour on more than once? A. Yes qualified. Q. In terms of driving over the speed limit, do you accept that you intentionally or deliberately did that? A. No. Q. Are you saying you weren't paying attention whilst you were driving back to Burwood police station and you just sort of drifted off and exceeded the speed limit? A. Yes. Qualify. Q. Let me just ask you about that. So you have a person unrestrained in the back of a vehicle made of hard material and you're not paying attention to the speed limit that you're going. Is that correct? Do I understand your evidence? A. At that point of time, yes. Q. Early hours of the morning, so it's dark? A. It's not because of that. Q. No, no. Just do you accept the proposition, early hours of the morning, it's dark? A. It is dark, yes. Q. I'm going to suggest if you weren't paying attention to the speed limit you're going, there's a risk you weren't paying attention to what was happening at the road. What do you say about that? A. I was watching the road. One of the reasons why I couldn't concentrate on the speed. Q. Do you say you can only concentrate on one thing at a time? A. I was concentrating on three things at that time. Q. None of them were the speed limit you were going? A. Sorry? Q. None of them were the speed limit you were going? A. It was at a point but I wasn't looking directly at the speed limit at all times. Q. You accept, though, there was no need for you to exceed the speed limit on the early hours of 2 October 2015? A. It's hard to answer the question. Qualify. Q. Let me ask you this way. You weren't rushing to go to hospital or anything? A. No. Q. I doubt this would happen, but you weren't asked to attend some other critical incident? A. No. Q. You were simply conveying Mr Ra back to the Burwood police station? A. Yes. Q. With those sort of circumstances that I've put to you, do you accept there was no need for you to exceed the speed limit that evening, that morning? A. Yes. Q. You accept that. You would also accept then that, given that Mr Ra was unrestrained in the back of the pod, you could've travelled at a much slower or lesser speed than the speed limit. Do you accept that? A. Yes. Q. Can you think of any reason why you chose not to do that? A. Yes. Q. What's the reason you chose not to go at a slower speed? A. It was my job to just drive. By that particular point of time I was watching Ra through the rear view mirror and driving at the same time. Q. I guess my question-- A. So I wasn't looking at the road and speeding. I was looking at Ra, the road, and sometimes speed would go up, I would reduce the speed, it would go up. Because I always trying to keep on point 60. So because I was concentrating on road and Ra through the rear view mirror, one of the reason why it went up, slow down, went up. Q. I guess the question I asked you though was that, given there was no urgent, my paraphrasing, no urgent reason why you were - no reason of urgency to attend - to transport Mr Ra back to the Burwood police station, why you couldn't have gone at a speed much lower than the speed limit? A. I could have.

Allegation 1

1. The applicant admitted that he pushed Mr Ra's head against the police vehicle's pod to stop him from resisting but used no more force than he thought was reasonably necessary to control Mr Ra. He claimed that Mr Ra himself forcefully struck the front of his head on the pod.
2. The evidence of Constable Metcalfe about this incident is as set out in the Statement of Reasons (at [6]). He claimed to have seen the applicant holding the back of Mr Ra's head which he pushed with force into the back of the vehicle and saw Mr Ra's head bounce off the rear of the vehicle cage.
3. Mr Ra's evidence was that the applicant slammed his face into the rear cage of the police vehicle. He wasn't shaken on this point during his cross-examination.
4. CCTV footage of this incident was produced to the Commission but the vision was not sufficiently clear to be able to establish who should be believed.
5. With respect to Allegation 1, I prefer the evidence of Constable Metcalfe and Mr Ra over that of the applicant. It follows that I am comfortably satisfied, on the balance of probabilities, that this allegation has been substantiated and I agree with the respondent's finding in this respect.

Allegations 2 and 3

1. I deal with Allegations 2 and 3 together.
2. The alleged conduct of the applicant that formed the basis of these two allegations was extremely serious. The allegation, based on Constable Metcalfe's evidence, is that, upon being (wrongly) advised by Constable Metcalfe that Mr Ra had "a warning for him being a CSO… An Adult child sex offender", the applicant applied the vehicle's brakes "as hard as possible" causing Mr Ra to be "tossed from the rear of the cage to the front where he collided with the wall". The applicant then sped up and applied the brakes again causing Mr Ra to "fly through the back of the vehicle cage hitting his head on the vehicle wall" causing injury to his head.
3. The applicant claimed that he was slowing down to stop anyway but, upon hearing a "really loud bang come from the pod", he instinctively braked "a bit harder" and the vehicle "stopped more suddenly" than he intended. The applicant then claimed that, shortly after, he heard "another bang from the pod… and saw Mr Ra banging his head on the side wall of the pod" and "made a split-second decision to stop the vehicle to prevent Mr Ra from hurting himself". The applicant applied the brakes "firmly" and the vehicle "stopped quickly and probably a little more quickly" than the applicant had anticipated.
4. Constable Metcalfe's evidence, as set out in the Statement of Reasons (at [6]), tells a completely different story. Mr Ra's evidence at paragraphs 9-11 of his witness statement (at [40]) aligns much more closely with the evidence of Constable Metcalfe than with the evidence of the applicant.
5. In his evidence, Constable Metcalfe states that, while they were in the vehicle, the applicant admitted to him that he "heard CSO and something just came over" him. Constable Metcalfe made reference to this conversation in the report he made shortly after the incident. The applicant himself, at paragraph 40 of his witness statement (at [21]), states that Constable Metcalfe advised him that Mr Ra had "a warning for him being a C.S.O… Child sex offender… He's confirmed twice". In my opinion, it is completely plausible that the applicant would have reacted in the way it is alleged on receiving this information.
6. I do not attach any significance to the omission of any reference to Mr Ra being (wrongly) stated by Constable Metcalfe to be a "C.S.O." from the records of the conversations that he subsequently had with Senior Constable Delandro (at [36]) or with Leading Senior Constable To (at [45]). People recall different aspects of conversations they have with others differently. On this issue, however, it is common ground as between Constable Metcalfe and the applicant that, prior to the applicant applying the vehicle's brakes the first time, he was told by Constable Metcalfe that Mr Ra had "a warning for being a C.S.O.".
7. It is apparent that I have come to a different conclusion with respect to these two allegations than the conclusion reached by Magistrate Seagrave in the Local Court proceedings against the applicant. There are a number of reasons for this.
8. Firstly, different standards of proof apply to the two sets of proceedings.
9. Secondly, I do not share her Honour's scepticism about Constable Metcalfe's evidence that the applicant told him exactly what to say to the police radio operator after Mr Ra sustained his injuries in the vehicle, and he did so (at [32]-[34]). In my opinion, it is entirely feasible that a junior officer, such as Constable Metcalfe, in the circumstances in which he found himself at the time, would radio in what he was told to by his more senior colleague, even when the information provided to the police radio operator was not entirely accurate or complete.
10. Lastly, I had the benefit, which her Honour did not have, of a cooperative witness in Mr Ra whose evidence, which I found to be credible, corroborated, in a number of important respects, the evidence of Constable Metcalfe and contradicted the evidence of the applicant.
11. As with Allegation 1, with respect to Allegations 2 and 3, I prefer the evidence of Constable Metcalfe and Mr Ra over that of the applicant. It follows that I am comfortably satisfied, on the balance of probabilities, that these allegations have been substantiated and I agree with the respondent's findings in this respect.

Allegations 4 and 5

1. I deal with Allegations 4 and 5 together.
2. It follows from the conclusions I have reached and the findings I have made above that I agree with the respondent that these two allegations have been substantiated.

Conclusion and Order

1. The applicant has failed to establish that the removal order made by the respondent is harsh, unreasonable or unjust. His application must fail.
2. The application made by Rahul Guru pursuant to section 181E of the Police Act for review of the order removing him from the NSW Police Force is dismissed. Commissioner John Murphy

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: 31 October 2019