Hanna v Commissioner of Police, NSW Police Force

Hanna v Commissioner of Police, NSW Police Force - [2024] NSWIRComm 1058 - NSWIRComm 2023 case summary — Zoe

[5]

The applicant and the videos

The applicant was born in 1971 and was 50 years old at the time of the application, he had been a police officer for 21 years.
The applicant attested as a police officer in May 2000 and spent the first three years of his career performing general duties at Campsie. In 2003, he transferred to the State Technical Investigation Branch (STIB), where he remained for over 12 years.
In September 2015, the applicant was promoted to the rank of Sergeant and was transferred to the Metropolitan Wireless Network Services.
The applicant on 9 April 2020, received a video on his personal mobile phone from Mr Rodney Makhlouf via the WhatsApp social media and messaging app (Video 4).
On 22 January 2021, the applicant received a number of videos from Father Kolodziej ("Fr Kolodziej") via WhatsApp, including one at 9.08am (Video 1) and another sent at 10:17am (Video 2).
On 6 March 2021, the applicant received a number of other videos from Fr Kolodziej via WhatsApp, including one at 7:55am (Video 3).
The applicant had both a personal mobile phone and a work mobile phone. It is not disputed that all of the conduct relevant to these proceedings occurred on the applicant's personal phone.
All videos, photos and images sent to the applicant via WhatsAp, downloaded automatically to the 'camera roll' on the applicant's mobile phone including Videos 1 to 4.
On 19 May 2021, the applicant ceased performing work and following this he provided medical certificates from the applicant's treating doctor, Dr Nelly Ghattas which stated that he was unfit to perform work and was receiving counselling and taking antidepressants.
Dr Ghattas in an Attending doctor's statement (Income Protection) dated 25 August 2021 indicated that the applicant had been totally unfit to work from 19 May 2021 and that the Dr was unsure of when the applicant would be fit to return to work.
On or around 6 April 2022 the applicant commenced receiving income protection insurance payments $7,877.46 (less tax) per month equating to 75% of his pre-disability income.
The payments were backdated to 10 March 2022, which was the time following the waiting period of nine months under the terms of the income protection insurance policy.
During the waiting period of 9 months, the applicant was paid $1,210.00 per fortnight by the respondent in the form of hardship payments.
From 10 March 2023, the income protection insurance payments increased to the amount of $8,271.34 (less tax) and, as at the date of the final day of hearing, the payments were continuing.

[8]

Removal Process

On 25 February 2022, the applicant was provided with a Notice pursuant to s 181D(3)(a) (the "Notice") of the Police Act informing the applicant that his suitability to continue as a police officer was under consideration.
Section 181D of the Police Act provides the relevant legislative mechanism for the dismissal process that followed: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. […] (3) Before making an order under this section, the Commissioner-- (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. […]
The Notice informed the applicant that his ongoing suitability to continue serving as a police officer would depend upon the determination of three allegations, which are set out below: 1. the applicant was in possession of child abuse material, being the four videos described above; 2. the applicant failed to report Fr Kolodziej for sending three Whatsapp videos, being Videos 1-3; and 3. the applicant attempted to show Rhiannon Moseley, an administrative assistant within communications Command, a video corresponding with DSC Bortolussi's description of Video 2, before playing the video in her presence.
The respondent identified the alleged conduct in Allegation 1 as contrary to the following legislative provisions and NSWPF policies, which have been reproduced below for convenience:

[9]

Allegation 1: The applicant was in possession of child abuse material, being the four videos. Section 7 of the Police Act, which provides that: Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals Clause 9 of the Police Regulation 2015, which provides that: Responsibilities of off-duty police officers 1. A police officer who is off-duty (whether rostered off-duty, on annual leave, suspended or otherwise absent): a. is subject to the provisions of this Regulation and the Police Code of Conduct, and b. will be held responsible for any misconduct by the officer while off-duty […] Division 15A of the Crimes Act 1900, which provides: 91FA Definitions For the purposes of this Division: child means a person who is under the age of 16 years. […] 91FB Child abuse material-meaning (1) In this Division: child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The private parts of a person are: (a) a person's genital area or anal area, or (b) the breasts of a female person. 91H Production, dissemination or possession of child abuse material (1) In this section: […] possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)). […] (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. Maximum penalty: imprisonment for 10 years. Point 1 of the NSW Police Force Code of Conduct and Ethics, which provides: 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. Whether on or off duty your conduct will reflect on the NSW Police Force. All employees must protect the reputation of the NSW Police Force through appropriate behaviour. You must always act lawfully and never in a way that brings, or is likely to bring discredit to the NSW Police Force. Point 6 of the NSW Police Force Code of Conduct and Ethics, which provides: An employee of the NSW Police Force must comply with the law whether on or off duty. The NSW Police Force is responsible for upholding the law. Unlawful and/or criminal conduct by employees of the NSW Police Force is incompatible with that role and also likely to bring the NSW Police Force into disrepute. All employees of the NSW Police Force are expected to comply with the law at all times.

The respondent considered Allegation 2, if substantiated, would disclose breaches of some of the legislative provisions and police policies set out above, including s 7 of the Police Act, cl 9 of the Police Regulation 2015, and Point 1 of the NSW Police Force Code of Conduct and Ethics. In addition, the respondent outlined several further legislative provisions and police policies which may have been breached if the allegation was shown to be true, including: 1. Section 7(d) of the Police Act, which provides: Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: […] (d) seeks to improve the quality of life by community involvement in policing […] 1. Section 201 of the Police Act, which provides: A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence. 1. Point 3 of the NSW Police Force Code of Conduct and Ethics, which provides: An employee of NSW Police Force must know and comply with all policies, procedures and guidelines that relate to their duties. If you are going to work lawfully and effectively you need to understand and act in accordance with the standards that govern your duties.
The respondent considered that Allegation 3, if substantiated, would disclose breaches of legislative provisions and police policies outlined above, including s 7 of the Police Act, and Points 1, 3 and 6 of the NSW Police Force Code of Conduct and Ethics, set out above. In addition, the respondent outlined several further police policies which may have been breached if the allegation was shown to be true, including: 1. Point 4 of the NSW Police Force Code of Conduct and Ethics, which provides: An employee of NSW Police must treat everyone with respect, courtesy and fairness. 1. The Respectful Workplace Behaviours Policy Statement, which provides: The NSW Police Force has a responsibility to provide a work environment that is safe, ethical, inclusive and productive. This means bullying, discrimination, harassment, vilification and victimisation will not be tolerated. All staff - must not engage in behaviour that amounts to bullying, discrimination, harassment, vilification or victimisation, towards other employees, students, or any other person in circumstances where the employee's conduct could bring NSWPF into disrepute, or reflect on the employee's suitability to be a member of the NSWPF. All employees must know and comply with the Code of Conduct and Ethics, Respectful Workplace Behaviours Policy Statement and Respectful Workplace Behaviours Guidelines. 1. The Respectful Workplace Behaviours Guidelines, which provides: NSW Police Force (NSWPF) has a responsibility to provide a safe, ethical, inclusive and productive work environment and to set standards of behaviour that supports a workplace culture free of bullying, discrimination and harassment. Everyone has a role to play in the creation and maintenance of a positive work environment free of negative workplace behaviours. It is a condition of our employment that all NSWPF employees uphold our organisational values and standards in accordance with the Code of Conduct and Ethics (Code), the Respectful Workplace Behaviours Policy Statement and these guidelines. […] All NSWPF employees are required as a condition of their employment to ensure that their behaviour is consistent with the standards of behaviour set out in the Code of Conduct and Ethics, including but not limited to: interacting with others in a professional, courteous and polite manner that does not interfere with the health, safety and comfort of others […] What are the responsibilities of commanders, managers and supervisors? Commanders, managers and supervisors are responsible for: "leading the way'' by being good role models of respectful workplace behaviour and conduct […] 11. Harassment (including sexual harassment) Harassment is unlawful under both State and Commonwealth legislation if: it is unwelcome, uninvited or unreciprocated; and a reasonable person would anticipate that the recipient would be offended, humiliated, intimidated; and it is either sexual in nature or targets a person on a discriminatory ground. It should be noted that harassment that is sexual in nature is defined under State and Commonwealth legislation as Sexual Harassment. Harassment can occur regardless of whether or not a person intended to harass another person. It does not need to be repeated or continuous, one-off incidents are capable of constituting harassment. […] Sexual harassment Examples sexually explicit pictures, screen savers or posters […] displaying or circulating material of a sexual nature including by email, photos, posters or screen savers etc

[11]

The Order and its Reasons

On 24 August 2022, the applicant was served with the Order under s 181D(1) made by the respondent and a Statement of Reasons (the "Reasons"). The Order dismissed the applicant from the NSWPF effective immediately.
In the section of the Reasons entitled "Consideration", the respondent noted that the applicant claimed to be unable to answer Allegations 1 and 3 due to ongoing appeal proceedings but was of the view that the criminal proceedings did not prevent her from independently determining the truth of the allegations in the context of a potential dismissal. After considering the evidence available, the respondent was satisfied that Allegations 1 and 3 were substantiated.
In relation to Allegation 2, the respondent informed the applicant that, in considering her determination that the applicant played Video 2 in the presence of Ms Moseley, she did not accept his claim that he had not opened the videos sent by Fr Kolodziej. The respondent also noted that the applicant had not commented on his failure to report Video 4. Accordingly, she found that Allegation 2 was substantiated.
Having found that Allegations 1-3 were substantiated, the respondent informed the applicant of the following: "The possession of any child abuse material is abhorrent. The exploitation of children is a particularly serious issue. I expect all officers to be vigilant in detecting and preventing matters of this nature. The public are entitled to expect, and I demand, that police officers protect the most vulnerable members of the community, such as children, from exploitation and abuse. Your conduct demonstrates contempt and disrespect for the law, this organisation, and your Oath of Office. l have carefully reviewed all of the material associated with this matter. I have taken into account the character evidence you have provided, and details of your career history within the NSW Police Force, including your senior rank, and over 20 years of service. I have taken into account your financial obligations, and the impact that removal from the NSW Police Force will have on you. Against that, I have had regard to the public interest and the need to maintain the integrity of the NSW Police Force. lt is the mission of the NSW Police Force to work with the community to reduce violence, crime and fear. The community must trust that sworn members of the NSW Police Force will protect people from harm. Your conduct has betrayed that trust. These matters would go to the very heart of your personal judgement and integrity. Given the magnitude 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 find that I can no longer rely upon your integrity as a police officer to perform policing duties. 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 Force 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." Emphasis in original

[12]

The Review Application

On 29 August 2022, the applicant's solicitors lodged an application for review under s 181E of the Police Act. In the application, the following claims were made: 1. the Order was unjust because the applicant is innocent of the Allegations; 2. the Order was unreasonable because it drew inferences from the material before the respondent that should not reasonably have been drawn, and the respondent made findings of fact against the applicant on the balance of probabilities that it was not reasonable to make; 3. the Order was unreasonable because the respondent gave insufficient weight, or no weight at all, to the contents of the applicant's Response; and 4. the Order was harsh because of its consequences for the applicant's personal and economic circumstances, and because it was disproportionate to the gravity of the alleged conduct: attachment to application.
The matter was first listed for a conciliation and directions hearing before Chief Commissioner Constant, following which directions were varied on a number of occasions until parties submitted the following: 1. the applicant's Short Summary of Case, and statements of the applicant, Dr Dianna Kenny, Soly Hanna, Chris Schofield, Dory Najem, Sam Guindi and Rodney Makhlouf filed 21 December 2022. 2. further statement of Dr Dianna Kenny filed 6 February 2023; 3. the respondent's Short Summary of Case, statements of Samantha Thomas, DSC Peter Cartwright and DSC Daniel Bortolussi, and the Commissioner's Confidence Supporting Documents filed 14 April 2023; 4. summons to give evidence were issued at the behest of the respondent to Rhiannon Moseley on 28 April 2023 and Bradley Penman on 24 May 2023, and summons for production were issued at the behest of the applicant to the respondent, Metro Wireless Network Services and Samantha Thomas; 5. further statement of the applicant and Bradley Penman dated 25 May 2023; 6. applicant's witness list dated 4 July 2023; 7. applicant's list of authorities dated 28 August 2023; 8. applicant's outline of submissions dated 10 November 2023; 9. respondent's outline of submissions dated 24 November 2023; 10. applicant's outline of submissions in reply dated 6 December 2023; and 11. respondent's supplementary note dated 20 December 2023.

[15]

Hearing

In addition to his own evidence, the applicant relied on evidence from: 1. Mrs Soly Hana, the applicant's wife, which went to character; 2. Dr Dianna Kenny, a consultant psychologist, psychotherapist and marriage and family therapist, who gave evidence in relation to the nature of the Videos 1-4; 3. Mr Chris Schofield, a former Sergeant of the NSW Police Force which went only to character); 4. Mr Bradley Penman, a former colleague and administrative employee of the NSWPF, whose evidence went to allegation 4; 5. Mr Dory Najeem, the applicant's brother-in-law and his evidence was primarily in relation to allegation 3; 6. Mr Sam Guini, the applicant's brother-in-law and his evidence was primarily in relation to allegation 3; and 7. Mr Rodney Makhlouf, the applicant's neighbour. Each of whom, apart from Mrs Soly Hana, were cross examined.
Prior to giving their evidence, both the applicant and Mr Makhlouf applied for an order for a Certificate pursuant to s 128 of the Evidence Act was made in respect of their evidence prior to giving their evidence.
The respondent, in support of her case tendered statements of: 1. DSC Peter Cartwright, a serving officer of the NSWPF who was involved in the investigation of the applicant; 2. DSC Bortolussi, a serving officer of the NSWPF who was involved in the investigation of the applicant; 3. Ms Thomas, a former colleague and administrative employee of the NSWPF, whose evidence went to allegation 4; and 4. Ms Moseley, a former colleague of the applicant and at the time of the allegation 3, was an administrative employee of the NSWPF, whose evidence went to allegation 3.
DSC Cartwright was not available to attend due to a serious psychological condition, however part of his statement was admitted into evidence over the objection of the applicant.
In relation to the statement of Ms Thomas, there was an objection by the applicant to its' acceptance by the Commission on the basis of relevance as the factual allegations were not relied on, nor referred to in the Reasons.
The respondent pressed the statement of Ms Thomas for all purposes and made the concession that it was only tendered for the purposes of Allegation 4.
In support of the statement of Ms Thomas relevance as to removal, the respondent relied on the decision of the Full Bench of this Commission in Collins. In short, the respondent submitted that alleged misconduct that was not relied upon in the Orders and which occurred prior to the decision to remove a police officer, are relevant for all purposes including the removal.
The evidence of Ms Thomas was admitted, but only for the purposes of remedy due to the material being known to the respondent prior to the removal and thus did not fall within the exemptions as referred to by the Full Bench in Collins at paragraph [39].

[17]

Allegations 1 and 2

The applicant also made submissions concerning his alleged possession of the videos. The applicant pointed to authorities including He Kaw Teh v R (1985) 157 CLR 523 at 570 and Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492 at [81]-[84] which held possession required that a person must know of the impugned material and intend to exercise physical control over it.
Additionally, the applicant relied upon the defence in s. 91HA of the Crimes Act 1900 (NSW), which provides: 91HA Defences (1) Innocent production, dissemination or possession It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.
The applicant also raised the fresh allegation made by the respondent that the applicant breached ss 474.22 and 474.22A of the Criminal Code Act 1995 (Cth) by possessing Video 1. In relation to s 474.22, the applicant contended that the provision was an "access" offence with reference to Allison (a pseudonym) v R [2021] VSCA 308, requiring that the applicant intentionally accessed the material and was reckless as to whether it was child abuse material: applicant's outline of submissions [49]. As concerns s 474.22A, the applicant submitted that the fault element for the provision was located under s 5.6, which provides that: 5.6 Offences that do not specify fault elements (1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. (2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element. Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.
The applicant observed that, as these are fresh allegations that the respondent did not consider in dismissing the applicant, the respondent bears the onus of proof in respect of these provisions to show that: 1. the videos amount to child abuse material; and 2. the applicant used a "carriage service".
The applicant further observed that the respondent had not adduced any evidence establishing that the applicant had used a "carriage service".
Furthermore, as regards the mental element, the applicant contended with respect to both the Crimes Act and Criminal Code contraventions, that his WhatsApp application was automatically set to download all images and videos received, regardless of whether he viewed the images, suggesting that the respondent's onus was not satisfied. The only video the applicant admits to having knowingly possessed was Video 4.
The applicant further relied upon the decision of Mahony J in the criminal appeal matter, arguing that that decision is binding on the Commission with respect to questions of law and "highly persuasive" with respect to mixed questions of law and fact. The applicant also relied upon a range of other criminal authorities to submit that the Videos 1-4 were not offensive for the purposes of the Crimes Act.
Implicit within the applicant case, was that there was no need to report Fr Kolodziej as the applicant did not know of Videos 1-3.

[21]

Respondent's Case

The respondent contended that it fell to the applicant to disprove the factual findings in the Reasons to the Briginshaw standard.
The respondent cast this Commission's use of the criminal proceedings and criminal authorities in a different light to the applicant, contending that the most that can be said of these matters is that they "have some level of bearing on the Commission's consideration of the facts the subject of these proceedings". In support of this proposition, the respondent relied upon Morris v Commissioner of Police [2016] NSWIRComm 1034 and Konopka v Commissioner of Police (No 2) [2018] NSWIRComm 1001.
It is convenient to set out the respondent's contention with respect to the criminal proceedings at more length which are set out in her written submissions: 1. the finding of the Local Court in relation to Videos 1 and 2 is of no utility as it was based on a finding that the prosecution did not prove to the criminal standard that the applicant knew that he had the videos and therefore was in possession of them as it is up to the applicant to prove lack of possession on the civil standard; 2. the District Court finding that the contents of Video 2 was not offensive offers no real assistance because it was also determined on the criminal standard. In this respect the respondent in a further supplementary submission drew the attention of the Commission to the decision of this Commission in Moylan v Commissioner of Police [2021] NSWIRComm 1095 at [53] and McClelland J of the Family Court in Saller & Danell [2017] FamCA 161; and 3. the Local Court finding that Ms Moseley was a witness of credit in the context of the demanding criminal standard of proof should lend weight to the integrity the Commission attributes to her account with respect to Allegation 3.
In relation to the various witnesses, the respondent submitted that Ms Moseley and Ms Thomas were impressive witnesses who demonstrated clear recall and firmness of answer.
In relation to the applicant's evidence, the respondent contended that it was the applicant whose account was unsustainable, because, among other things, he failed to identify a person who allegedly complained about Ms Moseley's time sheets and conducted advocacy against DSC Bortolossi from the witness box. The respondent also submitted that his account was inconsistent and that he was motivated to protect Fr Kolodziej and Mr Makhlouf. With the exception of Ms Hanna, Mr Schofield and Dr Kenny, the respondent also criticised the presentation and veracity of all the applicant's witnesses.
The respondent also asserted that the applicant in his evidence did not provide a consistent, cogent and plausible account. As an example of this, the respondent pointed to the following line of cross examination in relation to the sending of a pornographic video to Mr Makhlouf: "Q. Does that refresh your memory about the video that you sent? A. Yes, I- I can recall the first part of it but I can't recall the second part of it. Like, the - the extended part of it. Q. So, are you saying that you sent the video to Mr Makhlouf without watching all of it? A. Yes. Q. Did you do that a lot? A. Yeah. Q. So, you would just send people messages without knowing what actually was in them? A. Yeah, your general content then you forward it on. It's normal practice, you just forward it on. If you find it funny, send it away. Q. I want to suggest to you, Mr Hanna, that you wouldn't send anybody any kind of video unless you'd watched the whole thing so that you could decide whether or not that might be something that the person that you're sending it to did want to receive it, do you agree with that? A. No, I - there's messages you sometimes send that you don't watch the whole thing. But, you - you get an understanding of what people won't find offensive because they're sending you similar messages. Q. Do you remember yesterday you gave some evidence about how people edit videos? A. Yes. Q....Let's just assume for the moment there was a video that went for a minute and you only watched the first 30 seconds of it, and you thought that that 30 seconds was something that Mr Makhlouf might be interested in, and you didn't watch the last 30 seconds, do you understand that? A. Yeah. Q. That last 30 seconds could have anything in it, correct? A. Correct. Q. That could even include child abuse material, possibly. A. Possibly, yes."

[22]

Allegations 1 and 2

In the submission of the respondent, the applicant bore the onus to cast sufficient doubt that the videos were child abuse material.
It was submitted that the Commission would not accept the applicant's assertion that he did not know that Videos 1-3 were stored on his phone and thus not in his possession.
The respondent addressed the applicant's characterisation of the respondent's failure to view the videos before issuing the reasons as a "flaw", contending that the respondent had an accurate description (that of DSC Bortolussi) of the videos before her, and that the applicant did not raise any objections in his Response.
It was also argued by the respondent that the seriousness of the criminal matters, in light of the onus resting upon the applicant, should, if anything, raise the Briginshaw standard of proof that the applicant must meet.
As for the contention that the respondent did not have regard for the applicant's successful criminal appeal, the respondent observed that the appeal decision was handed down after the Order was made, accordingly it was impossible for the respondent to take this into account.
The respondent's submissions assert that Videos 2-4 obviously feature a child; as regards Video 1, the respondent raises the fresh Criminal Code allegations outlined above due to the participants' age possibly being greater than 16.
The respondent alleged that each of Videos 1-4 were offensive and that each would on a civil standard constitute child abuse material as defined in s 91FB of the Crimes Act.
The respondent also addressed the applicant's case that his phone automatically downloaded images from WhatsApp and that he was unaware that the feature could be turned off by arguing that the applicant's background in information technology made this unlikely. Regardless, the respondent submitted, the applicant was responsible for checking the content on his phone and removing inappropriate content. The respondent additionally observed that each video was marked as "read" on the Cellebrite report and that the applicant responded by saying "Very funny".

[26]

Allegations 1-3

Allegations 1-3 each require a consideration of whether the applicant has contravened Division 15A of the Crimes Act. In determining this issue, it is first necessary to deal with a common theme running through the respondent's submissions. This theme is to the effect that criminal law authorities on the interpretation in relation to "possession" and the definition of "child abuse material" in s 91HA of the Crimes Act are irrelevant for the purpose of the present proceedings.
In the respondent's supplementary submissions, each of the cases referred to and relied upon deal with the requisite level of proof as required by s 140 of the Evidence Act 1995 and common law authorities such as Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. This includes Saller & Danell in which McClelland J determined by reference to s 140(2)(c) of the Evidence Act that photos taken by a parent of his children did constitute "child abuse material" for the purposes of s 91FB of the Crimes Act.
The respondent has adopted an approach which has mistaken the application of the different levels of burden of proof, with that of the requisite elements of a contravention or of Division 15A of the Crimes Act which must be proved.
The Commission is bound to follow decisions of the superior Courts in relation to the interpretation of criminal statutory provisions, including Division 15A of the Crimes Act. Once the identification of the elements of the offence have been established, then proof of establishing these elements, before the Commission is to the civil standard. This is the approach that I shall follow.
In considering Allegations 1-3, it is appropriate to commence by determining the following issues: 1. Did the applicant play Video 2 in the presence of Ms Moseley as alleged by her in March 2021; 2. Were Videos 1-3 in the possession of the applicant for the purposes of Division 15A of the Crimes Act; and 3. Do the contents of any of Videos 1-4 that the applicant had in his possession constitute child abuse material.

[27]

(1) Playing of Video 2

It is appropriate to set out Ms Moseley's account of the alleged playing of Video 2 by the applicant from her Witness Statement provided in the preliminary investigation: "8. In early March this year (2021) I was out having a smoke with Sergeant HANNA. He asked me how my son was going. I mentioned to Sergeant HANNA that my son, who is a year and a half, was going to day care. I told HANNA he had a male day care teacher and said, "He's a bit weird". We were discussing that you do not see many male day care teachers. I mentioned I wanted to take my son out of that day care centre, not because of the teacher, but I felt he was being left out from the other children. 9. At this point Sergeant HANNA said, "Have you seen the video with the two parents having sex and the kid walks in?" I said, "No". He said, "I've got it on my phone, do you want to see it?" I said, "No I don't want to see that". He said, "It's Weird". 10. Sergeant HANNA described the video saying, "The woman was on her stomach lying forward and the man was behind her. I don' think it was the child's dad, I think it was the boyfriend. The child walks in and they keep going. Do you want to see it?" I said, "No" 11. Sergeant HANNA pulled out his mobile phone whilst he was describing the video. I saw him open his phone, selected the picture gallery application. He opened that app and was searching through. It took him around a minute to find it. I was seated at a table· and Sergeant HANNA was sitting about an arm's length away from me. He was leaning forward on his elbows, holding the phone in both hands. I could clearly see the screen. Sergeant HANNA started playing the video. I couldn't hear any sound, but I saw a black and white video which looked like it was being filmed from above looking straight onto a bed where I saw a male and female having sex. I could see a part of his penis at the rear of the females rear. I then saw a child, I believe was a boy, wearing a nappy, come into the room and climb onto the females back. The male and female continued having sex. 12. It is at this point I pulled away as I was disgusted in what I saw. I said to Sergeant HANNA, "That's child abuse", He said, "Oh yeah, that is child abuse. I showed my brother in law and he wanted to punch me in the head". I got up and went into the office."
There is no dispute that Ms Moseley's description above of the video she allegedly saw the applicant play accords with the contents of Video 2 and thus she clearly has viewed it at some point in time prior to 17 May 2021.
As the applicant denies the account given by Ms Moseley as to him playing Video 2, it is necessary to determine whether the applicant has on the balance of probabilities made out that Ms Moseley has been untruthful in her account of how she came to see Video 2.
Overall, I found Ms Moseley to be an unimpressive witness and her evidence in these proceedings and also before the Local Court was inconsistent. In particular I note the following troublesome evidence of Ms Moseley: 1. her strident evidence, firstly in her written statement and initial cross examination that she had distanced herself from the applicant and said hello and goodbye to him in an abrupt way but in later cross examination it was revealed that she was still communicating with him socially and without being abrupt or rude; 2. in these proceedings, she was reluctant to admitting seeing photographs of the applicant's daughter on his phone and in cross examination said that she is "more confident in saying that he did not show me photographs of his daughter". Which is to be contrasted with her evidence before the Local Court in she which agreed that the applicant showed her photographs of his daughter; 3. when questioned in these proceedings as to whether the applicant would sometimes hand his phone to her and she would hold it she answered "absolutely not". However, in her evidence in the Local Court she conceded, that she agreed, albeit in a less than forthright way, that she sometimes held the applicant's phone; 4. in her written statement, she stated that the applicant was constantly making comments about his penis. In cross examination she conceded that the applicant did not talk about his penis very often and that she could remember the applicant making a joke about his penis at least three times and that he wasn't constantly doing it; and 5. in the Local Court proceedings, Ms Moseley stated that she would never take a cigarette from the applicant's car without asking first. However, this turned out to be untrue as on 31 October 2018 Ms Moseley sent a text message to the applicant apologising for taking cigarettes out of his car without asking him first.
As to the applicant, he made concessions when he should have, in particular to those questions regarding his failure to follow the appropriate process for investigating the potential time sheet discrepancies of Ms Moseley.
I do not accept the respondent's submission that the applicant in sending a pornographic video to Mr Makhlouf without firstly having watched all of it is indicative of the applicant being untruthful. Had there been evidence that the applicant had in fact watched all of that video, then there would be some basis to support the respondent's submission.
The answers given by the applicant in cross examination and in answer to the questions from the Commission concerning his medical condition and fitness to work were troubling. These answers, to the effect that he has not been told that he is unfit to work, are at odds with the medical evidence tendered by the applicant.
Turning to the evidence of the applicant's brothers in law, Mr Najem and Mr Guindi, some of their answers under cross examination were confusing. However, I note that their first language is not English, and the questions that gave rise to these answers were in relation to the preparation of their statements and not in relation to any matter of substance.
In questions dealing with matters of substance, Mr Najem and Mr Guindi were clear and unequivocal in relation to these and I accept them as witnesses of truth. Accordingly, I accept their evidence that the applicant had not shown them Video 2, nor any other similar video, which had led them to threatening to punch the applicant in the head or at all.
Given the above, I find that the applicant has made out that Ms Moseley has been untruthful in relation to the playing of Video 2 to her on March 2021 and that she somehow had seen Video 2 at some point, given she had an opportunity to, and did access the applicant's mobile phone.
It is difficult to form a concluded view as to Ms Moseley's motive as to why she would invent the Playing of Video 2, however, I do accept that the applicant had raised concerns with the applicant regarding her time sheet. Given the regular and friendly relationship between the applicant and Ms Moseley it is unsurprising that the applicant treated the issue in an informal manner.
I am further satisfied in arriving at this conclusion when regard is had to the implausibility of a long standing member of the Police Force stating to another person that they were in possession of child sexual abuse material.

[28]

(2) Possession

Commencing with the element of "possession", this was recently considered by Newlinds SC DCJ in R v Fagundez (No 2) [2023] NSWDC 526. In this matter, his Honour considered the proper construction of s 91H of the Crimes Act and in particular, what if any mental element is required to be proved in order to secure a conviction for breach of that provision. To put it in the language used in these proceedings, whether there was a requirement that the defendant knew that he had possession of Videos 1-4 in his mobile phone.
In Fagundez, his Honour determined that the decision in Clark, relied upon by the applicant in these proceedings, was still applicable, notwithstanding the contention of the Crown and concluded at [31]: "…. I find that the elements of the offence created by s 91H include a mental element that the Accused knew that the device in his possession contained child abuse material."
Given the applicant has admitted that he knew of Video 4 that was sent to him by Mr Makhlouf, I need to determine whether the applicant also knew that he had Videos 1-3 on his mobile phone prior to the allegations being to put him.
The applicant's evidence is that he did not open and watch Videos 1-3 when they were sent to him by WhatsApp nor did he see them on the camera roll of his phone.
The respondent's contention that the applicant should not be believed because: 1. each of the videos on the Cellebrite download are marked as "Read"; 2. in relation to Videos 1 and 2, the Applicant sent a message to Fr Kolodziej at 9:34am on 24 January 2021 saying "Very funny", which must be a response to a number of messages including those which annexed Videos 1 and 2. Further, the applicant's evidence that this message related only to the final video sent to him by Fr Kolodziej at 6:14pm on 23 January 2021 and must be understood through the prism of that video itself, is not objectively amusing in any way; and 3. in relation Video 3, at 9:15am on 9 March 2021, the Applicant responded to Fr Kolodziej stating, "Love them".
As to the first contention, Detective Sergeant Daniel Bortolussi, in the Local Court proceedings gave evidence to the effect that even though the Cellebrite report says "read" that this does not mean that the message had been actually opened and read by the individual. Given this, the respondent's first contention submission is not supported by the evidence and I reject it.
As to the "very funny" message sent by the applicant in relation to the contention concerning Videos 2 & 3, I accept the applicant's evidence that it was only in relation to the last message sent by Fr Kolodziej at 6:14pm on 23 January 2021. Firstly, Videos 1 & 2 were sent 9.08am and 10.17am more than 8 hours before the message referred to by the applicant and the contents of that video could be seen as humorous by some, including the applicant.
As to Video 3, this was sent three days before the message "Love them" and further, the applicant provides a reasonable explanation that he used the plural term "them" as it related to the message that is headed "words of wisdom" which was sent immediately prior to his message.
For the above reasons, I accept the applicant's evidence that he did not see any of Videos 1-3 and was not aware that they existed on his mobile phone and accordingly he did not "possess" them for the purposes of s 91H of the Crimes Act.
Given the above finding in relation to s 91H of the Crimes Act, it is not necessary to determine whether the defence under s 91HA is made out. Even if it was necessary to do so, I would reject the respondent's submission that the applicant should have reasonably known of the existence of these three videos amongst the 1200-1300 images and videos stored on his camera roll.

[29]

(3) Is Video 4 child abuse material?

As I have already found that the applicant did not possess Videos 1-3, it is necessary to determine whether Video 4 constitutes child abuse material for the purposes of the Crimes Act and Criminal Code.
The definitions of "child abuse material" under the Crimes Act and the Criminal Code have no material differences other than the age of the child it applies to i.e. 18 years for the Crimes Act and 16 years for the Criminal Code. For this reason, I will refer solely to the Crimes Act.
In terms of the various elements that are required to be established under s 91H, including the definition of child abuse material in s 91FB, I am obliged to follow the finding of Mahony J in the District Court proceedings that for material to constitute "child abuse material", it must be such that reasonable persons would regard it, in all the circumstances, as being "significantly offensive".
Dr Kenny and Detective Sergeant Daniel Bortolussi gave a slightly different description of Video 4.
Dr Kenny described the contents of Video 4 is as follows: "1. This video depicts a woman lying prone in the sun on a sun chair. She is almost completely naked (possibly wearing a G string). Only the lower half of her body is visible on screen. Her face is obscured by her prone position and the positioning of the video camera. She is barking orders to a small boy aged between 4-5 years, who is wearing underpants only i.e., he is bare chested. She is speaking a language that I think is Thai (a translation would be helpful) but used the English word "massage." 2. The child complies by starting to squeeze her substantially endowed naked buttocks between the fingers and thumbs of both of his hands. After a few seconds, the child tires, and steps back. A moment later, the child has an erection through his underwear. The woman does not observe the child's erection. The child looks down, then draws in his stomach to better observe, and seems puzzled by his erection. The child says nothing throughout this encounter. The video ceases at this point."
Detective Sergeant Daniel Bortolussi's description of Video 4 which was relied upon by the respondent in making the Order was: "Showing a male child, 3-5 years old, rubbing the bare buttocks of a female, the camera then focuses on the child's genitals where he is wearing underwear and the child has an erection."
Having viewed Video 4 numerous times, I am not satisfied that either description is entirely correct. In particular, both descriptions of the video provide that the child depicted in the video actually had an erection. It does appear that he did have an erection but it is possible that he did not and it is no more than the shape of his garment.
Further, I do not agree with the description provided by Dr Kenny as to the woman in the video "barking" directions, given the words used by the women were in another language. It is not clear if she was talking to the child or someone else outside of the video coverage. Nor does it appear that the child is uncomfortable at any stage during the video.
It is necessary now to deal with the detailed submissions of the parties concerning Video 4.
The applicant made the following submissions in support of the contention as to why Video 4 was not child abuse material: 168. In viewing Video 4, the reasonable person would particularly note the following features: a. the child is wearing underpants; b. the child is not in a sexual pose; c. the child's genitals are not visible; d. the child's inferred erection was spontaneous and not the result of any touching by the female; e. the child was not physically harmed or touched by the female; f. although the child followed the female's directions after she said the word "massage" in English he was not overtly distressed by the direction. 169. As stated in Silva (at [124] above), the test of "offensiveness" in the circumstances, informed by the standards of morality, decency and propriety generally accepted by reasonable adults, must include a spectrum of tolerance, including "what is tolerated by people who would not necessarily regard particular standards as acceptable in their own lives". Although some may consider the video an explicit, distasteful and distinctly unappealing recording, it does not constitute "child abuse material" within the meaning of s 91FB. Having due regard to the present context and the matters set out at [161] [166] above regarding Dr Kenny, the video is not offensive, or indeed, significantly offensive, in all the circumstances, within the meaning of s 91FB.
As for the respondent, she also relied heavily upon the report of Dr Kenny in support of the contention that Video 4 constituted child abuse material. In particular the respondent referred to the following elements of Dr Kenny's report: (a) "the child [4-5 years old] is being directed to undertake a task [massaging the woman's buttocks] in a circumstance in which he appears to feel uncomfortable"; (b) "there was no child appropriate curiosity or further exploration ... [t]his behaviour is unusual for a child of his age"; (c) "[t]he cues presented by this child indicated that he did not feel in a place of safety ... I would opine that the potential for feeling distress is present in such a scene"; (d) "[t]his is an unusual scene. Children should not be requested or commanded to massage the bare buttocks of an adult female. Such a scene should certainly not have been video-taped or disseminated, behaviours that indicate exploitation"; and (e) "[t]here was a significant power imbalance between the parties. The child is not of an age where any meaningful consent could have been provided by him to undertake the Police Activity or to agree to the videotaping of that activity ...there are possible adverse psychological consequences for a child being prematurely sexually stimulated in this manner''.
The clear purpose of the video is for the viewer to think that the child has an erection and that somehow this is humorous and this is how the applicant and Mr Makhlouf perceived it.
Although Video 4 could be considered by some as offensive and not humorous, it does not fit within the category of material that will constitute child abuse material for the purposes of s 91FB(1)(a)-(d) and it does not reach the requisite level that the reasonable person, in all the circumstances, would consider it significantly offensive for the purposes of s 91H of the Crimes Act.
In reaching this conclusion I have taken into account the following matters: 1. neither the child nor the woman is in a sexual pose; 2. neither the child nor the woman were involved in sexual activity; 3. the child was not physically harmed; and 4. the child did not appear distressed at any time during the film.
Finally on this issue, the opinions expressed by Dr Kenny which is relied upon by the respondent in relation Video 4 are not supported when regard is had to my observations as to the true content of Video 4.

[34]

Remedy

The applicant seeks reinstatement and back pay pursuant to ss 89(1) and (3) of the IR Act. This is opposed by the respondent. It was further submitted that the applicant be given an opportunity to put on further evidence and submissions concerning remedy should the Commission come to consider reinstatement as a remedy.
As to the remedy of compensation, the respondent submitted that none should be made and if it is made then it must be for some level of loss and that the income insurance protection insurance should be taken into account.
In opposing reinstatement, the respondent submitted that there is no evidence before the Commission that the applicant that is fit to perform duties, and indeed that the opposite is true. It was submitted that that all of the evidence before the Commission is that the applicant is unfit and there is no prognosis for the future that he will be fit to work.
The respondent contended that the High Court in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 provided support for the proposition that reinstatement was not practicable, due to the applicant not being fit to perform any duties.
Secondly, the respondent submitted that reinstatement is impracticable for the reason of integrity and relied upon the decision in Hansen v Secretary of the Department of Transport [2016] NSWIRComm 1011 at [109]-[111].
Thirdly, the respondent contended that reinstatement was impactable due to the conduct of the applicant in relation to allegation 4.
It is trite law, that the granting of a remedy under s 89 of the IR Act is discretionary. Further, as provided in the oft cited case of Dumas v Industrial Relations Secretary (obh of Dept of Communities and Justice) [2029] NSWIRComm 1071 that s 89 of the IR Act creates a hierarchy of remedies for which reinstatement is the primary remedy.
In considering the question of the impracticability of reinstatement the Commission will have regard to all the relevant circumstances of the case relating to the employer and the employee (Budlong v NCR Australia Pty Limited Pty Ltd [2006] NSWIRComm 288) and to evaluate the practicability of a reinstatement order in a commonsense way (Nicolson v Heaven & Earth Gallery Pty Limited (1994) 1 IRCR 199, 210).
Dealing firstly with the respondent argument concerning the applicant's inability to work due to his state of health, in Blackadder Callinan and Heydon JJ at [34] stated that the use of the word 'reinstatement', read in a literal manner, means 'to put back in place'. Also Kirby J at [35] held: "I agree with Callinan and Heydon JJ that Moore J in the Full Court of the Federal Court gave the correct analysis of what might happen in the future if the appellant were unable, or unwilling, to perform the work of his former position as a boner in the chilled boning room (or such other work as was later assigned to him). The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining."
Also, Staff J in Ross and Commissioner of NSW Police [2011] NSWIRComm 92, upheld on appeal in Commissioner of Police v Ross [2012] NSWIRComm 17, applied Blackadder and reinstated an officer who at the time of the removal order was not performing duties as he was unfit to perform these duties.
The respondent's submission concerning the impracticability of reinstatement due to the applicant not being fit to perform work must fail as this unfitness to work was what constituted the status quo ante.
The second and third grounds advanced by the respondent in her submissions, are properly characterised as being a break down in trust and confidence.
The leading case concerning impracticability on the basis of loss of trust and confidence is Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. In Perkins, the Industrial Relations Court at page 191 in determining whether reinstatement is impracticable on the basis of loss of trust and confidence stated: "[t]rust and confidence is a necessary ingredient in any employment relationship ... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based."
From this it is apparent that loss of trust and confidence is a consideration in determining impracticability, but it does not necessarily flow that it will automatically result in reinstatement being refused. Secondly, loss of trust and confidence is assessed objectively as it must be soundly and rationally based.
Turning to the grounds advanced by the respondent as to loss of trust and confidence, neither is soundly nor rationally based for the following reasons.
As to the first, being the alleged lack of integrity of the applicant, this basis is unsupported when viewed in light of my earlier findings to the effect that there is no issue with the applicant's integrity.
Before turning to the second ground of loss of trust and confidence, it is important to note that the decision of Hansen did not deal with the issue of impracticability, either for reinstatement or re-employment under s 89 of the IR Act.
I now turn to the other ground of loss of trust and confidence which is alleged to arise from allegation 4.
Firstly, even if I was to accept the evidence of Ms Thomas in full, which I do not, the respondent has not adduced any evidence which states that the respondent has in fact lost trust and confidence in the applicant on the basis of allegation 4. In fact, the respondent was aware of the allegation by Mr Thomas well before the Order and the filing of the evidence of Ms Thomas as she was interviewed in relation to the alleged conduct.
I have also considered that Ms Thomas has not provided evidence to the effect that she could not work with the applicant should he return to the workplace. Also, the evidence as it is before the Commission in relation to the applicant's health, leads to a conclusion that the applicant if reinstated would not be working with Ms Thomas.
Turning to the evidence of Ms Thomas, I am not satisfied that she is a witness of credit. One of her principal allegations was that the applicant would often talk about his penis in front of her and Mr Penman. This was denied both by Mr Penman and the applicant.
I note the respondent's following submission concerning Mr Penman's evidence that he failed to make a concession in cross examination if comments might have been made outside of his earshot. Secondly, that he had a motive to be untruthful, as he had a duty to report the alleged behaviour and didn't.
True, it maybe that Mr Penman did not originally make the concession as put by the respondent but he did make the concession on numerous occasions when there was greater clarity provided by counsel for the respondent, for example when the applicant went to the toilet.
As to Mr Penman's motive, the same must be said of Ms Thomas having a duty to report the alleged conduct i.e. her failure to do so provides a basis for disciplinary action of her.
I accept the evidence of Mr Penman and the applicant in relation to the applicant regularly talking about penises in her presence and that of Mr Penman.
Given my finding in relation to Ms Thomas' evidence as to her primary allegation, I cannot accept the other allegations that she has made in relation to things said by the applicant to her in private conversations.
I find that there is that the contention that there is not a sound and rational basis to support the respondent's contention that reinstatement is impracticable due to the respondent having lost trust and confidence in the applicant.
Given the above findings, it is not impracticable to reinstate the applicant and there is no other cogent reason not to do so and I will so order.
As I have found that there was no basis to remove the applicant from the Force, the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment.
In regard to compensation, I find that the applicant has not suffered any loss as he had been receiving income protection payments for five months before the removal and on the evidence before the Commission, this was likely to continue for some time.
Given that there is no monetary loss, I will not exercise discretion to make an order for compensation. However, if the income protection payments have ceased prior to the date of the following orders, the applicant has liberty to have the matter restored to the list to deal with the issue of compensation.

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Judgment (36 paragraphs)

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Legislation Cited (6)

Cases Cited (22)