19 The appellant, in his response statement, admitted the truth of allegation 6 of permitting police facilities to be used to store alcohol without authorisation.
20 His Honour was not satisfied that allegations 5 and 7 were made out.
21 His Honour dealt with each of the grounds and reasons advanced by the Commissioner in support of his decision to remove the applicant from the police force. His Honour then stated:
[151] I have earlier dealt with each of the grounds and reasons advanced by the Commissioner in support of his decision to remove the applicant from the police force. I have concluded, for the reasons that I have given, that the Commissioner was justified in determining that the applicant used improper and inappropriate physical force on SM and engaged in inappropriate conduct towards him. Furthermore, I have concluded that the applicant conducted a police related activity while impaired by alcohol, that he did not report to a more senior officer that other police officers may have engaged in misconduct by placing the bag on the fire, that he disposed of the ashes from the fire at a time when he either knew or suspected that they would be relevant to a police investigation and that he permitted police facilities to be used to store alcohol without authorisation.
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[155] In determining whether the applicant's removal was harsh, unreasonable or unjust, I must naturally consider his personal circumstances and his interest in maintaining in general terms employment within the police force, albeit that this is directed also to seeking medical discharge. I have a great deal of sympathy for the applicant in terms of his personal circumstances as a result of his removal including the financial loss which he will sustain if not successful in seeking a medical discharge against the background of his limited ability to find other work. I also take into account that the applicant had previously enjoyed an unblemished career as a police officer. In ordinary circumstances, an allowance might be made for one mistake. But I do not regard the applicant's conduct and behaviour warranting such an allowance being made. Furthermore, I must also take into account the public interest including the maintenance of the integrity of the New South Wales Police Force. The importance of ensuring that all police officers conduct themselves in an appropriate manner is well recognised in the community and is reflected in decisions of this Commission, especially at appellate level.
[156] On one view, it might be said that the events that occurred on 16 April 2006 could be understood in the context that most persons present at the function held to farewell the applicant were intoxicated. Certainly, the applicant was, even on his own admission. Intoxication can explain behaviour and, in some cases, may attract some sympathy or may otherwise ameliorate criticism that might be levelled against a person who is intoxicated. The applicant did not make any submission specifically directed to his intoxicated state, but it is a matter that I have taken into account in reaching the decision that I have, and in the circumstances fairness dictates that I must refer to it. I think that there are two answers to any suggestion that might be entertained that some allowance should be made of the applicant's conduct because of his intoxicated condition. The first is that whenever any person who is intoxicated undertakes some activity, he or she must or ought to be aware that he or she is likely to be less physically capable of undertaking any particular task, his or her senses may be impaired and his or her inhibitions may be lessened. This is the case no less of a police officer who occupies a responsible position in our community. Overindulgence in alcohol creates a responsibility to remove oneself from any circumstances where undue or improper conduct or behaviour may result from one's intoxication. The second response is that in the circumstances of these proceedings, the events that occurred on the evening of 16 April 2006 itself are but one element of a larger picture. The allegations levelled against the applicant by the respondent go beyond what occurred on that night. They extend to a failure to report misconduct of other police officers and participation in the removal of the remains of the fire from the scene of the function. There is no evidence that the applicant was unduly affected by alcohol after 16 April 2006.
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[158] Whilst it might be said that taken individually any one of the areas of misconduct which I have referred to might not justify removal or might render removal harsh, unreasonable or unjust, when balanced against the other matters to which I have referred, the position is, in my opinion, different when one considers the matters in the aggregate. Obviously, permitting police facilities to be used to store alcohol without authorisation would be seen within the community as not necessarily being a matter of such seriousness as to warrant removal. Certainly, I do not regard it as such, although I can imagine that if the Commissioner is concerned about the prevalence of the consumption of alcohol and the existence of a culture amongst police officers, commencing at the Police Academy, which exposes officers to excessive alcohol consumption, as is disclosed in the evidence in these proceedings, I could well understand the Commissioner taking a serious view about a matter such as this.
[159] However, in the aggregate the other matters are, in my opinion, so serious as to demonstrate that the loss of confidence by the Commissioner in this applicant leading to his removal as a police officer does not render his removal harsh, unreasonable or unjust. The manner in which the applicant went about removing SM from the bus, in all the circumstances, including the fact that he was intoxicated at the time, does no credit at all to the New South Wales Police Force. The failure of an officer in charge to report the criminal conduct of other officers who were involved in destroying SM's bag and the deliberate disposal of the ashes from the fire are all matters that, in my opinion, require this Commission to support the Commissioner in the action that he took. I cannot conclude that the Commissioner's decision to remove the applicant was harsh, unreasonable or unjust. For these reasons the application is dismissed.
22 Turning to procedural issues, his Honour rejected all of the submissions made on behalf of the appellant alleging procedural deficiencies and unfairness. He concluded that the appellant was not denied procedural fairness or that the Commissioner had breached his statutory duty under the Police Act by not considering material. His Honour found:
[119] The allegations made in the applicant's response document cover the following matters:
a) That the applicant was not provided with all of the documents and material relied upon by the Commissioner, in particular a nominated internal file. I do not apprehend that this matter was pursued by counsel for the applicant in his written submissions. In any event, there seems no evidence that this particular file was before the Commissioner at the time that he determined to remove the applicant from the police force. I reject the notion that there is any relevant procedural unfairness associated with this matter.
b) A failure by the Commissioner to take into account "relevant matters, particularly matters going to my conduct and integrity." These are matters that I have dealt with in the context of each of the six specific allegations brought against the applicant as contained in the Commissioner's Reasons for Decision.
c) That the Commissioner had taken into account "irrelevant and unsubstantiated matters" consisting of a synopsis of comments of the learned Magistrate in the Local Court when he dismissed the proceedings brought against the applicant. Detective Inspector Greg Smith had reported that the Magistrate had made a remark to the following effect: "If this were a civil matter, I would have no difficulty in convicting Mr Hessenberger." It was said in the response document that the Magistrate had made no such statement. With respect, this is incorrect. I have not only had access to the transcript of evidence as reproduced by a private service, but I have also listened to the tape of the proceedings in the Local Court. The Magistrate said: "I would anticipate the Court making a decision in respect to Mr Hessenberger's culpability under civil standard. He would experience some difficulty." That part of the tape that is audible supports the material contained within the CCS.
d) There is then a reference to whether or not the Commissioner's decision "was based on mere suspicion or speculation" and if so whether the procedure "would involve no more than a futile illusion of fairness." I have concluded with respect to a number of the allegations that they have been made out and that the Commissioner was entitled to rely upon them as having been proven. I take into account, as did the Commissioner, that in considering these matters in the context in which they occurred, it is necessary to ensure that the matters have been proven to the " Briginshaw " standard. Briginshaw v Briginshaw (1938) 60 CLR 336.
e) It was asserted that the CCS "lacks particularity." Having regard to the material contained in the Commissioner's Reasons for Decision, which in large measure replicates those in the notice initially given to the applicant, I am not able to discern that there has been any relevant lack of particularity so that it might be said that the applicant was not able to understand what was being put against him and was not able to formulate his response. Indeed, to the contrary, there is a clear narration of facts. I do not apprehend that the applicant encountered any difficulty either in responding to the Commissioner's Notice or in litigating the matter in these proceedings. Furthermore, there is no "particularity" by the applicant of the manner in which the CCS is said to be lacking in particularity.
f) Procedural unfairness is alleged to have arisen because the Commissioner has not "personally considered all material relied upon" in the process of the issuing of the Notice. I do not apprehend that the statutory regime against which the Notice to Show Cause was issued requires a personal consideration of all of the material by the Commissioner at that stage. The situation is arguably different at the stage that the Commissioner makes a decision to remove a police officer. In any event, this matter does not appear to have been developed further in submissions, and I reject it.
g) The next allegation refers to the failure of the Commissioner to obtain a complete transcript of the Local Court proceedings and to have considered them. In his response document, the applicant said: "I believe that the evidence given during the court proceedings paints a very different picture to that contained in the statements of the brief of evidence…I note that the presiding Magistrate found as a matter of fact that the evidence of a number of witnesses was too unreliable to be accorded any weight…". Such an assertion can only have substance if the applicant is able to sustain an argument that there was material in the Local Court proceedings and in the judgment of the Magistrate that, if considered by the Commissioner, would have justified a conclusion different from that reached by the Commissioner. I have had access to the transcript of the proceedings and the reasons for judgment of the learned Magistrate and have referred to them where I have considered appropriate in dealing with each of the specific allegations levelled against the applicant. I am unable to conclude that the failure of the Commissioner to have requisitioned a copy of the transcript and to have read it should have brought about any different result in the context of these proceedings, having regard to all of the circumstances that are relevant to their determination.