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[2010] NSWIRComm 24
respondent. Leave to appeal refused; appeal dismissed (para 45).
The Full Bench refused leave to appeal and dismissed the appellant's appeal against removal from the NSW Police Force. It held that two findings made below were independently sufficient to uphold removal: (1) the appellant used improper physical force and acted inappropriately towards an intellectually disabled passenger when removing him from a bus while intoxicated, and (2) the appellant disposed of ashes from a fire that contained remnants of the passenger's bag and that might have been of interest as evidence in investigations into other officers. The appellant's medical mitigation (PTSD and alcohol dependency) failed because the reports did not establish the necessary causal link to explain the specific misconduct. Procedural complaints did not justify leave. Consequently, leave was refused and the appeal dismissed (paras 23-24, 41, 29-37, 44).
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This Full Bench decision (Boland J, Walton J, Kavanagh J) concerns an application for leave to appeal and, if leave were granted, an appeal from Marks J's decision (12 June 2009) dismissing a s181E review by Sergeant Shane Hessenberger of his removal under s181D(1) of the Police Act 1990. The removal related to events at an off-duty farewell gathering adjacent to Moama Police Station on 16 April 2006. The key factual sequence is:
The Full Bench expressly limited its consideration, declining to make findings about the appellant's conduct outside the bus because the bus conduct alone was sufficient (para 25).
The Full Bench adopted a pragmatic leave analysis: it did not need to resolve every contested issue because either of two findings sustained the Commissioner's decision. The decisive reasons were:
Findings on the bus incident (ground 1): The Full Bench held Marks J's conclusions that the appellant used improper physical force and engaged in inappropriate conduct while removing SM from the bus were well founded and provided an ample basis to refuse to find the removal harsh, unreasonable or unjust (paras 24, 38, 151, 159). The court applied the usual standard for disciplinary fact-finding; it noted the requirement to apply the Briginshaw standard where seriousness of allegations demand caution (para 119.d), but it considered the primary findings were nonetheless established on the material.
Disposal of ashes (ground 4): The Full Bench agreed with Marks J that the appellant admitted disposing of the ashes and that on the evidence the appellant either knew or suspected that the ashes might be relevant to an investigation into the destroyed bag. That conduct was grave and could by itself justify the Commissioner losing confidence and ordering removal (paras 18, 41-42, 107).
Medical mitigation failed: The appellant attempted to mitigate by relying on medical evidence that he suffered PTSD and alcohol dependency, which he said explained his conduct. Marks J found the reports, particularly the psychiatrist's, lacked sufficient specificity to establish a causal nexus between condition and conduct (para 138). The Full Bench accepted that the judge's reasons could have better explained the link, but ultimately held the evidence did not establish the necessary causal connection (paras 29-37). Two practical points underpinned this: there was no contemporaneous claim of impact before 16 April 2006, and the reports did not adequately tie the diagnosed condition to the specific conduct at issue (para 34).
Procedural complaints were insufficient: The Full Bench reviewed procedural complaints (disclosure, transcript reliance, particularity) and concluded they did not provide a proper basis for leave. It further noted that many legal principles had been dealt with in Alyson Reid-Frost, a Full Bench decision with which they agreed (para 44).
Because either finding 1 or 4 was sufficient, and because the mitigation and procedural arguments failed, the court refused leave and dismissed the appeal (paras 23, 45).
Before this Full Bench decision the controlling statutory framework was the Police Act 1990 s181D (Commissioner's power to remove) and s181E (judicial review by the Industrial Relations Commission). The Full Bench applied established disciplinary review principles: (a) the Commission reviews whether the removal was harsh, unreasonable or unjust; (b) in assessing allegations of serious misconduct the Briginshaw standard must inform fact-finding; (c) medical mitigation requires a specific causal nexus to the misconduct to carry weight.
This decision reaffirms that, in disciplinary appeals, appellate or Full Bench review may be confined to decisive grounds and that a single well-founded serious misconduct finding will sustain removal. It emphasises that medical reports produced after the event, without detailed linkage between diagnosis and the particular conduct, will not typically succeed as mitigation. The judgment also reinforces the importance placed on conduct that may impede investigations (disposing of potential evidence) as intrinsically serious for policing standards.
Paragraph 23: "In order to resolve the question of leave it is unnecessary to resolve all of the issues… Leave should be refused because the appellant… has failed to demonstrate why the decision should be disturbed at first instance with respect to orders 1 and 4…"
Plain English: The Full Bench will refuse leave to appeal if one or more findings below are clearly sufficient to uphold the removal; it does not have to re-litigate every contested point.
Paragraph 24: "We consider that his Honour's findings as to what occurred on the bus were well founded…"
Plain English: The court agreed that the judge was right to find the appellant used improper force and behaved inappropriately during the bus incident.
Paragraph 41: "…the failure of the appellant to report the criminal conduct… and the deliberate disposal of the ashes… was grave enough, in itself, as to demonstrate a proper basis for the loss of confidence…"
Plain English: Even if the bus incident alone were borderline, deliberately getting rid of ashes that could be evidence is serious misconduct that justifies removal.
Paragraph 138: "…it was unnecessary for the Commissioner to deal with a report… which does not deal with sufficient specificity with any nexus between the applicant's conduct… and any psychiatric condition…"
Plain English: Medical reports must explain how a condition caused the misconduct; vague or general statements are not adequate for mitigation.
This Full Bench decision will be particularly relevant where:
A police officer engages in off-duty conduct involving alcohol that leads to complaints of excessive force or inappropriate behaviour towards a vulnerable person. A finding of improper force on such facts will be treated seriously and can sustain removal (paras 24, 151-159).
An officer participates in, fails to report, or takes steps to conceal misconduct by colleagues (for example, allowing destruction of property, failing to report criminal conduct, or disposing of potential evidence). Deliberate disposal of material that could be evidence strongly supports loss of confidence and removal (paras 18, 41-42, 107).
An officer seeks to rely on post-event medical evidence (PTSD, alcoholism) as mitigation. Unless the medical evidence specifically ties the diagnosis to the precise conduct and explains how it produced the behaviour complained of, mitigation is unlikely to succeed (paras 29-37, 138).
Procedural complaints about disclosure, transcript reliance, or particularity will not by themselves secure leave where the core factual findings are well supported and controlling precedent on procedure (Alyson Reid-Frost) disposes of the legal questions (para 44).
Within this judgment the Full Bench cites Alyson Reid-Frost [2010] NSWIRComm 2 as resolving many procedural law points and expressly agrees with that majority decision (para 44). The Full Bench distinguishes Little v Commissioner of Police (No 2) as inapposite to the present 'undertaking to resign' scenario (para 40). The practical effect is that later tribunals or courts would likely treat Hessenberger as an affirmation that:
Disposal of potentially evidential material by an officer is grave and independently capable of justifying removal.
Medical mitigation requires specific, contemporaneous linkage to the misconduct; general psychiatric diagnosis is insufficient.
Where a Full Bench considers decisive findings to be established, leave to appeal will be refused even if other errors are alleged.
Practitioners should check subsequent reported Full Bench and appellate decisions in the NSWIRComm and related courts to see how Hessenberger has been applied or distinguished in later disciplinary appeals.
The decision leaves several open points that might be of practical importance:
The limits of post hoc medical evidence: The Full Bench rejected the reports on their facts because they lacked specificity tying PTSD/alcohol dependence to the particular behaviour. However, the decision does not set a precise evidentiary standard for when post-event psychiatric evidence will suffice. What level of detail and contemporaneous information would be required to create the necessary causal nexus remains an evidentiary question to be developed in future cases (paras 29-37, 138).
The standard for inferring scienter in disposal of material: Marks J and the Full Bench accepted inference that the appellant knew or suspected evidential relevance of ashes given enquiries about the bag and visible remnants. Future cases may explore the evidential boundary for inferring knowledge or suspicion sufficient to constitute 'deliberate' disposal (paras 107, 41-42).
Treatment of unreliable witnesses: The Full Bench doubted the reliability of Senior Constable Cookson's evidence (para 26) and observed some inconsistency in how Marks J preferred parts of his testimony. The judgment did not develop a general rule on when a judge must reconcile inconsistent testimonies; future authorities could clarify acceptable approaches to selectively accepting evidence where witnesses have materially inconsistent accounts.
Interaction between criminal outcomes and disciplinary decisions: The Local Court dismissed the criminal charges, and the Full Bench acknowledged elements of the Magistrate's scepticism. The decision reiterates that civil/disciplinary findings do not require criminal conviction and may proceed despite acquittal. But the decision leaves open detailed questions about the weight to be given to a criminal acquittal or magistrate's comments in disciplinary reviews.
The scope and effect of undertakings to seek medical discharge: The Full Bench distinguished the case from Little and held the appellant's offered undertaking did not alter the outcome (para 39-40). The precise circumstances in which an offer of resignation or medical discharge might affect a removal decision remains fact-sensitive and uncertain.
Practitioners should watch for decisions that further articulate these evidentiary and procedural boundaries.
Disclaimer: This is general legal information based on the text of Hessenberger v Commissioner of Police [2010] NSWIRComm 24. I am not your lawyer. I can make mistakes. Before you act on, rely on, or use any of the analysis or any draft derived from it, get a qualified Australian lawyer to check it.
CITATION: Hessenberger v Commissioner of Police [2010] NSWIRComm 24
PARTIES: Shane Stanley Hessenberger (Appellant) Commissioner of Police (Respondent)
CORAM: Boland J President; Walton J Vice-President; Kavanagh J
CATCHWORDS: APPEAL - application for leave to appeal - application under s181E of the Police Act 1990 - seven grounds for removal - matter decided on grounds one and four - ground one: use of improper and inappropriate physical force on SM and engaging in inappropriate conduct towards him - findings as to ground one sustained in relation to conduct towards SM on bus save as to mitigation - mitigation case based on medical grounds failed - link not established between appellant's condition and conduct - conduct and behaviour of appellant on the bus warranted removal and decision below upheld in this respect - ground four: disposal of the ashes of the fire in circumstances where they might be of interest as potential evidence in investigations of misconduct of other police officers - decision below sustained in this respect - undertaking to resign on medical grounds if reinstated not alter conclusion - procedural failures not sufficent to constitute a proper basis for the grant of leave - not in the public interest to grant leave - leave to appeal refused - appeal dismissed.
LEGISLATION CITED: Crimes Act 1900 Police Act 1990
Alyson Reid-Frost v Commissioner of Police [2010] NSWIRComm 2 CASES CITED: Hessenberger v Commissioner of Police [2009] NSWIRComm 89 Little v Commissioner of Police (No 2) (2002) 112 IR 212
HEARING DATES: 03/12/09, 04/12/09, 08/12/09
Mr B G Docking of counsel (Appellant) Oates & Smith, Solicitors LEGAL REPRESENTATIVES: Mr M J Kimber SC with Mr M C L Seck of counsel (Respondent) Henry Davis York, Lawyers
CORAM: BOLAND J, President WALTON J, Vice-President KAVANAGH J
SHANE STANLEY HESSENBERGER v COMMISSIONER OF POLICE
Application by Shane Stanley Hessenberger for leave to appeal and appeal against a decision of Justice Marks given on 12 June 2009 in Matter No IRC 299 of 2008
1 This is an application for leave to appeal and, subject to leave being granted, an appeal from the decision of Marks J given on 12 June 2009 in Hessenberger v Commissioner of Police [2009] NSWIRComm 89. The proceedings at first instance concerned an application for review pursuant to s181E of the Police Act 1990 of an order made by the Commissioner of Police ('the Commissioner') under s181D of that Act removing the appellant, Shane Hessenberger, from the New South Wales Police Force. In his decision, Marks J found that the removal of the appellant was not harsh, unreasonable or unjust, and dismissed the application. 2 Whilst a raft of issues was raised by the appellant on the appeal, we do not consider that this is a matter which warrants the grant of leave to appeal.
3 The personal circumstances of the appellant were set out in the appellant's written submissions as follows:
The appellant, Mr Hessenberger, is now 39 years of [sic] old (DOB 8 September 1970). He served with the NSWPF as a police officer commencing 1993, until the statutory removal took effect when the respondent Commissioner on 21 February 2008 signed the s 181D(1) order and "Statement of Reasons". Mr Hessenberger was a Sergeant at the time of removal. NSWPF records admit: "No issues with performance, conduct or integrity prior to this investigation." From 23 May 2004, his first appointment as a Sergeant was at Moama Police Station, which is part of the Deniliquin LAC. He was inexperienced in terms of years of service with the NSWPF compared to the three other officers located at that station. The (incomplete) list in the Commissioner's Confidence Submission ("CCS") of "Awards / Complimentary Remarks" demonstrate a distinguished police career, including the 8 October 2005 "Region Citation" said to be "For courage and bravery in disarming a violent armed offender in possession of knives who had threatened staff members, security guards and other officers." The comprehensive report requested by Superintendent Crandell for recognition of officers involved in arrest of armed offender is read as part of this Outline.
4 On the evening of 16 April 2006, the appellant attended his own farewell party on premises adjacent to Moama Police Station. The appellant had received a transfer to Wagga Wagga. The gathering was held in a car park and was centred around a fire burning in a fire drum.
5 The appellant, in the company of Senior Constable John Croker, Senior Constable Scott Harper, Senior Constable Phillip Cookson and Senior Constable Wayne Sorensen, amongst others including Victorian Police, New South Wales public servants and civilians, consumed varying amounts of alcohol. All police officers were off duty at all relevant times. 6 During the course of the evening, a bus stopped near the Moama Police station. The bus driver, Mr Barry Webb, complained that a passenger on the bus (Mr SM, now known to be intellectually disabled) refused to get off. 7 The appellant and Senior Constable Cookson went to the bus and the appellant physically removed Mr SM. Mr SM made two allegations regarding the appellant's behaviour. First, the appellant used improper and inappropriate physical force in removing Mr SM from the bus and, after Mr SM had been removed,, the appellant conducted himself in an inappropriate manner towards Mr SM, including his use of language. 8 The appellant returned to the fire and Senior Constable Cookson retrieved Mr SM's bag from the bus and also returned to the fire. Senior Constable Sorensen then threw the bag in the fire and it was destroyed. 9 The conduct of the other officers in destroying Mr SM's bag in the fire was not reported by the appellant (who was the officer in charge) to a more senior officer. An investigation into the incident commenced on 18 April 2006 with Inspector K Wholohan telephoning Senior Constable Sorensen at the Moama Police Station in order to make enquiries about Mr SM's bag. On 19 April 2006, the appellant conceded to Inspector Wholohan that he disposed of the ashes from the fire drum, placed them in a bag and took them to the tip in the company of Senior Constable Harper and Senior Constable Croker. 10 On June 7 2006, the appellant was charged under s 59(1) of the Crimes Act 1900 with Assault Occasioning Actual Bodily Harm. On 27 June 2007, the charges were dismissed at the Wagga Wagga Local Court. 11 As to the criminal charges faced by the appellant, the following was submitted by the appellant: On 6 June 2006, Mr Hessenbeger was charged under s 59(1) of the Crimes Act 1900 with assault occasioning actual bodily ham sic. Between 25 June 2007 and 27 June 2007, at the Wagga Wagga Local Court a summary hearing occurred. Before the summary hearing, the prosecutor laid a back up charge alleging common assault. It was a specialist unit of the NSW DPP, namely, Unit 6, which conducted the prosecution of Mr Hessenberger as a police officer. The prosecutor of the NSWPF charges made this concession near the beginning of the summary hearing: "… there's absolutely no alleged wrong doing, criminal or otherwise, alleged by the Crown against Mr Hessenberger on the bus. I would like that particularized because that is the understanding upon which we as the defence have come before this court today". It is apparent that this concession was made because Mr Hessenberger, despite being somewhat affected by alcohol, recalled himself to duty and thereafter whilst performing duty as a police officer acted with lawful authority, cause or excuse. The prosecutor also said: "We're dealing with a period from the door of the bus, dragging the victim across the road and blows to the head and blows to the legs as being the precise particulars of the assault. Witnesses - there are only two witnesses that go to the central issue … The victim [SM] and Senior Constable Cookson." At the end of SM's evidence, the Magistrate candidly told the prosecution that the case against Mr Hessenberger will rise or fall on what the police officer [Sen Con Cookson] said as "you've got no miles out of this last witness." His Honour suggested that the prosecution give consideration to its case dependent upon what this other officer says. In respect of the AOABH charge, on 27 June 2007, at the close of the prosecution case, the prosecutor agreed that there was no prima facie case as there was not proof of injury and the charge must fail. In other words, an essential fact alleged by the NSWPF, namely, the alleged injuries of SM (and the injury photographs were tendered in evidence) were not proved to a prima facie level to have a causal connection to any allegation made against Mr Hessenberger. At the close of the prosecution case, the prosecutor agreed that the prosecution cannot rely upon SM in respect of any allegation whatsoever. At the end of the defence case, which involved Mr Hessenberger giving evidence, the Magistrate dismissed the common assault charge. On 29 January 2007, Senior Constable Sorensen pleaded guilty to malicious damage by fire.
12 The incident which occurred on 16 April 2006 was investigated by New South Wales Police and the order for removal was signed by the Commissioner of Police on 21 February 2008, which stated: In reaching my decision, I have carefully considered the matters raised in the submission prepared in relation to you and the Notice served upon you pursuant to s 181D(3)(a) of the Police Act 1990. I have also taken into account your written response provided by your legal representatives 13 The order for removal document also contained the reasons for the Commissioner's decision. The Statement of Reasons for removal given by the Commissioner was (omitting formal parts) set out in the following terms: I have given careful consideration to all the material that has been presented to me in this matter and provide the following reasons for my determination: The following grounds, as set out in my Notice to you, refer to your conduct and integrity. During the evening 16 April 2006, you and several other police officers attached to the Moama Police Station, along with several civilians, attended a gathering on premises adjacent to Moama Police Station. The party was centred around a fire burning in a fire drum. Alcohol was consumed at the party. During the course of the evening a bus pulled up near the Moama Police Station. The driver complained about a passenger (now known to be Mr SM) who would not get off the bus. You and Senior Constable Cookson walked off in the direction of the bus. You physically removed Mr SM from the bus. You used improper and inappropriate physical force on Mr SM, and engaged in inappropriate conduct towards Mr SM when removing him from the bus. You used improper and inappropriate physical force on Mr SM even once you had removed him from the bus (in this regard, even once off the bus, you slapped or otherwise hit Mr SM, and you used a knee strike on him). You used inappropriate language towards Mr SM, and adopted an approach, which was likely to aggravate, rather than calm the situation. You were charged with Assault Occasioning Actual Bodily Harm under section 59(1) of the Crimes Act 1900. The charge was dismissed when the matter came before the Wagga Wagga Local Court on 25 June 2007. I note that the Magistrate seriously questioned the manner of approach in the first instance upon Mr SM, that is the first approach that an officer of your standing, taking into consideration ' time in the police force ', in such a confrontational manner. One could only expect a confrontational response whether you were affected by alcohol or not.
The Magistrate in his comments seriously questioned your psychological state when approaching Mr SM in this manner. In particular the Magistrate commented on the serious language used by you on an on-going basis not only at the scene on the evening, given the consideration to the consumption of alcohol, but language used in the court stating, ' more appropriately (sic) language would have to be anticipated to be used'. On 31 January 2008 you provided a written response to the grounds set out in the Notice to you. I have taken into consideration that you deny that you used any improper physical force on Mr SM once you had removed him from the bus and you deny that you slapped or otherwise hit Mr SM or used a ' knee strike ' on him. I note that you have supplied a typed record of the Magistrate's findings in respect to the charge against you for Assault Occasioning Actual Body Harm.
In your written response you admit to using offensive language and that you ' swore' and were 'rude' to Mr SM in requesting him to leave the bus. You state that you regret this particular conduct, claiming that your approach was adopted in line with ' officer survival' . However, I consider that there remain grounds on which it would be open to conclude on the balance of probabilities (even taking into account the seriousness of that allegation) that you did use improper and inappropriate physical force on Mr SM, and engage in inappropriate conduct towards Mr SM. It has been established that when removing Mr SM from the bus, you were conducting a police related activity while impaired by alcohol. In your evidence in the criminal proceedings, you stated that, after being asked for assistance by Mr Webb, you " went and did the job " of removing Mr SM from the bus and that, in doing so, you identified yourself as a police officer to Mr SM. You have also admitted that, at the time that you removed Mr SM from the bus, you were intoxicated. In the circumstances, I have concluded that you breached the NSW Police Handbook - 'Alcohol', which states: You must not perform your job, visit or remain at work or undertake any Police Service related activity if you are impaired by alcohol. Following the removal of Mr SM from the bus you returned to the gathering around the fire. It appears that Senior Constable Cookson returned a short time after you. It seems that he was carrying Mr SM's bag. Other witnesses state that Senior Constable Sorensen then took hold of the bag and threw it into the fire. The bag was removed from the fire by another officer. However, it appears that it was again thrown onto the fire by Senior Constable Sorensen and Senior Constable Harper. The bag, and the property in it, was destroyed by the fire. In your evidence to the Wagga Wagga Local Court, you stated that you saw the bag on fire. Other witnesses have also stated that there was subsequent discussion among those present as to the placing of the bag on the fire. Whether or not you actually saw who placed the bag on the fire, I consider that you were either aware, or at the very least knew that it was highly likely, that the bag had been placed on the fire by other police officers. You did not at any stage report to a more senior officer that other police officers may have engaged in misconduct by placing the bag on the fire. This was despite the fact that you appear to have had a conversation with Sergeant Wholohan on 19 April 2006.
In your response to the grounds set out in my Notice you admit that you did not immediately report the misconduct by other officers (in regards to Mr SM's bag) 'as I you did not feel comfortable reporting the matter whilst still stationed at Moama'. You state that you had every intention of notifying Inspector Bowden of the potential misconduct during your first shift at Wagga Wagga Radio however, this did not occur as a search warrant was issued and a search warrant carried out on your home on the night of 21 April 2006. There are many avenues available to you to report misconduct of police and I do not accept this excuse in regards to the burning of Mr SM's bag. On 19 April 2006, you disposed of the ashes from the fire at a time when you either knew, or suspected, that they might be of interest as potential evidence to officers investigating alleged misconduct on the evening of 16 April 2006. In doing so, it appears that you were assisted by Senior Constable Croker and Senior Constable Harper. In your evidence to the Wagga Wagga Local Court you have admitted that, on 19 April 2006, you cleaned out the ashes from the fire bucket, placed them in bags and took them to the tip. You also have admitted that, at that time, you were aware that Mr SM's bag had been destroyed in the fire. Given your experience as a Sergeant of Police, I have concluded that you disposed of the ashes from the fire at a time when you either knew, or suspected, that they might be of interest as potential evidence to officers investigating alleged misconduct on the evening of 16 April 2006. In addition, it is alleged by Senior Constable Croker that, prior to removing the ashes, you made a statement to him in words to the effect of " We have to get rid of the fire bucket and the remains before anyone has a look at it ".
Furthermore you permitted police facilities to be used to store alcohol without authorisation. It appears from the evidence of various witness that a substantial proportion of the alcohol consumed at the party was held in a fridge in a garage which forms part of Moama Police Station, and that the same fridge had also been used in the past to store alcohol. You admit that you permitted police facilities to be used to store alcohol without authorisation. When asked whether he had the Commander's permission to store alcohol on police premises, Senior Constable Croker stated that you had advised him that the Commander had knowledge of the existence of the fridge. I have concluded that you permitted police facilities to be used to store alcohol without authorisation. I have also concluded that you gave other subordinate officers the impression that storage of alcohol on Moama police premises was authorised when this was not the case.
As stated in my Notice to you I consider all the matters set out above to be serious. I am particularly concerned about your conduct towards Mr SM and your following actions in regard to disposing of Mr SM's bag.
I am also concerned that your subsequent conduct appears to form part of an overall course of action, which had the real potential to frustrate the investigation into the occurrences on the evening of 16 April 2006. I believe that these actions may have been part of a deliberate attempt by you to impede the investigators and make their task more difficult.
In your written response you provide that at the time of the incident you were suffering from symptoms of post traumatic stress disorder which " impeded your ability to remain calm under pressure ". This is supported by various psychology reports provided by Karen Myers and Doctor Gregory Weppner. I have taken these reports into consideration.
My Notice to you advised that it was an inherent expectation that all police will act ethically and in a professional manner whether on or off duty, and that your conduct gave rise to my concern about your ability to behave to a standard which the community and I expect of a member of the NSW Police Force. Both I, and the community, expect police officers to behave with the highest standards of integrity and conduct. I am extremely concerned that your actions have fallen far short of these expectations.
I find that you have clearly breached the NSW Police Code of Conduct & Ethics and the NSW Police Drug and Alcohol Policy and the Commissioner's Statement of Professional Conduct. Having read and carefully considered all the material in respect of this matter and while I have taken into account the many complimentary remarks and awards referred to in your service history, I can see no reasons of mitigation or explanation 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 there 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. 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 .
14 Marks J identified seven matters as constituting the grounds for removal as follows: 1) The use of improper and inappropriate physical force on SM and engaging in inappropriate conduct towards him. 2) Conducting a police related activity while impaired by alcohol.
[108] In my opinion, the Commissioner was correct in forming the view that this allegation had been made out. Of course, if one accepts the evidence of Senior Constable Croker about what he had been told by the applicant, namely that they had to get rid of the fire bucket and the remains before anyone has a look at it, then it is even more clear that the applicant is being disingenuous in endeavouring to rebut this allegation.
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. … [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. … [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.
23 In order to resolve the question of leave it is unnecessary to resolve all of the issues raised regarding the trial judge's decision. Leave should be refused because the appellant, in our view, has failed to demonstrate why the decision should be disturbed at first instance with respect to orders 1 and 4 of the Commissioner's orders, either of which would have constituted a proper basis to refuse relief.
GROUND ONE: The use of improper and inappropriate physical force on SM and engaging in appropriate conduct towards him
24 We consider that his Honour's findings as to what occurred on the bus were well founded and gave ample basis for his Honour to refuse to make a finding that the appellant's removal was harsh, unreasonable or unjust. The evidence demonstrated that the appellant did use improper language and inappropriate physical force whilst removing Mr SM from the bus. 25 His Honour made no findings as to the conduct of the appellant outside the bus and, despite the invitation to do so, we do not propose to make any findings in favour of the respondent in that respect. This is for two reasons. First, it is unnecessary given the conclusion we have reached about what occurred on the bus and the significance to the determination of the overall appeal. Secondly, and without concluding the matter, we have doubts that any such finding could be properly made. We are not content to rely, as his Honour did, in other respects, on the evidence of Inspector Senior Constable Cookson whom we consider was an inherently unreliable witness.
26 We do not believe that his Honour was entitled to selectively accept parts of Senior Constable Cookson's evidence without properly reconciling in some way the gross inconsistencies contained in that evidence. We accept the submissions advanced by the appellant that Marks J was in error in preferring Senior Constable Cookson's earlier account to Sergeant Lapworth of what occurred at the bus on the 16 April 2006 as opposed to the account Senior Constable Cookson gave in the directed interview on 11 September 2006 and to the Local Court on 26 June 2007. Each of the statements showed critical differences, which made Senior Constable Cookson's evidence unreliable. His Honour clearly adopted the wrong principle and did nothing to resolve the substantial inconsistencies in Senior Constable Cookson's sworn testimonies. He also failed to take into account material considerations forming part of the case presented by the appellant. 27 However, this conclusion does not alter our view that, subject to the argument in mitigation raised by the appellant, the conduct and behaviour of the appellant on the bus was such that it warranted removal.
28 The appellant contended that his removal was harsh because his actions were affected by psychological disabilities proven by the medical evidence called in the proceedings. The critical consideration of the appellant's case (at least in his alternative case on mitigation) was that his conduct on the bus was directly attributable to or explained by his medical condition, a psychiatric disorder known as 'Post Traumatic Stress Disorder Syndrome' ('PTSD') with an associated dependency on alcohol (and intoxication).
29 Marks J made limited findings in relation to the medical evidence, but rejected the appellant's contention and did not accept that the medical evidence (in particular of Dr Anderson), which was relied upon by the appellant, sustained the proposition. His Honour found at [138]; [138] I agree also with submissions made on behalf of the respondent that it was unnecessary for the Commissioner to deal with a report of Dr Peter Anderson, psychiatrist, dated 30 June 2008 which does not deal with sufficient specificity with any nexus between the applicant's conduct on 16 April 2006 and any psychiatric condition from which he suffers, at least in circumstances that might have some mitigating effect. 30 The appellant was correct to submit that his Honour failed to give adequate reasons in relation to this question, particularly as to explain why the link had not been established between the appellant's condition (which was established by the medical evidence) and the appellant's conduct on 16 April 2006 and the days thereafter. This needed to be resolved, as the question was crucial to the appellant's case that the removal was harsh. 31 In that same paragraph we have extracted above, Marks J erred in his understanding of whether the evidence of the doctor may have been taken into account by the Commissioner, as it could, in fact, have never been considered by him because the report by Dr Anderson was produced after the decision by the Commissioner was made to remove the appellant. 32 Normally, the combination of those errors would have warranted the grant of leave to appeal and perhaps even sustained the appeal. However, we consider that leave should, nonetheless, be refused because we have concluded that his Honour ultimately reached the correct conclusion in rejecting the appellant's mitigation case based on medical grounds (whether derived by medical evidence or lay evidence as advanced by the appellant), even if the reasons for doing so were not entirely adequate. 33 This is because we do not consider the evidence at first instance demonstrated that the diagnosed PTSD and related alcohol dependency either explained or excused the conduct in question on the night of 16 April 2006 and in the days immediately thereafter. 34 We come to this view for two reasons: (i) there was no prior claim of the impact of the disease at any time before 16 April 2006;
(ii) even though it may be accepted the condition acted against self recognition of the complaint, neither the medical evidence relied upon by the appellant nor the evidence of other persons as to the medical condition adequately established a link between the condition and the conduct.
35 The medical evidence from psychologist, Karen Myers, psychiatrist, Dr Gregory Weppner, and Dr Peter Anderson confirmed that the appellant suffered from PTSD and alcoholism. However, what they failed to establish was that the appellant's conduct on 16 April 2006 and the days thereafter was directly attributable to this medical condition. 36 The medical reports were produced for a workers compensation claim regarding injuries the appellant had sustained at work during the course of his employment as a police officer with the New South Wales Police Force prior to the incident. Dr Anderson (whose report comes closest to establishing the required link) only recorded a very limited history of what occurred at the time of incidents in question and did not deal in any detail with the specific behaviour that led to the appellant's removal. If Dr Anderson was intending to express an informed opinion about any causal correlation between the appellant's mental illness and his behaviour in Moama on the 16-21 April 2006, he would have needed a much more detailed account of all the appellant's behaviour in issue and its connection to PTSD (Dr Anderson referred to "alcoholism" and "poor judgment"). 37 On the contrary, there was only one sentence at the end of Dr Anderson's report which raised a possible connection between the disorder and the dismissal, almost as an afterthought, and then only as part of a discussion as to whether the appellant's removal from service may have itself been treated as a compensable injury. The connection, such as it is drawn, was far too tenuous to sustain the case the appellant sought to bring.
38 We consider, as Marks J ultimately did, that the appellant's conduct was inconsistent with his duties as a police officer and that he engaged in an aggressive, improper confrontation with a mentally disabled person where his conduct was fuelled by alcohol. We do not accept the mitigating features raised by the appellant and, hence, those factors do not alter this conclusion.
39 Finally, in this respect, we note the appellant sought reemployment for the purposes of seeking a medical discharge (and offered an undertaking to that effect). However, the appellant made no such application prior to his removal from the New South Wales Police Force, and at the time of the incident clearly regarded himself fit for duty. 40 We do not accept that the 'undertaking' proffered by the appellant presents any proper basis to grant leave. We do not consider that this case is analogous to the Full Bench decision in Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212.
GROUND FOUR: Disposal of the ashes of the fire in circumstances where they might be of interest as potential evidence in investigations of misconduct of other police officers
41 Mr B Docking of counsel, for the appellant, in his oral submissions, conceded that the appellant knew the bag was thrown in the fire and despite the fact he was the most senior police officer present he still took no initiative to put the fire out; instead he watched the bag being burned. We agree with his Honour that the failure of the appellant to report the criminal conduct of the other officers who were involved in the destruction of Mr SM's bag and the deliberate disposal of the ashes from the fire was grave enough, in itself, as to demonstrate a proper basis for the loss of confidence by the Commissioner in the appellant, and for the Commission to conclude that the removal was not harsh, unreasonable or unjust.
42 Two further remarks should be made. First, the appellant's submission that he disposed of the evidence because he had authorisation from Inspector Wholohan is unconvincing. Even if Inspector Wholohan gave the instruction to clear the area he had no idea that it related to the bag being burned and would subsequently form part of a criminal investigation. Secondly, the appellant's explanation that there was nothing left except ashes is, frankly, preposterous. Further, the evidence from Senior Constable Croker, who assisted in the clean up, showed there were remnants of Mr SM's bag amongst the ashes, which conflicts with the evidence of the appellant who claimed there was nothing left at all. It must have been clear that the removal of evidence from a crime scene was inappropriate. 43 We consider that his Honour was correct in concluding that ground 4 was made out.
44 There were some issues raised about Marks J's findings as to alleged procedural failures by the Commissioner. However, we do not consider that the issues constitute a proper basis for the grant of leave because most of them were resolved as a matter of law or principle by the majority decision in Alyson Reid-Frost v Commissioner of Police [2010] NSWIRComm 2 with which we entirely agree.
45 The Full Bench makes the following orders:
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.
Hessenberger
Commissioner of Police
Leave to appeal refused; appeal dismissed (para 45).