Higgins v Commissioner of Police

Background

1. The applicant is 39 years of age. In 1999, at age 18, the applicant commenced at the New South Wales Police Academy in Goulburn. In May 2000, he was attested as a Probationary Constable and commenced working at the Bankstown Police Station. In May 2001, the applicant was confirmed as a Constable of police. In 2005, the applicant was promoted to the rank of Senior Constable and, in 2008, became a Leading Senior Constable.
2. In 2007, following an incident at a social function at the Belgium Beer Cafe in the Rocks, Sydney, the applicant was counselled after it was found that he had engaged in victimisation/bullying behaviour and breached the NSW Police Force Code of Conduct and Ethics.
3. In 2009, the applicant, while off duty, became involved in a physical altercation at the Lowenbrau Keller at the Rocks following which the applicant was wrestled to the ground and handcuffed by police. As a result of this incident, the applicant was given a Region Commander's Warning Notice and placed on a three month Conduct Management Plan. The warning notice stated that any further unsatisfactory performance or misconduct may result in further management action, which may entail consideration of reviewable action under section 173(2) or removal under section 181D of the Police Act.

Notice

1. On 21 November 2017, the applicant was served by the respondent with a notice under section 181D(3)(a) of the Police Act which set out the allegations against him which were eventually found proven as set out in the Order ("Notice").

Allegation 1

1. In relation to Allegation 1, it was recorded in the Notice that, on 12 December 2015, the applicant, who was off duty at the time and recovering from foot surgery, had walked to Wanda Beach, Cronulla, to go to the gym. According to the applicant, he encountered what he described as "an extremely large amount of Police, a small number of anti-racism protesters and several onlookers". He was told by a police officer that the gym was closed for safety reasons. When he tried to walk home, the applicant was told by police that he would have to wait until the anti-racism protesters had walked to the train station. The applicant described the police in attendance as "excessive and aggressive" and stated that "people attempting to walk home were treated as criminals".
2. Senior Constable Steve De Jong and Constable Matthew Hutchinson observed the applicant approach the officers of the Public Order and Riot Squad ("PORS") while they were forming a line on Mitchell Road. According to Constable Hutchinson, the applicant said words to the effect of: "You guys are a disgrace, Look at yourselves, Your (sic) all want to be TOU (Tactical Operations Unit), You can't even make it."
3. The applicant admitted that he did say words to this effect.
4. Senior Constable De Jong claimed that he heard a voice in the crowd say: "I'm a fucking Police officer and today I'm ashamed, your (sic) a fucking disgrace" and "I'm a Police officer and this is just embarrassing."
5. Senior Constable De Jong stated that he had a conversation with the applicant during which the applicant said "I'm going through" the police line. Senior Constable De Jong told the applicant that no one was going through the police line and he should be patient, to which the applicant, according to Senior Constable De Jong, replied: "This is a fucking joke… I'm Aboriginal… I've got a broken foot."
6. The applicant denied that he said that he was going through the line or that he said "This is a fucking joke". The applicant also denied that he claimed to be an Aboriginal. He claimed that, after waiting for a while, he asked if he could walk home as he was recovering from foot surgery and was told by a "very short" PORS Sergeant to sit in the gutter if his foot was sore.
7. According to Senior Constable De Jong, the applicant paused, looked around and yelled in a loud voice: "Well your fucking short!" (sic)
8. The applicant admitted he made a "joking comment" along these lines but denied swearing.

Allegations 2, 3 and 4

1. In the Notice, it was stated that on 28 May 2016, the applicant and his girlfriend, Ms C, attended Hotel Illawarra in Wollongong. At approximately 11pm, Ms C attempted to pay for her drinks, but was "assessed as being under the influence of an 'unknown substance' and asked to leave with security". What happened next is described in the Notice as follows: After exiting the Hotel, Ms C relentlessly pursued Mr O'Donnell over a number of minutes, kicking, punching and pulling at him. Ms C also punches and pushes other security guards. Ms C is also pushed by security on a number of occasions apparently with increasing force. After you exited the Hotel, you were seen to place your left hand around Mr Aitkins' throat and push him. It appears that you also head butted Mr O'Donnell, continuously argued with security and, despite being repeatedly asked to leave the premises, you failed to do so. A Hotel Illawarra Activity Report dated 28 May 2016 states that at 11.25pm, a "male and female asked to leave both were very aggressive and fought with security at front door''. Hotel lllawarra Incident Report 1636352 states that: 1. at 11.25pm at the "front entry" to the premises, there was an incident described as "violence/aggression" witnessed by "Manager - Craig Atkins"; 2. you (Person 1) are noted as sustaining an injury to your left eye and Ms C (Person 2) is noted as having no visible sign of an injury; and 3. "Manager Atkins attempted to move person 1 and 2 away from front door and with constant physical contact towards staff, he contacted police for assistance". Your conduct After 28 May 2016, Mr Neal, Mr O'Donnell, Mr Atkins and Mr Andrikopolos all provided a statement regarding what occurred on 28 May 2016. ln these statements, it is alleged that you: 1. were repeatedly asked to leave the premises but refused to; 2. wanted to fight the security guards and staff at Hotel Illawarra. ln his statement dated: a) 30 May 2016 (Neal's Statement), Mr Neal says that you said: i) "Come on you tough cunts follow me outside I'll knock you both out. Common do it"; and ii) "Common (sic) get away from the cameras let's go"; and iii) "I'm going to get some boys and come back and get you"; and b) 31 May 2016 (Atkins' Statement), Mr Atkins says that: i) a Ms C crossed the threshold onto Market Street, "a male in dark clothing shoulder barged between us" which knocked Mr Neal to the left and Mr Atkins to the right; ii) as they were escorting Ms C out of the premises, "the male person turned towards Security Officer NEAL and said something about being a fighter and made threats about punching on with him"; and iii) you said to him, "Let's go you scrawny junkie cunt" and "I'll fucking bash you". 3. assaulted Mr Atkins. In Atkins' Statement, he says that as "the male person exited onto Market Street, I was looking through my cards which I use to organise various events when I felt a hand on my throat and felt a sharp shove which sent me back about a metre". In their Statements, Mr Neal and Mr O'Donnell say that they witnessed this assault. According to: a) Neal's Statement, "the male used his right hand to strike Craig in the head"; and b) Mr O'Donnell's Statement (O'Donnell's Statement), "the male reached out with one of his hands and pushed out at Craig shoving him about the area of his throat or neck". In your Lancaster Response, you admit that you pushed Mr Atkins "in the jaw and chin area with [your] open left hand" to stop Mr Atkins from threatening you; 4. sought to intimidate the staff at Hotel Illawarra. According to: a) Neal's Statement, you said, "Do you know who I am, do you know who I am? I'm going to get some boys and come back and get you"; and b) Atkins' Statement, you said to him, "I'm going to have your job" and "Do you know who I am"; 5. assaulted Mr O'Donnell. According to: a) O'Donnell's Statement, you "walked up into [his] space and then like a head butt, the male has shoved me with his head"; and b) Atkins' Statement, "while he was speaking to [Mr O'Donnell] the male has thrust his head forward into the face of the security officer. I saw the head butt make contact which resulted in the security officer pushing the male person back"; 6. said to Mr Andrikopoulos, "go get another kebab you Muslim fuck". Both Mr Neal and Mr Andrikopoulos state that you said this to Mr Andrikopoulos in their statements; and 7. spat in the direction of Mr Andrikopoulos. Both Mr Neal and Mr Andrikopoulos refer to this conduct in their statements.
2. There was then set out a detailed summary of the CCTV footage of the incident by reference to the camera number and the time shown on the footage.
3. The Notice then dealt with the criminal charge that was laid against the applicant as a result of the incident at the Hotel Illawarra on 28 May 2016. The applicant was charged with one count of common assault on Mr Atkins to which he pleaded guilty. On 21 April 2017, Magistrate Thomas of the Wollongong Local Court dealt with the matter without conviction pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and placed the applicant on a bond for six months.

Allegation 5

1. With respect to Allegation 5, the Notice contained the following: On 15 July 2016, at approximately 10pm, Senior Constable Bourbonnais, Senior Constable Goode and Constable Raymond Comber attended [the applicant's home address] to serve the Future CAN on Ms C for the offences of "Excluded person remain in vicinity" and "Affray". In Senior Constable Bourbonnais' statement, he says that one of the reasons that the Future CAN was served at this time of night was due to the fact that you are a police officer and they "did not wish to draw any attention to [your] home by attending [your] home during daylight hours". In an undated report (the Undated Report), you make a number of allegations regarding the conduct of Senior Constables Bourbonnais when he served the Future CAN on Ms C. On 29 November 2016, you also participated in a voluntary interview (the Interview) regarding this matter. On 1 December 2016, Inspector West spoke to Ms C regarding the allegations you made about Senior Constable Bourbonnais' conduct. Senior Constables Bourbonnais, Senior Constable Goode and Constable Comber were all given an opportunity to respond to the allegations made by you. Allegations against attending officers The following is a summary of the allegations made by you and the available evidence. Ms C was naked In the Undated Report, you allege that, when the three police officers arrived, your girlfriend Ms C was lying naked on the lounge after having a shower, According to Inspector West's file note of his conversation with Ms C on 1 December 2016 (the File Note), Ms C indicated that she was not wearing any clothes when police attended but when they knocked on the door she put on a white singlet and some shorts straight away. All three officers say that Ms C was not naked at any point during their attendance. Peered through windows In the Undated Report, you allege that Senior Constable Bourbonnais "[a]fter peeking through the glass for a while and laughing with his colleagues", knocked on your glass door. According to the File note, Ms C says that she only noticed police staring through the window when they knocked on the door. Laughed at Ms C In the Undated Report, you say that Senior Constable Bourbonnais said, while laughing, "Can I talk to S" and tried to look around you "as S was trying to get dressed". According to you, Ms C was "extremely embarrassed by the police peeking and laughing at her being naked". According to the File note, Ms C said that she didn't notice any laughing during the time the police officers were at your residence. All three officers also say that at no point did they laugh during their attendance. Your conduct In the Undated Report, you say that you said to Senior Constable Bourbonnais: 1. "[s]he has called you so many times, why don't you return calls? Who the fuck do you think you are coming here like this? Show some respect"; and 2. "Can she get dressed first you fucking peeping Tom's?'' (sic) when Senior Constable Bourbonnais said again, "Can I talk to S". You note in the Undated Report that you were inside the house when you swore and "did not speak loud enough for anyone else to hear''. In their statements, Senior Constables Bourbonnais, Goode and Comber all say that you were aggressive and abusive when speaking with Senior Constable Bourbonnais. According to: 1. Senior Constable Bourbannias, the following exchange occurred: You "[w]hy didn't you fucking call first? How about a little respect?" Senior Constable Bourbannias: "Can I speak with S please" You "Why didn't you fucking call. She's half dressed". Senior Constable Bourbannias "Can I speak with S please?" You "Why don't you just charge her with fucking Murder'' 2. Senior Constable Goode, you stated "[y]ou guys are fucked" and were extremely aggressive and abusive towards Senior Constable Bourbonnais; and 3. Constable Comber, you said words to the effect, "Who the fuck do you think you are coming here and knocking at my door at this time of night" and "You guys are a fucking joke". You then walked away and Ms C approached the door "getting up from the lounge which she was seated "Fully clothed". During the Interview, you: 1. admit that you said when Senior Constable Bourbannias was explaining the charge of affray to Mr C, "What, not attempted murder?" as you thought the charge of affray to be too excessive and also "very difficult to prove in court at the best of times"; 2. deny that you said "you guys are fucked"; 3. state that you are aware of your responsibilities under the Code of Conduct and Ethics but say your "behaviour was no worse than the officers attending"; 4. state that you don't think that you breached Point 1 or 4 of the Code of Conduct and Ethics and that you "treated police with the same respect they treated [your] girlfriend and [you]". You also say that you don't believe that your behaviour was disrespectful and bringing dispute on the NSW Police Force; and 5. believe that the "whole reason for this complaint is Senior Constable BOURBONNAIS is protecting himself from a complaint in relation to his actions on that night, by getting in first with a complaint about [your] reaction to his own actions." In the Lancaster Response dated 27 June 2017, you; 1. note that "the officer's (sic) conversations differ with some ·adding swear words that did not occur''; 2. consider that "after not returning [your] calls for several weeks and an inept investigation, deciding to attend our house at 10pm was very rude and unprofessional"; 3. state that Ms C was "so upset and embarrassed by this incident [you] installed a large locked gate at the bottom of the front stairs and one-way film onto our windows to stop people peeping through the window, whether using their Police employment as an excuse or not"; and 4. are sorry for being rude to Senior Constable Bourbonnais and should have been more patient with him.
2. On 31 January 2018, the applicant provided a written response, via his solicitors, to the five allegations set out in the Notice and to the grounds upon which the allegations were based, as well as to the findings the respondent was considering in relation to each allegation. In his response, the applicant also raised, as mitigating factors, the injuries he had sustained, some of which are permanent, on 28 May 2016, outside the Hotel Illawarra.

Reasons

1. In the respondent's Reasons much of what was contained in the Notice (at [14]-[25]) was restated and findings were made in relation to each of the five allegations against the applicant (at [4], [6] and [8]).
2. The Reasons then continued as follows: Response In your Response you state that you joined the NSW Police Academy one month after finishing high school when you were 18 years old. During your career you say that in 2004 you became a Peer Support Officer, so you could help other police going through difficult times. In 2005, you became a Senior Constable. In 2007, you became a Specialist Youth Officer and enjoyed helping youth from difficult backgrounds. And, in 2008, you became a Leading Senior Constable. In 2010, you say you were asked to complete the Police pushbike course as "the Commander wanted an experienced officer to head the Bike Squad". Later that year you fell from a mountain bike at the Police Academy when you were required to ride down stairs at night in the dark during a course. You highlight that you had both shoulders reconstructed, and sustained vertebrae and disc injuries to your neck and back, an elbow injury and a broken foot. You state that you were subsequently diagnosed with Post Traumatic Stress Disorder. In 2012, you received the NSW Police medal for diligent and ethical service. You also submit that you are solely responsible for a mortgage of $866,550 and have a credit card debt of $17,000 and you are having difficulties paying bills. You indicate that you will appeal any reviewable action you receive. You attach several references to your Response. Senior Constable John Warda and Mr Alan Pope state that you have the highest integrity, that you are very protective of people and that you are a competent police officer. Consideration As set out in the Notice, I am very concerned by your conduct as detailed above. I expect the highest standards of behaviour from sworn officers of the NSW Police Force and for all NSW Police Force officers to place integrity above all. You have an obligation to conduct yourself in such a way that upholds the good reputation of the NSW Police Force. You have failed in this regard. I demand, and the public are entitled to expect, that police officers protect individuals from violence rather than acting as the perpetrators of that violence. Your conduct set out at Allegation 2 demonstrates that you have been a perpetrator of violence since, while the charge of common assault was dismissed, you were found guilty of assaulting Mr Atkins pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and placed on a six month good behaviour bond. Notwithstanding the criminal matter, your conduct was in breach of the NSW Police Force Code of Conduct and Ethics. I have carefully considered the issues you raised in your Response, which largely reflect your earlier Lancaster Response. As set out in my Notice, I have taken into account your submissions regarding your conduct including the: 1. comments that were made by the Magistrate during the criminal proceedings, including His Honour's criticism of the security staff; 2. fact that you say you only pleaded guilty to the offence of assault in exchange for the charges against Ms C being dropped; and 3. fact that you say that you were defending yourself and your partner by creating distance between yourself and a threat. While I respectfully note the comments of Magistrate Thomas they are not made with reference to your obligations under the Police Act 1990. I do not accept that at the time you assaulted Mr Aitkins you were responding to a threat. Nor, as you submit in your Response, do I accept that you were acting in self-defence, or the defence of your partner. In that regard, I note Magistrate Thomas formed the view there was no provocation. I have formed the same view. In my view, the CCTV footage does not support your assertion that you were distancing yourself from a threat. I am satisfied that the available evidence shows that you were walking away from Mr Aitkins and that he was looking down at his cards when you suddenly turned around, took hold of Mr Aitkins by the neck and shoved him. At the very least, and considering your Response, you aggressively pushed him sharply underneath the chin. Either way, such behaviour is clearly inimical to the duties of a sworn police officer. I do not consider that your have shown any genuine remorse of contrition for your actions. Indeed, I have determined that your continuing attempts to justify your behaviour casts a shadow over your integrity. Regarding Allegation 3, I have considered your Response and I am not persuaded the available evidence supports your submission that it was Mr O'Donnell who headbutted you. Indeed, I am satisfied that it was you who assaulted Mr O'Donnell. l accept that Mr O'Donnell was repeatedly pushing both you and Ms C. Nevertheless, I remain of the view that your actions were improper and a breach of the Code of Conduct. Concerning Allegation 4, I take into account that in your Response you deny the Allegation. At the same time, you seek to rely upon the Statement of Agreed Facts. Those Facts set out how you acted aggressively and in an intimidating manner towards Hotel lllawarra staff. They describe how you "became verbally aggressive with the manager and the security officer who attempted to calm the situation'', and how you placed your hand lightly on the chest of a Security officer. l am satisfied that your behaviour after Ms C was asked to leave the premises was generally belligerent, intimidating and obstructive. You are bound by the Code of Conduct and Ethics and your behaviour has fallen short of the standards expected. Your conduct also had the potential to bring the NSW Police Force into disrepute. ln relation to Allegations 1 and 5, the level of aggression you directed towards your colleagues while they were attempting to execute their duties is totally unacceptable. As a fellow police officer, I expect you to understand the pressures of policing and expect that you will be cooperative and respectful to your colleagues while they attend to their duties. Instead of meeting this expectation, you not only hindered your fellow officers in the performance of their duties but insulted them and swore at them in the process. In your Response you deny swearing at police. However, l am satisfied that the balance of the material before me demonstrates that you did. What further aggravates your behaviour is that your conduct described in Allegation 1 occurred in a public place after you identified yourself as a police officer. I have considered your Response, and do not accept when you say that you did not allow the public to hear you say you were a police officer. Indeed, you have previously admitted that you stated, "You are a disgrace and make me embarrassed to be a cop". Your actions had the real potential to undermine the good reputation of the NSW Police Force. Regarding Allegation 5, you say in your Response that you admit your conduct. Nevertheless, I am disappointed that you still seek to justify your actions by maintaining that the officers who attended your address were rude and unprofessional. I am not persuaded that they behaved as you suggest and consider that you are again seeking to downplay your own behaviour. When considering your Response, I had regard to your submission that you were suffering from a number of symptoms, including permanent brain damage. You were directed to attend further medical examinations. On 26 April 2019, you were examined by Dr Samuel Lim, Psychiatrist, and Dr Peter Cook, Occupational and Environmental Physician. Dr Lim did not identify any diagnosable psychiatric condition that would impact on your ability to carry out your pre-injury duties and in his view your PTSD had gone into remission. Dr Cook was of the view it may be possible that you could undertake full duties. However, you did not consent to either doctor contacting your treating medical professionals. Based on the information available to them, both doctors stated that you are "unfit for full operational police work" but you are fit for "alternative light duties''. I have considered the opinions provided by Dr Lim and Dr Cook, along with the serious nature of your conduct. Having done so, I am not satisfied that I should exercise my discretion to medically retire you as opposed to removing you under s 181D of the Police Act 1990. I have considered your Response regarding your disciplinary history and your denials that you have previously engaged in improper behaviour. Nevertheless, you were served with a Region Commander's Warning Notice in 2012. At that time, it was reinforced with you in the strongest terms that you must always adhere to the Code of Conduct and Ethic. You were squarely on notice of the standards of conduct expected, and the need for you to maintain these standards. Instead, you failed to properly conduct yourself in accordance with your obligations as a sworn police officer. I have carefully reviewed all the material associated with this matter. I have considered the character evidence you have provided, and I have taken into account your years of service and details of your career history as supplied by you in your Response. However, given the seriousness of your misconduct, I see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. I expect, and the law demands that New South Wales police officers will always uphold their solemn Oath of Office. 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. You have failed in that 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 Wates Police Code of Conduct and Ethics. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer.

Case for the applicant

1. In support of his application for review of the Order removing him from the NSW Police Force, the applicant prepared a witness statement in which he outlined his personal circumstances and his service history as a police officer. The applicant also provided his version of the events which are referred to at [11]-[12] above.
2. The applicant stated that on 8 December 2010, he was injured while undertaking the Pushbike Course at the Police Academy. He suffered injuries to both shoulders which required shoulder reconstruction operations. He also suffered injuries the vertebrae and discs in his neck and back, to his elbow and to his foot. The applicant also detailed his personal circumstances leading up to the incident at Cronulla on 12 December 2015 which formed the basis of Allegation 1.
3. In relation to Allegation 1, the applicant stated as follows: Allegation 1 - Cronulla riots anniversary (12 December 2015) 76. On the 12 December 2015, I walked to my local Fitness First Gym at Wanda Beach to do rehabilitation exercises on my foot to help me recover from the surgery. 77. It was the 10th anniversary of the Cronulla Riots. There were a lot of police about and there were some road closures, so I had to walk a long way around to the gym. ………………………….. 79. Initially, I saw a lot of police and a small group of protesters on the grassed area between Mitchell Road, Links Avenue and Marine Esplanade,… I asked a police officer if I could attend the gym, but he informed me the gym was closed at the moment due to safety reasons. 80. I stood watching things from the top of the grassed area adjacent to Mitchell Road,... I waited for what seemed like 15-20 minutes hoping that the incident would cease and I could attend the gym. 81. As I watched, I saw uniformed police from the Public Order Riot Squad pushing several peaceful protesters, including one elderly man who some police officer called a "spastic" and he was taken down to the ground with force for no reason that I could understand but I acknowledge that I did not know exactly what was being said between the protesters and the police. I felt that the force used was excessive and heavy handed. I did not like seeing people treated that way and I felt I needed to speak up. 82. I could hear members of the public who were standing near me saying things directed towards the police such as, "calm down", "relax" and "settle down". Two middle aged men standing close to me spoke to me for a short time. One said, "They're a bit over the top aren't they?". I just nodded my head in agreeance and said, "Yep". The other said about a minute later, "Talk about overkill, they are very excessive". I simply shook my head. I did not want to speak further with them. I did not identify myself to any member of the public as a police officer. 83. My foot started to get sore standing in the one place. I decided to start walking home along the footpath on the eastern side of Mitchell Road,… but a police officer from PORS said, "Your group have to wait here." I said words to the effect, "I'm not a part of any group, I just want to walk home". He said, "Just wait here." I walked back a bit and waited by myself for a few minutes… 84. I over-heard a conversation between a middle-aged man and one of the PORS officers. The man said, "Mate I need to get home to the kids." The PORS officer said, "I don't give a fuck about you or your kids, turn around and fuck off." The man shook his head towards me as he walked past heading to where other people were standing,… 85. I saw a male Sergeant who was then unknown to me but who I now believe was probably Sergeant Crowe. He was standing on the road… about 20 metres south-west of where I was standing. As time went on I was feeling drowsy and my foot was aching. I was hot and feeling frustrated, intolerant and irritable. I wanted to go home and I thought if I explained my situation he might help me. 86. I walked back… and, as I did, I said to the PORS officer (who as explained in paragraph 84 above had previously sworn at a man) words to the effect of "You are a disgrace and make me embarrassed to be a Cop". The PORS officer replied, "Fuck off you wanker". 87. I did not say "fuck" or "fucking" when I was speaking to the police officers and I did not otherwise swear. 88. There was a lot of loud noises in the area because of the people that were there and there was a police helicopter flying around overhead. I could not see anyone within approximately 20 metres of us when I made the comment. I did not speak in a loud voice. 89. I kept walking towards the Sergeant (as I explained in paragraph 85 above) who I think was probably Sergeant Crowe and when I was near him, I stood back and waited a short time… because he was talking to other police. Once they had finished talking I had a conversation. Having read the statement of Senior Constable De Jong that was served by the respondent, I think it was probably him who I had the conversation with, in the presence of Sergeant Crowe. 90. I said words to the effect of, "Hi Sergeant, I'm a Cop and not part of either party, I've just had surgery on my foot and need to walk home and get off it". He laughed lightly and said, "Sit in the gutter if your foot is sore." I thought he was joking so I said, "I'd still be taller than you Searge". He lightly laughed said, "Most people are taller than me mate." I did not swear. I asked him how I could get home and he told me to walk down the steep hill and along the beach in front of the surf club and come back around onto the street. I didn't want to walk that way because I was in too much pain and discomfort with my foot. I didn't want to walk on the soft sand on the beach because I thought it would irritate my foot but I started walking that way,… ……………………….. 92. I am not of aboriginal decent and I did not say I was aboriginal. It is possible there was some confusion about what was said because one of the police officers amongst the group of police I encountered at Cronulla was Constable Hutchinson who I knew from having previously worked with him at Hurstville. I made a report to Constable Hutchinson about Ms C's ex-boyfriend who was harassing us and when making the report I told him she was of aboriginal descent. 93. When I was near the southern side of the Fitness First Gym I saw the officer that earlier had said, "Fuck off wanker" to me (as explained in paragraph 86 above). I said words to the effect of, "Couldn't you make it into T.O.U?" By this I was referring to the elite police squad known as the Tactical Operations Unit. I shook my head and said words to the effect of, "You guys are embarrassing". I then started walking home via the beach and around the surf club... 94. I was interviewed about the incident on 22 September 2016 and I provided a signed report to the investigator dated 21 September 2016. Having reflected on my answers about the breach of the Code of Conduct and Ethics on page 4 of the interview, I do not adhere to my answers. I accept that my behaviour was not consistent with upholding the good reputation of the Police Force and in breach of the Code of Conduct and Ethics. 95. At the time I was interviewed which was 9 months after the incident, I was still very angry and disgruntled about my situation as I have explained. When I spoke to the police on day of the incident, I was feeling very low and emotionally overwhelmed by my situation particularly how I had been unable to work for over 6 months. I felt worthless and very angry and disgruntled with the Police Force. I was very judgemental about the behaviour of the police officers when I interacted with them. I continued to feel this way in September 2016 (as explained below) when I was interviewed and the way I felt heavily influenced my attitude and the answers I gave. 96. In relation to the whole incident at Cronulla and my interactions with the police I accept that I exercised very poor judgement. I sincerely regret my behaviour and apologise for it. I did not swear but I accept that my admitted speech was capable of insulting the police officers present. …………………………….
4. In relation to Allegations 2, 3 and 4, the applicant stated the following: Allegation 2, 3 & 4 - Illawarra Hotel (28 May 2016) 104. On the evening of the 28 May 2016 I had dinner with Ms C at the North Wollongong Hotel. I cannot remember what I ate or drank but know I wasn't drinking heavily and that I wasn't more than mildly intoxicated. Ms C met a group of girls at the bar who asked us to go to a nightclub with them. Nightclubbing is not really my scene, but I was happy that she had made friends as we had just moved to the area and we didn't really know anyone. 105. We walked with the girls to the lllawarra Hotel and entered at 10:20pm. On entering, Ms C and I were checked for intoxication by an RSA Marshal and asked to produce identification that was scanned. We were immediately let inside the club. 106. We were only there for 1 hour and 6 minutes. I had one or two beers at the hotel. I believe I went to the bar once and Ms C went to the bar at least twice. I was drinking beer but can't recall what Ms C drank. I held Ms C's phone and cards as she danced with the girls. Ms C was quite intoxicated. 107. I saw security officers approach Ms C from about 20 metres away from where I was standing next to the dance floor. From experience, I assumed she was being asked to leave so l started walking in her direction. Ms C started to walk out and I thought she was leaving. 108. I had not previously been to the lllawarra Hotel. I did not know any of the management staff or security personnel. Whenever I refer to the names of those persons working at the lllawarra Hotel on the evening, I identified them by having watched the CCTV footage and having read their statements served on me by the respondent. ……………………………….. 111. As Ms C started to walk towards the exit of the nightclub, Security Officer Neal (SO Neal) was positioned behind her. He was wearing a black short sleeved shirt, black pants and had a "No. 3" security tag attached to his waist. Ms C stopped and turned around to look in my direction. I was holding her phone and cards and started walking towards the exit which was the front door of the hotel from where we had entered. I was happy to leave as I was quite tired and didn't like the loud music. 112. I was about 10 metres away when I saw SO Neal push Ms C hard in the back using two hands, which caused her to stumble forwards a few steps. Ms C kept walking towards the door. I walked behind her when I was about 5 metres from the front door I turned to my left towards SO Neal as I was walking past and told him not to push her. SO Neal asked me what I was going to do about it and pushed me with two hands towards my chest and left shoulder. The force was reasonably hard and I was not expecting it. The push was hard enough to make me take a step or two backwards to regain full balance. 113. SO Neal appeared very aggressive and the situation escalated quickly. l told him he wasn't allowed to push us around and I asked for the manager. SO Neal was standing between myself and the doorway with Duty Manager Craig Atkins (Atkins) to his right. He was wearing a white shirt and cream coloured pants… 114. I kept walking towards Ms C, but SO Neal stood in front of me with Atkins standing to his right. l told SO Neal that we were going and asked whether he thought he was tough picking on a girl. 115. SO Neal pushed me in the chest again with force with two hands, using enough force to cause me to move back a couple of steps to keep my balance. I pushed him back in the chest with two hands hard but not as hard as I had been pushed and I told him I didn't want any drama and we just want to go. SO Neal said words to the effect of, "You're fuckin' gone cunt, wait until you get outside". 116. I heard someone behind me who I thought was Atkins say words to the effect of "You should've shut your mouth brother". I told him I wasn't his brother and to please just leave us alone.
5. The applicant then proceeded to describe what happened immediately after he walked out of the front door of the hotel by reference to what was seen on CCTV footage which was tendered into evidence by both parties. I have omitted references to the camera numbers and the times displayed on the footage: 117. …I was talking to SO Neal and put my hand up to my mouth intending to convey to him that I was trying to tell him that I didn't want any trouble. I asked him to calm down and told him we are leaving and not causing any trouble. I did not threaten him. I did not say I was a fighter and never threatened to knock anyone out. I do not speak in that manner. 118. As I was approaching the doorway Security Officer O'Donnell (SO O'Donnell) who was wearing a black hooded jacket, black pants and wearing Security Tag No. 5 on his waist, was standing on the street facing the doorway of the hotel. 119. …SO Neal and Atkins followed me as I walked to the exit. I had a feeling of fear that the situation would escalate as I have seen many times in my work as a police officer. I attempted to calm the situation by gently placing a hand on SO Neal's chest as I often did as a police officer to try and relax an aggressive male. I calmly told him to relax, we're leaving, we don't want any trouble and you need to calm down. 120. …as I moved towards the front door of the hotel I heard Atkins say "You're fucked now" when he was behind me. (Assault of Atkins) 121. …Ms C was standing with SO O'Donnell. I thought she was in trouble and feared we would get assaulted. I panicked and without thinking about it I turned and pushed Atkins in the jaw and chin area with my open left hand. I did not put my hands around his throat. As I pushed him I said, "Don't threaten me mate." I am right­handed. I pushed him with my left hand. I held my jacket in my right hand. 122. …I believe that one of the reasons why I reacted the way I did was because of my defensive training and many years of experience as an operational police officer on the street being confronted with many dangerous and violent situations over the years. 123. My general practice is to endeavour to create space between myself and a perceived threat, which is in broad terms known as a "check drill" procedure in police defensive training. Further, I have found that being an aggressor in dangerous situations shows a potential threat that I am not timid and that I will not easily be messed with. I particularly found those procedures useful when working by myself as I often did both a supervisor and the senior person on shift. 124. I accept that my reaction of pushing Atkins was not warranted. I over-reacted. I did not make a deliberate decision to push him in a similar way to a check drill procedure. It was done in the heat of the moment and I lost control and acted out of impulse without thinking. 125. I have no martial arts or boxing training. I have not played contact sports other than at school. As an adult, I have never previously assaulted anyone or been in a fight. I do not condone violence. 126. …SO Neal pushed me in the back as I walked away, which caused me to move towards the road. I told him I wanted to see the manager. 127. …SO O'Donnell pushed my arm. I repeated a couple of times words to the effect of, "You don't touch girls, she was leaving, I want to see the manager". I tried to take hold of Ms C and move her away so we could leave. I wanted to leave but l refused to leave without her as I considered that I was protecting her and keeping her from getting into trouble. I have no doubt that if she had moved on I would have left with her immediately. 128. I did not say "You don't know who I am", "I'm going to bring ten blokes back next week", "I'll get my boys", "I'll have your jobs", I'm going to get you'se fucked up." I do not speak that way and never have in my life.
6. The applicant continued to describe the remainder of the incident as shown on the CCTV footage which includes those aspects of the incident which gave rise to Allegations 3 and 4.
7. Following this incident, the applicant was charged with one count of common assault on Mr Atkins pursuant to section 61 of the Crimes Act 1900. The applicant recounted what then occurred as follows: Plea of guilty to charge of common assault of Mr Atkins 172. The incident at the lllawarra Hotel occurred on 28 May 2016. 173. On about 8 July 2016 I was issued with a Court Attendance Notice for an offence of common assault of Craig Atkins on 28 May 2016. 174. I was suspended from the Police Force with pay from 13 July 2016. 175. I was represented by Bill Barber barrister. I gave instructions to enter a plea of guilty to the charge. I disputed the Facts Sheet that was served upon me,… 176. On the advice of Mr Barber, I put an advertisement in the The lllawarra Mercury, which is the local Wollongong newspaper, calling for witnesses to the incident to come forward. I did not get a response. 177. On the advice of Mr Barber, I attended the lllawarra Hotel in the daytime to determine where the CCTV cameras were located inside the hotel. This was because the police investigators had not obtained any of the CCTV footage taken by the cameras inside the nightclub, which would have captured the events that took place when Ms C and I were leaving the nightclub. I saw that there were several cameras that would definitely have shown the angle where we were assaulted inside the hotel. 178. Further CCTV footage was requested from the DPP and further footage was produced from a camera filming the bar which showed Ms C approaching to buy drinks but no other CCTV footage was provided. 179. Mr Barber negotiated a set of agreed facts with the prosecutor, Mr Charleston from the Office of the Director of Public Prosecutions… 180. I did not agree with several points in the Statement of Agreed Facts that concern the facts about what happened inside the nightclub. I did not push in front of Craig Atkins and SO Neal and there was nothing about the fact that they assaulted Ms C and me by pushing us whilst we were walking from the night club to the exit out onto the street. I refer to my evidence above in this regard. 181. Mr Barber advised me not to go to a hearing about disputed facts because the facts that I was putting in issue were not facts that would make a difference on sentence between me receiving a non-conviction or conviction for the offence. He advised me that a hearing on disputed facts was not warranted. 182. On 21 April 2017, I pleaded guilty to the charge and was sentenced by Magistrate Thomas at Wollongong Local Court. I was placed on a good behaviour bond for 6 months and released without a criminal conviction being recorded…
8. Another aspect of the Statement of Agreed Facts with which the applicant disagreed was the following: Manager Atkins commenced looking down as he exited the hotel when Higgins turned around and aggressively used his left hand to push Manager Atkins sharply underneath the chin forcing the manager backwards about a metre (see attached six images from CCTV footage).
9. Annexed to the applicant's witness statement in these proceedings was a copy of the transcript of the local court proceedings on 21 April 2017 during which Magistrate Thomas was critical of the conduct of the staff of the Hotel Illawarra on 28 May 2016. Included in the learned Magistrate's remarks were the following comments: True it is that he will have to deal with, after today, the police service in terms of what action they may or may not take or what action the Commissioner may or may not take. That is a matter that he will have to work through with the appropriate authorities and with I imagine the Commissioner at some stage in the future. It does not in my view depend on what I decide to do. For what it is worth I am of the view that based on the material before me and the manner in which I intend to dispose of this matter, that this incident should not in any way constitute behaviour that would involve Mr Higgins' dismissal from the police service. But as I say that is not a matter for me, that is just my view.
10. With respect to Allegation 5, the applicant has admitted that he was aggressive and abusive towards Senior Constables Bourbonnais, Goode and Constable Comber when they attended his residence to serve a Future CAN on Ms C. He put the following in response to that allegation: Allegation 5 (15 July 2016) 183. About 10.30pm on 15 July 2016, I was sitting on the lounge watching the television with Ms C who had just got out of the shower and was naked. I was folding laundry that I had got off the line while we were watching a movie. 184. I saw movement out of the corner of my eye and looked at the large glass sliding doors at the front of my house which are approximately 2 metres from where we were sitting on the lounge. The glass is clear with no screens or covers meaning that you could see inside when standing outside. I saw 3 uniformed male police officers looking through the window and I knew they could see inside. They were looking in Ms C's direction and looked as though they were laughing. I told Ms C to get dressed. 185. I got off the lounge and walked to the front glass door. I opened the door and Senior Constable Bourbonnais who was laughing said, "Can I talk to Ms C". He moved his head to look around me and I knew that Ms C was putting some clothes on. I said, "She has called you so many times, why don't you return calls? Who the fuck do you think you are coming here like this? Show some respect". He again said, "Can I talk to Ms C?". I said, "Can she get dressed first you fucking Peeping Toms?" ………………………………. 187. I was inside my house when I swore and did not speak loud enough for anyone else to hear other than the police officers and Ms C. I felt extremely upset because I felt that Ms C would be very embarrassed knowing the police had seen her naked. I was very offended and insulted by what had happened. As a result of this incident I installed an electronic opening gate and one-way privacy film on the clear sliding glass doors to give privacy. 188. I regret speaking to the officers in this manner. I was extremely frustrated as I believed that they weren't interested in fully investigating what had occurred inside the lllawarra Hotel. l had asked several times for the CCTV from inside the hotel to be obtained by investigators but was told by Chief Inspector Brown that all available footage had been retrieved. Yet, I knew that there were other cameras inside the hotel that would capture footage of the location where Ms C and I were pushed when initially leaving the hotel. I was also angry about the fact that I still hadn't been able to return to work. 189. I was also very stressed and upset because just two days earlier on 13 July 2016 I was suspended from the Police Force after having been charged with assaulting Mr Atkins. I also had the position of Leading Senior Constable removed which reverted me to the rank of senior constable and reduced my salary. 190. I accept that my behaviour was in breach of the Code of Conduct and Ethics that I should not have spoken to Senior Constable Bourbonnais the way I did. I apologise for having done so.
11. Statements in the nature of character references for the applicant by John Warda, Senior Constable in the NSW Police Force, and Alan Pope, Security Officer, were tendered into evidence. Neither deponent was required for cross-examination

Respondent's case in reply

1. In reply to the applicant's case, evidence was provided by Senior Constable De Jong in relation to the incident that gave rise to Allegation 1. Senior Constable Bourbonnais gave evidence of his involvement with the applicant in the aftermath of the events of 28 May 2016 that gave rise to Allegations 2, 3 and 4 as well as the events of 15 July 2016 when the CAN was served on Ms C giving rise to Allegation 5. I deal further with this evidence later in this decision.

Further written submissions

1. After the conclusion of the hearing of the Application, both parties filed with the Commission written submissions which dealt with the judgements of the Court of Appeal (Bell P; Macfarlan JA; Wright J dissenting) in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236, and of the Supreme Court (Wright J) in Storey v Commissioner of the New South Wales Police Force (No 2) [2020] NSWSC 1429.
2. Section 181D of the Police Act gives the respondent the power to remove an officer where the respondent no longer has confidence in the officer's suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct.
3. A person who is the subject of a decision to remove him or her from the NSW Police Force may apply for a review of that decision pursuant to s 181E of the Police Act. Section 181E provides: 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1).
4. The manner in which the Commission must conduct the review is set out at section 181F of the Police Act: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1).
5. In the respondent's written submissions received by the Commission on 4 December 2020 the following was stated (footnotes omitted): 2. On 16 November 2020, the Respondent notified the Commission that it wished to bring two decisions to the attention of the Commission that were delivered following the conclusion of the hearing. Those decisions are: (a) the decision of the NSW Court of Appeal (Bell P, Macfarlan JA, with Wright J dissenting) in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 (Zisopoulos); and (b) the decision of the Supreme Court of New South Wales (Wright J) in Storey v Commissioner of the New South Wales Police Force (No 2) [2020] NSWSC 1429 (Storey). 3. Zisopoulos and Storey both deal with the issue of the proper approach to an application for review under s 181E of the Police Act 1990 (Police Act). The parties' previous submissions make clear that the statutory sequence prescribed in s 181F(1) of the Police Act and the operation of the onus of proof in s 181F(2) of the Police Act are salient and material issues in contest in the proceedings. 4. In respect of Zisopoulos, the Respondent has filed an application for special leave to appeal to the High Court of Australia. That application is unlikely to be heard until early 2021. 5. In respect of Storey, the Respondent has received a Notice of Intention to Appeal from the plaintiff in that matter. Consequently, an appeal may be filed in those proceedings by Mr Storey on or before 16 January 2021. 6. The Respondent accepts that, unless and until the decisions are overturned, both are binding on this Commission. Zisopoulos 7. In Zisopoulos, on the issue of the onus of proof in review proceedings under s 181E of the Police Act, the majority (Bell P, with whom Macfar!an JA separately agreed) concluded (at [84]-[89], [96]) that the reference in s 181F(2) to the burden of establishing that the removal is harsh, unreasonable or unjust is a reference to the applicant's legal onus, which at all times rests on the applicant in the review proceedings before the Commission, and is not a reference to any evidentiary or tactical onus which may shift during the course of the proceedings. 8. Bell P based his conclusion on the fact that, in the reasons for removal, as it is in this case, the Commissioner of Police predicated his factual findings of misconduct on the Briginshaw standard of proof (see [76]-[77]). The President stated (at [78]): ...having predicated his removal decision on satisfaction to that standard, if the IRC, on review, reached the conclusion that the Police Commissioner could not have been so satisfied in light of the material in evidence before it, it is not difficult to understand how a conclusion that the removal decision was harsh, unreasonable or unjust could be warranted or justified. (emphasis added) 9. The President went on to conclude (at [84]-[85]): [84] Depending upon the basis of the Police Commissioner's decision, as the Full Bench said at [27] citing Starr, the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust may be satisfied in a given case by casting sufficient doubt on the Police Commissioner's reasoning process so as to justify the IRC's intervention. But it is important always to remember that "sufficient doubt" is not "any doubt", and the raising of a doubt, sufficient or otherwise, does not in any way alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. So also, the mere "going into evidence" by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that a removal was harsh, unreasonable or unjust nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner's original decision and of the strength of the evidence led by the removed officer and or the credibility of the alternative hypothesis. [85] If what the Full Bench in the present case referred to as "sufficient doubt" is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust. 10. The Court of Appeal states that the Commission must, on review, closely analyse each party's case, and weigh up the evidence adduced by the parties in prosecuting their respective cases, including the inferences to be drawn where evidence is not called on, and then reach factual determinations (where issues of fact are contested) through the prism of the applicant bearing the legal onus at all times to establish 'sufficient doubt' in the Statement of Reasons. 11. Bell P also overruled (at [83]) the longstanding approach of this Commission that review proceedings are a hearing de novo (albeit that some doubt had been cast over this concept previously: see Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 at [11]), by observing that the hearing is not de novo, but is, in effect, a hybrid of both a judicial review and a merits review, albeit more akin to the latter. 12. Macfarlan JA joined with the reasons given by the President, observing that the tactical burden was "devoid of legal significance", and that reference to it was ideally avoided.
6. The submissions then went on to analyse the dissenting judgement of Wright J in Zisopoulos and his Honour's judgement in Storey and to discuss how the principles that emerge from those two authorities should be applied to the facts of this case
7. In written submissions prepared on behalf of the applicant and received by the Commission on 17 December 2020, it was put that the decision of the majority in Zisopoulos is binding and ought to be followed. I agree but, as will be seen from what follows, the outcome of this matter does not turn on questions of onus of proof, legal burden, evidentiary burden or tactical burden.

Allegation 1

1. Allegation 1 against the applicant is that, on 12 December 2015 at Cronulla, he identified himself as a police officer in a public place and thereafter, swore at and insulted police officers while they were on duty.
2. The applicant admits this allegation but denies saying "fuck" or "fucking" or that he was Aboriginal, and he has given sworn evidence to this effect.
3. However, Senior Constable De Jong has given sworn evidence contradicting the applicant on these issues. His evidence was consistent with what is recorded in the Notice in relation to Allegation 1. Senior Constable De Jong summed up his recollection of the events of that day in the following terms: 22 What I recall most clearly about my interactions with Mr Higgins on that day was his demeanour. He was aggressively carrying on, swearing and disrespecting the police officers present. I could not see any circumstance at the protest that day that warranted that kind of reaction or behaviour from any person, but particularly a fellow police officer. As a police officer, I expected that he would have had an appreciation for the duties we were performing and that he would have known not to interfere with or hinder us in the performance of those duties.
4. Having observed both the applicant and Senior Constable De Jong giving their evidence and being cross-examined, I formed the opinion that the latter was the more credible witness and I accept his evidence over that of the applicant on disputed facts relating to Allegation 1.
5. In my opinion, the applicant's conduct towards his fellow police officers on 12 December 2015 at Cronulla, constituted serious misconduct which warranted a serious disciplinary response.

Allegation 2

1. The applicant has admitted that, on 28 May 2016 outside the Hotel Illawarra in Wollongong, he assaulted Mr Atkins. In my consideration of this allegation I have disregarded the written statements of the hotel staff which were included in the Commissioner's Confidence materials which were tendered into evidence. I have relied solely on the CCTV footage of the incident and I have accepted the applicant's evidence that, as Ms C was leaving the hotel she was pushed in the back by a security guard and the applicant was pushed in the chest and left shoulder more than once by the same person. I also accept the applicant's evidence that he was threatened by the security guard and that someone who he thought was Mr Atkins said words to the effect "You should've shut your mouth brother". However, none of this excuses what the applicant then did on the footpath outside the hotel which was captured on CCTV footage.
2. At 23:28:00 the applicant is seen to be walking out of the hotel door in front of a security guard and Mr Atkins. Mr Atkins, who is not alleged by the applicant to have laid hands on Ms C or the applicant, is looking down at something he is holding in his hands. At 23:28:02 the applicant turns around and, in what can only be described as a gutless act, with his left hand shoves the unsuspecting Mr Atkins in the chin or mouth area causing him to stumble backwards. As would be expected, the security guards then get involved in remonstrating with the applicant, Ms C responds by physically attacking the security guards and the situation then spirals out of control culminating in the applicant being slammed by a security guard into the roadway causing a serious injury to his face.
3. Contrary to the views expressed by Magistrate Thomas, it is my opinion that the unprovoked assault by the applicant on Mr Atkins, to which the applicant pleaded guilty in the local court and was placed on a six month bond, is sufficient, without more, to disqualify the applicant from continuing to be a serving police officer.

Allegation 3

1. The applicant denies that he assaulted Mr O'Donnell outside the Hotel Illawarra by striking Mr O'Donnell with his head. As with Allegation 2, I have disregarded the written statements of the hotel staff and relied solely on the CCTV to make a determination with respect to this allegation.
2. I have watched the CCTV footage of this incident, which it is alleged occurred at 23:28:45, many times. I am unable to conclude that the applicant head butted Mr O'Donnell rather than the other way around. It is clear, however, that at this point in time, the applicant had got right up in the face of Mr O'Donnell but that is not what is alleged. The applicant was not charged with assault on Mr O'Donnell. I do not find that Allegation 3 is sustained but, ultimately, this will have no bearing on the disposition of the Application.

Allegation 4

1. This allegation, which is denied by the applicant, has a number of elements to it.
2. It is clear from the gestures of the hotel security staff, as seen on the CCTV footage, that the applicant was repeatedly asked to leave the premises but refused to. It is also clear from the gestures of the applicant that, at various times throughout the incident, he wanted to fight the security guards and staff of the hotel.
3. There is no doubt that the applicant assaulted Mr Atkins but it is unclear that he assaulted Mr O'Donnell as alleged in Allegation 3.
4. I am satisfied that, at various times throughout the incident, the applicant sought to intimidate the hotel staff just as, at other times, he was being intimidated by them.
5. I am not satisfied, from what can be seen on the CCTV footage, that the applicant made offensive comments towards Mr Andrikopoulos or that the applicant spat in his direction.
6. However, I do find, from viewing the CCTV footage, that the applicant did act aggressively and in an intimidating manner towards Hotel Illawarra staff after Ms C was asked to leave the hotel.

Allegation 5

1. The applicant has admitted this allegation but claims that the police officers who attended his premises on 15 July 2016 to serve a CAN on Ms C behaved in a provocative manner towards the applicant. Senior Constable Bourbonnais denied this and stated: In my view, Mr Higgins' aggression toward me on 15 July 2016 was entirely unprovoked and unreasonable in the circumstances where my colleagues and I were there in the performance of our duties simply to serve paperwork, being the future CAN, on Ms C. During the interaction, Ms C seemed embarrassed and sheepish, and said very little to me or my colleagues. Mr Higgins' conduct was completely disproportionate to the situation and unnecessarily created a hostile situation.
2. I accept this evidence of Senior Constable Bourbonnais.

Determination

1. I have considered the mitigating factors placed before the Commission by the applicant, including the financial impact of the Order on him. I have also considered the applicant's previous disciplinary history which does not assist him.
2. However, I regard the applicant's conduct, especially in relation to Allegations 1, 2, 4 and 5, as serious misconduct warranting his removal from the NSW Police Force. It follows that the applicant has failed to establish that his removal was harsh, unreasonable or unjust. His application must be dismissed.
3. I so order.

Non-disclosure order

1. Further, at the request of the respondent, pursuant to section 164A(1)(c) of the Industrial Relations Act 1996 I make a non-disclosure order prohibiting the publication of the section of the transcript of these proceedings on 17 August 2020 on page 65, at lines 1-16. John Murphy Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2021