Hugh Gerrard Brennan v Commissioner of Police

Police - termination of employment - review under s 181E Police Act 1990- s 181D - s 181F - s 181G - questions raised about conduct of officer during brawling behaviour by groups of youths in vicinity of a Leagues Club - officer found guilty on two counts of common assault in Local Court - excessive use of force during arrest - unauthorised use of capsicum spray - community service ordered - appeal to District Court - conviction regarding use of capsicum spray set aside - 2 year good behaviour bond substituted for community service penalty in other assault matter - Commissioner decides to remove officer after conviction in Local Court but before penalty imposed - substantially different picture of events emerges in District Court - balance of interest of officer and public interest considered - applicant discharges onus of showing termination harsh - dismissal a disproportionate punishment in all circumstances - officer reinstated to Police service with continuity of service but without payment for period of absence from Police service

Crimes (Sentencing Procedure) Act 1999 s 9 LEGISLATION CITED: Crimes Act 1900 s 61 Industrial Relations Act 1996 Police Act 1990 (NSW)

Clyde Engineering Co Ltd v Couburn (1926) 37 CLR 466 at 480 Commissioner of Police v Evans (2006) 153 IR 144 Hosemans v NSW Police Service (2004) 136 IR 376 and Full Bench (2004) 138 IR 159 Little v Commissioner of Police (No 2) (2002) 112 IR 212 McIntosh v Webster (1980) 40 FLR 112 CASES CITED: Newton v Commissioner for Police (1998) 85 IR 119 Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 at 39 Pastrycook Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR at 83-84 Saraswati v The Queen (1990-1991) 172 CLR 1 at 21 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wells v Commissioner of Police (2000) 100 IR 106 at [33]

HEARING DATES: 20 August 2007, 21 August 2007

RESPONDENT: Mr J West QC with Mr S Meehan of counsel SOLICITORS: Henry Davis York

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HAYLEN J 6 September 2007

Matter No IRC 2864 of 2006 HUGH GERRARD BRENNAN v COMMISSIONER OF POLICE Application by Hugh Gerrard Brennan for review of an order under s 181E of the Police Act 1990 JUDGMENT [2007] NSWIRComm 229

1 By 22 May 2005, Mr Hugh Brennan had been a police officer for a little under four years. On that date he held the rank of Constable and during the course of his duties he was called with other police officers to attend in the vicinity of Western Suburbs Leagues Club ("Leagues Club") where two groups of people had engaged in a brawl. Two incidents occurred that night that led to Mr Brennan's conduct being investigated under police internal processes. Ultimately, he was charged with two counts of common assault, the first relating to an unjustifiable arrest during the course of which Mr Brennan used excessive force, the second concerning the unjustified use of capsicum spray. Mr Brennan pleaded not guilty to both charges. On 27 June 2006, at Downing Centre Local Court, Mr Brennan was convicted of both assaults and in September 2006, was sentenced to perform 220 hours community service on the first charge and 130 hours community service on the second charge. 2 After investigation of these two matters commenced, Mr Brennan was subjected to certain restrictions within his workplace: initially, he was allowed to remain on active duty but was required to stay within the Detectives' office and was prohibited from attending the "western side" of the police station. On 26 August 2005, he was suspended from duty with pay but he was not eligible for overtime, relieving duty, other higher duties and shift penalties, including public holiday penalties. On 8 May 2006, Mr Brennan was served with a Notice under 181D(3)(a) of the Police Act 1990 under the hand of the Commissioner of Police wherein Mr Brennan was given notice that the Commissioner was considering his suitability to continue as a police officer, taking into account his conduct in the two incidents that occurred on 22 May 2005. By the time this Notice had been served, Mr Brennan had been charged with two counts of common assault, had entered pleas of not guilty in March 2006 at the Downing Centre Local Court and the matters had been adjourned until late June 2006 when the Local Court would deliver its decision in relation to those two charges. Mr Brennan was given 21 days in which to make written submissions in relation to the action proposed by the Commissioner. On 5 July 2006, following the convictions in the Local Court, written submissions dealing with the issues raised in the s 181D Notice were prepared by solicitors acting on behalf of Mr Brennan and forwarded to the Commissioner of Police In the course of those submissions, Mr Brennan requested the Commissioner to defer making a final decision, at least until sentence had been delivered by the Downing Centre Local Court in September 2006 or, alternatively, until the conclusion of appeal proceedings in the District Court. 3 On 21 July 2006, the Commissioner of Police made an order under s 181D(1) of the Police Act stating that, having considered Mr Brennan's conduct, the Commissioner did not have confidence in his suitability to continue as a police officer and he was thereby removed from the New South Wales Police service. The removal was to take effect on that day. 4 Mr Brennan proceeded with his appeal to the District Court and on 20 April 2007, he was partially successful. In the District Court, the common assault charge relating to the use of capsicum spray was held not to be made out to the criminal standard and the appeal against that conviction was upheld. The conviction in relation to the unnecessary use of force during the course of an arrest was confirmed and a bond under s 9 of the Crimes (Sentencing Procedure) Act ("the Sentencing Act") to be of good behaviour for a period of two years was substituted for the previous penalty of 220 hours of community service. On 2 August 2006, Mr Brennan filed an Application in the Registry of this Commission seeking a review of the order of the Commissioner of Police to remove him from the Police service and seeking reinstatement pursuant to the provisions of s 181E of the Police Act. By consent, those proceedings were adjourned from time to time to allow Mr Brennan's appeal against his convictions to be finalised in the District Court. THE EVIDENCE ON REVIEW 5 In view of the nature of the legislative scheme on review, some care is required in dealing with the evidence to be admitted for the purposes of the review. Section 181E(3) imposes a duty on the Commissioner to make available to the applicant for review all of the documents and other material on which the Commissioner relied in deciding that he did not have confidence in the applicant's ability to continue as a police officer. The reference in that section to s 181D(1) may well travel beyond a reference to the fact that the Commissioner may, by order in writing, remove a police officer from the Police service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer having regard to the officer's competence, integrity, performance or conduct and may also be a reference to the obligation under s 181D(3) that, before making an order, the Commissioner must give the police officer a notice setting out the grounds on which the Commissioner of Police does not have confidence in that officer's suitability to continue as a police officer. 6 In this case, the parties tendered, without objection, documentation referred to as the "Commissioner's Brief" (formally known as the "Commissioner's Confidence Submission"), being a document of some ten pages setting out a summary of the officer's background and history and a summary of the conduct bringing the officer under attention. That document also contained a summary of previous complaints and a history of awards and complimentary remarks received by Mr Brennan. There were 28 documents annexed that substantially filled a large binder. Many of the documents annexed were statements of police officers or witnesses to Mr Brennan's conduct, but it also included closed circuit television footage of the arrest incident and three medical reports. This was the material relied on by the Commissioner in reaching his determination and it was that material addressed in Mr Brennan's submission in reply that was required to be considered by the Commissioner of Police before taking further action. Also tendered without objection was the Notice to Mr Brennan under s 181D(3)(a) notifying him that the Commissioner of Police was considering his suitability to continue as a police officer having regard to Mr Brennan's conduct and outlining the issues being considered. The order made under s 181D(1) and the reasons for making that order removing Mr Brennan from the Police service were also tendered by consent. It was acknowledged by Senior Counsel for the Commissioner that the Commissioner did not have regard to the transcript of proceedings and the exhibits before the Local Court before issuing the order, and since that time had not considered the transcript and the exhibits before the District Court on appeal. 7 Although it was originally intended that some 22 witnesses might be called in the proceedings, ultimately, Senior Counsel for the Commissioner of Police tendered the transcript of the proceedings in both the Local Court and District Court, together with a selection of exhibits (including photographs) that were before the Local Court. As part of that material, the reasons for decision in both matters were also tendered. The admission of this material required consideration of the provisions of s 181G(1)(f). That section modifies the provisions of the Industrial Relations Act 1996 for the purposes of a review under the Police Act so that, on review, new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and the substance of the new evidence, has been given in accordance with the regulations under the Act, or (ii) the Commission gives leave. 8 The Commission was informed that there were no regulations promulgated under the Police Act concerning the giving of notice of intention to call new evidence as well as the substance of new evidence. Notice of the Commissioner's desire to rely on that material was given by way of filing and serving on Mr Brennan several folders containing the material. In terms, no formal document was filed giving notice under s 181G(1)(f) but in the present situation, that is of no moment as it was intrinsically part of Mr Brennan's case that the Commissioner of Police had been in error in not awaiting the finalisation of the sentencing process in the Downing Centre Local Court and in not awaiting the finalisation of the appeal proceedings in the District Court. As this material was of significance in the case to be pursued for both parties, even if there was some defect in the giving of formal notice, it would be an appropriate case for the Commission to give leave to file this fresh evidence. The same approach was available in relation to additional documents relied upon by Mr Brennan. The only other matter of significance admitted by way of fresh evidence was a payroll printout of Mr Brennan's earnings which related to his claim for both reinstatement and reimbursement of lost wages during the period of his removal. That class of document clearly fell into the category of fresh evidence where, at the very least, leave should be granted in order to have the necessary material before the Commission to enable it to make consequential orders if so persuaded. 9 The Commissioner's Confidence Submission contained the following synopsis: On 22 May 2005, Mr Brennan attended Leumeah Railway Station in response to a brawl. Whilst at the location he followed a number of youths across the station overpass where he stopped Kyle Jones and spoke to him in regards to alcohol Mr Jones was consuming. Mr Jones informed Mr Brennan that he had not been drinking. Mr Brennan then grabbed Mr Jones by his shirt and threw him against lift doors, located at the top of the overpass. Mr Brennan then handcuffed Mr Jones and escorted him to the police vehicle parked in the vicinity of the station. Mr Brennan released Mr Jones a short time later. As police were leaving a further disturbance occurred which resulted in Mr Brennan spraying Mr Robert Bishop with Oleoresin Capsicum (OC) spray whilst they were divided by a fence. 10 In relation to the alleged assault on Mr Jones, the Brief drew attention to the provisions of s 61 of the Crimes Act 1990, the Limitations of Authority of police officers under the New South Wales Police Code of Conduct and Ethics and the provisions concerning reasonable force in the Code of Practice for Custody, Rights Investigation, Management and Evidence. In each case, there was asserted to be a breach. The Brief noted that, in the early hours of 22 May 2005, police were called to the vicinity of the Western Suburbs Leagues Club in Leumeah in response to a brawl. On arrival, police found two groups of youths in front of the Club with one group consisting of Kyle Jones, Robert Bishop and six others. It was stated the two groups had fought each other and that Mr Bishop had been punched in the nose by an unknown male and was bleeding. When spoken to by police, the youths were loud and aggressive and were seeking to locate the person who had punched Mr Bishop. This group was told by the police to stop causing trouble by being loud and aggressive and to go home: the group began to walk towards Leumeah railway station with Mr Brennan and other police following them. 11 At the railway station, the group walked onto a platform and up a flight of stairs towards an overpass, still yelling abuse at the police and, as they were walking along the overpass further police arrived and followed the group towards the other side of the overpass. Police continually told the youths to go home. Mr Brennan and Constable Maziarz noticed Mr Jones was standing at the top of the stairs and behind the group: Constable Maziarz told Mr Jones to go with his friend and to move on: he started to comply with that request. As Mr Jones started to walk down the stairs, Mr Brennan asked him if he had been drinking. Although Mr Jones replied that he had not, he had a can of mixed spirits in his hand at the time and proceeded to take a sip from the can and, as he did so, Mr Brennan knocked the drink out of his hand. Mr Brennan then grabbed Mr Jones by the shirt and dragged him up the stairs of the overpass and, at the top of the stairs, he threw Mr Jones against the lift doors. During the incident, Mr Brennan hit Mr Jones with his head although Mr Jones was uncertain if it was an intentional head butt. Mr Brennan handcuffed Mr Jones with his hands behind him, walked him to a caged police truck where he was placed for a short time before Mr Brennan returned and released him. In releasing him, it was said that Mr Brennan was annoyed with a response that Mr Jones had given and had pushed Mr Jones into the back of the truck while taking off the handcuffs. Mr Jones was then shoved away by Mr Brennan and told to go home. The Brief stated that Mr Brennan released Mr Jones without charge and without obtaining any details from him. 12 The Commissioner of Police was then provided with a number of summaries based on statements from police officers and others concerned in the incident. Constable Maziarz confirmed that he spoke to Mr Jones at the top of the stairs of the overpass and told him to move on, that Mr Jones complied with that request and as he was starting to move, had turned his head. When he looked back, he heard Mr Brennan call Mr Jones a "smart arse" and saw him grab Mr Jones by the scruff of the neck of his shirt and throw him against the elevator door near where they were standing. Constable Maziarz was standing approximately a metre and a half away from Mr Brennan at the time. He saw an open can of rum fall from Mr Jones's pocket as Mr Brennan threw Mr Jones into the elevator doors. At that time, Mr Brennan said, "You don't do that at a train station and you're not a smart arse to me". As Mr Brennan handcuffed Mr Jones, Constable Maziarz approached him and asked Mr Brennan what he was doing but Mr Brennan did not respond. When Mr Brennan released Mr Jones, he was overheard to say, "You're not so tough now, especially when I've got all my gang around me, are you?". Constable Maziarz expressed the opinion that the arrest was not justified and that Mr Jones was complying with the request to leave the area. Constable Maziarz was also of the opinion that Mr Jones had not committed any offence, describing Mr Jones's demeanour as meek and mild with his voice not raised, noting that he was not swinging his arms in the air or jumping up and down or doing anything that would threaten or threaten to hurt the police or anyone. 13 In a statement from one of the group, Mr Matthew Kelleher said he saw Mr Jones halfway up the stairs to the overpass holding a can of drink and being spoken to by Mr Brennan. Mr Brennan grabbed Mr Jones by the arm and dragged him to the top of the stairs where he knocked the can of drink out of Mr Jones's hand and shoved him into the elevator door "a couple of times". 14 It was recorded that, on 16 August 2004, an adverse finding under the Code was made against Mr Brennan for assaulting Mr Jones. The investigator found there was no justification for Mr Brennan to arrest Mr Jones and that excessive force was used during the arrest. Ten days after that finding, Mr Brennan provided a document in response to the allegations which gave his version of the incident. Mr Brennan stated that Mr Jones disobeyed a police direction, was consuming alcohol on a railway structure and, as a result, was arrested. While being arrested, he became argumentative towards Mr Brennan who restrained Mr Jones against the elevator doors. Mr Brennan stated that Mr Jones continually attempted to spit on him and as a result of which, Mr Brennan moved Mr Jones's head back towards the wall and continued to instruct him not to move. Mr Brennan drew on his training as a weapons training instructor in order to prevent Mr Jones from spitting on him. Mr Brennan maintained that he had informed Mr Jones of the reason for his arrest (failing a police direction and consuming alcohol on a railway structure) but that he was unable to obtain details from Mr Jones because he had left his official notebook at the station. Mr Brennan subsequently released Mr Jones without charge. 15 It was alleged that Mr Brennan had breached the New South Wales Police Code of Conduct and Ethics - Limitation of Authority which stated: Whatever your position, you may not act beyond the powers that the law and the New South Wales Police give you.

Mr Brennan had acknowledged having received and read that Code of Conduct and Ethics when entering the Police service in May 2001. It was also asserted that Mr Brennan had breached the Code of Practice for Custody, Rights Investigation, Management and Evidence that stated: The amount of force you may use will vary according to the resistance to the arrest. You can only use such force as is reasonably necessary to make the arrest or prevent the escape of a person after the arrest. You will be judged on the reasonableness of your actions on the basis of the circumstances at the time. 16 In relation to the second matter, the Brief to the Commissioner of Police identified s 61 of the Crimes Act and a breach of the same provision of the Code of Conduct and Ethics as being relevant. The summary of the position stated that, in the early hours of 22 May 2005, police had been called to the vicinity of Leumeah Railway Station in relation to another disturbance involving a number of youths with whom police had dealt earlier that night. Attending police approached a group of youths outside the railway station including Robert Bishop. Their canisters of OC spray had been withdrawn from their holders. The officers had their arms by their sides except for Mr Brennan who had his right arm extended. The police and the youths were on either side of a 1.5 metre high fence with the youths yelling abuse at the police and the police telling them to go home. Mr Brennan had told the youths to "piss off home" and, if they did not, he would spray them. Mr Bishop had said that he wanted to go to Western Suburbs Leagues Club to get his mobile telephone which he had been advised had been located by the Club. It was stated that Mr Brennan walked forward and sprayed Mr Bishop in the face while Mr Bishop was attempting to ask a question and walking backwards away from the fence. Mr Bishop estimated that Mr Brennan was approximately five metres away from him on the opposite side of the fence at the time of being sprayed. Mr Bishop ran away from the area and a short time later the spray took effect and he was de-contaminated by his friends. 17 Upon returning to the police station, Mr Brennan created a COPS event in which he outlined that police had attempted to move on several aggressive people from the area. They left the area and returned a short time later and, after several attempts to move the people on again and because of the aggressive behaviour of Mr Bishop, police warned Mr Bishop that he would be sprayed with OC. Mr Bishop continued to threaten police and bystanders by yelling out. Mr Brennan, thinking there would be a violent confrontation, discharged a one second burst of OC spray into Mr Bishop's face. Mr Brennan justified the use of the OC spray due to a "violent confrontation occurring". 18 Constable Maziarz had seen Mr Brennan spray Mr Bishop in the face with the OC spray. Together with Constable Wollard and Constable Howarth he asked Mr Brennan what he was doing but Mr Brennan did not respond and "laughed off" the question. During his interview, Constable Maziarz stated that he believed the use of the OC spray was unjustified. He referred to the handbook stating that using defensive sprays was the lesser lethal option for controlling people where violent resistance or confrontation occurred or was likely to occur. The youths were angry, aggressive and obnoxious but were not physically aggressive, obnoxious and confronting and Constable Maziarz saw no physical danger or threat to police. He also noted that there was a fence between the police and the youths of a type that was not easy to climb over. 19 Constable Wollard had been with Mr Brennan, Constable Maziarz and Constable Howarth walking towards the railway station and heard Mr Bishop say out loudly that he wanted to ask a question and that Mr Brennan had told him "fuck off and go away". Mr Brennan was approximately five metres away from Mr Bishop with the fence between them and he had his canister of OC spray out of its holder. When Mr Bishop saw Mr Brennan with the spray can out of its holder, he put his hands up, walked backwards, stating that he just wanted to say something. Constable Wollard then saw Mr Brennan walk towards the fence and spray Mr Bishop in the face and kept spraying as he was walking towards the fence. Constable Wollard saw nothing which would give rise to Mr Brennan using his OC spray. She stated that there was no confrontation or anything else, that Mr Bishop had his hands up and was walking backwards with Mr Brennan walking forward. Mr Bishop merely wanted to ask a question and, although he had been told to leave, his behaviour did not justify using the OC spray. She was of the view that there was "no imminent danger of a violent confrontation or anything like that". On returning to the station, Constable Wollard spoke to Mr Brennan and informed him that there was no justification for spraying Mr Bishop. Mr Brennan responded that there was a violent confrontation between them. Constable Wollard then informed Mr Brennan that he needed to make better decisions. This was acknowledged by Mr Brennan. 20 Constable Howarth was with Mr Brennan when a group of people came from the railway overpass. Both she and Mr Brennan had their OC sprays out of the holders because the group had already "been violent and argumentative with police". The two of them confronted the group behind the fence, with Mr Bishop standing behind the fence with his hands up implying that he wanted to ask a question. He kept saying, "No, no, no," with his hands up. Mr Brennan walked towards Mr Bishop and pointed his canister of OC spray in the air at him and continually repeated, "Move, or I'll spray you, move or I'll spray you". As Mr Brennan walked towards Mr Bishop, Constable Howarth saw Mr Bishop take a step back saying, "No, no, no". Mr Brennan then sprayed him in the face. Constable Howarth challenged Mr Brennan about the use of the OC spray but he continued to say to her that there was a "violent confrontation". 21 At the police station after the incident, Sergeant Sarina spoke to Mr Brennan about his use of the OC spray on Mr Bishop. Mr Brennan said that Mr Bishop had been coming towards him but the conversation was interrupted by another officer, Acting Inspector Timothy Calman, who said he saw Mr Brennan use the spray through the fence although Mr Bishop could not get to him. Mr Brennan replied that the fence ended near where he stood, using his arm to indicate approximately half a body length away from him. Mr Brennan said he thought that due to the circumstances he was justified to use the spray. 22 Mr Tyson Olling gave a statement and said that Mr Bishop was telling police about his mobile telephone when he saw an officer spray Mr Bishop in the face with capsicum spray. Mr Bishop was standing approximately one metre from the police and they were separated by a fence. Mr Steven Whitelaw approached the fence and heard Mr Brennan say to Mr Bishop that he had told them not to come back, to which Mr Bishop replied that he wanted to get his mobile telephone. Mr Brennan swore at Mr Bishop and told him to go to the other side of the station and not to come back over this side. Mr Bishop again told Mr Brennan that he wanted to get his mobile telephone and requested a police escort to the Leagues Club at which point he saw Mr Brennan spray Mr Bishop with capsicum spray. It was then recorded that statements by Constable Gray and Constable Ragen supported evidence provided by other witnesses. Acting Inspector Calman discussed the issue with Mr Brennan who had told him that he had used the OC spray because he was in fear of a violent confrontation. 23 A statement was also taken from Sergeant Conway of the Operational Safety Training Unit regarding the use of OC spray. Sergeant Conway outlined the circumstances in which OC spray might be used as being the protection of human life, a less than lethal option for controlling people where violent resistance or confrontation occurred or was likely to occur and in protection against animals. In his view, Mr Brennan's actions had to be measured against the provision that the spray was to be used as a less than lethal option for controlling people where violent resistance or confrontation occurred or was likely to occur. He understood the confrontation that took place could be considered "low key" at best, if it was indeed occurring at all. He noted that the person sprayed was in fact attempting to ask a question. Sergeant Conway expressed the opinion that, based on the documentation supplied to him, the use of the spray in this particular instance was not "in accordance with police training and was not appropriate in the circumstances". 24 The Brief to the Commissioner of Police then noted that, on completion of the investigation, the Investigator made an adverse finding against Mr Brennan and determined that a prima facie case existed that Mr Brennan had assaulted Mr Bishop and that the use of the OC spray was excessive and unjustified. On 26 August 2005, Mr Brennan provided a document in response to the allegations. In relation to Mr Bishop, Mr Brennan stated that a verbal altercation occurred between police and a number of males, including Mr Bishop, and that he instructed Mr Bishop to leave the area on a number of occasions. Mr Bishop continued to become more and more aggressive towards Mr Brennan and was given a final instruction to move back or else he would be sprayed. Mr Bishop continued to be aggressive and then was sprayed by Mr Brennan with a one-second burst of capsicum spray "in order to prevent a violent confrontation occurring". Mr Brennan said that the use of force in this instance, in his personal view and experience as a police officer who had received specialist training in this area, was necessary to reduce further violent confrontation with offenders. Mr Brennan said that he would use the same amount of force to quell a situation in future, if required. It was submitted that Mr Brennan had breached the New South Wales Police Code of Conduct and Ethics. 25 Under the heading "Additional Information", it was recorded that, in late March 2004, Mr Brennan was assessed by the Police Medical Officer ("PMO"). Mr Brennan advised the PMO that he had previously consulted his local doctor and a psychologist who had diagnosed him with a psychological condition and had prescribed medication. Due to his condition, he had reported sick between February and March 2004. The PMO advised that Mr Brennan was suffering from a psychological condition and that there were residual symptoms and signs that required treatment. Prognosis was uncertain at that stage. On 8 June 2005, as a result of the incidents on 22 May 2005, Mr Brennan attended his consulting psychiatrist who stated: As of this date he is not suffering from any psychiatric condition which would prevent him from carrying out full operational police duties. Any behaviour which may have led to criticism of Mr Brennan are not a reflection of psychiatric illness . 26 On 9 June 2005, Mr Brennan was assessed by the PMO who acknowledged that Mr Brennan had previously been diagnosed with Post Traumatic Stress Disorder ("PTSD"): ... he did not have symptoms that suggested that he has a current depressed or anxious mood indicating that this treatment is appropriate. There were minimal symptoms suggestive of PTSD. This officer does not appear to have a psychological basis for his response to the events as noted in the referral. His actions should be the subject of administrative review .

The PMO certified Mr Brennan fit for full duties upon obtaining a fitness certificate from his treating psychiatrist. 27 A number of matters were briefly referred to under the heading "Previous Complaint Matters". Under this heading it was noted that, on 7 June 2005, Mr Brennan had been served with a Commander's Warning Notice and on the same date had entered into a Conduct Management Plan for a period of 12 months with monthly reviews. That warning noted that he should clearly understand that continued unsatisfactory conduct and/or performance of duties could result in further management action which might entail consideration of reviewable action under s 173(2) of the Police Act or removal under s 181D of the Police Act. 28 Five file matters were identified as resulting in the warning. The first matter related to an overseas trip in May 2004 where, shortly after his return, Mr Brennan boasted to other officers that whilst in Amsterdam he consumed cannabis and also while overseas had worn a component of his police uniform without authorisation, namely, police issue pants with zipper pockets. In November 2004, he had failed to attend Campbelltown Local Court where he was an informant in a matter and, as a result of his failure to attend, the matter was dismissed. In June 2004, the Constable was untruthful to a Sergeant when questioned as to the duration of an appointment with a claims officer and an adverse finding was recorded. In April 2004, the Constable was rude and unprofessional to another officer, was untruthful to the investigator when interviewed in relation to the matter: an adverse finding was made against the Constable. In March 2004, the Constable breached the Code of Conduct and Ethics by disclosing confidential information to another officer about an alleged internal complaint and an adverse finding was made against him. In June 2004, outside a local court the Constable breached the Code of Conduct by disclosing confidential information to numerous officers about an alleged internal complaint: an adverse finding was made against the Constable. In February 2004, the Constable failed to create or maintain departmental records and follow Police standard operating procedures when attending a motor traffic accident by failing to subject the person to a roadside breath test and failing to record any details in relation to the matter and an adverse finding was made against him. 29 The Brief to the Commissioner of Police noted that, in 2001, the Constable had received a letter of appreciation for the professional manner in which police conducted themselves during a domestic dispute. In 2002, he was awarded an Outstanding Service badge by Wollongong City Council for his dedication and actions during the Christmas 2001 bushfires. In 2003, there was a Regional Citation in recognition of professional police work, involvement and support in the effort to preserve life and property during the December 2001 and January 2002 bush fire emergency. In 2004, there was a complimentary remark received from Detective Sergeant Berry commending Mr Brennan for the exemplary manner in which he carried out his duties during the Country Music Festival. In 2004, there was a complimentary remark recording appreciation for Mr Brennan's assistance during the Tamworth Country Music Festival in 2004. 30 The New South Wales Police Code of Conduct and Ethics stated that the purpose of the Code was to set standards of behaviour and provide guidance in ethical decision-making for all employees of the New South Wales Police service. Under the sub-heading of "Failure to Comply" it was stated: If you fail to comply with this Code or any other lawful directive, you will be asked to explain your actions. Should your conduct be contrary to the Code's requirements, you might be subject to a range of managerial actions under the Employee Management Scheme, up to removal from NSW Police.

Later in the Code, under the sub-heading "Criminal convictions", the following was stated: If a criminal charge is brought against you, a mandatory nomination under s 181D (Loss of Commissioner's Confidence) of the New South Wales Police Act will be commenced. This may result in your removal from NSW Police. Examples include offences such as dishonesty, assault, unlawful access to use of confidential information, supply/or use of illegal drugs, offences involving the prescribed concentrations of alcohol or driving under the influence of alcohol or other drugs.

This document was part of the attachments to the Commissioner's Confidence submission ("the Brief") supplied to Mr Brennan. 31 Solicitors acting for Mr Brennan forwarded a submission to the Commissioner in early July 2006. In that document, Mr Brennan made it clear that he remained of the firm belief that he had acted appropriately in the execution of his duties on 22 May 2005, notwithstanding the convictions for common assault. He announced that he intended to vigorously pursue the appeal process and remained confident that his actions would be vindicated by the District Court. 32 Mr Brennan pointed out that while the incident had occurred in late May 2005, he had been suspended since 26 August 2005 which had left his life "in limbo" for a lengthy period of time. He found it difficult to move on in any meaningful way because he did not know what his employment situation might be. He stated that he was committed to remaining a member of the New South Wales Police service and had therefore not sought alternative employment, but the uncertainty surrounding his career had caused him and his family considerable hardship and anxiety. 33 Mr Brennan expressed concern that relevant matters going to his conduct, credit and integrity would not be given due consideration and urged the Commissioner to contact his colleagues and superior officers who would attest to the fact that he was a hard worker dedicated to service within the New South Wales Police service. In particular, he requested the Commissioner to contact Sergeant Sarina, his first training officer and someone who had observed him throughout his career in the Police service. Sergeant Sarina had initially offered to provide a reference but was unable to do so on the advice of superior officers within the Force. The Commissioner of Police was also asked to contact Senior Constable Cath Sadler with whom he had worked closely. He attached five references from members of the community who were able to speak of his character and contribution to his community. Those references were from a Correctional Centre supervisor, an Assistant Superintendent of the Department of Corrective Services, a retired Sergeant, a Principal of a public school and a Minister of Religion. While some of those references spoke of more recent acquaintance, others spoke of a long association and all spoke highly of Mr Brennan's honesty and integrity and his reliability. He had been a member of the school P & C and had been involved in a number of projects around the school. 34 The submission for Mr Brennan then made the point that a complete transcript of court proceedings had not been placed before the Commissioner of Police for his consideration. Mr Brennan stated that he believed the evidence given during the court proceedings painted a very different picture from that contained in the statements in the Brief: the Commissioner was urged to consider the oral evidence given by each witness during the course of the hearing and in the course of cross-examination by his counsel. The Magistrate had found that a number of the witnesses were too unreliable to place weight on their evidence and it was therefore submitted that it was imperative that the Commissioner consider the transcript of the Court proceedings. 35 Prior to joining the Police service, Mr Brennan said he had been employed by the Ambulance Service and the New South Wales Corrective Services. He had served for six years as a prison officer immediately before joining the Police service. Since joining the Police service he had performed not only general duties but had also obtained more specialist training: he was seconded to particular police operations, had received training as an operational safety trainer and had successfully completed the Operations Support Group course. He had also worked from the Detectives' office. Mr Brennan then referred to a number of congratulatory letters and recommendations, a summary of which appeared in the Commissioner's Brief. In addition, he referred to his community service: he had performed voluntary work, in particular between 1985 and 1992 with the Rural Fire Brigade; between 1995 and 1996 as the State Emergency Service Local Area Controller; holding the position of Vice-President of his local School P & C since 2005 and continuing; being the coach of a junior rugby league football club since 2005 and ongoing; and being involved in maintenance work at the local school since 2005 and ongoing. He had played sport, including baseball, with the Country region between 1994 and 1999, with the Illawarra region between 2002 and 2005 and, since 2006, had been rugby league coach for an under-nines side. 36 In relation to the Notice served upon him, Mr Brennan said that he felt restricted in providing full and complete responses because of the ongoing court proceedings although he accepted that he had been found guilty of two charges of common assault (but had not yet been sentenced) nor had he had the opportunity of filing an appeal. He stood by the evidence he gave in the Local Court and stated that he believed he had conducted himself during the events of 22 May 2005 while under pressure and in accordance with his training, to the best of his ability in the circumstances as he perceived them to be at the time. 37 In relation to his post-traumatic stress disorder, Mr Brennan said he began experiencing symptoms in 1992 which became progressively worse as a result of horrific incidents he was involved in during his employment with the Ambulance Service, Corrective Services and later with the New South Wales Police service. He believed he was suffering from this condition in May 2005. He recorded that, on the night before that incident, he dealt with an offender who spat in his face and was reprimanded by his Commander for allowing the situation to escalate to that point and also for not using his OC spray prior to that assault. He said he was concerned not to become involved in any further situations that might continue to haunt him as had occurred with previous occurrences of the disorder. The Commissioner was again asked to defer making a decision until the District Court had dealt with the appeal or, at least, until he was sentenced in the Local Court in September 2006. 38 In relation to the Superintendent's Warning Notice issued in June 2005, Mr Brennan stated that he did not receive the opportunity of challenging those findings at the time. Notwithstanding that problem, he had successfully completed all the terms of the Conduct Management Plan and had become more determined not to adversely come to the attention of his superior officers. 39 The submission then addressed hardship flowing from the fact that Mr Brennan was initially confined within the workplace in that he was not permitted to work with officers who were witnesses in the May 2005 incidents. In late August 2005, he was suspended from duty on pay but felt unable to use the following 12 months to pursue another occupation. He had spent his time providing many hours of voluntary work but, because he was not eligible for overtime, relieving duty, shift penalties and holiday penalties there was a financial strain felt. He estimated his reduction in income over the past 12 months had been in excess of $8,000. His career also suffered a setback because he lost the accreditation for operational safety training. He incurred significant expenses in defending the charges and anticipated further expenses in pursuing the appeal. He lived with his partner, had four small children to support and a mortgage repayment of over $3,000 per month. THE DECISION IN THE LOCAL COURT 40 In the Local Court on 27 June 2006, his Honour, Magistrate Bartley, delivered a lengthy judgment in which he closely analysed the evidence. The hearing had occupied some 11 days between 27 March 2006 and 18 April 2006. As already indicated, judgment was delivered on 27 June 2006 when Mr Brennan was found guilty of the two offences. Sentencing took place on 4 September 2006. 41 The Magistrate firstly described the situation confronted by two police officers at approximately 2.00 am on 22 May 2005 near the entrance to the Leagues Club at Leumeah. There, two groups of youths confronted each other with five or six people in the smaller group. The police officers arrived when the groups had moved quite close together and where there was "a fairly heated situation" and, at that time, "a potential for violent confrontation" between them. Each group complained of prior assaults by the other group and a police officer called for urgent assistance because she feared a brawl would break out. That officer witnessed Mr Robert Bishop being punched on the nose by a person from the larger group. The larger group then moved forward and two officers stepped in between them and engaged them in conversation. The tension was apparently heightened by a well-meaning security guard from the Leagues Club who removed the person responsible for punching Mr Bishop. This action made the larger group feel aggrieved because the police officers who were present had effectively ignored an assault that had occurred in front of them. 42 One of the officers was confronted by a tall male from the larger group who was told he could not walk up the road and was told so several times. The officer held his torch across the chest of this person which caused the group of males to become agitated. It was thought they were waiting to see what the officer would do to this tall male. The officer formed the view that there was potential for this incident to get out of hand and he called on the police radio for urgent assistance. The officer noticed one person, Mr Robert Bishop, who was "firing up". The male person pressed forward so that the officer's torch was against his own chest - the group was waiting to see what would happen and that was when the view was formed that there was a potential for violent confrontation. The officer was afraid that if he tried to control the tall male, the crowd would become involved. However, when police reinforcements arrived including the dog squad, the atmosphere changed when the crowd realised they would "lose" if they tried to do anything. 43 The Magistrate, on this evidence, concluded that relatively early in the incident the real potential for further violence between members of the large group and the police officers ceased. This was regarded as the high point of the defence case that there was a potential for physical violence from members of the larger group towards the police. For the remainder of the night the aggression was solely verbal, not physical, and there was no evidence of threats of physical violence towards police officers. 44 It was recorded that Constable Howarth and Constable Wollard said that when they arrived outside the Leagues Club, both groups were yelling at each other and were intoxicated, yelling and stumbling. A member of the group gave evidence that both Mr Bishop and Mr Jones were swearing at police. One officer described Mr Bishop as a "loud mouth" and, while she heard members of the group generally swearing, she did not see any of the young persons being physically aggressive towards police. Probationary Constable Maziarz was considered to be an important witness. He said that the youths were yelling at police, were verbally aggressive and had even abused the police dog. Some of them were intoxicated and the level and pitch of their voices yelling and screaming at the police led him to believe that they were being aggressive. The police followed the group towards Leumeah Railway Station, during which time they continually screamed abuse, predominantly directed at the police officers. Constable Maziarz believed that the group was trying to anger police into initiating a fight with them and described Mr Bishop as the "ringleader" of the group. 45 The Magistrate accepted the following evidence of Mr Brennan: as police approached the group outside the Leagues Club each group swore at the other and Mr Bishop was the main agitator of the larger group. Five members of the group including Mr Jones and Mr Bishop told police to "fuck off". Mr Jones swore at all the police and told police officers to "fuck off". In cross-examination, Mr Brennan agreed that he did not see any brawl between the two groups, but members of the large group were aggressive towards police only in their language and offensive by acting in an offensive way towards the police. These matters were treated as establishing the scene for the two incidents that followed involving Mr Brennan. 46 Mr Brennan's evidence before the Local Court was that, near the top of the stairway, he asked Mr Jones whether his can of drink was open and, after Mr Jones had replied no, he then took a drink from the can which spilt onto Mr Brennan's left elbow and forearm. Mr Brennan said that he told Mr Jones that he was under arrest for consuming alcohol on a railway station or on railway property, grabbed the can out of Mr Jones's hand, then grabbed Mr Jones's left arm with his right arm. He did not obtain details from Mr Jones on the stairs because it was an awkward sloping spot but took hold of Mr Jones in order to later give him an infringement notice for consuming alcohol on railway property. To that end, he walked Mr Jones to the top of the stairs where Mr Jones began to pull away. He retained his hold on Mr Jones. At the top of the stairs, Mr Brennan said that Mr Jones turned right to leave back down the stairs. He lost his grip on Mr Jones, came in front of Mr Jones grabbing his right arm with his own left arm. The result was that both Mr Brennan's arms then held Mr Jones's right arm. Mr Brennan said that he pulled Mr Jones towards the elevator door, into the doors and pulled him by his right arm. At the doors, he told Mr Jones that he was under arrest, to face the wall and that he intended to get Mr Jones's details to give him an infringement notice but, because Mr Jones resisted, he handcuffed him, took him downstairs and put him in the police vehicle. Mr Brennan denied pushing Mr Jones into the lift doors a second time and head butting Mr Jones. 47 When he returned to the police truck to remove Mr Jones he told Mr Jones to come out, to pull his head in and not to be a smart arse to the police in front of his mates. The Magistrate noticed that Mr Brennan said nothing about "don't resist police" and "don't drink alcohol on railway property". His Honour determined that those omissions lent support to the inference he drew that it was Mr Brennan's anger at Mr Jones back-answering, his defiance and being a "smart arse" that was on his mind and that was the reason he apprehended Mr Jones on the stairs at the railway station. 48 The Magistrate noted that, on the second last day of 10 days of evidence, Mr Brennan had then remembered that, at the top of the stairs, Mr Jones threw his arm out and that was how Mr Brennan lost his grip. Mr Brennan explained that was how he lost his grip and that ".... there's no other way". The Magistrate noted that this was the first time that evidence had been given and that it was not put in cross-examination to Mr Jones or Constable Maziarz. He described it as a "reconstruction and worthless". The Magistrate concluded that this was an example of the accused's evolving memory, the changing of his evidence and his instructions during a two-week hearing. He also noted that Mr Brennan had arrested Mr Jones to separate him from the other group who were at the base of the western staircase but that group was in the car park. This was found to be another of several instances of Mr Brennan making-up his evidence as he went along, and trying to tailor his evidence to meet what had emerged during the hearing or what was being put to him. 49 The Magistrate, by reference to a number of answers given by Mr Brennan, drew the inference that the fact that the can was open on railway property was not the reason Mr Brennan arrested Mr Jones. In cross-examination, Mr Brennan admitted that Mr Jones was almost off the railway structure and that he could have simply asked him to move on. The answers given immediately after that comment led the Magistrate to infer that Mr Brennan arrested Mr Jones because he had made him angry and that he had not arrested him for the alcohol offence. It was inferred that Mr Brennan was angry because Mr Jones was untruthful to him, defiant and had spilt the drink on him. The Magistrate found that Mr Brennan's anger was at a significant level by the time he reached the overpass because of the abuse and recalcitrance of the members of the group from the time he had encountered them outside the Leagues Club. 50 In cross-examination, Mr Brennan agreed that he may have taken Mr Jones up the stairs two at a time and also agreed that, from the time Mr Jones went down from the top of the western staircase until the time he was back at the top of the staircase with Mr Brennan was eight seconds. The Magistrate found that Mr Brennan took Mr Jones up the stairs "very quickly" and found there was no resistance by Mr Jones at the top of the stairs or from the first moment of apprehension on the stairs. 51 In further cross-examination, Mr Brennan said that he and Mr Jones got to the lift doors at approximately the same time. However, the CCTV footage demonstrated that account to be incorrect. The Magistrate found that the throw of Mr Jones by Mr Brennan into the lifts was a deliberate throw, using "very excessive force". He rejected Mr Brennan's evidence that he handcuffed Mr Jones because he might otherwise escape, finding that Mr Jones did not resist at any stage up to when he first hit the lift doors. Mr Brennan gave another reason to handcuff Mr Jones, namely, because he was concerned that Mr Jones would return to the group, thereby adding another person to the group. It was another example of him making up evidence as he went along in cross-examination. No details were taken from Mr Jones because Mr Brennan had left his notebook at the station. Mr Brennan, however, did not ask to use a notebook or that a piece of paper be given to him for that purpose by other officers present. The Magistrate found that he did not intend to take Mr Jones's details and did not intend to remove Mr Jones to a different location at the top of the stairs or beyond for the purpose of obtaining those details. 52 It was noted that the prosecution did not submit that the arrest on the stairs was illegal but, rather, that it was inappropriate. The Magistrate accepted the prosecutor's submission that Mr Brennan should have instructed Mr Jones to go to an appropriate place where a court attendance notice could have been issued. The officer should have informed Mr Jones what was happening and should have communicated with Mr Jones. The force used during the incident was excessive considering the nature of the offence, namely, having an open can of alcohol on a railway station. It was also excessive having regard to Mr Jones's age, build, characteristics and the fact that he had actually not resisted the police at all. The Magistrate also accepted the prosecutor's submission that the case law was clear that an arrest should be used as a last resort and that it was clear that Mr Brennan did not at any stage attempt to issue Mr Jones with a penalty notice or court attendance notice. The Magistrate then stated that Mr Brennan was acting outside the execution of his duties when he pulled Mr Jones up the stairs: such force was excessive considering the nature of the offence was only a penalty notice matter. The force was excessive because Mr Jones did not resist prior to hitting the lift doors. The Magistrate was satisfied beyond reasonable doubt that Mr Brennan had assaulted Mr Jones from the time he grabbed him on the stairs to the time that Mr Jones first struck the lift doors at the top of the overpass. The Magistrate however was not satisfied beyond reasonable doubt of the allegations of other incidents at the lift doors or alleged assaults elsewhere. The assault found had ended when Mr Jones first struck the lift door. 53 In relation to the first incident and the second incident, the Magistrate found that Constable Maziarz was a completely honest witness and that his evidence was generally cogent although there might have been a secondary inconsistency in that evidence and in relation to the second assault. While on the stairs Constable Maziarz heard Mr Brennan call Mr Jones "a smart arse" and said to him "You don't do that at the train station". He saw Mr Brennan grab Mr Jones by his clothing at the back of his neck, pull him up the stairs and saw a can of alcohol flying out of Mr Jones's jacket. Constable Maziarz said Mr Brennan threw Mr Jones into the elevator doors in an action he described as a "lift and throw". This happened very quickly and Mr Jones hit the door with considerable force. When Mr Jones hit the doors he heard a thud. Constable Maziarz did not see Mr Brennan throw Mr Jones against the lift doors a second time nor did he see Mr Brennan being rough with Mr Jones at the police truck nor did any other police officer. Constable Maziarz said that during the incident he did not see Mr Jones struggle. 54 The Magistrate found the CCTV film of the events at the top of the stairs cogent and compelling. He accepted the prosecutor's submission describing the manner in which Mr Brennan threw Mr Jones into the lift doors and that the action was "deliberate, intentional and excessive". 55 The second offence, involving the use of OC spray on Mr Bishop, was an action not genuinely taken in self-defence by Mr Brennan but, rather, was an action taken in anger. It was accepted by the Magistrate that there was substantial provocation by Mr Bishop that was described as "protracted, recalcitrant, offensive and obnoxious conduct". 56 The Magistrate found the evidence of Senior Constable Wilson of the Dog Unit to be given honestly and that he was a reliable witness as to what he had seen and heard. The Senior Constable gave evidence about seeing a large crowd of intoxicated people outside the Leagues Club and saw a small number of scuffles between patrons outside the Club. He saw a small number of people intoxicated and arguing with police. He described one person in the front of the group as "the antagoniser" who was very, very loud, shouting at police and refusing to move. It was agreed by the parties that this person was Mr Bishop. This person was described by the Senior Constable as being extremely intoxicated, swearing, being aggressive towards the police and refusing to move. Mr Bishop was not physically aggressive towards the police but was very loud, obnoxious and verbally aggressive. His arm movements and gestures were aggressive. This person attempted to return to the Club a number of times, was stopped and was ushered towards the railway station. While the group moved over the railway bridge, Mr Bishop continued to be aggressive and attempted to return to the Leagues Club. The Senior Constable did not think he was as aggressive at this stage. Mr Bishop gave evidence that, near the Club, he called the police "fuckwits" on more than one occasion and had said to the Senior Constable "Fuck your dog off". 57 Constable Gray gave evidence about a person the Magistrate inferred was Mr Bishop, saying that person appeared to be the "instigator" of the group and was yelling and swearing and the group appeared to rally around him. He was swearing a lot at the police presence and Constable Gray decided that, if he was removed from the group, it might quieten them down. He then told the dog handler that he was going to arrest Mr Bishop for offensive language. Constable Gray called the person over, spoke to him and told him he was coming extremely close to being placed under arrest for offensive language. Mr Bishop's attitude then changed completely from when he was with the group and there was a lot of "Yes sir" and "No sir" and he showed no sign of the verbal abuse he had shown with the group. Constable Gray determined that Mr Bishop understood what was being said to him and what he should and should not be doing. He told Mr Bishop to take his group and leave. Mr Bishop walked back to the group and they began to leave the area. Mr Brennan gave evidence that Mr Bishop was the main agitator. The Magistrate found that had he greatly agitated Mr Brennan. 58 The CCTV footage showed four members of the group returning from the west to the east side of the railway station at about 2.30 am. Senior Constable Williams warned over the police radio that one of them was "fairly aggro", referring to Mr Bishop. Senior Constable Wilson said that Mr Bishop was very intoxicated, very loud, very obnoxious and swearing but was not as aggressive as he had been originally. Mr Brennan heard the radio warning given by Senior Constable Wilson. There was supporting evidence that Mr Bishop had received a telephone call that his mobile telephone had been found at the Club which evidence was not contested in cross-examination. 59 From the CCTV footage, the Magistrate was able to follow the path of the four people as they came back from the station, turning left up a small set of stairs and walking north along the footpath where there was a green iron fence to their right. It was agreed that fence was 1.01 metres high. Constable Maziarz said it was not easy to get over that fence and that evidence was accepted by the Magistrate. Mr Bishop came to the fence and Mr Brennan approached and discharged a one second burst of spray which struck Mr Bishop in the face. The Magistrate noted there was considerable difference in recollection as to whether Mr Bishop was leaning over the green fence at the moment he was sprayed or whether he had taken part of a step or one or two steps backwards. Ultimately, the Magistrate could not find beyond reasonable doubt that he was other than at the fence which was the location contended for by defence counsel. Mr Brennan said he was approximately 1.5 metres back from the fence when Mr Bishop was at the fence. That evidence was broadly consistent with most of the witnesses and accepted by the Magistrate. Mr Bishop's evidence was that he wanted to get his mobile telephone and was swearing at Mr Brennan, calling him a "fuckwit" and a "dickhead" when Mr Brennan told him to move on or he would be sprayed. Mr Bishop said that he told the officer that he only wanted his mobile telephone and was then sprayed. Evidence from other witnesses in the group confirmed that, at the time, Mr Bishop was swearing and had been swearing at Mr Brennan. There was evidence that was unchallenged that Mr Brennan had been told that Mr Bishop wanted to return to the Club to get his mobile telephone. 60 Constable Maziarz heard Mr Brennan say "If you don't go away, I'll spray you", but he did not recall what the youths were yelling at the police. He said that there was no violent resistance, just yelling. He did not recall the conversation about the mobile telephone and said that Mr Bishop took one or two steps back with his palms out when the spray was pointed at him and then sprayed. At that time, Mr Bishop and Mr Brennan had been talking and arguing. Mr Bishop's hands were out at chest height, he was non-threatening and was using his hands in the nature of body language. He was talking and arguing with Mr Brennan at the time the spray had been pulled out, extended and poised for use. Another Constable said that Mr Bishop took at least one step back before being sprayed. Constable Maziarz saw no violent resistance, just yelling but, when approaching the fence yet well back from it, he did pull out his canister of spray because he then thought there was a likelihood of confrontation but said that likelihood receded as he approached. On approach, he observed the group to be noisy and aggressive but not committing an offence. As he got closer, his assessment was that the prospect of violence changed to verbal aggression. That evidence was accepted by the Magistrate. 61 The Magistrate was critical of evidence given by Mr Brennan about the first time he heard Mr Bishop say to Mr Jones "They're not going to get away with this, let's get them", referring to the smaller group. It was noted that Mr Brennan had no explanation why this was first mentioned in his evidence before the court and why no cross-examination took place when this conversation was put to those involved. During cross-examination, Mr Brennan said that he had not previously recalled that conversation but he had time to think about it during the proceedings and it occurred to him when he was travelling home by train the previous day. The Magistrate was critical of this evidence and found that it was a fabrication. The Magistrate said that he found, in many respects, Mr Brennan made up his evidence as he went along regardless of the truth of the evidence. 62 Within two and a half hours of the events, Mr Brennan had made the standard police report in which he stated that the police were threatened by the four men at the fence. He agreed that he did not tell the court that they had threatened anyone and did not remember it but he thought that his statement at the time was a better record. The Magistrate noted that there was no other evidence of such a threat and he rejected that evidence. A further statement, however, provided by Mr Brennan in late August 2005 contained the assertion that a male at the fence said "Fuck off, we're going to get them. They're not going to get away with this". Again the Magistrate rejected that evidence and noted that it was not put to any of the three men who had returned to the eastern side of the railway and who gave evidence in the Local Court. The assertion was found to be nothing but the provision of a false justification for spraying Mr Bishop. 63 In his evidence in the Local Court, Mr Brennan said that the body language and verbal language of Mr Bishop amounted to aggression and also amounted to a threat which was why he sprayed him. The group of men was swearing and yelling at him. He said to Mr Bishop "Move back or I'll spray you". Mr Bishop swore and so Mr Brennan sprayed him - Mr Bishop was aggressive in his demeanour and attitude, was leaning slightly forward over the green fence and waving his arms. Mr Brennan agreed that he saw no weapons and no evidence of any weapons. He also agreed that, since the four men were not moving towards the Leagues Club, the presence of the police was having its effect. He agreed that Mr Bishop was not threatening him but that he was full of abuse. Mr Brennan said he thought Mr Bishop might attack him or Constable Maziarz, or another group on the other side of the roundabout. This was a group of two or three males. That evidence had not been mentioned by Mr Brennan in-chief and no explanation was given for that failure. The existence of another group was not put to five other officers in evidence and the Magistrate inferred that the existence of that group was fabricated and a recent invention. The CCTV footage also made it clear that there was no exchange between the two groups as stated by Mr Brennan. 64 A considerable amount of evidence was scrutinised relating to precisely where Mr Bishop was standing at the fence. Mr Brennan's evidence was that Mr Bishop had moved towards the end of the fence with two others in his group so that he was between the first and second posts of the fence. That position was never put to other witnesses. Mr Brennan said that, after he sprayed Mr Bishop, Mr Bishop moved to the right. The Magistrate pointed out that, if that had occurred, Mr Brennan would have been safe, moving to the left so that he could not easily be attacked by Mr Bishop. Mr Bishop moved to the right because he assessed there was no threat of being "got at" quickly. Mr Brennan had moved to the right after spraying him because he assessed there was no risk of being easily "got at" by Mr Bishop. This placed Mr Bishop at the very end of the fence. Mr Brennan was of the view that Mr Bishop could either quite easily have scaled the fence or gone around the northern end, but he also agreed that Mr Bishop made no move to do so. He believed that Mr Bishop was going to jump the fence or go around it, so he sprayed him. While agreeing that Mr Bishop made no such move, Mr Brennan also agreed that it would take Mr Bishop a couple of seconds to scale the fence. He disagreed that, if Mr Bishop was leaning against the fence as Mr Brennan said he was, in order to scale the fence, Mr Bishop would need to shift his weight back, take a step back and put his hand on top of the fence to vault it. The Magistrate, however, found that such a manoeuvre would have been necessary. 65 Mr Brennan said that Mr Bishop was waving his hands around when he was sprayed and agreed that Mr Bishop would have needed to put his hands on the fence to vault it. The Magistrate found such an action would be ineffective and that Mr Brennan would have had enough time to take a step back had Mr Bishop made a move to scale the fence. In finding that Mr Bishop was between the third and fourth post along the fence, the Magistrate concluded that there was no question of Mr Bishop being able to go around the end of the fence quickly. In cross-examination, Mr Brennan agreed that Mr Bishop made no move to push down or get over the fence and that he was leaning forward on the fence. At no time did he move to get over the fence, although Mr Brennan said he had sprayed him to prevent him getting over the fence. In those circumstances, he maintained he was acting in self-defence. He agreed that he was a safe distance away from Mr Bishop and that Mr Bishop had made no move towards him although he was leaning up against the fence waving his arms around and behaving aggressively. Mr Bishop did not physically threaten Mr Brennan at the time nor did he say words to the effect that he was going to "get" him. He could not recall any threats of physical violence made towards himself by Mr Bishop. Although he did not see any physical force used, Mr Brennan said he had prevented the use of physical force. He understood the spray was used for defensive purposes and was available to defend himself or someone else, that he was not allowed to use it to threaten a person: he did not threaten Mr Bishop but had told him to move back or he would be sprayed. He agreed there were other police officers nearby. The Magistrate referred to police training that the spray was not to be used as punishment or as a threat to enforce directions: the tactical option model taught police to communicate, to continually assess and re-assess situations that were fluid and evolving and to diffuse situations wherever reasonably possible. 66 The Magistrate accepted the submission of the prosecutor that there were means available to Mr Brennan to de-escalate the situation with Mr Bishop. Mr Bishop could have been escorted to the Club to collect his mobile telephone or he could have taken Mr Bishop's details and, while the other police officers remained, escorted Mr Bishop and indeed, the four males back to the Club. Mr Brennan's refusal and lack of communication with the four males was contrary to his training and was clear evidence of the state of his mind at the time he sprayed Mr Bishop with the OC. Apart from swearing at police, there was no reasonable basis to consider himself under any physical threat from Mr Bishop: Constable Gray's evidence suggested that Mr Bishop was amenable to rational conversation. Mr Brennan's state of mind in using the spray was underlined by the way in which he dealt with Mr Jones and his failure to follow police training. The two incidents were separated by only fifteen minutes but, in that time, Mr Brennan failed to follow his training in failing to communicate with Mr Bishop and the other three males, failing to avoid a heated exchange or verbal argument and used the OC spray to punish Mr Bishop for swearing at him. 67 Ultimately, the Magistrate concluded beyond reasonable doubt that Mr Bishop was between the third and fourth posts from the northern end of the fence. It followed there was not a serious risk that Mr Bishop could get around the northern end of the fence quickly to attack Mr Brennan. The Magistrate stated that Mr Brennan gave false evidence as to where Mr Bishop stood which was a recent fabrication for the purpose of bolstering his case that Mr Bishop could have easily attacked him by going around the fence. The Magistrate concluded that, in considering the evidence and drawing inferences, much of Mr Brennan's evidence was practised, rehearsed or learned. He was an unimpressive witness who was untruthful in many respects. He found that Mr Brennan did not believe that his conduct was necessary to defend himself, and concluded that there was no reasonable possibility that Mr Brennan believed his conduct was necessary in order to defend himself when he sprayed Mr Bishop. There was a further conclusion that the Crown had negatived self-defence by proving beyond reasonable doubt that Mr Brennan did not genuinely believe that it was necessary to act as he did in his self-defence. 68 In sentencing Mr Brennan on 4 September 2006, the Magistrate revisited the essential findings that led to the charges being made out, noting that Mr Brennan's anger was already at a significant level by the time he reached the overpass because of the abuse and recalcitrance of members of the group from the time they had been encountered outside the Leagues Club. The provocation from the single insolent answer of Mr Jones did not significantly mitigate the sentence but there was some, not much, mitigation of sentence arising from the abuse and recalcitrance of Mr Jones's group prior to the first offence. He stated that Mr Brennan had sprayed Mr Bishop in anger because Mr Bishop had not moved back as directed and because Mr Bishop was very abusive towards him. The Magistrate noted that, as professional law enforcement officers, police officers must not let their anger get out of control, as it had with Mr Brennan when he used the capsicum spray. Here, an aggravating feature in each offence was the use of actual violence. Another aggravating feature was that Mr Brennan used his position of trust and authority in relation to each victim. It was also relevant that he was one of the most senior officers at the scene. A further aggravating factor was the use of a weapon, namely, the capsicum spray, a weapon issued specifically to police officers. 69 Mitigating factors in relation to both offences were Mr Brennan's clean criminal record, a significant future loss of income and entitlements from the loss of his secure and relatively well-paid position as a police officer, his age of 36 years and his good character. Those matters were significantly derogated by reason of the intentionally untruthful evidence he gave during the defended hearing. Further, Mr Brennan showed no contrition and stated that he still believed he had conducted himself in an appropriate manner at the time of offences. The following mitigating factors were identified: the injury, the emotional harm, loss or damage caused by the offence were not substantial; the offence was not part of a plan to organise criminal activity; Mr Brennan did not have any record of previous convictions and he was unlikely to re-offend. While the Magistrate did not consider that the offender was provoked by the victim, he made significant allowance in mitigation for the prior abuse and recalcitrance of the group. In relation to Mr Bishop there was no evidence of ill-effect of the spray. In considering these matters, Mr Brennan was convicted: instead of imposing a sentence of imprisonment, a community service order for 220 hours was imposed in relation to the Jones incident, and a community service order of 130 hours was imposed in relation to the Bishop incident, to be served cumulatively at 350 hours. Although the Magistrate initially thought that each offence carried a maximum penalty in the Local Court of two years' imprisonment, the parties brought to his attention that the maximum penalty in each case was, in fact, 12 months' imprisonment. THE DECISION IN THE DISTRICT COURT 70 The appeal in the District Court was conducted on the evidence before the Local Court. In relation to the first offence involving Mr Jones, her Honour found that, although the arrest in the circumstances was "inappropriate", particularly given the nature of the alleged offence which was punishable by way of a fine only, her Honour was not prepared to find on the state of the evidence that the arrest was unlawful. Her Honour was not able to see from the CCTV footage exactly what happened on the stairs and was therefore not prepared to find that, whatever happened on the stairs, had involved the use of excessive force, which constituted an assault. Having viewed the CCTV footage, read all the evidence and having taken into account the advantage the Magistrate had of seeing and hearing the witnesses, her Honour was satisfied that, beyond reasonable doubt, after Mr Jones and Mr Brennan reached the top of the stairs Mr Brennan threw Mr Jones towards the elevator doors once. Her Honour found, beyond reasonable doubt, that this deliberate use of force was so excessive in the circumstances as to constitute an assault and therefore the offence was proved. 71 In relation to the incident involving Mr Bishop, her Honour accepted that Mr Bishop was at the fence at the time of his confrontation with Mr Brennan. It was also accepted that Mr Bishop was swearing and behaving in an abusive way. Her Honour was not prepared to find that Mr Brennan apprehended that the four men were returning to get the mobile telephone because Constable Maziarz did not recall any conversation about the mobile telephone. There was a real possibility that Mr Bishop was very intoxicated and was not particularly coherent. 72 Noting that the evidence was that OC spray was not to be used as punishment or as a threat to enforce directions and was to be used if there was violent resistance or confrontation occurring or likely to occur, her Honour stated that the question that had to be answered was not whether Mr Brennan behaved in the most appropriate way in the circumstances, but whether there was a reasonable possibility that he believed that his conduct was necessary in order to defend himself and, if there was, was there a reasonable possibility that what he did was a reasonable response to the circumstances as he perceived them. Her Honour stated that she had to be satisfied beyond reasonable doubt that the Crown had proved that Mr Brennan did not act in self-defence but found herself unable to be so satisfied. Her Honour accepted the sentiments expressed by Connor J in McIntosh v Webster (1980) 40 FLR 112, that arrests were frequently made in circumstances of excitement, turmoil and panic and that it was altogether unfair to the Police service as a whole to sit back in the comparative calm and leisurely atmosphere of the courtroom and make minute criticisms of what an arresting Constable might or might not have done or believed in the circumstances. It was acknowledged that the present circumstances did not arise in the course of an arrest. Her Honour noted that Senior Constable Wilson was concerned enough about the situation to warn police over the radio that the situation might escalate and he did so based on his contact with a very intoxicated, very loud, very obnoxious Mr Bishop a short time prior to the incident. Constable Marziaz was concerned enough about the situation to have his OC spray ready for use and, although he did not use it, he was further away from the situation than Mr Brennan. 73 Her Honour recorded the Crown's submission that Mr Brennan had behaved in anger and that anger had continued from the time of the Jones assault until Mr Bishop was sprayed. However, her Honour did not necessarily accept that that was so. In written submissions for Mr Brennan, it was stated that he was not seen to be dragging Mr Jones along the railway overpass immediately following the first incident, and that Constable Ragen agreed that, after the first incident, Mr Brennan wished her a happy birthday and kissed her on the cheek. Both actions were considered to be inconsistent with a continuing show of anger. Her Honour stated that, while other police may have responded differently in the circumstances and while it would have been preferable that Mr Brennan had adopted a more measured approach to the situation, she was not prepared to find that the Crown had proved beyond reasonable doubt that the appellant did not act in self-defence. Accordingly, her Honour allowed the appeal in respect of the second matter concerning the alleged assault of Mr Bishop. 74 In sentencing Mr Brennan for the assault of Mr Jones, her Honour noted that Mr Jones was 17 years old at the time. The assault was committed during the course of Mr Brennan's employment as a police officer and her Honour noted that, while the situation he found himself in was not an easy one, he had been well trained to deal with such a situation and his behaviour in relation to Mr Jones "was extremely serious". Her Honour was reminded by the Crown that the assault was serious, particularly because it was committed by a police officer in the course of his duties. Having considered those matters, her Honour acceded to an application that Mr Brennan be placed on a bond pursuant to the provisions of s 9 of the Sentencing Act to be of good behaviour for a period of two years and that penalty was imposed in lieu of the order for 220 hours community service imposed by the Magistrate. THE REVIEW 75 In submissions for the Commissioner of Police in this Commission, it was said that nothing turned on the unreliability of witnesses - that two judicial officers who had been called upon to consider the material had, in fact, erred in favour of Mr Brennan. There were two criminal charges but, on appeal, only one had been sustained. Nevertheless, the spraying of capsicum was an action in breach of the Code of Conduct. In the District Court, Judge Flannery commented that there were more appropriate ways for Mr Brennan to act and therefore the use of the capsicum spray in the circumstances amounted to a serious breach of the Code. 76 The Warning Notice issued in June 2005 dealt with six separate incidents from 2004. The Warning was issued after the events leading to the laying of criminal charges against Mr Brennan. Reference to the Commissioner's Notice and Reasons for Decision made it clear that, while the Commissioner of Police noted those matters, no great weight was placed upon them. Attention was to be focused on the actions of Mr Brennan and what was demonstrated by the objective evidence. There was no medical condition established on the evidence that operated as a mitigating factor, but there was a behavioural problem in the form of anger evident in his conduct. Considered in this context, Mr Brennan could not make out a case that the Commissioner's decision to remove him from the Police service was harsh, unreasonable or unjust. 77 It was significant that the Magistrate held that there were a number of occasions when Mr Brennan's evidence was to be considered as a recent invention, a fabrication or was being made up as he went along to meet the exigencies of the questions then being faced. None of those findings was set aside on appeal in the District Court. 78 In making submissions to the Commissioner, it was not appropriate for Mr Brennan to require the Commissioner to read all the transcripts. The Commissioner was entitled to act upon the two convictions established in the Local Court. If those representing Mr Brennan wished to refer to evidence that no longer had any weight, having been tested in the proceedings, it was their obligation to provide the details to enable the Commissioner to consider the submissions. There was no unfairness in the course adopted by the Commissioner in this regard. 79 In the two incidents, there was no violent behaviour in threatening police and there was no offering of resistance or presence or threatened use of weapons. The only persons armed were the police. In both incidents, Mr Brennan's reactions were excessive and more than was required to meet the situation. A consideration of Mr Brennan's evidence in the Local Court showed that there were many admissions demonstrating a serious problem with his behaviour on the night. In the Bishop incident, there was no evidence of Mr Bishop threatening Mr Brennan, there was no move towards him by Mr Bishop, there was no move to jump the fence and these matters were all accepted by Mr Brennan. In Jones's incident, there was a minor offence at best, but there was no threat of violence or resistance. There was no need to arrest Mr Jones or handcuff him and there was no resistance that would support the use of force such as throwing Mr Jones with vigour into the lift doors. 80 Overall, it was submitted that Mr Brennan was an experienced officer with a variety of training, including training relevant to the circumstance of the night. He had been trained in the use of OC spray but had used it contrary to his training and clear instructions. None of the actions could be excused, especially in relation to Mr Bishop, because of the confrontational behaviour of the groups of youths: Mr Brennan was trained and was himself an instructor and was directed by that training to try to defuse the situation and not allow it to escalate. There were measures identified amounting to a preferable course available to Mr Brennan but not taken by him. 81 Mr Brennan placed primary reliance on documents he filed, including submissions made on his behalf in the District Court. He pointed to his financial circumstances and his incapacity to be legally represented in these Review proceedings. While he estimated that he had lost, on average, approximately $100 per week since being removed from the Police service, his present work allowed him, from time to time, to make more money per week than he would have earned as a police officer but required working long hours. His biggest loss was his career. 82 Mr Brennan was aware of the effects of using the spray because of his training and he gave it consideration before its use. He realised and accepted that he could have performed better on the night but he had little time to assess the events as they unfolded. On the night before the incident, he had been spat on by a female offender who had subsequently been convicted, but he had been criticised by his Commander for not using the spray to avoid that incident. 83 In submissions, Mr Brennan refuted the finding that he had been fabricating evidence in the Local Court and suggested that, during the course of a long hearing, he kept returning to how events had evolved. In relation to the Bishop incident, he was told by Constable Gray that he was going to arrest Mr Bishop if he continued his behaviour. He had been warned there might be violence and, when the group of four was confronted by the police, three of the officers drew their capsicum spray canister from its holder: those three were Mr Brennan, Constable Maziarz and Constable Howarth. Immediately after spraying Mr Bishop, the group ran away which was why he chased them. He instructed Mr Bishop three times to move back or he would be sprayed because of his behaviour. It was an uneasy and aggressive atmosphere. 84 Mr Brennan said that, on the night of these incidents, he had a prisoner in custody at the station when he was called out urgently because of the brawl. It was "all hands on deck" and a great deal of pressure was present during the night. It was important to recognise that, in the Local Court, there was no finding that he had hit Mr Jones, head butted him or handled him roughly in the back of the police van. He accepted responsibility for his actions and stated that he would now approach these matters differently. Properly viewed, his actions did not warrant losing his career. In relation to the Bishop incident, he was the senior officer in that situation and felt he had to take control. Constable Maziarz was a Probationary Constable who was working his fifth shift as a police officer. During the night there was much angry abuse and disagreement which were the circumstances with which he had to deal. 85 In relation to the task of the Commission on Review, Senior Counsel for the Commissioner submitted that there were two essential requirements contained in s 181F. Under s 181F(1), in conducting the Review, the Commission must firstly consider the Commissioner's reason for the decision to remove the applicant from the Police service; secondly, it must consider the case presented by the applicant as to why the removal was harsh, unreasonable or unjust; and, thirdly, must consider the case presented by the Commissioner in answer to the applicant's case. Where the Commissioner gave certain reasons at the time, those reasons were to be looked at in the light of all the evidence which came in on Review and that evidence, together with the Commissioner's Reasons, was to be tested as to "whether the Decision to Remove was ever harsh, unreasonable or unjust or in the light of the totality of the material, it once was and still is, harsh, unreasonable or unjust or once was, harsh, unreasonable or unjust and now was not harsh, unreasonable or unjust". 86 The task on Review was not entertaining an appeal by way of a re-hearing - it was not an all grounds appeal, where the Commission simply received the material and then made up its own mind as to what should have been the judgment at the time, or made up its own mind as to whether it should here come to a different view on the re-hearing. It was not an issue for the Commission, after receiving further evidence, to make a decision which it believed was appropriate to now be made, assuming that error had been demonstrated. The task was "slightly different". The Commission was not engaged on an appeal but a "Review" in which the Commission was directed under s 181F(3) to have regard to the interests of the applicant and the public interest, including the interest of maintaining the integrity of the New South Wales Police service and the fact that the Commissioner made the order pursuant to s 181D(1). Those two elements were to be treated equally: neither the officer's interest nor the public interest automatically had greater weight. 87 Directing attention to the fact that the Commissioner had made a order pursuant to s 181D(1) was very important because the Commissioner of Police could not do as he liked: the Commissioner of Police had to direct his mind as to whether he did not have confidence in the police officer's suitability to continue as a police officer. That was the question that the Commissioner of Police had to answer and, in approaching that question and in seeking the answer, the Commissioner was directed to consider four elements: the police officer's competence, integrity, performance or conduct. The Commissioner did not have to conclude that he had no confidence in relation to the officer in each of those four elements and it may well be that a particular event caused the Commissioner to lose confidence in the officer in relation to only one of those four elements. The way in which the Commissioner, in any particular matter, weighed the question of whether he did not have confidence in an officer's suitability was not directed by the statute but was left to the Police Commissioner: once that decision was made under s 181D, some status and importance was to be given to the fact that the Commissioner made an assessment of the suitability of the officer by reference to one or more of the four elements referred to in s 181D. On Review, the Commission must give significant importance to the fact that the Commissioner made a declaration that he had lost confidence in an officer and it was not a matter that could be ignored. 88 Upon Review, the Commission was not involved in an unconstrained exercise of discretion. The applicant could bring forward a number of factual considerations as to why the Decision was harsh, unreasonable or unjust which were to be considered by the Commission and could not be ignored. The requirement under s 181F(3), for the Commission to have regard to the interests of the applicant and the public interest, meant that the Commission was to give weight to those factors as fundamental elements in the Commission's consideration (see Wells v Commissioner of Police (2000) 100 IR 106 at [33]). Under the usual unfair dismissal provisions of the Industrial Relations Act 1996, an ordinary employer might legally terminate employment that might nevertheless be held to be harsh or unreasonable and reinstatement ordered: that approach did not apply in relation to a police officer. The modification of Pt 6, Ch 2 of the Industrial Relations Act 1996 by s 181G brought about "a substantial difference". This was shown in Commissioner of Police v Evans (2006) 153 IR 144. In that case, the Full Bench had divided its analysis of what had taken place at first instance. It was submitted that only Schmidt J had conducted a detailed statutory analysis of what was required under the Review and had emphasised the requirements of having regard to the public interest and the interests of the applicant under s 181F(3) and, although it was suggested otherwise, it appeared that her Honour had not consciously or unconsciously assigned particular precedence to one of those issues over the other. 89 In this context, Senior Counsel relied upon the decision of the Privy Council in Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 at 39: It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must be aware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than to found in the words of the Act itself. No doubt a decision on particular words binds inferior courts on the construction of those words on similar facts but beyond that the observations of judges on the construction of statutes may be of the greatest help and guidance but are entitled to no more than respect and cannot absolve the court from its duty of exercising an independent judgement.

Ultimately, it was submitted that what had been decided in Van Huisstede v Commissioner of Police (2000) 98 IR 57 was applied and reinforced in Evans . The view expressed in Van Huisstede was that the provision did not presume that the public interest would in every case require the Commission to uphold the actions of the Commissioner of Police in removing an officer in deference to the public interest and the integrity of the Police service, nor did it assume that the public interest would always operate against the interests of an individual officer. 90 In a case such as the present one, the Commissioner of Police arrived at a certain view and the Commission would have to be satisfied that the elements of harshness, unreasonableness or unjustness were such that the balance fell against the Commissioner. It was submitted that was not an easy task because, having regard to the public interest, it required the Commission to focus on the fact that it was being asked to change the result of an assessment made by the Commissioner of Police in relation to the identified elements about the suitability of a police officer. That situation did not mean that, when the matters were put in the balance before the Commission, they were equal. The Commission was not in a position to exercise an unconstrained discretion. The Commission might well think that a certain action was unfair and might be moved to think that an officer should be allowed to return to the Police service but, when the public interest was considered and weight assigned to that element, then the decision might be otherwise. In answer to a question whether the Commissioner's concluded view might receive less weight when made before sentence was passed and before the judicial process had been completed thus denying the Commissioner the benefit of how the courts had judged the relative seriousness of these offences, it was accepted that, if the Commissioner's decision was shown to have been made on a false basis by subsequent events, then that was a relevant matter. 91 These submissions as to the manner in which the Review process before the Commission should operate were, of course, not the subject of submissions by Mr Brennan. Senior Counsel for the Commissioner of Police accepted that the provisions presented some difficulties. That frank comment brings to mind Isaacs J's statement in Clyde Engineering Co Ltd v Couburn (1926) 37 CLR 466 at 480, in reference to Bacon's aphorism that "there is no worse torture than the torture of laws". In Hosemans v NSW Police Service (2004) 136 IR 376, I was in the unfortunate position of having, to some extent, a different view from the Full Bench (see (2004) 138 IR 159) as to the way in which the Review process operated under Pt 9, Division 1B and Division 1C of the Police Act. 92 In the first instance judgment in Hosemans, considerable attention was paid to the legislative history and the provisions by which police officers could challenge the termination of their engagement. Particular focus was placed upon the recommendations of the Wood Royal Commission to confine the avenues of appeal as well as the basis for Review and the detailed analysis of the various stages over which the Commissioner's Confidence provisions had developed as set out by Petersen J in Newton v Commissioner for Police (1998) 85 IR 119 between pp 127 and 134. Detailed reference to the history of the provision was appropriate in light of the comments of McHugh J in Saraswati v The Queen (1990-1991) 172 CLR 1 at 21: Hence, it is always necessary in determining 'the ordinary meaning' of a provision such as 61E(2) to have regard to the purpose of the legislation and the context of the provision as well as the literal meaning of the provision. Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes.

What was evident from the history of the various provisions by which police officers could challenge their dismissal was that, at one point, the only challenge available was on administrative law grounds in the Supreme Court. That provision did not survive further amendment and the present provision seems something of a compromise allowing a "Review" of the Commissioner's Determination in this Commission. An analysis of the law was then conducted to ascertain what the nature was of this "Review" bearing in mind that the unfair dismissal provisions of the Industrial Relations Act 1996 do not refer to a "Review" of the employer's determination but operate on the basis that an employee claiming that the dismissal was harsh, unreasonable and unjust could apply to the Commission for that claim to be dealt with. 93 In the first Hosemans judgment, specific reference was made to the comment in Newton that the amended provision required the Commission to examine the dismissal of a police officer with a view to determining whether or not it was harsh, unreasonable or unjust and that such an examination was to be undertaken with the applicant bearing the onus of establishing one or more of those grounds. In Newton, Peterson J had stated that the matter was not confined to an examination, from the perspective of Administrative Law, of the reasons to ascertain their adequacy or invalidity but from the perspective of the substance of the matter. That approach was not called into question in Hosemans. It was also specifically noted that the 1997 amendment providing a right of Review in this Commission was similar but not identical to applications brought by other workers against unfair dismissals: Peterson J formed the view in Newton that the approach manifested in the 1997 amendments created a procedure that was tailored particularly to meet the special needs of the Police service as they were perceived in the light of the final report of the Police Royal Commission. In relation to the Review provisions in this Commission, there was no express reference found to notions of Administrative Law Review. The obligation imposed on the Commission in a Review proceeded by considering, firstly, the Commissioner's reasons for decision and then the applicant's case as to why the removal was harsh, unreasonable or unjust. 94 In Newton, it was ultimately concluded that, under this statutory regime, the task of the Commission was to determine whether the Commissioner's decision had a basis in fact and was correct on the material before the Commissioner or on any further evidence admitted by the Commission, while the Commission was also to determine whether the decision was harsh, unjust or unreasonable having considered the Commissioner's Reasons for decision, the case presented by the applicant as to why the removal was harsh, unreasonable or unjust and any case brought in answer by the Commissioner. In this process of Review, the onus remained at all times on the applicant so that not even the notion of a shifting evidentiary burden would apply. In substance, this conclusion operated primarily on the provisions of s 181F and focused on the correctness of the Commissioner's decision having regard to all the evidence, including that admitted on the Review. At no point in Hosemans was it ever stated that the Commission's role was the same as a judicial review of an administrative decision. Particular reference was made to the different approach set out in Newton and by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212. The requirement to examine the evidence to see whether the decision was harsh, unreasonable or unjust necessarily meant that, even if there was a basis in fact for the Commissioner to form a view as to the conduct of an officer, it did not necessarily mean that the decision to terminate employment was not also capable of being categorised as harsh, unreasonable or unjust. If there was no basis in fact, or a much reduced factual basis for the decision to remove, then unfairness might arise at that very point. 95 The focus of the analysis in Hosemans at first instance was to discover what the legislature intended by permitting a "Review" of the Police Commissioner's decision that he had lost confidence in an officer and as a consequence, to remove that officer from the Police service. In modifying the previously very limited means of reviewing such decisions following the revelations of the Police Royal Commission, it was simply not satisfactory to regard the Review process as doing no more than providing, practically, the same regime as available under the unfair dismissal provisions of the Industrial Relations Act. If the legislature had intended to provide such a course, it was open to it to state that the Commissioner's Decision could be viewed as an unfair dismissal under the provisions of Ch 2, Pt 6 of the Industrial Relations Act. Instead, the legislature provided a "Review" of the Order of Removal on the ground that the removal was harsh, unreasonable or unjust. The provision placed limitations upon those who could be compelled to give evidence (excluding the Commissioner and any member of the Commissioner's Advisory Panel), required the Commission to be constituted only by judicial members (thus excluding Deputy Presidents and Commissioners who were usually engaged in dealing with unfair dismissal matters), laid down the way in which the Review would be conducted in s 181F (requiring that the Commission is to proceed, firstly,by considering the Commissioner's Reasons for Decision, secondly, to consider the case presented by the applicant as to why the removal was harsh, unreasonable or unjust, thirdly, to consider the case presented by the Commissioner in answer to applicant's case) and further, requiring the Commission to have regard to the interests of the applicant and the public interest, including the interest in maintaining the integrity of the New South Wales Police service and the fact that the Commissioner made an Order under s 181D(1). There were other significant modifications to the usual unfair dismissal regime under the Industrial Relations Act. 96 In s 181G, the unfair dismissal provisions of the Industrial Relations Act "applied to an application for a Review" under the Police Act but with a number of important modifications: an application must be made in 14 days rather than the 21 days allowed for unfair dismissals; a conciliation by a judicial member of the Commission results in that member being unable to be involved in the conduct of the Review proceedings; an application cannot be made against a threat of dismissal; instead of the Commission acting as quickly as practicable, under the Police Act the Commission is to commence the hearing within four weeks of the application being made; new evidence may not be adduced unless notice is given or the Commission gives leave and the grounds upon which leave must be given are set out. Under s 181K an appeal to a Full Bench of the Commission requires the Full Bench to be constituted by three judicial members. Under s 181I, the privilege against self-incrimination available under s 128 of the Evidence Act applies to a witness giving evidence before the Commission on a Review as if the proceedings were before a court. All of these are modifications of some significance and strongly suggest that the Review proceedings have a necessarily different focus from applications normally brought under the unfair dismissal provisions of the Industrial Relations Act. Such a conclusion does not mean that the Review proceedings are to be conducted in accordance with Administrative Law principles or that they are effectively judicial reviews of Administrative decisions. Ultimately, the main issue of contention is that Hosemans was the proper operation of s 181G(f) regarding new evidence. 97 Two further matters are of significance. The Full Bench in Hosemans stated that, in Review proceedings, the normal procedure applicable in unfair dismissals would be followed in which the applicant would present his or her case in recognition of the onus resting on the applicant to show that the decision was harsh, unreasonable or unjust, followed by the Commissioner and then the applicant in reply. It might be noted that, even in unfair dismissal proceedings, the Commission has, over the years, altered the procedure depending upon the nature of the case. In some circumstances, the nature of the allegations and the means of proving them, as a matter of practicality, are best left to the employer which might persuade the Commission to require the employer to present its case before hearing from the applicant: ultimately, absent some statutory directive, the procedure of the Commission is in the hands of the Commission. On review of a Commissioner's decision to remove an officer under the Police Act, s 181F(1) makes quite specific provision directing the Commission in "conducting a review" to proceed firstly by considering the Commissioner's Reasons for the decision to remove the applicant, secondly, to consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust and thirdly to consider the case presented by the Commissioner in answer to the applicant's case. Nevertheless, sub-section (2) stipulates that at all times the burden of establishing that the removal of the applicant was harsh, unreasonable or unjust remains with the applicant despite any law or practice to the contrary. Sub-section (1) is not limited to the way in which the Commission decides the matter after receiving the evidence and submissions of the parties, but is specifically directed to the way in which the Review proceedings are to be conducted and leaves no discretion to the Commission in that regard. This point was recognised by the Full Bench in Little (No 2) where it was stated that s 181F(1) required the Commission to consider sequentially the Commissioner's reasons, the case for the applicant and the reply of the Commissioner to that case. The Full Bench continued (at [67]: While this requirement may vary the procedure usually adopted in the hearing of an unfair dismissal matter under s 84 of the Industrial Relations Act, the variation is not of great significance and, in any event, does not alter the test to one different to that applied in such a matter, that is, whether the dismissal was harsh, unjust or unreasonable. 98 A related point is the operation of s 181F(2). In terms, that section provides: The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police is harsh, unreasonable or unjust. This section has effect despite any law or practice to the contrary.

The appellant in Hosemans submitted at first instance that the approach adopted meant that not even the notion of a shifting evidentiary burden would apply which approach failed to take into account the judgment in Pastrycook Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR at 83-84. In the Pastrycook's case, Hungerford J acknowledged that, while the onus for making out a case for reinstatement in a normal unfair dismissal case rested with the claimant union, where there was an allegation of misconduct raised as a defence or was justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden in an evidentiary sense to establish that fact shifted from the union to the employer. There can be little doubt that in the course of a case, what might be called the tactical onus may move, so that if a party wishes to meet the evidence of another, it may have to call such evidence as necessary to nullify an evidentiary point. Section 181F(2) does not deal with a tactical evidentiary position but specifically addresses the requirement that the applicant, "at all times", has the burden of establishing that the removal was harsh, unreasonable or unjust and notes that the section is to have effect "despite any law or practice to the contrary". This appears to be another one of the compromises adopted in enacting this Review provision that takes it out of the usual unfair dismissal case and the application of principles encompassed in the Pastrycook's decision. It is difficult to conceive a clearer provision than s 181F(2) in ensuring that at all times the onus remains with the applicant in Review proceedings. 99 In light of this discussion as to the approach to be adopted upon a Review under the provisions of the Police Act, it is appropriate to state that this Review will be conducted in accordance with the approach set out by the Full Bench in Little (No 2) even though that judgment acknowledges that some issues as to process and procedure may still be unresolved. In Little (No 2), the Full Bench stated that a Review had to have regard to matters beyond whether there was adequate justification for the removal and that there was, in fact, a tripartite test to be applied - even where a decision to remove may have justification, the Commission will still be required to consider whether the decision was harsh, unjust or unreasonable and have regard to the merits of the application. 100 In considering Mr Brennan's application, it is appropriate to commence with the consideration of the operation of s 181F of the Police Act. As already noted, this section deals with the conduct of a Review and is not limited in its operation to the course of a consideration by the Commission following the receipt of evidence and submissions. The first obligation is to consider the Commissioner's Reasons for Decision to remove Mr Brennan from the Police service. Those reasons have been summarised in some detail but, in essence, the decision proceeded on the basis that Mr Brennan had been found guilty of two counts of common assault arising from his involvement in the brawling behaviour of a group of young people in the vicinity of the Leagues Club at Leumeah. In the Local Court, each offence carried a maximum penalty of 12 months' imprisonment, but the Magistrate ordered community service for 220 hours in relation to the assault involving Mr Jones and 130 hours community service in relation to the assault involving the use of capsicum spray on Mr Bishop, cumulatively 350 hours of community service. At the time the Commissioner made his decision to remove Mr Brennan from the Police service, he was aware only of the fact of conviction in relation to each offence and had not waited to consider the penalty imposed by the Local Court. It was common ground that, when the decision for removal was made, he had not read the transcript of the proceedings or the judgment of the Magistrate. When the Commissioner gave Notice under s 181D(3)(a) in May 2006, the Commissioner acknowledged that he had read and taken into account the document entitled, "The Commissioner's Confidence Submission". It was said that this Submission augmented the matters raised in the Notice and any response to the Notice should take into account the contents of the Submission. 101 The Notice made two allegations of assault. In relation to Mr Jones, it noted that the attendance of police at the Leagues Club was in response to a brawl and that there were a number of police at that location. When Mr Brennan arrived he was met by a number of youths who were loud and aggressive. Reference was then made to the discussion with Mr Jones about whether he was drinking on railway property. It was then stated that Mr Brennan grabbed Mr Jones by the shirt, dragged him up the stairs of the overpass and threw him against the lift doors at the top of the overpass. He handcuffed Mr Jones with his hands behind his back and walked him to a caged police vehicle. He was released a short time later without charge and without obtaining any details from him. There was an adverse finding recorded against Mr Brennan for assaulting Mr Jones. It was said it was established that Mr Brennan was not justified in arresting Mr Jones and had used excessive force during the arrest. Mr Brennan was charged with common assault, pleaded not guilty in the Local Court and the matter was adjourned until late June 2006 for judgment. Mr Brennan's actions not only amounted to assault but were also in breach of the Code of Conduct and Ethics - he had acted beyond the powers of the law and had used more force than was reasonably necessary to make an arrest. 102 The submission stated that Mr Brennan grabbed Mr Jones by the shirt and dragged him up the stairs of the overpass and, at the top of the stairs, had thrown Mr Jones against the lift doors. During the incident, Mr Brennan was alleged to have hit Mr Jones with his head, although it was uncertain whether the head butt was intentional. It was alleged that, at the back of the police truck, Mr Brennan was annoyed by Mr Jones's responses and had pushed him into the back of the truck. The submission then referred to a statement from Matthew Kelleher that he had seen Mr Brennan shove Mr Jones into the elevator door "a couple of times". Ms Rachel Kelleher saw Mr Jones pushed into the elevator doors once. There was no statement by the Commissioner as to which of these numerous allegations was found to be established: it appears that the Commissioner took into account all the allegations. 103 In the Statement of Reasons given in support of the Order made on 21 July 2006 under s 181D(1) of the Police Act, the Commissioner said he had taken into account a submission prepared in relation to Mr Brennan and the Notice served under s 181D(3)(a). The Commissioner also took into account the written submissions provided by Mr Brennan's solicitors. In relation to Mr Jones, the Commissioner said that Mr Brennan had grabbed Mr Jones by the shirt, dragged him up the stairs and threw him against the elevator doors at the top of the overpass. He repeated the earlier allegation that Mr Jones had been handcuffed with his hands behind hands his back and had been walked to a caged police vehicle. Notwithstanding that the Magistrate had found some of the witnesses unreliable, it was noted that Mr Brennan had been convicted of the assault on Mr Jones. The Commissioner referred to Mr Brennan's behaviour resulting in criminal convictions and having breached the Code of Conduct and Ethics and also the Code of Practice for Custody Rights, Investigation, Management and Evidence. It was also noted that Mr Brennan had been issued with a Commander's Warning Notice in June 2005 and had entered into a Conduct Management Plan for 12 months. That action was taken after a number of adverse findings had been made in respect of his conduct. While the Conduct Management Plan had been successfully completed, Mr Brennan had acknowledged in writing his understanding that continued unsatisfactory conduct might result in more severe sanctions. The Commissioner concluded that Mr Brennan had not maintained the highest professional conduct required of a police officer. After carefully reviewing all the material associated with the matter and finding no mitigation or reasons that would provide any basis for not losing confidence in his suitability to remain a police officer, the Commissioner removed Mr Brennan from his position as a police officer. 104 In relation to the Magistrate's finding concerning Mr Jones's assault, it is to be noted that it was found, firstly, that Mr Jones's evidence could not be accepted without corroboration. The Magistrate found that Mr Jones had consumed considerably more than the four cans of pre-mixed rum he admitted to drinking between 9.00 pm and 2.00 am. The Magistrate specifically rejected the following matters: the allegation that Mr Jones had been thrown twice into the elevator doors; that there was an assault at the back of the police van; and, that there had been a head butt at the lift. 105 Before the Magistrate, it was accepted that Mr Brennan had walked quickly up the stairs, taking the stairs two at a time, in bringing Mr Jones, presumably, to the top of the stairs but there was no finding that he had "dragged" Mr Jones in the sense of unbalancing him or knocking him off his feet whereby Mr Jones's feet, legs or other parts of his body came into bumping contact with the stairs. There was no finding that Mr Jones was dragged across the bridge and the CCTV footage showed no such action. The CCTV footage showed Mr Brennan engaged in a clear throwing action, resulting in Mr Jones being flung into the elevator door. There is no doubt from the Commission's own viewing of the footage that there was an excess of force used in this action. 106 In the District Court on appeal, it was found that the arrest of Mr Jones was not unlawful although it was described as "technically lawful". Nevertheless, the degree of force used was excessive and that, in all the circumstances, it constituted an assault. The arrest was considered to be inappropriate given the nature of the alleged offence which was punishable by a fine. Her Honour could not see from the footage exactly what happened on the stairs and was not prepared to find that, whatever happened on the stairs, it involved the use of excessive force so as to constitute assault. In relation to this offence, her Honour placed Mr Brennan on a good behaviour bond for a period of two years pursuant the provisions of s 9 of the Sentencing Act. 107 At the time the Commissioner of Police made his decision to remove Mr Brennan from the Police service, he was aware that there had been a conviction in relation to Mr Jones's incident for common assault. At that stage, the Commissioner was unaware whether the Magistrate would impose a penalty of imprisonment, having regard to the fact that Mr Brennan was a first offender and that the maximum penalty available in the Local Court was 12 months' imprisonment. The range of penalties therefore ran from the possibility of an order under s 10(1) of the Sentencing Act (finding the offence proved and directing the charge be dismissed) and alternatives escalating to imprisonment as set out in Pt 2 of the Sentencing Act. It is of significance that, on a review of the Commissioner's determination, in relation to this offence, the nature of the assault is importantly different from the detail set out in the allegations recorded in the Commissioner's submission and that both the Local Court and the District Court regarded the assault as falling within the lower range of penalties that might be imposed for such a breach. It should also be recalled at this point that this was regarded by the Magistrate as the most serious assault, attracting 220 hours community service as opposed to 130 hours imposed in relation to the capsicum spraying of Mr Bishop. 108 It is also significant that, in the District Court, a submission that was repeated here on Review was specifically rejected, namely, that Mr Brennan had behaved in anger and that anger had continued from the time he assaulted Mr Jones until he had sprayed Mr Bishop. It was noted by Judge Flannery that, in Mr Brennan's written submissions, it was stated that the CCTV footage did not show Mr Brennan dragging Mr Jones along the railway overpass following the first incident, and Constable Ragen agreed that, after the first incident, the appellant had wished her a happy birthday and had kissed her on the cheek. Both actions were stated to be inconsistent with a continuing show of anger. 109 There were findings of the Magistrate that were not specifically dealt with by Judge Flannery on appeal. The Magistrate rejected Mr Brennan's demonstration of how he grappled with Mr Jones at the top of the stairs to stop him breaking away or running away and that the demonstration did not adequately show the force actually used resulting in Mr Jones hitting the lift doors. The Magistrate concluded that Mr Jones was not argumentative as alleged by Mr Brennan and criticised Mr Brennan for changing his evidence and his instructions and tailoring his evidence to deal with what was emerging during the hearing or what was being put to him. The Magistrate drew the inference that the fact that Mr Jones had a an open can of alcohol on railway property was not the reason Mr Brennan arrested Mr Jones but that Mr Jones was arrested because he had made him angry, was untruthful to him, defiant and had spilt drink on him. He found Mr Brennan's anger already at a significant level by the time he reached the overpass. The Magistrate found that Mr Jones did not resist at any stage until he first hit the lift doors and he noted that the prosecutor did not submit that the arrest was illegal but was inappropriate. On appeal, the arrest was found to be "technically lawful" thus suggesting that Mr Jones was arrested for drinking on railway property. 110 It is of some importance that Judge Flannery did not find that Mr Brennan's behaviour resulted from a continuum of anger. Mr Jones's defiance and lying about having alcohol on the railway station and then spilling the drink on Mr Brennan after taking a sip from the can tends to support Mr Brennan's assertion that was the offence he was concerned with, although there was no need to arrest Mr Jones in circumstances where he showed no resistance and where the penalty was a fine requiring only the recording of Mr Jones's details for the purposes of serving a penalty notice. It is also significant that, on appeal, Judge Flannery placed both incidents in the context of two groups of brawling young people who constantly abused police and displayed aggressive and shouting behaviour in circumstances where it became necessary to call in additional police support. It is clear from the evidence that many of the players, including Mr Jones and Mr Bishop, were well affected by alcohol and the dynamics of a crowd in those circumstances might well have heightened the possibility of an actual violent response. It certainly came close to that point when the two police officers tried to keep the two groups apart and one tall person (apparently Mr Bishop) kept pushing his chest against a police officer's torch. Other police officers responded armed with capsicum spray, and the dog squad was also present. There was a lot of loud and aggressive behaviour and a large number of people to keep track of as they continued their abusive and aggressive behaviour. 111 Mr Brennan's justification for his behaviour was that Mr Jones had committed an offence by drinking alcohol on railway property and had acted defiantly. He believed that Mr Jones had broken free of his grip and therefore needed to be detained. Mr Jones was described as one of the ringleaders who had been abusing and shouting at police during the evening. In considering the operation of s 181F(3), the assault on Mr Jones is the only conviction that stands after the District Court proceedings. At the time of the incident, Mr Brennan was 35 years of age, had no prior convictions and had served in the Police service for approximately four years, having had prior experience in the Department of Corrective Services. He was an officer who had received training in other areas and had worked with Detectives. There was already a significant use of resources to bring Mr Brennan to that point in his career and, while he had the expectation of building a career, there was also a public interest in having police officers remain in the Police service but only if they were suitable for the Police service. The public interest demands that, like other citizens, police officers obey the law: their very office requires that they take care in the way in which they behave and exercise their powers. There is a clear public interest in maintaining the integrity of the New South Wales Police service and the Commissioner found that Mr Brennan had not maintained the highest professional conduct required of a police officer. He had come under notice for other matters although, in submissions, it was suggested that those other matters were not really relied upon except to the extent that, having successfully completed a 12 month Management Programme, Mr Brennan was aware that any other failures in his conduct might lead to consideration of his removal from the Police service. Although there was material before the Commission indicating the matters that had led to the Commander's Warning Notice issued in 2005 in relation to matters that had mostly occurred in 2004, there was, in terms, no submission made that there was evident in Mr Brennan's conduct, over a period of time, attitudes and behaviour demonstrating that he was an inappropriate person to remain a member of the Police service: the focus was on his behaviour on 22 May 2005. 112 In relation to the assault of Mr Jones, therefore, there are competing issues, some favouring Mr Brennan's case and some favouring the Commissioner's case. The essence of the Jones's incident was not in any denial by Mr Brennan that there had been an incident, but whether he had been justified in throwing Mr Jones against the lift doors and arresting him in relation to a minor offence for which a Penalty Notice could have been issued. On balance, I am unable to find Mr Brennan's misjudgement as evident in this single incident and limited as it is, when compared with what was alleged against him, to be of such significance that his career as a police officer should be terminated and that the Police service should lose a person who has some apparent aptitude for the policing task. The Police service in its Codes does not suggest that it operates on a "nil tolerance" basis: offences involving dishonesty, assault, unauthorised access or use of confidential information, the supply or use of illegal drugs, offences involving prescribed concentrations of alcohol or driving under the influence of alcohol or drugs are all matters that would be investigated under s 181D under the terms of the Code, but this conduct "may" result in removal from the New South Wales Police service. The terms of the Code itself recognise what is evident in the behaviour of many citizens, namely, that, almost inexplicably on occasion, people with a good record and good standing in their community will break the law. The justice system requires consideration of all relevant matters before imposing an appropriate penalty notwithstanding the fact that there has been a breach of the law. Each case has to be considered on its own facts. In the present case, it can be accepted that Mr Brennan has already lost an amount of salary although his work has, from time to time, been able to return to him more than he might have earned as a Constable: overall, there was likely to have been a loss in total salary (especially during the period of suspension on pay without penalties), although not necessarily a substantial loss. What is evident, from a consideration of all the matters referred to above, is that this single act of assault punished by the imposition of a two year good behaviour bond did not warrant the loss of his career as a police officer. The circumstances surrounding the assault and the nature of the assault itself demonstrated it to be of a low level and a one-off incident where a good behaviour bond was appropriate as punishment. By moving before either the Magistrate or the District Court had dealt with penalty, the Commissioner deprived himself of the opportunity of taking into account the level of penalty imposed as reflecting the objective seriousness of the offence. It might well have been too much to have required the Commissioner to hold his hand until after the District Court appeal had been concluded, but there was significant value in waiting the relatively short time before the Magistrate passed sentence on Mr Brennan for this offence. The assault was demonstrably less serious than that alleged in the documents before the Commissioner. The Commission is therefore of the view that, while the action of Mr Brennan was not warranted and constituted a common assault, the removal of Mr Brennan from the Police service was a harsh penalty in all the circumstances. 113 During the course of submissions for the Commissioner, it was pointed out that Mr Brennan had pleaded not guilty in relation to both matters and thereby demonstrated no contrition for his conduct. It was also submitted, by reference to cases such as Evans, that there were no mitigating factors such as not being on duty, the amount of alcohol consumed off duty and the fact that counselling had been undertaken for alcohol abuse. It is rare that the circumstances of one case on its merits would be of real assistance, let alone determinative of a review in different circumstances. Mr Brennan was adamant at all times that he was justified in the actions he had taken although, in his submissions on Review, he accepted responsibility for his actions and stated that he would now approach these matters differently: there was no issue that he had aggressively detained and arrested Mr Jones or that he had sprayed Mr Bishop - the issue was whether these actions amounted to an assault in each case or whether Mr Brennan had justification for the action in each case. On appeal in the District Court, he was successful in having the conviction arising from Mr Bishop's matter set aside and received a two year good behaviour bond in relation to a relatively low level, common assault conviction involving Mr Jones. A significant factor in the Evans matter was the level of brutality of the assault and the fact that two officers took part in the assault on a single person although there was provocation: the decision to reinstate survived challenge on appeal. Alcohol, although used as a mitigating factor in Evans, can be a two-edged sword - if alcohol had been present during the course of Mr Brennan's on-duty actions it would be difficult to categorise that as only a mitigating factor. Ultimately, comparisons of this nature are not useful. 114 The circumstances in relation to Mr Bishop's incident altered quite significantly as a result of the District Court appeal. At the time the Commissioner made the decision to remove him, Mr Brennan had been convicted of two assaults: the fact that there were two separate assaults on the same night was likely to have weighed heavily with the Commissioner when he made his decision to remove Mr Brennan from the service, especially when the evidence in his possession indicated that Mr Brennan had acted in an angry state and that anger was present in both assaults which were separated by only 15 minutes. On Review in this Commission, the submissions for the Commissioner of Police concentrated upon the breach of the Code of Behaviour and the training given to Mr Brennan which prohibited the use of the capsicum spray unless it was required for controlling people where violent resistance or confrontation had occurred or was likely to occur. The original Notice served on Mr Brennan alleged that there was both an assault and a breach of the Code of Conduct and Ethics. The Code relevantly stated: "Whatever your position, you may not act beyond the powers the law and the NSW Police give you". 115 The material before the Commissioner had three police officers facing a group of four men on the other side of a fence said to be 1.5 metres high. Mr Bishop was described as asking whether he could go back to the Leagues Club to pick up a mobile telephone that had been found. He was attempting to ask a question and was walking backwards away from the fence when he was sprayed by Mr Brennan. The fence was said to be not one easy to scale and that Mr Brennan could not have been apprehensive about any actions that Mr Bishop might have taken. Another Constable saw Mr Bishop put his hands up and walk backwards in an essentially submissive way. There was also evidence that Mr Bishop was not near the end of the fence where he might have easily been able to get around the fence and confront the police officers, including Mr Brennan. Mr Brennan recorded his use of the spray that night in circumstances where he felt such use of the spray was justified because of Mr Bishop's aggressiveness after being told to leave the area on a number of occasions, and because Mr Bishop continued to be aggressive, he was subjected to a one second spray in order to prevent a violent confrontation occurring. Mr Brennan said that his use of the spray was in accordance with his experience as a police officer and in accordance with his specialist training. 116 Although regarded by the Magistrate as the lesser of the two assaults, this matter was pursued in some detail both before the Magistrate, on appeal in the District Court and in the present proceedings on Review in this Commission. It is appropriate that this incident be placed in its context. The Magistrate found that context to be that the two groups had been facing each other, a member of one group was assaulted by a member of the other group and there was potential for violent confrontation between the two groups. Two Constables arrived and formed the view that there was a potential for a brawl which was exacerbated by well-meaning security officers from the Leagues Club removing the person accused of assaulting a member of the other group and in circumstances where it was apparently thought that the offender was getting away with the assault. This action added tension to the situation. These events were then followed by a Constable being confronted by a tall male who pressed his chest against the Constable's torch so that the torch was against the Constable's chest: Mr Brennan had formed the view that there was potential for violent confrontation at this time. After the dog squad arrived, it was thought the atmosphere changed and the Magistrate formed the view that the real potential for further violence between the group and the police had ceased at this point. This was regarded as the "high point" of the defence case and it was noted that, for the rest of the night, the aggression was "solely verbal and not physical", nor was there any evidence of threats of physical violence towards police officers. Mr Jones swore at the police officers: Mr Bishop swore generally. Mr Bishop was described by one police officer as a "loud mouth" and, while the group was verbally aggressive, they abused the police dog. Constable Maziarz thought that the level and pitch of the yelling and screaming at police amounted to the members of both groups being aggressive; Mr Bishop was described as being the ringleader of the group. The Magistrate accepted Mr Brennan's evidence that Mr Bishop was the main "agitator" and had, together with Mr Jones and others, told the police to "fuck off". In cross-examination, Mr Brennan agreed that he did not see any brawl between the two groups and that the members of the larger group were aggressive to police in their language only and reacted offensively to police because of their language. 117 Before the Magistrate, evidence from another Constable was that he had seen a number of scuffles between patrons outside the Leagues Club, a number of whom were intoxicated and arguing with police. Mr Bishop was the "antagoniser" and was "very, very loud", shouting at police and refusing to move. He was extremely intoxicated. Another Constable referred to him as the "instigator" of the group and that his behaviour was such that Constable Gray had said that he would arrest him for offensive behaviour in order to remove him from the group and to quieten things down. When Mr Bishop was told this he became quieter. When the group of four returned from crossing the railway bridge, a Senior Constable warned over the radio that Mr Bishop was "fairly aggro". A group of four came down to the fence which was found to be a little over one metre high (1.01 metres, not 1.5 metres high). Constable Maziarz saw Mr Bishop come to the fence and the Magistrate found on that evidence that the defence case was established, namely, that Mr Bishop was at the fence. At this point, Mr Brennan was 1.5 metres away and Mr Bishop was yelling and swearing and called Mr Brennan a "fuckwit" and a "dickhead". Constable Maziarz did not see any violent resistance, only heard the yelling, but he did not hear any conversation between Mr Bishop and Mr Brennan about getting the mobile telephone from the Leagues Club. He saw Mr Bishop take one or two steps back with his palms out when the spray was pointed at him. However, another Constable thought that Mr Bishop took at least one step back before being sprayed. 118 The evidence shows that both Constable Maziarz and Constable Howarth also had their canisters of spray drawn as they moved towards the fence. Constable Maziarz thought that, as he got closer to the fence, the prospect of violence changed to being mere verbal aggression, yelling. Nevertheless, at this point, three officers, of whom Mr Brennan was the most senior, were sufficiently concerned to have drawn their canisters. Mr Brennan thought that he, being the senior officer, had to take charge of the situation: the other officers were positioned slightly behind him. 119 The Magistrate was critical of the evidence given by Mr Brennan and noted that some of it was recent invention and had been fabricated. Some aspects of it had not been put to the witnesses in cross-examination. He rejected Mr Brennan's evidence that the police at the fence had been threatened and also rejected Mr Brennan's evidence that one of the males said to the police, "Fuck off, we're going to get them. They're not going to get away with this". This was found to be a false justification for spraying Mr Bishop, although this comment was recorded by Mr Brennan in a report made after the incident. Mr Brennan said that Mr Bishop was swearing, was aggressive in his demeanour and attitude, was leaning forwards slightly over the green fence and waving his arm, but he also agreed that he did not see any weapons and he had no evidence of any weapons. He also agreed that Mr Bishop did not threaten to hurt him but was merely being abusive. He found the evidence given by Mr Brennan about another group that Mr Bishop and the others might join was also fabricated. The Magistrate analysed the evidence to show that Mr Brennan's evidence that Mr Bishop was standing at the end of the fence (thereby in a position to get around the fence quickly to confront the officers) was false, whereas, in fact, Mr Bishop was back a number of panels along the fence and not in a position to move quickly around the fence. By waving his hands as was said in Mr Brennan's evidence, the Magistrate also found that Mr Bishop was in no position to vault over the fence. 120 In relation to Mr Brennan's submission that he was acting in self-defence, the Magistrate looked at the Instructions issued by the Police service in relation to the use of the spray and the direction that it was not to be used as punishment or as a threat to enforce directions. Officers were taught to communicate, continually assess and re-assess situations that were dynamic, fluid, evolving and, in effect, to diffuse situations wherever reasonably possible. Here, it was said Mr Brennan had refused to communicate with the four males even though there was evidence of another Constable that, once taken aside, Mr Bishop could be spoken to rationally: there was no reference to Mr Brennan being aware of this fact. The Magistrate ultimately concluded that there was not a reasonable possibility that Mr Brennan believed his conduct was necessary in order to defend himself when he sprayed Mr Bishop. This finding, of course, was overturned on appeal in the District Court. The Magistrate did accept that there was substantial provocation from Mr Bishop because of his protracted, recalcitrant, offensive and obnoxious conduct. However, as a professional law enforcement officer, Mr Brennan should not have allowed his anger to get out of control which had occurred when he used the capsicum spray on Mr Bishop. 121 On appeal in the District Court, this material was again considered and Judge Flannery accepted that Mr Bishop was at the fence at the time of the confrontation with Mr Brennan. Her Honour accepted that Mr Bishop was swearing and carrying on in an abusive way and was not prepared to find that Mr Brennan apprehended that the four men were returning to get Mr Bishop's mobile telephone since Constable Maziarz did not recall any such conversation and there was a real possibility that Mr Bishop was so intoxicated that he was unlikely to be particularly coherent. Her Honour accepted the evidence that the capsicum spray was not to be used as punishment or as a threat to enforce directions: it was to be used if there was violent resistance or confrontation occurring or likely to occur. Her Honour found that there was a reasonable possibility that Mr Brennan believed that his action was necessary in order to defend himself. One Constable was concerned enough about the situation to warn the police over the radio that the situation might escalate again and did so, based on his contact with a very intoxicated, very loud, very obnoxious Mr Bishop a short time prior to the incident with Mr Brennan. It was also noted that Constable Maziarz was concerned enough about the situation to have his OC spray ready for use (although no mention was made that there was evidence that Constable Howarth also had her canister out of its holder). 122 As earlier indicated, her Honour rejected the idea that Mr Brennan's actions were a continuum of his anger, anger that was present in his conduct and handling of Mr Jones and that had continued some 15 minutes later with his spraying of Mr Bishop. Her Honour noted that, frequently, arrests were made in circumstances of excitement, turmoil and panic and it was unfair to the Police to sit back in the comparative calm and leisurely atmosphere of a courtroom to make minute criticisms of what an arresting constable might or might not have done or believed in the circumstances. Her Honour did note, however, that, whilst other police might have responded differently in the circumstances and that it would have been preferable if Mr Brennan had adopted a more measured approach to the situation, she was not prepared to find that the Crown had proved beyond reasonable doubt that Mr Brennan had not acted in self-defence. 123 In reaching this decision, it seems necessary that, to some extent, her Honour must have come to the conclusion that Constable Brennan's evidence in relation the Bishop incident was not as riddled with fabrication as found by the Magistrate. The proceedings before the Magistrate occupied some 10 days in evidence alone and there is some indication that, in giving his evidence, Mr Brennan attempted a form of reconstruction of the events but, in doing so, it was not always abundantly clear that he was simply fabricating evidence rather than, at least on some occasions, trying to put forward a scenario of what must have occurred for certain circumstances to exist, such as losing his grip on Mr Jones. In this part of the case, Judge Flannery appears to have been prepared to stand back from the minute detail and the inconsistencies in evidence, noting the general concern about the aggressive behaviour of this group, the warning given over the police radio and the fact that other officers also drew their canisters in order to make a determination about the reasonableness of Mr Brennan's concern that confrontation was likely to occur. 124 The Commissioner of Police did not have the opportunity of considering this conduct of Mr Brennan absent a finding of common assault. Senior Counsel strongly submitted for the Commissioner of Police that, having regard to the comments of Judge Flannery the conduct of Mr Brennan was that he had acted inappropriately and contrary to his training. That submission fails to give significance to the context in which this confrontation occurred or the fact that a number of officers had expressed their concern in various ways immediately before Mr Bishop was sprayed. The submission can be accepted that use of the spray was use of a weapon, and one specially issued to police officers for use in circumstances that are circumscribed: however, the use of the spray depended on an assessment of the circumstances in each case. While it might be suggested that Mr Brennan could have entered into more communication with Mr Bishop, the evidence was that Mr Bishop was the ringleader and was literally out of control with his screaming and abuse of police, that he had already been told to leave the area and returned in circumstances that gave a number of police officers real concern. In those circumstances, Mr Brennan had directed him on more than one occasion to leave the area or he would be sprayed: he failed to leave as directed. Her Honour's finding that Mr Bishop was at the fence (as also found by the Magistrate) rather suggests that she did not accept the evidence that he stepped back, had stepped back a number of steps or that Mr Bishop had put his hands in the air in a submissive way. Her Honour found as a fact that there was no conversation between Mr Brennan and Mr Bishop about returning to get the mobile telephone, that is, there was a genuine reason offered by Mr Bishop for returning to the Leagues Club. It seems, on a proper consideration of the findings of the District Court, a very different set of circumstances had been found to exist in relation to the spraying of Mr Bishop and those findings were quite different from the findings made by the Magistrate and were also significantly different from the facts contained in the Commissioner's Brief. 125 Senior Counsel for the Commissioner, while accepting that the assault charge arising from the use of capsicum spray had failed in the District Court, urged that Mr Brennan's actions were, nevertheless, a serious breach of the relevant Code and Training regarding the use of the spray and was the result of his ongoing anger. The Commissioner's Brief contained a statement from an officer attached to the Training Unit who offered the opinion that, based on the documentation supplied to him, the use of the spray by Mr Brennan was not in accordance with police training and was not appropriate in the circumstances. The Commission was informed that this evidence was not accepted in the Local Court in light of objections raised on behalf of Mr Brennan. The documentation relied upon in forming that opinion is unknown but was likely to include the material contained in the Commissioner's Brief - the facts found in the District Court differed markedly from that material. In those circumstances, it is unsafe to place any reliance on that opinion for the purposes of this Review. 126 The Commissioner's view was left to be based on the statements made largely by junior officers, that the use of the spray was unwarranted. The evidence of Constable Maziarz was highly regarded by the Magistrate, but he had only been on active duty that week and was a far less experienced officer than Mr Brennan whose training was more extensive in the area of crowd control. No explanation was offered in the evidence in the Local Court as to why two other officers had felt it necessary to draw their canister of spray or for how long they held the spray ready for use. Other officers expressed a view critical of Mr Brennan but in the context that Mr Bishop had given a reasonable excuse for returning, had stepped back, holding his hands up in submission before being sprayed. These matters were not accepted in the District Court and were inconsistent with statements describing Mr Bishop as displaying aggression and agitation whilst being in a heavily intoxicated state when returning over the railway line. 127 On Review, the Commissioner's case ultimately seems to rest on the view expressed in the District Court that it would have been preferable if Mr Brennan had adopted "a more measured approached to the situation". That statement falls well short of a finding of a breach of the Police Code or police training. Indeed, that expression was used in the context of stating that other police may have acted differently but it could not be concluded that Mr Brennan had not acted in self-defence. Ultimately, Mr Brennan made a fine line judgment call that some other police officers may not have made: the Police Code accepts that what is reasonable is to be gauged by the circumstances. The Commission, in considering all this material, has real doubt that a breach of the Code and police training occurred in this incident, especially as many of the elements necessary to establish such a breach were matters that were relevant to the assault charge. Once the District Court found that it was reasonable for Mr Brennan to feel that his actions were necessary in order to defend himself and that there was a reasonable response to the circumstances he perceived he faced, the Commissioner's case on Review effectively becomes an assertion that Mr Brennan should not have felt under threat. That is, in the present circumstances, a very difficult case to establish. No details of his training were placed in evidence to support such a conclusion. Even if Mr Brennan's action amounted to an inappropriate use of the spray, having regard to his training and relevant codes, it was conduct that was at a low level of culpability. 128 Mr Brennan pointed out that, during the previous evening, a woman had spat on him and had ultimately been convicted of an offence. He emphasised that his Superintendent had criticised him for allowing the incident to reach that stage and was told that he should have used his OC spray on the offender. Mr Brennan seemed to rely on this event as placing him under some pressure to respond strongly when faced with aggressive behaviour and where there was a likelihood of violence. Use of the spray before a violent attack requires an assessment of often evolving situations during which decisions have to be made in a split second. The Magistrate had placed great weight on the finding that Mr Brennan was in an angry state during both events and accentuated that point in his judgment. That finding was not followed on appeal and the notion of Mr Brennan acted in anger was rejected. The event involving Mr Bishop took place in circumstances where Constable Howarth thought the group had been violent and argumentative with police. If there was no discussion about returning to the Leagues Club to retrieve the mobile telephone, Mr Brennan acted in circumstances where Mr Bishop had been told continuallyto leave the vicinity but had returned in a very drunken and aggressive state and had again refused to leave, although given several warnings by Mr Brennan. 129 There is an undoubted public interest in ensuring that police officers follow the rules and protocols laid down for the use of any weapon, including capsicum spray. The Commissioner of Police has an interest in ensuring that the public are not put in fear of their safety by police officers using such a weapon without justification. However, the overall picture of what occurred in this incident strongly suggests action taken in volatile circumstances, even though Mr Brennan might have considered other methods. The use of the spray in these circumstances might well have prompted the Commissioner of Police, in the absence of an assault having been made out, to have Mr Brennan undertake further training but this incident, in its proper context, did not warrant the removal of Mr Brennan from the Police service. For the reasons earlier expressed about Mr Brennan's loss of salary and the loss of a career at a very early stage, the Commission is satisfied that, in relation to this episode, it would be harsh to remove Mr Brennan from the Police service. 130 Mr Brennan also relied upon an earlier medical condition and a diagnosis of post traumatic stress disorder. I accept the submission made on behalf of the Commissioner that the medical evidence did not support a finding that his actions in the early hours of 22 May 2005 were attributable to any medical condition. 131 In view of the fact that these two incidents had different results on appeal in the first instance, they have been considered separately against the statutory test to see if there was any unfairness or harshness in the action taken by the Commissioner of Police to remove Mr Brennan from the Police service. It is then appropriate to consider both instances together and, to the extent that there was reference to a Commander's warning in 2005, to also consider that matter in order to have regard to the matters set out in s 181F(3). Having regard to the totality of this conduct, the Commission is unable to reach the conclusion that it represented conduct inimicable to continued service with the Police service. While due regard is to be paid to the fact that the Commissioner has made a determination that he had lost confidence in an officer and great regard is to be paid to ensuring the integrity of the Police service, the penalty of removal from the Police service was disproportionate to the gravity of the conduct of Mr Brennan as ultimately found in the District Court, making the Commissioner's action harsh in removing him from the Police service. The weight to be accorded to the Commissioner's Determination is somewhat diluted in the present circumstances where the sentencing of the Magistrate had not taken place when the Determination was made to remove Mr Brennan from the Police service. Significantly, the Magistrate considered that Mr Brennan was unlikely to offend again and that the harm inflicted was not substantial. As was stated by the Full Bench in Little (No 2), the Commission on Review must have regard to matters beyond whether there was adequate justification for the removal. 132 Mr Brennan's subsequent success on appeal in relation to the alleged assault of Mr Bishop cannot be swept aside as some "technical" victory but goes to the very heart of whether the charge could be made out. Through the process of extensive evidence before the Magistrate in the Local Court and the days of consideration of that evidence in the District Court, it is quite clear that a very different picture finally emerged of the events of that night than appeared in the summaries and the supporting material considered by the Commissioner of Police when issuing his Notice and ultimately determining to remove Mr Brennan from the Police service. Mr Brennan has made some errors of judgment but they are not of such order that the State should lose an officer capable of fulfilling the important duties required under the Police Act. He has discharged the onus of showing that his removal was harsh. He should be returned to the Police service although, undoubtedly, the Commissioner would wish to give consideration to the appropriateness of his continuing at his previous location and to additional training that he should undertake. The Commissioner has not raised any other material that suggests that reinstatement is impracticable. 133 In all the circumstances, it seems appropriate that sufficient time should be given to Mr Brennan to make arrangements about terminating his existing employment and also to permit the Commissioner of Police to give consideration to where he should be appropriately placed on his return to duties. It is the Commission's view that Mr Brennan should be returned to employment with the Police service with continuity of service for the time over which he was absent from the service but without any payment for that period. Any financial loss in this period, which appears to be moderate, is a relatively modest burden that he should bear in all the circumstances. The parties should confer in relation to the orders proposed by the Commission and contact my Associate as soon as possible in order to have the matter re-listed for the making of formal orders and to hear any further, brief submissions that might be necessary in relation to the form of the orders. That re-listing should take place, having regard to the Commission's intention that Mr Brennan should resume his employment as a police officer, within seven days of the date of this judgment.

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