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.