Johnston v Commissioner of Police

Johnston v Commissioner of Police - [2007] NSWIRComm 293 - NSWIRComm 2007 case summary — Zoe

[10]

1 Peter Glenn Johnston ("the appellant") was a police officer with the New South Wales Police between November 1984 and 28 March 2006, when he was removed from the New South Wales Police by order of the Commissioner of Police ("the respondent") under s 181D(1) of the Police Act 1990 ("the Police Act"). The principal findings relied upon by the Commissioner, to which we shall return, were that Mr Johnston had on five occasions caused an illegal access to be made to the Computer Operation Policing System ("COPS") and that between 24 May 2004 and 11 June 2004, Mr Johnston had engaged in conduct which amounted to the stalking/intimidation of Michael Todd. 2 Mr Johnston sought a review of the Commissioner's order. In a decision dated 2 April 2007, Backman J dismissed the application for review of the order: Johnston v Commissioner of Police [2007] NSWIRComm 73. 3 Mr Johnston has sought leave to appeal and to appeal the decision and orders of Backman J pursuant to s 187 of the Industrial Relations Act 1996 ("the Act"). Decision at first instance 4 Backman J set out the factual background in some detail at [7]-[28] of her reasons for decision. Mr A A Hatcher of counsel, who appeared for Mr Johnston, acknowledged that the primary facts (as distinct from the inferences or conclusions to be drawn from those facts and issues concerning medical opinion) were not in significant contest at first instance nor were her Honour's findings as to the primary facts (again, as distinct from the inferences or conclusions to be drawn from those facts and medical opinion issues) the subject of any significant challenge in this appeal. 5 Her Honour, after setting out Mr Johnston's employment history, observed that he received a number of "complimentary remarks" and letters of appreciation from members of the public acknowledging his good police work. In 2002, he received a Commissioner of Police Olympic citation. Her Honour then set out the circumstances surrounding the first accessing of COPS as follows: [7] On 6 January 2001 the applicant was transferred to Waratah Local Area Command. On 19 December 2001 the applicant accessed COPS without authorisation in order to examine registration details of his private motor vehicle WRX-00S. He had apparently purchased the vehicle two months beforehand and had been told that an intelligence report for firearms existed in connection with it. Almost two years later on 5 September 2003 the applicant approached Sergeant Egan informing the Sergeant that there was an "Intell" on his car and inquiring whether he could have it removed. The applicant on 12 January 2004 was interviewed by Detective Sergeant David Muxlow in relation to the earlier conversation with Sergeant Egan about the intelligence report attached to the WRX-00S. At the commencement of the interview the applicant was informed that the police were conducting an investigation into an illegal access to COPS in relation to WRX-00S. During the interview the applicant conceded that he had directly accessed the system and completed an inquiry on WRX-00S. He was then asked a series of questions in relation to his understanding of police access to the system without authorisation. The questions and the applicant's responses are extracted below: Q27: Are you aware of your responsibilities in respect of accessing police computers?

[57]

Based on the abovementioned Grounds 1-2, you are hereby notified that I am considering making an order for your removal from the New South Wales Police under section 181D of the Police Act 1990. In accordance with section 181D(3)(b), prior to making my decision, you are herby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submissions and you are not obliged to do so. 9 At [29] her Honour said: Following advice from the DPP (State) the applicant was charged with two offences under s 308H of the Crimes Act 1900 of unauthorised access to restricted computer data. The charges related to the COPS accesses on behalf of the applicant on 24 May 2004 and on 5 July 2004. At the same time the applicant was charged with stalking and intimidating between 24 May 2004 and 11 June 2004 with the intention of causing Mr Todd to fear physical or mental harm. The applicant was convicted of the two computer access charges at Newcastle Local Court on 16 March 2005 following pleas of not guilty to both charges. The charge of stalking/intimidation of Mr Todd was dismissed. 10 After setting out the relevant legal principles to which neither party took any objection, her Honour then said as follows: [40] In these proceedings the grounds which form the basis of the applicant's removal under s 181D involved allegations of serious misconduct, namely several instances of illegal access to the COPS system either directly or through the innocent agency of junior police officers. In relation to the 24 May 2004 and 5 July 2004 accesses the Commissioner also relied upon the charges brought against the applicant under s 308H of the Crimes Act and the applicant's subsequent convictions in relation to both those charges. Other instances of misconduct which also formed the basis of the Commissioner's Order included a breach of the NSW Police Sick Leave Police on 4 July 2004 (the Nags Head Hotel visit); failures to appropriately record reasons for accessing COPS in relation to the motor vehicles HMB-405 and XAB-126; untruthfulness in relation to the applicant's explanation for accessing details in relation to motor vehicle HMB-405; and, disregarding the warning concerning the consequences of future COPS accesses issued on 1 May 2004 as part of the applicant's Conduct Management Plan.

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(l) the applicant is in desperate financial and personal situation; for example, if he is not reinstated he will lose his house. 14 Her Honour commented on each of these factors at [60]-[70] and then considered the consequences of Mr Johnston's removal as relevant to his interests, balanced against the public interest: s 181F(3)(a). In considering these interests, her Honour referred to evidence called by the respondent from Superintendent David Edwin Swilks, Commander of the Waratah Local Area Command, Mr Johnston's Station at the time of his removal. 15 At [72] her Honour set out a number of concerns raised by Superintendent Swilks if Mr Johnston was reinstated. According to the Superintendent, these concerns were such that "it would not be practicable to reinstate the applicant". Her Honour considered Superintendent Wilks' concerns at [73]-[79], concluding that, in her Honour's view, the concerns had substantial merit. 16 Mr B G Docking of counsel, who appeared for Mr Johnston at first instance, sought to rely on 23 decisions of this Commission concerning the removal of police officers in order to rebut Superintendent Swilks' contention that reinstatement of the appellant would not be "practicable". At [81] her Honour observed that: "Most of the decisions involved assaults by police officers. This type of conduct may well give rise to different public interest considerations from conduct which involves dishonesty and breaches of confidentiality and trust". 17 We do not find particularly helpful the practice of relying on a collection of earlier decisions to support a contention that an order removing an officer from the New South Wales Police Force is harsh, unreasonable or unjust or that reinstatement is practicable. Inevitably, each application for review of an order of the Commissioner of Police must be considered on its own particular facts and circumstances, with the judge being required to reach a decision, based on an overall assessment of the evidence as to whether the decision to remove a police officer is harsh, unreasonable or unjust and, where relevant, whether reinstatement should be ordered. We agree with her Honour's observation at [83] that: [T]he diversity of these responses by the Commissioner highlights again the necessity to focus on the individual circumstances of each case, and why the Commission is not particularly assisted by material which may or may not have been available to the Commissioner and utilised by him in any individual assessment made of the practicability or otherwise of an officer's reinstatement. 18 Comparisons may be of some assistance where it is contended officers who have engaged in the same conduct, or have been involved in the same conduct or related incidents the subject of a loss of confidence decision, have been treated differently or inconsistently. This is not the case here. 19 Her Honour's conclusions were as follows: [84] In addition to these matters the Commission must in the exercise of its discretion under s 181F(3)(a) weigh up the myriad of factors and strike an appropriate balance between two competing interests, namely the applicant's interest and the public interest. These factors have already been dealt with in considerable detail in this Decision.

[81]

Grounds of appeal 20 Leave was granted to the appellant to file an amended application for leave to appeal and appeal. The grounds of appeal pressed by Mr Hatcher were: 2. Her Honour erred in giving extensive and significant consideration to the issue of practicability of reinstatement in determining whether the Appellant's removal was harsh, unreasonable or unjust. 3. Her Honour erred in rejecting the Appellant's case below, based on unrebutted expert medical opinion evidence, that his misconduct was significantly mitigated by his major depressive illness. 4. Her Honour's conclusion as to the consequences of dismissal for the Appellant and his future prospects was unavailable on the primary facts as found and incorrect such as to amount to a failure to have proper regard to the interests of the Appellant as required by 181F(3)(a) of the Police Act 1990. Leave to appeal 21 The appellant put forward four reasons why leave to appeal should be granted: (i) the questions raised by the appeal raise serious issues to be tested, are reasonably arguable, and are of a nature proper to attract leave to appeal; (ii) in particular, the first question raised (F1 above), which was "whether practicality of reinstatement may be considered in determining whether a dismissal is harsh, unreasonable or unjust", is of importance to unfair dismissal applications generally and to applications under s 181E of the Police Act specifically; (iii) by taking into account practicality of reinstatement in her consideration of whether the removal was unfair, Backman J misapplied the statutory tests and made a fundamental error of law which caused the decision making process to miscarry; (iv) the respondent's removal, decision and grounds and the finding and conclusion of Backman J are serious matters, vis a vis, the appellant's future employment and financial prospects. 22 Mr Hatcher submitted that this appeal raised questions of substantial and general importance, which would attract the grant of leave to appeal: Burge v NSW BHP Steel Pty Limited (2001) 105 IR 325 at [4]. In respect of the second reason for granting leave, counsel submitted that the practicability of reinstatement is a matter which the statute requires to be considered in the context of remedy, and in particular, whether reinstatement should be ordered: ss 89(1) and s 89(2) of the Act. It was submitted that Backman J, having found the dismissal neither harsh, unreasonable nor unjust, should not have needed to consider matters relating to remedy. However, having done so, counsel submitted her Honour inverted or conflated what were separate statutory tests. In circumstances where Full Benches of this Commission have repeatedly emphasised the two stage nature of the determination of unfair dismissal applications and the importance of not inverting the separate statutory tests (see Entertainment Distributors Co Pty Ltd v Burnard (1993) 49 IR 446 at 453; Anderson v Northern Co-operative Meat Company Pty Ltd (2004) 137 IR 404 at [33]-[34]; Riley v WorkCover Authority (2006) 151 IR 396 at [95]; Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98 at [54] - [55]), it was submitted that the approach taken by Backman J was directly contrary to those authorities. 23 Mr P M Skinner of counsel, who appeared for the respondent, opposed leave to appeal being granted. 24 Whilst leave to appeal will not be lightly granted and will not be granted when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance, we are satisfied, for reasons which we will develop below, that leave to appeal should be granted in this case. The appeal raises the important question of whether her Honour has inverted or conflated the separate statutory tests in determining the application for relief. We, therefore, propose to grant leave to appeal. Approach on appeal 25 We agree with Mr Hatcher's submissions that having regard to the fact that the decision of Backman J was only that Mr Johnston's dismissal was not harsh, unreasonable or unjust, and that her Honour's findings of primary fact are not challenged in any significant way in this appeal, the principles enunciated in the following authorities are relevant to the determination of this appeal: Hollingsworth v Commissioner of Police (No. 2) (1999) 49 NSWLR 151 at 181 - 182; 88 IR 282 at 310; Burge v NSW BHP Steel Pty Ltd at [4]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37 at [81]-[84]; Commissioner of Police v Evans (2006) 153 IR 144 at [1]. 26 The initial question as to whether a dismissal is harsh, unreasonable or unjust is one that involves mixed issues of fact and law. It does not involve the exercise of discretion. In determining whether the dismissal is harsh, unjust or unreasonable, the Full Bench is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or otherwise established by the trial judge. In deciding what is the proper inference to be drawn, the Full Bench will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. First ground of appeal - Whether her Honour erred in giving consideration to the practicability of reinstatement in determining that the dismissal was harsh 27 The appellant submitted that her Honour fell into error by taking into account in her consideration of whether the dismissal was harsh, unreasonable or unjust, the question of the practicability of reinstatement. In other words, did her Honour make the mistake of determining first that reinstatement was not practicable and from that conclude the dismissal was not, therefore, harsh, unreasonable or unjust? 28 Mr Hatcher submitted that it is well established in the context of determination of applications made under Ch 2, Pt 6 of the Act that the questions of whether a dismissal is harsh, unreasonable or unjust, must separately be determined before any consideration is given to the question of remedy: Entertainment Distributors Co Pty Ltd v Burnard at 453; Anderson v Northern Co-operative Meat Co at [33] - [34]; Riley v WorkCover Authority at [95]; Carlton and United Beverages Ltd v Brunt at [54] - [55]. The process was described by the Full Bench in Burge at [4]: [T]he decision made by Redman C was not solely discretionary in nature. The initial question arising is whether the dismissal was harsh, unreasonable or unjust; in our view, that process involves mixed issues of fact and law: see Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at pp 181-182, (1999) 88 IR 282 at p 310; and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at p 59. If that process leads to a decision favourable to the dismissed employee then the next issue involves the exercise of a discretion as to what, if any, relief should be allowed: cf Port Macquarie Golf Club v Stead (64 IR at p 60). We do not, therefore, view the commissioner's decision as the exercise merely of a discretion. 29 Counsel submitted, and we agree, that the same position applies with respect to an application made under Pt 9, Div 1C of the Police Act given that s 181G of that Act applies the provisions of Ch 2, Pt 6 of the Act to such applications (subject to specified modifications, none of which are presently relevant). The Full Bench held in Hosemans v Commissioner of Police (No 4) (2004) 138 IR 159 at [104]: ... there can be no doubt that a review under the Police Act is akin to unfair dismissal proceedings under the Industrial Relations Act ... a review has as its legislative underpinning proceedings under Division 6, Part 2 (sic) of the Industrial Relations Act relating to unfair dismissals. 30 The appellant submitted that in Anderson at [34], the Full Bench identified the following error in the first instance decision: It is apparent from the decision before us that Ritchie C gave consideration to issues of reinstatement and re-employment before turning to consider whether the dismissal was harsh, unreasonable or unjust. This is an inversion of the statutory test which is impermissible. The approach adopted by Ritchie C was one of reasoning from his findings concerning the statutory remedies to a finding pursuant to s 84. This was wrong in law and principle and resulted, in our view, in the Commissioner ultimately not truly directing his attention to whether the dismissal was harsh, unjust or unreasonable (other than a mere recitation of such a finding at the end of his decision). 31 Mr Hatcher submitted that Backman J fell into similar error. We do not agree. 32 Much of the difficulty in this appeal arises from the structure of her Honour's consideration of the issues at first instance. In the early part of her Honour's reasons for decision Backman J quite appropriately, and with respect, accurately, addressed the factual background, which was largely uncontested, and summarised the applicable legal principles. 33 Then followed her Honour's consideration. Following a brief summary of the appellant's conduct in 2004 her Honour expressed the view at [42] that "the applicant's conduct which formed the basis of the s 181D Order warranted his removal from the NSW Police." Her Honour then proceeded to illustrate her view by reference to a number of findings that she considered were available on the evidence. In this respect, her Honour found that: · at the time of the appellant's unauthorised access to the COPS system in December 2001 there was no evidence that the applicant was suffering depression, · the appellant's attempt to provide an exculpatory explanation for his conduct by emphasising that the details he accessed from the COPS system were his own personal details and not someone else's was a distinction that did not assist him, · in February 2002 the appellant acknowledged that he had received and read the revised Code of Conduct and Ethics issued by the NSW Police, which provided that employees must only access NSW Police information for purposes that are directly relevant to their duties, · the appellant, while in a position of responsibility and trust, accessed confidential information in full knowledge that his accesses were unauthorised and without any reasonable or lawful excuse. This elevates the applicant's conduct into the most serious category, · the appellant began to experience symptoms of depression sometime in 2003 when he commenced a relationship with Constable Wallace, · in seeking to justify access to the COPS system the appellant lied on a number of occasions, · the appellant's lies told over a period of time in relation to his reasons for access served to compound the seriousness of his conduct. At this stage the applicant had read and received the Code of Conduct and Ethics. He would have been well aware that his unauthorised accesses constituted serious breaches of confidentiality and trust, · the appellant was effectively given a second chance in 2004 when he entered the Conduct Management Plan. Despite genuine attempts made by the Police to facilitate his return to full operational duties, and, despite the clear warnings concerning the consequences of any further unauthorised accesses, the appellant chose to disregard the efforts of his supervisors and the warnings when he engineered the accessing of confidential information on two more occasions. He also seriously compromised the position of two junior constables by convincing them that the reasons for both accesses were lawful and involved genuine police work, · the appellant was not entirely candid about the circumstances in which he accessed the details from COPS in relation to his own motor vehicle in December 2001. 34 At [53] of her Honour's reasons for decision Backman J concluded, on a prima facie basis, that the appellant's removal was not harsh, unreasonable or unjust: [53] Much of the evidentiary basis for these findings does not appear to be in dispute. The findings which I have made lead me to conclude prima facie that the applicant's removal under s 181D was neither unjust, nor unreasonable, nor harsh. Nevertheless, the primary focus of the applicant's submissions has been on the first limb of the tripartite test, namely, whether his removal was, in all the circumstances, harsh or too severe. 35 By finding at [53] that the decision was, prima facie, not harsh, unreasonable or unjust, her Honour was, in effect, reserving the question of whether it was, nevertheless, still available to make a decision favourable to the dismissed officer after addressing the mitigating factors raised by the appellant in the context of a consideration of whether the dismissal was harsh. This was consistent with the decision of the Full Bench in Little v Commissioner of Police (No. 2) at [71] - [72] and gives rise to no error. As the decision in Little confirmed, s 181F(3)(a) expressly requires the Commission to consider the "interests of the applicant". As the Full Bench in Little observed, "That consideration plainly requires that the consequences for the applicant of his or her dismissal be a material consideration." We would add that s 181F(3)(b) expressly requires the Commission to also consider the public interest, which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1). 36 We do not consider that her Honour's prima facie finding led her into error. However, it would have been preferable, to avoid any confusion or misunderstanding, for her Honour to have considered all of the matters required by s 181F of the Police Act, including any mitigating factors that might arise in the appellant's favour under s 181F(3)(a), prior to expressing any conclusion about whether the order for the removal of the appellant was harsh, unreasonable or unjust. 37 Backman J then proceeded to comment on each of the mitigating factors put forward by the appellant. At [70] of her Honour's reasons for decision Backman J undertook the exercise of weighing up the mitigating factors (with the exception of the proposed deed containing the conditions to be observed by the appellant if he were to be reinstated). It is apparent that her Honour considered the negative factors outweighed the positive factors. In other words, the mitigating factors put forward by the appellant did not have the effect of changing her Honour's prima facie view that the appellant's removal was not harsh, unreasonable or unjust. 38 Her Honour then considered the evidence of Superintendent Swilks, and this is where there occurs a significant blurring of the distinction between matters that are relevant to a consideration of the public interest pursuant to s 181F(3)(b) of the Police Act (and, therefore, legitimate considerations as to whether or not the appellant's removal was harsh), and matters that are relevant to a consideration of the practicability of reinstatement. 39 At [71] Backman J foreshadowed quite plainly that she was considering the Superintendent's evidence in the context of the requirement to consider the public interest: The consequences to the applicant of removal under s 181D(1) are also directly relevant to the applicant's interests to which I have had regard as required under s 181F(3)(a). These interests, as earlier adverted to, must be balanced against the public interest, one aspect of which is the interest of the NSW Police in maintaining the integrity of its institution. The respondent in advancing this interest relies on the evidence of Superintendent David Edwin Swilks given during the proceedings. Superintendent Swilks is the resident Commander of the Waratah LAC, the applicant's station at the time of his removal. 40 At [71], however, her Honour acknowledged that the Superintendent's concerns related to the impracticability of the appellant's reinstatement to the Police Force and at [72] accepted that the concerns had "substantial merit, both individually and collectively". Her Honour then proceeded to explain why she took this view. In doing so, Backman J referred especially to the concern that the appellant's conduct called into question his credibility and exposed him to attack at any time during which he may be required to give evidence under oath in court and, further, to the concern about the consequences of any recurrence of the appellant's depression and its impact on his decision-making capacity. Her Honour also considered the appellant's reliance on 23 decisions in order to rebut Superintendent Swilks' contention that reinstatement of the applicant would not be "practicable". 41 There is a significant overlap between the matters that might be relevant to the public interest under s 181F(3) (which, as we have noted, includes the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1)), and whether reinstatement of a police officer is practicable. For instance, conduct that calls into question an applicant's credibility and exposes him to attack at any time during which he may be required to give evidence under oath in court, is clearly relevant to whether reinstatement is practicable. It is equally relevant to a consideration regarding the maintenance of the integrity of the Police Force. 42 A further illustration of the overlap is undertakings proffered by a person seeking reinstatement as a police officer, as a condition of his or her reinstatement. In Commissioner of Police v Dobbie (2006) 157 IR 44 the Full Bench considered proffered undertakings by an appellant that he would no longer consume alcohol. The Full Bench stated at [34]: It was then a matter for his Honour, in all the circumstances of the case and having regard to the requirements of s 181F, to consider the implications of the undertaking for the making of a determination as to whether the removal of Mr Dobbie was harsh, unreasonable or unjust. The giving of an undertaking was, as was correctly submitted by Mr Docking , a relevant consideration for the Commission in making a determination as to whether the removal of the police officer was harsh, unjust or unreasonable. It was also a consideration that may have been taken into account in evaluating mitigating factors that may have explained (but not justified) the respondent driving under the influence of alcohol. 43 Further, whether an applicant was suffering from a depressive illness at the time he or she engaged in conduct that attracted a removal order and whether he or she has recovered may be relevant to whether the dismissal was harsh, unreasonable or unjust and to whether reinstatement is practicable. 44 The form and content of proffered undertakings may also be relevant considerations in determining whether, having regard to other considerations as well, reinstatement is practicable. 45 Because of the overlap of matters that might be relevant both to the question of whether the dismissal was harsh having regard to the requirements of s 181F (and particularly s 181F(3)) and to whether reinstatement was practicable, the appropriate course for a judge at first instance is to make it clear which question they are addressing in order to avoid any prospect of falling into appealable error by conflating or inverting the tests for determining, on the one hand, whether the dismissal was harsh, unreasonable or unjust and, on the other hand, whether the remedy of reinstatement was practicable. 46 In the present appeal, we consider that having regard to her Honour's reasons for decision overall, Backman J did not err by basing her decision that the dismissal of the appellant was not harsh on considerations relating to the practicability of reinstatement. At [53] of her reasons for decision, after making findings about the appellant's conduct, Backman J arrived at the prima facie conclusion that the dismissal was "neither unjust, nor unreasonable, nor harsh". Her Honour then considered the mitigating factors and it is apparent that consideration did not have the effect of changing her Honour's prima facie view that the appellant's removal was not harsh, unreasonable or unjust. 47 Backman J proceeded to consider the evidence of Superintendent Swilks, and whilst acknowledging his evidence went to the question of practicability of reinstatement, introduced her consideration of the Superintendent's evidence by foreshadowing that she was considering that evidence in the context of the requirement in s 181F(3)(b) to consider the public interest, which included the maintenance of the integrity of the Police Force. 48 The issues raised by Superintendent Swilks' evidence served to confirm in her Honour's mind that the dismissal of the appellant was not harsh, unreasonable or unjust. At [85], towards the end of her decision, her Honour again referred to the requirements of s 181F(3), stating: All of these considerations lead me to conclude that in weighing up the applicant's interests and the public interest as I have done, the scales must fall in favour of the public interest. I therefore find that the applicant's removal was neither harsh, unreasonable nor unjust.

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50 The appellant submitted in respect of this ground of appeal that her Honour either rejected, or did not properly take into account, the appellant's case, supported by medical evidence. Counsel contended this evidence was not rebutted and that the appellant was suffering from depression at the time of the conduct which led to his dismissal, save for the accessing of COPS in 2001. 51 Mr Hatcher contended that her Honour did not take into account and did not make findings about the medical evidence, or implicitly rejected the notion that it was a matter going to the degree of culpability of the appellant, in relation to his misconduct. Counsel sought to make out this ground by submitting that nowhere in her Honour's reasons does she explicitly take into account, or refer to, the medical evidence concerning Mr Johnston's depression. Mr Hatcher referred to the evidence of Ms Judith Dyer, the appellant's Clinical Psychologist/Occupational Therapist. In a report dated 8 March 2006, Ms Dyer stated that the appellant had 15 consultations with her between 1 October 2003 and 8 March 2006. Ms Dyer recorded the appellant's history, which was that after two years of marriage he was transferred from Sydney to Newcastle with his wife remaining in Sydney. Whilst in Newcastle, he commenced a relationship with another woman and became involved in a romantic triangle. Ms Dyer set out her clinical findings as follows: Mr Johnston was clearly depressed when he began to see me and this went on until at least April 2005 when he was re-assessed (late March 2005 and his depression score was high/moderate. My notes during April 2005 suggest that this had only changed slightly and then there was a gap until February of this year and reassessment in February this year confirms that he is still depressed but his depression symptoms have become mild). The nature of his depression symptoms still reflect ongoing sadness, ongoing lack of confidence, ongoing level of self criticalness, agitation feelings of difficulty with motivation, loss of energy, physiological problems with sleep, loss of appetite, and a raised level of irritability. His ability to make decisions has returned to normal as has his concentration and his fatigue ability. This suggests that he is now much more functional and able to return to work. 52 Ms Dyer's prognosis was that Mr Johnston had now removed himself from the situation that precipitated his depression, that is, "the romantic triangle" and he was beginning to get his life back on track. She observed that in her opinion it was not uncommon for people to make poor decisions in the heat of the moment when depressed to this degree, observing that these decisions can be out of character for the person. 53 Dr Jason Hart, the appellant's general practitioner in a report dated 15 February 2006, noted that on 26 September 2003, the appellant had presented to Dr K Martin with a variety of problems including work stress, relationship problems and panic attacks. Dr Hart noted Mr Johnston described some suicidal thoughts but had no plans as such. He was diagnosed with depression and started on Efexor, an antidepressant medication, and given time off work. There was then reference to various further consultations during 2003 and 2004. On 3 August 2004, Dr Hart observed that Mr Johnston had recently had an overdose of Valium after his wife found out about his affair. Dr Hart concluded that he felt Mr Johnston's ongoing depression may have played a part in his poor judgment, leading to the incidents described in the report. Dr Hart felt that the main factors contributing to Mr Johnston's condition were his relationship difficulties and these were being exacerbated by working with an ex-mistress, although Dr Hart recognised that the appellant's workplace issues may have also contributed to his condition. 54 Dr Bruce Westmore, a forensic psychiatrist, examined Mr Johnston on 23 August 2006. Dr Westmore set out Mr Johnston's history and noted the medication that he had been prescribed. Dr Westmore then stated: I asked him were his actions wrong in relation to the unauthorised computer access. He said: "At the time I probably thought I shouldn't be doing this." He was referring to the incident where he accessed the computer without authorisation. He said when he asked the other police officers to access the computer he had "tunnel vision. I wasn't worried, I wasn't thinking. It was, is she telling me the truth or not, that is all I wanted to do. Looking back, of course it was wrong." I indicated to him that when the unauthorised computer access occurred he was an experienced police officer and he must have known that he was breaching departmental policy. He said in relation to the incident where he acted himself he felt he knew that he "probably shouldn't be" acting in such a way but in relation to the other two incidences he "wasn't thinking of the consequences, I was so stressed, you don't think, whatever..." 55 Dr Westmore, in light of Mr Johnston's history, was of the view that the appellant developed a major depressive illness some time during 2003. He observed that Mr Johnston's prognosis was reasonably good, although having developed a depressive illness, Dr Westmore observed there was a greater risk of it redeveloping in the future. Dr Westmore subsequently observed: If there is no history of inappropriate professional behaviour as a police officer, then it would be reasonable to assume that his major depression played some role in the unprofessional conduct engaged in by Mr Johnston when he had and later requested unauthorised computer access regarding various motor vehicles. His behaviour however was likely to be multidetermined in its origin with his depressive illness playing a substantial role but other factors involving his personality are also likely to have been relevant. I would note again however he does not have an antisocial personality disorder but some personality vulnerabilities are likely to be present in this man. 56 Dr Westmore went on to observe that there were no psychiatric reasons why the appellant could not return to New South Wales Police duties. He stated that he could not say in a definitive way that Mr Johnston would never again act in an inappropriate way as a police officer, although he observed his risks of requesting future unauthorised access to a computer were probably low, particularly if he did not redevelop a major depressive illness. 57 In the light of that evidence, which the appellant submitted was not rebutted, her Honour never made any firm findings as to the fact of Mr Johnston suffering depression, nor whether or not it was a substantial contributing factor to his conduct. It followed, so it was submitted, her Honour had not taken into account a major feature of the appellant's case, or in the alternative, rejected it without giving reasons. 58 Dr Westmore was cross-examined about the observations in his report that other factors involving Mr Johnston's personality were likely to have been relevant. In reference to that comment, Dr Westmore was asked by Mr Skinner: Q: So can her Honour take it from those carefully phrased comments you are not able to say that it was wholly his depression which was creating this unprofessional conduct engaged in by him? A: That's correct. I have in a way excluded a personality disorder in this man and I think that can be done comfortably. I made those comments because I noted his history leading up to his difficulty. His vulnerability to his likely (sic) to be jealous, his ability to cope with that and the probable anger that arises from that. While these emotions affect all of us in our lives, we obviously all react to those stressors in different ways. This man developed a major depression in response to those stressors but the driving force behind that was obviously the problems arising from his relationship, which was jealousy and anger. ... Q. And it was your opinion, was it not, I think you have already said, that perhaps this man does have a vulnerability to jealousy and anger problems that is unconnected to depression? A: I think his behaviour reflects that, yes. 59 In our view, her Honour had, in particular, the evidence of Dr Westmore in mind when she observed at [78]: In addition it was Dr Westmore's opinion that the applicant's conduct was not influenced solely by his depression but was "multi-determined". Dr Westmore suggested "personality vulnerabilities" as likely contributing factors. If this is correct then it represents an additional risk that may confront the NSW Police in assessing whether or not the applicant's impugned conduct may recur. In this regard the fact that the applicant was a repeat offender, having accessed the COPS system without authorisation on five separate occasions between December 2001 and July 2004, (the first access unaffected by any symptoms of depression) must add to this concern. 60 Clearly, her Honour was assessing the issue of depression and giving it weight in accordance with Dr Westmore's evidence, in particular, that it was only one of the factors that led to the appellant engaging in the illegal conduct. Her Honour had earlier considered the evidence of Dr Westmore in detail at [61] - [65] and particularly at [70] where her Honour noted Dr Westmore's assessment that it was "reasonable to assume" that the depression played "some role" in the misconduct, was predicated upon the condition that the appellant had exhibited no prior inappropriate behaviour as a police officer. Her Honour went on, correctly in our view, to observe that the December 2001 unauthorised access disclosed that the condition could not be relied upon to support the assessment, although we note that Dr Westmore did not consider the 2001 illegal access of COPS and that the circumstance surrounding that access were different to those in 2003 and 2004. 61 Nevertheless, it was clearly open to her Honour to come to the conclusion that it was "difficult to be confident that the misconduct will not recur". Her Honour, as is required by s 181F of the Police Act, was endeavouring to take into account the appellant's interests. It is not correct to say that her Honour rejected Dr Westmore's evidence. Rather, it seems to us that she accepted it but concluded that neither it, nor the other evidence as to the appellant's condition, mitigated to the extent that it displaced her Honour's prima facie conclusion that the appellant's removal was not harsh. The process of reasoning undertaken by her Honour, in reaching this conclusion, was clearly open to her on the evidence. We can discern no basis for error. 62 On a proper reading of her Honour's decision, Backman J considered whether the depression suffered by the appellant diminished his culpability and rendered his dismissal harsh. Her Honour had proper regard to the evidence of Dr Westmore (there was no other psychiatrist called). Her Honour was considering this evidence in the context of the submissions put on behalf of the appellant in mitigation. Section 181F(3) does not dictate what weight or influence each of the particular matters is to have on the decision to be made. Ultimately, her Honour decided, taking into account all of the mitigating circumstances, the dismissal was not harsh. 63 Overall, we would have to observe that the medical evidence regarding the appellant's depression and the evidence it had resolved, favoured the appellant. But as we have already stated, the issue of the appellant's illness was only one of the factors that the trial judge was required to take into account in the complex mix of factual and legal considerations relevant to the question of whether the appellant's removal was harsh. 64 Although an appellate court or tribunal is duty bound to reverse conclusions based on a trial judge's views of facts when those views of facts are plainly wrong, an appellate body is equally bound not to reverse such decisions of a trial judge merely because a different view is taken from that of the trial judge of the findings that should have been made: Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 43. Third ground of appeal - Whether her Honour failed to properly have regard to the interests of the appellant 65 It was submitted for the appellant that the conclusion her Honour reached at [70], where it was stated that: Nor can there be any doubt that the applicant's economic and financial circumstances have suffered since his removal. On the other hand the evidence also suggests that the applicant is young and healthy and self-employed running a gardening maintenance business and therefore may be said to have reasonable prospects for his economic future

[85]

was wrong, or alternatively, not open to Backman J on the primary findings already made. 66 It will be recalled that mitigating factor (l) was: the applicant is in desperate financial and personal situation; for example, if he is not reinstated he will lose his house. 67 Her Honour dealt with factor (l) at [68] - [69] where she stated: [68] The applicant in his statement prepared for these proceedings says that he had been, "struggling to make ends meet". He is presently self-employed and works in the Newcastle area cutting lawns and gardening for which he says he earns about $200 per week. Since being placed on suspension, first with pay and then without pay, and then removed under the s 181D(1) Order, the applicant estimates that he has suffered economic loss (as at 31 October 2006) in an amount of $83,731.27. This amount does not include legal fees. The applicant also describes his loss in terms of lifestyle, contentment and job satisfaction as, "incalculable". He says he loved his job as a member of the NSW Police and describes the day he was removed as "...truly one of the worst days of my life". [69] In his oral evidence during the proceedings the applicant said that if he is not reinstated to his former position he will have to sell the matrimonial property. He also described his financial situation as "very desperate". Mr Docking 's submissions sought to emphasise what he called the applicant's, "...desperate financial situation and personal and economic loss". He handed up an extract of the Crown Employees (Police Officer-2005) Award which sets out the base salaries for non-commissioned officers and includes the applicant's rank of senior constable which he held prior to his removal. Under the Award a senior constable level 1 earns a base salary of $53,976. At the time of these proceedings the applicant by comparison earned only $200 per week. 68 Mr Hatcher submitted that the primary finding in [68]-[69] could not lead to a conclusion in [70] that the appellant "may be said to have reasonable prospects for his economic future." Counsel further submitted that in light of this erroneous finding, the appellant's interests were not, therefore, properly taken into account as required by s 181F(3)(a) of the Police Act. 69 The difficulty in accepting the appellant's contention on this issue is that her Honour dealt, in [70] of her reasons for decision, with the particular matter in a more general way. Although her Honour's consideration extends over a number of paragraphs, from [70], it is sufficient for present purposes to note the terms of [70] and [71] (emphasising the particular part of [70] the appellant relied on): [70] As these factors suggest it is not in dispute that the applicant for a number of years as a serving member of the NSW Police acquitted himself satisfactorily and achieved a number of accolades attesting to his good police work. A number of character references attached to the applicant's submission to the Commissioner are warmly supportive of his integrity, capabilities, sense of professionalism and generally respectful nature. Nor can there be any doubt that the applicant's economic and financial circumstances have suffered since his removal. On the other hand the evidence also suggests that the applicant is young and healthy and self-employed running a gardening maintenance business and therefore may be said to have reasonable prospects for his economic future. The inference available from the evidence concerning the applicant's mental state is that he is still at least mildly depressed to the extent that he remains on anti-depressant medication. If, as the applicant suggests, his depression lay at the heart of his misconduct in relation to the unauthorised COPS accesses (as well as his behaviour associated with those accesses including his lies to both investigating officials and junior police), then it is somewhat difficult to be confident that the misconduct will not recur. This view has received some support from Dr Westmore's evidence. More significantly, Dr Westmore's assessment that it was "reasonable to assume" that the depression played "some role" in the misconduct, was predicated upon the condition that the applicant had exhibited no prior inappropriate behaviour as a police officer. The December 2001 unauthorised access, however, discloses that this condition cannot be relied upon to support the assessment. [71] The consequences to the applicant of removal under s 181D(1) are also directly relevant to the applicant's interests to which I have had regard as required under s 181F(3)(a). These interests, as earlier adverted to, must be balanced against the public interest, one aspect of which is the interest of the NSW Police in maintaining the integrity of its institution. The respondent in advancing this interest relies on the evidence of Superintendent David Edwin Swilks given during the proceedings. Superintendent Swilks is the resident Commander of the Waratah LAC, the applicant's station at the time of his removal. 70 When the overall context in which her Honour considered the financial aspect of the appellant's case is taken into account, it is plain that her Honour concluded that aspect was not such that, when considered in the overall circumstances of the issues, with particular regard to the public interest, it should lead to the conclusion that the appellant had been dealt with harshly. In any event, a finding that there were "reasonable" prospects for the appellant's economic future may hardly be said to be inconsistent with the fact that the appellant was "young and healthy and self-employed running a gardening maintenance business". 71 The Full Bench in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392-393, in discussing the role of the Full Bench in appeals under the Act, observed: However, this appeal bench should not substitute its own views as to a decision which was reasonably open at first instance. The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. 72 We are unable to conclude that this aspect of her Honour's findings was not open. 73 Mr Hatcher raised the undertakings proffered by the appellant as a condition of his reinstatement. As we earlier stated, the undertakings are matters properly to be considered in the context of a consideration as to whether the dismissal was harsh. Although her Honour only dealt with this issue briefly, at [80] of her reasons for decision, it is apparent that Backman J took the view, in the context of her consideration as to maintaining the integrity of the Police Force, that the undertakings "would not necessarily dispel or alleviate the risk that the applicant may nevertheless attempt further unauthorised accesses." Having regard to the whole of the evidence, that finding was open to her Honour. Conclusion 74 Whilst we accepted, in granting leave, that the grounds of appeal pressed by the appellant were at least arguable and raised the important question of whether her Honour had inverted or conflated the separate statutory tests in determining the application for relief, ultimately none of the grounds of the appeal were made out by the appellant. 75 Accordingly, we conclude that there was no appealable error. It follows that we should dismiss the appeal. ORDERS 76 The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.

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