Johnston v Commissioner of Police

Johnston v Commissioner of Police - [2007] NSWIRComm 73 - NSWIRComm 1998 case summary — Zoe

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1 This is an application under s 181E of the Police Act 1990 (the Act) for review of an Order of the Commissioner of Police dated 28 March 2006 under s 181D(1) of the Act removing the applicant from the New South Wales Police. 2 The Order which resulted in the applicant's removal from the NSW Police was based on two principal findings made by the Commissioner. 3 The first finding alleged that the applicant had on two occasions caused an illegal access to be made to the Computer Operation Policing System (COPS system) by two junior police on 24 May 2004 and on 5 July 2004. In addition the applicant was said to have provided false reasons to both junior police in order to justify the accesses. The unauthorised accesses were also said to involve a breach by the applicant of the New South Wales Police Code of Conduct and Ethics. A further finding associated with the circumstances of the unauthorised accesses was that between 24 May 2004 and 11 June 2004 the applicant had engaged in conduct which amounted to the stalking/intimidation of Michael Todd by driving past Mr Todd's home "on a number of occasions" and on one occasion loitering near the home. A further associated finding was that on 5 July 2004 the applicant breached the New South Wales Police Sick Leave Policy when he attended the Nags Head Hotel while on sick leave. 4 The second finding concerned three earlier allegedly unauthorised accesses made to the COPS system directly by the applicant. The first of these occurred on 19 December 2001 when the applicant accessed the system to obtain registration details of his private motor vehicle WRX-00S in order to obtain details of an intelligence report linked to the vehicle. In relation to the second and third accesses the impugned conduct was said to be partly the applicant's failure to establish an appropriate reason for making each access. In relation to one of those accesses which concerned a vehicle, registration number HMB-405, it was alleged that the applicant had been untruthful to investigating police when giving his explanation for the access. In relation to both accesses it was alleged that the applicant failed to keep appropriate records. Following the investigation into these latter three accesses the applicant's salary increment was deferred for six months and he was placed on a six month Conduct Management Plan effective 1 May 2004. At the same time he was given a warning about computer accesses and the consequences of any further unauthorised accesses. The applicant was found to have disregarded this warning when on 24 May 2004 and on 5 July 2004 he arranged through the two junior police officers to access confidential information from the COPS system for his personal benefit and without legitimate reasons. 5 The applicant seeks reinstatement to his former position with the NSW Police. At the time of his removal the applicant held the rank of senior constable. He was on sick leave from about July 2004 until about January 2005 when he was suspended from duty with pay. His weekly gross income was about $800. Factual background

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Later in the interview the applicant insisted that the vehicle's association with Kristie's house was a coincidence and that he had never seen the car at that address. 12 The following day Mr Liddell was interviewed by the police. He confirmed he owned HMB-405 and that he drove it about twice a week to Kristie's house. He explained that Kristie was his sister-in-law and that he was friendly with her and her husband Richard. He said he knew Constable Wallace who was a regular visitor to the house and he knew that she was seeing another police officer who he knows as "Johnno" and has met "probably twice or three times". 13 The applicant's co-worker on 1 and 2 August 2003, Constable Mary Griffin was also interviewed in relation to the "possible illegal computer accesses" by the applicant. She recalled that either in the evening of 1 or 2 August the applicant drove past a house (conforming to the description of Kristie's house) a few times driving slowly on each occasion. She said there was a Kombi van parked in the driveway and she recalled the applicant remarking "I wonder what the registration of that car is". On both evenings she said she observed Constable Wallace's car parked on the street outside the house and on one of those evenings she saw Constable Wallace crossing the road with a female friend. She said at that time the applicant slowed down the car and watched Constable Wallace through his rear view mirror. She said the applicant later that evening had dropped her off at the station and driven away by himself returning after some forty minutes. 14 Shortly after the completion of the internal investigation into the applicant's unauthorised COPS accesses the police issued an Order under s 173(2)(c) of the Act in which a number of adverse findings were made against the applicant. A principal finding was that the applicant's version with regard to his explanation for accessing the details in relation to HMB-405 on the COPS system (that it was a suspicious vehicle) was not accepted and his account found to be untruthful. He was also found to have breached the New South Wales Police Service Code of Conduct. Pursuant to the Order under s 173(2)(c) his salary increment due on 18 November 2004 was deferred for a period of six months. 15 The applicant was also placed on a Conduct Management Plan for six months commencing on 1 May 2004. The Plan was in direct response to the results of the internal investigation. It reflected a decision at that time not to proceed against the applicant by laying criminal charges but to proceed managerially. It identified the adverse findings made against the applicant following the investigation. These were:

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Failure to complete the outcomes as described in this Conduct Management Plan may lead to consideration of reviewable action in accordance with s 173(2) of the Police Service Act 1990 or termination in accordance with s 181D of the Police Service Act 1990. 17 For completeness it should be mentioned here that the third finding made against the applicant set out in the Conduct Management Plan (and in relation to which the strategy and outcomes were also directed) involved an allegedly unauthorised access to the COPS system by the applicant on 13 August 2003. This access was in relation to a motor vehicle, registration number XAV-126. The applicant was also asked a series of questions in relation to that vehicle by Detective Sergeant Muxlow during his interview of 12 January 2004. The internal investigation does not appear to have made any adverse findings in relation to the vehicle except concerning the applicant's failure to independently record his reasons for access. 18 On 26 September 2003 during the internal investigation into the three alleged unauthorised COPS accesses the applicant first saw a general practitioner, Dr Jason Hart, in relation to a range of problems including work stress, relationship problems and panic attacks. According to the applicant Dr Hart diagnosed him with depression and prescribed anti-depressant medication, as well as recommending the applicant take sick leave. The applicant in fact took sick leave from October 2003 until January 2004. He also commenced counselling sessions with a clinical psychologist Judith Dyer. Ms Dyer first saw the applicant on 1 October 2003. She made a clinical finding that the applicant was "clearly depressed" when he first visited her. 19 On 24 May 2004 Constable Wallace and a person by the name of Michael Todd went out to dinner. At this stage it appears that her relationship with the applicant had ended. The couple returned to Constable Wallace's residence about 8.30pm. Mr Todd left his vehicle (registration number WVU-871) parked outside the residence. A short time later the applicant knocked on the front door calling Constable Wallace's name. Neither she nor Mr Todd answered the door. After the applicant left, Mr Todd drove his vehicle home. Constable Wallace followed Mr Todd in her own vehicle. At about 10.40pm that same evening the applicant contacted Senior Constable Frank Ziliotto and requested a check of a vehicle on the COPS system saying:

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[D]uring our relationship Megan made numerous threats to tell Fiona (the applicant's wife) about our relationship. I think this can be verified by her mother. She has also been violent towards me on occasions for example, she asked me to make her a sandwich, whilst I was making her a sandwich I wasn't cutting the tomato right. She went off and because I was so stressed out and depressed I then threw the knife down on the floor and said if you are not happy with it do it yourself. She then became very angry and told me to fuck off and get outside. I tried to explain that I am under a lot of stress and pressure. She thought I threw it at her but I didn't. She grabbed me by the throat and forcibly pushed me outside and she told me to fuck off and if I ever come back near her she will get an AVO out on me. She threatened to get an AVO on numerous times. I then left upset. She then contacted me about three days later apologising. Megan's got a very bad temper and it seems that when she doesn't get what she wants she gets upset and because of this I had about three months of (sic) from August last year for depression and stress caused by her. It was at this time I started taking anti-depressants and I believe I started seeing a psychologist during that time. She has given me a black eye in the past without being provoked. On one occasion I believe it was April this year she sat off my house for about two hours which can be verified by a neighbour. 29 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. Notice under s 181D(3)(a)

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[104] We agree with the approach of those authorities. As a matter of statutory construction there can be no doubt that a review under the Police Act is akin to unfair dismissal proceedings under the Industrial Relations Act (subject to limited modifications). Contrary to his Honour's conclusions a review has as its legislative underpinning proceedings under Division 6, Part 2 of the Industrial Relations Act relating to unfair dismissals. The language of s 181G(1) of the Police Act unambiguously states that the provisions of the Industrial Relations Act apply to an application for review in the same way as they apply to an application relating to an unfair dismissal under Part 6 Chapter 2 of the Industrial Relations Act subject only to the modifications denoted. Those modifications have no material impact upon the considerations applicable in this matter (and in any event are quite confined). Further, those modifications do not detract in any fundamental sense from what we see is the overriding intention and purpose of s 181G, that is, as expressed by the Full Bench in Newton (No 2) to which we have earlier referred. We concur with and reaffirm the view expressed on that occasion (at 80) as follows: The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. Relevant to the matter of concern raised by Mr Hendy is the limitation placed upon the introduction of new evidence by s 181G(1)(f) and (2); the protection thereby afforded to a dismissed police officer is manifest. It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply. 38 In a comment on the above extract from Hosemans v Commissioner of Police , Boland J said:

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[29] The decision of the Full Bench in Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 at [134]-[136] is clear authority for the proposition that the Commission's task in undertaking a review of any order made under s 181D of the Police Act was to undertake the review and make a fresh and independent decision based on all of the material before the Commission and not merely a review of whether the Commissioner's decision was correct at the time it was made. Consideration 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. 41 In opening submissions the applicant's counsel, Mr Docking, informed the Commission that the applicant had admitted that on 24 May 2004 and 5 July 2004 he caused illegal accesses to be made by other officers to the COPS system. Under cross-examination by the Commissioner's counsel, Mr Skinner, the applicant agreed that he lied when responding to questions 10 and 11 of his record of interview of 16 March 2004 (referred to earlier in this Decision). Those particular questions had related to the details concerning HMB-405. In his record of interview conducted on 25 August 2004 the applicant volunteered that he had been to the Nags Head Hotel on the evening of 4 July 2004 although he had been on sick leave at the time. In his submission in response to the s 181D Notice the applicant said that on 4 July 2004 he was genuinely unwell and had taken sick leave, but that earlier that evening two other senior constables had told him that they had overheard Constable Wallace say that she was seeing another man. This had upset him and he needed to get out of the house. In relation to his requests for access to the details of motor vehicles WVU-871 and AJO-212 on 4 May 2004 and 5 July 2004 respectively, the applicant said he assumed Constable Wallace was with someone else and so he did not think about the consequences of requesting the checks. He added that he was not thinking rationally on either occasion because he was suffering from severe depression. In the same submission the applicant also said he had been open and honest about accessing his own motor vehicle details on the COPS system on 19 December 2001 and that he did not compromise any other individuals' rights. In relation to the applicant's access to the details of HMB-405 he said that every day he regrets his untruthfulness. In relation to the allegation that he disregarded the Conduct Management Plan he said that he deeply regretted his actions but simply did not think through the consequences. He added:

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He did not recall why he accessed the details in relation to the motor vehicle XAB-126 although he said it was not for personal reasons. 42 In my view the applicant's conduct which formed the basis of the s 181D Order warranted his removal from the NSW Police. This view may be illustrated by reference to a number of findings available on the evidence. 43 First, at the time of the applicant's unauthorised access to the COPS system in December 2001 there was no evidence that the applicant was suffering depression. Nor is there any evidence upon which it may inferred that the applicant otherwise had any personal problems or any problems over and above what may be generally associated with the work undertaken by members of the NSW Police. The applicant has sought to provide an exculpatory explanation for his conduct by attempting to emphasise that the details he accessed from the COPS system were his own personal details and not someone else's. I do not think the distinction assists him. The gravity of the conduct is not diminished because the access was confined to the applicant's personal details. At that time the applicant had been a serving member of the NSW Police for several years. He had been promoted to the rank of Senior Constable some two years earlier in November 1999. There can be no doubt that the applicant was aware of the importance of maintaining the integrity and confidentiality of the COPS system and of the obvious necessity of exercising responsibility at all times in relation to accesses to the system. This must be especially so given the applicant's relatively senior rank within the hierarchy of the NSW Police. 44 In February 2002 the applicant acknowledged that he had received and read the revised Code of Conduct and Ethics issued by the NSW Police. A further revised Code dated October 2006 was tendered into evidence on behalf of the Commissioner. The Code contains ten principles. Principle 8 deals directly with the requirements and the strict limits which must be observed when accessing, using or disclosing confidential information. Principle 8 provides in full:

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These facts compel the inference that in December 2001, the applicant, 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. 46 Secondly, according to the evidence, the applicant began to experience symptoms of depression sometime in 2003 when he commenced a relationship with Constable Wallace. The accessing of details in relation to HMB-405, the applicant explained was at least partly attributable to his mental state, which he said in his record of interview dated 25 August 2004 (extracted earlier) prompted irrational behaviour and a lack of concern for the consequences. In relation to this incident as well as the unauthorised access in December 2001, the applicant was interviewed on at least two occasions and his version compared with the interviews and the statements of other parties including the owner of motor vehicle HMB-405 and the applicant's co-worker, Constable Mary Griffin. Not surprisingly given the overwhelming evidence which tended to directly contradict the applicant's versions, he was disbelieved. In fact, the applicant lied on a number of occasions when formally questioned about the reasons for his accessing of the details concerning the motor vehicle HMB-405. In the 1 March 2004 record of interview he said that he accessed the details because the vehicle, "...just appeared a bit sus". Later in the interview in reply to a question as to why he didn't complete an intelligence report on the vehicle he said, "...it just looked a bit sus but it probably didn't warrant an intell". 47 It will be recalled that after the interview, statements were obtained from the various persons involved in or connected to the applicant's access to the HMB-405 details. On 16 March 2004 the applicant was reinterviewed and again asked why he accessed the details. Again the applicant lied, seeking to justify the access by saying, "...I just didn't think it was right so I did a transport on it". 48 The applicant's lies told over a period of time in relation to his reasons for access serve 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. 49 Thirdly, the applicant's conduct having been fully investigated, the decision was taken not to proceed against the applicant by bringing criminal charges against him but to subject the applicant to the Conduct Management Plan. This Plan it will be readily observed from the evidence was carefully and comprehensively tailored to facilitate the applicant's return to full operational duties so that he could continue to serve as a full time and valued member of the NSW Police. Considering the extent of the applicant's transgressions the Plan focussed on strict supervision and consistent monitoring of the applicant's progress. It was impressed upon the applicant that the consequences, should the Police detect any further illegal computer accesses, could be severe and, that failure to complete the outcomes described in the Plan could result in the applicant's termination under s 181D of the Act. 50 The CCS reveals that following the commencement of the Plan the applicant's performance in relation to his adherence to the various strategies and outcomes was consistently and comprehensively monitored over a period of time. Sometime in October 2004 a Performance Development Plan review conducted by Sergeant Dan Skelly notes that the applicant is subject to a high level of supervision and has no COPS access. At the end of the review Sergeant Skelly remarks that the applicant's duties are basic and boring and that he should be performing more effective work. The Sergeant proposes that the applicant be given supervised access to the COPS system in order to allow him to perform warrants/summons and station duties. 51 The applicant was effectively given a second chance 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 applicant 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. As a result, at least one officer was himself subjected to an internal investigation although ultimately no adverse findings were made against him. In addition the two accesses made on 24 May 2004 and 5 July 2004 also involved, as did the access in relation to the motor vehicle HMB-405, the personal and confidential information of innocent members of the public who were entitled to have the information kept outside the public domain and who were also entitled to trust in the integrity of the system and those utilising it so that it was not open to abuse. Mr Todd, for example, expressed, "extreme concern", that a police officer had access to his personal details without authorisation and as a result knew where he lived. Mr Todd's concerns were exacerbated when the applicant drove past Mr Todd's private residence on two occasions. 52 Fourthly, the applicant 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. In his submission in response to the s 181D(3)(a) Notice the applicant asserted that after he accessed the COPS system for details in relation to his private motor vehicle he approached an intelligence officer to see if the "Intell report" apparently connected to the vehicle could be removed. He added, "once again, I was open and honest about my conduct in a way that was contrary to my interests". In the record of interview of 12 January 2004 the applicant informed the interviewing police that he thought the access, "was in good faith". It emerged however during the interview that the intelligence officer, a Sergeant Egan, had not in fact been approached by the applicant in relation to the prospect of removing the Intell report on the motor vehicle until some two years after the applicant had accessed the details without authorisation. When he was asked why it took two years to approach someone about the "Intell report" the applicant did not provide a satisfactory explanation:

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61 According to the applicant, after he commenced a relationship with Constable Wallace, he became depressed and this condition affected his actions in relation to the unauthorised accesses to the COPS system. His condition has been confirmed in a number of reports tendered into evidence on his behalf. The applicant was first diagnosed with depression when he visited a general practitioner, Dr Jason Hart, on 26 September 2003. Dr Hart prescribed Efexor, and anti-depressant medication. Dr Hart's report chronicles a successive number of visits between 26 September 2003 and 1 February 2006 during which, at various times, the applicant's medication dosage was increased. In relation to the last reviews of the applicant's condition by Dr Hart, which took place between 12 January 2005 and 1 February 2006, Dr Hart comments that his condition was, "much the same", and that the prognosis is, "... that he will have the depression as a chronic condition". 62 Commencing from 1 October 2003, the applicant saw Ms Dyer, a clinical psychologist. Ms Dyer says that the applicant was "clearly depressed" during the period October 2003 until at least April 2005, at which time his "depression score" was recorded as "high/moderate". In February 2006, following a reassessment, she says, somewhat contradictorily to Dr Hart, that the applicant's depression symptoms had become mild, which she believes indicates that the applicant has recovered from his depression. 63 On 23 August 2006, the applicant visited Dr Westmore, a forensic psychiatrist. In a report dated 29 August 2006, Dr Westmore concluded, based on the history provided by the applicant, that the applicant had developed a depressive illness sometime during 2003, that it took a chronic course which required medication, and that at the time of the applicant's examination on 23 August 2006, the "major depression" had resolved, and he was at a "low risk of re-offending". Dr Westmore, however, added a cautionary note, commenting that although the applicant's prognosis was, "probably reasonably good ... having once developed a depressive illness he is probably at greater risk of redeveloping further illnesses of that type in the future". 64 In relation to the role played by the applicant's depressive condition in the unauthorised accesses to the COPS system, Dr Westmore said:

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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. 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. 72 Superintendent Swilks raised a number of concerns if the applicant were to be reinstated. According to the Superintendent these concerns are such that it would not be "practicable" to reinstate the applicant. His concerns have been set out in his statement tendered into evidence. In summary form they propose:

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(f) the NSW Police have concerns about the consequences of any recurrence of the applicant's depression and its impact on his decision-making capacity and whether he will be able to adequately perform as a police officer in the best interests of the community. 73 All of these concerns in my view have substantial merit, both individually and collectively. Were the applicant to be returned to full operational duties he would at some stage, in all probability, be required to give evidence under oath. Prosecutorial duties of disclosure would require that the defence be informed of the applicant's criminal record. The nature of the offences, involving as they do breaches of confidentiality and honesty, may well be perceived to impact on the applicant's credibility as a witness. Reinstatement of the applicant to his former position as a senior constable would, by virtue of his rank, place the applicant in a position where he would be expected to direct and lead junior officers. The circumstances of his conviction and removal however (and general police awareness of those matters) may serve to undermine the applicant's authority and his ability to direct and lead in the eyes of both junior and senior police. 74 In order to fully discharge his duties the applicant would need to have access to the COPS system. I agree with Superintendent Swilk's view that in light of the applicant's conduct the applicant's access to the system would require constant supervision. This view is reasonable given the history of the applicant's accesses earlier referred to in detail. The first access was direct and occurred when the applicant was not at all affected by depression. The second and third accesses were detected by the NSW Police and the decision made to give the applicant a second chance by choosing to manage his behaviour through the Conduct Management Plan. The applicant abused this opportunity by causing two further unauthorised accesses on both occasions, lying to junior police officers and seriously compromising their positions. In addition, the COPS system is necessarily an open one requiring constant access by most members of the NSW Police in order to properly and efficiently discharge their duties. The necessity to maintain an open system in turn gives rise to opportunities for abuse. It is imperative that the public can be confident that members of the NSW Police will access the system only for lawful purposes. The system contains personal and confidential information which the public is entitled to have protected, with access restricted only to those instances where it is properly authorised. It is equally imperative that the NSW Police can properly acquit itself of that public confidence. 75 The fact that Constable Wallace and six other members of the NSW Police involved in the applicant's internal investigation remain stationed at the Waratah LAC may pose administrative problems for the area if the applicant were to be reinstated. 76 The Superintendent's concerns that the applicant's depression may recur and negatively impact on his performance as well as his conduct, are well founded. First, the applicant has sought to explain his behaviour in relation to the last four COPS accesses on the basis that he was severely depressed and was not therefore thinking rationally or thinking about the consequences. The applicant has not fully recovered from his depression. Although he says he remains mildly depressed he also remains on anti-depressant medication for an indefinite period. Furthermore, Dr Westmore gave the applicant a rather cautious prognosis when he remarked that, "...from a psychiatric perspective it is probably reasonably good". Of perhaps even greater significance however was Dr Westmore's additional observations about the likelihood of a recurrence of the applicant's depression, namely:

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There was no history that I got which might lead me to believe that he would not have known, being an experienced police officer, he would have had some understanding that what he was doing was wrong. At the time he said, "I wasn't thinking "; that was his explanation. "I wasn't thinking". He possibly could have said, "I wasn't thinking clearly" but there was no psychiatric reason which I could identify, no presence of mental illness as such which would deprive him of the capacity that he shouldn't know, what he would know not to do that, that he would not know not to do that. 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. 79 Thirdly, the December 2001 access reveals that on at least one occasion the applicant knowingly, without authorisation, and unaffected by depression accessed the COPS system. Dr Westmore's conclusion that there are "...no psychiatric reasons why (the applicant) could not be considered favourably to return to the NSW Police..." was dependent in no small measure upon an assumed condition that the applicant while a serving member of the NSW Police had no previous history (that is prior to his depression) of "inappropriate behaviour". Again this must add to the Superintendent's concerns that the applicant's inappropriate behaviour in accessing confidential information without authorisation may recur. 80 Mr Docking's proposed conditions of reinstatement, focussed primarily on monitoring and controlling the applicant's depression should it become more severe. Apart from placing further administrative burdens on the NSW Police, the above analysis suggests that the conditions would not necessarily dispel or alleviate the risk that the applicant may nevertheless attempt further unauthorised accesses. 81 The applicant also sought to rely on twenty-three decisions in order to rebut Superintendent Swilks' contention that reinstatement of the applicant would not be "practicable". 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 such as the present matter. This is especially so where most of the decisions deal with isolated incidents as opposed to a pattern of consistent conduct. The public may well maintain its confidence in a member of the NSW Police who has on one occasion only or in relation to one isolated incident indulged in misconduct, such as an assault. The majority of the decisions also reveal that the assaults were perpetrated when the officers in question were intoxicated. While this brief comparison by no means attempts to excuse the misconduct it does serve to illustrate that in considering applications such as the present by reference to other instances of police misconduct, each matter must turn on its own facts. 82 In the decision of Cassel v Commissioner of Police [2003] NSWIRComm 73 Peterson J in deciding to reinstate the applicant was influenced to a not insignificant extent by the fact that the applicant's misconduct which related to sexual harassment and other inappropriate behaviour, had been successfully managed under a management plan. The decision of Director of Public Prosecutions v Jody Maree Morante (unreported, Local Court, 6 May 1998) contains some similarities to the present matter. Constable Morante had pleaded guilty to two counts of unlawful access to data stored in a computer and was discharged under s 556A of the Crimes Act 1900 (the predecessor section to s 10 of the Crimes (Sentencing Procedure) Act 1999. The circumstances that gave rise to the offences were that the defendant discovered that her husband was having an extramarital affair and the details she accessed from the computer related to the person she believed was romantically involved with her husband. At the time of the offences the defendant was also suffering from depression. According to the applicant, Constable Morante remained in the NSW Police and was promoted to Senior Constable. Nevertheless despite some factual similarities between Morante and the present matter, there are fundamental differences. Constable Morante's conduct did not result in a criminal conviction. It also encompassed two instances as opposed to the applicant's five instances which took place over a lengthy period of time, between December 2001 and 5 July 2004. These differences would preclude any meaningful assessment being made between the two matters in relation to the practicability or otherwise of the applicant's reinstatement. 83 The applicant also maintains that there is an evidentiary burden on the Commissioner to prove why reinstatement of the applicant is not "practicable" by reference to why it was not impracticable for other officers in similar circumstances to continue serving in the NSW Police. Whether the Commissioner bore an evidentiary burden in relation to material which may have been available would, as a threshold consideration, depend upon establishing the relevance of that material. It is difficult to discern the immediate relevance of the decisions referred to above, for example, to the issue of practicability of the applicant's reinstatement. The applicant provided a summary of those decisions dealing with the assaultive conduct. It reveals that in only two of the decisions were the officers removed under s 181D(1) Orders. In another decision the officer in question resigned. In other decisions some did not face criminal charges or were acquitted of charges following hearings. Others were subject to Commissioner's Warning Notices while in other cases no further action was taken. The 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. 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. 85 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. 86 I should add for completeness that the applicant in his submissions in response to the s 181D(3)(a) Notice contended that he was denied procedural fairness by the Commissioner on the basis that he did not receive certain material upon which he said the Commissioner had relied when deciding to serve the Notice. The submission was not further expanded upon in the evidence. Nor was it the subject of any submissions by the parties in the proceedings before me. It is therefore not necessary to consider the issue and I decline to do so. Orders 87 The Commission makes the following order:

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Judgment (179 paragraphs)

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