Lambert v Commissioner of Police

Industrial Relations Commission (NSW)|2021-10-13

DECISION

Craig Lambert is a Detective Senior Sergeant ("DSS") with NSW Police. On 24 June 2021 he was served with an order under s 173(2) of the Police Act 1990 to the effect that he be subject to a disciplinary transfer ("Order").
DSS Lambert has applied for a review of the Order pursuant to s 174(1) of the Police Act. He claims that the Order is beyond power, unreasonable or unjust. He seeks an order pursuant to s 177(1)(a) of the Police Act that the Order be revoked, or in the alternative, an order pursuant to s 177(1)(b) of the Police Act that the Order be revoked and the Commission make such other order as it considers appropriate.

Factual context in brief

DSS Lambert joined NSW Police as a trainee in 1990. I will not traverse the course of his career as a police officer. Suffice it to say, he progressed to his current rank of Detective Senior Sergeant without ever being the subject of any misconduct allegations. The Order is the only disciplinary action DSS Lambert has faced.
At all relevant times, DSS Lambert was appointed team leader of the Homicide Squad within the State Crime Command.
In September 2014 the Homicide Squad established Strike Force Rosann ("SF Rosann") to investigate the disappearance of William Tyrrell. As at November 2017, DSS Lambert was the nominated Officer in Charge of SF Rosann. He reported to former Detective Chief Inspector ("DCI") Gary Jubelin ("Mr Jubelin").

Legislation and relevant legal principles

Section 173 of the Police Act confers on the Police Commissioner the power to take action in response to a police officer's misconduct or unsatisfactory performance. That action can include "reviewable action" and "non-reviewable action": s 173(1). It is not in dispute that the disciplinary transfer anticipated by the Order is "reviewable action".
In Writer v Commissioner of Police (No 2) [2021] NSWIRComm 1023 ("Writer") I attempted to summarise the relevant provisions of the Police Act, and the principles to apply in dealing with applications for review under s 174 of the Police Act, as follows: "31. These proceedings are brought under Pt 9 Div 1A of the Police Act, which relevantly provides as follows: (1) A police officer in respect of whom an order for reviewable action is made under s 173 may apply to the Commission for a review of the order on the ground that it is beyond power or is harsh, unreasonable or unjust: s 174(1). (2) In proceedings before the Commission, and despite any law or practice to the contrary, the applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust: s 175(2). (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant; and (b) the public interest (which is taken to include the fact that the Commissioner made the order pursuant to s 173): s 175(4) (4) Following arbitration, the Commission is to determine the application by: (a) revoking the order; (b) revoking the order and making such other order as it considers appropriate, whether or not an order the Police Commissioner is empowered to make under s 173; (c) upholding the order; or (d) dismissing the application: s 177(1). 32. The jurisprudence of the Commission in proceedings under Pt 9 Div 1A has been developed in a number of cases. The following principles can be distilled from those authorities: (1) In determining the approach to take to cases arising under Pt 9 Div 1A, decisions of the Commission in respect of orders made by the Police Commissioner under s 181D of the Police Act (concerning the removal of police officers) are of assistance: see for example Saliba v Commissioner of Police [2006] NSWIRComm 200 at [90]-[91]; McDiarmid v Commissioner of Police [2012] NSWIRComm 100 at [88]. At the same time, the relative severity of the sanctions under consideration must be borne in mind when considering authorities dealing with removal orders: A (a pseudonym) v Commissioner of Police [2019] NSWIRComm 1091 at [57]. (2) The Commission's review is not 'de novo', but is closer to a merits review than judicial review: Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 ('Zisopoulos') at [83] (Bell P). (3) The correct approach is that the Commission is to make a fresh and independent review of the decision itself, based on the material before the Commissioner as well as any new evidence admitted: Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253 ('Hosemans') at [134]. (4) Part 9 of the Police Act contemplates that the Commission will assess allegations of misconduct or unsatisfactory performance and determine if those allegations are properly based, and then determine if those matters justify the relevant reviewable orders: A (a pseudonym) v Commissioner of Police at [45]. (5) As s 175(2) of the Police Act makes clear, the applicant 'at all times' bears the onus of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. In comments which I consider are apposite to the present proceedings, in Zisopoulos Wright J (albeit in dissent) observed: '188. The burden, which by virtue of s 181F(2) an applicant under s 181E(1) bears at all times, of establishing that the removal…was harsh, unreasonable or unjust involves two aspects: (1) the applicant must establish all of the factual elements upon which the applicant relies to the requisite standard of proof; and (2) the applicant must make good the propositions that those factual elements justify the conclusion that the removal was 'harsh', or 'unreasonable' or 'unjust' on the proper construction of those words in s 181E(1) of the Police Act. It was not in dispute in the present case that the requisite standard in this context was the civil standard of proof on the balance of probabilities.' (6) The Police Commissioner is required to 'answer the applicant's case': Tredinnick v Commissioner of Police [2016] NSWIRComm 14 at [54]. (7) That is, without qualifying the burden imposed on an applicant by s 175(2), if the applicant advances any evidence or argument that might go to establishing that the disciplinary order was harsh, unreasonable or unjust, or beyond power, the onus of addressing that case falls on the Police Commissioner. This may be described as a 'tactical onus', being 'a practical burden to adduce further evidence because the other party has produced enough evidence to win if that does not occur': Zisopoulos at [96]-[97] (MacFarlan JA); see also [61], [68]-[69]. As Bell P observed in Zisopoulos: '85. If what the Full Bench in the present case referred to as "sufficient doubt" is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust.' (8) The construction of the phrase 'harsh, unreasonable or unjust' as it appears in s 174(1) of the Police Act is informed by the way in which it is construed in proceedings under Ch 2 Pt 6 of the Industrial Relations Act 1996 (NSW), allowing for such modifications as are required by the terms of the Police Act: Hosemans at [97], [104]; Beck v Commissioner of Police (No 3) [2015] NSWIRComm 1023 at [28]; Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 at [21]. (9) Each of the words 'harsh', 'unreasonable' and 'unjust' requires discrete consideration; they should not be considered as a 'tautological trinity': Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [21]. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 McHugh and Gummow JJ observed (at 465): 'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.' (10) Section 175(4) of the Police Act requires that in making its decision the Commission 'must have regard to' the interests of the applicant and the public interest. The meaning of the phrase 'must have regard to' in that provision 'means to give weight to those factors as fundamental elements in the [Commission's] consideration': Wells v Commissioner of Police (2000) 100 IR 106; [2000] NSWIRComm 157 at [33] (Peterson J). (11) The requirement that the Commission have regard to the public interest 'operates adversely to the applicant': Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [27]. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service: Van Huisstede v Commissioner of Police (2000) 98 IR 57; [2000] NSWIRComm 97 ('Van Huisstede') at [216]. (12) At the same time, however, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Police Commissioner in taking action against an officer in deference to the public interest in the integrity of the Police Service: Van Huisstede at [217]. The public interest 'is one factor to be taken into account': Commissioner of Police v Evans [2006] NSWIRComm 170. See also Saliba v Commissioner of Police at [92]-[94]."
In his oral submissions, Mr D Nagle of counsel, who appeared for DSS Lambert, took some issue with my reliance at [32(11)] in Writer on the observations of Heydon J in Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 ("Eaton") at [27]. Mr Nagle submitted that the view expressed by his Honour was not supported by the terms of the Police Act, was not picked up by the plurality in Eaton and was, in any event, obiter. He submitted that cases in this Commission, before and after Eaton, had recognised that the public interest can work in an officer's favour.
Mr Nagle drew my attention to Morris v Commissioner of Police [2016] NSWIRComm 1034 ("Morris"). In that case Commissioner Newall observed: "117. In my view the public interest includes a consideration of the fact that the NSW public, who pay for the Police Force, have invested 24 years in developing Mr Morris as a police officer. I am not convinced that in this case the public interest is best served by discarding him. There is a real public interest in maintaining a capable and experienced Police Force. … 119. I take account of the discipline imposed on him in 2009, but in sum, the evidence disclosed that Mr Morris was an effective general duties police officer capable of providing leadership to junior officers and of acting with personal courage in dangerous situations. There is a public interest in having such officers in the NSW Police. In my view Mr Morris is, to use the words in Lawrance, capable of providing valuable service to the Police Force in the future."
In refusing the Police Commissioner leave to appeal against Commissioner Newall's decision, the Full Bench in Commissioner of Police v Morris [2017] NSWIRComm 1010 observed: "25. Contrary to the submissions of the appellant, Newall C did not consider the personal interests of the respondent as part of the public interest. What the Commissioner did consider, as forming part of the public interest, was the benefit to the NSW public in retaining, as part of the Police Force, an officer in whom the public had invested 24 years in developing to a point that, even after the events of 8 and 9 October 2010 were known to the appellant, the respondent was, nevertheless, awarded a Region Commander's Commendation in relation to an arrest of a violent armed offender in 2011. In 2012, again after the events in question, the respondent was given the responsibility for leading, monitoring and reporting on a 'cluster' team of some 20 constables. His evidence was that the teams in the cluster that he led became leaders in the command in response to crime, proactive strategies, case management and training. There is nothing impermissible in the Commission taking such matters into account when having regard to the public interest."
Commissioner Newall's decision in Morris was cited with approval in Rodney Lockley v Commissioner of Police [2019] NSWIRComm 1016 at [126].
In Stefan Elias v Commissioner of Police [2019] NSWIRComm 1026 Chief Commissioner Kite referred (at [204]) to the "public interest in the Police Force having the benefit of the services of a dedicated and talented young officer".
Finally, I observe that in Commissioner of Police v Smith [2010] NSWIRComm 162 at [2] Walton and Staff JJ stated, in the context of Pt 9 Div 1B of the Police Act, that it "is in the public interest that medical conditions arising from employment of the kind experienced by Mr Smith receive the same recognition, acceptance and compassion as physical illnesses, injuries and infirmities".
Having regard to these authorities and Mr Nagle's (admittedly brief) submissions, I accept that the observation of Heydon J in Eaton at [27] needs to be approached with a measure of caution. At the same time, s 175(4) of the Police Act draws a distinction between "the interests of the applicant" on the one hand and "the public interest", and that distinction must be maintained. I also observe that the plurality in Eaton observed (at [76]) that Pt 9 of the Police Act "elevates the [Police] Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force".
To the extent that my analysis in Writer at [32(11)] requires revision, I would say that in the main the public interest will operate adversely to an applicant.

Matter for determination

DSS Lambert raised no argument that the Order was harsh. That is, he accepted that if the allegations are made out the proposed disciplinary transfer would not be a harsh outcome. Indeed, he accepted that in view of the seriousness of the allegations, the disciplinary action would be "a light penalty". [2]
It follows that the question for determination is whether or not DSS Lambert engaged in the misconduct alleged against him.

Observations on the evidence

DSS Lambert relied on a statement that he had made on 18 August 2021. He called no other witnesses.
The Police Commissioner read: 1. a statement of Det Supt Doherty dated 15 September 2021; 2. a statement of DCI Joseph Doueihi of the Homicide Squad dated 15 September 2021; 3. a statement of DI Gorman dated 15 September 2021; and 4. an affidavit of Madaline Cogar, a solicitor employed by the solicitors for the Police Commissioner, sworn on 15 September 2021.
The Police Commissioner also tendered into evidence a folder of documents comprising the "Lancaster Documents", being "a copy of the investigation report compiled in relation to [DSS Lambert's] alleged misconduct, and a number of documents that were obtained in evidence in relation to the alleged misconduct". [3] During the proceedings, this folder was generally referred to as "Exhibit DD-A" and for continuity and consistency I will adopt the same descriptor in this decision.

Objections to the Police Commissioner's evidence

The affidavit of Ms Cogar and Exhibit DD-A were admitted into evidence over the objections of Mr Nagle. My determination in this regard was conveyed in an email from the Industrial Registry to the parties sent on 14 October 2021. That email contained the following: "Commissioner Sloan writes: At the hearing of this matter on 13 October 2021 the Commissioner of Police sought to read an affidavit of Madaline Cogar sworn 15 September 2021. Detective Senior Sergeant Lambert objected to the Commission receiving all of that affidavit into evidence. The objections were summarised in a document attached to an email from McNally Jones Staff Lawyers to the Commission which was received at 9.24am on 11 October 2021. The objection to paragraph 3 and Annexure MC1 of the affidavit was described as 'Hearsay, not compliant with Sch 7'. The objection to Annexure MC2 of the affidavit was 'Prejudicial, not established witness is unavailable, hearsay'. The Commission proceeded to conduct a voir dire to determine whether or not the evidence ought to be admitted. As it gave rise to similar issues, the Commissioner of Police also tendered, for the purposes of the voir dire, a folder of documents comprising Exhibit DD-A to the statement of Superintendent Daniel Doherty which had been filed in the proceedings. Det Snr Sgt Lambert objected to its admission. The basis of the objection was described in the document referred to above as 'Content of Lancaster documents not proved by sworn testimony. Procedural unfairness in not being able to cross-examine persons making statements'. I heard substantial submissions from both parties as to why I should, or should not, admit the evidence referred to above. Without detracting from the full force and effect of those submissions, in broad overview: 1. Det Snr Sgt Lambert submitted that paragraph 3 and Annexure MC1 of Ms Cogar's affidavit should not be accepted as evidence demonstrating the inability of Detective Senior Sergeant Gallyot to attend and give evidence in these proceedings. He further submitted that Annexure MC2 to that affidavit and Exhibit DD-A should be admitted only as evidencing the material to which the decision maker had regard, but not as to the proof of its contents. Allowing the evidence in 'for all purposes' without the relevant individuals being available for cross-examination would cause Det Snr Sgt Lambert 'irremediable prejudice'; and 2. the Commissioner of Police submitted that the evidence was clearly relevant to the matters in issue in these proceedings and should be admitted on that basis. He contended that the objections to the evidence went more to the weight that ought to be attached to it, rather than its admissibility. The Commissioner of Police conceded that his forensic decisions as to the witnesses he had chosen to call, or not to call, opened up the possibility of the Commission being asked to draw certain inferences, which would be addressed in due course. I have carefully considered the parties' submissions. I have determined to admit the evidence without the limitation sought by Det Snr Sgt Lambert. However, I will hear from him at the appropriate time as to the weight, if any, I should attach to the evidence (in whole or in part); whether the absence of Detective Senior Sergeant Gallyot has been adequately explained, and if not, what inferences I might draw from the decision of the Commissioner of Police not to call him as a witness; and, what further inferences I might draw from the decision of the Commissioner of Police not to call particular individuals as witnesses."
In his closing submissions, written and oral, Mr Nagle addressed each of the matters referred to in the final paragraph of the email reproduced above. To the extent that it is necessary to do so, I will address those submissions as I consider the matters arising before me.
I note in particular, however, the following contentions in Mr Nagle's written submissions: "43. The Commissioner of Police failed to call and make available in these proceedings witnesses who may have been able to shed light on the factual matters which were at issue. Such a course should not be rewarded by any findings of fact which are adverse to DSS Lambert when he has been denied the opportunity to cross-examine persons who might have said things which are adverse to his case. That is a fundamental denial of procedural fairness. Natural justice requires that those persons should have been able to be cross examined. A denial of natural justice or procedural fairness is no proper trial or hearing at all."
These submissions must be viewed in light of the fact that it is DSS Lambert who bears the onus in these proceedings. Other than to the extent necessary to respond to respond to the case put against her, the Police Commissioner is under no obligation to call witnesses in order to prove the allegations against DSS Lambert. As Mr M Watts of counsel, who appeared for the Police Commissioner, contended: [4] "Your role, Commissioner, is to have regard to the material that is before you now. If there was material that Mr Lambert says was missing from that investigation, if there were rabbit holes that should have been gone down, then it was contingent upon him, who bears the onus in this case, to obtain that evidence, including using the compulsive powers of this Commission, if needs be, to summons that material and fill those holes with a view to exculpating himself. And he didn't do that."

Contentions as to reliability of DSS Lambert's evidence

During his closing submissions, Mr Watts contended: [5] "…[We] say that when you review the applicant's evidence, particularly what fell out in cross-examination, there are inconsistencies that arise that would cause the Commission to approach the applicant's evidence with caution and that is, of course, an important matter in circumstances where, as I've outlined before lunch, it is the applicant who bears the onus, he is the only witness in his case and so for him to succeed in these proceedings you, Commissioner, must be satisfied in your mind that the evidence that the applicant has given you is credible, consistent and coherent."
The matters on which the Police Commissioner relied in support of this contention have a significance beyond the reliability or otherwise of DSS Lambert's evidence. It is necessary to traverse them at some length.
On 22 November 2018, DSS Lambert signed a statement he had prepared in connection with a workers compensation claim he had made. In that statement he described some of the work he performed on SF Rosann. He set out in some details his concerns with Mr Jubelin's conduct, which DSS Lambert suggested was the result of Mr Jubelin having formed "tunnel vision" in respect of the person of interest, Mr Savage. DSS Lambert stated: [6] "• I developed further concerns over the evidence being identified and how it was being presented and proposed to be presented, and used, in furthering the investigation into this POI. • In my opinion, the evidence was not being viewed, used or presented in a fair and balanced manner. • I developed concerns that this was going to present inaccurate information in relation to this POI which may affect the course of any formal legal proceedings it may be used in. … • This situation is not a case of DCI JUBELIN wanting to do something one way, me wanting to do it another way, and there has been a workplace disagreement over it. This is an issue of whether proposed activity of DCI JUBELIN is ethically and legally right or wrong." (Capitals in original)
On 2 January 2019, DSS Lambert attended a directed interview with DI (now Superintendent) Darrin Batchelor. In a statement signed by DSS Lambert that day he stated: [7] "13. As time went on various pieces of information were identified and obtained, and I developed concerns how the evidence was being presented, and being used, in furthering the investigation into SAVAGE, which I believed was not being presented in a balanced or fair manner, which could potentially be presented inaccurately in legal proceedings in relation to SAVAGE. … 23. During the investigation into SAVAGE several telephone intercepts and surveillance device warrants were obtained and rolled over a number of time. Detective Senior Constable Kristy CALDERON completed several of the rollover affidavits, but I view some of them as misleading as it doesn't paint the full picture. There are bits and pieces of information that weren't included that I believe are exculpatory and the affidavits weren't presented in a balanced manner. …" (Capitals in original)
In a statement dated 12 June 2020, made in the course of DI Gorman's investigation, DSS Lambert stated: [8] "31. As time went on with inquiries into Paul SAVAGE, I felt that DCI JUBELIN and others were presenting material as 'evidence' that was selective, taken out of context, misleading, inaccurate and in some cases incorrect. It was like they were trying so hard to locate 'something' that implicated Paul SAVAGE in the disappearance of William TYRRELL that they were manipulating information to make it appear to have suspicion attached to it instead of looking at it in a fair and reasonable manner with balanced views. … 42. It was during this time I told D/Sgt BEACROFT (who I believe was coordinating these warrant applications), that she needed to be very careful about the material that she was including in any future affidavits in relation to Paul SAVAGE. I raised the concern over the way that some pieces of information or evidence were being presented. I told her that presenting these pieces of information in a selective matter that was out of context in any affidavit to create suspicion around Paul Savage may well make the application itself misleading. After these discussions D/Sgt BEACROFT later told me that she had then given the job of preparing the affidavits in relation to Paul SAVAGE to DSC CALDERON. She told me that there was no way she was prepared to sign the affidavits written in the manner they were. She was clearly concerned about the content of the affidavits and in my view had formed the opinion they were misleading. … 46. …I was genuinely concerned that if evidence of this nature was to be presented to the Coroner and caused her to make certain decisions in terms of the course of proceedings in relation to Paul SAVAGE, that it potentially amounted to committing the criminal offence of perverting the course of justice." (Capitals in original)
In his statement in these proceedings, DSS Lambert stated: "59. It was a concern to me because there was simply no evidence in relation to Savage, but Jubelin kept insisting there was, and virtually any information he looked at about him, he did so by trying to interpret it as though it was suspicious conduct. I felt and foresaw that a complete miscarriage of justice was about to take place in relation to Savage if Jubelin continued on the path he was taking, in the manner in which he was taking it by publicly bringing SAVAGE before a court, essentially accusing him of abducting and killing a 3-year-old boy, and all under circumstances where there was absolutely no evidence at all to support that. None of the evidence he was looking at related to anything that would establish proof that Savage was involved in the disappearance of the child. It was all centred around his generalised movements or conduct. There was nothing proving Savage was involved in acts causing the disappearance of the child on 12 September 2014. 60. It was during the time that Jubelin was looking to relaunch another operation against Savage that I had a conversation with Beacroft (who I believe was coordinating these TI and SD warrant applications), in the following terms: I said to her: 'You need to be very careful about the material that you are including in any affidavits. If what you're putting in is the evidence he is suggesting is there, that could very well be seen as misleading in relation to Savage. I have a concern over the way that some pieces of information or evidence are being presented. Presenting these pieces of information in a selective manner that is out of context in any affidavit to create suspicion around Savage may well make the application itself misleading.' After these discussions, Beacroft later said to me in words to the following effect: 'I flicked them to Christie (Calderon). There was no way I was signing them.' … 68. I also had concerns over what I saw were misleading affidavits that had been completed in relation to Savage and what I saw was possibly going to be an intentional attempt to pervert the course of justice by preparing and presenting a deliberately misleading brief of evidence to the coroner that contained only partial evidence which was going to be used to persuade the coroner to make a decision to force Savage to give evidence as a person of interest when it may not have been justified." (Capitals and italics in original)
DSS Lambert further stated that he "believed the actions of [Mr] Jubelin constituted potentially criminal conduct". [9]
The picture being painted by DSS Lambert's written evidence is clear. In his view, Mr Jubelin had developed a (misguided) fixation on Mr Savage as a person of interest and in the course of progressing the investigation had sought to exclude from consideration any exculpatory evidence relating to Mr Savage. This resulted in evidence being used and being presented in a misleading manner. This included the preparation of affidavits by DSC Calderon and DS Beacroft that were misleading. It is important to highlight that there is no way to read DSS Lambert's evidence other than as suggesting that misleading affidavits had been created, and at least in some instances used, in the course of the investigation.
These matters were put to DSS Lambert extensively in cross-examination. He repeatedly attempted, in the words of Mr Watts, to "walk things back". In particular, he sought to assert that there was no evidence that the affidavits to which he referred in his evidence had been prepared. For example, under cross-examination DSS Lambert deposed: [10] "Q. So she has conveyed to you there, very clearly, that she also has a concern that an affidavit that may be submitted to a court or tribunal seeking a warrant might be misleading; do you agree with that? A. Well, there was no evidence the affidavit had been done at that time."
And further: [11] "Q. Yes and you had concerns, not because of what you said before about affidavits might become misleading in the future; you had been told and you knew that affidavits either were likely to be or about to be sworn or affirmed that were false or misleading? A. No. As I said, I didn't know that the affidavits had even been started, you know what I mean? …"
This testimony cannot be reconciled with DSS Lambert's written evidence.
Further, while DSS Lambert confirmed under cross-examination that he maintained the view that Mr Jubelin had engaged in unethical and possibly criminal conduct, he sought to add qualifications. These included that he was "kept at arm's length" from the inquiry into Mr Savage, despite being the Officer in Charge of SF Rosann, and could only base his views on "the evidence that [he] was aware of". [12] He claimed that he "was basically being bypassed". [13]
The following exchange between Mr Watts and DSS Lambert is consistent with DSS Lambert's apparent discomfort at being held to his written evidence: [14] "Q. Mr Lambert, is the answer to my question then 'Yes', you did have concerns that there were other officers involved in the presentation of misleading evidence? A. Well, it depends on who you're saying it's been presented to, I suppose. …"
DSS Lambert also testified under cross-examination that he was not aware of the reasons why DS Beacroft "flicked" the affidavits to DSC Calderon. This evidence was unpersuasive. The conversation that DSS Lambert claims to have had with DS Beacroft clearly provides the context in which, and the reasons why, she may have been reluctant to sign the affidavits.
In his oral submissions, Mr Watts contended: [15] "But, in any event, what then happened is that when I asked him questions about this in cross-examination, these statements that I've just taken you to, which we say are all unqualified in nature, are all very clear and articulating a very real concern that Mr Lambert had at the time about what might happen with Mr Savage, including quite serious matters, like a perversion of the course of justice for example, which he, as a police officer who has sworn an oath to uphold the rule of law, would obviously be very troubled by. These were all things that, when I asked him about it in cross-examination, he started to, in my submission, walk things back and introduce qualifications that are not found in the multiple iterations of his evidence that was put into writing. And the reason why and I'm going to say this up front, Commissioner, so that it can be in your mind while we're going through it, the reason why we say that that occurred is because in his cross-examination Mr Lambert presented as a witness who was anticipating the questions that were coming to him, was anticipating the criticisms that were going to be made of him and he was trying in his answers to fashion an answer that allowed him to respond to those criticisms so that he could, in effect, be beyond criticism. The difficulty that he created for himself in that is really twofold. Firstly, it illustrated, as I will come to show you, that he was really prepared to say and do anything to try and avoid being criticised by the Commissioner of Police or by this Commission in relation to his evidence on these issues, but it showed that he dissembled. My learned friend indicated he foreshadowed I was going to make this submission, here it is: He dissembled, we say. And again, the importance of that is quite significant in this case where, again, for the applicant to succeed you have to be confident, we say, Commissioner, that you can have regard to confidently the evidence that he's given to you."
Having regard to the evidence that I have explored above, there is force to these submissions. DSS Lambert was not an entirely satisfactory or convincing witness. I consider that it is necessary to approach his evidence with some caution.

Whether alleged conduct would be out of character

The evidence referred to at [37]-[41] above is relevant when considering the following argument advanced by DSS Lambert: He is a highly regarded detective in the Homicide Squad, who has acted in Inspector roles and who has no disciplinary history in a career of more than 30 years. It follows that the conduct alleged against him "would be completely out of character". [16]
In his statement in these proceedings, DSS Lambert deposed: "163. If at any stage I had heard Jubelin ask or direct any officer to unlawfully record a private conversation with Savage or any other person, I would have immediately intervened and challenged what he was proposing to do. 164. If my objection to Jubelin's proposed unlawful recording of any conversation was not listened to, then I would not have participated in what was occurring. I would have left the room and reported the matter to a more senior officer. There is no way that I would have ever put myself or any junior police officer in a position where we were involved in carrying out illegal conduct such as this. Such conduct would have been contrary to my ethics and all I believed in as a police officer."
It is apparent that the allegations that DSS Lambert makes against Mr Jubelin are extremely serious. DSS Lambert accepted this. He also accepted that he had a duty to report misconduct, under both s 211F of the Police Act and the NSW Police Force Code of Conduct and Ethics.
There is little evidence that DSS Lambert did in fact report what he perceived to be misconduct on the part of Mr Jubelin. He claims to have "expressed his concerns" to a number of officers, including DCI Jason Dickinson and (then) DCI Grant Taylor. [17] In documents created during the course of the investigation conducted by DI Gorman, each of DCI Dickinson and Detective Acting Superintendent Grant stated that DSS Lambert had in fact raised with them concerns as to aspects of SF Rosann, including the course and focus of the investigation. However, each of them denied that DSS Lambert had raised any allegations of misconduct against Mr Jubelin.
DSS Lambert deposed that he reported Mr Jubelin's misconduct to (then) Superintendent Scott Cook, the Commander of the Homicide Squad, and DCI Doueihi, during a meeting on 6 August 2018. In his statement in these proceedings, DSS Lambert set out at some length he conversation that he said had taken place. That included him saying that: [18] 1. during a team briefing of SF Rosann on 31 July 2018, Mr Jubelin had stated that he was going to put together a brief that only had selective inculpatory evidence in it; 2. that the affidavits being prepared were "dodgy", and that Supt Cook should ask DS Beacroft "why she's refusing to sign them"; and 3. the person of interest, Mr Savage, was "being loaded up".
DSS Lambert further stated that during the meeting of 6 August 2018 he "had reported what [he] thought may possibly be unethical and or illegal conduct in relation to the proposed presentation of a misleading and manufactured brief of evidence to the coroner that was to be created in relation to Savage, as well as allegations of misleading evidence possibly being used in affidavits in relation to Savage". [19]
DCI Doueihi did not agree with DSS Lambert's version of the conversation. He stated that "at no time did [DSS Lambert] make any claims of misconduct or corrupt behaviour by former Det Ch Insp Jubelin". [20] He further stated that while DSS Lambert had discussed with him Mr Jubelin and his investigative methods, he had never reported to him any suspected or alleged misconduct by Mr Jubelin.
I am not persuaded that during the meeting on 6 August 2018 did in fact "report" misconduct (suspected or actual) on the part of Mr Jubelin. Even on his version of the conversation, the matters raised by DSS Lambert during the meeting fall well short of the allegations contained in his subsequent statements. The conversation he describes does not refer to Mr Jubelin acting unethically, much less illegally.
The evidence of DSS Lambert did not rise higher, to use Mr Nagle's words, as him "alerting a more senior officer that he's got concerns". [21] Having expressed those concerns, DSS Lambert obviously considered that it had become a matter for Supt Cook to take further. In essence, as an experienced police officer Supt Cook should have "got the message" and made his own enquiries.
I note that Mr Nagle submitted that DSS Lambert may have become confused as to what was meant by "misconduct" and, further, that between November 2017 and July 2018 DSS Lambert was "not in the office for much of the time" and was "not there witnessing these things". [22] I do not place any weight on these submissions.
On any test, the conduct which DSS Lambert alleged against Mr Jubelin was misconduct. As an experienced police officer, DSS Lambert cannot credibly claim to have been confused in this regard.
Further, any absences that DSS Lambert may have had from the office did not prevent him, in his written evidence, from levelling very serious allegations against Mr Jubelin. Indeed, it would be troubling if it were to be suggested that DSS Lambert was prepared to allege unethical and criminal behaviour against a fellow police officer without a proper basis for doing so.
Also relevant in this regard is that DSS Lambert gave evidence that other officers in SF Rosann had discussed with him their concerns regarding Mr Jubelin's conduct, particularly in his alleged pursuit of Mr Savage. He stated that he was aware that "people were concerned with what [Mr Jubelin] was doing, what he was proposing to do, how he intended on doing that, and whether that conduct was unethical and potentially going to be illegal, which may result in them getting in trouble". [23] He referred to DSC Gallyot having spoken to him "openly" about his concerns with the investigation including "unethical and potentially criminal conduct by Jubelin and others". [24]
There is no evidence that DSS Lambert encouraged the officers with whom he spoke to report their concerns. He did not do so on their behalf.
I am mindful that Det A/Supt Grant offered the following opinion: [25] "It is my opinion that if Detective Senior Sergeant Craig Lambert was aware of any unlawful behaviour by anyone, he would have told me about it. From my knowledge of Detective Senior Sergeant Lambert I am aware of nothing that would suggest anything but ethical and sound policing on his part. I am sure that he would have confided in me of any wrong doings [sic] especially when it came to Detective Chief Inspector Jubelin."
Even allowing for that opinion, it is clear on the evidence that DSS Lambert considered that Mr Jubelin had either engaged in misconduct, or had been responsible for other police officers doing so, and that this misconduct was likely to continue. He did not in any meaningful way report his suspicions in that regard. He did not encourage subordinate police officers to report their concerns with Mr Jubelin's conduct, or do so on their behalf.
In the circumstances, the conduct alleged against DSS Lambert in the Order would not be "out of character". To the contrary, it would be consistent with his failure to report other instances of misconduct by Mr Jubelin.

Allegation 1

The first allegation ("Allegation 1") against DSS Lambert contends that: "There appear to be reasonable grounds on which I could conclude that you were present when, and/or later became aware that, Det Ch lnsp Jubelin recorded his telephone call to Mr Savage on 3 November 2017, without first obtaining a warrant lawfully authorising him to do so and/or Mr Savage's consent. There also appear to be reasonable grounds on which I could conclude that you had reasonable grounds to suspect that Det Ch lnsp Jubelin had engaged in misconduct by acting unlawfully under the Surveillance Devices Act 2007, and that you failed to report this misconduct."
There is no controversy that DSS Lambert was present during the telephone call between Mr Jubelin and Mr Savage on 3 November 2017; that the call was recorded; and the recording was made in the absence of a warrant or Mr Savage's consent. The evidence is that the call was recorded by DSC Gallyot, rather than Mr Jubelin as the allegation suggests, but nothing appears to turn on this. The matter for determination is when DSS Lambert became aware that the call was being unlawfully recorded.
DSS Lambert denies that he was aware at the time of the call that it was being unlawfully recorded. He deposed that he was first notified that he had been present when a call had been unlawfully recorded in a conversation with (then) DI Batchelor in mid-2019. He says he became aware of the date of the call through an email he received from DI Gorman on 11 September 2019.
The Police Commissioner contends that DSS Lambert was aware at the time the call took place on 3 November 2017 that it was being unlawfully recorded. If he was not aware on that date, the Police Commissioner argues that DSS Lambert would have become aware when he reviewed and accepted the Investigator's Note on 9 February 2018.

What happened on 3 November 2017?

There were only three people present during the call on 3 November 2017: DSS Lambert, Mr Jubelin and DSC Gallyot. Only DSS Lambert gave evidence in these proceedings.
The documentary evidence on which the Police Commissioner relied included a statement made by DSC Gallyot on 8 January 2019. In that statement he provided the following description of the events of 3 November 2017: "49. On the 3rd November 2017, I was at police headquarters when I was called into a room by Detective Chief Inspector JUBELIN. Also present at the time was LAMBERT. On entering the room Detective Chief Inspector JUBELIN told me he was going to call SAVAGE and he wanted me to record the call. It was common knowledge within the strike force there was no authorised warrant in place, as the proactive targeting in respect to SAVAGE was complete. 50. When Detective Chief Inspector JUBELIN asked me to record the call, he said he was going to put the call on loudspeaker and I was to record the conversation with my mobile phone. I remember looking at LAMBERT with a concerned look as we all knew there was no warrant in existence. LAMBERT just looked down at the table. I then looked at Detective Chief Inspector JUBELIN with the same look, who just sat there glaring at me with a look that suggested I just do as he say. While Detective Chief Inspector JUBELIN was glaring at me he said, 'Just do it!' 51. Detective Chief Inspector JUBELIN called SAVAGE and placed the call on to loudspeaker. I recorded the call on my mobile phone as directed by Detective Chief Inspector JUBELIN. The call lasted 5 minutes and 29 seconds. 52. At the end of the call Detective Chief Inspector JUBELIN told me not to save the recording anywhere. …" (Capitals in original)
The Police Commissioner also relied on transcript of some of the evidence given by DSC Gallyot in the Local Court Proceedings. That evidence was consistent with the extracts reproduced above. Magistrate Hudson accepted that DSC Gallyot was a witness of truth.
The Police Commissioner further relied on extracts from the transcript of Mr Jubelin's evidence in the Local Court Proceedings. The effect of that evidence is that DSS Lambert was present during the call on 3 November 2017 and raised no resistance to the call being recorded.
In his statement in these proceedings, DSS Lambert described the events of 3 November 2017 as follows: "138. The day, 3 November 2017, was a Friday and from memory I do not think anyone other than Gallyot and I were working on that day. I certainly do not recall any other staff being around the office at the time of this telephone call being made because if they were Jubelin would more than likely have called them into the room also. 139. This telephone call situation unfolded when Jubelin approached me and told me to come to the conference room because he was going to telephone Savage. I stopped the work I was doing and went to the conference room. I cannot remember whether I went into the conference room with Gallyot and/or Jubelin or whether one or either of them had arrived in the conference room before or after me. I cannot remember the time of the telephone call, but it would have been prior to 3pm, which is when my shift normally concluded. 140. I was not involved in any discussion, planning or preparation of this phone call strategy with either Jubelin or Gallyot. Neither Jubelin or Gallyot told me of any plan they had in relation to the making of the call, either prior to, or after the telephone call taking place. Essentially, I was called to the conference room, I went there, Jubelin made the phone call, I listened to what was being said during it and after the phone call ended, I would have returned to my desk and continued reviewing eaglei [sic] product on the Strike Force eaglei [sic] system. 141. To my knowledge, the mobile telephone of Jubelin was never an authorised recording device that was nominated on any SD warrants that had been lawfully obtained to record conversations with Savage or any other person in relation to the investigation into the disappearance of TYRRELL. 142. To my knowledge, the mobile telephone of Gallyot was never an authorised recording device that was nominated on any SD warrants that had been lawfully obtained to record conversations with Savage or any other person in relation to the investigation into the disappearance of TYRRELL. 143. ln circumstances where a conversation like this was to be recorded lawfully, the normal process was that NSW Police equipment would be used to make the recording. 144. Had I been told, noticed or seen that either Jubelin or Gallyot were using their mobile telephones to record the conversation with Savage on that day, I would have immediately suspected that the conversation was being unlawfully recorded. I was not told, did not notice, or see anything to indicate in any way that this conversation was being unlawfully recorded, either by Jubelin or Gallyot, on their mobile phones, or on any other device. 145. Jubelin did not tell me that the conversation was going to be, was being, or had been recorded. Jubelin did not tell Gallyot in front of me to record this conversation on his mobile phone. 146. I did not hear Jubelin say to Gallyot, 'Just do it', as is alleged by Gallyot, in reference to directing him to record this conversation. I did not see Jubelin give Gallyot a 'stern look' whilst I was in the room with them. 147. I did not see or hear Jubelin behave in any type of intimidating fashion or manner towards Gallyot whilst I was in the conference room with them either before, during or after this telephone call was made. 148. My recollection of this telephone call is that Jubelin contacted Savage on his mobile phone and spoke with him. The call was not long. The loudspeaker function of Jubelin's phone was activated during the call so that Gallyot and I could hear what was being said by Savage. I cannot recall what the content of this call was about or precisely what was said. 149. This phone call appeared to me to be a normal phone call between Jubelin and Savage. There was nothing at all that I saw or heard that raised any concerns or suspicions about it being anything other than that. I did not know or suspect that this phone call was being unlawfully recorded. 150. I did not at any stage, hear Jubelin tell Gallyot to record this telephone conversation on his mobile phone. 151. I did not at any stage, hear Jubelin give any directions to Gallyot in front of me telling him 'not to save the recording' of the telephone conversation anywhere."
There was considerable attention given to the extent to which the Commission should have regard to the documents recording the evidence of DSC Gallyot and Mr Jubelin, when neither had been called to give evidence. Mr Nagle submitted that inferences were able to be drawn as to the Police Commissioner's failure to call either witness, particularly as the absence of DSC Gallyot had not, in his submission, adequately been explained. To my mind, it is not necessary to traverse those issues.
DSS Lambert provided a description of the events of 3 November 2017. Taken at their highest, the documents reflecting the evidence of DSC Gallyot and Mr Jubelin do not controvert that description. DSC Gallyot states that certain things were said or done in the presence of DSS Lambert. There is nothing in the evidence to indicate any acknowledgement by DSS Lambert that he had heard and comprehended what had been said. The testimony of Mr Jubelin in the Local Court Proceedings is of little assistance. It is obvious that DSS Lambert would have raised no resistance to the unlawful recording of the call if he was unaware that it was going to take place.
I observe that in the Order Det Supt Doherty stated that: "The evidence, including that as accepted in the Local Court, indicates that you have failed to report misconduct, despite that misconduct being obvious to you at the time it occurred."
While Magistrate Hudson accepted that DSC Gallyot was a witness of truth, his Honour did not have to reconcile the differences in the versions offered by DSS Lambert and DSC Gallyot. DSS Lambert was not called as a witness in the Local Court Proceedings. Further, I do not see that the evidence demonstrates that the misconduct must have been "obvious" to DSS Lambert.
The Police Commissioner sought to challenge the plausibility of DSS Lambert's version of events, largely by asking the Commission to draw inferences from the fact that he did not listen carefully to the conversation or take notes. The Police Commissioner's contentions were summarised in her outline of submissions in these terms: [26] "22. The Applicant's version is implausible. It cannot be accepted. It accords with basic human experience that, as the officer responsible for a major homicide investigation, and a diligent, thorough and pedantic officer at that, who was asked by the lead investigator to attend an unusual phone call with a key person of interest, the Applicant would take notes of the conversation to record any intelligence or evidence that emerged. Why else was the Applicant there, if not to witness the call and take notes? One would also expect the Applicant to keep notes so that, when reviewing the investigative product later created, as was his primary role, he could ensure its accuracy. 23. The fact the Applicant made no attempt, on his own evidence, to listen carefully to the call or make any notes of it, gives rise to the strong inference that he was doing neither because he knew the call was being recorded, so there was no need to do so." (Footnotes omitted)
Mr Watts submitted that the need to take notes was heightened by the fact that DSS Lambert was aware that there was no warrant in place permitting the call to be intercepted. This was said to strengthen the inference that his failure to take notes suggested that he was aware that the call was being recorded.
DSS Lambert stated on several occasions during his oral testimony that he did not listen carefully to the conversation between Mr Jubelin and Mr Savage. He also took no notes. I accept that this is not the conduct that one would necessarily expect from a person who described himself as a diligent and thorough police officer, with a pedantic nature. However, on the evidence as a whole the inferences which the Police Commissioner invites me to draw are not properly to be drawn.
The evidence overwhelmingly demonstrates that by 3 November 2017, Mr Jubelin had developed a fixation on Mr Savage as a person of interest. In simple terms, DSS Lambert saw the continued pursuit of Mr Savage as wrongheaded and a waste of time. The differences between DSS Lambert and Mr Jubelin in this regard created tensions in their relationship, which ultimately resulted in an altercation between them on 31 July 2018. DSS Lambert gave uncontroverted evidence that his views regarding the futility, if not impropriety, of continuing to pursue Mr Savage was one shared by other members of SF Rosann.
It is in this context that DSS Lambert was called into the meeting room on 3 November 2017. He considered the call between Mr Jubelin and Mr Savage to be an exercise in futility which, like similar calls before it, would do nothing to advance the investigation.
In circumstances where DSS Lambert considered that he was being asked to waste his time, it is plausible that he would have paid little heed to the conversation and taken no notes. It is also feasible that he was so disengaged that he was not paying attention to what might have been said between DSC Gallyot and Mr Jubelin, if indeed anything was said at all.
I am cognisant that in his statement in these proceedings DSS Lambert deposed that the first he knew that he had been present while a call was illegally recorded was when he was told this by DCI Batchelor during a call in mid-2019. Despite being told nothing other than that he and DSC Gallyot had been present, DSS Lambert appears to have immediately recollected the call. The Police Commissioner contended that this suggested that the circumstances of the call were so out of the ordinary (such as to be instantly recalled 18 months after the event) that it is implausible that DSS Lambert would have paid as little attention to the call as he claimed.
DSS Lambert explained that what made the events of 3 November 2017 memorable was that it was the only occasion on which it had been only he and DSC Gallyot present when Mr Jubelin placed a call to a person of interest. When DCI Batchelor provided him with that detail, he was able to remember the incident.
To some extent, this contention has to be considered in light of one of the bases of the second allegation against DSS Lambert (see [108]ff below). While there is room for doubt, I accept that DSS Lambert's explanation is sufficient to displace the inference that the Police Commissioner invited me to draw.
For these reasons, I find that DSS Lambert has discharged his onus in respect of the events of 3 November 2017. The Police Commissioner has not met the case advanced by DSS Lambert in this regard. The evidence does not establish that DSS Lambert was aware at the time the call was made that it was being unlawfully recorded.

The Investigator's Note

In the Order, Det Supt Doherty stated: "Even though you say you did not know that the call was being recorded, I accept that you must have become aware that it was recorded upon reviewing the Investigator Note that related to the call."
The onus on DSS Lambert is to overturn the factual finding that on reviewing the Investigator's Note he "must have become aware" that the call was recorded.
The Investigator's Note was prepared by DSC Rodden. In a response to a Directive Memorandum she received on 27 July 2020, DSC Rodden stated that she had found out about the phone call between Mr Jubelin and Mr Savage, and the fact that it had been recorded, in the week commencing 6 November 2017. Her recollection was that "this phone call and recording was something that everyone knew about, it was not a secret as such". [27] DSC Rodden believed that she had been requested to complete a synopsis of the call by DS Beacroft.
During his cross-examination of DI Gorman, Mr Nagle read onto transcript an extract from DSC Rodden's evidence in the Local Court Proceedings. That was to the effect all of the members of SF Rosann were aware of the phone call.
It is noteworthy that DSS Lambert stated that he was aware at the time that there was no warrant in place authorising the recording of the call. His uncontroverted evidence was that members of SF Rosann were aware from time to time as to the status of warrants in respect of Mr Savage. It is curious that neither DS Beacroft or DSC Rodden appear to have raised any concerns about the recording. Be that as it may, the evidence, including that introduced by DSS Lambert, does raise questions as to whether, as the Officer in Charge of SF Rosann, he could have remained oblivious to the fact of the call when it appears to have become notorious. That said, this was not something put to DSS Lambert during the hearing.
In any event, the Investigator's Note was prepared by DSC Rodden on 23 January 2018. DSS Lambert reviewed and accepted the Investigator's Note on 9 February 2018.
DSS Lambert's primary response to the allegation is that he could not recall reviewing the Investigator's Note and was not consciously aware of it until it was served on him during DI Gorman's investigation. Obviously, as DSS Lambert claims to have no recollection of the Investigator's Note, he cannot describe what was in his mind at the time that he reviewed it and what, if any, conclusions he drew from it. Instead, he claims that its existence and significance had not registered with him.
DSS Lambert put this in the context of being under pressure to review a large number of products on e@gle.i. Under cross-examination he deposed as follows: "Q. You have no recollection of reviewing this document? A. No. Like I said before, my day consisted of, like there's thousands of Eagle Eye [sic] products outstanding. It was very - Jubelin was onto me to reduce these thousand [sic] of products and, as is pointed out by people, with me sitting at my desk from start to finish of the shift, I'm literally churning through these products as quickly as possible. You know, it was like a race against myself to get them done. One to the next, bang, bang, bang, bang, bang, one after the other. I, as I said, the first conscious recollection I have of this document is after it's been served on me. Outside of that, obviously I would've reviewed it, but it would've been one of hundreds of thousands of others that I'd churned through and in particular in relation to Paul Savage, do you know what I mean, because I already had other thoughts in relation to Paul Savage and what I thought of his involvement as a POI."
The evidence included a document titled "Investigation Statistics Report" that contained data as to the number of e@gle.i products created and reviewed during SF Rosann. The report appears to have been run on 26 September 2018 and records a commencement date of 14 September 2014. It reveals that DSS Lambert reviewed 12,040 products, out of a total of 16,170 products reviewed.
DSS Lambert drew my attention to the fact that the Investigator's Note was created and reviewed three months after the call on 3 November 2017 and that there is nothing in it, or in the attached synopsis of the call, that suggests that anyone was present with Mr Jubelin when he made the call. Mr Nagle submitted that it was "entirely possible and plausible that [the Investigator's Note] doesn't really rate a mention for [DSS Lambert] or ring alarm bells about an illegal recording that he's present for". [28] It was further submitted that there was nothing on the face of the synopsis to suggest that it was created from a digital recording.
These submissions are not all supported by the evidence. The Investigator's Note includes the following: [29] "Contains Protected Information Reason Material under the Surveillance Devices Act 2007 (NSW) Comment Conversation recorded on SD" "SD" is a reference to a surveillance device.
DSS Lambert accepted under cross-examination, albeit reluctantly and with some prevarication, that this entry was misleading. He also accepted that the contents of the Investigator's Note, including the attached synopsis of the call, should have alerted him to the fact that the call was recorded. Any surveillance device in Mr Savage's residence is only likely to have captured his end of the conversation. DSS Lambert knew that there was no warrant in place allowing for telephone intercepts. This was enough, in my view, to have "rung alarm bells" and at the least have warranted further enquiry.
Further, DSS Lambert's evidence that he "[has] not seen products submitted on the eaglei [sic] investigation management system that indicated that there was a conversation with Savage that was recorded illegally" [30] cannot be accepted.
DSS Lambert stated that his role in SF Rosann "was basically that of a person reviewing eaglei [sic] product that had been submitted by investigators". [31] He deposed that as the officer in charge of SF Rosann he "predominantly reviewed products on the e@gle.i system". [32] (I observe that this may explain, at least in part, why he reviewed a significantly larger number of products than other officers attached to SF Rosann.)
DSS Lambert led evidence that his performance had been criticised in part due to his "propensity to reject submitted products or add overly complex task attachments and send them back to investigators". [33] He accepted under cross-examination that he did from time to time reject products, albeit "not excessively". [34] He further deposed under cross-examination: [35] "Q. Do you agree with me that when you were reviewing those products it was vitally important for you to ensure that they were accurate, given it related to a potential homicide? A. Yes. Q. And you'd agree with me that it's important to carefully review investigative products before you verify them as a supervisor? A. Yeah, yeah. Q. Mr Lambert, you would accept that you're a professional and diligent police officer? A. I do my best."
As already stated, in addition to accepting that he is a professional and diligent police officer, DSS Lambert described himself as having a pedantic nature. Even so, he would not accept under cross-examination that he would have carefully reviewed the information in the Investigator's Note before accepting it. At the same time, and in apparently contradictory evidence, he refused to concede that his review had been careless. I find it implausible, and do not accept, that DSS Lambert would have adopted, to use the vernacular, a "tick and flick" approach to the review of the Investigator's Note or of any product.

Conclusion

I find that DSS Lambert has not provided sufficient grounds on which to overturn the factual basis of Allegation 1, that through his review of the Investigator's Note he "must have become aware" that the call had been recorded. Further, in light of his knowledge of the warrants then in place he would have known that the recording was unlawful. He had an obligation under ss 7 and 211F of the Police Act, and under point 10 of the NSW Police Force Code of Conduct and Ethics, to report Mr Jubelin's misconduct. There is no basis on which to challenge with the conclusions in the Order that DSS Lambert conducted himself in a manner contrary to those provisions. His failure to report Mr Jubelin's misconduct was also contrary to points 1, 2 and 6 of the NSW Police Force Code of Conduct and Ethics. That constituted misconduct by DSS Lambert.

Allegation 2

The second allegation against DSS Lambert ("Allegation 2") arises from the statement made by DSS Lambert on 12 June 2020 in the course of DI Gorman's investigation. Allegation 2 contends that DSS Lambert was "untruthful, or at the very least less than fully frank" when he stated in that document that: 1. he did not "know or even suspect" that the call between Mr Jubelin and Mr Savage on 3 November 2017 was being recorded ("Ground 1"); 2. he did not know that he was present at a conversation that was being unlawfully recorded until DCI Batchelor told him this in a phone call ("Ground 2"); 3. Mr Jubelin had on several occasions gathered all available SF Rosann staff at short notice or no notice while he made a telephone call to a person of interest, and that all staff present would listen to the conversation in an effort to "put pressure" on the person of interest ("Ground 3"); and 4. he had never seen, accessed, or listened to any part of the electronic recording of the call between Mr Jubelin and Mr Savage, and had not seen products submitted on e@gle.i that indicated that there was a conversation with Mr Savage that was recorded unlawfully ("Ground 4").
Before turning to each of Grounds 1 to 4, some attention should be given to the terms of Allegation 2. On its face, the allegation involves two elements: first, that in making the statements captured in Grounds 1 to 4, DSS Lambert was "untruthful"; or second, that in making those statements he was being "at the very least less than fully frank".
DSS Lambert tendered a document from the NSW Police intranet titled "Untruthfulness by subject officers during Part 8A investigations" ("Part 8A Policy"). It states: "A finding that a person has been untruthful will lead to a serious finding of misconduct and therefore cannot be based simply on the investigator's opinion. Untruthfulness is more than simply being evasive or not being fully frank and forthright. For a finding of untruthfulness to be sustained it must be established that the subject officer said something they knew to be untrue. There must be a factual basis for the decision. Where there are conflicting versions of a factual issue, it does not automatically follow that one person has been untruthful. It is possible for persons to perceive and remember events differently."
It is apparent from this extract that the NSW Police Force regards being untruthful as more than being "less than fully frank". It does not, however, explain what it means to be less than fully frank, and when that would rise to the point of being misconduct warranting disciplinary action under s 173 of the Police Act. The Part 8A Policy was put to Det Supt Doherty in cross-examination, but he was not asked as to his understanding as to the distinction between being "untruthful" and being "less than fully frank".
For the reasons which follow, it is not necessary to find the point of distinction. However, nothing in the case advanced by the Police Commissioner would have assisted me to do so. I am unable to comprehend what precisely is being alleged against DSS Lambert by the second element of Allegation 2. In another case this might have been of significance to the Police Commissioner's position.

Ground 1

Ground 1 is premised on DSS Lambert's state of knowledge as at 3 November 2017. That is, whether he knew at the time of the call that it was being illegally recorded. In light of my finding at [90] above, Ground 1 cannot be sustained.

Ground 2

Ground 2 is addressed in part by the finding at [90] above. In so far as the alleged untruthfulness is premised on DSS Lambert's knowing participation in the unlawful phone recording on 3 November 2017, it cannot be sustained. The question which arises is whether DSS Lambert can be said to have otherwise become aware that he was present during an unlawful recording prior to making his statement on 12 June 2020.
The only circumstance in which DSS Lambert would have acquired such knowledge, on the evidence, is in his review of the Investigator's Note. The finding at [107] does not necessarily equate to knowledge that DSS Lambert "was present at a conversation that was being unlawfully recorded". The Investigator's Note makes no reference to anyone other than Mr Jubelin being on the call with Mr Savage, or being present while the call took place. Consequently, to find that on reviewing the Investigator's Note DSS Lambert would have acquired the requisite knowledge would require me to be satisfied that the substance of the conversation should have resonated with him, or that the date of the call should have had particular significance. These matters run contrary to my finding at [90] above.
For these reasons, I am satisfied that DSS Lambert has met his onus and that he did not engage in the misconduct alleged against him in Ground 2.

Ground 3

Ground 3 arises from DSS Lambert seeking to place the call of 3 November 2017 into context. In short, he claimed (and maintains) that there was nothing exceptional in Mr Jubelin instructing him and DSC Gallyot to listen to his conversation with Mr Savage, and consequently no reason why the events of 3 November 2017 would of themselves have been noteworthy, much less raise alarm.
In his statement of 12 June 2020 DSS Lambert stated as follows: "127. During the investigation into the disappearance of William TYRRELL, DCI JUBELIN has on several occasions gathered all available staff into a meeting type environment at short or no notice at a location such as in the conference room at the Homicide Squad office at Police Headquarters, whilst he makes a telephone call to a person of interest with his mobile telephone on loudspeaker. All staff present would listen to the conversation as it took place. 128. DCI JUBELIN makes these calls to, in his words, 'put pressure' on the person of interest' [sic] as part of his investigative process. In a basic sense the process is looking to have the person succumb to the 'pressure' they are made to feel from DCI JUBELIN and as a result, make admissions or provide other relevant information that may assist the investigation. 129. These calls always appeared to be conducted at short notice with no planning. Those summoned to the room with DCU [sic] JUBELIN generally only knew that he was intending on making a phone call to the person of interest and were not aware of any plan or structure about how the conversation was going to take place. I think DCI JUBELIN made this up as he went along with a phone call. … 131. DCI JUBELIN did this with Paul SAVAGE on several occasions. …" (Capitals in original)
DSS Lambert deposed to a similar effect in his statement in these proceedings. He stated that the calls "were not regular [but] were sporadic and not formalised or structured strategies". [36] They were not all conducted in a conference room, but may have taken place in the general office area, in a car or in the field.
There was said to be some support for the practice described by DSS Lambert in an extract from the transcript of Mr Jubelin's directed interview by the PSC Investigations Unit. The transcript records the following exchange: [37] "Q70 In relation to this, um, do you know who was present in the room with you at the time? A No. Who, whoever would, uh, and I know that it's at five, five, uh, 5.30, uh, on a Friday afternoon, uh, I'm not sure why w, why we were there, whether we were on call or working back, so, whoever would've been in, in the office, it wasn't done, um, er, er, the word s, i, is it surreptitious in this allega, er, allegation?" (Italics added, reproduced verbatim)
The evidence revealed that DSS Lambert, Mr Jubelin and DSC Gallyot were the only members of SF Rosann at work on 3 November 2017 at the time the call to Mr Savage was placed.
During the course of her investigation, DI Gorman issued 14 members of SF Rosann with a Directive Memorandum, seeking information as to whether the officers were present at the calls described by DSS Lambert in his statement of 12 June 2020, or were otherwise aware of the practice described by him. Eight of those officers said words to the effect that they had not been party to a gathering of the kind described by DSS Lambert. The remaining six officers said words to the effect that they had no recollection of being involved in such a gathering.
The views of DSC Gallyot as to the existence or otherwise of the practice described by DSS Lambert appear not to have been sought.
DSS Lambert submitted: [38] "11. The Commissioner of Police will presumably rely in submissions upon 14 directive memorandums and responses from officers which have been tendered as part of Exhibit DDA. None of those 14 officers were called. Importantly, Detective Inspector Gorman gave evidence that discloses that almost all of those 14 officers are still members of the NSW Police Force and could have been called to give evidence in these proceedings. Despite their availability the Commissioner of Police has declined to put their evidence on oath or affirmation and denied the applicant the opportunity to cross-examine them, and also denied the Commission the opportunity to see them in the witness box to determine whether they're witnesses of credit. Therefore, in any circumstance where their evidence conflicts with that of Detective Senior Sergeant Lambert the evidence of Detective Senior Sergeant Lambert should be preferred. …" (Footnote omitted)
The Police Commissioner submitted: [39] "43. In his evidence, the Applicant expressly disavowed what he had said earlier about Mr Jubelin's practices, and gave evidence that was consistent with the 14 police officers. In particular, he accepted the call made by Mr Jubelin on 3 November 2017 was unusual. Not only does this explain why the Respondent did not call any of the 14 police officers in these proceedings, it leaves the Applicant unable to meet his onus on this issue." (Footnote omitted)
I struggle to comprehend how the forensic decision made prior to the hearing not to call one or more of the 14 officers can be explained by evidence given by DSS Lambert under cross-examination. In any event, DSS Lambert's evidence did not rise to the level asserted by the Police Commissioner. Under cross-examination he deposed: [40] "Q. Do you accept that this phone call that was made to Mr Savage-- A. Yep. Q. --was an unusual occurrence. A. Yeah, these sorts of things didn't happen necessarily often, but it's not a one-off occurrence, I've seen him speak to POIs in this matter before hence my information around the phone calls that takes [sic] place…"
This evidence is consistent with DSS Lambert's evidence in these proceedings that the calls were "sporadic and not formalised". It cannot be seen as a disavowal of his earlier evidence or as consistent with that of the 14 police officers.
I acknowledge that the onus is borne by DSS Lambert. However, he has established an alternative thesis to that alleged by the Police Commissioner. Even allowing for the reservations I expressed at [50] above, I have difficulty accepting that DSS Lambert would maintain a deliberate falsehood in the light of the material in Exhibit DD-A on this point.
I do not consider that the Police Commissioner answered DSS Lambert's case in respect of Ground 3. She could have, but did not, call witnesses to respond to that case. The weight to be attached to unsworn statements made in the course of DI Gorman's investigation does not adequately counter the sworn testimony of DSS Lambert.
For these reasons, I am satisfied that DSS Lambert has met his onus and that he did not engage in the misconduct alleged against him in Ground 3.

Ground 4

Given the finding at [107] above, DSS Lambert has failed to meet his onus in respect of Ground 4, in so far as he had claimed not to have seen a product on e@gle.i that indicated that a conversation with Mr Savage had been illegally recorded. I find that in making that statement DSS Lambert was being untruthful.

Conclusion

This finding leads me to determine that there is no basis on which to take issue with the conclusions in the Order that DSS Lambert conducted himself in a manner contrary to ss 7 and 167A of the Police Act, and to point 1 and 6 of the NSW Police Force Code of Conduct and Ethics. That constituted misconduct by DSS Lambert.

Proposed alternative basis for upholding the Order

The Police Commissioner contended that even were the Commission to find that the misconduct alleged in the Order had not been made out, the Order could still be upheld on the basis of DSS Lambert's evidence that he was aware of and did not report other misconduct in which Mr Jubelin had engaged. This contention arises from the matters canvassed at [37]-[41] and [51]-[67] above.
I have some reservations as to whether such a course of action is open to the Commission, whether generally or in the particular circumstances of this case. However, in light of the findings that I have otherwise made, it is not necessary to further traverse this ground.

Non-publication orders

During the course of the proceedings I made a number of orders pursuant to s 164A of the Industrial Relations Act 1996, preventing the publication of some of the evidence, both written and oral, that had been adduced. For convenience and clarity, the following is a chronology of the making of those orders.
On 11 October 2022, at the request of the Police Commissioner, I made the following orders: "1 Pursuant to section 164A of the Industrial Relations Act 1996, until any further order of the Industrial Relations Commission of NSW (IRC), the IRC orders that there be no publication or broadcast of any report of these proceedings before the IRC, to the extent such a report contains any reference to the matters set out in Schedule A; 2 Until any further order of the IRC, the IRC orders that there be no publication of the evidence in Schedule A; 3 Until any further order of the IRC, the IRC orders that there be no publication of the documents in Schedule A, which have been lodged with the IRC; and 4 The IRC orders that, if there is any application by a third party to access the file pertaining to matter number 2021/195303, that application must be referred to the Registrar for determination, who must first notify the parties of the application and provide them with an opportunity to be heard on the request."
Schedule A to the orders contained the following table: Material Exhibit Folder Electronic Court Book Gallyot Statement Pages 6 to 7 Gallyot Statement References to Person of Interest [name redacted] Paras 26 to 29, and 31 Pages 236 to 237 Det Snr Cst Palmer DM Response Paras 26 to 29, and 31 Page 379 Surveillance Device Log Pages 20 to 121, Pages 250 to 351, (Annexure to statement of Det Snr Cst Greg Gallyot 8 January 2019) Page 169 page 377 Synopsis of visits to Savage residence Pages 127 to 129 Pages 357 to 359 (Annexure to statement of Det Snr Cst Greg Gallyot dated 8 January 2019) Phone call Summary Pages 304-397 N/A

(Reproduced verbatim)

Also on 11 October 2021, at the request of DSS Lambert, I made an order pursuant to s 164A of the Industrial Relations Act that there be no publication of his address.
On 7 December 2021 I made the following further orders pursuant to s 164A of the Industrial Relations Act: "1 Pursuant to section 164A(1)(c) of the Industrial Relations Act 1996, until any further order of the Industrial Relations Commission of NSW (IRC), the IRC orders that each of the Applicant and his legal representatives are prohibited from publishing any part of the transcript of Local Court proceedings 2019/193051 to any person; 2 Pursuant to section 164A(1)(d) of the Industrial Relations Act 1996, until any further order of the IRC, the IRC orders that, other than the Applicant and his legal representatives, and the Commissioner of Police and his legal representatives, the transcript of Local Court proceedings 2019/193051 is prohibited from being disclosed to any person; and 3 Subject to orders 1 and 2 above, the IRC grants access to only the Applicant and his legal representatives with respect to the transcript of Local Court proceedings 2019/193051, as produced by the Respondent to the IRC Registry on 6 December 2021."
On 26 February 2022 the Industrial Registry received an email from the solicitors for the Police Commissioner, which stated in part: "Following review of the transcript of the proceedings to date, we have identified information over which we request that the s164A order is extended. Please find attached a list we have prepared identifying the page number and reference as contained in the transcript regarding the information we request is also subject to the s 164A order previously made." (Emphasis in original)
The list referred to in the email was set out in tabular form. The table set out the portions of the transcript which the Police Commissioner sought to be subject to an order under s 164A, together with a short statement as to why the order was sought. It is not possible to reproduce that table without revealing, at least in part, the information which the Police Commissioner sought to protect from disclosure.
By consent, on 28 January 2022 I ordered that the orders that I made on 11 October 2021, referred to at [135] above, be extended to cover the portions of the transcript identified in the table. I further ordered that the orders extend to cover lines 9 to 31 of the transcript reproduced at p 196 of Exhibit DD-A.

Determination

For the reasons set out above, and in particular at [107], [131] and [132], I find that DSS Lambert has not fully discharged his onus. While not all of the findings in the Order can be sustained, I am satisfied that DSS Lambert engaged in misconduct.
I have had regard to DSS Lambert's interests. The Order is a stain on an otherwise unblemished disciplinary record. It may, at least for a period, impact on his ability to secure promotions.
I have had regard to the public interest. The Police Commissioner submitted, and I accept, that the public interest encapsulates the notion that the organisational integrity of the NSW Police Force must be preserved. There is a public interest in police officers, particularly senior police officers, being reprimanded when they fail to report misconduct.
I find that the Order is not unreasonable or unjust, or beyond power. It was not contended that the Order was harsh.

Order

In accordance with s 177(1)(c) of the Police Act 1990, the Order is upheld. Damian Sloan Commissioner

Endnotes

Statement, Craig Lambert, 18 August 2021, Annexure J at p 96
Tcpt, 13 October 2021, p 23(32-49)
Statement, Daniel Doherty, 15 September 2021 at par 10
Tcpt, 17 May 2022, p 54(30-36)
ibid., p 36(21-29)
Exhibit DD-A, Tab 16 at pp 220-223
Exhibit DD-A, Tab 18
Exhibit DD-A, Tab 22
Statement, Craig Lambert, 18 August 2021 at par 73
Tcpt, 12 October 2021, p 19(1-4)
ibid., p 20(37-42). See also p 9(39), p 12(42) and Tcpt, 13 October 2021, p 11(25-26)
ibid., p 6(2-3, 50). See also p 10(26-37), p 16(36-37) and Tcpt, 11 October 2021, p 19(20-21).
Tcpt, 11 October 2021, p 20(21-22). See also Tcpt, 12 October 2021, p 20(42-49)
Tcpt, 12 October 2021, p 24(23-26)
Tcpt, 17 May 2022, pp 38(40)-39(17)
ibid., p 2(2)
Exhibit DD-A, Tab 16 at p 225
Statement, Craig Lambert, 18 August 2021 at par 70
ibid. at par 170
Statement, Joseph Doueihi, 15 September 2021 at par 15
Tcpt, 17 May 2022, p 63(23-24)
ibid., p 62(6-15)
Statement, Craig Lambert, 18 August 2021 at par 52
ibid. at par 160
Exhibit DD-A, Tab 28 at p 355
Outline of Submissions of the Respondent, 26 April 2022
Exhibit DD-A, Tab 33 at p 398
Tcpt, 17 May 2022, pp 18(49)-19(1)
Exhibit DD-A at Tab 32
Statement, Craig Lambert, 18 August 2021 at par 157
ibid. at par 24
Tcpt, 11 October 2021, p 15(30)
Statement, Craig Lambert, 18 August 2021, Annexure A
Tcpt, 11 October 2021, p 18(1)
ibid., p 18(19-30)
Statement, Craig Lambert, 18 August 2021 at par 107
Exhibit DD-A, Tab 5 at p 136
Outline of Submissions of the Applicant, 5 April 2022
Outline of Submissions of the Respondent, 26 April 2022
Tcpt, 12 October 2021, p 35(30-37) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2022

At a glance

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Decision date

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (25)

Cited By (3)