25 In reply, Mr Latham indicated that the applicant gives the Commission the undertaking that he would, if reinstated, apply for medical discharge.
Conclusion
26 On the approach of the parties, the issue arises whether the no confidence provisions apply in circumstances where a Police Officer commits an act of misconduct for reasons which are excusable or excused under s32 of the Mental Health (Criminal Procedure) Act. In Wells v the Commissioner of Police, the applicant had suffered a relevant mental disability and received the benefit of s32 of that Act but had, on psychiatric evidence, recovered from his disability such that he was fit for work. The prospect of his re-offending was but a mere possibility, no greater than that applicable to any member of the Police Service. In those circumstances, it was not possible for the view to be formed that the circumstances justified a loss of confidence.
27 Here the factual position is different. The applicant, on the medical evidence, is incapable of resuming his duties. Theoretically, at least, were he to do so, the risk of his re-offending would be considerably high.
28 On one level, it is obvious that the Commissioner could not have confidence in the applicant remaining in the Police Service. Were that the only consideration, the Commissioner's approach would be consistent with his statutory rights under the Police Act. I take that view because I find it inconceivable to think that a member of the Police Service could be free to engage in unwarranted physical assaults, that is, to commit a crime with impunity, as a feature of normal behaviour, without employment consequences. There seems to me to be no reason to limit the Commissioner's confidence provisions of the Police Act to exclude a loss of confidence arising from circumstances such as those raised in this case. There is no limitation in the language of the statute and I do not see any basis to limit its application because of the motivation behind its promulgation. The legislation is applicable to permit the applicant's removal, provided that the removal is not harsh, unreasonable or unjust.
29 In Little v Commissioner of Police [2001] NSWIRComm 9, I took the view that a loss of confidence established by the Commissioner as justified in the circumstances of the case meant that the Commission should not reinstate the Police Officer concerned. The Full Bench on appeal held that approach failed to take into account the requirement that the dismissal not be harsh and, while the Full Bench suggested it might not have effected a reinstatement in the circumstances, it did so in the knowledge that the order of reinstatement would not be effective to return the applicant to active service, but the loss of superannuation suffered by the applicant, which contributed to the harshness, would be restored to him upon his immediate retirement.