Little v Commissioner of Police

Application by Anthony John Cavanagh for review of order under s181E of the Police Service Act 1990

1 The applicant, Anthony John Cavanagh, is a 40 year old former Senior Constable of Police who was removed from the Police Service by order of the Commissioner of Police on 23 June 2003.

2 On 28 August 2002 the Commissioner had served upon the applicant a notice under s181D(3)(a) of the Police Service Act 1990 (now referred to as the Police Act 1990 - see Act No. 51 of 2002) which enables the removal of an officer in whom the Commissioner has lost confidence in the suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct. This notice provided the applicant 21 days in which to make written submissions on the matter identified in the notice which went to the applicant's conduct as follows: 1. On 5 January 2002 at 3 Tathira Crescent, Merrylands you assaulted Mrs Rosemary CAVANAGH by striking her with a closed fist to the left and right side of her head, pushing her to the ground, kicking her to the upper right leg, and kicking her to the arms.

You were charged with Assault Occasioning Actual Bodily Harm and appeared at Fairfield Local Court on 18 July 2002 where the charge was heard under Section 32 of the Mental Health (Criminal Procedure) Act . You were given a nine month good behaviour bond.

3 The reference to a nine month good behaviour bond has been recognised to have been incorrect. The fact was that the proceedings had been stayed indefinitely subject to Senior Constable Cavanagh complying with certain conditions for a period of nine months, on the expiration of which the charges would be dismissed. No finding of guilt was made by the Court.

4 The applicant seeks a review of the Commissioner's order on the ground that the removal was harsh, unreasonable or unjust.

5 I do not propose to re-state the lengthy provisions in Division 1B of Part 9 of the Police Act. They have now been the subject of repeated scrutiny in a number of decisions of single members and the Full Bench on appeal. It is sufficient to refer to some of the statutory provisions in general terms. The proceedings on a review are dealt with in s181F, which stipulates the procedure on the review and the matters which the Commission must take into account. Section 181G applies to the review the provisions of the Industrial Relations Act 1996, as they apply to an unfair dismissal in a proceeding under Part 6 of Chapter 2 of that Act, subject to certain specified modifications. No other provisions require present reference.

6 In the course of the proceedings, both the applicant and his former wife gave evidence. The applicant denied striking her with a closed fist but did not deny kicking her to her upper right leg and upon the arm. He contended that he struck the left side of her face with his open right hand after she had run towards him in their bedroom and started pulling his hair. He said that she fell backwards towards the wooden bed end, striking her right eye upon it. This was said to account for a badly swollen and bruised right eye, which was depicted in photographic evidence. He said that he had slapped her on one other occasion when she had tried to strangle him on their front lawn. It was after that incident that he left the family home. On the night of 5 January 2002 the applicant and his wife were then separated but had attended the same nightclub or bar, drinking alcohol but not socialising together. The applicant's wife went home. He later caught a taxi to the home and, using a key which he had retained, entered the premises with the intention of throwing his wife out of the home. He said he intended to achieve this by throwing her clothes into the street. He went to the upstairs bedroom where his wife was in bed alone and commenced to obtain her clothes from the wardrobe when, he said, she attacked him.

7 His former wife in evidence adhered to a statement she gave to the Police which put the applicant as the attacker and she as defending herself. Ultimately, she was ejected from the home and ran to a next-door neighbour for assistance. The Police were called.

8 The applicant was charged that day with Common Assault. Subsequently, a charge of Assault Occasioning Actual Bodily Harm was also preferred.

9 The applicant then attended the surgery of Dr Dragia Milinkic of Merrylands who provided a certificate identifying the fact that he had examined the applicant and that he "found that he had redness and soreness to the left face around the cheekbone area, soreness to the left scalp and an abrasion to the back portion of his right hand". These injuries were said to be consistent with the history given of a physical assault upon him by his wife. When the charges came to hearing at the Fairfield Local Court, the applicant entered pleas of not guilty. The Magistrate determined to deal with the matters under s32 of the Mental Health (Criminal Procedure) Act 1990 which affords the Local Court powers appropriate to dealing with a person suffering a developmental disability, mental illness or mental condition, as defined therein. The charges were subsequently dismissed on 24 July 2003, upon the applicant having satisfied the conditions of the orders made earlier by the Local Court.

10 The order removing the applicant from the Police Service was accompanied by a statement of the reasons for which the Commissioner had decided to effect the removal. Those reasons are as follows: I am required to make a determination under s181D(1) of the Police Act 1990 in respect of whether I have confidence in you as a member of the New South Wales Police. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself and a Notice served upon you pursuant to s181D(3)(a) of the Police Act 1990, together with your written submission provided through your solicitor in response to the grounds set out in my Notice.

The grounds set out in my notice to you refer to your conduct and relate to an assault upon your wife that resulted in a telephone interim apprehended violence order being served upon you. The incident resulted in you entering into the criminal justice system charged with 'Common Assault' and 'Assault Occasioning Actual Bodily Harm'. I provide the following as the reasons for my determination.

I have given careful consideration to all of the material that has been presented to me in this matter. The material discloses that after leaving licensed premises at Parramatta in the early hours of the morning of 5 January 2002, you attended the residence of your estranged wife Mrs Rosemary Cavanagh at Merrylands. You gained entry to the premises with a key you had retained following your separation from Mrs Cavanagh approximately five weeks earlier. Mrs Cavanagh was in bed, you entered the bedroom and subsequently assaulted your wife by way of punching and kicking, and you then pushed your naked wife from the house, her fleeing to the home of a neighbour for assistance, resulting in police intervention.

Investigating police issued you with a Court Attendance Notice for 'Common Assault' however, due to the severity of the injuries sustained by Mrs Cavanagh you were later charged with 'Assault Occasioning Actual Bodily Harm'. As a result of your actions, Mrs Cavanagh was required to seek the services of a medical practitioner. At the Fairfield Local Court on 18 July 2002, Mr Rustin LCM found that it was more appropriate to deal with you in accordance with the provisions of Part 3 of the Mental Health (Criminal Procedure) Act 1990 and imposed certain orders and conditions upon you.

I want to make it absolutely clear to you your behaviour under these circumstances is viewed most seriously and is not acceptable to me. I want you to clearly understand that I expect an appropriate standard of behaviour from all police officers. As I have stated, I have carefully reviewed all of the material associated with this matter. I see no mitigation or reason that would provide me with any basis not to lose my confidence in your suitability to remain a police officer. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police. I therefore remove you from your position as a police officer.

11 The applicant's claim for a review is predicated on a number of bases, conveniently set out in the written submissions advanced by Mr Latham of counsel for the applicant this way:

(a) the allegations against the applicant have never been proved;

(b) even were the allegations proved, the provisions of the Police Services legislation which the Commissioner seeks to agitate were never designed for circumstances such as this and should not be used in these circumstances;

(c) there are provisions in other legislation dealing with workers' compensation and superannuation that are significantly more appropriate;

(d) the behaviour of the Police Service has been so unfair that the Commission should find that this dismissal was either harsh, unfair or unjust;

12 More expansive submissions were put supporting these propositions. It is necessary to confirm that, as the Statement of Reasons makes clear, the applicant's performance as a Police Officer was never under question. A memorandum from the Executive Director, Corporate Services, to the Commander, Special Crime and Internal Affairs, of the Police Service concerning consideration of a s181D procedure in relation to the applicant observed that he "has displayed at all times a very strong commitment and dedication to his work. He is one who is always willing to work additional hours without remuneration . . . (he) has remained at work since the incident and is working with the same level of commitment and dedication as displayed prior to the incident."

13 By the time the criminal charges came to court the applicant's mental state or condition had been the subject of assessment and report by Dr Wendy-Louise Walker, a Clinical and Forensic Psychologist. Dr Walker had the applicant referred to a Forensic Psychiatrist due to what she found to be his severe depression. She prepared a report for the Fairfield Local Court and attended that court as a witness on 18 July 2002. The report, which was admitted into evidence over the Commissioner's objection in these proceedings, is lengthy but gives the following indications: Mr Cavanagh has, currently and for many years, suffered severe, chronic, work-related Post-Traumatic Stress Disorder, and severe depression. The sources of those observations were identified but do not warrant repetition here. . . . .

As a result of being criminally charged, Mr. Cavanagh is now under threat of dismissal from the Police Service under 181D; with his very severe depression and severe, chronic PTSD with high levels of anxiety, I believe that this would be a very destructive outcome which would greatly increase risk of suicide despite his religious convictions if her (sic - he) were dismissed under 181D.

14 The report then set out a lengthy exposition of details of traumas suffered by the applicant in the course of his police work. This concluded with the following observation: He is currently on sick leave and is certainly incapable at present of any police work although he does maintain hopes (not realistic in my view) to return at least to restricted duties at which he worked hard and not without success.

15 Dr Walker finally expressed her opinion of the applicant and concluded with this comment: He is currently incapable of any police work and, despite his hopes, I believe that this will be permanent.

16 A further report by Dr Walker was prepared on 20 August 2003. She recorded that she has been providing ongoing treatment for him and that he had worked hard on the treatment during the early months of 2003. The report details the reactions of the applicant to having received the s181D(1) notice removing him from the Service and concluded: In my opinion, the receipt of the 181D on 23rd June 2003 has resulted in a marked deterioration in Mr. Cavanagh's mental disorders after many months of significant improvement with treatment.

17 It was submitted for the applicant that the allegation against him was nothing more than that. Statements were taken and charges were laid. There was no testing of the evidence or whether the elements of the offence had been made out. There was no testing of possible grounds of defence such as consent or self-defence. In circumstances where the applicant's conduct was dealt with under s32 of the Mental Health (Criminal Procedure) Act 1990, the use of s181D against the applicant was inherently harsh, unfair and unjust. This was so, even if the allegation could be said to have been made out. It was submitted that it is grossly inappropriate for such legislation to be used against persons who were never the intended target of it in a situation where legislative alternatives exist to deal with such issues. The legislation was designed to deal with corruption and unprofessional levels of integrity, competence and behaviour, not officers who were sick (see Newton v Commissioner of Police (1999) 87 IR 66 at 77-78).

18 Mr Latham relied on the decision of the Commission in Wells v Commissioner of Police (1999-2000) 100 IR 106 which ordered the reinstatement in the Police Service of an officer who had assaulted a member of the public attending the police station on ordinary business. The police officer had been dealt with under s32 of the Mental Health (Criminal Procedure) Act 1990 and he was found to have been suffering a mental condition at the time of his offending but had recovered therefrom with little prospect of re-offending. In that matter this was said: I consider the proper conclusion in this matter is that the applicant is either fit for duty on the basis of the medical opinion and has such a low propensity to reoffend that it would not be reasonably open to conclude that his conduct and competence engender a lack of confidence. If there be any inappropriateness in the continuation of the applicant in the Police Service that state of affairs arises from the slender possibility of the re-emergence in a negative way of his medical condition. I consider the appropriate means of dealing with circumstances of that kind does not lie in the provisions of s181D but, if anywhere, in concepts of medical discharge. 19 That case was said to be directly in point in the present matter.

20 It was submitted that the Commissioner had not seriously addressed:

(d) alternative ways of dealing with the illness of the applicant, namely that he should have been dealt with under s14 of the Police Regulation (Superannuation) Act 1906 which provides for a gratuity of two years' salary for those who are medically discharged but not entitled to superannuation, or s10 of the Police Regulation (Superannuation) Act 1906 which deals with hurt on duty applications or workers' compensation legislation.

21 Mr Reitano of counsel for the Commissioner submitted that the detailed allegations made against the applicant only ever produced from him the response that he had entered a not guilty plea in the Local Court and been dealt with under the s32 provisions. No attempt was made to dispute the allegations which were then levelled against the applicant. In evidence here the applicant conceded that he had slapped and kicked his wife and, accordingly, the substance of the allegations are correct. While conceding that the dismissal of the charges was relevant to how the Commission here should deal with this type of misconduct, it was submitted that on the evidence before the Commission the conduct was serious.

22 Mr Reitano submitted that the concept in the applicant's submissions of there existing "more appropriate" legislation under which the applicant's conduct should be dealt with was wrong.

23 It was submitted that the decision in Wells v Commissioner of Police is distinguishable. There he was held to be unlikely to re-offend, given his medical recovery. Here the medical evidence is to the contrary. The Commission must form the view that it would be impracticable to make an order of reinstatement or re-employment (s89(5) of the Industrial Relations Act 1996). If the Commission were to consider that the Police Service should pay the applicant an amount of compensation, it would be limited by that provision to a period of six months' pay. It was observed that s89(8) permits an order under s89 to be made "on such terms and conditions as the Commission determines". Here, if the Commission were inclined to the view that the circumstances justified affording the applicant an opportunity to pursue his police superannuation rights that the Commission could order his reinstatement and employment, without money compensation, on condition that he undertake to resign should his application for medical discharge fail.

24 In the course of argument it seemed to be accepted that s14 of the Police Regulation (Superannuation) Act 1990 (the section potentially applicable to the applicant) applies only to a serving member of the Police Service who is actually discharged on medical grounds, but who has less than 20 years' service and no entitlement to superannuation. Section 14 could give the applicant an entitlement to a gratuity of two years' salary, but would not be accessible unless the applicant were in current employment as a Police Officer.

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.

30 These considerations suggest to me that the legislation imposes on the Commissioner a scheme which is most difficult to administer. Where a Police Officer commits misconduct which causes a loss of confidence but the consequence of dismissal is found to be harsh, unreasonable or unjust, then the Commissioner is exposed to the potential of having an Officer, in whom he has no confidence, returned to service. Loss of confidence is, to my mind, a notion which is almost certainly unaffected by considerations of fairness. Fairness in the statutory sense can arise only as a consideration relevant to the consequences of the Commissioner's conclusion. While, as a practical matter, the Commissioner must make his decision in a particular case with an eye to the consequences, it is not likely that he could be persuaded to consider unfair a rational conclusion that misconduct has justified removal because of a loss of confidence.

31 Here, it is obviously not appropriate, or indeed possible given his condition, to return the applicant to the Police Service with a view to his resuming active services. However, the applicant's position is that he is likely to be entitled to a benefit under the Police Regulation (Superannuation) Act 1990 some four times greater than the maximum available as compensation under the Industrial Relations Act 1996.

32 I consider it would be appropriate in this case to determine that the removal of the applicant in the circumstances would be harsh, but only in circumstances where the applicant will not resume active service due to his medical condition. I so find and I order that the applicant be reinstated in the Police Service without compensation in respect of time not worked but conditionally upon his undertaking in writing to the Commission that he will apply for medical discharge and, should that application be unsuccessful, he will resign from the service immediately upon being so notified. The order will take effect on and from 1 January 2004, conditionally upon the applicant's written undertaking and upon its being filed with the Industrial Registrar by that date and served on the Commissioner of Police.

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