Martin Evans v NSW Police

Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159 Burrows v Commissioner of Police, Giardini v Commissioner of Police [2001] NSWIRComm 333 Cavanagh v NSW Police [2003] NSWIRComm 474 Dangerfield v The Commissioner of Police [2003] NSWIRComm 96 CASES CITED: Little v Commissioner of Police (No 2) (2002) 112 IR 212 Little v Commissioner of Police [2001] NSWIRComm 9 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 Wells v Commissioner of Police (2000) 100 IR 106

APPLICANT Mr B Docking of counsel Solicitor: Mr E Oates Oates & Smith LEGAL REPRESENTATIVES:

RESPONDENT Mr J Pearce of counsel Solicitor: Ms B Batra NSW Police Service - Court & Legal Services

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application under section 181E of the Police Act 1990 by Martin Evans for review of an order of The Commissioner of Police

1 Martin John Evans was a Leading Senior Constable in the New South Wales Police. On 6 December 2003, after a long session of drinking, Mr Evans and another police officer, Senior Constable John Maher, assaulted Kevin Gleeson in George Street, Sydney in the early hours of the morning. 2 On 23 December 2003 Mr Evans was arrested and charged with "Assault occasioning actual bodily harm in company" and common assault. On 15 April 2004 Mr Evans pleaded guilty in the Local Court to the assault charge. The common assault charge was withdrawn. Mr Evans was convicted, fined $3,000 and placed on a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 18 months. 3 On 24 February 2005 the Commissioner of Police signed an order under s 181D(1) of the Police Act 1990 removing Mr Evans from the New South Wales Police on the ground that, having considered his conduct, the Commissioner did not have confidence in Mr Evans' suitability to continue as a police officer. The order was served on Mr Evans the following day. 4 Mr Evans now seeks reinstatement on the grounds his removal was harsh, unreasonable and unjust. Factual background

5 Mr Evans joined the Police in May 1994. He attained the rank of Senior Constable in April 2001 and was appointed to the rank of Leading Senior Constable in June 2002. The circumstances that led Mr Evans to be drinking on 5 and 6 December 2003 were that he was to attend a Christmas harbour cruise arranged by the Police's Green Valley Local Area Command. A bus was arranged to transport about 40 off-duty officers, including sergeants, from Campbelltown and Green Valley Police Stations to the City where they were to board a boat. The bus left Campbelltown about 4.00 pm. Alcohol was provided and Mr Evans said he consumed about five beers on the bus and about ten beers on the harbour cruise. 6 Once the harbour cruise had finished at about midnight Mr Evans and a number of other officers went to a bar in Darling Harbour where more alcohol was consumed. At this stage Mr Evans began drinking ouzo and coke. Mr Evans and some colleagues then took a taxi to a hotel in Goulburn Street in the City known as "Scruffy Murphy's". There Mr Evans consumed more alcohol - ouzo and coke. Mr Evans said he drank about eight ouzo and cokes altogether after midnight. He admitted that by the time he assaulted Mr Gleeson he was heavily intoxicated. 7 It would appear that prior to the assault on Mr Gleeson, Mr Evans was involved in an altercation with another patron in the hotel (Mr Gerard Maher) who was an associate of Mr Gleeson. Mr Evans was subsequently charged with common assault in relation to this altercation but in proceedings before the Local Court on 15 April 2004 the charge was withdrawn by consent of the parties. It is not apparent why the charge was withdrawn but Mr Evans denied he assaulted Gerard Maher and it appears Mr Maher may not have been able to identify Mr Evans as the person who assaulted him. 8 What follows was recorded on closed circuit television operated by the Council of the City of Sydney as part of its Street Safety Camera Program. 9 At about 3.30 am Mr Evans had left the bar and was standing in front of premises in George Street with then Senior Constable John Maher, another male person and two females, one being identified as Constable Michelle Axisa. Mr Gleeson is seen walking past the group. He stopped, turned around and approached the group who were engaged in conversation. Mr Evans looked to be in the process of lighting a cigarette. Mr Gleeson came up behind Mr Evans and gave him a solid push in the middle of the back with his foot. Mr Evans and Mr Maher turned to face Mr Gleeson and both started to walk towards Mr Gleeson as he backed away. Mr Evans continued to light his cigarette. As the two men approached Mr Gleeson another male tried to intervene between them. 10 As Mr Gleeson backed away, Mr Maher threw a punch at his face. Mr Gleeson ran across the road with Mr Evans and Mr Maher following him. As Mr Gleeson reached the footpath on the other side of the road he slipped and fell to the ground. Mr Evans, in close pursuit, fell on top of him and commenced grappling with Mr Gleeson. Mr Maher attempted to kick Mr Gleeson whilst he was on the ground. Mr Gleeson stood up and was punched a number of times by both Mr Evans and Mr Maher. The assault continued with Mr Maher doing most of the punching. The assault ceased and Messrs Evans and Maher, together with Constable Axisa, left the scene in a taxi. 11 Mr Gleeson later attended hospital for treatment of his injuries. They were not serious. He sustained soft tissue injuries to his face and nose and suffered a nosebleed. Local Court proceedings

12 In the proceedings in the Local Court Magistrate Syme observed that alcohol had "played a very large part in the offence in the events of that evening, certainly in relation to Mr Evans' behaviour and certainly in relation to the behaviour of the victim Mr Gleeson". 13 Her Honour referred to Mr Gleeson kicking Mr Evans, how Mr Evans and Mr Maher followed Mr Gleeson across the road and how he fell over. Her Honour continued: Thereafter, the defendant and the co-offender proceeded to attack the victim, substantially attack the victim and the observation of this defendant's involvement is that he attacked him with punches in the company of the co-offender. At one stage the video could not show the extent of the attack as it was hidden from view, however it is clear from the injuries of the victim and from what I was able to view from the video that the defendant was certainly involved in more that (sic) one punch and the defendant and the co-offender acting together were involved in a serious assault on the victim, a very serious assault.

There are of course aggravating features in this charge and the most aggravating feature is the fact that the defendant, and apparently the co-offender although I'm not specifically advised but certainly the defendant, is a serving police officer who was off duty at the time. That I do take into account as an aggravating feature as police officers are expected to behave in a manner that befits their position and does not bring discredit on themselves or indeed the police force. It is an important issue that goes to the heart of policing, the heart of community expectation and confidence in the police and the police force and the administration of justice in general. Therefore, I find that the fact that the defendant is a police officer to be an aggravating feature.

In relation to the issue of mitigation I have already referred in the summary of facts to the issue of provocation. I have been correctly addressed in relation to how provocation should be treated and I have already noted that the degree of provocation proffered by the victim on this occasion was quite substantial. I noted that the degree of force that the victim appeared to use on the defendant was indeed quite substantial. In relation to the time between the imposition of that force and the reaction of the defendant certainly the reaction of the defendant was not immediate and I would guess about some 30 seconds passed between the victim doing what he did and the defendant doing what he did.

That certainly was sufficient time for the defendant to have another think about what he was about to do and to consider a better course of action. I also note that the defendant had friends with him, he was not alone, indeed the presence of the co-offender clearly did not help the situation at all and probably made the situation somewhat worse. 14 In relation to Mr Evans' guilty plea, Magistrate Syme stated: The degree of retribution imposed by the defendant on the victim I think even Mr Johnston agrees was excessive. Mr Evans has accepted that by his degree of guilty, a plea of guilty at a relatively early stage in the proceedings and Mr Evans is entitled to receive a benefit for his plea of guilty in the sentence, both because of the time and costs savings in avoiding a hearing but also of course his plea of guilty demonstrates a degree of remorse and degree of acceptance of responsibility for which Mr Evans should and will receive credit. 15 Her Honour considered whether she should record a conviction against the defendant: I also note that as a serving police officer the defendant will face some other proceedings apart from these proceedings. I take into account in dealing with this matter that if a conviction is recorded there will be further consequences of that recording of a conviction. I have considered whether it is appropriate to record a conviction against Mr Evans in these circumstances but taking into account the aggravating features that I have referred to, that is the fact that he is a serving police officer and the aggravating feature in that is was a joint enterprise between himself and the co-offender that the degree of force used was excessive even in relation to the provocation and the fact of the objective seriousness of the charge itself, I do propose to deal with the matter by way of conviction. 16 Her Honour referred the mitigating factors as follows: I also take into account as matters of mitigation, things that I have already mentioned that is Mr Evans has addressed and will continue to address the alcohol problem and that in relation to this particular offence whilst the provocation has been raised and I have said that there was quite some time relatively speaking in between the victim's action and the response by Mr Evans there is no way that it could be said that Mr Evans had in any way planned this assault and to some extent it was somewhat spontaneous.

I also note from viewing the video that the victim's behaviour was very provocative, the victim was clearly very drunk at the time, that should have perhaps given Mr Evans a clue not to respond in the way that he did but certainly I note and take into account that the victim, if I can say colloquially put himself in Mr Evans' face unnecessarily again and again. 17 In handing down her sentence Magistrate Syme stated: In considering how to deal with this matter, therefore, considering that a custodial sentence full time or periodic is not an appropriate sentence I do not also consider that the direct alternative or a community service order is appropriate in these circumstances. However, an alternative such as a good behaviour bond pursuant to s 9 is in my view an appropriate disposition of this matter. I have heard Mr Johnston in relation to the issue of supervision and I agree with him there is nothing in Mr Evans' background or current circumstances that would indicate that supervision by probation and parole is appropriate for Mr Evans, he appears in all other respects when he is being a responsible member of the community to be just that and he has behaved responsibly since the commission of this offence."

"I also propose to impose a fine in relation to this fine (sic) together with the good behaviour bond. Taking into account the maximum fine that can be impose is a little over $5,000, taking into account the degree of seriousness of the offence and criminality of this offence I propose to impose a fine of $3,000 in relation to this matter, taking into account Mr Evans' prior good character and lack of previous convictions. 18 Mr Evans appealed against the severity of the sentence but withdrew the appeal. Senior Constable Maher was also charged and convicted although it is not apparent from the evidence what sentence was imposed upon him. In any event, he appealed and the appeal was upheld. The sentence was quashed and Mr Maher was placed on a good behaviour bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act. Notice pursuant to s 181D(3)(a)

19 On 22 November 2004, Mr Evans was given notice under s 181D(3)(a) of the Police Act by the Commissioner of Police, Mr K Moroney, that the Commissioner was considering Mr Evans' suitability to continue as a police officer having regard to his conduct on the following grounds: 1. On 5 December 2003 you attended Scruffy Murphy's Hotel where you became involved in an altercation with Mr Gerard Maher. Mr Maher alleged you assaulted him by punching him twice to the face. As a result you were arrested and charged with 'Common Assault' on 23 December 2003. On 15 April 2004 you appeared at the Downing Centre Local Court where the charge of 'Common Assault' was withdrawn at the request of the Director of Public Prosecutions 2. On 5 December 2003, in the company of Senior Constable John Maher and other friends, you were standing in George Street, Sydney where Kevin Gleeson assaulted you by kicking you in the back. Both you and Senior Constable Maher retaliated to this assault by pursuing Mr Gleeson across the road. Both you and Senior Constable Maher then assaulted Mr Gleeson by punching and kicking him a number of times to his body. As a result of the assault Mr Gleeson sustained soft tissue injuries and bruising. On 23 December 2003 you were arrested and charged with 'Assault Occasioning Actual Bodily Harm in Company' and 'Affray' in respect to the assault upon Mr Gleeson. On 15 April 2004 you appeared at Downing Centre Local Court where you pleaded guilty to the offence "Assault Occasioning Actual Bodily Harm in Company'. You were convicted and fined $3,000 plus $61 court costs and placed on a Section 9 Good Behaviour bond for a period of eighteen (18) months. The charge of 'Affray' was subsequently withdrawn by the Director of Public Prosecutions. Your participation in the assault of Mr Gleeson is considered unacceptable and in doing so you have not maintained the highest ethical and professional standards required of a police officer. I therefore hold serious concerns in respect to your ability to conduct yourself appropriately as a serving member of the New South Wales Police. You are hereby notified that I am considering making an order for your removal from the New South Wales Police under s 181D of the NSW Police Act 1990 . In accordance with paragraph 181D(3)(b), prior to making my decision, you are hereby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submissions and you are not obliged to do so. Annexed to this Notice is a submission, which I have read and taken into account in issuing this Notice to you. The submission augments the matters raised in the Notice and any response to the Notice should take into account the submission. Removal order under s 181D(1) 20 On 13 January 2005 Mr Evans' solicitors responded to the Commissioner's s 181D(3)(a) notice in an 8-page submission, offering reasons why the officer should not be removed. 21 However, in his notice under s 181D(1), having considered the solicitor's submissions, the Commissioner determined to remove Mr Evans from the NSW Police effective from 24 February 2005. Attached to the notice was a "Statement of Reasons" in the following terms: I am required to make a determination under s 181(D)(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 on 29 November 2004 pursuant to s181 (D) (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.

I have given careful consideration to all of the material that has been presented to me in this matter. The grounds set out in my Notice refer to your conduct and relate to your participation in an assault upon Mr Kevin Gleeson in George Street, Sydney on 5 December 2003. The incident resulted in you entering the criminal justice system charged with 'Assault Occasioning Actual Bodily Harm in Company' and 'Affray'. I provide the following as reasons for my determination.

On 5 December 2003, in the company of Senior Constable John Maher and other friends, you were standing in George Street, Sydney where Mr Kevin Gleeson assaulted you by kicking you in the back.

Both you and Senior Constable Maher retaliated to this assault by pursuing Mr Gleeson across the road. Both you and Senior Constable Maher then assaulted Mr Gleeson by punching and kicking him a number of times to his body. As a result of the assault Mr Gleeson sustained soft tissue injuries and bruising.

On 23 December 2003 you were arrested and charged with 'Assault Occasioning Actual Bodily Harm in Company' and 'Affray' in respect to the assault upon Mr Gleeson.

On 15 April 2004 you appeared at Downing Centre Local Court where you pleaded guilty to the offence of 'Assault Occasioning Actual Bodily Harm in Company'. You were convicted and fined $3000 plus $61 court costs and placed on a Section 9 Good Behaviour Bond for a period of Eighteen (18) months. The charge of 'Affray' was subsequently withdrawn by the Director of Public Prosecutions. You lodged an appeal against the severity of your sentence, which you subsequently withdrew.

I note that alcohol, in particular, the apparent excessive consumption of alcohol, has been put forward as an issue in mitigation of the offence. This was acknowledged and accepted by the relevant judicial officers and you received the benefit of the leniency of the Court. I note that you have submitted in mitigation that your behaviour was out of character and that had you not been under the influence of alcohol at the time of the incident it may not have occurred. I also note your efforts in addressing your alcohol abuse and the remorse you have shown for the incident by your plea of guilty at court. The behaviour you exhibited on this occasion is not, however, the behaviour that I expect of a professional police officer.

The assault by Mr Gleeson upon yourself was unlawful and I note that he has been dealt with by the Court. The actions of Mr Gleeson cannot be excused either.

Notwithstanding this assault, the CCTV footage which I have viewed provides a most telling account of the assault that was then occasioned upon Mr Gleeson in what I regard as a wanton and deliberate manner. That footage is a damning indictment of a personal loss of self-control from you.

There can be no excuse for your behaviour when as a police officer you would have known the law as it related to Mr Gleeson's attack upon you, and notwithstanding that level of requisite knowledge you chose and equally unlawful path in your participation in the assault upon Mr Gleeson. Magistrate Syme reflected in her judgment on the community's expectation of police officers. By any test the conduct you exhibited was not to that standard, nor do I believe of the standards of the New South Wales Police.

I have carefully reviewed all of the material associated with this matter and 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. K E Moroney Commissioner of Police 22 It may be noted that Mr Gleeson was dealt with in the Local Court for his assault on Mr Evans; he pleaded guilty and the matter was dismissed under s 10 of the Crimes (Sentencing Procedure) Act.

23 On one view of this matter it is understandable why the Commissioner of Police lost confidence in Mr Evans. He was a police officer of some 11 years' standing with the rank of Leading Senior Constable. That rank carries with it significant responsibility and the Commissioner's trust and confidence. Part of Mr Evans' role was to impart his knowledge, experience and the values of NSW Police to junior officers; he was supposed to be a role model. On 5 and 6 December 2003 Mr Evans became drunk and in company with another off-duty officer assaulted a member of the public. It was an unnecessary attack by an officer who had received the training and had acquired sufficient experience to understand the need for restraint given his role as a serving police officer. In the company of Mr Maher it was also a cowardly attack, notwithstanding the provocation. 24 That he was drunk was put forward in mitigation. I was not impressed by that submission. That a serving police officer allowed himself to reach such a level of intoxication after nearly 12 hours of drinking such that he was not able to exercise self-restraint in the circumstances in which he placed himself cannot, in my opinion, excuse his conduct. Further, being off-duty does not provide a license to act like a thug. 25 In his submissions in this matter, Mr Pearce of counsel for the respondent stated: The Commissioner of Police takes the attitude that an assault committed by a Police Officer on a member of the public is a most serious matter and in the absence of extenuating circumstances, the Commissioner of Police takes the view that such conduct generally is appropriate for removal from the NSW Police Service.

That is an attitude that in principle I endorse. It represents a policy position that should be made known to all members of NSW Police. 26 The thrust of the respondent's case in this matter was that the assault constituted serious misconduct and there were no grounds supporting the reinstatement of the applicant. There can be no doubt that assault constitutes serious misconduct. In Dangerfield v The Commissioner of Police [2003] NSWIRComm 96 it was held that upon being responsible for the care and control of an intoxicated person admitted to the cells of Penrith Police Station, the applicant assaulted that person while attempting to remove him from the Police cell and dragged him across the cement floor of the Police garage causing injuries to that person, and ejecting him into a laneway behind the Police Station. Mr Dangerfield failed in his application for relief. I note, however, in that case that Staunton J regarded parts of the applicant's evidence as having the hallmarks of recent invention. At [120]-121] her Honour held: 120 In weighing up those matters as identified in s 181F (3)(a) and (b) I believe that, in the circumstances before me and the findings that I have made, Mr Dangerfield's interests are outweighed by public interest considerations. Given the view that I have come to about this matter generally and particularly those matters that go directly to Mr Dangerfield's credit, I am not satisfied that he could return to the Police Service and contribute to the maintenance of the integrity of the Service in a way that the public interest demands and expects [my emphasis].

121 In all the circumstances it would not be appropriate for me to order the re-instatement or re-employment of the applicant or to order any payment by way of compensation. I consider that the public interest in maintaining the integrity of the Police Service supports the conclusion that the removal of the applicant, taking into account all of the circumstances and evidence before me was not harsh, unreasonable or unjust. 27 In Wells v Commissioner of Police (2000) 100 IR 106, an assault occurred on a young person who had attended the Police Station to enquire about a warrant and involved the applicant dragging that person from a public part of the Police Station by gripping his collar with his right hand and his left shoulder, manhandling him through the Police Station to a Perspex walled dock, bringing his head into contact with the dock once or twice, and striking the young person's face with his left hand. Peterson J observed at [36]: It seems to me unavoidable on the facts of this case to afford considerably more weight to the considerations involving the integrity of the Police Service as opposed to the interests of the applicant. Where an applicant has engaged in conduct of a kind depicted in the video in this case, it seems to me that the police officer has thrown away any substantial claim that might be made in terms of the officer's interests unless the conduct complained of can be found to have been justified in some way. It seems difficult to identify that justification merely as mitigating circumstances where an innocent visitor to a police station is attacked as a result of a police officer's perceptions or misconceptions of his attitude or behaviour. I consider that the justification for such conduct would have to be at a relatively high level before it could be accepted as an aberration which should not have serious long term consequences with respect to employment... 28 Peterson J concluded that in circumstances where the applicant in Wells was demonstrated to have been suffering from mental illness at the time of the assault and had now recovered, that his removal was harsh. 29 In Cavanagh v NSW Police [2003] NSWIRComm 474, Peterson J dealt with an assault committed by a member of the Police Service against his spouse in which it was alleged that the applicant had struck his spouse with a close fist to the left and right hand side of her head, pushed her to the ground, kicked her to the right upper leg and kicked her in the arms. 30 Peterson J ultimately concluded that the decision of the Police Commissioner to remove the applicant in the circumstances was harsh "but only in circumstances where the applicant will not resume active service due to his medical condition [severe depression]." His Honour ordered that the applicant be reinstated without compensation on terms that had the effect of ensuring that Mr Cavanagh did not return to the Police Service. His Honour ordered that: [T]he 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. 31 Whilst all of these cases involved assault by police officers and reflect the Commission's strong disapproval of such conduct by members of the Police, they also demonstrate that each case must be considered on its own facts because although assault might provide prima facie grounds for removal, circumstances may exist that make removal harsh and that either reinstatement should be ordered or some other remedy applied. 32 There have been different views expressed by Members of the Commission about the effect of the legislative scheme embodied in Part 9 of the Police Act. In Cavanagh, Peterson J expressed the following view: 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. 33 The view expressed by his Honour, if it were to hold sway would, with respect, almost mean that the provisions of s 181G of the Police Act were rendered nugatory. That is, the test would simply be whether the basis for the Commissioner's loss of confidence was "justified". 34 The approach to be taken to a review by the Commission under s 181E, of an order under s 181D, was recently confirmed by the Full Bench in Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159 at [101]-[104]. 101 Part 6 Chapter 2 of the Industrial Relations Act encompasses the legislative provisions relating to unfair dismissals. That those provisions have application, albeit modified, in relation to reviews under Part 9 Division 1C of the Police Act has been affirmed in prior decisions of the Commission at both first instance and appellate level. For example, in Newton (No 2) at 80, the Full Bench of the Commission stated: The effect of s181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s84 apply to s181F review proceedings, subject to the there specified modifications.

102 Further, in Little (No 2) at 237 the Full Bench cited with approval the observations of Walton J in Van Huisstede (No 1) where his Honour stated at para [212]:

Section 181G applies to the provisions of the Industrial Relations Act in relation to the review of unfair dismissals (with some exceptions) to an application for review under the Act. Notwithstanding that the legislature expressly constrained the operation of certain aspects of the Industrial Relations Act , it did not limit the Commission's general powers as to unfair dismissals, and to this extent, it may be inferred that the legislature intended that the Commissioner's decision would be reviewable in a similar manner as dismissals otherwise reviewable under Part 6 of Chapter 2 of the Industrial Relations Act .

103 In endorsing the above observations, the Full Bench in Little (No 2) said at [65]:

We consider that those observations represent the correct approach to the construction of s 181G of the Police Service Act. That provision has the effect of applying to proceedings brought under s181E of the Police Service Act the provisions of Part 6 of Chapter 2 of the Industrial Relations Act in such a manner as to import the provisions of Part 6 to the review proceedings together with the corresponding adoption of the jurisprudence of the Commission with respect to the unfair dismissal provisions of the Industrial Relations Act, except where expressly excluded by the provisions of s181G(1).

104 We agree with the approach of those authorities. As a matter of statutory construction there can be no doubt that a review under the Police Act is akin to unfair dismissal proceedings under the Industrial Relations Act (subject to limited modifications). Contrary to his Honour's conclusions a review has as its legislative underpinning proceedings under Division 6, Part 2 of the Industrial Relations Act relating to unfair dismissals. The language of s181G(1) of the Police Act unambiguously states that the provisions of the Industrial Relations Act apply to an application for review in the same way as they apply to an application relating to an unfair dismissal under Part 6 Chapter 2 of the Industrial Relations Act subject only to the modifications denoted. Those modifications have no material impact upon the considerations applicable in this matter (and in any event are quite confined). Further, those modifications do not detract in any fundamental sense from what we see is the overriding intention and purpose of s181G, that is, as expressed by the Full Bench in Newton (No 2) to which we have earlier referred. We concur with and reaffirm the view expressed on that occasion (at 80) as follows:

The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. Relevant to the matter of concern raised by Mr Hendy is the limitation placed upon the introduction of new evidence by s 181G(1)(f) and (2); the protection thereby afforded to a dismissed police officer is manifest.

It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply. 35 It is now a matter of settled law that any decision by the Commissioner of Police to remove a police officer under s 181D of the Police Act because the Commissioner has lost confidence in that officer, is reviewable in a similar manner as dismissals are otherwise reviewable under Part 6 of Chapter 2 of the Industrial Relations Act. That means any consideration of the decision to remove an officer is not confined to the question of whether the Police Commissioner in doing so was justified on objective grounds, but rather whether, having regard to all the relevant circumstances, the removal was harsh, unreasonable or unjust as that test has been developed and applied within the jurisprudence of this Commission over many years. That is how I have approached this matter. 36 In particular, I have had regard to the time honoured statement of principle by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233: I fail to see why in applying this test ["was the termination ... so unfair as to warrant interference by the Commission?"] to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J., in Loty's Case ([1971] AR 95 at p 99), the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 37 It is also necessary to draw attention to the provisions of s 181F of the Police Act: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from NSW Police, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from NSW Police is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (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 interest of maintaining the integrity of NSW Police, and the fact that the Commissioner made the order pursuant to section 181D (1)). 38 Mr Docking of counsel for the applicant submitted there was one matter that figured in the Commissioner's reasons for removing Mr Evans that was factually wrong and that was the allegation that the applicant kicked Mr Gleeson. I have viewed the scene of the assault several times on the video that was in evidence and I am unable to agree that Mr Evans kicked the victim. Mr Maher certainly attempted to do so but Mr Evans did not. The Commissioner was wrong in this regard and to the extent he was, it weakens the strength of the case for removal against Mr Evans but not, I must say, in a material way. The assault, on any view of it, was serious. 39 Mr Docking submitted there were a number of factors that support the contention that removal of Mr Evans was too severe. Those factors were as follows: (1) Evans was subject to an unprovoked attack by Gleeson, namely, quite a forceful kick in the back or backside area. (2) His early plea of guilty in the Local Court demonstrates remorse and a degree of acceptance of responsibility. (3) There is no doubt that had Evans not been under the influence of alcohol he would not have made a very wrong decision and been before the Court. The excess consumption of alcohol affected his judgment and capacity to reason. (4) Evans as a result of remorse, regret and being severely jolted by the incident, consulted a drug and alcohol counsellor. Evans was provided with a strategy to avoid binge drinking. (5) He is otherwise a person of good character. The assault by Evans on the night was an aberration. (6) Professional and character support references strongly speak of his values, dedication to the NSW Police and his family. (7) Evans has a distinguished career of service in the NSW Police. (8) Evans is married with two young children. (9) The impact of removal on his economic and personal situation. 40 In relation to provocation by Mr Gleeson, I accept that this was a mitigating factor but as Magistrate Syme observed "the victim was clearly very drunk at the time, that should have perhaps given Mr Evans a clue not to respond in the way that he did". The response of Mr Evans was not commensurate with the attack on him. 41 Mr Evans' early plea of guilty does demonstrate remorse as the learned Magistrate found and was an indication of a degree of acceptance of responsibility by Mr Evans for his conduct. This is an important consideration. 42 I have already expressed my opinion about Mr Evans' consumption of alcohol; it was hugely excessive and self-inflicted. I do, however, note the evidence of Mr Evans seeking counselling about what was described as binge drinking and that he considers he now has that under control. I hope so, for his sake and the sake of his family. I am satisfied that in seeing Mr Evans give evidence, he was severely shaken by the whole affair and witnessed the dreadful effect it had on his family, particularly his wife, who attended the hearing. 43 Mr Evans' removal from the Police caused significant personal and economic dislocation. Despite the mess Mr Evans created, his wife provided nothing but support whilst herself experiencing a bout of depression for which she required medical assistance. The couple were forced to sell their family home because of difficulty obtaining the necessary finance due to Mr Evans' casual employment following his removal. At the time Mr Evans was suspended from the Police, his annual salary was approximately $66,000. Since his removal Mr Evans had only been able to obtain employment giving him an annual salary of around $40,000. His current employment pays $42,000 for a six-day, 48-hour week. Mr Evans has two young children. 44 I accept that Mr Evans is a person of good character and his record as a police officer up to the time of the incident was a good one. I accept Mr Docking's submission that Mr Evans' conduct in participating in the assault of Mr Gleeson was an aberration. His professional and support references speak highly of him as a person and police officer. 45 Mr Evans' ambition as a young boy was to follow his uncle into the Police. He eventually realised his ambition. Like many police officers, Mr Evans' calling was a way of life to him. He was dedicated to it, loved the work and hoped to stay in the Police until his retirement. In my opinion, Mr Evans remains capable of providing valuable service to the Police. 46 Mr Docking also relied on the contention that there was such a marked inconsistency in the treatment of the applicant compared to that of other officers who engaged in the same conduct as the applicant that his removal was manifestly unjust: Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 at [188]. 47 Mr Docking pointed to the evidence of a number of police officers that had committed assault. Some had been removed under s 181D and others had been given a "Commissioner's Warning Notice". Four examples where warning notices had been issued were as follows: 1 Incident in March 2004 in a club where an off duty sergeant of police assaulted another off duty police officer by hitting him in the face. Sergeant intoxicated. Pleaded guilty to assault causing actual bodily harm. Dealt with under s 9 of Crimes (Sentencing Procedure) Act and placed on good behaviour bond. Twenty-one years' service. Took positive steps to rehabilitate by counselling. Support from colleagues and victim. 2 Incident in September 2002 at hotel. Senior constable assaulted security officer whilst security officer was trying to remove him from hotel. Alcohol an aggravating factor. Charged and dealt with under s 10 of Crimes (Sentencing Procedure) Act. Officer did not seek to excuse behaviour. Depressed by news of father's terminal illness. 3 Incident in July 2002. Senior constable assaulted a person whilst arresting. On 18.07.03 found guilty of offence of assault. Suspended sentence of six months and entered into a good behaviour bond until 17.01.04. 4 Incident in January 1999. Off duty constable assaulted an off duty police officer. Pleaded guilty to an assault charge and convicted and fined $400. Said to be reprehensible behaviour; that of a hooligan and an assailant rather than a police officer. Known to victim, showed genuine regret, admitted the offence, pleaded guilty on first occasion and re-established a relationship with victim. Recognised alcohol abuse problem and rehabilitation program. Strong support from LAC and Regional Commander. 48 All that can reasonably be concluded from these examples is that not all police officers that have committed assault have been removed from the Police. That is, there has not been any hard and fast rule that if an officer commits assault he or she will automatically be removed. Rather, it would appear the relevant Police Commissioner at the time has been prepared to consider the individual circumstances of the case and to exercise his discretion not to remove an officer if satisfied there were, for want of a better term, extenuating circumstances. This is as it should be. 49 In this case there are two very significant hurdles facing Mr Evans in obtaining any relief. Firstly, the assault constituted serious misconduct on his part for the reasons I earlier expressed. Secondly, the Commission is required to have regard to the public interest, which is to be taken to include the interest of maintaining the integrity of NSW Police, and the fact that the Commissioner made the order pursuant to section 181D(1). It would not be consistent with any requirement to maintain the integrity of NSW Police to in any way condone the sort of conduct engaged in by Mr Evans on 6 December 2003. 50 However, the Commission is also required to have regard to the interests of the applicant. He is a relatively young man of good character who is dedicated to being a police officer. He has a young family and supportive wife. He is extremely remorseful about his conduct and it has deeply affected him and his family emotionally and economically. He will carry the embarrassment of his conduct and his criminal conviction for the rest of his life. He has sought counselling assistance regarding his drinking problem and believes he has resolved that as an issue. Mr Evans' record with the Police was a good one and he has the strong support of his colleagues including more senior officers. 51 I have considered each limb of the tripartite test as to whether Mr Evans' removal was harsh, unreasonable or unjust. In taking into account all of the relevant considerations I have identified in this decision, and in striking what I consider to be a proper balance between the competing interests embodied in s 181F(3) of the Police Act, I have concluded, not without some reservation, the removal of Mr Evans from NSW Police was harsh in its consequences for his personal and economic situation: Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; Wells v Commissioner of Police (2000) 100 IR 106 at 118. If the removal was to stand I consider that Mr Evans' future life and that of his family would be severely affected. Removal in those circumstances, having regard to the nature and degree of what was an aberrant act that will never be repeated in my opinion, would be too harsh a sanction. 52 I do not consider it would be impracticable to reinstate Mr Evans to his former position on terms not less favourable than those that would have applied to him if he had not been removed from the Police Service, subject to certain conditions I will come to. As I have said, Mr Evans remains capable of providing valuable service to the Police. Further, he has received strong support from his colleagues and his Local Area Commander had referred to Mr Evans' work performance, attitude and demeanour as being such that the Commander would have desired to "permanently retain" him. 53 Section 89(8) of the Industrial Relations Act gives the Commission power to make an order under the section on such terms and conditions as the Commission determines. I propose to order that from the date of this decision he will return to the Police at the rank of Senior Constable Level 1, Step 1. For a period of six months after the date of this decision Mr Evans shall be subject to an appraisal of his performance in accordance with the usual method or program applying to such appraisals. Provided his performance is satisfactory, Mr Evans shall be reinstated to the rank of Leading Senior Constable from a date six months after the date of this decision on terms not less favourable than those that would have applied to him if he had not been removed from the Police Service. Mr Evans shall not be entitled to any payment for the period from 24 February 2005 to the date of this decision. 54 The applicant is directed to file and serve short minutes of order reflecting this decision within 14 days.

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