McDonald v Commissioner of Police

Judgment 1In early December 2009 the Commissioner of Police advised Senior Constable Adam McDonald that, having considered his conduct and integrity, the Commissioner no longer had confidence in his suitability to continue as a police officer and the Senior Constable was thereby removed from the Police Service, thus ending a six-year career. Pursuant to the provisions of s 181E of the Police Act 1990, Mr McDonald has applied to the Commission for a review of the Commissioner's order of removal claiming that his removal was, in all the circumstances, harsh, unreasonable and unjust. 2As has become somewhat commonplace in exercising this area of the Commission's jurisdiction under the Police Act , Mr McDonald came under consideration by the Commissioner of Police because of alcohol related conduct. The primary incident that brought Mr McDonald to attention occurred at approximately 11.30 pm on 25 January 2009 when the car Mr McDonald was driving was involved in an accident with a parked vehicle and both vehicles were significantly damaged. At the time of the accident Mr McDonald was considerably under the influence of alcohol. He had been present that day at the Kiama Golf Club from approximately 1.30 pm and after participating in a poker competition, he attended a private residence later that afternoon. At both the Golf Club and the private residence, Mr McDonald consumed an unknown amount of alcohol. Police attended this incident and Mr McDonald was charged with driving with a high range prescribed concentration of alcohol in his system. In mid-March 2009 he pleaded guilty to that charge in the Local Court and a conviction was recorded. Mr McDonald was disqualified from driving for 18 months and fined $2,000. Mr McDonald successfully appealed the severity of the sentence with the fine being reduced from $2,000 to $700. 3As required by the provisions of s 181D(3)(a) of the Police Act, Mr McDonald was served with a Notice that, taking into account his conduct and integrity, the Commissioner was considering his suitability to continue in the Police Force. That document set out three allegations and Mr McDonald was given 21 days to respond to the matters raised in the Notice. 4The Commissioner's Notice referred to the fact that Mr McDonald had said he had been playing poker at the Kiama Golf Club from approximately 1.30 pm on 25 January 2009 and had consumed approximately four schooners of beer before proceeding to a private residence occupied by one of the persons involved in the poker game. Mr McDonald said he had about five small glasses of bourbon and coke before his memory became hazy and he woke up feeling extremely intoxicated. He found writing and drawings on his skin and realised that there were people laughing at him and making remarks. Mr McDonald went to the bathroom and saw drawings on his face and decided he had to leave the premises. He said he had no further recollection of the events of the night but he was not taking any medication and did not suffer from any medical impairment that may have caused the haziness other than working for the previous four days in high temperatures. 5Mr McDonald then attempted to drive home via Meehan Drive, Kiama Downs. At approximately 11.30 pm a Mr Bruce Tapp heard a loud bang outside the house in which he was staying. He had parked his car outside in the street. On leaving the house he observed that his car had been extensively damaged on the driver's side and the front bumper bar had been ripped off, exposing the engine casing. It appeared to the Commissioner that the damage was caused by Mr McDonald's vehicle colliding with Mr Tapp's vehicle and then running off the road and striking a fence. Mr McDonald told Mr Tapp that he was sorry and would pay for the damage, that he lived around the corner and that he had just been to the Golf Club. Mr Tapp noted that Mr McDonald's speech was slurred and he appeared to be affected by alcohol. Mr Tapp then called the police and while waiting, Mr McDonald informed Mr Tapp that he was a police officer. 6Three police officers then attended the scene, Senior Constable Natalie Drane, Constable Daniel Houwelling and Constable Jim Giamperio Guiri. Mr McDonald was observed by two of the officers as having drawings of "penises" on the left side of his face and on his left leg, apparently drawn with a black marker. All attending police stated that he smelt strongly of alcohol and was unsteady on his feet and noted that his zipper was undone. Mr McDonald informed two of the officers that he was a serving police officer but he laughed at them when they asked for his registration documents although the documents were ultimately provided. Mr McDonald told two officers that he had his driver's licence and tried to find it in his vehicle but could not find it. One of the officers then searched the vehicle and found a wallet on the floor containing Mr McDonald's driver's licence. 7The remaining exchanges between the police officers at the scene and later at the Kiama Police station formed a significant part of the allegations against Mr McDonald. Senior Constable Drane said Mr McDonald asked her to "P5" the accident and that he would walk home. As will become clearer later in this judgment, a "P5" approach treats the incident as a minor accident. When Constable Drane told Mr McDonald that the accident could not fall within the criteria of "P5", Mr McDonald then responded: "This is fucked, I can't believe you are doing this." 8Constable Houwelling prepared the alcometer and told Mr McDonald to blow a single breath into the tube but says that Mr McDonald twice blew a small amount of air into the tube before allowing it to fall out of his mouth. After being told he had one more chance to provide a proper sample otherwise he would be taken back to the station, Mr McDonald then provided a proper sample. The breath test registered a positive result and Constable Drane said that when informed that he was under arrest for the purpose of a breath analysis and would be taken to Warilla Police station, Mr McDonald then said "[D]o I have to, are you kidding?" 9Constable Guiri said that Mr McDonald continuously swore and made remarks saying, "I fucked up mate, I should have run away when I could have and then let you deal with it. Fuck this job, I don't give a fuck anyway. I have been on the job for six years." Senior Constable Drane said that Mr McDonald was angry and swearing to himself. He asked Constable Drane if she could drop him at home saying that he had been "in the job for six years and this was the way [he was] being treated." 10Mr McDonald was taken to Kiama Police station. Senior Constable Drane said that Mr McDonald was angry and swearing at the police and kept repeating that six years in the job had got him nowhere. At the Police station, Senior Constable Winston observed two large pictures of penises on Mr McDonald's leg and stated that Mr McDonald was swearing, saying that the job was "fucked" and that he had not been looked after. When Mr McDonald was told he was required to provide a breath sample he asked whether the Constable was "really going to do this?" When the Senior Constable asked him again to provide a breath sample, Mr McDonald said to Constable Winston, "Can't you do it?". The Constable told Mr McDonald that he would be committing another offence if he did not provide a breath sample and eventually Mr McDonald did provide the sample. The sample resulted in a reading of 0.205 grams of alcohol per 100mm of blood. 11Senior Constable Winston told Mr McDonald that he had the right to be examined by a medical practitioner and have a blood sample taken and when asked if he wished to undertake that course, Mr McDonald stated that he had "fucked up." When told that his driver's licence would be suspended Mr McDonald replied that he would lose his job and then again stated "they don't look after you in this job". The Senior Constable said that Mr McDonald used an aggressive tone of voice. 12Constable Guiri then took Mr McDonald to the toilet to wash his face and stated that Mr McDonald then swore at him and told him that he knew nothing about the job. Constable Guiri told Mr McDonald that he was lucky that no one had been injured and that he was safe and well: Mr McDonald then stated in an angry tone: "Don't give the fucking lecture now, what do you know?". While being escorted to the front of the station, Senior Constable Winston heard Mr McDonald say: "This is fucked." Mr McDonald was told that if he continued to swear he would be placed in the dock to which he responded: "I am in the job, I know how it works." 13Senior Constable Drane stated that, while Mr McDonald was in the muster area, he continued telling other officers how "fucked" they were for "doing this" to him. Mr McDonald twice slammed his fist on the counter and when asked if he wished to call his wife, he told other officers to "shut the fuck up." Inspector O'Toole said that Mr McDonald appeared to be genuinely upset. He was informed about the availability of support services and that he would be driven home and placed in the care of his wife. Mr McDonald agreed and left in the company of other officers. Constable Guiri said that, at first, Mr McDonald refused to go into the back of the truck saying "that was a place for criminals, not for him being a cop." 14Senior Constable Drane stated that, when Mr McDonald arrived at his home and was led out of the truck, he walked right up to her and was approximately 30cms from her face such that she had to step back from Mr McDonald before he then entered the premises and slammed the door on the police. Mr McDonald said that he could not remember the incident but admitted that he was irresponsible to have become so intoxicated and unequivocally apologised to everyone in the New South Wales Police Force. He had said that he was extremely remorseful and ashamed and accepted that he had a drinking problem. He said that he loved being a police officer and he had been attending personal and alcohol counselling. 15Allegation One of the Notice noted that there appeared to be grounds upon which it could be concluded that Mr McDonald unlawfully drove a vehicle while affected by a high range prescribed concentration of alcohol. The Notice stated that it could be concluded that his conduct was contrary to the Police Act, The Road Transport (Safety and Traffic Management) Act 1999 and the New South Wales Police Force Code of Conduct and Ethics. These various provisions were then set out in the Notice. 16Allegation Two stated that there appeared to be grounds upon which it could be concluded that Mr McDonald had improperly and inappropriately attempted to use his status as a police officer to persuade attending officers to "P5" the accident such as to treat it as a minor motor vehicle accident and that he had improperly and inappropriately asked Senior Constable Winston to take the breath test at the Kiama Police station in his place. These circumstances suggested that it could be concluded that Mr McDonald sought to induce other officers to act dishonestly in an attempt to evade responsibility for his own conduct. The Notice said that there appeared to be grounds on which it could be concluded that his conduct was contrary to the Police Act , The Road Transport (Safety and Traffic Management) Act and the New South Wales Police Statement of Values. These various provisions were also set out in the Notice. 17Allegation Three stated that there appeared to be grounds upon which it could be concluded that Mr McDonald engaged in a rude, belligerent, abusive, unco-operative and improper manner towards attending police as well as when taken back to the Station and when he was returned to his home. The Notice stated that there appeared to be grounds upon which it could be concluded that his conduct was contrary to the New South Wales Police Force Code of Conduct and Ethics. The relevant provisions of that Code were then set out in the Notice. 18Under the heading "Consideration", the Notice then continued: Driving while affected by a high range prescribed concentration of alcohol is a serious offence. A reading of 0.205 grams per 100 millilitres of blood indicates that you were very significantly affected by alcohol at a level over four times the legal limit. Driving under the influence of alcohol is exceptionally dangerous and is the leading cause of road deaths. Your admitted conduct placed yourself and members of the public at an extremely high risk of death or serious injury. As a sworn police officer, you, of all people, should have been aware of these risks and the potentially fatal consequences of your actions. I am also extremely concerned about your alleged attempts to persuade other officers to "P5" the accident and take the breath test for you. If established, such actions would seem to demonstrate that you were seeking to use your status as a police officer to induce other officers to act dishonestly in an attempt to evade criminal charges. These allegations, if established, would seem to raise very serious questions about your integrity and suitability to be a police officer. In considering the matter, I have taken account of your expression of remorse and your good previous disciplinary history. However, even taking these matters into account, I am concerned that they may be outweighed by the seriousness of your alleged misconduct. You are hereby notified that I am considering making an order for your removal from the New South Wales Police Force under s 181D of the Police Act 1990. ... 19The Notice annexed supporting documentation that the Commissioner stated that he had read and taken into account in issuing the Notice to Mr McDonald. It was stated that the supporting documentation augmented the matters raised in the Notice and any Response to the Notice by Mr McDonald should take into account the information contained in that supporting documentation. The supporting documentation contained statements by the police officers, a statement from Mr Tapp and photographs of damage to his car. There were also copies of a Court Attendance Notice, a FACTS sheet and COPS event. A further document considered by the Commissioner was a Record of Interview with Mr McDonald, together with his traffic record. The traffic record showed that, in July 1992, Mr McDonald had been issued with a provisional licence and in February 1999 he had been fined for exceeding the speed limit by more than 15 kms but not more than 30 kms per hour. No other traffic offences were recorded apart from his disqualification for drink driving that brought him to the attention of the Commissioner. 20A further document annexed to the Commissioner's Notice dealt with a previous complaint requiring management action. This document stated that, in October 2008, Mr McDonald was counselled after an allegation that he assaulted a security guard while heavily intoxicated after the security guard questioned the officer's behaviour.. The document also noted that he had been suspended with pay since 3 February 2009 and suspended without pay since 30 March 2009. 21Mr McDonald's Response to the Commissioner's Notice was extensive and with annexures ran to more than 40 pages. He annexed three references, two reports from a Drug and Alcohol Community Adult Team as well as photographs of the injuries he received to his left hip. He indicated in this document that a report had been requested from Dr Young and the Commissioner was asked not to deal with the Response until that report was available. 22Mr McDonald's Response dealt at some length with his personal history and family life and how he had performed at a high level in school as well as participating in local sport. He said he lived all his life in the Kiama area and was married with three children between the ages of three and six. Before entering the Police Force, he had commenced University studies reading in mechanical engineering but dropped out of University after one year. He then took up an apprenticeship as a spray painter and ultimately became head spray painter for a local motor vehicle dealer. He had been close to his father and until recently, did not fully understand how his father's early passing had affected him emotionally. He had considered a career in the Police Force and finally pursued that course. He said he had performed well at the Police Academy, achieving high marks, gaining a high distinction in a number of subjects including his double-law subjects. Approximately one year after his first son was born, he was transferred to Lakemba Police station and later transferred to Campbelltown. Mr McDonald spoke of the difficulty of performing twelve-hour shifts and travelling up to an additional three hours per day to and from his house in Kiama and how that placed stress on both him and his family. He stated that during his six years in the Police Force he performed to a high level and had conducted himself with integrity and had never been the subject of an internal or external complaint. 23In his Response Mr McDonald pointed out that the annexed document to the Commissioner's Notice concerning an incident in late November 2008 did not involve any adverse finding against him insofar as it concerned the alleged assault of a security officer. On that occasion he had been off-duty and attending the Shellharbour Workers Club that was a short drive from his home. The Commissioner referred to this as being "also alcohol related". On this occasion he became involved in a disagreement where another man punched him on the jaw and caused him to fall to the ground. As a result he was escorted from the Club and asked to leave but as he walked from the Club he told the security officers that he was a police officer and therefore was not likely to cause problems. He produced his police identification on request and then there was an allegation by a security officer that Mr McDonald had assaulted him. 24The assault allegation was not sustained but Mr McDonald was departmentally interviewed and a finding was made that he was involved in an incident when he was intoxicated and that he had announced that he was a police officer. He noted that he was not counselled in relation to the matter but had received a Warning Notice. Following an Inquiry, Mr McDonald received a Local Area Commander's Warning Notice stating that an adverse finding had been made against him that, on Sunday 28 November 2008 at Shellharbour, while off-duty, he behaved in such a manner as to impact negatively on the reputation of the New South Wales Police Force and was therefore in breach of the New South Wales Police Force Code of Conduct. The Local Area Commander determined that his conduct, on this occasion, was unacceptable and unsatisfactory but had decided that it was appropriate to deal with the misconduct by way of a Warning Notice. He was reminded that the Police Force had welfare services available to assist him. He was asked to clearly understand that his conduct was not the acceptable level required of a police officer by the New South Wales Police Force or the community. He was informed that he should clearly understand that continued unsatisfactory conduct and/or performance of duties may result in further management action which in turn may entail consideration of reviewable action under s 173 of the Police Act or removal under s 181D of the Police Act. Mr McDonald stated that, in hindsight, he believed that the incident at the Workers Club should have highlighted to him that he an alcohol problem. He now believed he was in self-denial about that matter at the time and therefore he did not seek any medical assistance. 25In dealing with the incident involving driving while under the influence of alcohol, Mr McDonald's Response stated that, in reading the particulars supplied in the s 181D Notice, he found it extremely difficult to comprehend why he would drive his vehicle when he was so intoxicated and then behave in such a poor manner towards fellow police officers. He admitted driving his vehicle and having the accident although he had no memory of it and stated that he was "extremely remorseful" about his conduct and that he fully understood the potential consequences of him driving while having a high range of alcohol in his system and that there was a possibility of somebody being seriously injured. Although accepting that these events had occurred, Mr McDonald stated his belief that, at the time, he would have been unable to comprehend the risks involved and claimed that he "had no control over his actions." He stated that he was "adamant" that he had no intention of driving home and believed that the circumstances of the evening prior to his driving had led him to leave the house under duress and in fear of his safety. He understood that it was his decision to put himself in the situation in which he found himself and thought that may have been related to his alcohol problem, a problem that he now accepted existed. 26Mr McDonald pointed out that, as he had said in his Record of Interview, he had "freely and voluntarily consumed a number of alcoholic drinks" prior to losing his memory but he thought the circumstances surrounding him becoming so intoxicated were "quite unclear." He had no memory of consuming enough alcohol to cause such a high roadside breath test reading and subsequent breath analysis reading, especially in circumstances that suggest that he had passed out for some period of time prior to driving his vehicle. His Response then records a further apology, including an unequivocal apology to the police officers who handled him during the course of the night. He understood that the incident had brought embarrassment and shame not only upon himself but his wife and family but stated that the incident was totally out of his generally good character and he found it extremely difficult to understand why he conducted himself that way. 27After the incident he sought assistance from Dr Robyn Young, a Psychiatric medical officer, especially in relation to his consumption of alcohol and his behaviour on the night in question. He again referred to his Record of Interview and repeated his acceptance that he had an alcohol problem and he also accepted that he was a binge drinker. Although he did not consume alcohol daily, on occasions he had consumed alcohol to excess. He thought that his alcohol consumption may be partly due to the need to use alcohol as a coping mechanism for the stresses of life, including his police work, shift work, his many years of travelling long distances to work, his family life and the constant struggle with his wife about juggling both work and family commitments, including financial stresses and his mortgage. He understood that this incident and the incident three months earlier had highlighted his alcohol problem. He realised his drinking behaviour was such that it was putting him at risk as well as putting at risk the reputation of the New South Wales Police Force. He was very "regretful" that such a severe incident had to occur before he fully realised and accepted that he had a drinking problem. 28Having accepted the existence of his drinking problem, he believed that he had been able to address the problem by seeking regular alcohol counselling to assist him to overcome his past drinking behaviour. He said he was "extremely committed" in that endeavour and had been attending counselling on a regular basis over the past seven months with the Drug and Alcohol Community Adult Team located at Pt Kembla Hospital. Although unable to drive, with the assistance of his wife and friends he had been able to regularly attend the hospital and had been working closely with Mr Steven Marsden, a qualified Alcohol and Drug Counsellor. This counselling had been maintained, at that time, for over seven months and he had made significant changes to his lifestyle and he had implemented relapse prevention strategies so that he did not find himself using alcohol in a harmful manner or becoming involved in any high risk situations. 29Mr McDonald spoke of becoming more physically active by running regularly, riding a pushbike, playing golf and tennis and he had focused more on family orientated activities. Over the past seven months he had basically been able to remain "abstinent from alcohol" having consumed only one or two beers at a couple of family functions. Since the accident he had only entered licensed premises on occasions to attend functions and he had been too ashamed to enter licensed premises in his home town. He no longer considered alcohol to be part of his lifestyle and he understood that he had to manage his stress in less harmful but productive ways. He stated that he had demonstrated his ability to continue with that approach. He believed that the commitment he had made to change his lifestyle would ensure that he would never again be involved in such an incident and he believed that he was no longer a risk of ever again misconducting himself and tarnishing the good reputation of the New South Wales Police Force. 30Mr McDonald spoke of already receiving a significant punishment as a result of the accident in having his licence suspended for 18 months and his family suffering significant financial loss. He had incurred costs in having counsel appear for him in court, including his appeal when the fine was reduced and he had also settled his debt in full for the damage he caused to the other vehicle because his insurance company would not cover the incident. Selling shares and using money saved by the family allowed him to pay that debt. He also spoke of the financial loss suffered regarding his own vehicle. The months since the incident were described as the most stressful and anxious time of his life, including for his family but he had shown commitment and determination in his desire to remain in te Police Force. 31He had time to reflect on the whole issue and considered that he had learned an extremely hard lesson from the incident. He understood that, if given the opportunity of remaining in the Police Force, he would have managerial and disciplinary action taken against him and he would accept that action. While he had never been affected by alcohol while at work he understood that he would be targeted for alcohol testing and was willing to accept any managerial and disciplinary action imposed if he was able to return to duty. Although he understood the seriousness of his conduct, he submitted that dismissing him for the Police Force would be harsh. It would be extremely detrimental to his family and also to the Police Force because the Force would lose "a very dedicated and experienced officer." 32In relation to the background to the January 2009 incident, Mr McDonald said that he drove his car to the Golf Club "with the intention of leaving my car at the Club if I drank too much alcohol." He said that it would not be "an uncommon occurrence" to leave his car at the Golf Club and to catch the Courtesy Bus or to get a lift home. This was the first day of his annual leave and for the past four days he had been working in extreme heat with temperatures rising between 30 to 40 degrees in the South-Western areas he patrolled. He was patrolling the public transport system on foot in extreme temperatures, including public trains that were not air-conditioned and where the heat was even greater. He said that working for extended periods in those temperatures may have had a significant effect physically and mentally over that four-day period and may have effected his reaction to alcohol and also his behaviour. 33At the Golf Club Mr McDonald said he consumed "about four schooners" of full-strength beer over a period of four hours through to 5.30 pm. At approximately that time a person with whom he had been playing poker invited him to return to his house to participate in a table tennis competition. That person was identified as Daniel Kelly, a person only known to Mr McDonald through playing poker at the Golf Club and sometimes at the Kiama Leagues Club. He had never socialised with Mr Kelly on any other occasion. Mr Kelly told him that at his house there would be a few people from the poker game and Mr McDonald stated that he had been wary of people he did not know, especially if they knew he was a police officer. However, he was aware that most people playing poker that day would have been aware that he was a police officer. He said he accepted the invitation because he did not feel he would be placed in a threatening or unsafe situation but believed that he may not have fully considered the situation "because I saw it as a chance to consume more alcohol and this was my first day on annual leave." At the time of accepting Mr Kelly's invitation, Mr McDonald stated that he was not feeling intoxicated and that he had only consumed beer over a four-hour period and offered to drive to Mr Kelly's house which was not far away. 34Mr McDonald had not previously attended Mr Kelly's house. He stated that his immediate intentions were that he would drink alcohol at Mr Kelly's place, leave his car there and catch a taxi or lift home. These intentions were made known to Mr Kelly and another person known only to him as "Tom." While driving to Mr Kelly's house they stopped at a bottle shop to purchase alcohol and Tom suggested that he and Mr McDonald should buy bourbon. Although he rarely drank bourbon, Mr McDonald agreed and purchased a 750ml bottle of Jim Beam bourbon and bottles of Coca Cola. 35Mr McDonald repeated that his intention was to leave his car at Mr Kelly's place as he had no reason to drive his car and his wife would be able to drive him back to the house the next day to pick it up. Mr Kelly's house was only two or three kilometres from his own home. Mr McDonald placed his car key in the back zippered compartment of his wallet so he would not lose it but he did not recall taking it out of his wallet. He parked his car in the driveway of Mr Kelly's house and was told by Mr Kelly that he could leave the car there overnight and could collect it in the morning. 36On entering the house, Mr McDonald poured himself and Tom a small glass of bourbon and coke. Shortly thereafter approximately six or seven people arrived at the house - some of them were known to Mr McDonald and others were not. Mr McDonald began to play table tennis and during the course of the games, he poured himself another glass of bourbon and coke. The table tennis continued and then further men and women, unknown to him, arrived at the house at which stage most people went into the backyard that overlooked the beach. Mr McDonald also went into the backyard and sat in a chair and he believed he was at the back of Mr Kelly's home for a "reasonably lengthy time." 37Mr McDonald said that the last memory he had was approximately 8.00pm or 9.00pm. While sitting in the backyard different people poured him drinks. He remembered that some of the conversation concerned him being a police officer. The drinks consumed by Mr McDonald were brought from the house and he was not present when they were poured. There were a number of people in the house whom he did not know but he remembered having approximately three more drinks and from then on his memory was hazy. After those drinks he had no further memory of being at the house other than the vague memory of waking up on the lounge in the lounge room and feeling extremely intoxicated. He stated that he had experienced some "benders" before but he had never felt the way he was when he woke up. When he woke up he saw markings on his body and recalls people laughing at him and making comments. He vaguely remembered going to the bathroom and seeing markings all over his face and pulling up his shirt and seeing drawings on his body, including his pubic area. 38It was at this point that Mr McDonald believed that his instincts reacted and he decided that he had to leave Mr Kelly's home. He had no further memory of being at Mr Kelly's home or leaving it. He had no recollection of the timeframe from his last drink to the time that he drove or what time it was when he passed out on the lounge until he woke up. It appeared that he had "passed out" for some time as there were drawings all over his body, including some obscene drawings. The drawings were all over his face, torso, legs, arms and over his back. There were also markings around his pubic region. 39Apparently, a number of photographs were taken that night of Mr McDonald while he was unconscious and they had been distributed via mobile telephones. The circulated pictures showed Mr McDonald lying down sleeping with his shirt pulled up to his chest with obscene markings drawn all over his face and torso and down towards his public area. A day after the incident he noticed that he had a large bruise on his left hip and thought he had received it in the accident. He had received information that indicated how he came to receive this bruising, namely, that after going to the bathroom and finding the markings over his body, he returned and confronted people at the house resulting in one of them grabbing a solid object and hitting him on the left hip. With the impact of the hit, Mr McDonald was told that he fell to the ground and then got up and stumbled out of the house. He accepted that he had no credible evidence that he was assaulted but he believed that the other circumstances concerning what had happened to him caused him to become aggressive and that was consistent with his behaviour after the accident. He believed that his mental state was brought about by the circumstances and his high level of intoxication when he left the house and severely impaired his thinking and when he drove the car, which was contrary to his original intention. 40Mr McDonald's view that he left the Kelly home in haste was said to be supported by the fact that police officers reported his untidy appearance, his zipper was undone and he did not have his shoes. Mr McDonald recalls wearing shoes when entering the Kelly house. He pointed out that no alcohol was found in his vehicle indicating that he was not drinking in his vehicle prior to going to Mr Kelly's home or prior to the accident. Apart from these matters, Mr McDonald had no memory or recollection of the night after he saw himself in the mirror at Mr Kelly's house and even that recollection was hazy. He had no memory of leaving the home, entering or driving his car or being involved in the accident. Despite this defective memory, he admitted that he drove his vehicle while affected by a high range concentration of alcohol and "in that state" he was involved in an accident. 41He pleaded guilty at the Local Court at the first available opportunity - he believed there were mitigating circumstances although there was no excuse for driving. The mitigating circumstances gave an insight into his state of mind at the time which he believed was severely impaired and that his actions were against his best intentions. There was also a possibility that in the accident he could have suffered any form of injury, including hitting his head and suffering concussion or suffered subsequence shock as a result of the accident. Police who attended the accident observed him stumbling and keeping his balance by holding on to the roof of the car. He was also seen to be swaying backwards and forwards. Mr McDonald accepted that behaviour was consistent with his level of intoxication but he also believed it was possible that it may have been behaviour resulting from the motor vehicle accident and his very dazed state of mind. 42Having regard to his level of intoxication, Mr McDonald said that due to the accident his comprehension about what happened caused him to act in an uncharacteristic way and to say and do things that he would never say or do under other circumstances. Having no memory of the accident, he could not deny the allegations of misconduct at the scene of the accident and his Response was not to be regarded as attempting to discredit any police involved who had to deal with him on the night. In furtherance of this approach, Mr McDonald drew attention to what he described as discrepancies between versions of events given by several police officers and otherwise pointed to areas where only one police officer made a certain observation and that was not mentioned by other police officers. Relying on the observations of police offices that he was heavily under the influence of alcohol and unsteady on his feet, Mr McDonald suggested that would be a reason why he was unable, initially, to properly participate in a roadside breath test. Nevertheless, he again expressed his sincere apologies for the way be behaved towards attending police and stated that he was "extremely remorseful" for placing them in that situation. He could not understand why he would say to Senior Constable Winston anything that would alter the outcome of his breath analysis and he found it difficult to understand why he would say such things. 43There were some alleged inconsistencies in statements surrounding this matter. It was noted in a statement made by Constable Guiri that Mr McDonald was falling asleep in the chair between questions being asked by Senior Constable Winston and that when he was awake he was continually swearing and saying that he should have run away from the crash. Mr McDonald relied upon those observations to support the fact that his state of mind at the time was severely impaired and he was consistently rambling in his speech and was confused in his thoughts. Senior Constable Winston also made observations that Mr McDonald's speech was incoherent and slurred and Mr McDonald believed that supported the view that his state of mind at the time was such that he did not know what he was doing or saying. 44In relation to allegations of inappropriate behaviour to police officers when they took him home, Mr McDonald noted that he was still stumbling and swaying and his wife thought he was still under the influence at the time. He had no memory of walking up to within 30cm of Senior Constable Drane's face causing her to step back or when entering the house, slamming the screen door on the police. His wife told him that she had closed the door. Mr McDonald believed that his thought processes were still very impaired, he was extremely emotional and unstable at this time. He again stated that he was not discrediting the police who made observations about him at this point but he did point to some inconsistencies in their statements. 45Again, Mr McDonald expressed his deep regret for the incident and his actions and apologised to all the police who attended at the scene stating that he understood how stressful it must have been for them. He said that he appreciated that his behaviour on the night was "utterly unacceptable" and even though he had no recollection of the events of the evening after he had left the Kelly house, he accepted that abusing police who were performing their duty was "appalling." He had experience as a police officer dealing with belligerent members of the public and understood that this would be even more difficult when officers were trying to deal with a fellow officer. 46Apart from this incident and the Warning Notice he again stressed that, prior to this incident, he had an unblemished departmental record and no criminal record. He asked to be given "one chance to remain in the Police Force." If he was returned to the Police he understood that he would be issued with Warning Notice and a s 173 Notice and he would not contest any s 173 Notice. He pointed out that he had a wife and three children and if he lost his employment with the Police he did not know how he would survive. He understood that, in these matters, the overriding factors were the protection of the Police Force and the expectations of the community but the impact of dismissal on his family should be taken into account as well as his previous good record. 47Two reports from Mr Steven Marsden of the Drug and Alcohol Community Adult Team, three references and two photographs of the injury to his left hip accompanied Mr McDonald's Response. Mr Marsden's two reports dated April 2009 and September 2009 spoke of Mr McDonald's participation in counselling in relation to alcohol use. It was noted that, during this stressful period, Mr McDonald had not returned to the harmful ways of coping with any difficulties and he had reached an understanding about better ways and healthier ways to deal with life stresses, especially those arising from police work, shift work and the usual family and mortgage stresses. Mr McDonald had remained focused and determined in his desire to change and had proved his ability to maintain abstinence from alcohol under the most trying circumstances. 48Mr McDonald had presented to the service more than 14 times and never once had attempted to downplay or minimise his behaviour on the night of the accident. He had always acknowledged responsibility for his actions and demonstrated a willingness to accept his part in the situation in which he now found himself. He had taken responsibility for the change required to make sure that the situation that had occurred would never happen again. Mr Marsden expressed himself as having no reservation about recommending Mr McDonald to serve in any responsible position. He further expressed the opinion that Mr McDonald had learned a hard lesson and in the future would be more of an asset to any organisation because of this experience. 49Three references were provided, two from serving officers and one from a retired officer. Sergeant David Owen had supervised Mr McDonald while he was at Campbelltown for approximately 15 months. He had known Mr McDonald as his supervisor in a working capacity. As supervisor, Sergeant Owen was in a position to review Mr McDonald's written and operational work while working beside him. He was impressed by Mr McDonald's attitude and high level of work ethic and Mr McDonald was considered one of the top workers within the Commuter Crime Unit. He possessed high levels of professional standards in areas of punctuality, uniform, respect for senior officers and other team members. He described Mr McDonald as a motivated and effective police officer who was efficient in his day-to-day work in all its aspects. Mr McDonald's "strong work ethics" were acknowledged during staff reviews conducted by the Local Area Command. 50Sergeant Owen also conducted career management and performance reviews in relation to Mr McDonald. During those reviews he was consistently rated at a greater than satisfactory level in regard to work performance. Sergeant Owen was "often more impressed" by the type of work completed by Mr McDonald who he described as an officer who would "proactively and effectively seek out the criminal element on a daily basis whilst in the execution of his duty." He had shown courage and conviction in the approach to his work at a level beyond most of his peers and at a level as high as any Sergeant Owen had worked with. Mr McDonald had never shied away from confronting dangerous or difficult persons or situations which were an aspect of policing that often could not be taught or enforced upon junior officers. He described Mr McDonald as a measured person who could be relied upon to thoroughly investigate incidents, interact appropriately with members of the public and to employ effective decision-making. 51Sergeant Owen considered Mr McDonald's actions raised in the Commissioner's Notice as being "vastly out of character" with his usual work behaviour. He considered Mr McDonald to be a mature and highly regarded officer who had been "missed" by his fellow Constables. He was an intelligent officer who was an asset to the New South Wales Police Force and the Campbelltown Commuter Crime Unit. He was hard working, respectful, efficient and effective as a police officer. Sergeant Owen stated that he held very few officers he had operationally worked with or directly supervised in such high regard as he did Mr McDonald. He said he would happily work with Mr McDonald again and believed it would be a loss to the Police Force if Mr McDonald were not to remain as a serving police officer. 52Senior Constable Boiano had known Mr McDonald for approximately seven years. During this time he had worked with Mr McDonald at three Local Area Commands both having started at Wollongong in December 2002. They were both transferred to Campsie in March 2004 but found the travelling to Campsie from Kiama and Dapto to be a constant strain both physically and financially. They were travelling approximately "200kms return trip in one shift" for approximately 3 years and both decided to find work at a closer Command. In July 2007 they were able to transfer to Campbelltown Local Area Command. The Senior Constable had worked many hours on the frontline with Mr McDonald, working in combined uniform and plain clothes operations with minimal supervision and without any complaints from management, fellow officers or members of the community. The Senior Constable had always maintained a high level of integrity and professionalism while on duty and off work and he felt that Mr McDonald maintained the same work ethic during their time in the Police Force. The Senior Constable had been with Mr McDonald at social gatherings and had visited Mr McDonald's home and met his wife and young family. Mr McDonald had always spoken highly of his family and had shown devotion as a father and husband. On some occasions at social events when the need arose they had pre-arranged a designated driver and did so "without hesitation." 53The Senior Constable did not feel that Mr McDonald would compromise his integrity in relation to his oath of office or his family while on or off duty. The incident described in the Commissioner's Notice was regarded as "out of character" and the Senior Constable strongly believed that Mr McDonald was remorseful for his actions, especially in relation to the Police Force, the officers involved on the night and his immediate family members. The Senior Constable supported Mr McDonald being allowed to remain in the Police Force and stated that, if he was given the opportunity to remain within the Force, he believed he would maintain the high standards required of an officer and prove this incident was an isolated matter and out of character. 54Mr Dennis Seage had been a member of the Police Force and had worked at the Wollongong Police station. Mr Seage had known Mr McDonald and his family since Mr McDonald was a child and his son had been Mr McDonald's childhood friend. As a child, Mr McDonald had stayed at Mr Seage's home and Mr Seage had been able to observe Mr McDonald growing up, noting that he was always polite and well-behaved, enjoying a healthy childhood and adolescence. He was aware of the contents of the Commissioner's Notice regarding Mr McDonald's behaviour and stated that no-one was more shocked than he was about these actions and regarded them as completely out of character. He stated that Mr McDonald had an alcohol problem and on occasions he had seen Mr McDonald at the Golf Club in a moderately intoxicated state but had never seen him drive his car while in such a state. On several occasions he had driven Mr McDonald to the Golf Club car park to retrieve his car. Mr Seage mentioned that Mr McDonald was very close to his stepfather who had passed away with lung cancer and in his opinion, Mr McDonald's personality changed at that time when he was approximately 18 years old. Mr McDonald displayed signs of depression and had removed himself from the Kiama community. 55Mr Seage had formed a view as to the circumstances surrounding the visit to Mr Kelly's house and the following accident. Mr Seage expressed this view in the following terms: On the day the offence was committed I believe that Adam was beguiled to the premises in question so that the questionable people there could invoke their sinister act of depravation upon him in an orchestrated attempt to humiliate him and the NSW Police Force as well as gaining notoriety for themselves. The image of Adam painted in profanities was sent to my phone and I felt physically ill when I saw what they had done to him. I suggest that Adam left the premises upon discovering what had happened in a state of "fight or flight" and he certainly wasn't thinking straight. As far as his behaviour towards attending police, I can offer no explanation other than to suggest that perhaps something was placed in his drinks at the house he visited. I believe Adam possesses a great deal of integrity and pride in his position as a police officer. When he asked the BAS Operator to give a sample of his own breath, again, I can only suggest that he was involuntarily under the influence of some kind of mind-altering drug. Adam would be the first person to report such an act if the positions were reversed. 56Mr Seage observed that Mr McDonald was a family man who dearly loved his wife and three boys, spending a lot of time with them and they appeared to be well-adjusted children. Mr McDonald's wife was a devout Christian who, on most Sundays, attended the local Catholic Church with the boys. In his view, Mr McDonald had seen the error of his ways. Mr Seage regarded him as "being back to his old self." He had tackled his drinking problem head-on and now devoted his life to his wife and children. He asked the Commissioner to give Mr McDonald another chance as indeed he was giving his family another chance so that they could move on and Mr McDonald could once again hold is head high. Knowing Mr McDonald very well, Mr Seage believed that, if he was given another chance, he would dedicate himself by study and work so as to perform with credit and distinction in any position the Commissioner might appoint him. 57In one area there was a contest as to the nature of Mr McDonald's behaviour towards the police officers who had delivered him to his home after been taken to the police station after the accident. Mrs Rebecca McDonald, Mr McDonald's wife, provided a statement and gave evidence in the proceedings. She had read all the material served upon her husband, including the s 181D Notice and the Dismissal Order. 58Mrs McDonald was asleep when the police arrived with her husband. An officer informed her that her husband had been involved in a car accident and had been drink driving and was in the back of a police van. Mrs McDonald stated that, when her husband got out of the truck, he "looked drunk". He was stumbling a bit and swaying and he had black markings all over his face. Mrs McDonald spoke to the police while her husband walked to the bottom of the front stairs and waited for her. She said her husband did not say anything and after she had finished talking to the police, they walked down the front steps and her husband walked past them and up the steps. 59Mrs McDonald had read in the Commissioner's Notice that a female police officer said at some stage that her husband had walked right up to her and looked at her angrily as if he was going to do something. Mrs McDonald said that she could honestly say that she did not see such an incident happen. She did note that when they passed they were very close as the front steps to the house were only approximately one metre wide. In her observation this was the only time that her husband was close to the female officer and she did not see her husband act in an angry or aggressive manner when the police were at the front of the house. She had also seen a police statement that her husband walked into the house and slammed the door on the police but she knew this did not happen. She was standing at the front door when her husband walked past her and into the house and she closed the door, not her husband. She did not slam the door or let the flyscreen door slam as it was late and her children were asleep. She stated that she would never slam the door on the police or anyone else for that matter. 60Mrs McDonald said she had seen her husband drunk on occasions but had never seen him like this: he was usually a very controlled person and did not show much emotion. She had seen the graphic pictures and writing on his face and legs and the obscene writings all over his stomach and back. The writing included the words "fuk the pigs" on his back. The pictures went down towards his groin area. He appeared to be in shock. Later, he became aware of the large bruise on his hip but he was unable to say how he sustained it. 61When her husband went inside the house, Mrs McDonald noted that he was emotionally upset - he appeared to be still drunk and that he was becoming angry with himself and crying. He kept apologising to her and she could see that he appeared confused about what had happened and that he was not making "too much sense" other than apologising and swearing at himself. He was unable to tell her exactly what had happened. 62Mrs McDonald then spoke about Mr McDonald's nature and personality. They had been together for sixteen years and had been married for ten years. She knew her husband to be a caring and responsible person and they had a very loving and caring relationship. Her husband was described as a loving father who admired his boys and did everything for them and for her. The relationship had continued strongly despite the enormous amount of stress and heartbreak caused by the incident. She understood her husband to be dedicated to the Police Force and he loved the job. 63The incident had a major impact on Mr McDonald and the whole family. Her husband felt "tremendous guilt" and there was an extremely detrimental financial impact involving meeting the costs of paying the damages caused by the accident, the loss of their vehicle, costs of court proceedings and the loss of his wages. Those costs had run into tens of thousands of dollars and Mrs McDonald had to increase her work hours to try and cover the costs of everyday living, their mortgage bills and putting food on the table. She stated that it had become increasingly difficult to the point where their future was looking "very dire" with a very real threat of losing their house. The accident had an extreme emotional impact on her husband and herself. She could see the real devastation and loss her husband had felt as a result of being dismissed from the Police Force. During the past 19 months she and her husband had been through great emotional stress. Her husband had always provided for her and the family and he loved his wife and his boys immensely and the accident and its consequences had a most profound effect upon her husband. 64Mrs McDonald had observed the dedication her husband had put into addressing his alcohol issues and noted the success he had achieved. Mrs McDonald and her family had always managed to take her husband to any counselling appointments with Mr Marsden or Dr Young and she believed her husband had remained strong in the face of extreme adversity and had remained committed to not drinking alcohol to the extent he had on previous occasions. Her husband was now even more family focused but he had always been a great husband and a great father to his children. He was very much a family man who loved his children and did everything he could for them. She expressed the hope that this incident would be regarded as a total aberration on her husband's behalf. 65In oral evidence, Mrs McDonald said that when her husband got out of the vehicle he looked at her and he did not take his eyes off her until he got inside the house. She did not think that he had leered at Constable Drane. Once inside the house he was swearing and blaming himself for the accident but she was not able to obtain much information or detail from him. He was sad and still drunk. When he was brought into the house he was stumbling. 66Two reports regarding Mr McDonald were prepared by Dr Young, a psychiatric medical officer. Over the past eight years Dr Young had professionally dealt with, amongst others, New South Wales police officers and since 2000 had also been involved with drug and alcohol issues. Dr Young had over 30 years post-graduate training and clinical experience in both Australia and the United Kingdom. She had worked in full-time private psychiatric practice for the past nine years. Mr Marsden of the Illawarra Health Service had referred Mr McDonald to her for assessment arising from the circumstances of his drink driving and subsequent behaviour that led to his removal from the Police Force. 67The first report was provided in November 2009. The s 181D Notice had been provided to Dr Young and she was aware of the background that led to Mr McDonald's employment being considered by the Commissioner. On presentation he appeared depressed but showed no evidence of intoxication and gave a concise and coherent history and did not attempt to deny the events described in the Notice. He did reinforce his claim of minimal to zero recall of events that led to the car crash and the subsequent events and behaviour alleged to have occurred at Kiama police station. Mr McDonald described those events and his behaviour as contrary to the way he normally thought and acted and that was supported by his wife. He expressed the hope that Dr Young might provide some insight into his state of mind on the night in question. 68In providing background history, Mr McDonald spoke of his alcohol use stating that he noted that his intake of standards drinks was less than three pints of beer per day but that had increased to approximately ten pints per week over the past eight to nine months. He was drinking more on social occasions spent with friends, for example, at his regular poker game at the Club. This had not caused any problems before the accident but on reflection he admitted his memory of such occasions was often impaired and he felt more irritable. He had consciously determined to control any further binge drinking excess. 69In relation to family relationships, a history was given of a happy, family-oriented marriage where Mrs McDonald had encouraged her husband to have time out each week for himself by joining the poker game with friends at the Club on Sunday afternoons. Mrs McDonald had never experienced problems with her husband because of undue irritability or intoxication and her husband had been an excellent father with few interests outside his family and work. The events of 26 January 2009 were unexpected and so out of character that Mrs McDonald at first had not recognised the serious implications. Since his suspension, the couple had seen more of each other and their friends and had realised the importance of maintaining a strong social network. Mr McDonald had benefited from alcohol counselling and had cut his intake to a maximum of three pints per week. 70Mr McDonald covered the events of the night of the accident. Mrs McDonald described her husband as "shocked" on his return home after the accident and she had not seen him like that before. She spoke of his clothing being in disarray and the he could not explain the "penile graphics". There had been no recurrence of alcohol mis-use and he had gained benefit from attending drug and alcohol counselling over the next seven months. At the time of this report, he rarely drank alcohol and never more than three pints in twenty-four hours or more than three times per week. Mr McDonald told Dr Young that "as required by law" he had no contact with Club members involved in the January 2009 events. 71In her comments on these matters, Dr Young said that the high levels of alcohol in his system, could explain Mr McDonald's behaviour on the night. She referred to the levels recorded and the fact that they may have exceeded those levels. She was in no doubt that Mr McDonald showed classic symptoms of alcohol "overdose" where behaviours were uncontrolled and inappropriate and his recollection of events was minimum to zero as in a blackout. The risk of physical damage to liver and kidneys was considerable, especially if that type of drinking became habitual. She described Mr McDonald as a healthy young male who responded to supportive treatment provided by his wife and observed that significant dependence after such an episode and successful withdrawal was unlikely in someone whose consumption was less than eight standards drinks per day. 72In summary, Dr Young stated that the events described in the Commissioner's Notice were alarming and contrary to both the behaviour and self-discipline required of police officers and those usual for Mr McDonald. His intoxication occurred in a seemingly friendly environment but the exact circumstances leading to the accident and his behaviour at the police station remained obscure. Dr Young stated that it appeared that he may have been the victim of alcohol related group behaviours and his disinhibited behaviour at the accident and at the police station and minimal to zero recall of events may be largely attributed to severe alcohol overdose. As Mr McDonald had followed up therapy and had not relapsed into alcohol misuse and because he and his wife had realised the importance of maintaining strong personal and social network contacts, she recommended that he be given a chance to continue in the Police Force, perhaps under monitoring for a period of time such as 12 months. Dr Young offered to continue therapeutic support as required. 73In her oral evidence, Dr Young explained that the term "alcohol overdose" referred to the circumstances where alcohol was at such levels that it was more than just impairment of their cognition but where memory, cognition and behaviour were really impaired and where the person was prone to respiratory and cardiac effects of alcohol and usually lapsed into unconsciousness. If not recognised, this in turn may lead to death. She had seen people who were in this state as described by Mr McDonald where their behaviour was highly suggestive and later confirmed to have been in a state of alcohol overdose and they needed to be taken into care. 74In September 2010, Dr Young provided a further report. In this document Dr Young dealt with treatment that was provided to Mr McDonald since the November 2009 report. In relation to this subject, Dr Young recorded ongoing supportive acceptance/commitment based counselling; emphasis on life skills/stress reduction; reinforcement of knowledge gained about alcohol, including risk avoidance practices being provided in a drug and alcohol programme. Mr McDonald had complied with management programmes but did not request medication. In relation to Mr McDonald's progress, reference was made to steps taken to strengthen family ties. Mr McDonald no longer used alcohol to relieve tension and anxiety and had not exceeded daily alcohol intake recommended by The Australian Guidelines of no more than four standard drinks per day. Most days were alcohol free and he was aware of and avoided high-risk situations such as "going for a beer with mates." He had limited maximum alcohol consumption of two to three light/mid-strength beers at social functions and had maintained a healthy lifestyle by staying active with surfing, cycling, playing tennis and playing with his children. 75Dr Young stated that the most appropriate diagnosis for the behaviour that occurred in January 2009 was alcohol intoxication which was to be distinguished from alcohol dependence or abuse, both of which implied high risk of chronic physical health and emotional disorders. Mr McDonald had no evidence of significant mental illness and complied with and gained valuable insights from counselling attended over a period of 20 months. He had used knowledge and skill gained in this way to achieve and enjoy a marked improvement in his personal and family life. She believed that, although he had exhibited signs of alcohol consumption over the preceding 12 months, as yet unclear factors, not of Mr McDonald's making, may have contributed to the high levels of blood alcohol and subsequent adverse events recorded in January 2009 and given as reason for his dismissal from the Police Force. She requested that Mr McDonald be allowed to resume duties as a police officer, offering the opinion that the chances of relapse or behaviour incompatible with police standards were "slight." Dr Young stated that, if Mr McDonald was returned to police duty, she would be pleased to offer ongoing support during an agreed return to duty programme, perhaps one monitored over a period of 12 months. This would enable his performance to be objectively assessed by rules and regulations required for serving police officers. 76In this report, Dr Young again returned to the issue of the level of Mr McDonald's intoxication during the January 2009 incident. She stated that Mr McDonald showed classic symptoms of alcohol overdose where behaviours were uncontrolled and inappropriate and recall of events were minimal to zero. Alcohol overdose occurred where blood levels reached a high range and it was a potentially fatal condition. Dr Young noted that the Commissioner for Police had stated that he had concluded that Mr McDonald had sought to induce other officers to act dishonestly in an attempt to evade responsibility for his misconduct, observing that suggested intent and that Mr McDonald was in control of his behaviour. The Commissioner's view contrasted with the well-recognised behavioural disorders and impaired judgment and memory associated with the high blood alcohol found on testing at the Kiama Police station sometime after Mr McDonald had finished drinking. The Commissioner's reference to "binge drinking" also implied intention, that was, drinking only to get drunk. Dr Young said this did not appear to have been Mr McDonald's only purpose or the result of his weekly time-out at the Kiama Golf Club. He usually came home in time, fit to care for his children while his wife slept and then went to work in the early hours of the morning. If he felt he was over the limit he walked home and collected his car the next morning. At the end of January 2009 he realised that, over the period of approximately nine hours between going to the Club and the time of the accident, he would have had an alcohol intake sufficient to impair driving. In those circumstances he had obtained the permission of the house owner/host to leave his car at the home overnight and to walk home. To the extent that mind altering drugs may have been the reason for Mr McDonald's behaviour on the night, while it could not be ruled out, it could not be substantiated either - alcohol was, however, a proven and credible cause of the effects of substance intoxication. His earlier recorded drinking suggested only slightly elevated blood alcohol levels existed when Mr McDonald arrived at the house after the poker game. 77In relation to the Commissioner's view that Mr McDonald exhibited a "selective memory" of the surrounding incidents, Dr Young noted that, at the house, Mr McDonald mixed two bourbon drinks for himself with the next two to three being mixed by someone else not within his vision. He had no control over the concentration of alcohol and felt "woozy" after a total of four to five such drinks. The time lapse between that happening and whether the drinking continued could not be ascertained although it was known that there was approximately five hours between arrival at the house and the accident. Mr McDonald's recall of events before his blood alcohol reached levels associated with impaired cognition was compatible with the effects of gradual intoxication. Although he had poor recall of events after he awoke, he did remember people laughing and making remarks he could not understand but felt were derogatory and threatening. He could not identify the people at the time as everything was blurred and he panicked when he saw the penis graffiti. The next day he found bruising on his left hip and it remained unclear how this happened. 78Later in her report, Dr Young expressed the view that consideration and credit should be given to Mr McDonald for his recognition and acceptance of his drinking problem, his genuine expression of remorse and his concerted efforts over approximately two years to work with therapists and family to identify and overcome compounding factors. Mr McDonald now had the knowledge, skills and drive to maintain a more balanced life. Dr Young noted that she had frequently worked with police officers on stress leave and during her nine years in the Illawarra, she had learned to discern those she believed were able to return to former or altered duties and those better to return elsewhere. She expressed the view that Mr McDonald should be given another chance in the Police Force stating that, at 35 years old, he was chastened but enlightened by his experience and had many more years of service to offer.