Consideration
9It is relevant to note that overwhelmingly the appellant's submissions on leave are directed to what he contends are errors on the part of the primary judge relating to the breach of the secondary employment policy. The other two matters, namely, (i) the conviction for driving under the influence of alcohol and (ii) the failure by the appellant, as an independent observer, to comply with operational procedures in the conduct of a search warrant, received little attention. This is understandable given that the appellant pleaded guilty to the DUI offence and accepted the finding against him in relation to the search warrant matter.
10The primary judge took into account all three matters in concluding the appellant's removal from the Police Force was not harsh, unreasonable or unjust: at [127]. It appears to us, however, the breach of the secondary employment policy was the most serious of the appellant's contraventions. Kavanagh J found that the appellant breached the secondary employment policy in multiple respects. There can be no doubt on the evidence that her Honour was correct in that regard.
11What the appellant now contends, in seeking leave to appeal, is essentially that he was not afforded procedural fairness and that her Honour made several factual errors and errors of law. It is trite law that a failure to ensure procedural fairness may warrant a conclusion that the removal of a police officer was consequently harsh, unreasonable or unjust: see Reid-Frost 2010 at [41]. However, that will not automatically or necessarily be so. The offending conduct, regardless of any procedural unfairness, may be of such a nature that removal is entirely justified or the procedural unfairness may not be of such a nature as to conclude that the removal was harsh, unjust or unreasonable: see for example, Reid-Frost 2010 at [46]. Further, the principles governing leave are those set out in Reid-Frost v Commissioner of Police [2011] NSWIRComm 3 ( 'Reid-Frost 2011') at [5]-[10].
12The appellant contended that there was a failure on the part of the respondent to place him on notice as to its allegations about his conduct. This was said to arise from: (i) a failure to particularise all of the breaches of the secondary employment policy in the statutory notice under s 181D of the Police Act , as found to have occurred by the primary judge; (ii) new evidence adduced from ASIC records regarding when it was that the appellant ceased as a director of Airsands Pty Limited; and (iii) from incorrect and unfair cross-examination of the appellant about receipt of benefits from the tavern business not alleged in the statutory notice .
13We do not consider there is any substance in these submissions. The notice was sufficiently comprehensible to the appellant and enabled him to respond: Reid-Frost at [21]-[25] and [67]. In any event, we note that the appellant, in his response to the notice, raised no complaint about the inadequacy of information in the notice.
14We accept that which is implicit in the appellant's submission that the review process has, as its centrepiece, the consideration of the particular grounds specified in a notice issued under s 181D(3)(a). However, it does not follow that the review is confined to those considerations. We accept, in this respect, the observations of the majority in Reid-Frost 2011 at [16]-[18].
15Moreover, the fresh and independent review undertaken by the Commission is not confined to the "particulars" in the statutory notice: see Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159 at [134]; Newton v Commissioner of Police (1998) 85 IR 119 at 127.
16This was not a case, like Morton , of a different body of assertions being made at the trial to what was in the statutory notice. To the extent that the primary judge may have identified additional clauses (in addition to cl 4(3) and (2)) of the secondary employment policy breached, they arise in the main consequentially from the allegations in the statutory notice and the Commissioner's Statement of Reasons. For example, cl 2.1 defines "paid employment" and cll 6.3 and 6.4 refer to the requirement for an officer to make certain declarations.
17As to the new material that arose at hearing concerning the degree of the appellant's involvement in his secondary employment at the tavern, as the respondent submitted, it arose from the appellant's own supplementary affidavit evidence, oral testimony and his documents. Further, as it was correctly submitted, the appellant was placed on notice, well before the hearing, that his arrangements, the financial statements for and the Trust arrangements over the tavern would be scrutinised at trial. The respondent issued a Notice to Produce, on 23 October 2008, seeking access to that information. The majority of the evidence obtained, both orally and by tendering the appellant's documents, was tendered without objection.
18On the issue of the ASIC search, there was nothing unfair about the respondent testing the appellant as to how long he believed he had been a director. The appellant appears to have submitted that there was no secondary employment policy in place in May 2000 when it was claimed the appellant relinquished his directorship in Airsands. The appellant had applied for and obtained approval, in accordance with previous policies of the respondent, to undertake secondary employment in 1999. Indeed, on the appellant's own case, he knew about the existence of a secondary employment policy at all material times and sought to distance himself from the operation of the tavern prior to 2001, hence his purported resignation from Airsands Pty Ltd in May 2000.
19It would also appear from the evidence that, despite the claim that he relinquished the directorship in May 2000, according to financial reports the appellant continued to be named as a director until at least 30 June 2007. The appellant contended that was an administrative error according to the evidence of Mr McGreal, but we note that Mr McGhee continued to be the secretary of Airsands. Regardless of when Mr McGhee relinquished his directorship, the main concern was his continuing connection with the tavern business. In that respect, and in relation to the appellant's submission regarding incorrect and unfair cross-examination about receipt of benefits from the tavern business not alleged in the statutory notice , we note the evidence recorded by Kavanagh J at [61]-[64]:
[61] The applicant, further, conceded he had received additional benefits from Airsands Pty Ltd which benefits were not disclosed even in his 2007 application (filed after the investigation as to his interest began). He received the following additional benefits:
(a) a credit card used for the following purchases on behalf of the tavern: fruit and vegetables, cleaning equipment, promotional items such as balloons, petrol for the courtesy bus, petrol and maintenance expenses for his wife's company car and his personal motor vehicle. He had held this card for four years;
(b) an "E-tag" attached to his personal vehicle, which was paid for from the Airsands credit card for two or three years; and
(c) a mobile telephone used for contacting the Trust accountant, the manager of the hotel and personal needs which he has continued to use since 2000 or 2001 when his use of a paid mobile telephone led to an adverse finding. The Applicant had declared "the mobile phone is being paid by myself".
[62] Further, multiple bank accounts held by Airsands Pty Ltd (t/as Adam's Tavern) were sent to Mr McGhee. Mr McGhee also received money (namely, $781 per month) directly from Airsands Pty Ltd, into an account called "Mr Robert Bruce McGhee Family Superannuation Fund" and the fund had been receiving this payment for approximately three years. Accordingly, Mr McGhee was receiving an annual benefit of approximately $9000 from the Tavern which he never disclosed at any time to the NSW Police Force. Documents revealed Mr McGhee's level of involvement was far greater than he had revealed to the Police Force and those documents support in detail the significant financial benefits he enjoyed under the various financial arrangements he had put in place with various companies through the Trust.
[63] It is relevant to note in September 2007 it was recorded the applicant had several vehicles registered in Air Sand's name parked at his home.
[64] I accept Mr McGhee continued to enjoy benefits similar to and perhaps greater than those which were the subject of his counselling in 2002 and 2004. I accept he knew he held these benefits. He had clearly been counselled and was aware of his obligation to declare and to obtain permission under the secondary employment policy for these arrangements. I do not accept that he can be excused for this consistent breach of the Police policy because of his misunderstanding of the policy. The applicant, in his cross examination, was forced to concede he had failed to declare all the benefits he received and he had failed to disclose his interests in Airsands Pty Ltd and Adaptive Management Pty Ltd.
20The appellant contended there was an inference in the Statement of Reasons that the Commissioner relied upon an unsustained finding that the appellant had breached the Police Code of Conduct and Ethics by leaving the hospital to avoid undergoing a breath analysis. We agree with the respondent, there was no evidence that such an inference was drawn by the Commissioner and Kavanagh J found there was no such evidence.
21The appellant submitted her Honour erred in finding that the appellant engaged in "paid employment". The secondary employment policy defined "paid employment" in broad terms: i.e., "employment which has the purpose or effect of generating profit, gain or a benefit of any kind in favour of the employee or any other person or company". The thrust of the appellant's submission was that the extended definition of "paid employment" in the secondary employment policy was inconsistent with that contained in the Police Service Act , and therefore ultra vires. Section 73 of the Act stated:
A non-executive police officer must not engage in any paid employment outside the duties of his or her position without the approval of the Commissioner.
22The appellant's submission was that his engagement in an administrative role and the payment to him of company expenses did not constitute "paid employment".
23Whilst the appellant sought to minimise the work carried out by him, in 2007 he was observed collecting glasses and admitted that on the odd occasion, but not regularly, he hosed the plants in the gardens, picked up glasses, picked up plates, wiped tables down, and put stock away. The appellant derived a number of benefits, which included a credit card, "Etag", mobile phone and payments into a family superannuation fund.
24We consider it is appropriate to apply a broad meaning to "paid employment" given that the purpose of the provision is to protect the integrity of the Police Force by requiring an officer to obtain approval prior to taking on such employment outside his or her police duties. This provides an opportunity to the Commissioner to ensure the employment is not inconsistent with the police officer's role and does not risk undermining the integrity of the Police Force. Ultimately, the police officer benefits from being given a clear delineation as to which secondary employment may be undertaken. Employment in a business selling liquor and engaging in gambling may well be regarded as high-risk employment for a police officer.
25In Lester Ors v NSW Aboriginal Land Council and Ors [1999] NSWLEC 179, Bignold J considered the term "paid employment" in the context of cl 3(i) of Sch 5 of the Aboriginal Land Rights Act 1983. After reviewing various authorities Bignold J concluded that the term meant, "being engaged in any employment, work, occupation or business for which one receives payment".
26That definition is broad enough to encompass the work done by Mr McGhee in connection with the tavern business and the payment he received. Payment should not be confined to cash or its equivalent, but may extend to payment in kind.
27There was no error in her Honour's finding that the appellant had engaged in this form of "employment".
28The appellant submitted Kavanagh J erred in finding he only once tried to right his affairs. Whether that be so, Mr McGhee conceded he had breached the secondary employment policy and it is quite apparent from the evidence that he was not entirely forthcoming as he should have been, from the outset, in declaring a full disclosure of the extent of his involvement in the tavern business and the benefits he derived from it. For a police officer, especially one with the rank of Inspector, that was an unacceptable response to the investigation into the appellant's business dealings.
29In relation to the appellant's contention that the primary judge erred in interpreting the Crown Employees (Police Officers - 2005) Award , the respondent (as do we) accepted such an error was made at [119] of the judgment. There her Honour found:
[119] Mr McGhee had fixed term appointments. However, if his appointment is terminated but on a medical retirement his application is supported by the Commissioner, the applicant may, even after termination, because of the effect of s 181D(8) of the Police Act , be able to argue he was eligible to receive the Non-Renewal Benefit under the Award (for all of his completed fixed term appointments together with the current full fixed term appointment, the completion of which is included by medical discharge). The applicant, therefore, may still retain rights to the Non-Renewal Benefit even though he has been dismissed despite s (sic) 65(e).
30Although her Honour erred, the primary judge limited her observations about access to Non-Renewal Benefit under the Award by saying the appellant "may... be able to argue he was eligible to receive..." the Benefit. It does not seem to us this was a pivotal issue in her Honour's determination that the removal was not harsh, unreasonable or unjust. Accordingly, the error was not of such a nature that, but for the error, a different conclusion would or might have been reached.
31On the question of the medical evidence, notwithstanding her Honour indicating to counsel for the appellant that she was not "going to go into Dr Bornstein's opinion", her Honour did so: see [121]. We note, however, in his written submissions the appellant did ask Kavanagh J to consider the medical evidence both on the question of harshness and on procedural fairness grounds. In doing so, it was open on the evidence for the primary judge to be sceptical about the appellant's application for medical discharge being bona fide. The appellant attended work until February 2008. At no stage in 2007 or 2008 did he assert that he was unfit for duties resulting from the medical conditions set out in his application. The last reported injury was September 2002. The appellant sought no specialist advice concerning medical discharge until February 2008, after receiving the s 181D notice and the appellant admitted, in answer to a question from her Honour, that he might have tolerated his ailments and worked on, had he not been served with the s 181D notice. Further, her Honour asked the appellant in the witness box whether he would have continued had it not been for the notice under s 181D(3) and the appellant replied in the affirmative.
32As to her Honour's failure to address the evidence of Mr McGreal, it would have been appropriate for her Honour to do so given the appellant's reliance on that evidence and for her Honour to demonstrate why that evidence did not prevail over other evidence adverse to the appellant. Nevertheless, notwithstanding that evidence, it was open on all of the evidence for Kavanagh J to reach the conclusions her Honour did.
33We have concluded that the appellant has failed to make out a case for the grant of leave. This is not a case where the matter is of such importance that, in the public interest, leave must be granted and does not raise factors which, when properly considered, would otherwise warrant of leave. Even if it be accepted there were some shortcomings in the primary judge's treatment of the facts and the application of principle and, indeed, some errors, they were not of such or nature, character or magnitude that would cause us to grant leave. Moreover, we do not perceive that any of those shortcomings could properly constitute a basis for upholding the appeal. The appellant failed in his duty as a senior police officer in three significant respects, the most serious being the breaches of the secondary employment policy and his less than candid disclosures when confronted with these breaches. The appellant always knew he was required to conform strictly to the secondary employment policy. He failed to do so.
34We would wish to reiterate the observations of the Full Bench in Reid-Frost 2011 at [22], that the hearing of leave as a threshold matter does not represent an opportunity for counsel to effectively rehearse a full merit case either in written or oral submissions. Even though we have broadly canvassed aspects of the appellant's case, we have only done so to briefly review issues which may attract leave. As will be evident, many of the matters raised by the appellant fundamentally fall short of the requirements for leave. In this respect, we consider the complaint by counsel for the appellant for more time to develop oral submissions (in addition to written submissions) to be wholly misconceived. We would also repeat that which was stated in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392 - 393 as to the primacy of first instance decisions.