McGilchrist v Commissioner of Police [2010] NSWDC 324 | Case summary

McGilchrist v Commissioner of Police [2010] NSWDC 324 | Case summary | Zoe

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53 The investigation performed by Mr Craft was thorough, diligent and searching and, in my view, wholly reliable in its ultimate conclusions. Mr Craft gave evidence before me and I have no hesitation in accepting him as an honest and reliable witness. I also wholly endorse the conclusions which he reached, the findings of fact that he made. 54 On 13 July 2006 Mr Craft commenced an electronically recorded interview with the plaintiff. At first he attempted a normal criminal interview. Mr Craft was accompanied by Detective Inspector Pisanos who was also attached to the Professional Standards Command. That interview commenced at 10.54 but the plaintiff terminated that interview very shortly after its commencement because he did not wish to be interviewed in the normal criminal mode. A further interview commenced at 11.28 am on 13 July 2006 in the departmental enquiry format. 55 The plaintiff told Mr Craft that he continued to keep his appointments, including his pistol, at the armoury until he received the "nomination" to be given the substantive rank of Commander of the RBDU. The plaintiff had been interviewed for that position on 22 April 2004 and was advised on 14 May 2004 orally that he was the preferred candidate for the position of Commander of the RBDU. The plaintiff went on to tell Mr Craft that he made the decision to clean out his locker at the armoury and take his appointments across to the RBDU. 56 He said that that occurred on or about the time he had Operation Explorer on at Holsworthy because at the time of Operation Explorer he had his appointments with him because he was acting in a semi-operational capacity and was storing his pistol at that time for one or two nights at his home address in his approved pistol safe. Again I point out that Operation Explorer occurred on 31 May 2004 and persisted until Wednesday, 2 June 2004 and those were times after the plaintiff's pistol had actually been stolen from the armoury. He went on to tell Mr Craft that he thought he moved his pistol to RBDU after Operation Explorer. 57 At question 116 the plaintiff was asked to recall the date when he actually took his pistol from the armoury to the RBDU. He said this: "Well, the only reason I was able to sort of place the date was, because I looked at the rosters and it was the only time Anthony Geddes was working day shift on or about that time frame and Anthony definitely was there with me. So that's how I was able to sort of ascertain the approximate date."

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In answer to question 185 the plaintiff said that at the time he noticed his pistol was missing he was "in absolute panic mode" and went on to say, "It's a fairly major thing to have one of your appointments go missing". 59 When asked about why his name was not on the weekly checking lists, he said it was never added to the weekly checking list by Sergeant Geddes. He also mentioned the fact that Senior Constable Golding had noticed the firearm missing on Sunday, 22 August 2004 but "he didn't raise that issue with anybody". That statement is obviously incorrect as Senior Constable Golding reported the matter to Senior Sergeant Smith who was the person who did nothing. 60 When pressed about how he reacted to his finding that his firearm was missing, he said that his initial response was "just self-doubt", as he could not conceive of how his gun had gone missing. He then said that he became fearful that it had been stolen. 61 At question 235 the plaintiff was asked if he could explain his theory about how P2 went missing. He said this: "Well, you know, again at the time the only, you had to have key access and there was certainly no indication that the safe had been broken into, so someone had key access and, you know, it's the Rescue Squad, there's more bolt cutters than you can poke a stick at there and someone just cut the padlock off and my pistol went. Q. Now, you mentioned somebody, I think that's a pertinent point to raise here at this time. Would you agree that if we define somebody, it would be a serving member of the New South Wales Police? A. Yes." 62 When asked about his appointments card, he said he did not take that card across with him from the armoury to the RBDU as "I just assumed that I'd get a new card started, 'cause that was an old format and they were using new cards there and I assumed I would get a new card made up for me at the Rescue Squad." 63 At question 271 the plaintiff was asked who he thought was responsible for the theft of his firearm. Again he said that he saw that as a direct attack upon him by someone at the RBDU. Again he raised the prospect that his gun was stolen to discredit him and in particular because of the upcoming appeal against his appointment. That appeal was actually dealt with on 23 September 2004 and was unsuccessful. Again the plaintiff raised as possible thieves Sergeant Ray Constable, Senior Constable Peter Ray, by persons who were incensed about the suicide of Senior Constable Guff and who blamed the plaintiff for that suicide. 64 Later in the interview the plaintiff said that he had become aware that his pistol had been recovered because he had been told that by Sergeant Wraith who was then working at the armoury. He was asked what he thought when he heard that his pistol had been recovered and he said this: "Well, I was just wondering, I found it, well, it blew all my theories out of the water, 'cause I always was of the belief that it was taken as an act of malice, but then suddenly it's turned up so I was dumbfounded as to what, how the connection ran."

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He later said that the recovery of P2 really did not cause him to change his opinion a great deal. 65 He was then asked about Operation Explorer and said that he had his pistol for the three days of Operation Explorer. That was untrue. He said that he probably would have gone to Operation Explorer via the armoury in order to pick up his appointments to wear them at Operation Explorer. He said that he did not like taking his firearm home. He said that when Operation Explorer was on he took his firearm home because it finished late each evening. 66 When asked if he could exclude the theft of his firearm from the armoury, he said he could not rule it out but he did not believe it to be likely because of where he had his appointment belt, that is the belt on which he generally wore his firearm when he was carrying it. 67 In answer to question 390 the plaintiff again pointed out that he was having problems with managing some of his staff and he said that in 2005 he was not making "any headway out there with certain individuals". He said that there were people who were going to hate "you no matter what you do, they just hate you". In answer to question 392 the plaintiff said that he had some "very bizarre individuals" amongst those at the RBDU. 68 In answer to question 408 the plaintiff said that he could not account for his firearm ending up in the location where it was actually located. Further on he said this: "I found [it] extremely distressing and ... what the Inspector raised earlier, it certainly, I found it really hard remaining at Rescue afterwards, 'cause to know that there was someone there who hated me that much. You know, a couple of times I felt for my own personal safety, that, you know, they hate me that much they could do that, who knows what they were capable of doing um, you know, I find the whole thing, you know, just very embarrassing. I've had, what I believe to be a very good career and this is just an absolute blight." 69 After that interview Mr Craft made further enquiries of other staff, including, for example, Sergeant Morris. There was then a further interview conducted with the plaintiff on 28 July 2006. The plaintiff was accompanied at that interview by Detective Chief Inspector Julie Middlemiss who was then the Commander of the Dog Unit at the State Protection Group, who was accompanying him as a support person. Again at the interview Mr Craft was assisted by Detective Inspector Pisanos. The interview commenced at 2.55 pm and concluded at 5.42 pm. The plaintiff again asserted that at Operation Explorer he was wearing his pistol. In answer to question 66 the plaintiff said it was perfectly clear that he attended the first day of Operation Explorer wearing his appointments. That again was untrue. Commencing at question 208 the plaintiff volunteered that he definitely had his pistol for Operation Explorer and he confirmed that it was about 1 June and 2 June and also it commenced on 31 May. He said that after Operation Explorer he had a meeting at the Sydney police centre when he probably would have returned his firearm to the armoury. 70 At question 265 the plaintiff was shown a photograph. The photograph is of the plaintiff taken at Operation Explorer when he was not wearing his appointment belt and clearly was not carrying his pistol. The plaintiff said he found that "surprising" and he was at a loss to explain why he was not wearing his pistol as shown in the photograph. He went on to say this: "If I'm not wearing them in this photo, I don't believe I would've been wearing them on the other days, I'm, again I'm at a loss to explain why I haven't got my appointments on."

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He went on to say that if he was not wearing his appointments they would probably have been at the armoury. 71 He was then confronted with his diary for 2004. It records that on 27 May 2004, a Thursday, he was off work and that on Friday 28 May he was supposed to be at a meeting at Minerva between 8 am and 5 pm but down the bottom of his diary he noted that he was off sick with the flu. It was then suggested to the plaintiff that the logs indicated that on 28 May, which was the day that he is supposed to have the flu, he entered the Sydney police centre at 12.54 pm and left the Sydney police centre at 2.16 pm. This the plaintiff could not explain. 72 Again, in answer to question 329, the plaintiff affirmed his belief that his pistol had been stolen as an act of malice. He went on to say that he did not recall going back into the pistol safe and getting P2 off peg number 2 from the pistol safe in the RBDU and if he had have done that he would have had a strong recollection of it because that is an action that he had never performed. He went on to say that he still believed that his pistol was taken from the RBDU because his appointment belt, which he has referred to as his pistol belt, was still in his locker at the RBDU. He went on to say that if he had taken his pistol out of the pistol safe at the RBDU, why would he not have taken the padlock as well as the pistol? When asked what he had done with his key to the padlock he said that he thought he had tossed it out. 73 Again, at question 336, the plaintiff referred to his continuing belief that the pistol was stolen from the RBDU by some member of the staff who had an animus against him because of either the suicide of Senior Constable Guff or the changing of procedures and other changes the plaintiff had made at the RBDU. 74 In answer to question 374, the plaintiff said that he had never discounted the possibility that the gun could have been at the armoury and stolen from the armoury and went on to say that that, however, did not gel with his memory of things. Detective Inspector Pisanos then put to the plaintiff that the only time he had ever discounted his theory was when he ascertained that two pistols were found at the same time. He went on to say that he had previously referred to treacherous persons at the RBDU being involved in the theft of his firearm. It was then suggested to the plaintiff that he had hedged his bets because the only time he changed his story from the theft from the RBDU to the possibility of a theft from the armoury was when it was ascertained that his pistol was recovered with another police Glock pistol. The plaintiff would not agree with that, but it was then pointed out to the plaintiff that initially he treated the gun safe and the room in which the gun safe was located at the RBDU as being a crime scene. 75 Commencing at question 417, the plaintiff was challenged about how it would reflect badly on him if his firearm were stolen from the armoury, bearing in mind that he had served there for fifteen years and had been its head and had introduced Glock firearms to the New South Wales police and held the "precious" P2 pistol. It was suggested to the plaintiff that it would be far easier for him to admit a theft of his firearm and blame someone at RBDU than it would be to have the theft recorded as being from the armoury. The plaintiff denied that entirely. 76 It was then suggested to the plaintiff that on many occasions, for example, on 9 June 2004, he had entered the armoury on repeated occasions and he was asked what was he doing there. Was he, for example, trying to find a missing firearm? In other words, it was being suggested to the plaintiff that he may have ascertained that his firearm was missing shortly after it had been stolen from the armoury and then sought to cover it up lest it impede his appointment as commander of the RBDU. In further answers the plaintiff said that he did not "have crystal-clear memories about my firearm movements at that time" but that is somewhat contrary to what he had said on other occasions. He agreed that it reflected poorly on him that his recollections were erroneous and that the loss of his firearm was embarrassing. 77 In answer to question 525 the plaintiff agreed that his position had changed and the evidence obtained by Mr Craft was "irrefutable". At the end of the interview, as he did at the end of each interview, Mr Craft told the plaintiff that there were available to him the services of the health and workplace services branch including a psychology section, the welfare branch, the police chaplaincy and the rehabilitation section if he felt that he might need assistance from any one or more of those agencies. 78 Mr Craft established the probability that the plaintiff moved his firearm from the armoury to the RBDU on Thursday 20 May 2004. The Sydney Police Centre access records indicated that the plaintiff entered the armoury at 9.26 am on that day and left at 11.47 am. That date had particular significance as it is shortly after the plaintiff had received "his nomination" as commander of the RBDU on 14 May 2004. According to Mr Craft's report, it was apparent from information supplied to the investigators by the plaintiff that he saw his position as somewhat permanent following upon that "nomination" and he would feel more inclined to commence breaking his ties with the armoury at that time. The significance of 20 May is that Mr Craft was able to ascertain six dates from the roster when the plaintiff and Sergeant Geddes worked together on dayshift and those six days are between 20 April 2004 and 14 June 2004. One of them was 4 June 2004 which had been the date nominated by the plaintiff, but the preceding date, 20 May 2004, was the more likely date according to Mr Craft and tied in with an entry by the plaintiff into the armoury when he would have collected his appointments. 79 Mr Craft was able to ascertain that it was more probable than not that on Monday 24 May 2004 the plaintiff again placed his pistol in the safe in the armoury. He was at the Sydney Police Centre on that occasion between 12.43 pm and 5.13 pm and there was an entry into the armoury recorded during that period of time. 5.13 pm, of course, is a significant time because it essentially is "knock-off time" for any person observing managerial hours, as the plaintiff generally did. Rather than returning to the RBDU base at Zetland, it is more likely that he would go directly to his home at Kenthurst. As he did not like taking his firearm home, he would have left it in the safe at the armoury. 80 The plaintiff did attend at the Sydney Police Centre on Wednesday 26 May 2004 and during the hours I have already mentioned on Friday 28 May 2004, but there is no evidence that he entered the armoury on either of those days. As I have already pointed out, the pistol P2 was stolen at some time on Friday 28 May 2004 by a civilian contractor. 81 That the plaintiff moved his gun to RBDU is undoubted. Sergeant Geddes confirms the move. The move is confirmed by the entry on the list on the door of the gun safe which was consulted by Senior Constable Golding when he noticed that the plaintiff's firearm was not there on 27 August 2004. 82 A question which arose in this case is why was the plaintiff's gun not included in the weekly checking list? The reason for that omission is clearly, according to the plaintiff's version of events, the fault of Sergeant Geddes. Exhibit 21 before me is the record of interview conducted by Mr Craft with Sergeant Geddes on 8 August 2008. Part of Sergeant Geddes' answer to question 37 was this: "I told him we needed his appointment card to be sent down from the armoury, that was going to be secured there permanently, and that's all that was said, that was it."

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In other words, Sergeant Geddes made it quite clear that he asked the plaintiff to have his appointment card sent over from the armoury to the RBDU or to bring it from the armoury to the RBDU so that his name could be entered on the checking lists. The quarterly checking list gives the serial numbers of the pistol, handcuffs, capsicum spray, baton, ballistic vest, warrant card and driver's licence of each member of the RBDU. One could understand Sergeant Geddes' desire to have the appointment card for the plaintiff so that he could record on the quarterly checking list the numbers of each of the plaintiff's appointments. 83 The failure of Sergeant Geddes to add the plaintiff's name to the appointments checking list, both weekly and quarterly, is not solely due to the fault of Sergeant Geddes, but equally can be seen as the fault of the plaintiff in failing to do what Sergeant Geddes asked him to do, and which any police officer who is transferred ought do. Furthermore, it was never suggested to Sergeant Geddes, nor did he volunteer, that the plaintiff asked him to make up a new appointments card because his, that is, the plaintiff's appointments card, was now an outdated one. 84 It is clear that from the beginning the plaintiff made a number of assertions which were untrue. The first was the assertion that it was on 4 June 2004 that he transferred his appointments from the armoury to the RBDU. The second untrue assertion was that he never removed his gun from the gun cabinet at the RBDU. The third assertion was that it was stolen from the gun cabinet at the RBDU, and the fourth assertion was that it was stolen by a member of his staff who had an animus against him. 85 The probabilities, in my view, favour that the plaintiff, when his gun was found not to be in the gun cabinet at the RBDU, had forgotten where he had left it. Rather than admitting that he had forgotten where he left it, and that he may have left it at the armoury, or he may have left it at the RBDU, he positively asserted that he had left it at the RBDU and then positively asserted that the only reason it could be missing was because it had been stolen by a member of his own staff. 86 The assertion that the firearm was stolen by a member of his own staff carries with it a grave implication. This was acknowledged by learned counsel for the plaintiff when he was cross-examining Mr Craft. At page 608 of the transcript, the following question and answer occur: "Q. And he [the plaintiff] is concocting a story which would effectively create, as apparently it did, a poisonous working relationship within the unit? A. Yes, that did transpire, it existed prior, from what I understand as well ..."

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In the course of Operation Eame, Mr Craft had to interview all those who were present at the relevant period in the RBDU to ascertain whether that member of the staff, whether male or female, knew anything about the alleged theft of the plaintiff's firearm, an allegation the plaintiff had himself made back in 2004. 87 Shortly after the interview with the plaintiff on 28 July 2006, the plaintiff went on his planned long service leave. The plaintiff's travel took him to Broome. Whilst he was in Broome, the plaintiff received a phone call from Sergeant Morris that a complaint had been made against the plaintiff by Sergeant Constable. That complaint was received from the complainant on 26 June 2006. The substance of that complaint is not before me. The substance of the complaint was never put to the plaintiff in any regular fashion, for reasons to which I shall in due course turn. However, the plaintiff certainly had some knowledge of what the complaint contained, drawn, no doubt, from the hearsay that is known as the "police grapevine". 88 Prior to returning to duty from his annual leave, the plaintiff received a phone call from Chief Superintendent Gilham, in which Chief Superintendent Gilham told the plaintiff to report to him as his staff officer for a week until he returned from some course or other duty, at which time Superintendent Gilham would speak to the plaintiff. When the plaintiff turned up to act as Chief Superintendent Gilham's staff officer, he found a list of duties to perform there and he performed those duties over the week in question. 89 The plaintiff told me that when he received direction to report as Chief Superintendent Gilham's staff officer, he was "genuinely fearful" because it was not usual for a police officer to be told by his superior whilst on leave to report to some location other than one's normal work location. 90 When Mr Gilham returned, he told the plaintiff that there were "some managerial issues arising from the investigation" and that the plaintiff needed to go to a local area command to broaden his experience and that he should ring around and find a place to which to go. It is clear that the plaintiff understood that the purpose of this exercise was to broaden his managerial experience. The plaintiff told me that he was upset and anxious that something was happening to which he was not completely privy. However, he made phone calls as directed. One person he phoned was Inspector Nigel Taylor at the Maroubra LAC, and Mr Taylor agreed that the plaintiff could go to Maroubra and work in conjunction with him. The plaintiff told that to Mr Gilham and Mr Gilham then rang Mr Taylor and chatted to him about that appointment. That arrangement was to persist for six weeks or so, through October and into November. 91 The plaintiff agreed that he volunteered for those first six weeks of alternative work, that he concurred with the direction he had been given by Mr Gilham. The plaintiff told me that during his period at Maroubra, Mr Gilham came out to visit him on one occasion. 92 Whilst the plaintiff was still at Maroubra, he had a meeting with Assistant Commissioner Kaldas and Chief Superintendent Gilham. The meeting occurred at the Counter Terrorism offices at North Sydney. Clearly, Assistant Commissioner Kaldas was superior to Chief Superintendent Gilham, and no doubt the SPG was part of Mr Kaldas' portfolio. This evidence was given in chief: "Q. And again, doing the best you can now, are you able to relate to the Court what was said as between you and Mr Kaldas? A. Mr Kaldas said to me that I would not be returning to rescue and that I needed to find another location to go to. I pointed out that I found that extremely unfair, given that the investigation hadn't even been completed at this stage and that, as far as I was aware, there had been no risk assessment or any other of the actions I believe should have [been] taken to justify my ongoing - my removal at that stage, particularly in light of the fact that the investigation was still ongoing and he had clearly made up his mind that I was to be moved.

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93 The plaintiff told me that after that meeting he continued to work at Maroubra but he was angry and he did not believe that he had been given a fair hearing or experienced a fair process. He told me that he was indignant that policies and procedures that were in force were not observed by Mr Kaldas as they would have to be adhered to between a commander such as himself and his subordinates. He felt as if he did not belong to the same system. He told me that he thought he was "being made a scapegoat" at a time when no findings had actually been made. 94 The plaintiff obviously did not take up the suggestion of Mr Kaldas that he go to crime agencies or accept Mr Kaldas's offer that he find a location for the plaintiff at crime agencies. The plaintiff stayed on at Maroubra but then left when Detective Inspector Pisanos, who had been assisting Mr Craft, was appointed to Maroubra as the Crime Manager, which is the second in charge of the LAC. 95 He told me that the advent of Mr Pisanos made him feel "extremely uncomfortable" to be working in his presence, and that he rang his friend, Superintendent Robert Williams, who was the commander of the Sutherland LAC, and asked Mr Williams if he could start working with him at Sutherland. That occurred. The plaintiff worked at Sutherland until he requested to be moved to the Dog Unit, which was still commanded at the relevant time by Ms Middlemiss, who at the time that she gave evidence to me had become a chief superintendent. 96 According to a report generated by Ms Middlemiss on 9 March 2007, the following occurred: "Since approximately 29 January 2007, Inspector McGilchrist has been working at the Dog Unit. This arrangement was informal and was requested by Inspector McGilchrist as he had completed a period of rotation/shadowing at LAC's outside of the SPG. No other temporary work location had been arranged by the State Protection Group, and with the approval of the then commander SPG, Inspector McGilchrist has been working (informally over strength) on a number of projects at the Dog Unit." Before proceeding further, I should recite one event that occurred at Maroubra.

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102 The first portfolio was General Purpose Dogs and the Intelligence Unit. The next was the Drug Dogs and Firearm Explosive Detector Dogs and the Unit Co-ordinators and the third portfolio was the Support Manager who looked after the kennel staff, the dog trainers and the breeding program and, in essence, was responsible for maintaining the physical base of the Dog Unit. The Support Manager had answerable to him three or four sworn police officers and five civilian employees. 103 Before this restructuring the Dog Unit did not have three inspectors and the inference to be drawn is that the plaintiff temporarily fulfilled the role of one of the inspectors and when Ms Middlemiss returned one of the inspectors was no longer the Acting Commander and that there would be no place for the plaintiff at the Dog Unit. It is clear from the evidence that the plaintiff did apply for a permanent job at the Dog Unit but was not considered by, inter alia, Ms Middlemiss to be an appropriate person to take on the responsibility for that role. 104 The next event which occurred was a meeting held on 8 March 2007. The meeting was between Chief Superintendent Wayne Benson, Inspector Higgins and the plaintiff. The meeting happened fortuitously because Chief Superintendent Benson ran into the plaintiff in the foyer of the Sydney Police Centre and invited him into his office to explain to the plaintiff the outcome of the CMF, the final report of Operation Eame. By this stage Inspector Higgins had briefed Chief Superintendent Benson as to the findings and recommendation of Operation Eame. I should add that by this stage Chief Superintendent Benson had replaced Chief Superintendent Gilham as the Commander of the SPG. On 19 March 2007 Mr Benson made a memorandum or file note about this meeting. The substance of the file note is this: "I asked Inspector McGilchrist if he had been informed about the outcome on the investigation and he said that he had not. I then proceeded to outline the two adverse findings against Inspector McGilchrist and the fact that a further serious allegation against him, i.e. untruthfulness, although not sustained came very close. I asked Steve what he wanted and he indicated that he wanted to return to Rescue and Bomb as the Commander. I said that was not going to happen. I explained to him that it was my intention he not return as the Commander to Rescue and Bomb for a number of reasons. Firstly the adverse results of the investigation and the serious nature of the allegations against him. Secondly the overall issues regarding his management style et cetera as per outlined in another investigation i.e. the Ray Constable matter raised a number of issues that I believed it be in the best interests of the unit and Steve that he not return. He asked me if he was going to be sacked. I said did he think he would be subjected to a 181D nomination. He said he thought he was going to be sacked. I said that based on this matter I did not believe that it was sufficient to nominate him. He sounded relieved and said that he accepted that he was not going back to the unit and was glad that [he had] at least been told. He asked me if he could go back there for a period, which he described as having a sunset clause. That is he goes back there for a period of time and then leaves, that way he can leave with his head held high. I explained that was not going to happen and my decision regarding him not going back there was made up. We spoke about his future and he told me he was thinking about applying for the position at Sydney airport. We spoke further about his performance at the dog unit and I said that I have not had adverse reports regarding his work performance at the unit. Steve then spoke about the Rescue Unit again and said that it was going backwards and training had changed and all his good work was being undone. I explained that that was not his concern any more. I asked him if he was happy about not returning to Rescue and Bomb and he said that he was not happy about that but accepted it and in many ways was in fact glad, as he is not going to have the headaches any more. I explained if this were the case there would be no need to send the matter to the IRP [Internal Review Panel]. If he did not agree to the move then the matter would need to go to the IRP for approval. We spoke further about what was coming up in the near future, i.e. Commander Middlemiss going on leave and that he was going to stay at the Dog Unit in the interim until this matter was completely finalised. I said that I would provide him with written notification of the outcomes of our meeting in due course when I officially received the final papers from PSC [Professional Standards Command]." It is clear that following upon that meeting the plaintiff sought some advice from his trade union. On 12 March 2007 Superintendent Peter Gallagher, the commissioned officers' union representative, telephoned Mr Benson and asked if it was Mr Benson's intention to move the plaintiff from the RBDU to which Mr Benson gave an affirmative response. Mr Benson explained to Mr Gallagher that that was based on the findings of the Internal Affairs investigation. He also advised Mr Gallagher that as far as Mr Benson was aware the plaintiff had agreed to the move. However, Mr Gallagher advised Mr Benson that that was no longer the plaintiff's position and Mr Benson then told Mr Gallagher that he would now send the matter to the Internal Review Panel. Mr Gallagher told Mr Benson that he would advise the plaintiff of that development.

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106 On 19 March 2007 Mr Benson advised the Ombudsman about Mr Constable's complaint and invoked the provisions of s 163 of the Police Act 1990 in order to suppress the information generated in the paperwork concerning the complaint such that the Ombudsman could not disclose it to any other person. As I have earlier mentioned, the plaintiff was at no stage ever interviewed about Sergeant Constable's complaints and nor was he ever provided with the complaint itself, although it is clear that he must have known about some of its contents via the police grapevine. It was, as has been submitted by the plaintiff, quite inappropriate for Mr Benson to have referred to Sergeant Constable's complaint in relation to the plaintiff's management style. It was unfair to the plaintiff because he never had an opportunity of either formally knowing what the complaint was or of knowing it in its entirety and never having any opportunity of answering any allegations that were made by Sergeant Constable. 107 However, that there were problems with the plaintiff's management style are undoubted. Anyone with the least amount of wit would realise that for a superior to accuse his inferiors of a crime such as the theft of a firearm, a crime committed out of malice, is hardly a way of endearing the inferiors to the superior. Furthermore, one of the recommendations made by Mr Craft and contained in the final report of Operation Eame needs to be considered. It is this: "Once the interviewing of witnesses who were attached to [RBDU] had commenced, the poor management style of Inspector McGilchrist was evident from the beginning. Overwhelmingly, officers expressed the opinion Inspector McGilchrist was a poor communicator and displayed HR [human resources] skills which were not commensurate with the position of commander. On the basis of the evidence collected it appears Inspector McGilchrist failed to ingratiate himself with the officers under his command to foster a harmonious and cohesive team environment. The interview process for many of the officers appeared to be somewhat cathartic in that they were pleased a rigorous and comprehensive investigation was being undertaken. The officers attached to [RBDU] voluntarily provided statements and felt aggrieved by the assertion made by Inspector McGilchrist, a person under his command, stole his firearm. It was extensively reported after the events of 19 October 2004 and during the proceeding weeks, Inspector McGilchrist had a proclivity towards isolating himself from those who [sic] he commanded and went to great lengths to avoid contact in communicating with staff. Witnesses indicated this point was particularly noticeable once Inspector McGilchrist had voiced his thoughts and opinions to his command on those he thought were responsible for the theft of his Glock pistol." The sixth recommendation of the report was that the plaintiff not be permitted to return to RBDU as its commander.

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108 Whilst it was inappropriate for Mr Benson to have referred to Sergeant Constable's complaint in relation to the plaintiff's managerial style, there was overwhelming evidence to impugn the plaintiff's managerial style and overwhelming evidence pointing to his poor management style which fully justified Mr Benson in making the decision which he did. However, the decision which he made was not final unless the plaintiff accepted it, which he did not. As he had not accepted it, it had to go to the Internal Review Panel. That process was initiated by Mr Benson. The normal and proper procedure then followed its inevitable and leisurely pace. 109 The final report of Operation Eame bears date 19 March 2007. One can assume that it was communicated to all concerned on that day or shortly thereafter. On 27 March 2007 the plaintiff sent by e-mail a request for written clarification from Mr Benson. That records that on 2 October 2006 after returning from taking his long service leave he had a discussion with Mr Gilham who directed that he undertake "a couple of months professional development to enhance your management skills". The plaintiff then pointed out that he now had six months of rotation at three different commands. In the communication the plaintiff records that he had approached Mr Gallagher who informed him that Mr Benson was using the provisions of s 171(2) of the Police Act 1990 to keep him out of his "substantive position". The plaintiff then pointed out that he was particularly distressed by that piece of information as he had never been informed of this "interim management action" that had been taken against him. The plaintiff sought clarification as to when the interim action was instituted and at which CMT meeting that had been discussed. As I read the communication, the plaintiff was essentially using "bush lawyer tactics" to try to obtain some admission from the Police Force. The plaintiff ends his communication by saying that the continuous application of the interim action under s 171(2) he found "harsh and oppressive". 110 That communication did not actually reach Mr Benson until 28 March. He replied on 30 March, again by e-mail. Again, Mr Benson reiterated what he had told the plaintiff at the meeting on 8 March and said that he would provide further information once he had received the "completed papers". He then confirmed that the matter would be going to the Internal Review Panel. He pointed out that it was his understanding that that might not occur until at least "after May this year" due to the workload of the panel. 111 Mr Benson sent a further e-mail to the plaintiff on 6 May 2007 to keep him up to date with the progress of his "matter". Mr Benson told the plaintiff that the papers from the Professional Standards Command had finally arrived and were listed for the next meeting of the Complaints Management Team of the SPG. He said that once those papers had been "sifted through" then they would be officially forwarded to the Internal Review Panel and the matter "booked in", by which I infer is meant an appointment made for a hearing. 112 That caused the plaintiff to generate an email of 14 May 2007 at 12.58 pm. The substance of the email is this: "Thank you for the update. I understand that this means it will be some months before any written findings will be available. Again I question the motivation and justification for my continued removal from my substantive position. I am also particularly disappointed by the continual thwarting of mine and others attempts to find meaningful employment for myself within the SPG until this matter is resolved." On the following day the plaintiff did not attend for work but put in a request for sick leave.

[89]

117 On 28 May 2007 the plaintiff saw Dr Perumyna, one of Dr Singh's partners. The plaintiff told Dr Perumyna that he would like to claim "WorkCover". He said that he had told his boss about claiming what I assume is meant to be "hurt on duty" benefits. Dr Perumyna records that the plaintiff complained of early wakening and of being tearful, of crying and of being snappy. The plaintiff went on to tell the doctor that he was: "currently being transferred to different places", and that he felt frustrated about that. He also complained of having difficulty concentrating at work. The plaintiff told the doctor that he would like to take time off work. 28 May, of course, is significant as that was the day on which Ms Middlemiss was to return to the Dog Unit and the day when work was no longer available to the plaintiff at the Dog Unit. However, an inference can be drawn from Dr Perumyna's report that some arrangements were in place to transfer the plaintiff to some other place. On 4 June the plaintiff saw Dr Singh again and told her that he had seen Mr Pankhurst, that he felt that had helped him and that, but that the plaintiff needed to "stay off work". 118 The plaintiff next saw Dr Singh on 22 June 2007. The plaintiff told Dr Singh that he was distressed by "recent events at work". He told the doctor that he was being spoken of as a "liar". The plaintiff told Dr Singh that he was improving and that he was finding sessions with the psychologist helpful and that he was going away to Cairns for two weeks holiday. Notwithstanding that he was going to Cairns for two weeks holiday, the plaintiff was given a certificate to be off work for four more weeks. 119 What was the recent event that caused the plaintiff distress, an event at which the plaintiff was called a liar? This was a debriefing by Mr Craft of the entire RBDU staff, which occurred on either Wednesday 13 or Wednesday 20 June 2007. The debriefing occurred at 6 pm. A 6 pm on a Wednesday is the only time at which the whole of the staff of the RBDU can be present together. The need for the debriefing of the staff of the RBDU was given in the evidence by Mr Craft. He said this commencing at page 570: "Now given the nature of the work that the [RBDU] do, it's high stress, they rely on teamwork, they need to trust one another, if you're dangling off a cliff on the end of a rope, you need to know that the bloke at the top is going to look after you and have your back. Mr Benson identified that because of the allegation, they didn't know who was to blame, there was finger pointing, he wanted the factual information which was identified during the investigation to be made known to the troops. So he organised a night, it was an afternoon or early evening during changeover and an open invitation for all those people at the rescue squad was sent out for them to attend." The plaintiff clearly was not present at this debriefing. However, Sergeant Morris was. Sergeant Morris gave this evidence about what was said by Mr Craft; He used words to the effect of: "I found Inspector McGilchrist to be dishonest. He believed that he knew that his gun had been stolen and attempted to cover up the stealing and he was very deceitful and manipulative in the way he went around it and he used the rescue and bomb disposal unit and he used all of you people to achieve that deceit."

[90]

120 In answer to the next question Sergeant Morris told me that that was the gist of the statement made by Mr Craft about the plaintiff. In cross-examination, this evidence was given by Mr Craft: "Q. I suggest to you that you put to the meeting words to the effect that Mr McGilchrist had acted in a deceitful manner and in a dishonest manner? A. No. Q. And that you did that because you were annoyed and frustrated that some eight months of almost fulltime work had resolved itself with the substantial issue of whether or not he was dishonest or not being not sustained? A. I completely disagree with that. I have no animosity towards Mr McGilchrist. It's of no - it doesn't bother me, the fact that a particular finding was overturned. To me, I identified where the problems were in the New South Wales Police, how this occurred. That was more important to me, and how we could prevent it from happening again. What happens to individual officers, I can't control that. That's up to others. I present them with information. That's the way it should be, an independent review. And I am more than happy with that. It's happened before, happens to other investigators. You move on. You can't take it personally, it's like if somebody is not guilty at court, as long as you have done your best there's nothing you can do about it. There's no point harbouring a grudge. That's my view. Q. I suggest to you that the length of this investigation and the extent of this investigation had caused you to invest personally in it? A. Personally in that I care about my work and I take pride in my work and I want to produce a comprehensive document but I don't take it personally, there's a distinction between the two. I care about my work, I like my job. Q. And I suggest to you that you put to that meeting that Mr McGilchrist had acted dishonestly? A. No, I didn't even make that finding in the actual investigator's report. The highest that it was, was misleading. And to me, dishonestly, lying, they're all much higher than misleading in my view. So that's as high as I made the finding, was that Mr McGilchrist was misleading." In essence, what Mr Craft was denying was saying at the debriefing that the plaintiff was a liar or the practiser of deceit or a man who had acted dishonestly.

[91]

121 Of course, I must give weight to the evidence of Sergeant Morris and give weight to the evidence of Mr Craft. However, unfortunately when I read the evidence of Mr Morris and reflect back upon it, there was clear partiality displayed in the evidence of Sergeant Morris. For example, on page 507 at line 36, Sergeant Morris was asked whether, because of the way the safe was set out, the hardest gun to take out of the safe was a gun that had been locked onto peg number two. Before me, the plaintiff disagreed with that. The plaintiff went on to say that having been a rescue operator for 24 years and as a person in the metal trade, he could easily remove any of the padlocks to unlock any gun from within the gun safe. Sergeant Morris then had read back to him what he had told Mr Craft when he was interviewed by Mr Craft in July 2006 and the witness had told Mr Craft that the two pegs, the one on the extreme left, which is number one, and the one on the extreme right at the top, were the two hardest pegs to gain access to and then peg number two was the hardest to gain access to. The witness then said that he did say that, but that was in reference to bolt cutters. I then pointed out to the sergeant that he had told me on the previous day that the slivers of brass that he had seen at the bottom of the gun safe, he thought resulted from the use of bolt cutters on brass padlocks and again, then he had to withdraw the avoidance mechanism he had used to confess to the first question put by Mr Sharp because it was clearly in reference to the use of bolt cutters and he tried to distinguish between the use of bolt cutters and other methods. I am afraid I prefer the evidence of Mr Craft to that of Sergeant Morris. Lest my remarks be cryptic or be too elliptical, I would draw the attention of anyone reading these reasons for judgment to page 507 commencing at line 36 to page 508 ending at line 47 of the transcript. The plaintiff may well have been told by Sergeant Morris that he had been described as a liar, but what he was being told was not what was said by Mr Craft. It might be Sergeant Morris' own misapprehension or misconstruction of what Mr Craft had said. 122 The plaintiff returned to see Dr Singh on 20 July 2007. He told Dr Singh that he was okay when he was on holidays but that again became anxious when he returned to work and had "bad dreams". The contents of the dreams were of the staff and colleagues calling him a liar at a barbecue. The plaintiff then referred to seeing Mr Pankhurst and telling him that the discussions with Mr Pankhurst were making him feel better. Another workers compensation certificate was given for four weeks off work until 24 August. The significance of 24 August was that it was a few days after 20 August 2007, when the matter was to be dealt with by the IRP. On 24 August 2007 the plaintiff again attended Dr Singh, but told her that the hearing by the IRP had been delayed for a further month. The plaintiff told Dr Singh that he found it frustrating. He also told her that he was seeing the psychologist on a fortnightly basis, that he was sleeping better, that he no longer had bad dreams and had spent time with a friend, a work colleague in Newcastle, and was keeping himself busy around his house, that he was physically active. There was discussion about things at work: they clearly were to do with the report of Operation Eame and the reference to the IRP. 123 The meeting of the IRP was held on 28 September 2007. On that same day the plaintiff attended upon Dr Singh and told her that he felt a "bit anxious about it". He told her that he would accept the outcome of the IRP. He requested that he be referred to a psychiatrist, Dr Wade. The plaintiff told me that Dr Wade's identity had been suggested to him by a friend. Dr Wade practises at Belmont, near Newcastle, which is a long way to go for somebody who lives in Sydney at Kenthurst. 124 The plaintiff knew about the result of the IRP by 11 October 2007, because on that day he saw Mr Pankhurst and told him that the outcome was that the plaintiff was to be transferred from the RBDU and that distressed the plaintiff. He said that a colleague who allowed his gun to be stolen was only given a warning. That colleague could only be Sergeant Ross, who was the Acting Commander of the Armoury at the time when the gun was stolen from an unlocked safe. The plaintiff claimed that he was "victimised" by an Assistant Commissioner. I assume that is a reference to Mr Kaldas. The plaintiff went on to tell Mr Pankhurst on 11 October 2007 that he did not wish to return to work and wished to challenge the IRP ruling through the Industrial Relations Commission. Mr Pankhurst's notes continue thus: "Still feels humiliated by police hierarchy's actions - feel like all of colleagues know about investigation/allegations and this would follow him wherever he worked. 'I feel like I've failed'."

[92]

125 On 26 October 2007 the plaintiff next saw Dr Singh. It was on that day that Dr Singh first records a history of the plaintiff's working in accident investigation squad in the 1970s and the first time Dr Singh records a history of the plaintiff's having been morbidly depressed when working there, although he told her that that went away when he moved away from that task. The plaintiff went on to tell Dr Singh that he was now angry, as the "findings of hearing not received yet", but clearly the plaintiff was aware of what the findings of the IRP were. The plaintiff told Dr Singh that he was to see Dr Wade on 30 October, in four days' time, and that he might have to see a psychiatrist for essentially the defendant on 3 December 2007. The only other notation does not record any relevant history. 126 The plaintiff saw Dr Singh again on 8 November 2007 and symptoms are recorded, as are the plaintiff's seeing Dr Wade and consulting the psychologist, and Dr Singh commented that the plaintiff was counselled to look ahead at alternative work opportunities. 127 As I have earlier mentioned, the first thing that could be seen to be substantial history was recorded by Dr Singh on 7 December 2007. The history commences with things starting in July 2006, which is clearly a reference to the commencement of the enquiries made by Mr Craft. The history is quite lengthy and I have not time to quote it in full. Under paragraph numbered 8, the following is recorded as having been said by the plaintiff: "They are stuffing me around. I feel I was being persecuted. They were not following regular police policy." There is then a reference to the debriefing in June of 2007. There is also reference to the complaints not having been substantiated. The final piece of history that I can discern is referable to accident investigation which he had found stressful in the past before moving to the armoury. There was no further history of any relevant stressor. Dr Singh noted finally on that day that the plaintiff expected to be "medical boarded out", that is, medically discharged, an expectation which has been borne out.

[93]

128 The plaintiff saw Mr Pankhurst, psychologist, on 31 May 2007. Again, the only history is referable to the investigation that commences in May of 2006. The plaintiff attended upon Mr Pankhurst again on 7 June but no further history is then recorded. When the plaintiff saw Mr Pankhurst on 21 June, he gave the history that I have earlier recited, and need not recite further. On 19 July 2007 the plaintiff saw Mr Pankhurst and no further history is recorded. As best I can discern from the notes of Mr Pankhurst, there was no history recorded other than of psychological stress resulting from Operation Eame, the formal second investigation into the loss of the plaintiff's firearm. 129 I have carefully gone through the records of both Dr Singh and Mr Pankhurst to show that there is no reference in them to what is now alleged to be a relevant stressor, namely the suicide of Mr Guff, and the event at Maroubra Beach on 20 October 2006. 130 It now being 4 o'clock, I shall take the luncheon adjournment. About half an hour; no more than half an hour. 131 On 30 January 2008 the plaintiff was served with a notice under s 173(5) of the Police Act 1990. It gives the plaintiff notice that Mr Benson, as commander of the State Protection Group was considering making a reviewable order against the plaintiff. The document is Exhibit Q. It has 21 paragraphs setting out the background of the matter, a large number of paragraphs setting out Mr Benson's consideration of the background of the matter, and then gives notice of making the following order: "That pursuant to section 173(2)(a) of the Police Act 1990 , you be transferred (without loss of rank, grade or seniority) from the Rescue and Bomb Disposal Unit, State Protection Group, to a position of Inspector attached to Human Resources at police headquarters at Parramatta." The plaintiff was then formally advised that he had seven days from the date of service of the notice to indicate to Mr Benson whether he intended to make any written submissions. If he wished to make written submissions, the plaintiff had 21 days from the date of service of his notice of intention to respond to forward any such written submissions to him. In other words, all told the plaintiff had 28 days in which to make a response.

[94]

132 Acting with the alacrity with which solicitors generally act when acting in this List, the plaintiff's solicitors responded not by 27 February 2008 but on 3 July 2008. The written submissions on behalf of the plaintiff were considered, and on 22 September 2008 Mr Benson made the order that he had already proposed that he would make pursuant to s 173(2)(d) of the Police Act 1990. The plaintiff was advised that he had the right to seek a review of the order by the Industrial Relations Commission and that he had 21 days in which to lodge an application for review of that order. The plaintiff was also advised that he had the right to seek an administrative review by the Supreme Court. The plaintiff did not do either of those things. He remained off work. 133 On 3 April 2008 the plaintiff had made an application for medical discharge. He had previously referred to that when seen by Dr Singh on 7 December 2007 and referred to it again when he saw Dr Singh on 17 January 2008 and told her of his wish to make a "hurt on duty" application, and again on 28 February 2008 he again referred to his medical discharge application. Eventually, as I have already indicated, the application for medical discharge was successful and the plaintiff was discharged with the certified infirmity on 27 November 2008. 134 In the meantime, the plaintiff continued to see Dr Singh and his psychologist and a number of legal practitioners, many of his own choosing. In particular he chose to see Dr Wade and he chose to see Dr Pickering. 135 Four days after being medically discharged, the plaintiff took up new employment. On 1 December 2008 the plaintiff commenced as the Operations Manager of the State Armoury of the New South Wales Department of Corrective Services. He is still so employed. That position appears to be the equivalent of the Commander of the New South Wales Police Armoury. The plaintiff had a friend who, I infer, used to be the Manager of the Corrective Services Armoury. The plaintiff knew, since April of 2008, that there was a vacancy that would occur for the position he eventually obtained. His friend told him then that he was retiring later in the year. He in fact retired in July 2008. Some months after that, the position was advertised. 136 The plaintiff agreed that the frustration that he voiced on a number of occasions to medical practitioners about the bureaucratic method of being medically discharged was partially due to his desire to have that bureaucratic procedure speeded up so that he could take the opening available to him in the Department of Corrective Services. Since medical discharge and taking up his position with the Department of Corrective Services, the plaintiff has not seen one medical practitioner, nor one psychologist, let alone any psychiatrist, for any form of treatment for the certified infirmity. Indeed, the gentleman I saw in the witness box over a protracted period giving evidence is not a man suffering from the certified infirmity. However, I, and the plaintiff, and the defendant, are all bound by the certificate issued by the Police Superannuation Advisory Committee. 137 I have no hesitation in accepting that the certified infirmity results from the plaintiff's reaction to the investigation which commenced on 5 April 2006 into the theft of the plaintiff's pistol, P2. That is what became known as Operation Eame, and also from the aftermath of that investigation. I do not accept that the certified infirmity had anything to do with the plaintiff's exposure to traumatic events when he was an accident investigator in the distant past, in the period between 20 April 1986 and 24 May 1989. Even accepting the plaintiff had some symptoms of psychiatric illness at the time, I accept this view expressed by Dr Pickering in his report of 16 October 2008: "When he was with the accident investigation unit he started to become very stressed and developed symptoms of early PTSD. While he recovered from this at the time, now that he's become more tense and anxious and depressed, many of the horrific things that he has seen are returning to haunt him. I think this is a manifestation of depression rather than truly representing PTSD however." To put it in other terms, had the plaintiff not lost P2 there would never have been an Operation Eame and the plaintiff might still be working as commander of the RBDU. Then there would never have been a re-manifestation of symptoms that might be thought to be referrable to PTSD.

[97]

141 Bearing in mind the timeframe established by DSM-IV-TR, the most likely cause of the plaintiff's adjustment disorder was the communication conveyed to him by Mr Benson at the meeting on 8 March 2007. That is, when the plaintiff was finally told what the CMT had found and what course of action Mr Benson proposed to take. The course of action which Mr Benson proposed to take was action with respect to the discipline of the plaintiff. That is accepted by the plaintiff. 142 The issues for my determination arise under s 11A of the Workers Compensation Act 1987. The question for my determination is whether the plaintiff's certified infirmity "was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the [defendant] with respect to … discipline" of the plaintiff. The plaintiff says that the actions taken by the defendant were not reasonable. The onus of proof that the defendant's actions were reasonable lies upon the defendant. 143 In Commissioner of Police v Minehan (2003) 1 DDCR 57, Foster AJA, with who Sheller and Santow JJA concurred, quoted with approval dicta of two of my colleagues. Commencing at [27] Foster AJA said: "He [Campbell CJCC] considered the import of the words 'reasonable action' in s 11A and had regard to certain judgments given in the Compensation Court in relation to the section. He specifically adopted what Geraghty J said in Irwin v The Director General of School Education , NSWCC, 14068/97, 18 June 1998, unreported, namely: 'The question of reasonableness is one of fact, weighing all of the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of "reasonableness" is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.' He also referred to what Truss J said in Ivanisevic v Laudet Pty Limited , NSWCC, 1673/98, 24 November 1998, unreported: 'In my view when considering the concept of reasonable action, the court is required to have regard not only to the end result but also to the manner in which it was effected.'"

[98]

144 More recently the subject has been considered by the Court of Appeal in Department of Education and Training v Sinclair (2005) 4 DDCR 206; [2005] NSWCA 465. In that matter the principal judgment was given by Spigelman CJ, with whom Hodgson and Bryson JJA concurred. At [26] his Honour said this: "In respect of the issue of reasonableness, the complaints pointed to four aspects of the appellant's conduct that were said to be unreasonable: (a)delay in investigating the claim; (b) the failure to give the respondent particulars of the Allegations at the outset; (c) the No Contact Direction; and (d) the Transfer." His Honour pointed out that the Arbitrator found that the first of those four matters was reasonable. On appeal from the Arbitrator, Sheahan J labelled the fourth point as being reasonable but upheld the Arbitrator's finding that the points numbered (b) and (c) were unreasonable. Commencing at [69], the Chief Justice said this: "In view of the submission made to him, in my opinion, it was necessary for his Honour to form his own judgment as to whether or not the sole or predominant cause of the employer's contribution to the respondent's psychological injury was reasonable action on the part of the appellant, and to express reasons for that conclusion. The statutory test could not be satisfied merely by identifying two aspects in which the appellant's conduct was unreasonable. It remained necessary to determine whether, notwithstanding those blemishes in the decision-making process, 'reasonable action' was the sole or predominant cause. On the submissions before his Honour, it was incumbent upon him to determine whether or not the sole or predominant cause was the employer's reasonable action, in circumstances where the investigation itself, delay in completing it, and the Transfer, were all found to be reasonable. His Honour did not address that issue." Commencing at [96] his Honour said this: "Furthermore, the case before Sheahan J primarily focused on the whole course of Departmental conduct as constituting the relevant 'substantial contributing factor' for the purposes of s 9A. His Honour appeared to approach the s 11A issue on the same basis. This is an appropriate course to adopt in the context concerned, and concerned only, with psychological injury arising from matters such as 'demotion, promotion, performance, appraisal, discipline, retrenchment or dismissal'. Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the 'whole or predominant cause' is the entirety of the conduct with respect to, relevantly, discipline. His Honour's analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation, 'reasonable action with respect to discipline'. In my opinion, a course of conduct may still be 'reasonable action', even if particular steps are not. If the 'whole or predominant cause' was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was notwithstanding the blemishes, 'reasonable action'. For this alternative reason the appeal should be allowed."

[99]

145 In the current case the plaintiff's argument is that there were blemishes in the course of the disciplinary process and the fact-finding process prior to the formal disciplinary process and that those were not mere blemishes but major flaws such that the whole of the conduct of the defendant could not be said to have been "reasonable action". 146 The complaint management process used by the New South Wales Police Force is conveniently set out in para 5 of Ms Middlemiss' report of 7 November 2007. It is summed up thus [the numbering of the paragraphs is my own]: "1. A panel known as the Complaints Management Team (CMT) assesses initial complaint information. 2. CMT determine the specific complaint issues, nominate an investigator and determine how the complaint should be investigated, including but not limited to, if the investigation should be outcome focused (minor managerial matters) or evidence based (serious and criminal matters). In the case of Inspector McGilchrist, Detective Sergeant Craft conducted an evidence-based investigation and the professional standards command CMT monitored the progress/direction of the investigation. 3. Legislatively, and depending on the type/level of investigation, complaint monitoring is undertaken by the office of the NSW Ombudsman and (where needed) the Police Integrity Commission. Both oversight agencies ensure NSWPF complaint procedures are conducted within legislative requirements, including adherence to relevant guidelines and policies. In this case, Inspector McGilchrist's investigation was oversighted by both the Ombudsman and the Police Integrity Commission. 4. A the conclusion of an investigation the CMT recommends action (if required) against the officer involved. In this case, Inspector McGilchrist's matters did not result in criminal proceedings; rather they were referred to the Employee Management Branch for the consideration of the Internal Review Panel. 5. The Internal Review Panel is used to "benchmark" action against officers. This process ensures consistency across NSWPF and also has the ability to recommend review or action against officers through reduction in rank, salary, grade, transfer, et cetera. In this case, the Internal Review Panel recommended that Inspector McGilchrist be disciplinary transferred from the [RBDU] to another work location within NSWPF - through consultation with HR Services. 6. At this stage, HR Services (Transfer Unit) is attempting to locate suitable locations for Inspector McGilchrist. Once finalised, documents will be provided to Inspector McGilchrist, at which time, he will be able to respond to the proposed action and seek a review - including taking action through the Industrial Relations Commission."

[104]

152 In my view, the only logical conclusion is that Mr Kaldas and Mr Gilham were merely giving the plaintiff informal advice and not making a final decision. That is because the process continued to be followed and continued throughout 2006, throughout 2007 and up until the service of the s 173 order on 22 September 2008. Not only did it proceed normally but the plaintiff himself anticipated that it would proceed normally. He did not, for example, remonstrate with Mr Benson at the meeting on 8 March that "I knew that was going to occur because the decision had already been made by Mr Gilham and Mr Kaldas." The plaintiff invoked his right to have the matter go to the IRP and that occurred. He knew that the decision was not a foregone conclusion. He still expected, up until the time of the IRP, that he might be able to return to the command of the RBDU. 153 The plaintiff, albeit belatedly, exercised his right to put in submissions to Mr Benson about the proposed order under s 173 and, no doubt, he expected some weight would be given by Mr Benson to those submissions. The process continued and involved many important people and it was never suggested, for example, to Mr Benson, that the decision he made was a complete sham because the decision had already been made by Mr Kaldas and, for example, communicated to him by either Mr Gilham or Mr Kaldas. 154 That the plaintiff himself did not perceive the advice of Mr Kaldas and Mr Gilham given to him in October or November 2006 as final is also evidenced by the fact the plaintiff was continuing to do what Mr Gilham had suggested to him to do to broaden his managerial experience, so that he could improve his managerial skills. 155 The other thing which I must bear in mind is that it appeared to me, as the tribunal of fact, that it was almost inevitable from the time that the plaintiff alleged that one of or more of his subordinates had stolen his pistol from the pistol cabinet at the RBDU that it would have been impossible for him to have continued to be the commander of the RBDU because every member of the unit could think that he or she might be a suspect. 156 That that which Mr Kaldas and Mr Gilham told the plaintiff in October or November 2006 was appropriate is borne out by the facts. Mr Benson himself formed the view that the plaintiff was not fit to command the RBDU. The same had been recommended to him by Mr Craft. The same was upheld by the IRP. In my view, the process as well as the outcome were reasonable. 157 A very strong opinion in that regard was given by Mr Benson. He expressed this view: "I'm on record in a number of areas by saying that, again, the totality of this matter, I believe that the IRP undershot it dramatically. The issue of - and it's been identified in a number of - a number of the investigations, professional standards, the loss of the firearm, the end result of that was basically New South Wales Police smashed Inspector McGilchrist with a really big feather. We so undershot it, it wasn't funny. This man lost his firearm, basically lost half of his command in terms of respect and everything else that goes along with investigation. He kept his rank, kept his seniority, kept his increments, and had no loss of money, nothing. We were prepared to move him to a location closer to his home. As the commander of Rescue and Bomb, he was on call, lot of stress, lot of pressures, lot of everything else. He could have become a duty officer, no loss of money, nothing out in the local area command, four days on, four days off. Absolutely, we undershot it I think." That essentially is a protestation by Mr Benson that the ultimate discipline rendered to the plaintiff was equivalent to a school boy being caned with a feather.

[105]

158 The plaintiff says that there were other blemishes in the process which also vitiated the reasonableness of the action of the plaintiff. The plaintiff complained that he was left to his own devices, was not assisted, but then also complained that he was shunted around, which is the direct opposite of the former. 159 The fact is that in October 2006 Mr Gilham decided that the plaintiff should have some professional development, suggested to the plaintiff that he find an LAC where he could go, where he could work with the commander to broaden his experience. The plaintiff himself found Maroubra for that purpose and that was acceded to by Mr Gilham and Mr Gilham spoke with the local area commander. 160 The plaintiff could have stayed on at Maroubra but decided to move himself because he did not want to work with Detective Inspector Pisanos. The plaintiff moved himself to Sutherland LAC where he was an old friend with a commander, Mr Williams. From there the plaintiff moved himself to the Dog Unit which was part of the SPG and that movement was at his own request. There is no suggestion in the evidence that he had to leave Sutherland LAC. 161 On 28 May 2007 he would have been required to move from the Dog Unit for the reasons which I have already pointed out. However, that move was not necessary because on 15 May 2007 the plaintiff had stopped working, on sick report and never returned to work prior to his medical discharge. That is not a person who was left with no assistance, nor is it a person who is being "shunted around". One asks, rhetorically, if the plaintiff had not found himself an opening at Maroubra and then an opening at Sutherland and then an opening at the Dog Unit, he might have been more aggrieved if someone acting on behalf of the SPG had managed to find him an opening at some more distant location, such as Goulburn or Bathurst or the Central Coast or perhaps an even less attractive LAC, such as Macquarie Fields or Campbelltown, where the amount of violence is particularly great. 162 One of the issues that was raised for my determination was whether it was necessary for the decision that was made by Mr Benson to go to the IRP, even if the plaintiff acquiesced in the action proposed by Mr Benson that was communicated to the plaintiff on 8 March 2007. In that regard there is a conflict in the evidence between the opinion of Mr Benson and the opinion of Mr Williams. I pointed out that the conflict could be solved by the tendering of the relevant policy documents. That was never done. When one considers the evidence of Mr Williams as to why he would always send it to an IRP, it is clear that he would always send it to an IRP lest there be any communication by him of some course of action which he later had to retract, causing him to be seen as foolish in the eyes of his subordinate. However, Mr Benson, a man of higher rank and great experience, did not believe that it was necessary for a decision to be taken to the IRP if the subject of the decision acquiesced, and I cannot see any logical reason why such would not be the case. I therefore accept that it was not necessary for the decision reached by Mr Benson on 8 March 2007 to go to an IRP if the plaintiff acceded in that decision. 163 Furthermore, that goes back to the interaction between the plaintiff and Mr Kaldas and Mr Gilham in October or November 2006. If that had been a final decision the plaintiff would have been entitled to insist that it go to an IRP. He did not. He knew the usual procedures were not being followed and he knew that they had to be followed. They were in fact being followed by a much more lengthy and drawn-out route which the plaintiff was happy to follow. I cannot perceive that he saw the communication to him of advice that was ultimately correct by Mr Kaldas and Mr Gilham to have been final and irrevocable. 164 I have already discussed the interim management plan submissions, but I would again point out what was pointed out by Mr Benson in cross-examination, that the plaintiff was a commissioned officer of police, a man with great seniority in the Police Force. When being cross-examined about the interim management plan Mr Benson said this: "It does vary but in terms of the level and by that, there is an expectation that you have, for example, and I've done it myself, a very detailed outcome report for say a constable and it would be considerably less for a sergeant and it would be considerably less for a commissioned officer or an inspector because there is an expectation that at that level, senior officer with the New South Wales police, that, you know, the level of advice and guidance that - for example, I might be required to receive from my boss, my boss would be horrified if I didn't have it because, you know, in - and I use Mr McGilchrist's example, he was able to satisfy a promotions system that promoted him to the rank of sergeant. It talked about how you deal with people, what you do and he was said to be the best applicant, got that job and then again with the - because he got under the old promotions system, went through that, written report, documentation and select committee, everything. Questions in relation to maximising performance, staff, everything. Got through all that and made a commander. So there is - there is an expectation as a baseline that the commissioner signs off as a commissioned officer that - you know, it does happen where people slip through the system but there is an expectation that these people will have a skill set." That skill set can be seen in Exhibit 1, the plaintiff's application for merit appointment as the commander of the RBDU and what the plaintiff had to say about his own competencies. One of the criticisms levelled at the lack of any formal interim management plan was that there was no written plan, there was nothing to tell the plaintiff what he had to do. He was told he had to improve his management skills and sent off to observe and listen. One has to accept that he would not need to be given the written guidance that might need to be given to a probationary constable or a constable bearing in mind his level of rank in the New South Wales Police.

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166 I accordingly have no hesitation in finding, when looking at the whole of the course of action taken by the defendant, and even bearing in mind the blemishes which I have identified, that the course of action taken by the defendant with respect to the investigation of the plaintiff's conduct and the discipline of the plaintiff was reasonable action and that reasonable action has caused the certified infirmity. 167 I should just say this about the medical evidence. I have been provided with opinions by Dr Wade who saw the plaintiff on two occasions, 30 October 2007 and 15 November 2007, by Dr Benjamin, qualified by the defendant, who saw the plaintiff on 4 December 2007, by Dr Anderson, qualified by the plaintiff's solicitor, who saw the plaintiff on 25 July 2008, by Dr Rikard-Bell who was qualified by the STC, that is for PSAC, and examined the plaintiff on 29 September 2008, and by Dr Pickering who saw the plaintiff on or about 16 October 2008. Each of those medical practitioners relies on the history given by the plaintiff. Many of the histories given by the plaintiff are inherently unreliable. When one looks at what the plaintiff told Dr Singh and Mr Pankhurst from time to time there are many statements which are plainly untrue. The opinions of many of the medical practitioners are flawed by their reliance upon the plaintiff's history, much of which is self-serving. For example, the plaintiff described himself to Dr Wade as a "scapegoat" and a "pariah". A pariah he may have considered himself; a scapegoat he certainly was not. What happened to the plaintiff arose from his own default in losing his firearm and then making untrue statements as to what had happened to it in the past. When I say "untrue statements" I do not mean deliberately untrue but the statements were just not true. 168 Dr Wade expressed this opinion: "The likelihood is that away from police work he is going to be totally and permanently incapacitated and probably his life will be limited to what he is doing at present, which is working around his acres, having limited social involvement, only with people that he trusts highly and involving such things as his restoration of cars, the things that he will be doing predominantly on his own, or dealing with people who are not associated with the police, such as his wife, who is manifestly trustworthy and with longer term limitations on his capacity to trust and to feel all that comfortable in social situations." That prognosis is absurd. Four days after being medically discharged the plaintiff started working full-time as the operations manager of the Corrective Services Armoury for this State, one would think an equivalent position to the one he held as commander of the New South Wales Police Armoury.

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169 Dr Pickering's report of 16 October 2008 is also emblazoned with self-serving statements and generalisation. After thanking Dr Singh for referring the plaintiff to him, Dr Pickering states, "His story is one that is familiar to me." Were I to say that Dr Pickering's reports were familiar to me I would fall into error. The first paragraph of the report continues: "A series of incidents occurred which put him out of favour with the very senior officers who determine his fate. He was criticised by his assistant commissioner for doing something that was in fact correct procedure but the assistant commissioner was upset that he did not put it through him. [Neither I, nor either counsel know to what this refers]. There was also an absurd complaint involving allegations of corruption which were completely unfounded, and another allegation that complained he wore a brown suit to a parade [semble, part of Sergeant Constable's complaint] (because his dress uniform as a newly minted commissioned officer was not yet available). He has been put in front of an internal review panel, essentially a body that has many similarities with the infamous Star Chamber with no records and no accountability. [There is nothing to support this outrageous assertion.] His attempts to get out of the Police Force on medical grounds and join Corrective Services as armourer have been impeded to the point where it will probably not happen because the Police Force will not give him the report that is due to him [an erroneous prognosis]. It would be simple for an officer who knew him well to sign off on his reference, but instead an officer who has spoken to him for fifteen minutes and made it quite clear he wanted him out will do this, but the actual reference will not be available until his matter before the Industrial Relations Commission has been heard, by which time it will clearly be too late for him to get what would have been an excellent job for him." The matters in square brackets are my comments. On the latter part of this report I would point out the thing that was impeding the plaintiff's medical discharge was the usual alacrity engaged in by the STC and PSAC, which if it went on a go-slow would move backwards. Furthermore, the Commissioner of Police as a policy does not issue certificates of service until the service has been completed and the service could not be completed until the medical discharge had been completed. Furthermore, the plaintiff never made any application to the Industrial Relations Commission. When the histories contain such material, one must question the validity of the opinions expressed by those who take and rely on such histories.

McGilchrist v Commissioner of Police

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Judgment (112 paragraphs)

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