Michael James Flanagan v Commissioner of Police

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Police Act 1990

Hosemans v Commissioner of Police (2004) NSWIRComm 253 Johnston v Commissioner of Police (2007) NSWIRComm 73 Johnston v Commissioner of Police (2007) NSWIRComm 293 CASES CITED: Little v Commissioner of Police (No 2) (2002) 112 IR 212 Newton v Commissioner of Police (No 2) (1999) 87 IR 66 Starr v Commissioner of Police (2001) NSWIRComm 226 Wang v Crestell Industries Pty Limited (1997) 73 IR 454

HEARING DATES: 11/12/2007, 12/12/2007 and 13/12/2007.

APPLICANT: Mr A Hatcher of counsel SOLICITORS: Police Association of NSW LEGAL REPRESENTATIVES: RESPONDENT: Mr P Skinner of counsel SOLICITORS: Crown Solicitor's Office

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

MATTER No IRC 1363 of 2007 Michael James Flanagan v Commissioner of Police

Application by Michael James Flanagan for review of an order under section 181E of the Police Act 1990. DECISION [2008] NSWIRComm 11 1 This is an application by Michael James Flanagan for review of an Order made by the Commissioner of Police ('the Commissioner') under s 181D of the Police Act 1990 ('the Act'). 2 The decision by the Commissioner to remove Mr Flanagan from the NSW Police was based on consideration of the applicant's conduct and integrity arising from two incidents: (a) an off-duty assault incident involving two members of the public which occurred in Wellington on 15 April 2006; and

(b) subsequent unauthorised accesses of the Computerised Operational Policing System (COPS) during the period 19 April 2006 to 10 May 2006. A number of those enquiries related to the Wellington Hotel incident. 3 Some of the COPS accesses during the period specified were related to the assault incident of 15 April 2006. As well, some of Mr Flanagan's access of the COPS system concerning the Wellington Hotel incident was said to have been in accordance with NSW Police policy. That issue will be elaborated upon in due course.

4 As a result of the incident on 15 April 2006, Mr Flanagan was arrested and charged with two counts of common assault pursuant to s 61 of the Crimes Act 1900. The matter was heard before Magistrate Wahlquist at Wellington Local Court on 5, 6 and 7 March 2007. Magistrate Wahlquist found both offences proved. Mr Flanagan was convicted and fined $1000 on each count. Mr Flanagan subsequently appealed on severity grounds alone to the District Court. The appeal was upheld and the Court discharged Mr Flanagan without conviction and penalty pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 having regard to his prior good character, age and extenuating circumstances. 5 It is unclear on the material before me as to what were the precise extenuating circumstances relied upon by the District Court as one factor taken into account in upholding Mr Flanagan's appeal on penalty. 6 Following investigation of all matters underpinning the Commissioner's consideration of the applicant's actions, Mr Flanagan was removed by Order under s 181D on 16 August 2007 for the reasons earlier identified. He seeks reinstatement to the NSW Police on the basis that his removal was harsh, unreasonable and unjust. Applicant's background 7 Mr Flanagan is currently thirty-four years of age. He is separated from his wife and has two children, two boys aged six and four years of age from that relationship. He is currently in a de facto relationship with Ms Alexis Humphries. Prior to joining the NSW Police, Mr Flanagan completed a Diploma in Business Management while working part-time for Sizzler Restaurants. He was also, for a period, employed full-time as a clerk in the International Banking Department of the Westpac Banking Corporation. 8 On 21 May 1995, Mr Flanagan commenced studying for a Certificate in Policing at the Police College in Goulburn. He successfully completed his studies in February 1996. Upon attestation as a police officer, he was initially stationed at Parramatta Police Station where he performed general duties there as well as at Rosehill. He performed TAG duties at Macquarie Target Action Group from November 2000 to December 2002. He was transferred to Penrith in 2002 and to Stuart Town in 2004. Stuart Town is part of the Orana Local Area Command (LAC) encompassing Wellington and surrounding towns outside Dubbo. Mr Flanagan was transferred back to Penrith in March 2005. He remained there until he was suspended and subsequently removed in 2007. 9 Up until the incidents that gave rise to the s 181D Order, Mr Flanagan had no previous complaints on his record as a police officer. He attained the rank of Senior Constable in February 2001 and received Officer of the Year for the Granville/Rosehill Local Area Command in 1999 and again in 2003 for the Penrith Local Area Command. He also received an award for commitment to policing and the community in 2006. Section 181D Notice and Removal Order 10 Under s 181D(1) of the Act, the Commissioner may remove, by order in writing, a police officer from the NSW Police if the Commissioner does not have confidence in the police officer's suitability to continue duties as a police officer having regard to the officer's competence, conduct, integrity or performance. 11 Before making such an Order under s 181D(3) of the Act, the Commissioner is to serve notice of consideration of a police officer's suitability to continue employment with the Police upon the officer concerned. Mr Flanagan was served with the s 181D(3)(a) notice on 4 June 2007. 12 In his Statement of Reasons attached to the Order under s 181D(1), the Commissioner sets out the circumstances that gave rise to the Order: (1) On 15 April 2006 while off duty ....you attended the Wellington Hotel...During the course of the evening....a heated exchange occurred between you and Mr Amatto....As you passed Mr Amatto in the hallway you lowered your left shoulder and hit Mr Amatto in his shoulder; you grabbed Mr Amatto with both hands and pushed him against a wall and punched Mr Amatto twice in the face.....Mr Wade Hynch, Mr Amatto's cousin, intervened to try and stop the fight. You punched Mr Hynch in the jaw. This incident was captured on CCTV footage and depicts you assaulting Mr Amatto and Mr Hynch.

(2) Following the incident which occurred in Wellington on 15 April 2006, you returned to Penrith Local Area Command on 19 April 2006. While on duty you accessed the Computerised Operational Policing System (COPS) and made a number of inquiries that related to the incident at the Wellington Hotel. You also accessed the personal details and criminal history record of Mr Amatto. In total you made 14 unauthorised accesses during the period 19 April 2006 to 10 May 2006. 13 In the proceedings before me, counsel for the Commissioner did not press, as mentioned above, the '14' unauthorised COPS accesses by Mr Flanagan during the relevant period. As earlier stated, Mr Flanagan made a number of unauthorised COPS accesses during the period stated. Some of them were related to the assault incident at the Wellington Hotel, some were not. Relevant principles 14 Under s 181E the applicant may seek a review of a s 181D Order made by the Commissioner to the Industrial Relations Commission ('the Commission') on the basis that the removal is 'harsh, unreasonable or unjust'. In reviewing the Order, the Commission is empowered by s 181F of the Act. That section sets out the basis for the proceedings as well as matters which the Commission must take into consideration: (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly it must consider the Commissioner's reasons for the decision to remove the applicant from the Police Service; (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary; (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust. The subsection has effect despite any law or practice to the contrary.

(3) Without limiting the matters to which the Commission is otherwise required to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that thew Commissioner made the Order pursuant to section 181D(1) of the Act. 15 Before addressing those provisions, it is necessary to consider the factual circumstances underpinning the Commissioner's decision to remove Mr Flanagan from the NSW Police. In determining matters, regard must be had to the requisite onus and standard of proof. 16 In the first instance, s 181F(2) of the Act provides: The applicant has at all times the burden of establishing that the removal of the applicant from NSW Police is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. 17 As is clear, consistent with that provision, the primary onus rests with the applicant: see Newton v Commissioner of Police (No 2) (1999) 87 IR 66 at [80] and Hosemans v Commissioner of Police (2004) NSWIRComm 253 at [129].

18 The principle relating to standard of proof has been well established in prior decisions of the Commission including in matters involving a review under s 181F of the Act. For example, it was canvassed extensively by Walton J, Vice-President in Starr v Commissioner of Police (2001) NSWIRComm 226 at [158] where his Honour referred to the principle as enunciated in Wang v Crestell Industries Pty Limited (1997) 73 IR 454 at 463-464. Applying that principle, his Honour stated in Starr at [159] as follows: Thus, the relevant standard to be satisfied in relation to allegations of misconduct against employees is on the balance of probabilities. However, that standard must be satisfied to a degree which is appropriate to the gravity of the facts to be proved. Hence in New South Wales Bar Association v Livesey [1982] 2 NSWLR 231, it was considered that a finding which may put a career in jeopardy must be made with regard to such considerations of the gravity of the facts in issue. The most often cited case for such a proposition is Briginshaw v Briginshaw , which was again confirmed recently by this Commission in Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1. In that case, the Full Bench of the Commission noted that the principle in Briginshaw v Briginshaw is now embodied in s 140 of the Evidence Act 1995 which provides: 140 Civil Proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged. 19 On his own behalf, the applicant filed two unsworn statements dated 7 November and 7 December 2007 respectively. In addition, statements were filed in support of the applicant from: · Sergeant Graham O'Toole dated 5 November 2007. Sergeant O'Toole is currently a General Duties Supervisor at Penrith Police Station; · Sergeant Paul Bousfield dated 7 November 2007. Sergeant Bousfield is attached to the Penrith LAC in the substantive position of General Duties Shift Supervisor. Since April 2007, he has been seconded to the North West Metropolitan Region, relieving in the role of Region Training Coordinator. 20 In addition to the applicant, oral evidence was received from Sergeant O'Toole. Sergeant Bousfield's statement was admitted and he was not required for cross examination. 21 As well, the applicant filed the transcript of the Local Court proceedings of 5, 6 and 7 March 2007 in relation to the assault charges. 22 In addition to the Commissioner's Confidence submission, the following statements were filed on behalf of the Commissioner and each gave evidence before me: · Statement of Constable Renee Smith dated 14 November 2007. Constable Smith is currently undertaking general duties at Dubbo Police Station, performing Domestic Violence Liaison duties. Along with (then) Senior Constable Bradley Edwards, Constable Smith attended the Wellington Hotel on the evening of 15 April 2006 following the incident between Mr Flanagan and Mr Amatto. · Statement of Sergeant Bradley Edwards dated 22 November 2007. Sergeant Edwards is currently stationed at Mudgee, undertaking general duties. On 15 April 2006, then as a Senior Constable, Sergeant Edwards, with Constable Smith, attended the Wellington Hotel incident involving Mr Flanagan. · Statement of Chief Inspector Malcolm Lanyon dated 3 December 2007. He is currently Crime Manager at Mt Druitt LAC. In April 2006, he was Duty Officer at the Penrith LAC. · Statement of Senior Sergeant Andrew Hurst dated 29 November 2007. Senior Sergeant Hurst is currently stationed at Wellington Police Station and has been since September 2005. Relevant factual circumstances and considerations

23 While the two grounds relied upon by the Commissioner to remove Mr Flanagan from the NSW Police are separately identified they were, in a number of respects, part of a continuing episode of behaviour by Mr Flanagan. That is, Mr Flanagan's access of the COPS system during the period identified by the Commissioner was precipitated, in part, by the assault incident at the Wellington Hotel involving Mr Amatto. Additionally, there is evidence of Mr Flanagan undertaking unauthorised COPS accesses independent of the Wellington Hotel incident during the period specified. 24 Counsel for Mr Flanagan identified the following grounds as establishing that Mr Flanagan's removal was, in all the circumstances, too harsh: (i) In light of his record as a police officer;

(ii) in light of the circumstances of the assault itself, in particular what immediately preceded it in the gaming room;

(iii) Mr Flanagan's acknowledgement of his misjudgment in relation to that incident and his acknowledgement of the role that alcohol played in that;

(iv) while acknowledging its seriousness, the COPS accesses in all the circumstances were not sufficiently serious to justify the sanction of dismissal;

(v) Mr Flanagan in his evidence demonstrated an understanding, now, at least, that his accesses, or at least some of them, were inappropriate and contrary to policy, and would not be repeated if reinstated. Mr Flanagan understood then that what he was doing was not regarded as acceptable conduct; and

(vi) the personal consequences for Mr Flanagan of his dismissal. 25 Turning in the first instance to the assault incident. As earlier indicated, it occurred at the Wellington Hotel on the evening of 15 April 2006. Mr Flanagan was at the hotel with his partner, Ms Alexis Humphries and Ms Humphries' father, Mr Ian Humphries and two other people. 26 Mr Flanagan was not a stranger to Wellington. He had been stationed in the area for some fourteen months, finishing in February 2005. It was during that posting that he met Ms Humphries. From that posting he went to Penrith Police Station where he was working at the time of his removal. 27 On 15 April 2006, Mr Flanagan and Ms Humphries travelled to Wellington to visit Ms Humphries' family. That weekend was part of the Easter break and Mr Flanagan was not due back on duty until Wednesday, 19 April 2006. Mr Flanagan and Ms Humphries remained in Wellington until Tuesday, 18 April 2006. 28 Before his arrival at the Hotel at about 9:00pm on 15 April 2006, Mr Flanagan had already consumed a number of pre-mixed spirit drinks. 29 It was during his visit to the Hotel that Mr Flanagan encountered Mr Amatto and Mr Wade Hynch. From his prior service in the area, Mr Flanagan knew of Mr Amatto as a person with a known criminal history. According to Mr Flanagan: [8] ... I knew Mr Amatto from my period working at Stuart Town. He was well known to local police. I was aware he had a history of violence and drug use. I believe I had myself charged (and I think arrested) him once during my time in Stuart Town and that I had spoken to him on a number of occasions in the course of my duties. I was broadly aware of his criminal history. 30 In essence, the circumstances in which Mr Flanagan encountered Mr Amatto are not significantly in dispute. Approximately one hour after his arrival at the hotel, Mr Flanagan left the bar area where he had been drinking and went to the gaming room of the Hotel to play the card machines. Mr Amatto was also there doing the same thing, some four to five machines away from Mr Flanagan. 31 Mr Amatto also knew Mr Flanagan. He knew he was a police officer and that he had been stationed in the Wellington area some time before. 32 Ultimately, Mr Amatto initiated conversation between he and Mr Flanagan. It was in the course of that conversation that Mr Flanagan asserts Mr Amatto made threatening and derogatory comments to him on the basis of his position as a police officer. It was submitted on behalf of Mr Flanagan that what was said by Mr Amatto to Mr Flanagan in the gaming room was such as to establish in Mr Flanagan's mind a fear for his physical well being at the hands of Mr Amatto. Such a frame of mind, it was said, triggered Mr Flanagan's precipitate assault on Mr Amatto when he later encountered him in the foyer of the Hotel. 33 In particular, Mr Flanagan asserted that Mr Amatto said words to the effect 'all you coppers should be gutted' and 'you're all dogs'. Further, Mr Flanagan says that Mr Amatto, when challenged by him as to what he had said, stated 'I'm just saying all you coppers should be stabbed, you're all nothing but dogs' as well as 'I'm just saying watch your back you mutt - I'll gut you'. 34 In his evidence before the magistrate in the Local Court assault proceedings, Mr Amatto vehemently denied saying words to the above effect. He was not called in the proceedings before me and I have accordingly had regard to the transcript of those proceedings. In that transcript, Mr Amatto acknowledged that he did initiate a conversation between he and Mr Flanagan. He further admitted he was 'pretty drunk' that evening and that his recollection of events was not as clear as it otherwise might have been. Notwithstanding that, he vigorously denied making the threatening and derogatory comments that were attributed to him by Mr Flanagan. He stated that Mr Flanagan, together with a group of some other persons in the gaming room, unidentified, had made offensive and derogatory comments towards him, referring to him as a 'black scoundrel' and other like words in an offensive tone. 35 In denying he said the words attributed to him by Mr Flanagan in the gaming room, Mr Amatto stated that it would be unlikely he would make such threats in a public place to a known police officer. That is, he knew Mr Flanagan was a police officer. For him to make such direct and highly threatening comments to Mr Flanagan in the public circumstances Mr Flanagan alleged would be doing nothing except inviting trouble for himself. 36 There was no other corroborating evidence from any other person who may have been in the gaming room that evening as to the precise nature of the words used by Mr Amatto towards Mr Flanagan or vice versa. 37 There was one person who was present in the gaming room that evening who gave evidence in the Local Court proceedings. That was Mr Christopher Thompson. Mr Thompson was the publican of the hotel. At the time Mr Flanagan and Mr Amatto were in the gaming room, he also went in there to collect glasses and the like. During the time he was there, he became aware of raised voices, including that of Mr Flanagan as well as that of Mr Amatto. Whilst he was unable to recollect what was said, he formed the view, judging by the tone of the voices, that the situation between the two men might escalate into something more. According to his evidence in the Local Court, it was the tone of Mr Flanagan's voice that troubled him more than that of Mr Amatto's. 38 Because of his concern about the potential of the argument to escalate, he returned to the bar and spoke to Mr Flanagan's partner, Ms Alexis Humphries. He advised her of his concern about Mr Flanagan being involved in a heated argument. Mr Daniel Blackall was also in the bar area drinking at the time Mr Thompson returned and spoke to Ms Humphries about his concern. According to Mr Blackall, Mr Thompson, amongst other things, asked Ms Humphries whether Mr Flanagan had 'a short fuse' to which Ms Huimphries replied 'yes'. In her evidence before the Local Court, Ms Humphries denied Mr Thompson had asked such a question but did agree he had raised his concern with her about Mr Flanagan's involvement in an argument in the gaming room with a potential, in Mr Thompson's opinion, for it to escalate. 39 I note that in the Local Court proceedings, Mr Thompson gave his evidence before Mr Blackall. No steps were taken to recall Mr Thompson to confirm or otherwise Mr Blackall's recollection of Mr Thompson's question to Ms Humphries as to the nature of Mr Flanagan's temper. Accordingly, it is not possible to be satisfied to the requisite standard. 40 If anything, Mr Blackall's evidence corroborates that of Mr Thompson which was that Mr Flanagan's voice and tone was of concern to Mr Thompson. It caused him to believe, if it was to continue, it had the potential to tip over into something more serious. In short, Mr Flanagan was not simply at the receiving end of verbal abuse from Mr Amatto but was actively engaged in a verbal confrontation with Mr Amatto. 41 As the evidence disclosed, there was CCTV monitoring of the gaming room that was relayed to a screen in the bar. However, that footage was not obtained as part of the subsequent police investigation into the assault incident. 42 Considering the evidence of Mr Flanagan and Mr Amatto and, in particular, taking Mr Thompson's evidence into account, the conclusion I come to is that an argument erupted between Mr Flanagan and Mr Amatto in the gaming room in which abusive and derogatory comments were made by both men. I am satisfied the argument between the two men in the gaming room would have created some tension between them. 43 Whether, in the light of what subsequently occurred, the events in the gaming room represented extenuating circumstances such as to mitigate Mr Flanagan's subsequent behaviour towards Mr Amatto is another matter. 44 There are, I believe, some concerns arising about Mr Flanagan's subsequent actions relating to his assault on Mr Amatto, his explanation for those actions, his reporting of it at the time as well as later written reports. Let me explain. 45 In evidence that is not disputed, Ms Humphries did come into the gaming room following Mr Thompson's comments to her to enquire as to what was occurring with Mr Flanagan. There was a conversation between her and Mr Flanagan in which he said he recounted to her what had occurred between him and Mr Amatto and the threats he (Mr Amatto) had allegedly made. Mr Amatto had left the gaming area by this stage and gone to the bar area of the Hotel. Ms Humphries left the gaming room and returned to the bar area. Mr Flanagan remained in the gaming room. A short time later, Ms Humphries returned to the gaming room and said Mr Amatto was having a 'blue' with the publican in the bar. As well, in her evidence before the Local Court, Ms Humphries asserted she had observed Mr Amatto in the bar pointing to the CCTV screen showing Mr Flanagan in the gaming room as he stated he was 'going out to give it to this copper dog cunt'. 46 According to Mr Flanagan, a decision was made to leave the Hotel before any more trouble erupted. Accordingly, Mr Flanagan and Ms Humphries went to collect the remainder of their party from the bar area and to depart for the night. In doing so, it necessitated them leaving the gaming room, walking from there across the main foyer area of the Hotel into the bar area. 47 Fortunately, there was CCTV footage of that main foyer area available to the Court which is where the altercation between Mr Flanagan and Mr Amatto and subsequently Mr Hynch occurred. 48 According to Mr Flanagan's statement: [16] ... Mr Amatto first came out of the main bar and into the foyer area where I and Alexis were walking. I recall he came out of the front bar into the foyer quickly and was walking towards us, and I recall thinking that he was moving in towards me. I recall he had an aggressive look on his face when he looked towards me. I noticed he had something in his hand and had his right arm bent, but I didn't know what he was holding at the time.

[17] I had been arguing with him and he had made threats towards me, and Alexis had just told me that he had said he was coming out to "give it" to me and so when I perceived him to be coming quickly towards me with something in his hand I felt threatened and reacted . As can be seen from the CCTV footage, I pushed into Mr Amatto with my body and arm when we first came into contact with one another in the foyer area. (emphasis added) [18] I pushed into him because at the time I believed he was coming at me in a threatening manner and I wanted to put some distance between him, and me and Alexis. ... 49 In his written submission to the Commissioner of 1 August 2007 and his evidence before me, Mr Flanagan maintained he was acting in self defence and that Mr Amatto was the aggressor in relation to the incident in the foyer. 50 Before turning to the evidence disclosed by the CCTV footage, Mr Flanagan's assertion in evidence before me that he still believed Mr Amatto was the aggressor is somewhat at odds with his statement in his submission to the Commissioner of August 2007 in which he said: As was my right as a citizen, I defended the charges and had my 'day in Court'. I have accepted the learned Magistrate's decision as to culpability. 51 It is not entirely clear what Mr Flanagan means in the above statement as to 'accepting the Magistrate's decision as to culpability'. If anything, that statement would suggest to me that he accepts the findings made by the Magistrate who rejected his argument as to self defence and found his actions constituted an assault on Mr Amatto and Mr Hynch. 52 In his statement of 7 November 2007, Mr Flanagan acknowledged he made the first physically aggressive move towards Mr Amatto. In doing so, he put his actions into context as follows: [16] ... Mr Amatto first came out of the main bar and into the foyer area where I and Alexis were walking. I recall he came out of the front bar into the foyer quickly and was walking towards us, and I recall thinking that he was moving in towards me. I recall he had an aggressive look on his face when he looked towards me. I noticed he had something in his hand and had his right arm bent, but I didn't know what he was holding at the time.

[17] I had been arguing with him and he had made threats towards me, and Alexis had just told me that he had said he was coming out to "give it" to me and so when I perceived him to be coming quickly towards me with something in his hand I felt threatened and reacted. As can be seen from the CCTV footage, I pushed into Mr Amatto with my body and arm when we first came into contact with one another in the foyer area . (emphasis added) 53 In short, while accepting he assaulted Mr Amatto, Mr Flanagan has maintained that his actions should be perceived through the prism of Mr Amatto's physically threatening remarks in the gaming room. It is those remarks, as I understand it, that constitute the extenuating circumstances relied upon by Mr Flanagan to mitigate his later behaviour towards Mr Amatto and Mr Hynch. 54 Mr Flanagan did initially appeal both his conviction and penalty to the District Court. Ultimately, his appeal against conviction was not pursued and he proceeded on severity grounds only. In his evidence before me, he was asked the following question: Q. Do you still maintain to her Honour today in this witness box in this courtroom that you were acting in self-defence of the actions of Mr Amatto in the hotel, Saturday 15 October 2006?

A. It was before, it was in self-defence, what I stated earlier, but now I've come to review the information on that CCTV and I accept that I made some errors in judgment, and that's why I'm here to try to press, to get my old employment, job back. 55 In my view, having viewed the CCTV footage as to what occurred in the foyer area of the Wellington Hotel on 15 April 2006, initially between he and Mr Amatto, Mr Flanagan was clearly the aggressor. 56 The CCTV footage of that altercation shows that, at the relevant time, Mr Flanagan and Ms Humphries entered the foyer area from the left of the screen, exiting what I understand is the gaming room. At about the same time, Mr Amatto entered the foyer from the bar which is on the right of the screen. Mr Amatto is shown clearly carrying two cans in his right hand. As they approach each other, Mr Flanagan pushed into Mr Amatto with his left shoulder and arm, causing Mr Amatto to be pushed backwards. Mr Flanagan then turned and faced Mr Amatto. 57 Mr Flanagan then raised his left arm, grabbed and then pushed Mr Amatto somewhat violently by his (Mr Amatto's) t-shirt. He then pulled Mr Amatto towards him then pushed him away and continued to do so with increasing force. At this point, Ms Humphries is almost totally obscured from view by the two men. 58 At some point shortly thereafter, Ms Humphries attempted to place herself between Mr Flanagan and Mr Amatto but she was swept aside by Mr Flanagan's pushing and pulling of Mr Amatto by his t-shirt. At that point, Ms Humphries turned away and walked out of the foyer, presumably to get the help that later appears. 59 With just the two protagonists in the foyer area, Mr Flanagan then pushed and shoved Mr Amatto with enough force to move both men from the middle of the foyer to the door leading to the gaming room where Mr Amatto was shoved against the wooden door frame and pinned to it by Mr Flanagan. Mr Amatto still had two cans in his right hand and his left arm was still by his side. Shortly after, Mr Amatto pushed forward from the door frame and pushed Mr Flanagan forward with his left hand towards the centre of the foyer and broke Mr Flanagan's hold. He was still holding two cans in his right hand. Mr Amatto has his back to the screen and almost totally obscures Mr Flanagan but both of Mr Flanagan's hands are raised towards Mr Amatto. 60 Shortly thereafter, Ms Humphries emerged from the door to the bar and walked to the two men. She appears to talk to Mr Flanagan, tapping him on the back, attempting to restrain him by holding his arm. Mr Amatto grabbed Mr Flanagan by the t-shirt with his left hand. At this point, Ms Humphries and an unidentified woman attempted to intervene, both verbally and physically, between the two men. Also at this point, Mr Humphries, Ms Humphries' father, entered the foyer from the bar. What followed then is a continuing melee involving Mr Flanagan, Mr Amatto, Mr Humphries and ultimately Mr Wade Hynch who intervened on behalf of Mr Amatto. During that melee, Mr Flanagan can be observed punching Mr Wade Hynch. 61 Putting aside for the moment the precise circumstances that follow once other people become involved, there is no dispute the CCTV footage clearly discloses Mr Flanagan making the first physically aggressive move towards Mr Amatto. Further, it is abundantly clear Mr Amatto was holding two cans in his right hand. It was some time before Mr Amatto raised his left hand, not in any way to punch Mr Flanagan but seemingly in an attempt to push him away when he was pinned against the door area leading to the gaming area. 62 Given Mr Flanagan's actions, the question arises as to whether what occurred between Mr Flanagan and Mr Amatto in the gaming room amounts to extenuating circumstances such as to mitigate Mr Flanagan's overall culpability for the subsequent assaults, placing them, as was submitted, at the lower range of seriousness for those types of offences. 63 Notwithstanding the somewhat double edged position Mr Flanagan adopted in his evidence before me, that is, on one hand Mr Amatto was the aggressor but on the other hand he accepted the Magistrate's findings as to his culpability, it is difficult, in the first instance, to see how, in light of the evidence, Mr Flanagan could maintain a position of self defence. In other words, in his confrontation with Mr Amatto in the foyer area, nothing in the CCTV footage discloses Mr Amatto exhibited any action that suggested he was intending to be physically violent towards Mr Flanagan. In his right hand there were two cans of drink and at no time did his left hand do anything other than remain largely by his side until such time as he used it to try and push Mr Flanagan away. 64 Mr Flanagan asserted, because of what had been said between them in the gaming room, he believed Mr Amatto was possibly contemplating an attack upon him. The basis of his fear of attack by Mr Amatto was Mr Amatto's threats in the gaming room that he would 'stab' or 'gut' Mr Flanagan. However, on an overall consideration of the evidence on that issue, I have some difficulty in accepting Mr Amatto's argument with Mr Flanagan in the gaming room contained such explicit and physically threatening words. There was certainly a verbal argument between them. On the evidence of the publican, Mr Thompson, it would seem that Mr Flanagan was being verbally as aggressive, if not somewhat more so, than Mr Amatto was. As best as I can determine, words were exchanged and insults may well have been traded. 65 If, as asserted by Mr Flanagan, Mr Amatto did utter direct and serious threats to 'stab' or 'gut' him, such threats should have triggered in Mr Flanagan, as a police officer, a reaction that was designed to ensure he removed himself as a matter of priority from anywhere in the vicinity of Mr Amatto and report Mr Amatto's comments to the local police. Nevertheless, both men were intoxicated and, on Mr Flanagan's part, his judgment as to such a response may have been somewhat impaired. According to Mr Flanagan, he was mildly to moderately affected by alcohol. 66 When the fight erupted involving Mr Flanagan, Mr Amatto and others at the Wellington Hotel, the publican, Mr Thompson, called the local police. It should be noted, as I understand it, Ms Humphries also called the police, but at a time after Mr Thompson. In any event, two police officers attended the incident as a result of Mr Thompson's call. They were, at that time, Senior Constable Bradley Edwards (now Sergeant) and Constable Renee Smith. At that time they spoke with both Mr Amatto and Mr Flanagan but neither Senior Constable Edwards nor Constable Smith made any contemporaneous notes of their conversations with Mr Flanagan or Mr Amatto in their notebooks. Rather, they both produced statements of their recollection of the events sometime afterwards. Senior Constable Edwards' statement is dated 1 June 2006 and Constable Smith's statement is dated 31 May 2006. 67 Sergeant Edwards acknowledged it was possible that there may have been some aspects of his conversation with Mr Flanagan that did not ultimately appear in his statement. Nevertheless, he believed what he put in his statement was pertinent to the incident as he recalled it. In somewhat similar terms Constable Smith acknowledged likewise. 68 Putting aside Senior Constable Edwards' statement for the moment, he did make a contemporaneous record of the event. As the senior officer attending the incident and as Mr Flanagan was an off-duty but serving police officer, he was required to report the incident to relevant senior officers. He reported in the first instance to Inspector Alan Cusack, the then duty officer of the Orana LAC. He also reported the incident to Senior Sergeant Hurst who was the police officer in charge of the Wellington Police Station. Both of those reports were made verbally during his shift. As well, on the morning of Sunday, 16 April, prior to finishing his night duty shift, Senior Constable Edwards sent a written report to Inspector Cusack, a copy of which was sent to Senior Sergeant Hurst. Relevantly, that report stated as follows: I spoke with Constable Flanagan who informed me that he had been abused by Amatto and that he had attacked him and that he had been assaulted. He stated he was unsure if he wished to make a complaint at that stage ... To this time, 6:10am Sunday 16 April no one has made a complaint of any kind. I have created a COPS event in relation to the matter and will be guided by any complaints that come to hand. 69 The COPS entry made by Senior Constable Edwards at the time was relatively brief and simply noted that an altercation had taken place involving a number of persons at the Wellington Hotel, that police have obtained the names of all persons involved and had viewed the CCTV capture of the incident. It also confirmed that no complaints had been received at the time that entry was made and enquiries were continuing. 70 There were subsequent entries made into the COPS system involving this matter, particularly the attendance on or about midday, 16 April 2006 when Mr Amatto's mother attended the Wellington Police Station. According to the COPS entry made at that time, she advised the police her son had been assaulted by Mr Flanagan and that he would be making a formal complaint about the incident after receiving advice from the Western Aboriginal Legal Service. 71 What is of concern, in my view, is that in neither of his written reports about the incident, compiled relatively contemporaneously by Senior Constable Edwards, is there any mention that Mr Flanagan complained that Mr Amatto had threatened to 'stab' or 'gut' him or to stab police officers generally. Such a threat, if made, is a very serious one. It is difficult to accept, if it had been made in the terms as asserted by Mr Flanagan, he would not have told Senior Constable Edwards or Constable Smith. It was, after all, the issue that was central to Mr Flanagan's behaviour towards Mr Amatto. That is, a known criminal with a history of violence had threatened Mr Flanagan and police generally in the most threatening and explicit of terms. 72 Nothing was put to Senior Constable Edwards to suggest Mr Flanagan had reported threats in such terms to him. Further, I do not believe, if he had, that Senior Constable Edwards would not have made mention of that in his written report to Inspector Cusack on the morning of 16 April 2006, before he went off duty. I also believe he would have made mention of it in his initial COPS entry about the incident and his subsequent statement. 73 The fullest extent of the substance of Mr Flanagan's report of events between he and Mr Amatto on 15 April 2006 is recorded by Senior Constable Edwards in his statement of 1 June 2006 relevantly as follows: [8] I said, "What has happened?" FLANGAN said, "I was here having a good time when some bloke came in playing the poker machines. He looked at me and started calling me names, and yelling stuff at me because he knew I was a Police Officer. I tried to ignore him but I was worried he would start on Lexi. I got up after he left and Lexi and I walked into the bar area. He walked past and I didn't know if he had something in his hand or not so I shoved Lexi out of the way and we got into it. The next I knew this big aboriginal bloke grabbed hold of me and we got into it as well. Everyone jumped in and Ian came in and they threw the bloke out. He smashed the window on the way out.' I said, "Were you assaulted?" FLANAGAN said, "Yeah, by both of them." I said, "Do you wish to make a complaint?" FLANAGAN said. "Not yet, I'll think about it," I said, "If you do wish to make a complaint let me know." ... 74 As is evident on a reading of the above extract, the highest point of Mr Flanagan's response to Senior Constable Edwards' question as far as complaining about Mr Amatto's behaviour in the gaming room was that Mr Amatto 'looked at me and started calling me names and yelling stuff at me because I was a police officer.' Such a report is a far cry from Mr Flanagan's formal complaint in the Intelligence Report prepared by him some three days later, or his later statement in these proceedings that Mr Amatto had threatened to 'stab' and 'gut' him and to stab police generally. 75 It is only when those threats are asserted by Mr Flanagan that they put into context his statement that Mr Amatto 'may have had something in his hand' that caused Mr Flanagan to be concerned. In other words, if Mr Amatto had not physically threatened him in such terms, Mr Flanagan would presumably have had no cause to believe Mr Amatto would have had anything threatening in his hand. 76 In my view, if Mr Flanagan, at that time, genuinely held a belief that Mr Amatto had something in his hand together with his alleged earlier threats to 'gut' or 'stab' Mr Flanagan, the first thing Mr Flanagan would have done when the local police arrived would have been to tell them that. Such a sequence of events is the crux of Mr Flanagan's claim of self defence. That is, given the prior threats of serious physical violence towards him by Mr Amatto, a known criminal, he undertook as it were, a preemptive strike. 77 That no report in such terms was made at the very first opportunity is compelling, in my view, as to the inference that arises. That is, that no threats in such terms were made by Mr Amatto towards Mr Flanagan on 15 April 2006. As well, Mr Flanagan's report to Senior Constable Edwards that Mr Amatto 'may have had something in his hand' is elevated in his Intelligence Report three days later that, in the foyer, he believed Mr Amatto 'had returned to carry out his threat and that he may have had a knife'. It is difficult to accept that if Mr Flanagan genuinely believed Mr Amatto 'may have had a knife' he would have initiated his aggressive behaviour towards Mr Amatto in the way he did. Overall, I believe Mr Flanagan significantly overstated the extent of any statements made by Mr Amatto to him in the gaming room as well as his belief as to what Mr Amatto may have had in his hand when he encountered him in the foyer. 78 Further weight is given to such a conclusion when it is remembered that Mr Flanagan took no steps to initiate any formal complaint of his own volition by attending Wellington Police Station on 16 or 17 April 2006. In my view, any police officer who has had such a serious threat of physical violence made towards him and/or police generally, as alleged by Mr Flanagan, would, in normal circumstances, ensure such threats were conveyed to the local police. That Mr Flanagan did not do so when he had the opportunity to do so weighs adversely against him when accepting the truth or otherwise as to the extent of any threats made by Mr Amatto on the night in question as well as Mr Flanagan's asserted belief that his physical wellbeing was so threatened by Mr Amatto and what he might do that Mr Flanagan was justified in initiating his assault on Mr Amatto. 79 On this issue, there was an addendum made by Senior Constable Edwards to his statement dated 5 July 2006 in which he stated as follows: It has been raised that there may of been an arrangement made by attending Police (Myself and Constable Renee SMITH) to attend the premises of FLANAGAN's Father In Law the following day, to receive a complaint, and Police did not attend.

COMMENT: At no time did I suggest that I would attend Ian HUMPHRIES home the following day to take a report. The following day, which was a Sunday, I was on a rest day after night shift and would not be returning to duty for several days. To clarify this issue I was informed by Ian HUMPHRIES that his brother Phillip, who is a musician, would be performing for the first time live at the Hotel at lunchtime on that day, and I should come along and listen to him. On that day I did not go to the Hotel, and have not been to the Hotel other than in an official capacity as a Police Officer. Since this incident I have not been to Ian HUMPHRIES home. At no time, apart from a memo that was sent to me by Constable FLANAGAN a few days later, did 1 ever receive a complaint from him in relation to this matter. 80 The above addendum to Senior Constable Edwards' statement was added, as I understand it, because of the assertion made by Mr Flanagan and maintained in evidence before me that, on the evening of 15 April, when Senior Constable Edwards and Constable Smith attended the Hotel, Senior Constable Edwards agreed he would come and see Mr Flanagan at Mr Humphries' house the next day and take a statement from him, inferring that, at that time, Mr Flanagan had confirmed he wished to lodge a formal complaint. 81 As the above addendum confirms, Senior Constable Edwards denies such an undertaking was given by him and, to the best of his recollection, he maintained that view in evidence before me. 82 I have to say that I prefer the evidence of Senior Constable Edwards to that of Mr Flanagan on this issue, particularly given, as he maintained, Sunday, 16 April was the commencement of his off-duty time. 83 Even if I am wrong as to that view, there is no evidence to suggest that it was not possible for Mr Flanagan himself to attend Wellington Police Station on Sunday, 16 April or Monday, 17 April or even perhaps early on 18 April to confirm his formal complaint and make a statement. At that time, Mr Flanagan was a serving police officer. He knew where the Wellington Police Station was. He knew the procedure for lodging a complaint. He knew that, if he wanted to, it was within his right to attend the Wellington Police Station over that period and ensure that his complaint had been formally lodged and to provide a statement. That would have been the most natural thing to do, it seems to me, if he was insistent that his complaint be formalised and followed up and Senior Constable Edwards had undertaken to attend and take a statement and did not do so. 84 There was no good reason why Mr Flanagan was incapable of pursuing the issue on his own behalf. He was after all, by his account, the alleged victim of assault. As well, by his account, he had not only been assaulted but his physical wellbeing and that of police generally had been very seriously threatened by a person with a known criminal history in a way that behoved him report it. 85 That fact in itself would lend support to two compelling inferences. The first is that, at the time the incident occurred and in the couple of days that followed, while he remained at Wellington, Mr Flanagan was, at best, equivocal about whether he wished to formally complain about the incident involving Mr Amatto at the Wellington Hotel on 15 April 2006. The second is the one I have already identified in para [78] above. 86 Overall, I am not persuaded on the evidence, at the time Mr Flanagan was spoken to by Senior Constable Edwards and Constable Smith at the Hotel on the evening of 15 April, he unequivocally stated he wished to make a formal complaint and provide a statement. Further, I am not persuaded, at that time, Senior Constable Edwards undertook to attend on Mr Flanagan at his residence on Sunday, 16 April in order to take a statement from him. 87 It is in relation to the nature of the alleged threats made by Mr Amatto towards Mr Flanagan in the gaming room of the Wellington Hotel that, in part, gives rise to Mr Flanagan's COPS access issue. 88 On that basis, it is appropriate at this point that I deal with the sequence of events that occurred once Mr Flanagan returned to work on 19 April 2006. 89 There is no dispute that Mr Flanagan reported for duty between 5:30 and 5:45 on the morning of 19 April. He was officially due to commence work at 6:00am that day. His Duty Officer at that time was Chief Inspector Lanyon. According to Mr Flanagan, shortly after 6:00am, he spoke with Chief Inspector Lanyon and advised him of what had occurred at Wellington on 15 April 2006. According to Mr Flanagan, his actions when reporting for duty were as follows: [32] I returned to work after the long weekend on 19 April 2006. When I returned to work I accessed the COPS system, as I do at the start of every shift, and reviewed the Wellington area station summaries. I had spoken to the Duty Officer, Inspector Lanyon, before I logged onto the COPS system and looked at the station summaries, and I spoke to him again later. I say that because I recall having to go past his office when I came out of the change rooms when I first got there in the morning. I know I spoke to him as I went past his office on the way down to the Charge Room where I was working that day. I spoke to him because he was the Duty Officer on and I wanted to inform him of what had happened and to ask for his advice on what I should do about reporting it. I believe I spoke to him about the incident at that time and he said words to the effect of " have a look on the station summaries and see if they have done an event and come back to me ".

[33] I then went and looked at the station summaries and later that morning I went back to Inspector Lanyon to advise him and ask for his advice about reporting it.

[34] Inspector Lanyon advised me that in light of the threats that Mr Amatto made towards me, as I had described them to him, it was appropriate to compile an Information Report (which we sometimes call an Intelligence or an Intel Report) to make the local police aware of the threats and to call and speak to the investigating police. ... 90 There is dispute between Mr Flanagan and Chief Inspector Lanyon as to the sequence of events that led to the preparation of the Intelligence Report prepared by Mr Flanagan on that day. In the first instance, Chief Inspector Lanyon agreed he did advise Mr Flanagan to prepare such a report but he says that the first conversation he had with Mr Flanagan was at 6:40am on that day and not, as asserted by Mr Flanagan, at about 6:00am when he went past Chief Inspector Lanyon's office on his way to the Charge Room. 91 Chief Inspector Lanyon gave evidence before me and was questioned about that. He was quite emphatic about the time of his conversation with Mr Flanagan. His recollection was reinforced by his contemporaneous notes taken at the time and the production of his diary recording such a conversation. The notes discloses that at 6:40am on 19 April 2006, Chief Inspector Lanyon spoke with Mr Flanagan about the incident that occurred at the Wellington Hotel on 15 April 2006. Those notes are relatively comprehensive. 92 According to Chief Inspector Lanyon, he had two conversations with Mr Flanagan on 19 April 2006. The first occurred at 6:40am on that day as his notes confirmed. In that conversation, Mr Flanagan officially raised for the first time that Mr Amatto had threatened him and police generally in the Wellington Hotel in terms such as 'All you coppers need to be stabbed' and 'I'd gut you copper dog'. 93 According to Chief Inspector Lanyon, having spoken with Mr Flanagan on the first occasion, he advised Mr Flanagan to contact the police in charge and follow it up 'as any member of the public could do'. As well, he subsequently advised Superintendent Feszczuk of the Penrith LAC as to his conversation with Mr Flanagan and the advice he had given him. He said he subsequently spoke with Mr Flanagan later that day at which point Mr Flanagan advised he had not been able to get in touch with either Senior Constable Edwards or Constable Smith, the officers who had attended the incident at the Wellington Hotel on 15 April 2006. According to Chief Inspector Lanyon, he advised Mr Flanagan to continue to attempt to contact those officers and, in the meantime, having regard to the nature of the threats of violence made by Mr Amatto towards police generally, it was appropriate for Mr Flanagan to create an Intelligence Report setting out the nature of the threats allegedly made for the information of officers who may come in contact with him (Mr Amatto). 94 Despite being vigorously cross examined, Chief Inspector Lanyon was quite emphatic that his conversation with Mr Flanagan occurred at 6:40am and not at 6:00am as asserted by Mr Flanagan. He was able to describe, to the best of his recollection, the events surrounding that conversation. 95 By reference to annexure A of this judgment, that is, the relevant COPS access summary of Mr Flanagan, particularly that made on 19 April 2006, it can be seen that the first COPS access made by Mr Flanagan on that day was at 6:04am followed by three others in relatively rapid succession culminating in the one concerning the Wellington Hotel assault incident at 6:05am. According to Mr Flanagan, as is evident by reference to para [32] of his statement set out above, he spoke to Chief Inspector Lanyon before he accessed the COPS system. 96 Having considered this matter and heard the evidence, I prefer the evidence of Chief Inspector Lanyon to that of Mr Flanagan. In my view, the inference is very strong that when Mr Flanagan commenced work at or about 6:00am on 19 April 2006, he immediately accessed the COPS system to ascertain whether or not any complaint had been lodged about the incident involving he and Mr Amatto at the Wellington Hotel on 15 April. Bearing in mind that up to this point, notwithstanding Mr Flanagan's assertion that Senior Constable Edwards was to take a statement from him, Mr Flanagan had done nothing to initiate any action on his own behalf to formalise a complaint against Mr Amatto or to make a formal statement to the Wellington Police. 97 In my view, Mr Flanagan had good reason to hope that no formal complaint would be lodged by Mr Amatto. Further, he was content to allow that situation to continue because he knew, as a serving police officer involved in an off-duty incident such as that involving he and Mr Amatto, considerable work related problems would arise for him. In other words, it was in his interest to have no complaint made and not to lodge any complaint against Mr Amatto. 98 The inference is compelling that once Mr Flanagan accessed the COPS system on 19 April and saw the entries that had been made, particularly the entry made on Sunday, 16 April indicating Mr Amatto did intend to lodge a complaint, it was essential he take steps to place his recollection of events on the record in order to protect his position. It was at that point, I believe, he put in place the chain of events commencing with his conversation with Chief Inspector Lanyon and the subsequent preparation of the Intelligence Report. That requires consideration of the Intelligence Report and what flowed from that. 99 In that report, Mr Flanagan formally detailed threats by Mr Amatto to stab off-duty police. In relation to his own encounter with Mr Amatto, he relevantly reported in writing as follows: At the stated time, date place, the Officer was in the gaming room playing a machine. The POI was seated about 5 metres away and began harassing the Officer. At the time the Officer was not on duty and in civilian clothing. The Officer previously worked in the Wellington Sector for a period of 14 months, ending February 2005. The Officer has had numerous dealings with the POI in the course of his duties.

The POI made comments such as "Copper dog, what you doing here." The Officer attempted to avoid confrontation by stating that he is no longer working as a police officer in the area and he was just visiting friends. The POI then made statements, "Copper dogs should all be stabbed. Watch your back dog ... I'll gut you mutt'.

The POI appeared intoxicated and began talking fast, repeating himself numerous times with remarks similar to that of stabbing police.

The Officer stated to the POI, 'leave it alone, just go ...'

The Officer began feeling uncomfortable in the secluded gaming room fearing a possibility of the POI carrying out his threat to 'stab him'.

The Officer and companion walked from the gaming room into the foyer which leads to the public bar.

The POI was walking from the public bar towards the gaming room and entered the foyer area at the same time the Officer was about to exit the foyer. The POI appeared aggressive with an aggressive facial expression. The POI moved close into the personal space of the Officer causing the Officer fear. The Officer was concerned the POI had returned to carry out his threat and that he may have had a knife. The Officer observed an object in the POI's hand and due to the Officer talking to his companion at the time, the Officer's and POI's shoulders collided and the Officer pushed the POI with the same shoulder away to gain some distance away from the POI. The Officer took hold of the POI's t-shirt and stated 'Don't do it.' The POI yelled 'Come on dog, I'll gut you.' ... 100 That report mentions for the first time, assertions by Mr Flanagan that Mr Amatto physically threatened to 'gut him' and, as the tone of the Intelligence Report confirms, Mr Amatto also made general threats in relation to police contained within the phrase "Copper dogs should all be stabbed. ....' 101 On any view, such threats are extremely serious when made by a member of the public to a police officer. They are even more serious when made by somebody such as Mr Amatto who, as Mr Flanagan knew at the time he (Mr Amatto) allegedly said those words, had a known and relatively lengthy criminal history. That criminal history predominantly consisted of property and motor vehicle offences but also included physical violence offences such as common assault, breach of apprehended violence orders and, in 2001, assault occasioning actual bodily harm. As earlier stated, if such statements as asserted to have been made by Mr Amatto in the circumstances detailed by Mr Flanagan had been made in such explicit terms, they would, in my view, warrant immediate reporting. That is, when Senior Constable Edwards and Constable Smith attended the Wellington Hotel on the evening of 15 April 2006. 102 The only corroborative evidence that supports Mr Flanagan as to what Mr Amatto allegedly said to him in the gaming room prior to the assault incident was Ms Humphries, his partner. Ms Humphries was not present when the words were allegedly said. Her evidence was that Mr Flanagan told her that was what Mr Amatto had said. According to Ms Humphries, when she went to the gaming room, having been told by Mr Thompson that Mr Flanagan was involved in a verbal confrontation in the gaming room, Mr Flanagan told her Mr Amatto had been 'threatening' him and when asked what Mr Flanagan had said, she stated that Mr Amatto 'had been threatening to stab him'. Having been told such an alarming matter by Mr Flanagan, she said she walked back to the main bar and spoke to her father for a while and that she was 'a little bit concerned'. Nevertheless, she went back to her table in the bar area and sat with her father and others. Further, according to Ms Humphries she subsequently saw Mr Amatto and Mr Thompson, the publican, having an altercation in the bar area. As well, she said, at some point Mr Amatto was pointing to the CCTV screen in the bar area that depicted the gaming room and he allegedly said to Mr Wade Hynch 'that he was going out to give it to this copper dog cunt'. In his evidence before the Local Court, Mr Hynch denied Mr Amatto had made any such statement. According to Mr Hynch, Mr Amatto had earlier, in the gaming room, identified Mr Flanagan to him as a police officer who used to work at Wellington. At that time, according to Mr Hynch, Mr Amatto's tone of voice when he told him that was 'Like he had to watch himself'. 103 There was no corroboration as to the threat allegedly made by Mr Amatto about Mr Flanagan in the bar. Ms Humphries also stated she saw Mr Amatto and Mr Thompson in the bar area and the two of them appeared to be arguing. The evidence of Mr Thompson on this point is instructive in that he was asked in his evidence in the Local Court proceedings as to whether there had been an argument between he and Mr Amatto that night. His evidence was as follows: Q. Was there any argument between you and Mr Amatto that night? A. No, no. Q. Was there any discussion or ...

A. Yeah I spoke to him earlier. He came over and said he put money in the juke box machine and that it didn't play and I said well, I just said to him 'It says there that there's no credit so that's it.' Q. And how did he react to that?

Q. Was he aggressive towards you at that point? A. No. Q. Over that - over the juke box incident?

A. He was annoyed but he wasn't aggressive. Q. Was there any raised voices or ...? A. I think I raised my voice at him just to say if it's not there like the credit on there it's, there's nothing I can do about it. Q. And he never got angry with you? A. Not that I know. I was more angry with him. 104 By leave pursuant to s 38 of the Evidence Act 1995, the prosecutor cross examined Ms Humphries in the Local Court proceedings. Ultimately, it was put to her that she and Mr Flanagan had colluded in relation to certain conversations that he and Mr Amatto had about threatening to be stabbed. She denied that allegation but, in my view, her actions on the night in question when she was allegedly told Mr Amatto had threatened to stab Mr Flanagan, at which point she simply returned to the bar area of the Hotel, belies the expected response of a person whose partner had just told you that he had been threatened to be stabbed by a known criminal. 105 Taking all I have considered into account, I have difficulty in accepting the evidence of Mr Flanagan together with the corroborative evidence of Ms Humphries that Mr Amatto did use the direct and explicit words that he is alleged to have said to Mr Flanagan in the gaming room, threatening to 'gut' and/or stab Mr Flanagan and stab police generally. Further, I accept, to some extent, Mr Amatto's evidence before the Local Court when it was put to him that he had made such threats to Mr Flanagan and he emphatically denied them, pointing out that he knew Mr Flanagan was a police officer and that he would be unlikely to 'take on' a police officer in the terms alleged. There is a ring of truth in that statement given, by that stage, Mr Amatto had a relatively lengthy involvement over many years with the criminal justice system and the police force in particular. 106 Having expressed that view, it has to be acknowledged, as he admitted, Mr Amatto had had an amount to drink that evening and, in such circumstances, may have been less inhibited than he might otherwise have been. Nevertheless, for the reasons stated, I am not persuaded the statements allegedly made by Mr Amatto in such threatening and very serious terms were made to Mr Flanagan. In my view, there was an argument between Mr Flanagan and Mr Amatto on the night in question when both men were verbally antagonistic to each other. However, whatever was said was not such as to constitute the mitigating circumstances Mr Flanagan has asserted in relation to his subsequent assaults on Mr Amatto and Mr Hynch. 107 Given the findings I have made in totality in relation to Mr Flanagan's behaviour concerning the assault issue, I am left to consider Mr Flanagan's conduct as an intoxicated off-duty police officer who precipitately and aggressively assaulted two members of the public on licensed premises. Such conduct cannot be condoned. 108 Mr Flanagan cites a temporary lapse of judgment due to his alcohol intake for his conduct on 15 April 2006. But that is only a part of his overall conduct in relation to his encounter with Mr Amatto. 109 It is my view that in order to justify the subsequent actions he took, Mr Flanagan has significantly overstated what was said by Mr Amatto in the gaming room and what he believed Mr Amatto may do. It is that aspect of Mr Flanagan's conduct that causes me the greatest concern because it strikes at his integrity and his overall credibility. That is, when confronted with a situation that, by his actions, clearly got out of control, he sought to excuse his behaviour in a way that cast adverse aspersions on Mr Amatto. One has to be concerned that a serving police officer was prepared to compromise his integrity on that basis. It does, in my view, weigh heavily against him when public interest considerations are taken into account in the balancing exercise required under s 181F(3) of the Act. 110 I turn now to the COPS access issue generally. As earlier stated, despite the submission to the contrary on behalf of Mr Flanagan, I am of the view that, in part, the assault incident and the COPS access issue are related. The Commissioner's reasons for removing Mr Flanagan made it clear that a crucial factor in Mr Flanagan's COPS access was that he made a number of COPS accesses relating to the incident at the Wellington Hotel involving Mr Amatto as well as accessing Mr Amatto's personal details and criminal record. 111 Consideration of Mr Flanagan's COPS access during the period cited, that being 19 April 2006 until 10 May 2006, reveals that Mr Flanagan's unauthorised COPS access went beyond Mr Amatto and the Wellington Hotel incident. It was submitted, and I think properly so, that to a certain extent, some of Mr Flanagan's COPS accesses in relation to the incident involving Mr Amatto were proper. That is, Mr Flanagan's COPS access in preparing the Intelligence Report that he did on 19 April 2006 relating to the incident with Mr Amatto was, in the circumstances at the time, appropriate. 112 Mr Flanagan's COPS access during the relevant period cited in the Commissioner's reasons is listed in annexure A to this judgment. In his reasons for removal, the Commissioner only relied on Mr Flanagan's COPS access during the period 19 April 2006 to 10 May 2006. As the evidence disclosed, Mr Flanagan had made unauthorised COPS accesses prior to 19 April 2006. 113 The document that is annexure A to this judgment was prepared by Senior Sergeant Hurst when he was investigating the COPS accesses by Mr Flanagan during the period identified in the Commissioner's reasons. Contained within that summary are COPS accesses by Mr Flanagan that are related to the Wellington Hotel incident and some that are not. 114 Before detailing that information, it is necessary to explain a little about the COPS system and the acronyms that appear in the summary that is annexure A. As the evidence is not disputed, it is appropriate for the sake of clarity, to set out that part of Senior Sergeant Hurst's statement as follows: [9] COPS stands for Computerised Operational Policing System. The system contains information including criminal records, intelligence reports, vehicle inquiries, event reports which are of various degrees of sensitivities. All operational police have access to COPS and a limited number of civilian employees have access if relevant to their duties.

[10] Each person has a user ID and a password for entry in to the system. The first screen that appears when logging in contains a warning. Attached and marked C is the warning, which was printed on 19 May 2006 and which was shown to the Applicant during his ERISP about his accesses to the system. [11] The COPS system is an audited system. Each access is to be accounted for by one of two ways: there is an ability to type in a brief "Reason for Access" in the COPS system itself, or the other accepted practice is for operational officers to make an entry in their Note Book regarding the type of access and the reason for it. If an officer types in a "Reason for Access" regarding a search or inquiry, this information is displayed on the printed audited report either above or below the search information.

[12] I set out a brief explanation of the acronyms: (a) SSUM ENQ - this is a station summary enquiry which is a general page displaying one line summaries of every event that has been recorded within a 24 hour period; (b) Change Over event - this is an occurrence only event that is produced by an evening shift at the completion of their shift, setting out a summary of the shift, any matters that need to he followed up by the morning shift, or general information for the morning shift; (c) HVP Summary - this relates to records of particular patrols of targeted areas to reduce crime e.g. such as parks or schools for vandalism. (d) Business Inspection - this is the COPS classification for an inspection of certain types of business. For the purpose of the synopsis created for this investigation, the "Business Inspection" events related to Licensed Premises only. (e) PERFlND - a search for a person by name. This search function involves a specific search after entering known details for a person including name, date of birth and suburb, (f) INFO REP INQ - a specific search of an information or "intelligence' report.

[13] In relation to Station Summaries, the COPS system defaults to the station or location of the person logging on to the system PRIOR to a search being conducted. For example, when I log on and commence a Station Search, the default search is for Wellington. If I wished to undertake a station search of another station I would have to manually enter the name of the Police Station or Local Area Command.

[14] Station Summaries on their face contain one line summaries of COPS events for a 24 hour period for a specific station. A specific search period can be entered to search station summaries if the 24 hour default period is not sufficient. Station Summary inquiries allow the user to select the link to the COPS event and read the narrative text or "summary" of each event. It is possible that Mr Flanagan would be able to tell from the Wellington Station Summaries after 15 April 2006 if Mr Amatto had made a complaint against him in relation to the assault by accessing events from the Wellington "Station Summary". 115 In addition to accessing the Station Summary from Wellington on the relevant dates (identified by the acronym SSUM ENQ), reference to annexure A also discloses Mr Flanagan went beyond that and took it upon himself to drill down beyond Station Summary and/or Change Over Event enquiries. The evidence of Senior Sergeant Hurst is of assistance in understanding the meaning of the phrase 'drilling down' as follows: Q. Now, before I move on in terms of the general issue of COPS access, have you heard the phrase drilling down? A. I have. Q. I want to ask you some questions about that. It is the case that an officer can access whether in respect of his or her own station or another station the station summaries which are online records of particular events?

A. No. ... Q. So that officers can in the sense they are physically able to from a station summary access and event narrative? A. That's correct.

Q. And again that doesn't fall within the expression drilling down? A. I don't believe so no.

Q. By the event of the event narrative if you see a person's name and you open up that name, you find out the persons details and criminal record. Am I correct in saying that is when you cross the line into the area of drilling down? A. Yes drilling down is basically a search, a specific search under location of a person or an event or a report of some type. 116 Having regard to the above evidence, it is possible to peruse annexure A to this judgment and determine those COPS accesses that were related to the Wellington Hotel incident, those that were not and, in relation to all of the COPS accesses, which of those COPS accesses went beyond Station Summary and/or Change Over Event enquiries and constituted drilling down in the manner as identified by Senior Sergeant Hurst. 117 Of the Wellington COPS accesses undertaken by Mr Flanagan on 19 April 2006, the first three are not related to the Wellington Hotel incident. The fourth such access at 6.05am identified as SSUM ENQ: E26561822 - INCIDENT HOTEL ** ASSAULT ** and the following three entries at 10:41am, 10:42am and 10:43am respectively are related to the Wellington Hotel incident. 118 Next, the COPS accesses undertaken by Mr Flanagan on 20 April, 21 April and 29 April 2006 are not related to the Wellington Hotel incident. Likewise the COPS accesses of 1 May and the first access at 19:35 of 2 May are not related to the Wellington Hotel incident. However, the remaining COPS accesses made on 2 May 2006 relating specifically to Mr Amatto and his partner, Ms Rebecca Burns, are related to the Wellington Hotel incident. 119 On the second page of annexure A, the COPS accesses made by Mr Flanagan on 2 May, 3 May, 9 May and 10 May are unrelated to the Wellington Hotel incident. 120 As best as I can assess of the COPS accesses made by Mr Flanagan during the relevant period, seven of them were related to the Wellington Hotel incident and thirty four were unrelated to the Wellington Hotel incident. 121 The following COPS accesses made by Mr Flanagan as summarised in annexure A represent what was explained by Senior Sergeant Hurst as drilling down: · 19/4/2006 1041 PERFIND M. Amatto · 19/4/2006 1042 Crim Rec Enq M Amatto · 19/4/2006 1043 Event Enq by PERFIND: Assault Incident at Hotel · 29/4/2006 745 INFO RPT ENQ: Paul Higgins · 29/4/2006 745 INFO RPT ENQ: Keogh · 2/5/2006 1937 PERFIND M. Amatto · 2/5/2006 1939 Display Info Report M Amatto · 2/5/2006 1941 PERFIND: Rebecca Burns (Partner of M Amatto) · 2/5/2006 1945 PERFIND: Leanne Staggs · 3/5/2006 411 PERFIND: Aston Keogh · 10/5/2006 1443 PERFIND: Ashley Cox · 10/5/2006 1445 PERFIND: Ashley Cox 122 Of the forty one accesses in total, approximately twelve of those accesses represented what has been explained by Senior Sergeant Hurst as drilling down by Mr Flanagan beyond Station Summary enquiries. Of those twelve, only three of them were related to the preparation of the Intelligence Report prepared by Mr Flanagan on 19 April 2006 at the direction of Chief Inspector Lanyon. In the other incidents of drilling down, Mr Flanagan went beyond Station Summary access.

123 Before turning to the events that occurred between Chief Inspector Lanyon and Mr Flanagan on 19 April 2006, it is relevant to note there is no dispute that Chief Inspector Lanyon did, as a result of his discussion with Mr Flanagan at that time, tell Mr Flanagan to prepare an Intelligence Report about the incident, particularly given the asserted threats of violence made by Mr Amatto were made not only towards Mr Flanagan but towards police generally. In that respect, Senior Sergeant Hurst affirmed, as did Chief Inspector Lanyon, that in preparing such an Intelligence Report, it would have been appropriate for Mr Flanagan to have accessed Mr Amatto's record on the COPS system. His evidence in this respect was as follows: Q. And can I suggest to you assuming he had been asked to prepare this intelligence report it was a totally appropriate course to e-mail, to access Mr Amatto's record on the COPS system for the purpose of putting that type of information into the report?

Q. So to that extent there is no issue Mr Flanagan engaged in appropriate access to that? A. Are you referring to the result of the police complaint process?

Q. No. You understand, I think you have agreed with me it is quite clear from the intelligence report Mr Flanagan had accessed the COPS system in 19 April when preparing the report in order to get details as to Mr Amatto's criminal history? A. Yes.

Q. And I think you agreed with me for the purpose of preparing and intelligence report that was an appropriate access? A. Yes that is quite normal access yes. 124 On that basis, it was submitted, the COPS accesses made by Mr Flanagan on 19 April 2006 were proper and appropriate given the circumstances and as a result of the direction made by Chief Inspector Lanyon to Mr Flanagan on that day. That would mean that of the COPS accesses made by Mr Flanagan during the relevant period, those made on 19 April 2006 in relation to the Wellington Hotel incident could not be said to be unauthorised as understood pursuant to policy and procedures then in place in the NSW Police. 125 Returning now to Mr Flanagan's actions following his discussion with Chief Inspector Lanyon on the morning of 19 April 2006. In addition to the intelligence report compiled by Mr Flanagan as detailed above, Mr Flanagan also sent an email to Senior Constable Edwards. That email, sent at 6:21am on 19 April by Mr Flanagan to Senior Constable Edwards, said as follows: Hi Brad,

Looking at Station Summaries I see that Martin Amatto wants to make a complaint. As Lexi was the one who called the police on my behalf I wish to make the complaint. I was threatened to be stabbed and harassed due to my employment in the police by Amatto. Can you contact me or advise Andrew Hurst.

Thanks Mick Flano. 126 That email was forwarded by Senior Constable Edwards to Senior Sergeant Hurst on or about 8:25am on Wednesday, 19 April 2006. 127 After Senior Sergeant Hurst received Mr Flanagan's email, forwarded by Senior Constable Edwards, he was contacted by Mr Flanagan. Following his discussion with Mr Flanagan, Senior Sergeant Hurst wrote a memorandum to the Complaints Management Team - Orana, about the incident between Mr Flanagan and Mr Amatto in which he relevantly stated as follows: After reviewing the email that L/S/C Flanagan sent to S/C Edwards, it would appear that he has accessed the Wellington Station Summary and reviewed the event involving him and attempted to make a counter claim of assault based on this.

L/S/C Flanagan contacted me at 0840hrs 19th April in relation to this matter and questioned me regarding the status. He informed me that he had received advice from his Duty Officer to report to that he had been threatened by AMATTO. I informed him that no complaint of assault had been received. He stated he did not want to take any action against AMATTO or his associate but wanted to register his 'complaint' to me in the event that AMATT0 made a complaint of assault to police.

I advised L/S/C Flanagan to make a notebook entry of the incident. RECOMMENDATION: At this time no complaint of assault has been received by Martin AMATTO although police have been informed that a formal complaint is being lodged with W.A.L's. This incident, including the attached CCTV footage should be reviewed by the Orana Complaints Management Team and an assessment made. 128 It is clear Mr Flanagan's reference in his email to the expression 'Looking at Station Summaries ...' put Senior Sergeant Hurst on notice that Mr Flanagan was accessing the Wellington COPS system. As a consequence, he made further investigations about that issue. It was a result of those investigations that the relatively extensive nature of Mr Flanagan's overall COPS access came to light. 129 There is dispute between Mr Flanagan and Senior Sergeant Hurst as to two matters arising out of that conversation. As his statement evidences, Senior Sergeant Hurst reported that Mr Flanagan ' did not want to take any action against Amatto or his associate...'. That is disputed by Mr Flanagan notwithstanding Senior Sergeant Hurst's evidence to the contrary. 130 I have to say, in the absence of any cogent explanation, I find it unlikely that so soon after registering his email complaint that Mr Amatto had threatened to stab him, Mr Flanagan would then say he did not wish to make a formal complaint about Mr Amatto. Also, on that same day, he wrote the Intelligence Report where, if anything, he was even more evocative in his reporting of Mr Amatto's alleged threats. 131 Senior Sergeant Hurst also stated that in his telephone discussion with Mr Flanagan, he (Mr Flanagan) said that Wade Hynch was a 'decent bloke' and that he had dealt with him before. Mr Flanagan emphatically denied he had made such a statement and indicated he did not know Mr Hynch before the Wellington Hotel incident. In his Local Court evidence, Mr Hynch independently confirmed that he did not know Mr Flanagan. 132 Given the above evidence, I am not satisfied Mr Flanagan did make any reference about Wade Hynch to Senior Sergeant Hurst when he spoke to him on 19 April 2006. Likewise I am not persuaded that, at the same time, Mr Flanagan stated he did not wish to proceed with his complaint. 133 In relation to access by serving police officers to the COPS system generally, the NSW Police have a number of areas where its policy is expressed. In the first instance, the Police Service Notice issued in June 1999 states, inter alia, as follows: Information in police computer systems and in systems which members of the Service have access, is strictly private. All citizens are entitled to be confident that confidential personal information stored in these systems will be properly protected from unauthorised disclosure.

Access to stored information is limited to a need to know basis, and officers may only make an access for a purpose connected with their official duties. At all times, an officer is accountable for an access recorded under their password and must be able to prove an access was lawful or face official sanction.

The use of police computer systems for any reason other than for official purposes is a serious breach of the law and a serious breach of the responsibility expected and demanded of Police Service personnel. Officers who improperly access systems will be subject to criminal proceedings or disciplinary action. The inability to explain the access or that the computer terminal was left open allowing access by someone else, is unacceptable.

Perusing station summaries and significant COPS events to gather general intelligence and crime trends in connection with your duties is acceptable. However, accessing the recorded data beyond that point in other confidential fields (known as 'drilling down') is only to be conducted for specific operational reasons, or on a need to know basis (e.g. specific intelligence and profiling, etc)­. (emphasis added)

Unless it is abundantly clear from departmental records the access was lawful, a record of accessing the confidential fields is to be made in your notebook or diary together with the reasons.

Accesses to these confidential fields are logged and audited to safeguard against unauthorised and unlawful access. Drilling down for general perusal or idle curiosity is improper access of the system. 134 The next relevant document is the Police Code of Conduct and Ethics that states relevantly: An employee of NSW Police must:

... [8] only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police policy. 135 More relevantly and troubling, in my view, is that when a police officer seeks to access the COPS system, the first screen that appears when logging in contains a warning in the following terms:

GENERAL WARNING AND INFORMATION This Computer system is the property of NSW Police. No person is allowed access other than for a lawful purpose. Your access is being monitored to ensure it is lawful.

The system contains personal, confidential and sensitive information. All personal information is protected under the Privacy and Personal Information Protection Act 1998 (NSW). Other data on the system may be protected by law or public interest immunity. Data on the system must NOT be disclosed to unauthorised persons and you are NOT authorised to access it for personal, demonstration or training reasons. There is a separate training database. Unauthorised access, corrupt disclosure, unlawful use of personal information or offering to supply personal information carry criminal sanctions, ranging from a fine, imprisonment or both together with probable dismissal or managerial action . (emphasis added)

If you proceed to use this system, you acknowledge this warning and conditions. LOG OFF, if you do not accept them. ­ 136 Having regard to all of the above, it is difficult to comprehend that a serving police officer would not be well aware of the need to ensure that his or her right to access the COPS system for the purposes of discharging their duties is not only an important one but it is a right that must be exercised with absolute integrity and in accordance with the policy of the NSW Police. That policy is reinforced on each occasion a police officer seeks to access the COPS system and there is a requirement the police officer acknowledge that prior to each access. 137 As was confirmed in evidence, there are random audits undertaken by the NSW Police of the COPS access utilised by serving police officers and they are called to account if those random audits disclose any untoward access of the COPS system by the police officer. 138 There was no evidence given as to exactly how those audits were conducted but it was not disputed that during his period of service, Mr Flanagan has been the subject of such random audits and has never been the subject of any adverse audit outcomes in relation to his COPS accesses. 139 Notwithstanding the above, Mr Flanagan's utilisation of the COPS system was anything but in accordance with the above policy. As he said in his statement: [41] As to the allegations relating to my COPS Accesses more broadly, I had worked in the Wellington area for about fourteen months, finishing in February 2005. I have, quite regularly, accessed the Wellington Station "Station Summaries" and changeover events on the COPS system to stay abreast of what is happening in the area. I did a similar thing after I left Granville and I also look at the same information for the Penrith Local Area Command. Also, I try to be proactive in all my police work and I find examining how other people prepare events and narratives useful as a learning tool.

[42] Staying abreast of the Station Summaries and Major Events is something that I have been encouraged over my career to do, although I can't specifically recall any particular conversation to that effect. Being proactive and staying abreast of what is going on is why I understand the "Station Summaries" and "Major Events" are posted on the COPS system.

[43] I honestly didn't believe I was doing anything inappropriate by accessing the Station Summaries and other events on COPS in relation to Wellington in the way that I did. I should also note at the time I was visiting the area regularly and Alexis and I had a long term goal of moving to the area at some point in the future to live and work.

[44] As I said in my recorded interview on 19 May 2006, I have always used the COPS system in this way. I had been in the police for more than eleven years and have had my COPS accesses audited on a number of occasions. Not once, at least until this matter, has anyone ever suggested that I was doing anything improper by looking at the Station Summaries or Changeover events for another LAC. I believe that it is a common practice for police officers to look at station summaries for LAC's where they have worked after they have left the area.

[45] I don't independently recall having done so now, but it appears from the synopsis of the audit of the COPS system that is contained at TAB 14 of the Commissioner's Confidence Submission that I accessed a few Station Summary events for Wellington, as I often would, and then accessed an event E26561822, which related to the incident that I was involved in on 15 April 2006 at the Wellington Hotel. That event was also a Station Summary that I accessed. ... 140 It is of concern that not only was Mr Flanagan regularly accessing the COPS system on an ongoing basis, but that he perceived nothing inappropriate or improper about it, notwithstanding at the very least, he would have had the policy of the NSW Police drawn to his attention every time he logged on for that purpose. As the relevant extract of his statement above discloses, it was his belief that what he was doing was 'common practice' amongst police officers and in his evidence before me, he not only confirmed his belief as to that common practice but it became clear that he observed other officers doing it. 141 It is troubling that if he was audited during his time with the NSW Police, his practice of routinely accessing the COPS system for what would appear to be nothing more than idle curiosity has never been identified. Nor has he ever been spoken to about it until he was interviewed in relation to the investigation leading to his removal. 142 There was evidence given that Mr Flanagan's belief about accessing the COPS system by police officers in the manner and for the reasons as he expressed was 'common practice'. That evidence was given by Sergeant Graham O'Toole. Sergeant O'Toole joined the NSW Police in 1980 and is currently General Duties Supervisor Penrith at the rank of Sergeant. In relation to accessing the COPS system generally, Sergeant O'Toole said as follows: [7] In relation to accessing Station Summaries of stations other than at the one at which Police are attached, this is a common practice. Police do this for numerous reasons. It may be they have worked at that location and are concerned for workmates or may have knowledge of persons involved and able to supply intelligence in relation to the matter. It is often curiosity and a need to know what has happened around the state . This keeps the officers informed of events and can give them a 'heads up' on incidents and events which may directly impact on their operational performance. ... (emphasis added) 143 Evidence contrary to that of Sergeant O'Toole was given by Senior Sergeant Hurst. He expressed the view that it was not necessary or appropriate for police officers to access Station Summaries of other Stations without cause and, in particular, given the circumstances here, for Mr Flanagan to access Station Summaries for Wellington without any reason when he was stationed at Penrith. Further, in his opinion, it was not the usual practice for officers to view Station Summaries of their last station without a valid reason. Finally, it was, in his opinion, not a permissible use of the system to view Station Summaries in relation to any station for training purposes. Senior Sergeant Hurst's view is in accordance with the policy in place. 144 What is clear from all the evidence is that for a number of years Mr Flanagan has been regularly and routinely accessing the COPS system to peruse Station Summaries. That is exemplified by his actions during the period cited. Where his curiosity was piqued, he drilled down beyond Station Summaries for further information about incidents disclosed on those Station Summaries. 145 By way of further explanation as to the routine he had and the clear warnings that appeared every time he logged into the COPS system, he said as follows: [5] In relation to paragraph [10] I acknowledge that the warning attached to Mr Hurst's statement appears every time you log in to the COPS system. I am sure that I would have read it when it first started to appear, but that was a long time ago and after a while it just becomes one of those things that you click straight through to get onto the system. I didn't appreciate that NSW Police considered the way that I was using the COPS system to be inappropriate.

[6] As I said in my earlier statement and in my directed interview, I believed accessing station summaries and state significant events was an appropriate use of the COPS system to learn how other officers complete COPS entries and, more importantly, to stay abreast of the policing environment where I work, where I live and where I regularly visit or spend a bit of time. I had an ongoing connection with Wellington after I left. I was helping pay off a home up there, I had long term plans of transferring back to the area when I could and I had Alexis' family in the area so we were up there quite a bit. I was trying to stay abreast of the policing environment in the area.

[7] In relation to paragraph [11] I understand now that I should have recorded the reason for access on the COPS system when I accessed a specific item. Prior to the issue of my COPS accesses having been raised with me, I accept that it would only have been occasionally when I entered a reason for access. I don't recall when the reason for access field first came in, but I am sure it wasn't there when I first started in the police. We used to have to write reasons in police notebooks, but in my experience no body ever did. I have pretty much always used the same practice in the way I have used the COPS system. I have to say that I usually don't record the reason for access if I am only accessing the station summaries or significant events to generally stay abreast of what is going on (whether I am looking at Penrith, one of the other commands in that region or any other command). In my experience, most police would not record a reason for access when looking at these sorts of items.

[8] With hindsight, I accept that I should have been more particular in recording reasons for access. At the time I never gave it that much thought. I understood my obligations in relation to the use of the COPS system was always to make sure that I used it legitimately for work purposes and didn't pass the information to anyone. I never treated recording the reason for access as important and I appreciate, having gone through the disciplinary process, that I should have. All I can say is that, before the issue was raised in May 2006, I had been using the COPS system for in excess of eleven years, I never really changed my practice of how I would use the COPS system, I had been audited a number times and I had never had anyone suggest that my use of the COPS system was inappropriate.

[9] I changed my practice when Chief Inspector Haines said that I should after this matter came up and I went to work in the Intelligence Unit. ... 146 The Commissioner's reasons for Mr Flanagan's removal included, quite explicitly, Mr Flanagan's access of the COPS system for the purposes of following up in relation to Mr Amatto in the way I have already identified. Some of that access, as has been acknowledged by Senior Sergeant Hurst and Chief Inspector Lanyon, was authorised in the sense that it was done by Mr Flanagan for the purposes of preparing the Intelligence Report directed by Chief Inspector Lanyon. The remainder of Mr Flanagan's accesses in relation to the incident at the Wellington Hotel and the drilling down that was undertaken by him specifically in relation to Mr Amatto and Mr Amatto's girlfriend and others were purely gratuitous. Likewise his other COPS accesses during the relevant period relied upon, including the drilling down events. 147 There are two prior authorities of the Commission in which the issue of unauthorised COPS access by a serving police officer have been commented upon. The first is to be found in the decision of the Full Bench of the Commission in Little v Commissioner of Police (No 2) (2002) 112 IR 212. In all, there were some eighteen grounds relied upon by the Commissioner to justify his decision to remove Mr Little from the NSW Police. One of the grounds stated that over certain nominated periods between November 1996 and September 1998, he had made four unlawful computer accesses relating to an identified female. 148 It would appear from reading the judgment, particularly at p 233, that Mr Little's access of the COPS system 'had arisen out of a close and yet somewhat "dysfunctional" or "disturbed" personal relationship'. It is relevant to note that at p 242 the Full Bench stated: In our view, the most significant aspect of these failures was the misuse by the appellant of the COPS system and his behaviour towards female employees. 149 Ultimately, Mr Little's appeal to the Full Bench was upheld and he was reinstated on the basis that he would, by his own undertaking, retire from the NSW Police following his reinstatement. 150 The second matter in which unauthorised and, in this case illegal use of the COPS system was the decision in the first instance of Backman J in Johnston v Commissioner of Police (2007) NSWIRComm 73 handed down on 2 April 2007. In that matter, Mr Johnston had been removed from the NSW Police because of several instances of illegal access to the COPS system. He had, as a result of that illegal access, been charged and dealt with for offences arising under s 308H of the Crimes Act 1900. Prior to that, when his unauthorised COPS access had first been revealed, he was placed on a Conduct Management Plan. He failed to abide by that plan in that he suborned and compromised two junior police officers to further access the COPS system on his behalf. Backman J formed the view that his removal was, in the circumstances, not harsh, unreasonable or unjust and his application for reinstatement was dismissed. Mr Johnston appealed to the Full Bench of the Commission. Judgment in the matter of Johnston v Commissioner of Police (2007) NSWIRComm 293 was given on 30 November 2007. In that judgment, the Full Bench came to the view there was no appellable error, leave to appeal was granted and the appeal was dismissed. 151 There are certain distinguishing features between those matters and the one before me concerning the COPS accesses made by Mr Flanagan. The first is that in Johnston, the police officer concerned quite improperly and, as it turned out, illegally suborned two junior police officers to access the COPS system on his behalf and, in doing so, compromised their positions. Further, the basis on which the COPS system was accessed was because of relationship issues concerning another serving police officer as well as persons outside the police service. In relation to Little, there was also a suggestion that the basis upon which the COPS system was accessed concerning the female person was also arising out of personal relationship issues. That is not the case here. Nevertheless, if anything, Mr Flanagan's accessing of the COPS system in relation to Mr Amatto and Mr Amatto's partner, outside those of 19 April 2006, were highly improper and unethical. He was an alleged victim of an assault by Mr Amatto at the time he made those accesses and he was utilising his privileged access to confidential information in a way that may well have been used adversely against Mr Amatto. There is no evidence to suggest that did occur. 152 The remainder of Mr Flanagan's COPS accesses during the relevant period can only be described as idle curiosity. They were highly unethical and contrary to the clear policy in place. 153 The most telling point in Mr Flanagan's favour is that it would appear he made no attempt to hide his access of the COPS system in the way he did. That much would seem clear from the memorandum he sent to Senior Constable Edwards which was forwarded on to Senior Sergeant Hurst on 19 April 2006 where Mr Flanagan prefaces the email by indicating that 'having accessed the system' he had become aware that a complaint had been made. That tends to support the view he expressed that accessing the COPS system was something he saw as appropriate and he was not in any way attempting to hide his behaviour. 154 Notwithstanding, I find it incomprehensible, given the warning every police officer receives when he or she accesses the COPS system, which he/she must acknowledge, that it does not trigger the appropriate response from the officer concerned. That is, do not proceed unless the access is authorised in accordance with the policy promulgated. It is less than satisfactory to me, given the number of years Mr Flanagan has been in the NSW Police, that a random audit has never brought his long standing practice to any management attention. But that is not the issue, it seems to me. The audit process is only a random check system. It is not meant, by default, to replace the primary obligation of every individual police officer when accessing the COPS system. In that sense, the onus is placed on the individual police officer to only access the COPS system in accordance with the policy in place. To do otherwise is to compromise ones integrity in a fundamental way. Ultimately, there comes a point when the public have to be able to rely on the personal integrity of every individual police officer. If that integrity and the principles by which the Police function are compromised on such an important matter in the way that was repeatedly compromised by Mr Flanagan during the period specified in relation to COPS access, then it is a matter of concern. 155 Having said that, I am aware the COPS access issue was capable of being dealt with administratively without recourse to any suggestion that it should be part of the reasons for Mr Flanagan's removal. That much is suggested in an extract from Mr Flanagan's C@TS1 file that was produced on behalf of the Commissioner pursuant to a Summons to Produce. That document, in the form of a report, is signed by Sergeant M. B. Scott of the Orana LAC. It gives a synopsis of Mr Flanagan's COPS access. It ultimately concluded that a finding of unauthorised COPS access by Mr Flanagan was sustained and it recommended the issue be brought to the attention of the Complaints Management Team of the Penrith LAC for appropriate action. In short, it was a matter that could have been dealt with at a local level. Indeed, a memorandum was sent by Superintendent Smith, Superintendent of the Orana LAC to Superintendent Feszszuk of the Penrith LAC suggesting the following in relation to the unauthorised COPS access: This matter is transferred to you to deal with as you deem necessary including any interim measures to supervise COPS access. Please advise the NSW Ombudsman and L/Snr Constable Flanagan of the outcome. 156 It was also stated the assault matter was before the Court and that the NSW Ombudsman had been notified to that effect. 157 While it may be that the COPS access issue may have been able to have been dealt with administratively, Superintendent Smith's memorandum to Superintendent Feszszuk does not explicitly state that - nor does Sergeant Scott's report. Superintendent Smith's memorandum relevantly states that the COPS access issue was being transferred to Superintendent Feszszuk to 'deal with as you deem necessary'. 158 Given what has transpired, it is clear Superintendent Feszszuk determined not to deal with it at a local management level. It was a discretion he clearly had. 159 It would appear that when the assault matters were dealt with and the Commissioner undertook the necessary investigations, a conclusion was reached there was a relationship between the COPS access issue and the assault matters. In a number of respects that is correct. Taken together, the matters caused the Commissioner to lose confidence in Mr Flanagan and ultimately to cause his removal under s 181D. That is a decision the Commissioner is entitled to make. 160 On the issue of Mr Flanagan's removal being too harsh in its consequences. It can hardly be denied that the removal of a person from his or her employment, whether it be as a police officer or otherwise, would have harsh economic as well as personal consequences for that individual. The proper approach must surely be that, given the particular facts and circumstances relied upon to justify the person's removal or termination from the workforce, the removal or termination is too harsh given the personal and economic consequences that such a decision brings. In other words, there may well be occasions when the facts and circumstances relied upon to remove or terminate an employee are justified notwithstanding the harsh personal and economic circumstances that may arise. Ultimately, it is a matter to be taken into account in the overall balancing exercise that s 181F(3) requires. 161 As is well known, it is necessary to have regard to s 181F(3)(a) and (b) and, having regard to all the circumstances and findings I have made, to balance Mr Flanagan's interest against public interest considerations. 162 In that balancing process, the issue of Mr Flanagan's performance as a police officer up to the time of his removal has to be considered. It has been an unblemished one. In fact, as stated early in this judgment, Mr Flanagan has received awards for commitment to policing and the community in 1999, 2003 and 2006. I accept they clearly weigh in his favour. 163 Additionally, there was unchallenged testimonial material from Sergeant Bousfield in the following terms: ... As his supervisor, I found him to be co-operative, motivated and trustworthy. He demonstrated a very good work ethic by actively seeking out the jobs and tasks presented on a day to day basis and led other police within his team to achieve benchmarked performance measures for the Command. I had no doubt that he would complete the tasks asked of him and that he would encourage others to do likewise. There is no occasion where I felt Mick had abused my trust in him or behaved in anyway which might cause me to think less of him. 164 In addition to supporting Mr Flanagan's policy of accessing the COPS system, particularly in relation to Station Summaries, Sergeant O'Toole also gave evidence in favour of Mr Flanagan as follows: I believe Senior Constable Flanagan has all the attributes a good Police Officer requires. He has a common sense approach to problem solving and a calm character. 165 Further, when asked in relation to Mr Flanagan, Chief Inspector Lanyon said: Q. Have you had an opportunity to observe the way in which he went about his duties?

Q. What assessment can you offer the Commission pre the Wellington Hotel incident as to the way he went about his duties, that is, in terms of conduct, performance and integrity?

A. I thought that he was a competent and hard working officer. I was not aware of any incidents in particular that affected his integrity as such at that time.

Q. You didn't have reason to doubt his integrity prior to this Wellington Hotel incident?

A. No sir, nothing specific at all. 166 I do not discount the value of such testimonials. 167 Standing alone, Mr Flanagan's actions at the Wellington Hotel on the evening of 15 April 2006 are serious matters. However, of greater concern is Mr Flanagan's conduct in seeking to justify his actions on that night in a way that reflects adversely on his overall integrity and credibility. That has already been canvassed by me in para [109] above. 168 As well, I do not consider Mr Flanagan's unauthorised COPS accesses during the period specified can be simply excused on the basis of his belief as to common practice or that random audits had never detected his long standing practice of unauthorised COPS accesses. Ultimately, he knew every time he accessed they system what his obligation was - it was visibly and clearly drawn to his attention. To choose to ignore it, for whatever reason, is to undermine public confidence in the use by police officers of personal and confidential information about members of the public who, unwittingly or otherwise, may get caught up in the police reporting system. 169 Taking into account all of the facts and circumstances of the matter and my findings in relation to them, I am of the view that the Commissioner's decision to remove Mr Flanagan from the NSW Police was not, given those facts and circumstances, too harsh. Further, in applying the balancing exercise required under s 181F(3) of the Act, it is my conclusion that public interest considerations outweigh Mr Flanagan's interests. His application for reinstatement is refused.

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