Miller v Commissioner of Police

Industrial Relations Commission (NSW)|2002-11-18|Before: Peterson J, Mr J

CITATION : Miller v Commissioner of Police [2002] NSWIRComm 296 APPLICANT Julian Cyril Miller PARTIES : RESPONDENT Commissioner of Police FILE NUMBER: IRC7926 of 2001 CORAM: Peterson J CATCHWORDS : Reinstatement of employment - removal of police officer - allegations of misconduct involving female police officers - review of order - whether removal was harsh, unreasonable or unjust - procedural fairness - reinstatement ordered with loss of salary for interregnum - length of exemplary service - reinstatement ordered from 18 November 2002. Police Service Act 1990 ss181D 181E 181F LEGISLATION CITED : Industrial Relations Act 1996 Evidence Act 1995 Newton v Commissioner of Police (No 1) (1998) 85 IR 119 Newton v New South Wales Police Service (No 2) (1999) 87 IR 66 Little v The Commissioner of Police (No 2) [2002] NSWIRComm 52 Grant v Downs (1976) 135 CLR 674 Esso Australia v the Federal Commissioner of Taxation (1999) 168 ALR 123 Mann v Carnell (1999) 201 CLR 1 Corporate Affairs Commission of New South Wales v Yuill and Ors (1990-1991) 172 CLR 319 Smith and ors v Western Australia and ors (2000) 98 FCR 358 The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission [2002] HCA49 CASES CITED : Oswald v New South Wales Police Service (No 2) (1999) 90 IR 42 Van Huistedde v Commissioner of Police (2000) 98 IR 57 R v Johnston (1998) 45 NSWLR 362 Mason v Electricity Commission of NSW (1995) 62 IR 436 Antonakopoulos v State Bank of NSW (1999) 91 IR 385 McCabe v NSW Police Service (unreported 3 July 1996, Matter No IRC3112 of 1994) Bigg v NSW Police Service (1998) 80 IR 434 Burrows v Commissioner of Police, Giardini v Commissioner of Police [2001] NSWIRComm 333 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Wang v Crestell Industries Pty Limited (1997) 73 IR 454 HEARING DATES: 05/17/2002; 05/20/2002; 05/21/2002; 05/22/2002; 05/27/2002; 06/06/2002; 07/01/2002 DATE OF JUDGMENT: 11/15/2002

APPLICANT Mr B G Docking of counsel

SOLICITOR Walter Madden Jenkins SYDNEY.

LEGAL REPRESENTATIVES: RESPONDENT Mr J H Pearce of counsel

SOLICITOR Legal Services Branch NSW Police SYDNEY.

JUDGMENT: - 55 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application under section 181E of the Police Service Act 1990 for review of an order of the Commission of Police.

1 Julian "Dusty" Miller served in the New South Wales Police Service from January 1974 until he was removed by order of the Commissioner of Police on 12 November 2001. Applying the provisions of s181E of the Police Service Act 1990 ('the PS Act'), he seeks an order reinstating him to the Police Service and affording him wages lost over the period since his removal.

2 Mr Miller had reached the rank of Senior Sergeant and had particular strengths in officer survivor ('OS') skills. These are the skills required by members of the Police Service to enable them to deal with violent incidents on the street. He was a designated trainer of such skills to other members of the Service and it was the provision of this training, in particular to three female probationary constables, that led to his removal from the Service at age 52 after 26 years exemplary service.

3 His service was marked by awards and other recognition for the efforts he made in the carrying out of his duties. For example, he engaged in activities such as the repeated crossing of flood waters to save a stranded mother and her children; he was able successfully to restrain a deranged person threatening police with a sabre; and in another example disarmed a man who was threatening police with a firearm.

4 The character references provided in support of him in this case speak very highly indeed as to his character, his application to duty and his career achievements. His referees find it impossible to accept the allegations made against him.

5 The application for reinstatement is one in a now well familiar process. The Commissioner of Police is empowered by s181D of the PS Act to remove a police officer from the Service where the Commissioner "does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct" (s181D(1)). The nature of the process and the review provided by Division 1C of the PS Act of the Commissioner's decision by this Commission is now reasonably well settled (see Newton v Commissioner of Police (No 1) (1998) 85 IR 119 and Newton v New South Wales Police Service (No 2) (1999) 87 IR 66).

6 The nature of the test applicable has been recently considered by the Full Bench in Little v The Commissioner of Police (No.2) [2002] NSWIRComm 52. As I apprehend the position, the relevant loss of confidence in the police officer's suitability to continue as a police officer, to which s181D(1) refers, may be insufficient to justify the removal, in the sense that the removal may subsequently be held to be harsh, unreasonable or unjust even where the initial loss of confidence itself may be supportable by the relevant lack of competence or integrity or by the officer's performance or conduct. Consideration may also be given to issues of procedural fairness in determining the application; I shall deal with this aspect later.

The Charges 7 The matter of Mr Miller's dismissal was initiated, in accordance with the statutory scheme, by a notice served upon him by the Commissioner, which notice was in the following terms: Section 181D of the Police Service Act 1990 enables me to remove an officer where I have lost confidence in their suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct.

In accordance with paragraph 181D(3)(a) of the Police Service Act 1990, I hereby give you notice that I am considering your suitability to continue as a police officer taking into account your conduct on the basis of the following grounds:-

On one occasion during August 1999 you sexually harassed Probationary Constable Hay during provision of Officer Survival (OS) training at Campbelltown Police Station.

On three occasions between July 1999 and September 1999 you sexually harassed Probationary Constable Gorton during provision of OS training at Campbelltown Police Station.

On three occasions between September 1999 and December 1999 you sexually harassed Probationary Constable Gorton during provision of OS training at her mother's home in Leumeah.

On one occasion between December 1999 and February 2000 you sexually harassed Probationary Constable Gorton during provision of OS training at her home in Leumeah.

On two occasions during April 1999 you sexually harassed Probationary Constable Hughes during provision of OS training at Campbelltown Police Station.

You are hereby notified that I am considering making an order for your removal from the New South Wales Police Service under Section 181D of the Police Service Act 1990. In accordance with paragraph 181D(3)(b), prior to making my decision, you are hereby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submissions and you are not obliged to do so.

Attached is a copy of the submission provided to me in this matter. Your response should be delivered to my Office, Level 18, Police Headquarters, 14-24 College Street, Darlinghurst 2010.

PJ Ryan Commissioner of Police Dated: 22.8.01

8 A response to that notice was served on the Commissioner by Walter Madden Jenkins, solicitors for Mr Miller, on 9 October 2001. The response detailed the applicant's history in the Police Service. Leaving aside the allegations related to these proceedings, the applicant's history, which was not put in issue in the proceedings, seems to me to have been exemplary indeed. His activities as a policeman, a supervisor and also as a member of the Tactical Response Group involved him in many difficult policing situations which he seems to have handled commendably. On an overall assessment of his experience and abilities, one would incline to the view that Mr Miller was an extremely valuable member of the Police Service whose abilities ought not be lost to the people of New South Wales unless that loss is unavoidable and fully justified.

9 A short excerpt from Mr Miller's response is instructive: I have been a Weapons Instructor and Officer Survival Instructor since about 1987; over that time I have instructed thousands of police. I have never had anyone make any allegations about me. I have always been very enthusiastic in my approach to my instructional duties, and some of those I have instructed have said that even though they did not like my stern approach to training, they felt that they had benefited from my training. This has been born (sic) out by numerous persons approaching me at a later date and informing me that they had used the skills I had taught them and they had worked effectively.

One person in particular is former police officer Senior Constable Sharon White who was involved in a particular arrest of an offender for warrants. During the arrest the offender attacked Senior Constable White and her male colleague. The offender managed to remove a pistol from the young Constables holster, Senior Constable White saw what had happened and grappled with the offender. A shot was fired but Senior Constable White was able to stop him firing any more shots and she was able to retrieve the weapon from him. She later saw me and thanked me for the training I had given her because in her words "Your training was very hard but your lesson sunk in. Through that I had the confidence to stop him using the pistol and was able to take it off him. Without your training we could have been killed"

I have received a number of awards and complimentary remarks in my career and I have listed them below:

1988 Jack McNeill Award. Awarded to me for the bravest action by a member of the T R G for 1988 - I negotiated with, and took a rifle from a male who had just murdered his fellow worker.

1989 Recognised for outstanding actions in disarming the above offender.

1990 Congratulated for my presence of mind in stopping the escape of a dangerous offender who was in the cells at Campbelltown Police Station who had concealed weapons and keys on his person with the intention of also releasing two other dangerous prisoners.

1998 Complemented by the Local Area Commander for good work regarding the investigation, execution of a search warrant, and the arrest of an offender for an indictable quantity of drugs.

2000 Commended by the Local Area Commander for the arrest of two offenders who had just committed an armed hold up.

2000 I received the 1st Clasp to the National Medal.

2001 I received the Patrol Commander Commendation for Bravery in rescuing a number of civilians who had been trapped by flash flooding in the Green Valley area.

10 The response identifies August 2000 as the time at which the allegations of Mr Miller's conduct with female probationary constables was first raised with him by Inspector Waters, the Crime Manager at Campbelltown. After receiving a brief overview of the allegations the applicant could not believe what was being said to him. He was shocked and in a state of disbelief. He later broke down. He was referred to a psychologist who diagnosed him as suffering from severe post-traumatic stress syndrome. After several consultations with the psychologist he noted that "It was only after those consultations I have been able to talk about the various traumatic incidents I have come across in the course of my police duties without becoming extremely upset".

11 The applicant, in his response, denied the allegations against him. This position was maintained in his oral evidence in these proceedings where he attested to never, other than inadvertently, having touched the three complainants on inappropriate parts of the body.

12 On 12 November 2001 the Commissioner of Police made an order under s181D(1) of the PS Act in the following terms:

Order under Section 181D(1) of Police Service Act 1990

I, Peter James Ryan, Commissioner of Police, having considered your conduct, do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the New South Wales Police Service.

In reaching my decision, I have taken into account a submission prepared in relation to you, the Notice served upon you on 6 September, 2001 pursuant to section 181D(3)(a) of the Police Service Act and the written submissions furnished by you through your solicitor. I have carefully considered the matters raised by you in response to the grounds particularised in the Notice.

The reasons for my decision are annexed hereto under the heading 'Statement of Reasons'.

Your removal takes effect from the date of this Order.

13 The Statement of Reasons was as follows: I am required to make a determination under s181D(1) of the Police Service Act 1990 in respect of whether I have confidence in you as a member of the Police Service. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself, a Notice served upon you on the 6 September, 2001 pursuant to s181D(3)(a) of the Police Service Act 1990, together with your written submissions provided through your solicitors in response to the grounds set out in my Notice. Those grounds refer to the criteria of your conduct and relate to you sexually harassing female police officers.

I note in your written submissions you suggest that you have suffered from procedural unfairness because I have not made available to you all of the documents and other material on which I have relied in deciding that I do not have confidence in your ability to continue as a police officer. I reject that suggestion on the basis that all of the documents and material that were before me when I made my decision were provided to you at the time you were served with the s181D(3)(a) Notice. There is material before me which discloses that three junior female police officers allege they have been sexually harassed and in the case of two, sexually assaulted by you. These are most serious allegations which have been made individually by the officers concerned, although they have a similarity about them. The allegations are strengthened by the fact that they were relayed to a number of male officers and in one case, the female officer confided in a female friend as to the distress and embarrassment she suffered. The material before me discloses that you undertook training of these very junior officers because of your expertise in this field. At the time this is said to have occurred you were a very senior officer in relation to them and you were in a position of power over them. Taking into account your position and experience, you failed to consider the situation of compromise in which you placed yourself by conducting these training sessions on your own with the female officers. Of particular concern to me and which I find most disturbing is the material, with which you have agreed, that on a number of occasions this training took place in their private residences. I find this unacceptable behaviour on your part.

I note that you have totally denied these allegations on all occasions which they have been put to you, however, having assessed all of the material, I find direct and indirect corroboration for many of the issues raised both by each of the officer's involved and by other parties. I find most a (sic) disturbing that two of the officers claim that you told them not to say anything about these training sessions to other police, indicating that you 'could lost your job'. When interviewed, you agreed you may have said, "I'm not supposed to be doing this" , however you denied saying that the officers could not tell anyone, contending this comment related to carrying out choke hold defence training that had been removed from the Training Curriculum.

Your written submissions have reiterated your denials. However, you have made a number of concessions about the circumstances, including that these training sessions took place; they were conducted in private in a one on one basis; some took place in the officer's private residences; there was comprehensive physical contact between yourself and these young women; you suggested to them, their need to be more assertive and their uncertain position if they did not raise their skills in this field. The major concession of your denials is that you agree you may have inadvertently touched these young women in inappropriate areas of their bodies during this training.

As I have stated, these are the most serious of allegations, which if accepted would constitute an abuse of your power and office and indicate that you have identified vulnerable junior female officers and sought them out. On review of their comprehensive evidence about these matters, I fail to identify reasons why these young women would raise such significant matters about you. You have asserted that they may have made such allegations because you were stern in dealing with them. On the basis of what I have read, I cannot accept that assertion as having validity.

I have noted in your written submissions the many officers you have named that you suggest would support you and your assertion as to your good character. I have also had regard to the material you have provided concerning your work history and the commendations you have received. I weighed up those matters as favourable to you in making my determination.

I have also taken account of the matters you have raised in mitigation concerning your medical condition and your personal circumstances. I have also had regard to the comments of your former and current commander's about your commitment and abilities in policing.

As I have stated, I have carefully reviewed all of the material associated with this matter, which I have stated is very serious. The Police Service has a duty to protect its officer's and whilst I have taken note of your strong denials, I find that I cannot accept your assertions as sufficient negation of the issues which have been raised concerning you.

I have exercised my statutory responsibility to make a determination about my confidence in you to remain a police officer. I find that I cannot have confidence in your suitability to remain a member of the New South Wales Police Service. I therefore remove you from your position as a police officer.

14 By s181F(1)(a) the Commission, in reviewing the decision, must first consider those reasons of the Commissioner. Section 181F(1) also requires the Commission to consider secondly the case presented by the applicant as to why the removal is harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner in answer to the applicant's case. Section 181F(2) provides that the burden of establishing the removal was harsh, unreasonable or unjust remains at all times upon the applicant.

15 It is perhaps apposite to mention at this point the provisions of s181F(3) which is in the following terms: 181F. Proceedings on a review

(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to section 181D (1)).

Issue of Legal Professional Privilege 16 The process of initiating an investigation and, if found justified, removal of an officer of the Police Service, is undertaken by a unit under the supervision of Inspector Alan Maurice Champion. When incidents relevant for consideration by that unit arise, a file is commenced and relevant interviews are then undertaken, and the records of those interviews are gathered, together with any other relevant material. An officer of the unit analyses the material and makes a report in the course of which these matters are summarised and findings are made. A submission is then prepared and placed before the Commissioner. It is upon the material contained in the submission and/or annexed to it that, generally, the Commissioner has recourse to for the purpose of making his decision.

17 In these proceedings Inspector Champion gave evidence on the limited matter of obtaining of a legal advice, in support of an attempt to avoid production of that legal advice on the ground of legal professional privilege. In the course of that evidence, the Inspector said that for the purposes of the preparation of such matters, the Commissioner had authorised the Inspector to obtain legal advice, at his discretion, in cases in which it seems the Inspector considered it was appropriate. He described the advice as tending to be sought in cases of complexity and involving questions of the weight of evidence. There really is no doubt that this case would fit into that category. In any event, a legal opinion was produced to the Commission and, by consent, read by it for the purposes of a ruling upon its production. The Inspector's evidence also was that the Commissioner had not in any instance (and therefore this case, although he had no independent recollection of it) sought access to any such legal opinion nor had he discussed with Inspector Champion the content of any particular legal opinion. Therefore the Inspector was able to state that the Commissioner did not have recourse to the legal opinion directly in the present matter.

18 The applicant sought access to the legal opinion and relied on the provisions of s181E(3) as supporting its right to access on the basis that the legal professional privilege did not attach to the document because the statutory provision required its production. Section 181E(3) is in the following terms: 181E. Review generally

(3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1).

19 The Commissioner of Police submitted that the statutory provision did not affect the common law right to claim legal professional privilege in this matter and that in any event the question did not arise because the document was not one which was relied upon by the Commissioner within the meaning of s181E(3).

20 In the course of the proceedings I gave the following ruling: I have formed the view that section 181E(3) of the Police Service Act 1990, abrogates the privilege which would otherwise attach under common law to legal advice sought for the dominant purpose of taking legal advice of assistance or of use in legal proceedings, but only where it falls within the description "document or other material upon which the Commissioner has relied" as set out at s181E(3) of the Police Service Act 1990.

The construction seems to me to apply, if the Commissioner is to avoid the production of a particular advice, evidence would need to be adduced that the legal advice in question was not so relied upon.

In the circumstances and given the progress of this case, I consider that the police service should have the opportunity to consider its position in that regard in the light of the ruling, and to counteract the evidence it may wish to put on in that regard. It seems to me unnecessary for the Commission to refer to the advice directly, for the Commission itself to refer directly to the advice at this stage, although that might be appropriate as the matter develops.

21 The reasons for that conclusion may be shortly stated as follows. The dominant purpose test has now replaced the sole purpose test in relation to a claim for legal professional privilege originally laid down by the High Court in Grant v Downs (1976) 135 CLR 674. In Esso Australia v the Federal Commissioner of Taxation (1999) 168 ALR 123, the High Court by majority adopted for the purposes of the application of the common law right to claim legal professional privilege, the same test laid down for the purpose of the taking of evidence by the Evidence Act 1995, the dominant purpose test. That is to say a document which is produced for the purpose of obtaining legal advice or for use in legal proceedings will be afforded legal professional privilege (or client professional privilege as the Evidence Act describes it) where the dominant purpose is as described rather than the sole purpose.

22 In this case the question of privilege arises not in the context of the Evidence Act but in the context of the Commission's procedures relating to the production of documents (see Mann v Carnell (1999) 201 CLR 1).

23 As to the abrogation of the privilege by s181E(3) the judgment of the High Court in Corporate Affairs Commission of New South Wales v Yuill and Ors (1990-1991) 172 CLR 319 is pertinent. In that matter the court was required to consider whether s295(1) of the Companies (New South Wales) Code which empowered an inspector to require an officer of a corporation, the affairs of which were being investigated, to produce such books of the corporation as were in his custody or were under his control, conferred a power which was subject to any claim of legal professional privilege. In the course of judgment Brennan J, who with Dawson and Toohey JJ was in the majority on the particular questions in that matter, said: "Then, in Baker v Campbell (1983) 153 CLR 52 at 90, 96-97, 117-118, 123, this court held that the power of a police officer executing a search warrant issued under s10 of the Crimes Act 1914 (Cth) is restricted by legal professional privilege. The court by majority overruled the proposition that legal professional privilege is limited to judicial and quasi-judicial proceedings, holding that a statute should be construed as preserving a right to legal professional privilege unless the privilege is abrogated by express words or necessary intendment."

24 The members of the court in the minority, Gaudron J and McHugh J, in separate judgments applied the same rule to the particular statutory provision in question and came to a contrary conclusion. Thus the rule was uniformly applied by all members of the court, although to different effect. As to the application of the rule Gaudron J made this observation:

The rule that important common law rights are abrogated only by express words or necessary implication is one which can be applied only to provisions capable of abrogating those rights. Thus, it can be applied to a provision creating an obligation to provide information - at least if the obligation is expressed in general terms. However, this is not a case which is concerned with the meaning of words creating an obligation to provide information. Rather, it is concerned with the meaning of an exception or qualification to such an obligation.

25 The present matter is of course one which relates to a provision creating an obligation to provide information. The words "all documents and other material" seem to me unavoidably to constitute express words which can only have the effect of abrogating a claim for legal professional privilege providing that the qualifying words "on which the Commissioner has relied" do not exclude the document from the obligation to provide information. In that sense, the Commissioner's submissions are correct; namely that, if the legal advice was not a document falling within that qualification, the question of privilege does not arise. On the other hand, the privilege does arise if the document is pressed for by the party seeking it on the basis not that it is a document obliged to be provided under s181E but is sought generally. In that respect, the applicant relied upon the judgment of Madgwick J in Smith and ors v Western Australia and ors (2000) 98 FCR 358 where at 361 his Honour said: The applicants do not contend that privilege exists over the site surveys and it is unclear from their submissions whether Dr Waite's solicitors do. However, the matter can be dealt with briefly. Dr Waite deposed that the site surveys were produced in accordance with the provisions of the Aboriginal Heritage Act to assist the Department of Aboriginal Sites of Western Australia to make assessments of Aboriginal heritage. The dominant purpose for the production of these reports, therefore, seems to have been to comply with the Aboriginal Heritage Act , and not to provide legal advice. For this reason privilege does not apply to the site surveys.

26 Mr Docking submitted that, in conformity with that approach: "The dominant purpose for the production of the advice might have been to comply with the P(olice) S(ervice) Act, and not to provide legal advice. For this reason privilege does not apply."

27 Having reviewed the advice, I consider it to be of a nature that entitles the Commissioner to claim privilege.

28 It is also desirable to mention the judgment of the High Court in The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission [2002] HCA49, given on 7 November 2002 and about which the parties have not, of course, addressed. The particular point in issue in Daniels was a claim for privilege in relation to documents, access to which was sought by the ACCC pursuant to s155 of the Trade Practices Act 1974 (Cth). That section, which authorises inspection of documents in certain circumstances is of no present relevance. I refer to the case merely to extract the general observations of the majority of the Court on legal professional privilege, as follows: It is now settled that legal professional privilege is a rule of substantive law ( Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490 per Deane J) which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation ((1999) 201 CLR 49 at 73 [61] per Gleeson CJ, Gaudron and Gummow JJ) in place of the "sole purpose" test which had been applied following the decision in Grant v Downs ((1976) 135 CLR 674).

Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection (see, with respect to discovery and inspection, Mann v Carnell (1999) 201 CLR 1) and the giving of evidence in judicial proceedings (see Baker v Campbell (1983) 153 CLR 52 at 115-116 per Deane J; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 55 [4] per Gleeson CJ, Gaudron and Gummow JJ; Mann v Carnell (1999) 201 CLR 1 at 10-11 [19] per Gleeson CJ, Gaudron, Gummow and Callinan JJ). Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s155 of the Act provides. Thus, for example, it was held in Baker v Campbell , that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s10 of the Crimes Act 1914 (Cth) (see also Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501).

29 The applicant's attack upon his removal from the Police Service was multi-faceted as follows:

The Commissioner's statutory decision-making process is marred by procedural unfairness.

Mr Miller is entitled to a finding of substantive unfairness because, on the merits, the Commissioner has not made out the charges in his s181D notice.

The delay in the decision to remove the applicant was harsh, unjust and unreasonable where he continued to work as a police officer in a most commendable fashion.

On any view of the circumstances, removal was far too severe a penalty.

Reinstatement without loss is the appropriate remedy.

30 In addition, reliance was placed on other principles of general application:

The application of Part 6 of Chapter 2 of the Industrial Relations Act in relation to unfair dismissals except where expressly excluded by the provisions of s181G(1) (See Little v Commissioner for Police (No 2) ibid at par.65).

Where sufficient doubt is raised as to whether the requirements of s181D have been met by the Commissioner, an evidentiary burden arises upon the Commissioner to demonstrate that those requirements have been adhered to (per the Full Bench in Oswald v New South Wales Police Service (No 2) (1999) 90 IR 42 at 64 in relation to s181B, the forerunner provision of s181D; applied in the current statutory context in Van Huistedde v Commissioner of Police (2000) 98 IR 57 at 107). It was submitted in this context that the failure of the Commissioner of Police to given evidence is of considerable importance and means nothing he could say would assist his case.

Findings of Fact 31 Before dealing with the misconduct alleged against the applicant, it is convenient to deal with some of the surrounding features in which that subject will be in context. The applicant was particularly skilled in the matter of techniques designed to assist officers in their survival particularly in their contacts with violent or potentially violent offenders. His skill in this regard was well recognised and he performed the task over many years of providing one-on-one training with probationary constables and other officers when they thought necessary. The provision of this training was in conformity with requirements of the Police Service and was known to the applicant's senior officers. I find that the provision of this training was authorised and expected by the Police Service.

32 The provision of OS training involved express physical contact between the trainer and the trainee. It at least required the hands of both participants to come into contact with the arms and legs of each other and for frequent contact of a body to body kind.

33 There was no barrier to a male instructing a female in these techniques. Photographic material in one officer training manual shows, although in a different training context, male/female participation.

34 It was the applicant's custom, when addressing groups of new probationary constables, to offer his training services in this regard to both males and females. Generally, the undertaking of this training was voluntary. In the case of Constable Gorton it was arranged for her by other officers supervising her early progress in the Service due to their concern about her lack of skills in this area. The applicant was nominated by those persons as appropriate to provide the training.

The Alleged Conduct 35 The conduct alleged against the applicant involved three female probationary constables. They were Constables Hay, Hughes and Gorton. The training involved for each of them was undertaken at the Campbelltown Police Station although in the case of Constable Gorton it also took place at her mother's home where she was then residing, and later at her own home. The Commissioner's statement of reasons recording "that on a number of occasions this training took place at their private residences" is to that extent incorrect.

36 I propose to deal with the allegations in relation to each participant in what I consider ascending order of seriousness.

37 Constable Hay was first interviewed about this matter on 24 August 2000 by Chief Inspector Waters. It was explained that the Inspector was making enquiries concerning an incident where Sergeant Miller had conducted himself inappropriately during some extra OS training at Campbelltown Police Station in about August 1999 with Constable Hay. She said she was having a cigarette with Sergeant Miller outside on a weekend afternoon when he asked how her OS skills were and said "Well seeing that it's a fairly easy afternoon we'll go up and take you through some of the survival techniques". He had told her he was the OS Instructor for Campbelltown. She returned to work and later he came back down and got her for the training. They walked into the upstairs muster room. She said she left the door open but he went and shut it. As to the training she said: "Initially it was just um OS skills, like wrist locks and um dragging techniques, trying to remember, I remember he had me on a chair at one stage and had my arm around up my back, um and told me to try and get out of that, um then I can't remember how I was supposed to get out of it, another time he had me on the ground and he was straddled across me, that's hard to explain but he was sort of knelt down with one leg on either side of me and told me to get out of that, which I did with a few kicks and stuff like that, um sort of um, he had me up against a wall another time with my hand behind my back, he showed me searching techniques on me".

38 It was explained as "Oh how to hold person while they're searching and stuff like that . . .". She was asked: Q42. Did he touch your body at all through the course of the searching techniques? A. Touched my back, but I don't recall that no, no just my back I think and underarms, nowhere else I don't recall him touching.

Q43. Excuse me sorry, did he touch you in any of your private parts at all? A. No, ah not that I could say were deliberate . . . no he didn't touch me anywhere untoward, it was just the um the fact that I was alone, one on one and also the positions he had me in.

Q44. What sort of positions were they? A. Like me lying on the floor and him over the top of me and telling me well if someone had you like this, how would you get out.

Q45. Okay A. Up against a wall, my arm behind my back, him holding my arm behind my back, he showed me how to hold (inaudible), how he'd come behind me in a neck hold and stuff like that um, I, I really um, at the time I didn't think of it as sexual harassment as more of inappropriate, um I thinking to myself, shit I really shouldn't be here, we shouldn't be here alone um and, if he were to try anything I would have nowhere to go, he's a lot stronger than me, I ended up with bruises on my arms and he ended up with scratches on his.

39 She said that he had told her not to say anything and then gave this answer: He said, you're best not to tell anyone about this, some people think it's a bit, some people get a bit funny.

40 She was also asked about whether this was the only instance that she was given training to which she answered: Yeh, he offered a few times, but I didn't say yes again.

41 Later she indicated she had told a Constable Byrnes of the training. When asked when that was she said: A. About a week later, oh when I came downstairs all the boys, all the guys down there were having a big laugh about the fact I'd been up there with Dusty Miller and (inaudible) him, but I didn't say anything about it because all I thought it was, was inappropriate, I know I should have known better, because I'm not exactly a young person.

42 Later she said that she was in conversation with Constables Hughes and Gorton about 12 months after the training session when she said they were discussing their experiences with OS at Campbelltown and "we were all shocked that it happened . . . ". She later said: A. "I wasn't um, I wasn't on duty when it happened to them, but I don't know when it happened, it was just um, Janine and I were just happen to be talking about it and we were just amazed that, that we were the only persons he done it to, both silly, silly enough to fall for it, I don't know I haven't discussed it with them, I wasn't sure if it was appropriate to discuss what happened to them or not I know Janine was fairly upset, I haven't spoken to Constable Gorton."

43 She also expressed the view that she would have no concern working with Sergeant Miller in the future.

44 In the course of her oral evidence in the proceedings Constable Hay was cross-examined about her experience. She held the qualification of Diploma of Education and also a Diploma of Science which she acquired later through four years part-time study and had become a teacher teaching special needs. For the last 15 years or so she was a landscaper teaching landscaping to special needs adults. At the time of the training incident she was approximately 38 years of age (although in her oral evidence she expressed the view that she thought she was 41 at that stage). She attested to there being nothing in her police notebooks which would support her allegations against Mr Miller.

45 She agreed in cross-examination that Sergeant Miller never touched her private parts at all in any way that she would say was deliberate. She also agreed that she had never suggested to anybody that he had touched her deliberately and inappropriately on the breast or in the area of the crotch.

46 She was asked whether she had ever complained to the supervising officer on duty on the night of the training with Sergeant Miller to which she answered A. Didn't need to.

Q. Why, because he saw you when you came down? A. Because he was laughing and telling me what had happened up there, when I came down.

47 In relation to her discussions of this event with other female officers she said: A. When we originally discussed it or discussed anything it was an informal chat with a few girls around, again no details given, no anything. Once the next reference to it was when it was proceeding to a complaint, the next reference I had, and then I thought it might not be appropriate to discuss it and I didn't want to discuss it, I didn't want it to go anywhere.

Q. In terms of you not thinking it appropriate to discuss it, you knew it was just basic proper police practice for alleged victims not to discuss allegations amongst themselves? A. That's right. Q. You know it would be improper and inappropriate for the alleged victims to talk to each other about what the alleged offender did to them? A. That's right.

Q. Is that what you did with Janine Hughes, talk to her about some of the detail? A. Never. I didn't even know what was alleged to have been done to her. I didn't know what was alleged to have been done to Christine. We discussed very informally OS training, no details.

Q. I am limiting it to Constable Hughes. Can you tell the Commission in "I said" "she said" format as best as you can as to what was said in the conversation or conversations you did have please? A. No I can't, I can't. I don't know. It was an informal chat I thought would go nowhere. . . . .

Q. You are saying at no stage did you ever give in any conversation any details to Constable Hughes? A. Hughes, no.

Q. The same applies to Constable Gorton? A. No, never spoke to Christine. I didn't have a conversation with Constable Gorton.

Q. In relation to your telephone conversation that happened after with Constable Hughes, again in the same way you gave an overview which really was "I said, she said", will you do that please? A. The overview was, Janine was concerned that the same situation could have occurred to someone else and she wanted to know what to do about it. My advice was to do nothing about it.

48 In re-examination when asked what she had meant in cross-examination with her answer "I know what I felt and I know what I feel" this evidence followed: Q. Can I firstly ask you what did you feel at the time of the session? A. I felt he was getting his rocks off and that's my honest opinion, but it wasn't going to go any further than rough and tumble.

Q. Is that the view you still have as you sit in the witness box today or do you have a different view? A. No, it's the same, but equally I didn't - it was rough and tumble. I observe that no definition of the phrase "getting his rocks off" was sought from the witness. I did not understand it to mean more than that he was enjoying himself. The Macquarie Dictionary gives the definition of the phrase "get one's rocks off" as colloquially to mean to have an orgasm. I do not find that the evidence was intended to convey that definition.

49 Constable Hay described the nature of the training that Sergeant Miller was giving her this way: A. He was teaching me more realistic or unconventional methods of freeing myself.

50 Constable Hughes' allegations relate to three OS training sessions given to her by Sergeant Miller, the first of which occurred between April and May 1999 between 11pm and 2am on a 6pm to 6am nightshift when Sergeant Miller told her that he would give her OS training. He told her buddy on the truck that he was to do this. They went to a lecture room on the upper floor, the floor not being occupied at that time. They commenced by Sergeant Miller demonstrating searching techniques. She said: A.39 . . . he would um, pat my clothing down, um, and he lifted the underwire of my bra and said, 'You have to check here, this is where, this is where they put drugs'. Q.40 Can you tell me at that time, um, did you have your shirt on? A. Yes.

Q.41 So he did he lift your underwire up, over the top of your clothing, like by touching you on the outside of your shirt? A. Yes, yes.

Q.42 Okay? A. Um, then he would um, I can't remember the name of the technique, I think it was called the 'knife edge' technique they use for searching and um, he ran his hand over the crotch area and down my legs and um -

Q.43 How did you feel when he did that? A. Very uncomfortable.

Q.44 Alright, did you tell him you felt uncomfortable? A. I said to him, "Males aren't allowed to do this on females, we would usually get a you know a male person to come down or vise versa, you know a female to come down and search." He goes, "Yeah, you have to know just in case there's no other males working at night, there's only females working at night you have to know how it's done." Umm, and then he we'd move on and he would umm, then he'd tell me how to demonstrate how search on him, and like I'd just pat down his clothes and um at first I just ran my hands down his legs and he said, "No," and he said, "You have to use the knife edge technique" and he said, he told me about a story that he had when a criminal had hid a small knife in his crotch and he me that I had to you know run my hand through his crotch to make sure he wasn't hiding anything.

Q.45 Did you do that on the outside of his clothing? A. Yes.

Q.46 Did you have to touch any other part of him? A. No.

Q.47 He didn't actually ask you to touch him anywhere else? A. No.

Q.48 Okay, did you object to doing that? A. No.

Q.49 Did you tell him that you didn't want to do it? A. I told him again, I said, "I won't have to do this." And he said, "You have to know how to do it." He told me that if, "I couldn't do it here with just him that I wouldn't be able to do it out in the street and that I shouldn't be in the job."

Q.53 Okay, so after you'd been up there for about an hour and you'd searched him and vice versa, what happened after that? A. Umm, then that was it, he went through other techniques like how to get someone on the floor, how to get an offender from a standing position onto the floor, and then once they were on the floor, how to search them on the floor which umm, included basically the same things but um, he would um -

Q.54 When you say included basically the same things, just explain that to me? A. Okay, he would pat me down on the outside of my clothes and then he would -

Q.55 How were you laying on the floor? A. Umm, I was laying on my stomach, and he would pat my clothes down from the outside and then he'd do the knife technique which was running down umm, the front of the chest and then he would pat my chest and like he -

Q.56 Did he touch your breasts at all during this? A. He'd pat it, like he'd pat, like he didn't actually grab hold or anything, but he would pat it down.

Q.57 And how did you feel while this was going on? A. Very, very uncomfortable. I wanted to -

Q.58 Did you say anything to him on this occasion when you were doing the searching techniques on the floor? A. I said to him I said, "Look I better go, my partner will be looking for me." And then he replied he said, "Don't worry about that, I'm the Duty Officer, if he has a problem he can come and see me."

Q.59 So after that, did you have to search him on the floor? A. Uh hum. Yes.

Q60. And did that entail the same sort of thing as before with - ? A. Yes.

51 Constable Hughes said that the second occasion of training was 10 days to 2 weeks after the first incident, probably about the middle of April. It occurred in the same place "up in the top muster room" at probably about midnight. The evidence was: Q.75 Alright, tell me what happened then? A. Umm, I didn't actually, because I was in the station, I didn't have my appointments on so I didn't have my handcuffs with me. So you know were (sic) just pretending to use the handcuffs and he would at one stage he said to me, "I want to practice this as a real scenario, that pretend I'm a baddie, I just broke into your bedroom window." I said to him, "No, I don't want to do that," because like I was afraid that he would take it too far and we were on the floor um -

Q.76 How did you get to be on the floor? A. Well, he told me to lay down on my stomach and then he said he was going to handcuff me -

Q.78 Were you supposed to be co-operating with him or - ? A. Yeah, yeah and he'd grab one hand and he'd grab the other hand and he'd hold my hands behind my back and sat on me, he sat on my back.

Q.79 What did you say, did you say anything? A. Yeah, 'cos I couldn't breathe, I said, "Can you get off, I can't breathe" and he laughed.

Q.80 Okay, what happened then? A. Then we tried other techniques, one where I was kneeling, and oh sorry, when we were on the floor, sorry he was going through how to search someone, while they were on the floor while they were handcuffed and would, do the same, he would pat my clothes on the outside and then he turned me on one side so I was on my stomach but I was lying half sort of on my arm and he would again he would just use the same knife techniques and you know he'd pat me down and like he'd say things like to, "put my legs further apart" so he could search down my legs and he used the "knife edge" again to search the crotch.

Q.81 So did he actually touch your vagina? A. Umm, when he would touch, use his hand to touch the crotch like he didn't grab it or anything like that, but -

Q.82 On the outside of your clothing? A. Yeah.

Q.83 And what did you say when he was doing that? A. Nothing.

Q.84 Nothing. Okay, did he ask you to handcuff him, or pretend to handcuff him? A. Yep. I did the same to him, he was on the floor and umm, actually during this time a Senior Constable actually walked in, umm Tony Morris.

52 The third incident occurred roughly two weeks after the second. It occurred whilst Constable Hughes was on night shift again in the upstairs muster/lecture room. It only lasted possibly 20 minutes. She said: A102. Umm, we did batons and he was showing me the strike areas. And we also practiced umm, just Officer Safety things like umm, holds, different sorts of holds, umm bear hug holds where he would grab me from behind and I've have to you know try and get out of it. Umm, wrist locks, practised things like wrist locks.

Q.103 Did he touch you anywhere that you felt was inappropriate on that occasion? A. No, we were just doing, just basic holds on that occasion.

53 Constable Hughes then spoke of a discussion she had with Constable Hay which happened to raise the matter of any dealings the latter may have had with Sergeant Miller. She said that Constable Hay told her what had happened. She said she then realised it was not just her and she spoke to her peer support officer.

54 Constables Hughes was asked about her discussion with Angela Hay and this discussion followed:

Q.115 When you spoke to Angela Hay did she elaborate on what had happened to her to you? A. Yes. Yes. Q.116 What was her response to that? A. She said that he'd done the same to her but he'd got, he went away bleeding, that he had sat on top of her and that she had scratched him.

55 Constable Hughes also spoke in the interview of having telephoned Constable Gorton whose name had been mentioned to her by the peer support officer as someone about whom she was concerned. Constable Hughes then said: A121. I told her I said, the reason why I'm ringing, I said, you know I've got a problem (I can't remember the exact words I used), I said I've got a problem with Sgt Miller, I've told some people about his behaviour during when we did O.S. training, I said, I want to know if he'd done the same things to you. And she told me that she had just had a call from Inspector Waters and that she told Inspector Waters that she didn't have a problem. Umm and she told me that she'd lied to Inspector Waters, that um because she was scared you know she didn't know what to do. She told me that he had done - I told her happened to me. It was very hard for her to talk about it. She didn't want to go into detail. She said things had happened that she'd only told one person and that was her best friend and that she hasn't told anybody, she said she just wanted to forget about it. And I told her what happened to me, about the searching, about the you know touching and you know touch my crotch and pat my breast and she said he had done the same things to her.

Q.122 Okay. A. And that she had told him she didn't want to do it anymore. Cos she said she took him on as a father figure and basically she didn't want to see him get into trouble.

Q.123 So how would you say your relationship is with Sgt MILLER now Janine? A. Good, like he bent over backwards and went out of his way to help me especially, I had trouble with the University. And like he bent over backwards. I haven't since that time probably after the last incident the rosters for the Duty Officers have changed at Campbelltown and they weren't on the teams anymore. And so I never had to work with him since then and then I went to a different section for a couple of months, for five months. And I haven't had really anything to do with him.

56 In cross-examination Constable Hughes agreed that she had had a fair deal of life experience having worked for a magazine firm in the city and in the club industry. She said that when she started at Campbelltown Police Station she was introduced to Sergeant Miller as the person to talk to about street safety and OS survival methods. Later, Sergeant Miller spoke with Constable Hughes and another officer and told them that he was the OS instructor and if they needed any help to come and see him. She was asked whether she had any notes in her notebooks to support her allegations against Mr Miller; there was nothing there. Her evidence included the following: Q. You know that your allegations are ones of sexual assault in contravention of section 61M of the Crimes Act 1900 against Mr Miller don't you? A. Yes.

Q. The reason there are no entries in your notebook is because the allegations which may constitute sexual assault never took place? A. That is not true.

Q. You never made any contemporaneous record anywhere about that? A. No I didn't.

Q. You could not have forgotten your basic police training that was required could you? A. No, it was a very different situation to what we are taught at the Academy.

Q. Don't you know you have an obligation as a member of the Police Service to report to a senior officer if another officer had in effect engaged in a criminal offence or other misconduct? A. Possibly.

Q. You knew that when you started at Campbelltown? A. Yes.

Q. The reason you made no report contemporaneously or close in time to your allegations against Mr Miller is they never happened? A. That is not true.

57 Constable Hughes said that she had complained to Constables French and Kovacs. As to the latter she denied that she told Constable Kovacs the experience with Sergeant Miller was limited to one occasion. These complaints were made as much as 18 months after the training session. She could not be sure of the date of her complaint to Constable Kovacs but thought it was about November 1999.

58 As to the OS training itself, Constable Hughes' evidence was as follows: Q. Because in your record of interview do you remember you agreed you took up his offer and you told him you felt the OS at the Academy was very rushed? A. That's correct.

Q. And that you took the view in effect any extra training would be helpful? A. That's correct.

Q. You never changed from your view at that time that OS at the Academy was very rushed? A. Yes, it was.

Q. That has always been your view about OS training? A. From the Academy, yes.

Q. So, recognising at least your own experience of OS training at the Academy, you were particularly interested, weren't you, to improve your OS skills once you got to Campbelltown? A. Of course.

Q. I think I am reading your interview correctly; putting aside the issue of male on female training, the actual techniques shown to you, as you allege, by Mr Miller, were those that you had become aware of from attending the Academy? A. Yes.

Q. For example, let's deal with, say, the opposite sex search, somewhere in the area below the shoulders or arm pits down to just above the knees; that technique that was used, and it is the same sex, was what is called the knife edge technique? A. Yes.

Q. That means using the edge of the hand? A. Yes.

Q. And means, doesn't it, that you don't leave your hand there for many seconds but take it with quick action down the body? A. Yes.

Q. You certainly when using that knife edge technique don't leave your hand, say, on the breast for many seconds, it is quick action around the area? A. Yeah.

Q. That is what you allege Mr Miller performed on you, that technique? A. He was using the knife edge technique, yes.

Q. He used the knife edge technique in the way we just agreed was the way the Academy suggested? A. Well, not in certain areas, no; that is not right.

Q. Where are you saying for the moment - I will come to testing your allegation - where did you say he did not use the knife edge technique in the way the Academy suggested? A. On one occasion he pulled - lifted my bra away and that wasn't shown to us at the Academy.

Q. Is that the only exception? A. No, like I said then, at the Academy we are told we don't - males don't do the search of females and vice versa.

Q. Are they the only two exceptions? A. No, on other occasions he has touched, like I said, with the knife edge technique like this (demonstrated) and on occasions he did actually touch my breasts.

Q. Are they the only exceptions? A. No. On other occasions he has asked me to get on the floor, asked me to get on my stomach and he has done the searching technique touching my crotch area.

59 It was later elucidated that the Constable was asserting inappropriate touching of the breast on the first two occasions only. The third occasion did not involve any inappropriate touching of any kind. She confirmed that she had been enthusiastic about the OS training but after the first session she was not interested in taking further training. She adverted to her wish not to make a formal complaint at the time she first spoke to Constable Kovacs.

60 In the course of cross-examination Mr Docking put to Constable Hughes that basic police practice and procedure was to avoid contamination of the evidence of victims as a result of them talking to each other. She agreed with that. She disagreed that her speaking with Angela Hay and with Constable Gorton constituted such contaminating conduct. At the time she was speaking with Angela Hay she said that she did not know she was a victim at that time. The position was the same with Constable Gorton. She disagreed that she was given any details of the nature of the contact between Constable Gorton and Mr Miller. She was shown Ms Turner's diary and disputed the first four lines of the relevant entry would have been said by her to Ms Turner. This entry asserted that Ms Hughes had told Ms Turner that Sergeant Miller had touched her inappropriately on the breast and private parts area on each of three occasions of OS training. The diary note also recorded: More recently she spoke to AH (Angela Hay) and the subject was brought up and it was confirmed by AH that he did exactly the same to her . . .

61 Constable Hughes was cross-examined about the words "he did exactly the same to her". It was suggested that the only sensible reading of that was that Miller had done exactly the same to Constable Hay as done to Constable Hughes, namely, inappropriate touching of the breast and private parts area. Upon being asked to suggest another interpretation she said it could mean 'has touched or done something inappropriate'.

62 Ms Turner's diary note also included the following for 22 August 2000: 22/8 JH told me she had given a statement to T.C. E.R.I.S.P at M/F - also CG admitted to her that she is also a victim but that DM touched her the same but on the skin and asked her to touch his penis - has kissed CG and visited her home on three occasions. JH said that AH will give a statement.

63 Again she was pursued in cross-examination on this matter. She denied the word "penis" was used by her. She said "I don't think Christine would have mentioned that word to me". Her evidence continued: Q. Are you denying, now that you have seen the notes, that you told Turner that as a result of your telephone conversation with Gorton something like "on the skin"? A. That she had been touched the same, or things had been done the same, yes, but that's not great detail.

Q. You have confused me. What your present evidence is you are saying that you now accept that you did say to Turner something like, "Gorton had said Miller had touched her the same", that's on the skin? A. Yes, that's right. That is not detail.

Q. You are just making this up as you go along? A. No.

Q. As you are trapped with this note, aren't you? A. No, it's not true.

Q. Are you denying that you also told Turner in this conversation after your previous conversation with Gorton that Gorton alleged Miller asked her, being Gorton, to touch him on the penis? A. It didn't say that.

Q. Look at the entry for 22 August? A. Yes.

Q. And look a little bit to the centre to the right, what appears on the third line? A. Yes, I don't recall saying that.

Q. Do you deny that? A. I don't recall that Christine would have put that to me.

Q. Is it your evidence that that might have been said, now that you have been confronted with the notes? A. No, I am not denying that I had a conversation with Christine. I had a conversation with Christine but she's not going into detail as to what happened with her but she told me that she was a victim.

Q. I will try and get you to answer the question again. Now that you have been confronted with the notes, are you denying the conversation with Turner included you saying words like, "Miller asked Gorton to touch his penis"? A. I don't recall that, no, I had that conversation with Loraine, that I said those words.

Q. Your evidence is that it might have been said but you have forgotten? A. No, she might have interpreted something that I said, but I don't recall saying that word.

Q. So you are denying that you said anything like that? A. I don't recall it.

Q. Just answer, would you please? A. I am not denying that that happened, but I don't recall that I have said that. Lorraine may have interpreted something else that I said, but I don't recall saying that.

64 She agreed also that while she was not sure how many times Sergeant Miller had visited Christine Gorton's home she was aware that he had visited the home and that Constable Gorton had said that he had kissed her.

65 In cross-examination she denied that she had not mentioned to Snr Constable French, the first person to whom she complained, any touching of the breast because it did not occur. She referred to her relative newness, only a couple of months into the job, and the embarrassment which she felt.

66 Constable Hughes was taken through her practicum training reports where in December 1999 she had recorded "I feel that my peers here at Campbelltown make it easier for me to discuss matters and reflect" as indicating that her alleged lack of confidence was "make believe". She denied that and asserted that: "When I made these comments they were references to something totally different from as to what happened to me. We are talking about things about the job, about going out to the general duty type of work, not talking about the sexual harassment that happened to me."

67 She was asked about her communication with Sergeant Miller in the light of her evidence that up until August 2000 she had felt sick every time she had looked at him. She said "He was my mentor, so we had to liaise with each other quite often to meet the criteria for my assessments".

68 As to the possibility of inadvertent physical contact between the training officer and the trainee, the evidence was: DOCKING: Baton training. It is going to be inevitable that there is inadvertent contact between the female person's breast area and the male officer? A. Yeah, with batons, yes.

Q. The same applies to handcuffing techniques, doesn't it? A. It depends on how close, not with the type of contact that happened to me is not, I wouldn't imagine would come into contact anywhere.

Q. But you are making that up, aren't you? A. No I am not.

Q. That there was the sort of contact you allege by Mr Miller, that you say was sexual assault? A. I'm not making it up, no. That is what happened.

Q. In terms of defence to choke holds, there is necessarily close physical contact between a male officer and another female from time to time, isn't there? A. Yes.

Q. Touching of the breast and even possibly in the crotch area is likely? A. Well yeah, it can be likely, but not in the area, not in the way that it was done to me.

Q. In terms of wrist lock techniques, again you are struggling, trying to role play a position out in the streets, it is inevitable there will be contact in the private areas in those sorts of struggles? A. Accidents maybe in brushing, but what happened to me, to me they were not accidents and they were not just the occasional brushing.

Q. Which version is true, when you told Kovacs that it was touching once in the private area of the breast, the version you told Turner that it was brushing in the private area of the breasts on three occasions, or the version which you gave to the police in your interview, that it was such touching only on two occasions, which of those versions is true? A. I know what happened and what happened is, the way that I told in my ERISP interview, the way the other people interpreted what I say, I can't say the way they think of what - they can make up stories of what they think I said, but I know what happened and what happened is the way that I said in my interview.

Q. So you are saying the two other versions related by Kovacs and Turner are false? A. I didn't say they were false. I said they may have misinterpreted what I have said.

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