Morell v Commissioner of Police, NSW Police Force

The proceedings

1. Following an unsuccessful conciliation before Chief Commissioner Constant, the matter was allocated to me for hearing.
2. Directions were made for the filing and serving of evidence and outlines of submissions and hearing dates were scheduled, with further dates being required.
3. At the hearing, the applicant relied on two of his own witness statements, his response to the 181D show cause notice, the Commissioner Statement of Reasons. as well as a witness statement of Mr Pone, who was not available for cross examination.
4. For the respondent, they relied on witness statements of Constable Corner and Sergeant Bentham as well as the Commissioner's Confidence Bundle. This bundle included all the materials which were before the Commissioner in considering whether to make the Order.

Approach

1. In considering the Application, I am required by s. 181F(1) of the Act to take the following approach. 1. Consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force (the "NSWPF"); 2. consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust; and 3. consider the case presented by the Commissioner in answer to the applicant's case.
2. Sub-section 181F(2) of the Act places the burden of proof on the applicant to establish that the removal was harsh, unreasonable or unjust.
3. In relation to the application of the onus, the applicant submitted that where the applicant advances a case or argument that might go to establishing their removal was harsh etc the onus of addressing that case falls to the respondent. In support of this submission the applicant relied upon the Full Bench decision of Hosemans v Commissioner of Police [2004] NSWIRComm 253.
4. The respondent submitted since the decision of the Court of Appeal in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 and the Full Bench of this Commission in Tredinnick v Commissioner of Police (No 2) [2016] NSWIRComm 14, the reasoning in Hosemans is no longer relevant to the Commission's consideration of the applicant's onus under ss 181(2).
5. The respondent also made the following submission as to how the applicant's onus is to be applied in this matter: 13. The application of the onus in these proceedings carries particular significance. As will be addressed further below, the Applicant's case (s 181F(1)(b)) in these proceedings is that he did not engage in the misconduct for which he was removed. Accordingly, it falls to the Applicant to disprove the factual premises set out within the Order and Reasons. Of course, it is insufficient for the Applicant to baldly deny the allegations. An alternative hypothesis, led by way of evidence, is required. 14. To the extent the Applicant contends that it is contingent upon the Respondent to produce all the witnesses who provided evidence that forms part of the CCS Bundle, so that their evidence can be tested before the Commission, that submission is inconsistent with the Full Bench's decision in Tredinnick and NSW Court of Appeal's decision in Zisopoulos, and the settled authorities that have followed those decisions. It fails to grapple with the onus the Applicant bears. 15. It is sufficient to say that these are not criminal proceedings. The Respondent is not a prosecutor who is obliged to make all witnesses available for cross-examination by a defendant. As Tredinnick at [55] makes pellucidly clear, the Applicant bears the onus, and so it is upon him to call evidence that establishes the contentions that he advances, including by way of disproving the misconduct in the Order and Reasons.
6. The applicant's approach to onus is incorrect for the reasons set out in the respondent's submission above.
7. However, the respondent's submission to the effect that the applicant must adduce evidence to disprove a negative is not always correct. In some cases, this may be satisfied by the applicant casting sufficient doubt on the Police Commissioner's reasoning process Zisopoulos at [84] and this can be done by way cross examination of witnesses and the making of submissions. However, it has to be sufficient doubt, not just any doubt.
8. The Commission is also required under ss 181(3) to take into account the applicant's interest as well as the public interest.
9. In relation to the nature of the review, the applicant by reference to the decision of Hosemans at [134] submitted that it is a hearing de novo and not one of administrative review. However, Bell P, in Zisopoulos at [83] held that the nature of the review is not "de novo" but is closer to a merits review than judicial review.

Commissioner's reasons

1. The respondent in the statement of reasons attached to the Order, stated that she was "satisfied that there are reasonable grounds to conclude that":

• On 24 November 2019, while effecting the arrest of Mr Slater, the applicant punched Mr Slater in the stomach area and slapped / struck him across the face, in circumstances where this use of force was not reasonably necessary in the circumstances ("Allegation 1");
• On 24 November 2019, while escorting Mr Pone, who was under arrest, to a police vehicle, the applicant struck Mr Pone in the back of the head, in circumstances where this use of force was not reasonably necessary in the circumstances ("Allegation 2");
• On 24 November 2019, the applicant asked Constable Corner to turn on his Body Worn Video ("BWV") camera before stating that Mr Pone had hit him and kept trying to 'throw punches' towards him, which the applicant did to create a false or misleading record of his interaction with Mr Pone ("Allegation 3"); and
• The applicant entered false, or at the very least misleading, information in COPS Event E73132934 ("Allegation 4") when: 1. In the version that he completed and submitted for verification on 30 November 2019, he answered "no" in the field that asked "was force used?' and limited his physical contact with Mr Slater to a 'check drill'; 2. in the version he completed and submitted for verification on 6 December 2019, he wrote "SLATER started to yell at police once informed of his arrest, SLATER continued to state, "I am not under arrest["] and continued to pull away from Police. He then yelling turned towards police standing in close proximity and was subsequently check drilled which is an approved Police technique, Police struck SLATER with an approved knee and hand strike to effect a pain compliance on arrest"; and 3. in both versions, the applicant said that Mr Pone stood facing Police, in close proximity, before police applied an approved check drill to create a safe reactionary gap.

1. In reaching this conclusion, the respondent relied upon statements from the following individuals: 1. Mr Slater who was involved in Allegation 1; 2. Mr Pone, who was involved in Allegation 2; 3. Mr Beattie, a person who was present when the applicant and Constable Corner arrived at the Incident; and 4. Constable Corner.
2. The respondent also had regard to the following: 1. Body worn video footage, worn by Constable Corner; 2. The first COPS event entry made by the applicant on 24 November 2019 at 5.03am; 3. The applicant's notebook, in particular entries made on 24, 28 and 29 November 2019; 4. An update of the first COPS event, made on 6 December 2019; 5. Record of interview with the applicant on 23 February 2021; 6. Applicant's reply to the investigation dated 22 April 2021; 7. Directive memorandum response of Constable Corner of 25 May 2021; and 8. Applicants response to s 181D(3)(a) show cause notice.

The applicant's case

1. The applicant's primary submission with respect to all of the allegations, is that he has discharged his burden of proof by casting sufficient doubt on the respondent's findings.
2. It is alleged by the applicant that the Commissioner failed to take into account the level of seriousness confronting the applicant in the lead up to and during Allegations 1 and 2.
3. The applicant gave the following evidence as to what he understood to be the circumstances at the scene to which he and Constable Corner were to attend: 23. The Statement of Reasons ('the Reasons') says that police were alerted to a group of males that were throwing glass bottles and spitting from the unit in Warby Street, Campbelltown. In fact, this was the fifth call police had received about the conduct of the youths in Mr Slater's unit. 24. The calls and the radio broadcasts were over a period of six hours. The first call stated that there were 20 to 30 young males throwing bottles and yelling and that some of the bottles were landing on the street. The call was classified as an urgent priority job requiring police to respond immediately because there was actual violence. At least 10 police officers responded to the radio broadcasts. 25. The incident in question on 24 November 2019 was a violent situation which commenced about 8.32pm the previous day and was ongoing when Constable Corner and I arrived about 2.40am. The radio broadcast said that 20 to 30 intoxicated young males were on the balcony and on the street, and they were intimidating people, they were throwing glass bottles and rubbish at people and passing cars, and swinging some sort of metal poles, jumping on cars, and spitting at people. Obviously, glass bottles and other heavy objects being thrown from a height are potentially lethal, and the situation had been continuing for six hours, and I believed it was escalating.
4. The applicant further alleged that upon arrival at the scene he saw blood and broken bottles scattered everywhere on the ground, he then states that he spoke to Mr Beattie. The applicant states that Mr Beattie gave him the following information upon arrival: …two offenders throwing the bottles onto the roadway and throwing food at a bike rider. Mr Beattie stated that he crossed the road to avoid anything hitting him, and he called triple zero and stated that someone had thrown bottles at him and spat at him.
5. The applicant states that when he entered the unit, he walked down the hallway and there placed Mr Slater under arrest.
6. The applicant also stated that there were four or five other persons that he could see in the lounge room and that he heard a glass bottle break, all of which he said lead him to believe that there was high level of risk. He also pointed to another experience that he attended upon, some years beforehand, which was also a priority level 3 incident, in which things turned violent very quickly.
7. The applicant then asserts that Mr Slater tensed up and given all of the circumstances and his experience, he needed to get the situation under control and get Mr Slater out of the unit. To do so, he says that he conducted a check drill REDACTED and then performed a knee strike to the leg and a hammer strike to the body.
8. In relation to Mr Pone and Allegation 2, the applicant admitted that he may have struck Mr Pone in the back of the head, but did not do so intentionally as he was attempting to perform a check drill on Mr Pone. The applicant submitted that a check drill was a reasonable response to the situation he was confronted with given Mr Pone was flailing his arms around and had struck the applicant in the arm in an attempt to break away from the applicant.
9. As to the issue of reasonableness, the applicant relied on the following passage in R v Turner [1962] VR 30 at 36, and adopted in Woodley v Boyd [2001] NSWCA 35 at 37: "What is reasonable depends on two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented ..."
10. The applicant also made the following submissions: 81. The Applicant submits there are a number of factual conclusions the Commission would make in this fresh and independent review. When those factual conclusions are made the misconduct found established by the Respondent can not be made out. Before addressing those, the Applicant relies on two decisions in the NSW Court of Appeal as being relevant to the assessment the Commission would undertake when examining and making those factual findings. 82. What the Commission is being asked to do is assess and making factual findings concerning what was a fluid and dynamic situation: the arrest of Slater and Pone, the confrontation between the Applicant and Pone, and the Applicant's recollection, and the recollection of others of that fluid and dynamic situation. 83. The first of those decisions Woodley v Boyd [2001] NSWCA 35 where Justice Heydon (as his Honour then was) said at [37]: "[l]n evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said: "[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances." 84. The second decision is State of NSW (NSW Police) v Nominal Defendant [2009] NSWCA 225 (Nominal Defendant) where Justice Beazley (as her Honour then was) (President Allsop and Justice McFarlan agreeing) said: "Whilst the reasonableness of the performance of a police officer's duties does not escape judicial scrutiny if damage results, reasonableness has to be considered in context. The primary context is the law enforcement role of the police officer. The surrounding circumstances have to be considered, including the nature of the possible offence involved, the need to make quick decisions as to whether to take action and if so, what action to take. Indeed, many such decisions, of their nature, will be almost spontaneously reactive to the circumstances presenting themselves to the police officer. The police officer is also required, in the same short period of time, to weigh up whether, in making a decision to take action, the safety of the public outweighs the need to take action" 85. In Nominal Defendant there was a general discussion as to the question of the assessment of reasonableness in the context of a police officer performing his or her duties. In that case, which concerned the reasonableness of a police pursuit, police decisions were described at [46] above as being "...almost spontaneously reactive to the circumstances presenting themselves to the police officer." 86. The Victorian Court of Appeal in Carter v Walker (2010) 32 VR 1 at [142] cited Woodley v Boyd and said (citations omitted): "Police officers are bound to prevent breaches of the peace that they reasonably apprehend. In order to prevent a breach of the peace, police officers are entitled to exercise reasonable force. In evaluating the reasonableness of police conduct, 'the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight'. Further, a police officer may use such force, not disproportionate to the object, as he believes on reasonable grounds to be necessary to effect, or assist in effecting, the lawful arrest of a person committing, or suspected of committing, an offence." 87. It is submitted when bearing in mind "the pressure of [the] event and the agony of the moment" the Applicant's use of force on 24 November 2019 was not disproportionate, and he acted reasonably in striking Slater and Pone in the manner and the context in which he did.
11. In relation to Allegation 3, the applicant's case is conveniently summarised in his following submission: As to allegation 3, the applicant submitted that in accordance with BWV policy, Constable Corner should have activated the camera the moment he and the applicant arrived. Overall the Commission would find Constable Corner should have had his BWV switched on when arriving at Warby Street, and when the Applicant told him to turn it on that was absent any mala fides. When he asked Constable Corner to turn it on he was in the midst of a physical altercation with Pone - a completely orthodox, sensible, and obvious time for the BWV to be recording. The Applicant had nothing to hide regarding his conduct and sought to rectify Constable Corner's failure to start the BWV recording. It is submitted that the overwhelming conclusion is that the Applicant asked/told Constable Corner to turn on the B/'N because he was struggling with Pone, the BWV should have been recording, and he wanted Pone and his actions recorded
12. As to Allegation 4, the applicant's explanation of the amendments that he made, was that he was honest in entering the Events and narratives and if he had made a mistake, it was not intentional. He explained that he was a good police officer, but stated that he was not the best at paperwork.
13. As to the evidence of Constable Corner, the applicant made the following general submission: 89. It is submitted that Constable Corner was an unreliable witness. 90. Constable Corner's versions varied, were replete with inconsistencies, and grew more and more detailed as time passed. Indeed his most recent account, his statement in these proceedings (Exhibit 8), was not one he prepared entirely himself and Constable Corner could not tell the Commission which portions of his statement were typed by him or typed by the Respondent's lawyers. That is an unsatisfactory position for the Commission to be [in] - the statement is not all Constable Corner's words and we do not know which are his words and which are the words of the Respondent's lawyers and merely adopted as his own. 91. Further, the Commission would find there to be real concern regarding Constable Corner's competence in the early hours of 24 November 2019. His inability to even turn his mind to whether or not he should record this incident on BWV (thereby breaching the NSWPF BWV SOPS (Standard Operating Procedures) and only having commenced recording because the Applicant told him to is but one example reflective of his inexperience and low level of competence. 92. Similarly, Constable Corner's approach to making contemporaneous notes and notetaking - a critically important part of policing - is at best haphazard, at worst incompetent. 93. Constable Corner's lack of competence affects his overall credibility and reliability as a witness and makes it more difficult for the Commission to accept his version of events particularly on the significant issues in these proceedings. 94. In terms of what Constable Corner saw, it is submitted that even if the Commission were to conclude he was truthful in his accounts that only takes the matter so far. It is one thing for Constable Corner to be telling the truth, it is another for his evidence to be correct. Constable Corner may honestly believe for example he saw Morell slap Mr Slater. The Constable may have told himself that is what he saw - self justification - when in fact he did not. That does not mean it happened and it is submitted that an honest witness who is wrong may appear convincing (although the Applicant submits the Commission would conclude Constable Corner was not a convincing witness)
14. Specifically, with respect to Constable Corner's evidence regarding Allegation 1, the following submission was made: b. The circumstances surrounding the observations apparently made by Constable Corner about the Applicant's punch of Slater are unreliable: • He was behind Mr Morell and Mr Slater at the time, and so any visual observation of any punch would have been severely limited in that regard. • The entire incident within the unit took place over a period of time of less than 30 seconds. c. No complaint was made by any of the other males inside the unit about Mr Morell having punched Mr Slater. d. Mr Slater's is an unreliable witness and by him not having been called by the Respondent it has resulted in an unfair disadvantage to the Applicant as the Applicant has not been in a position to properly test his account.
15. The applicant also relied on the absence of any reference in Mr Slater's statement as to being slapped, as support for his denial of slapping Mr Slater.
16. Finally, the applicant submitted that the evidence of Sergeant Bentham with respect to the appropriate level of force should be seen in light of his higher level of understanding of the policies and understanding of defensive tactics, which is something that the Applicant did not possess.
17. On the factors which impact upon the applicant's interests pursuant to s 181F(3)(a) of the Police Act, it was submitted that these include the loss of a promising and stable career in the New South Wales Police Force and the reduction in income and consequential financial hardship. Also, the applicant submitted that it is in his interest to have the "smear" of being an officer dismissed on the basis of lack of confidence removed from his record.
18. As to the public interest consideration, the applicant made the following submissions: 130. The Commission is required to have regard to the public interest, which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner of Police made an order pursuant to section 1810(1) of the Police Act: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at 119. 131. Considering the public interest involves a balancing of interests and is a matter of fact and degree: Commissioner of Police v Collins (2008) NSWIRComm 162 at [58] 132. The proper approach to assessing the "public interest" is well settled: Lawrence v Commissioner of Police at [15] and [16] (as the cases cited therein), noting the Commission in assessing the public interest must also be mindful of s 181F(3) and the requirement to have regard to the public interest in "the maintenance of the integrity of the Police Service": Lawrence at [25]. 133. In this matter, public interest considerations weigh heavily and support the proposition that the Respondent's order removing the Applicant should be overturned and the Applicant reinstated. 134. It is submitted that it is in the public interest in returning Mr Morell to the NSWPF in light of his training and experience. In Morris v Commissioner of Police [2016] NSW IRC 1034 at [17], Newall C observed "there is a real public interest in maintaining a capable and experienced Police force". There has been considerable public money spent on training Mr Morell as a member of the NSWPF. Mr Morell's training records are testament to that fact. 135. The Applicant submits that there is public interest consideration that those who are vested with the special privileges and powers that come with the office of being a member of the NSWPF understand when they can properly use and deploy those powers, so that they use them in a just and reasonable manner: Van Huisstede v the Commissioner of Police [2000] NSWIRComm 97 at [219]. It is submitted that the Commission would find the Applicant to have deployed his powers reasonably and in accordance with law such that his removal was inter alia unjust. 136. Other factors which the Commission would weigh in the public interest include: a. It is also submitted that there is a public interest in ensuring that a police officer who is removed by the Respondent for findings which are unsustainable on the evidence is reinstated. b. The need to ensure that the NSWPF conducts its disciplinary system in a fair way.

The respondent's case

1. The principal submission of the respondent is that the applicant has failed to meet his onus and accordingly the application should be dismissed.
2. The respondent, in relation to the level of seriousness of the scene, submitted that the applicant's evidence was a gross exaggeration of the true state of affairs, designed to overstate the threat he was facing in an endeavour to justify his later and unjustifiable use of force.
3. The respondent submitted that the objective evidence contained in the various CAD messages was at odds with the applicant's recount of the information that he alleges was in these messages as well as the evidence of Constable Corner.
4. Constable Corner gave the following evidence in respect to the level of seriousness of the scene that he and the applicant were about to attend: 29 The CAD message did not refer to 20 to 30 male persons being present. It did not say how many male persons may have been involved. There was no suggestion in the CAD message that those male persons were intoxicated, although as I have set out above, I considered this was likely. There was nothing in the CAD job to suggest anyone was jumping on vehicles, nor throwing bottles at vehicles. It was not clear, from the wording of the CAD message we responded to, whether the glass bottles were being thrown at the informant, or if they had just observed glass bottles being thrown. 30. Upon looking at the CAD records, I can see that at 12.08am on 24 November 2019, before our CAD job, a CAD job broadcast was made which reads that "POSS 5 PEOPLE INVOLED. NO OTHER WEAPONS. POSS IP'. I can also see that a police message was radioed in at 1.08am, which says "TALKING TO OCC NOW FROM 20 - BUNCH OF YTHS RAN FROM THEM -PARTY IS OVER". This suggests that the situation across the evening was de-escalating, not escalating.
5. As to the state of the scene on arrival, Constable Corner stated that the ground was not scattered with broken glass and that there was no blood on the ground.
6. In relation to the striking of Mr Slater by the applicant, the respondent relied on the following account given by Constable Corner: 45. I had a full view of what happened. I was behind Mr Morell, but I remember being slightly on an angle, so my view was not obstructed by Mr Morell's back. I could see Mr Morell's fist make contact with Mr Slater's stomach through a punching or uppercut motion, after which I could see Mr Slater grabbing his stomach. I cannot recall if Mr Morell punched Mr Slater with his left or right hand. It was obvious to me that he was in pain. The punch to the stomach was not a 'hammer strike' REDACTED. It was an uppercut punch. In other words, I saw Mr Morell's arm swing upwards and the top of his fist (that is, the knuckles) made contact with Mr Slater's stomach area. I have never heard the use of the 'hand strike' to describe a type of approved Police strike. We were not taught to 'hand strike' people at the Academy. We are taught REDACTED, but these are different to punching. 46. Mr Slater said, "Why the fuck did you punch me", and Mr Morell said, "What the fuck are you talking about". After this, I could then see Mr Morell's open right hand make contact with the left side of Mr Slater's face. I also heard the sound of a slap when Mr Morell's hand struck Mr Slater's face. 47. I was about 2-3 metres away from Mr Morell when the punch and the slap happened.
7. Constable Corner also stated that there were only two other persons in the unit, one of whom was crying. Also, he did not hear any glass breaking, nor the applicant undertake a knee strike or check drill, REDACTED himself and Mr Slater.
8. In relation to Allegation 2, the respondent submitted that the applicant's evidence about Mr Pone's conduct in the lead-up to the strike was contrived with a view to trying to justify the unnecessary force used. The applicant pointed to the evidence of Constable Corner that Mr Pone was not engaged in aggressive behaviour before the strike, and says if he saw Mr Pone assault the applicant, he would have intervened to assist his partner.
9. It was further submitted that even if Mr Pone had struck the applicant, it was reasonably necessary to maintain Mr Pone in custody and that using a check drill was not a technique that assisted in bringing Mr Pone REDACTED and as the BWV footage illustrated, it had the opposite effect.
10. The respondent also relied upon the evidence of Sergeant Bentham, a Senior Operational Safety Instructor, Operational Safety Training and Governance Unit. Sergeant Bentham holds numerous qualifications in public safety and is regularly involved in the delivery of training courses in the use of defensive tactics, weapons training and first aid.
11. As to the question of credit of Constable Corner and the applicant the respondent made the following submission: …the Respondent's submission, Constable Corner was an impressive witness, and the Commission would accept his evidence over that of the Applicant, who provided myriad self-serving answers. In particular, the Applicant, with every motivation to be untruthful, showed a propensity to embellish his evidence, including giving numerous narrative, non­responsive answers in cross‑examination. On the other hand, Constable Corner provided concise, thoughtful evidence, including making admissions against his interests (discussed further below). He has no motivation to be untruthful, and none was put to him. To the contrary, Constable Corner was reluctant to report the Applicant's misconduct, and gave evidence that he deliberately did not turn his BWV camera on inside the apartment because his initial instinct was to try and protect the Applicant. Such an admission is plainly against his own interests, given his statutory obligation to report misconduct. It speaks to his credit
12. Sergeant Bentham's view was that the force used by the applicant, both with respect to Mr Slater and Mr Pone, was unreasonable and gave the following explanation in his witness statement as to how he reached this conclusion: a. A punch to the stomach of a juvenile who appears to be showing no physical resistance to Police is not, in my opinion, a reasonable use of force in the circumstances. Further, the NSW Police Force do not teach punches to the stomach as a technique designed to gain control. While it is not apparent he needed to do so, even if Mr Morell needed to use a physical strike in order to gain control of Mr Slater, including with a view to arresting him, other strikes taught by the NSW Police Force, which I have detailed above, would be more appropriate; b. A slap to the face a juvenile who appears to be showing no physical resistance is not, in my opinion, a reasonable use of force in the circumstances. The NSW Police Force do not teach police officers to perform slaps to the face. Such a strike is also unlikely to assist a police officer in gaining control in any event; c. A strike or punch to the back of the head of a young person who has been arrested, but demonstrating some degree of resistance by moving their arms away from being held by Police, is not, in my view, a reasonable use of force. The NSW Police Force do not teach any kind of strike or punch to the back of a person's head.
13. In relation to Allegation 3, the respondent submitted that the applicant has not met his onus to disprove the allegation. It was put that the applicant should have brought positive evidence and failed to do so.
14. Similarly with Allegation 4, the respondent submitted that the applicant had failed to meet his onus.
15. The respondent submitted that in light of the applicant including information that was patently wrong in his first entry, which was that Mr Slater had "rushed toward Police", despite this not being consistent with any of his later versions of events, that it was unlikely the applicant had simply made a mistake.
16. As to the applicant's interest, the respondent asserted that the applicant had not brought sufficient evidence before the Commission to warrant the Commission's intervention, nor that the removal was harsh.
17. In relation to the public interest, it was put that there is substantial importance in the public having confidence in the conduct of police officers which is undermined where police officers use an unreasonable amount of force in the execution of their duties.
18. Additionally, the respondent made the following submission concerning public interest: The Applicant's actions, which he has at all times sought to conceal, and then retrospectively justify with reference to a misleading narrative of what occurred on the evening in question, amounted to misconduct that undermines public confidence in police officers and damages the reputation of the NSW Police Force. This undermining is only heightened given the young age of the persons involved. Ultimately, public confidence is restored, and reputational damage is repaired, by the Applicant's removal.

Determination

1. In circumstances where the evidence of the applicant and Constable Corner differ, the evidence of Constable Corner is to be accepted. I agree with the submissions of the respondent regarding Constable Corner's evidence, in particular that he had no reason to distort his evidence, he thought carefully before coming forward and readily made concessions where appropriate.
2. As to Allegation 1, I accept the evidence of Constable Corner as to the true state of affairs at Warby Street and as to what occurred in relation to the applicant's interaction with Mr Slater. In particular, I find that the applicant did punch Mr Slater in the stomach with a closed fist and slap him across the face.
3. I do not accept the applicant's explanation that he used a check drill and this is what Constable Corner mistook for a punch, Constable Corner's evidence was quite clear that it was a closed fist. He maintained this evidence under cross examination when it was put to him that it may have been a check drill.
4. Even if the applicant was in a heightened state and the reason for this could well be his misplaced perception of the seriousness of the situation and his previous experience, this does not detract from the unreasonableness of him punching a 15 year old in the stomach and slapping him across the face. As Sergeant Bentham explained, none of these measures are taught to officers and are not effective as a means of control.
5. Accordingly, I find that the applicant has not met his onus with respect to Allegation 1.
6. As to Allegation 2, the explanation provided by the applicant that he had used a check drill REDACTED of Mr Pone is contradicted by Constable Corner's direct evidence on two bases.
7. First, even though Constable Corner could not see whether the applicant's hand was opened or closed into a fist, in his statement he stated that the strike was not a check drill for reasons including that it was not performed in the manner that they were taught and also it was not used for the situation that confronted the applicant.
8. Secondly, Constable Corner disagreed that Mr Pone had assaulted the applicant and that there was need for the applicant to gain control of Mr Pone.
9. When the evidence of Constable Corner is added to the illogical explanation that the check drill technique which is designed REDACTED was used to gain control of Mr Pone, whilst the applicant was holding Mr Pone, the applicant's explanation cannot be accepted.
10. As to the statutory declaration evidence of Mr Pone, I give it no weight as he was not able to be cross examined and in any event, it does not assist the applicant.
11. I therefore find that the applicant has failed to meet his onus with respect to Allegation 2.
12. Turning to Allegation 3, I accept the applicant's case that it is implausible that he made the request for the BWV to be turned on, given the fact that it should have already been on and he was then in a physical struggle with Mr Pone, albeit after the delivery of the blow. For this reason I accept that the applicant has met his onus with respect to Allegation 3.
13. In relation to Allegation 4, the explanation provided by the applicant that he was not good with paper work and simply fixing mistakes is one which cannot be accepted when regard is had to the entries which were unsupported by any evidence, including Mr Pone allegedly thrashing his arms around violently.
14. The changes were made by the applicant to help justify his use of unreasonable force and I find that the applicant has not met his onus with respect to Allegation 4.
15. Finally, I accept the submissions of the respondent concerning the applicant's interests and the public interest as set out above. It is important that the public have trust in the members of the Force to perform their duties in a manner which is lawful and to allow the appeal would be to undermine the public's trust in the Force.
16. Accordingly, as the applicant has failed to meet the onus in relation to Allegation 1,2 and 4 and that the public interest outweighs the applicant's interests and for the reasons set out above, I order that the application be dismissed.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2023