Morgan v Commissioner of Police

Industrial Relations Commission (NSW)|2010-05-18|Before: Boland J, Walton J, Haylen J, Marks J

CITATION: Morgan v Commissioner of Police [2010] NSWIRComm 67

PARTIES: Jamie Morgan (Appellant) Commissioner of Police (Respondent)

CORAM: Boland J President; Walton J Vice-President; Haylen J

Industrial Relations Act 1996 LEGISLATION CITED: Police Act 1990 Police Regulation 2000

Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 CASES CITED: Morgan and Commissioner of Police [2009] NSWIRComm 184 Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536

Mr T Edwards of counsel with Mr S Gray, solicitor Harris Wheeler Lawyers LEGAL REPRESENTATIVES: Mr M J Kimber SC with Mr B Cross of counsel Norton Rose Australia

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: BOLAND J, President WALTON J, Vice-President HAYLEN J

Application by Jamie Morgan for leave to appeal and appeal against a decision of Justice Marks given on 6 November 2009 in Matter No IRC 2192 of 2008

1 Jamie Morgan ('the appellant') is a former police officer with the New South Wales Police Force. He was removed from the Police Force on 19 November 2008 as a consequence of the Police Commissioner's loss of confidence in him. The appellant sought certain relief under s 181E of the Police Act 1990. In a decision given on 6 November 2009, Marks J refused that relief, finding that the appellant had not discharged the burden imposed upon him of establishing that his removal was harsh, unreasonable or unjust: Morgan and Commissioner of Police [2009] NSWIRComm 184. The appellant now seeks leave to appeal and, if leave is granted, to appeal the refusal by Marks J to grant relief. 2 Having read the material filed in the appeal the Full Bench called upon the parties to address the question of leave separately from the merits. Having heard the parties on leave the Full Bench decided to refuse leave to appeal and to dismiss the appeal. What follows are our reasons. Background 3 The appellant became a probationary constable on 30 August 2002 and was attested into the NSW Police Force on 30 August 2003. He had always worked within the Monaro Local Area Command, being stationed on 30 August 2002 at Queanbeyan, then transferred to Bungendore on 31 July 2005 and back to Queanbeyan on 15 April 2007. 4 The appellant's removal arose from incidents that occurred in 2007 and 2008. In the Commissioner's Statement of Reasons accompanying the removal order, 11 grounds were identified: 1. That the appellant disclosed the identity of an Internal Police Complainant ('IPC'), a Senior Constable Foster, contrary to s 169A of the Police Act and cl 46(1) of the Police Regulation 2000. 2. That the appellant made a threat against Senior Constable Foster. However, the Commissioner accepted that the threat could not be established. 3. That the appellant made a complaint against Senior Constable Foster, knowing the complaint to be false. 4. That the appellant's belief that Senior Constable Foster was an IPC in complaints against him created a conflict of interest once he made a complaint about Senior Constable Foster. The appellant did not report this conflict of interest to his supervisor when he was obliged to do so. The appellant's failure to declare the conflict of interest was in contravention of the NSW Police Conflicts of Interest Policy. The Commissioner considered that the appellant's conduct in relation to Grounds 1, 3 and 4 had breached the NSW Police Force Code of Conduct and Ethics. 5. That the appellant had made an application for a position with the Monaro Target Action Group ('TAG') that was untruthful, or at least deliberately misleading, in relation to his claim that he had registered a source in relation to break and enter offences. That the appellant was knowingly untruthful, or at least deliberately misleading, in his job application when he claimed that he had designed a standard form to be given to victims of break and enter offences, which was approved and used. 6. That the appellant lied to Inspector Box when further questioned about the truthfulness of his job application on 30 May 2007. The Commissioner considered that the appellant's conduct in relation to Grounds 5 and 6 had breached the NSW Police Force Code of Conduct and Ethics. 7. That the appellant made a series of unauthorised COPS accesses on 8 April 2008. 8. That the appellant failed to properly record or explain the COPS accesses on 8 April 2008. 9. That the appellant improperly released confidential information obtained by the COPS accesses to Ms Catherine Bell. 10. That the appellant was untruthful during his conversation with Inspector Nicholson on 18 April 2008 in denying the accesses to confidential information about Senior Constable [ES]. That the appellant was deliberately evasive about the same matters during his interview on 14 May 2008. 11. That the appellant made a series of unauthorised COPS accesses on 1 March 2008. The Commissioner considered that the appellant's conduct in relation to Grounds 7 to 11 had breached the NSW Police Force Code of Conduct and Ethics, the Police Force Code of Best Practice for Information Management, NSW Police Force Computerised Operational Policing System: User Guide and cl 46(1) of the Police Regulation 2000. First instance decision

5 The primary judge's findings in relation to each of the grounds relied upon by the Commissioner to remove the appellant may be summarised in the following manner: Grounds 1, 3 and 4 · There was nothing within the material made available to the Commissioner that would justify him in concluding that in some way the appellant had disclosed to anyone that Senior Constable Foster was a complainant in a matter against him (at [72]). · There was no material in the information provided to the Commissioner that would allow him to conclude that in some way the appellant had made a false complaint about Senior Constable Foster (at [73]). · The two preceding conclusions destroyed the assertion made by the Commissioner concerning the applicability of Ground 4, which is based on an allegation that the appellant had a conflict of interest when he made a complaint about Senior Constable Foster (at [74]). Consequently, the primary judge concluded that the Commissioner was in error in determining that Grounds 1, 3 and 4 had been made out (at [79]). Ground 5 · The appellant had overstated the position concerning the form but it is not necessarily clear that he did so in a serious way. He said in his application 'the form was approved by the Crime Manager and used by police in Queanbeyan.' There is no doubt that it was not approved by the Crime Manager but it can be said that the form was used at least by some police officers at the Queanbeyan Station (at [95]). · It is clear that it [the form] was not 'approved' and that in saying this the appellant had been untruthful. However, there is little if any evidence upon which the Commissioner could have concluded that the appellant was 'deliberately misleading' given the totality of the information available to the Commissioner (at [96]). · The appellant was untruthful in describing the form which he had created as having been 'approved'. However, the Commissioner was not justified in concluding that, in the context of this matter, the appellant was 'deliberately misleading'. This is not a matter that either alone or in the aggregate would justify the appellant's removal (at [193]). · The appellant conceded that the source had not been registered and that no reward had been paid. His explanation was that he had furnished that information from memory and that the events had occurred some time prior to him making the application. The appellant made the same concessions whilst being cross-examined in the course of giving evidence in these proceedings (at [88]) (Marks J says nothing more about the 'source' and we, therefore, conclude that his Honour did not regard it as a matter that would justify the appellant's removal). Ground 6 · In circumstances where there is no indication in any document made available to the Commissioner at the time that he determined to remove the [appellant] that the [appellant] had lied to Detective Inspector Box and in circumstances where the Commissioner has not seen fit to particularise the manner in which he had determined that the [appellant] had lied to Detective Inspector Box, I cannot understand how the Commissioner could have concluded that the [appellant] had lied as determined by him in connection with Ground 6. In my opinion, the Commissioner was in error in doing so (at [100]). Grounds 7 to 11 · The appellant has not established that the access which he gained to COPS on 8 April 2008 and on 1 March 2008 was authorised in the sense that such access was gained for a purpose consistent with the protocols and procedures established within the New South Wales Police Force to secure authorised access. Access gained by the appellant to COPS on these occasions was motivated by his concerns for his safety and that of his family with respect to the threats that he perceived might come from the police officer referred to in these proceedings as ES. The appellant was not authorised by any other officer to access COPS, nor was such access gained for the purpose of the discharge of his duties as a police officer. Furthermore, the appellant was not appropriately truthful in connection with the information that he gave to Inspector Nicholson on 18 April 2008 and during the course of the interview which she conducted on 14 May 2008 (at [196]). · The appellant was being untruthful. It is clear from the totality of the evidence in the proceedings and from the remaining evidence given by him that the appellant was intent on accessing COPS to ascertain whatever information about ES was available to assist him in evaluating whatever threat was posed by ES to the appellant and his family (at [198]). 6 In considering whether the appellant's removal was harsh, unreasonable or unjust the primary judge described grounds 7 to 11 as relating in the aggregate to the unauthorised access by the appellant of COPS on 8 April 2008 and 1 March 2008 and the untruthfulness about his explanation for such unauthorised access given to Inspector Nicholson on 18 April 2008 and 14 May 2008 (at [200]). In this respect, his Honour stated: [201] The unauthorised access to COPS on these two occasions and the untruthfulness during the interviews with Inspector Nicholson call into question the integrity of the applicant. The question of integrity is specifically referred to in s 181F(3)(b) of the Act. This requires that in considering my decision in these proceedings I "must have regard to" the public interest which is taken to include "the interest of maintaining the integrity of the NSW Police Force …." Of course, I am also required to take into account the other matters referred to in s 181F(3) and to strike a balance by having regard, as required, to each of them.

[207] … The fundamental matter that needs to be considered to resolve these proceedings is that which concerns the unauthorised access to COPS on both occasions and the untruthfulness of the information about the access so gained given to Inspector Nicholson on the two occasions to which I have referred. I have already referred, in a general way, to the COPS system and the importance of confining access to it in circumstances that are authorised by reason of the processes and protocols that apply within the New South Wales police force. The information contained within the COPS system is obviously highly sensitive and access must be confined in the manner authorised by the Commissioner.

[208] In essence, the applicant relies upon his concerns for his safety and security and that of his family posed by the threat that he feared from the conduct of the police officer ES. He asserts that he was not given sufficient support by fellow police officers and that some of them may have inappropriately downplayed that threat. These circumstances were said to have been exacerbated by the refusal to allow the applicant to transfer to another locality with his family.

[209] Put shortly, the question for determination is whether or not the unauthorised access can be justified as a means utilised by the applicant to secure his protection and that of his family. If such justification could be accepted, it would also be necessary to justify, in the same way, the untruthfulness of the applicant in the information that he conveyed to Inspector Nicholson.

[211] I am required to take into account the applicant's interests. In the more usual proceedings brought under s 181E of the Act, the applicant's interest extends to matters such as his or her ability to remain a member of the New South Wales Police Service, his or her financial circumstances, loss of reputation and the like. All of these matters apply in the circumstances of these proceedings but there is the added element of the interests of the applicant represented by his concerns for his safety and that of his family.

[212] On the other hand, the public interest in maintaining the integrity of the New South Wales police force dictates that police officers who deliberately and knowingly breach matters of fundamental importance, such as unauthorised access to COPS, and who are untruthful in the course of disclosing information to superior officers must run a grave risk that they will not discharge the burden of establishing that removal from the police force was harsh, unreasonable or unjust.

[213] I regard this matter as being finely balanced. Notwithstanding the seriousness of the unauthorised access to COPS undertaken by the applicant, I have a great deal of sympathy for his circumstances, which, I accept, were motivated by his concerns for his safety and that of his family. However, I am unable to extend the same sympathy to the applicant with respect to the untruthfulness, which I have found has tainted the information given by the applicant to Inspector Nicholson on 18 April and 14 May 2008, which I have previously described. In determining these proceedings, I am required to undertake a weighting exercise, balancing the interests of the applicant and the public interest after taking into account the several matters referred to in s 181F(1). The process by which a decision of this kind is made involves the exercise of a value judgment that relies on the application of standards of conduct as part of the evaluative process that is undertaken.

[214] Although the matter is finely balanced, in the end result I am not persuaded that the applicant has discharged the burden imposed upon him of establishing that his removal was harsh, unreasonable or unjust. The unauthorised access to COPS, when coupled with the untruthfulness of the information given by the applicant to Inspector Nicholson on the two occasions to which I have referred, does not permit me, in the circumstances, to conclude in the applicant's favour. Accordingly, I propose to dismiss the application. The application is dismissed accordingly. 7 Marks J did have regard to a submission by the appellant that the Commission consider his application by reference to the totality of the circumstances applying to all of the grounds relied upon by the Commissioner. It had been submitted that the underlying investigative process was so fundamentally flawed that the Commissioner's reasoning and grounds became, in the result, so tainted that they should not be allowed to stand or, alternatively, should be characterised as creating a removal which was harsh, unreasonable and unjust. 8 His Honour was very critical of aspects of the investigation: see [206]. Nevertheless, his Honour indicated that he was entitled to approach the matter by way of a fresh and independent review of all of the evidence and that the fundamental matter that needed to be considered was that which concerned the unauthorised access to COPS on two occasions and the untruthfulness of the information about the access so gained. Appeal grounds

9 The appellant contended that the primary judge erred in three respects: 1. his Honour erred in failing to consider the effect of the unsatisfactory or flawed investigation in terms of whether the actual basis upon which the Commissioner had caused his Notice to be issued was so tainted as to represent an unfairness in itself; 2. his Honour found that the appellant had been untruthful on both 18 April 2008 and 14 May 2008 in spite of there being no evidence upon which his Honour could base such conclusion. Further, it was never put to the appellant in cross-examination that he had been untruthful nor misleading, nor in any other way moved to falsehood in relation to the directed interview; and 3. his Honour failed to deal with and otherwise uphold the appellant's Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 defence submission, namely, that the appellant had at the time of his access to COPS a belief reasonably held that his actions were proper. Leave to appeal

10 Section 188 of the Industrial Relations Act 1996 provides: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister.

11 In our view, no issue of principle arises and the appellant has not established any arguable error that would attract a grant of leave to appeal. In relation to the appellant's contention that the investigation was so flawed it tainted the whole process, grounds 7 to 11 in the Commissioner's Statement of Reasons were severable from the earlier grounds and capable on their own of being dealt with and supporting removal of the appellant. The primary judge's findings regarding grounds 7 to 11 were open to him. Further, we note criticism by Marks J of the investigation process and there is nothing more we could usefully add. 12 In relation to untruthfulness, the findings made by Marks J were clearly open to him on the evidence. One of the principal reasons for the appellant's removal was that the Commissioner had lost confidence in his integrity because of findings of untruthfulness. The appellant could not have mistaken or misunderstood the case against him in that regard. 13 In relation to Proudman v Dayman, as we have stated, the findings of Marks J regarding untruthfulness were open to him. We do not consider the appellant's contentions regarding honest and reasonable mistake could reasonably have displaced or been preferred over the findings of untruthfulness, which were clearly available on the evidence. Costs

14 Having announced our decision regarding leave to appeal the respondent applied for costs on the ground that the appeal was commenced without reasonable cause: s 181(2)(b) of the Industrial Relations Act 1996; Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 at 264. The appellant opposed any costs order. The Full Bench indicated it would reserve on costs. 15 We note his Honour's view that the matter before him was 'finely balanced'. That may have influenced the appellant in his decision to appeal. We are obviously not satisfied there was such a fine balance, which leads us to the view that the question of whether there was reasonable cause upon which to base an appeal is finely balanced. Nevertheless, in exercising the discretion that is available to us under s 181(2)(b), we do not accept that this is an appropriate case in which to order costs against the appellant on the grounds that the appeal lacked reasonable cause. Orders

16 The Full Bench confirms the orders made orally on 18 May 2010, namely, that leave to appeal is refused and the appeal is dismissed. As to costs, there shall be no order as to costs. ___________________________________________

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