It will be important for Mr Wells to reattend his general practitioner and possibly his psychiatrist however if he does feel that his mood state is being compromised at some stage in the future. At present there is no evidence of any mental illness in this man and psychiatric attendances at this time are not required.
Conclusions
33 In considering an application of this nature the Commission, as earlier observed, is obliged to apply the provisions of s.181F(3) by having regard to the interests of the applicant and that of the public interest as particularly defined in s.181F(3)(b). The concept of "have regard to" was referred to by counsel in different terms but to like effect. Counsel referred me to a number of cases as authority for the proposition that the duty in the court to 'have regard to' those matters specified in s181F(3) means to give weight to those factors as fundamental elements in the court's consideration (see Re Hunt; Ex parte Sean Investments Pty Ltd (1979) 53 ALJR 552 at 554.7; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333; Clarke v Howard (1993) 42 FCR 369 at 386.9 and Edwards v Guidice and ors 169 ALR 89 at 91-92. I accept these authorities are apposite in the instant case and I shall consider the directive in s181F(3) accordingly.
34 The relevant interests of the applicant which have been identified are the difficulties usually experienced by dismissal from employment at a relatively advanced age; the likelihood that unemployment will result; the financial burdens which may be unable to be carried if unemployed including a home mortgage which could have the consequence of loss of the family home.
35 On the other hand the question of the integrity of the Police Service looms large in the context of this case for reasons which I will develop. Similarly, it is necessary to recognise the significance of the decision which was taken in this case which depends upon the operation of s.181D and inherently involves the matter of the Commissioner's confidence.
36 It seems to me unavoidable on the facts of this case to afford considerably more weight to the considerations involving the integrity of the Police Service as opposed to the interests of the applicant. Where an applicant has engaged in conduct of a kind depicted in the video in this case, it seems to me that the police officer has thrown away any substantial claim that might be made in terms of the officer's interests unless the conduct complained of can be found to have been justified in some way. It seems difficult to identify that justification merely as mitigating circumstances where an innocent visitor to a police station is attacked as a result of a police officer's perceptions or misconceptions of his attitude or behaviour. I consider that the justification for such conduct would have to be at a relatively high level before it could be accepted as an aberration which should not have serious long term consequences with respect to employment. The suffering of a temporary, recognised mental condition may satisfy that higher level of justification. In the absence of such a condition I consider that the conduct exemplified in this case, if intentionally, impulsively and aggressively undertaken would readily justify dismissal pursuant to the provisions of s181D.
37 Members of the public are entitled to accept that they may enter a police station on legitimate business without being subjected to the risk of physical or other assault. If that belief is impaired by the conduct of members of the Police Service then it seems to me unavoidable that the integrity of the Police Service as a whole is affected detrimentally to a very serious degree.
38 Mr Docking sought to rely upon the earlier execution of a performance warning notice by the Commissioner as an indication that the circumstances were considered by the Commissioner at one stage to not justify dismissal, and that the Commissioner's absence from the proceedings, in the sense that no evidence was to be proffered as to the reasons for the change of approach to the s.181D notice, evidenced a capriciousness in decision-making which would justify the Commission overturning the decision. Reliance was also placed upon correspondence from the Department to the Ombudsman indicating that between the preparation of the performance warning notice and the issuance of the s. 181D order, the Commissioner had been persuaded by oral representations made to him by the Regional Commander for Taree, Superintendent Collins. It was submitted that the failure to bring this matter to the applicant's attention in providing the documents and the materials relied upon by the Commissioner (s.181E(3)), meant that the applicant was now entitled to the benefit of an order. There is also some evidence which suggests that the viewing of the video by the Commissioner, which appears from the s.181D order to have been vital, may not have occurred until after the preparation of the performance warning notice, although that matter too is unclear.
39 I do not consider the applicant's prospects in these proceedings to be advanced by reference to the change in position adopted by the Commissioner from an initial intention to issue a warning notice to the ultimate decision to issue a notice under s181D removing the applicant from the Service. The warning notice was not issued and it is the appropriateness of the s181D notice which is to be tested in these proceedings. The alteration in position does not lead to an inference that the final notice is faulty in the conceptual sense or unsuitable to meet the circumstances of the case. It merely reflects a change of mind which has not been, and is not required to be, explained. If the ultimate decision is able to, or fails to, withstand scrutiny in these proceedings, then that is the end of that aspect of the case.
40 When one comes to consider the facts of this case in the context of the application of s181D, there arises a real difficulty in extending the language of the section sufficiently far to contemplate the prospect that confidence could not reasonably be maintained in the applicant because of a recognisably small degree of propensity to engage in similar conduct. If it be correct to exculpate the applicant, with respect to the offence with which he was charged, because of his medical condition, and to accept his conduct was a result of that condition, then a prediction by the medical experts that he would have no propensity to reoffend could not give rise to a relevant and substantial lack of confidence. On the other hand, if medical opinion takes the view, as it did in this case, that there is only a slightly greater chance of reoccurrence when compared with the police community as a whole, then that risk is referable either to the subsistence or re-emergence of that medical condition. This does not seem to me to be concerned with the considerations which would justify the issuing of a s181D notice which in this case is focussed upon conduct and, as noted above in paragraph 6, competence.
41 I recognise that this case is one difficult of resolution and perhaps borderline. There is obviously room for the view to be taken that one could not be absolutely confident that the applicant would never reoffend because of his condition. A timely resumption and continuation of suitable medical treatment, in the view of those expressing a medical opinion in this matter, should avoid that reoccurrence. Accordingly, however, the origins of the risk seem to me to promote an insurmountable obstacle to the Commissioner's case.
42 I consider the proper conclusion in this matter is that the applicant is either fit for duty on the basis of the medical opinion and has such a low propensity to reoffend that it would not be reasonably open to conclude that his conduct and competence engender a lack of confidence. If there be any inappropriateness in the continuation of the applicant in the Police Service that state of affairs arises from the slender possibility of the re-emergence in a negative way of his medical condition. I consider the appropriate means of dealing with circumstances of that kind does not lie in the provisions of s181D but, if anywhere, in concepts of medical discharge.
43 I consider that the applicant has in these circumstances made out a case for the intervention of the Commission on the basis that in the circumstances his removal was harsh. In Byrne v Australian Airlines Ltd (per McHugh and Gummow JJ) (1995) 185 CLR 410 at 465) this was said:
thus, the one termination of employment may be unjust because . . . . , may be unreasonable because . . . . , and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity to the misconduct in respect of which the employer acted.