Newton v the Commissioner of Police

LEGAL REPRESENTATIVES: RESPONDENT Mr J H Pearce of counsel SOLICITOR Legal Services NSW Police Service SYDNEY.

JUDGMENT:

• 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Mervyn Cecil Wells for review of order made under s181D of the Police Service Act 1990. DECISION 1 The applicant, Mervyn Cecil Wells, seeks reinstatement in the New South Wales Police Service after having been dismissed under the "Commissioner's Confidence" provisions of the Police Service Act 1990, as amended. The application is made as one under s181E for a review of an order of the Commissioner of Police under s181D thereof, removing the applicant from the Police Service. 2 Part 9, Division 1B, Summary removal of police officers in whom Commissioner does not have confidence, provides relevantly by s.181D as follows: (1) The Commissioner may, by order in writing, remove a police officer from the Police Service if 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. (2) . . . . (3) Before making an order under this section, the Commissioner:

(a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and

(b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and

(c) must take into consideration any written submissions received from the police officer during that period.

(4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service.

(5) The removal takes effect when the order is made. 3 Division 1C, Review of Commissioner's decision under Division 1B provides for the review of the order of dismissal by the Industrial Relations Commission on the ground that the removal is "harsh, unreasonable or unjust". The police officer is permitted to apply to the Commission. Subs.181E(3) provides relevantly: . . . 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 ... 4 Section 181F, Proceedings on a review, provides: (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the Police Service,

(b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust,

(c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (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:

(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)). 5 Section 181G causes the Industrial Relations Act 1996 to apply to a review, subject to the exclusion of certain identified provisions. Nothing turns on that section for the purpose of these proceedings. The operation of the provisions of s.181F have been the subject of consideration by the Commission in Newton v. The Commissioner of Police (Peterson J at first instance (1998) 85 IR 119 and the Full Bench of the Commission on appeal (Wright J, President, Hungerford and Schmidt JJ) (1999) 87 IR 66)) with particular reference to the requirements of s.181F. 6 In the present matter attention has been focussed upon the provisions of s.181D(1) with respect to the "police officer's competence, integrity, performance or conduct". In the present matter the "conduct" reference was utilised solely in the procedure leading up to the final order of dismissal although the final order referred both to competence and conduct. There was, at least to that extent, no reliance upon integrity or performance as a reason for dismissal. 7 In addition, particular attention was paid to s.181F(3) which requires the Commission to "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 s.181D(1)). The Applicant's History and Conduct 8 The applicant is aged 57 and was employed in the Police Service between 1970 and 1980, when he resigned in order to look after his mother who was ill and without care. He returned to Forster for that purpose, he then being unable to secure a transfer to Forster on compassionate grounds. His mother died in 1991 and he applied to rejoin the Police Service. He was successful and was sworn in as a probationary constable in March 1991 then being nearly 48 years of age. He was stationed at Waverley Police Station and remained there until February 1996 when he was transferred to Taree. 9 Over these two periods of service Mr Wells, who had senior constable rank, had not come under adverse notice. That included a number of years within the uniformed police and five years performing detective duties, including four years in the CIB No. 21 Special Squad. On 7 September 1997 an incident occurred which in due course led to his dismissal. 10 It now appears that for six to eight months prior to 7 September 1997 Mr Wells had suffered a major depressive disorder. This was exacerbated by two assaults upon Mr Wells in July 1997. The first occurred on 22 July 1997 when he was assaulted at Purfleet, suffering a black eye and bruising to his left cheek. He also twisted his knee and aggravated an earlier injury which required him later to undergo surgery. 11 About seven or eight days later he was assaulted again in circumstances where a drunken man refused to leave a train at the Taree Railway Station. Mr Wells was punched in the left side of his face as he attended to that problem. In both matters the offenders were arrested, charged and convicted for offences including assault police. 12 Subsequent to these assaults he found that his reaction was different to that which had occurred when he had been assaulted on other, earlier occasions. He started to get the shakes and came to realise that he needed treatment. He consulted a psychologist who diagnosed post-traumatic stress. His general practitioner prescribed tranquillisers for him which he took but which did not seem to cause improvement. 13 At about 4am on 7 September 1997 Mr Wells assaulted a young person who was attending the police station to inquire about a warrant he had discovered was outstanding. He obtained this information from Sergeant Wells' colleague who had approached him and his friend in the street while he and Mr Wells were on patrol after a check of his driver's licence had been undertaken. Mr Wells had had no direct contact with him in the street, Mr Wells remaining in the police vehicle while the other police officer attended to the young person. 14 In the police station it appears that, for reasons which were later found to be unwarranted, Mr Wells took offence at something said by the young person which caused Mr Wells to consider that he would charge him with offensive behaviour. Mr Wells went into the public part of the police station, took hold of the young person by gripping his collar with the right hand and his left shoulder with the left hand and then manhandled him through the police station to a perspex-walled dock which was located in a rear corner of the room and into which persons to be charged were placed. These events were recorded on a police security video which is in constant operation at the station. 15 As the pair approached the dock it is apparent from the video that the young person's head came into contact with the perspex wall of the dock. Whether that occurs once or twice is indeterminate. In any event the young person then twisted to his left across the front of Mr Wells, the young person's right hand coming up in the vicinity of Mr Wells' face or head, and then moved quickly towards the exit with Mr Wells in pursuit. It appears both from Mr Wells' evidence and the video that the young person may have then fallen, perhaps tripping on a desk leg as Mr Wells grasped for him. The video then shows the young person standing up and moving back against the wall behind a filing cabinet with Mr Wells confronting him. Mr Wells' left hand is then clearly used to strike the young person's face on the right side. No other blow is visible. The relevant events cease. In evidence Mr Wells suggested that the young person had struck him in the face as he twisted away to "escape". He said that he had used an open hand to slap the young person's face but that no other blow was struck. 16 No evidence was called in relation to the young persons. Mr Pearce of counsel for the Commissioner of Police sought to tender police statements by those persons although they were not to be produced for cross-examination. In ruling that it would be necessary that they be available were the statements to be utilised, I indicated that in any event the video showed conduct which seemed to be of a serious kind. Mr Pearce elected not to press the tender of the material. I note that the statements were not material to which the Commissioner referred in considering his course of action. 17 Subsequently, Mr Wells was charged with assault. The charge was dealt with on two occasions at Forster Court House, ultimately being disposed of by the Local Court applying the provisions of s.32 of the Mental Health (Criminal Procedure) Act 1990. Section 32 provides relevantly as follows: 32. (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is developmentally disabled, is suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990; and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3).

(2) The Magistrate may do any one or more of the following:

(b) grant the defendant bail in accordance with the Bail Act 1978;

(c) make any other order that the Magistrate considers appropriate.

(3) The Magistrate may dismiss the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions; or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both; or

(c) unconditionally. 18 Section 3 of that Act defines mental condition as "a condition of disability of the mind not including either mental illness or developmental disability of mind". In the proceedings before the Local Court two psychiatrists gave evidence. The first was Dr Brian Douglas Parsonage who practices as a consultant psychiatrist at Port Macquarie and who had undertaken a medico legal report in relation to Mr Wells. That report eventually formed part of the material in evidence in these proceedings. Dr Parsonage's opinion includes the following observations and opinions: · For six to eight months prior to the alleged assault on 7/9/97 Mr Wells suffered major depressive disorder · his symptoms worsened after the two assaults on him in the course of his duty in the months prior to the alleged assault on 7/9/97 · on 7/9/97 Mr Wells was in a significantly depressed state with associated uncharacteristic irritability which is a common symptom of depression in men, particularly men who suppress their feelings and do not recognise that they are depressed · the fact that Mr Wells was suffering Major Depressive Disorder which made him uncharacteristically irritable was the main factor in causing him to act as he did at the time of the alleged offence · Mr Wells was additionally distressed by being charged with assault and his symptoms of depression, which have not been appropriately treated, have continued and he remains at risk of suicide 19 Dr Parsonage differed from the view of the psychologist consulted earlier by Mr Wells and came to the conclusion that he is not suffering Post Traumatic Stress Disorder. 20 Dr Parsonage was not able ethically to treat Mr Wells, having seen him for a medico/legal assessment, and in due course Mr Wells was treated by Dr Klass Akkerman who is a specialist psychiatrist practising at Forster. Dr Akkerman gave evidence in Forster Local Court which includes the following expressions of opinion: 21 When he first saw Mr Wells his diagnosis was that he had been suffering from "major depression". He said: Generally people have suffered from these kinds of problems for quite some time before they seek referral, so it's an illness that tends to creep up on you. It's one that is not clear-cut. It's not like a sore knee or something that is obvious and circumscribed. So the history that Mr Wells gave to me that he'd been slowly deteriorating for about a year before he actually got referred is fairly typical. So I think it's very likely that at the time of the offence in September 1997 he was indeed suffering from the same illness. 22 He said that he agreed that Mr Wells was still suffering from mental illness or a mental condition which was treatable by continuing with the treatment that he had already implemented, namely a combination of anti-depressant medication and supportive psycho-therapy. His evidence in the Local Court on 9 July 1998 includes the following: Q. All right. Just in relation to the circumstances surrounding his conduct which led to him being charged, is it your opinion that his illness would have had some bearing on the way he did behave on the time in question? A. As I understand it, Mr Wells was of the opinion that Mr Neil insulted him and he subsequently reacted to that. Irritability is a very common symptom in people with major depression, particularly middle-aged men. Q. Even though he's still suffering from the illness, what's your opinion as to his likelihood of reacting again in a similar way? A. Well, as long as he's unwell, as long as his major depression persists, there is a possibility it might happen again if he is exposed to similar circumstances. But the treatment he received from his GP was not the correct one, so really his treatment only started a little while ago. He's obviously under a lot of stress with all of this, and the kind of stress he's under at the moment will impede his ability to get better. But his prognosis should be very good as a first episode and really the chances are overwhelming that he will return to his normal functioning, whatever that may be, in a matter of months. And once he recovers, the likelihood of this happening again will be fairly small. MR MADDEN: Q. If it be the fact that Mr Wells had not reported off duty on sick report with depression, or with whatever, if he hadn't reported to his superiors or to the Police Service that he was unwell, what comments would you make about that? A. That's very typical. Major depression is an illness that is an exaggeration of - looks like an exaggeration of the normal things in life that happen and people would pass it off as stress or passing or, "It's not serious" or, "This kind of stuff doesn't happen to me". It's very, very common for people not to have it treated. It's actually estimated that only about 5 per cent of major depression actually gets treated, so it's very typical. 23 In cross-examination by the prosecutor this evidence was forthcoming: Q. Is it correct to say, therefore, that the symptoms that Mr Wells is suffering from currently are those associated with the normal sort of depression sort of symptoms that any person in his position would be feeling facing a criminal charge such as this? A. No, absolutely not. Major depression is a very well accepted, researched, widely recognised concept. The World Health Organisation feels it's the fourth most disabling illness on this planet. It predicts that in 20 years it will be the second most disabling illness. This is an illness; this is not being worried about a court case. And this illness preceded the incident in September 1997. So I strongly disagree with what you're suggesting.

Q. It's also correct that your diagnosis is based on the subjective views expressed by Mr Wells? A. Yes, and years of experience. I've treated thousands of people like Mr Wells and, although surely from time to time I will have been taken for a ride and have been told stories that were not correct, I'm pretty sure that - I'm confident that my ability to pick up these things is fairly consistent."

Q. You referred to whether, in the condition that Mr Wells was allegedly suffering, it's normal for him to complain to some other person about his condition; do you remember those questions by Mr Madden? A. Whether it's normal to complain about it, yes.

Q. I think you said that normally it doesn't happen? A. Quite often it doesn't happen.

Q. Does that happen sometimes? A. Well, there's a big debate going on why major depression is so much more frequently diagnosed in women than compared with men, and one of the explanations often given is that men endure it or drown their sorrows in alcohol, while women are better at asking for help and that's why they go to the doctors and that's why they get diagnosed." Section 181D(3)(a) Notice 24 Prior to the proceedings in the Local Court the Commissioner of Police had on 28 February 1998 issued a notice pursuant to S.181D(3)(a) of the Police Service Act to the effect that consideration was being given to making an order for the removal of Mr Wells from the Police Service. The notice called for written submissions from Mr Wells in relation to "your conduct taking into account . . . . (that) : On 7 September 1997 at Taree Police Station you unlawfully assaulted (the named person). You were issued with a Court Attendance Notice as a result." 25 Due presumably to the proceedings in relation to the assault charge, the response of Mr Wells to this notice was sent under cover letter dated 19 November 1998. The response was detailed and relied upon much of the material to which I have already referred. It included the following paragraph: I ask that you view my situation in medical and not disciplinary terms. I want to return to work when I am well enough to do so. I am sure that my illness was a direct cause of the way I behaved on the 7 September 1997. I am maintaining my treatment with Dr Akkerman and I am sure that in due course I will be well again.

My conduct at the time in question was not that of an officer who made a premeditated decision to assault Mr (person named). Rather, it was the behaviour of somebody who was suffering from a serious illness, but did not know it.

In the circumstances it is my respectful submission that you need not have any doubts about my suitability to remain the Police Service, and I request that the 181D Notice not proceed. (sic) 26 The issuing of a notice under this section, according to the practice adopted in the Police Service to deal with issues of this kind, follows the preparation of a profile of the officer's history and the problem giving rise to concern. The profile is then processed through the relevant echelons towards the Commissioner. The profile utilised in this matter identified the relevant incident in these terms: On the 7 September, 1997, Senior Constable Wells was on duty at Taree Police Station when a Taree student entered Taree Police Station to seek details of a warrant. Heated words were exchanged between Senior Constable Wells and the student. Senior Constable Wells took hold of the student by the shirt collar, forced him through a series of doorways to the charge-room where, still grasping, Senior Constable Wells forced his head against the perspex door of the dock. The incident was recorded on security video installed in the charge room. The injury the student sustained was a lump to the right side of his head.

and included a reference to the fact the incident was recorded on video. 27 Once the Commissioner has activated the s.181D process it appears there are three possible consequences. The most serious is a decision to dismiss. Alternatively, the decision might be taken to proceed no further with the matter. The present practice adopted by the Commission includes a third possibility which is the issuing of what is called a Performance Warning Notice which is served upon the subject officer and brings to attention a level of dissatisfaction with performance which falls short of calling for dismissal but requires attention by the officer. 28 In the present matter such a Performance Warning Notice was prepared for service upon Mr Wells and signed by the Commissioner on 22 January 1999. That Notice was not served. On 12 February 1999 the Commissioner issued the order under s.181D which effected Mr Wells' removal from the Police Service from that date. 29 That order contained the following: In reaching my decision, I have taken into account a profile prepared in relation to you, your response to the Notice under Section 181D(3)(a) of the Police Service Act which was served upon you, which includes psychological assessment reports and transcripts of evidence at the Forster Local Court on 9 July, 1998, together with a video recording taken on 7 September, 1997 by a security camera installed in the Taree Police Station.

I do not have confidence in your suitability to remain a police officer for the following reasons: · I am satisfied, as a result of viewing the security camera video recording from Taree Police Station, that you violently attacked a young person, (person named), who had attended the Taree Police Station to make an inquiry. I find your conduct which was directed at a young person, whilst you were on duty at Taree Police Station reprehensible. · I have taken into account that you were charged with unlawful assault as a result of this incident and appeared at Forster Local Court, where the magistrate disposed of the charge by virtue of s32 of Mental Health (Criminal Procedure) Act, on the basis of psychiatric evidence. · I have noted the comments of your treating psychiatrist, Dr Akkerman, who has diagnosed you as 'suffering from depression and/or stress at the time of the incident which was a significant factor in the case'. I also note the comments by Dr Akkerman that there is no guarantee that you will not act in a similar way in the future. · As Commissioner, I have a responsibility to ensure that officers in the Police Service are competent to fulfil their office. I am satisfied that you pose a risk that neither the Police Service or the public should endure. 30 The application for reinstatement was then filed and came before Marks J for conciliation on 16 March 1999. On that date his Honour recommended that Mr Wells provide the Commissioner with an updated medical report from Dr Akkerman as soon as possible outlining, in particular, the current status of his psychiatric condition and expressing an opinion about the likelihood of any recurrence of his behaviour which led to issue of the s.181D Notice. 31 That report was obtained. In the course of the report Dr Akkerman's diagnosis was "Major Depression in Remission". His prognosis was "excellent". Under the heading "General Comments" he said: Mr Wells appears to have returned to pre-morbid functioning. He suffered from one episode of depression in his five or so decades of his life. He has now recovered to pre-morbid functioning. At the moment, Mr Wells is as capable of performing his duties as he has been in the earlier stages of his life. There is a risk of relapse, in that he may become depressed in the future. However, that risk would not be much larger than that of any other Police Officer. Having suffered one episode of depression, it does not increase the risk of having a second episode of depression that much compared with people who have not suffered from depression at all. Once a person has had two episodes of depression the chance of relapse becomes much higher. With adequate medical supervision, any relapse would be able to be detected early and therefore treated early. In my opinion, Mr Wells can return to work in his duty as a Police Officer forthright (sic - forthwith). I do not believe that he is at substantially greater risk of harming a prisoner than any other Police Officer. 32 As a result of the recommendation by Marks J it was also agreed between the parties that Mr Wells condition ought be reviewed by a psychiatrist nominated by the Police Service. Dr Bruce Westmore, a forensic psychiatrist undertook that examination and was assisted by a number of documents supplied to him and also the videotape of the incident at Taree Police Station on 7 September 1997. It is important to include all of the opinion and conclusions expressed by Dr Westmore as follows: Opinion and Conclusions The purpose of this psychiatric examination was to provide you with an opinion about the risks of Mr Wells behaving in a manner similar to the one which led him to be charged with assault. On the history I have obtained from Mr Wells himself, he reported being moody and irritable around the time of this incident, he had been the victim of recent assaults where he said he was struck to the head twice in one week shortly before the incident involving the young person at the police station. He also injured his left knee in that time. Unfortunately no counselling appears to have been provided to him after those assaults. While he himself reported no specific problems in his life around that time he said that his wife indicated that his behaviour had changed, he was less sociable and more irritable and she apparently had been contemplating leaving him around that time.

With regard to the incident itself Mr Wells said that initially the young person had made statements which Mr Wells had found offensive and indeed the young person had implied or suggested in a more direct way that Mr Wells and other officers at the police station were dishonest. Mr Wells had contemplated charging the young person and took him into the charge room to do so. While there Mr Wells alleges that the young person struck him to the face and Mr Wells said "on the spur of the moment I retaliated . . . "

The video shows the young person appearing to fall backwards at one stage. His right hand goes up and he may have made contact with Mr Wells at that time.

His past history revealed he had no previous behavioural disturbances of this type and apparently no disciplinary charges have been laid against him during many years of service with the NSW Police Service.

His past medical history is unremarkable except for the psychiatric attendances which occurred after this incident and after he was charged. He was treated by the psychiatrist with antidepressants although he suffered side effects and these were stopped after some months. He continued to see the psychiatrist for over a year.

His drug and alcohol history was unremarkable and there was no family history relevant to his current difficulties.

His personal history suggested he comes from a stable family background, there is an absence of early trauma in his childhood and his work history appeared to be quite positive. He has demonstrated an ability to enter into and maintain long term intimate relationships and he reported having a large functional social network.

While I cannot confirm that Mr Wells was indeed suffering from a major depressive illness as has been suggested by two other psychiatrists at the time this incident occurred, the history does suggest that he probably had a mood disturbance of some type prior to the incident having himself being assaulted shortly before the incident. He made some observations about himself and his wife had made observations about him which would suggest his mood probably was not normal although I cannot say on the history he gave me that it reached the level of a major depressive illness. I cannot confirm the diagnosis made by the psychologist of a post traumatic stress disorder and indeed I think that diagnosis is incorrect.

The history given to the other psychiatrists does support the diagnosis of a major depression. Being charged with a serious offence after so many years in the service was obviously a significant blow to this man psychologically and may in and of itself precipitated a major depression in him. That condition now appears to have been resolved and he reported that since the beginning of 1999 he has returned to his recreational pursuits and felt a lot better within himself. This is further evidence that he was probably was (sic) significantly depressed during 1998.

Future behaviour is probably best determined by patterns of past behaviour. There are no clear patterns in this man's past life history to suggest that he is habitually aggressive or indeed that he acts in an impulsively aggressive way.

The matter which led to the charges occurred I suspect as a reflex impulse action, assuming that Mr Wells was slapped initially by the young person. Adding to the emotional circumstances of the interaction between Mr Wells and the young person was the alleged statements by the person questioning the honesty of Mr Wells and his colleagues at the police station.

There is no consistent pattern of Mr Wells acting aggressively or impulsively in the past, this would suggest therefore that subsequent behaviours of this type are unlikely although obviously no behaviour by any person can ever be totally excluded. If we add the very real possibility that Mr Wells was also suffering some type of mood disturbance around the time of the incident then this would also have increased his vulnerability to perhaps act in an uncharacteristic way.

There is clear evidence from two psychiatrists that he suffered a major depression after he was charged and indeed they go onto suggest that he was probably suffering this condition at the time the incident occurred. As noted earlier while I cannot confirm that, the history I have received does suggest a mood disturbance of some type, possibly an adjustment with depression. It is unclear.

In summary therefore I would indicate that using his past behaviour as a predictor for his future behaviour my view would be that it is unlikely that Mr Wells would act again in an impulsive aggressive way. This is certainly true I think in the absence of any mood state disturbance, be it a major depression or an adjustment disorder. To that extent his prognosis from a behavioural perspective looks quite good.

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.

I consider both of those descriptions of harshness operate in the present matter. The medical evidence is in favour of the applicant's capacity to perform police work unimpaired by his pre-existing condition. In those circumstances, the prospect of reinstatement in employment exists without any real possibility of an eruption of the kind which led to these proceedings. Accordingly, it is necessary that the applicant have the benefit of an order of reinstatement. 44 The Commission orders:

1. The respondent shall reinstate the applicant in his former position on terms not less favourable than those which would have applied to him had he not been removed from the Police Service.

2. The applicant's employment is to be treated as not having been broken by his removal.

3. The respondent shall pay to the applicant remuneration he would have received but for being removed, less any remuneration earned by him from other employment since his removal.

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