I have already considered the inherent unlikelihood of SC Gilmour's alleged conduct in respect to the puppies allegation and consider it has similar application to this allegation. I begin by making a number of observations of the evidence of the trainers themselves.
282 Firstly, there was no reported injury to the dog. Secondly, I accept the evidence that a dog may yelp when it is startled, not only if it is actually hit by an object. Thirdly, it is a common training technique to throw an article such as a hose, a ball or a chain to distract a dog from unwanted behaviour or to redirect its attention. Fourthly, it would seem an entirely reasonable proposition that, by throwing an article close to a dog, it may occasionally and accidentally, hit the animal. Fifthly, at least one experienced former trainer considered that it may be appropriate, in certain circumstances, to throw an article at a dog with the intention of hitting it, but not injuring it.
283 As to the evidence of Ms Sayhoun and Ms Ralph, I agree with Mr Howell's observation that their views must necessarily be qualified by the fact that neither of them were trainers or necessarily informed as to what might, or might not be, appropriate training procedures in this situation. The same admission was made by Insp Hinds, whose primary role had been supervisory. That being so, I consider that the evidence of the trainers themselves must be accorded more weight than that of the Police Force's eyewitnesses. Nevertheless, I again consider Ms Sayhoun and Ms Ralph's evidence must be treated with the utmost caution given my finding as to the puppies incident and the inconsistencies in the evidence, even in this incident. These were firstly, that neither of them records the other as being present and witnessing the incident. Obviously, there is no mention of what either one might have said to the other at the time. This seems at odds with Insp Hinds' reliance on two corroborating eyewitness accounts to justify his findings that the allegation was proven.
284 Secondly, Ms Sayhoun said SC Gilmour was two to three metres from Roscoe when he threw the pipe. Ms Ralph said it was 10 metres. To my mind, such a difference is a significant conflict in their accounts.
285 Ms Sayhoun said she had raised the matter with Mr Pearse, but heard nothing more about it. In cross-examination, she could not recall when she had done so. There is no record in the Duty Book of Mr Pearse receiving such a complaint and he denied ever having received it. If Mr Pearse had deliberately omitted recording the complaint and, more significantly, had done nothing about it, it would be regarded as a serious dereliction of duty and one amounting to actionable conduct under the Act. Given that Mr Pearse does record other complaints from Ms Sayhoun about SC Gilmour's attitude, and the likely consequences of failing to record and action a complaint as serious as cruelty to an animal, I am satisfied that Mr Pearse's evidence is to be preferred and Ms Sayhoun made no such complaint. I note also that Ms Ralph makes no mention of making a complaint about the matter. Significantly, had Ms Sayhoun been really concerned with lack of follow up by Mr Pearse she had ample opportunity to raise her concerns with Supt Middlemiss or her direct supervisor, Ms Flecknoe. Supt Middlemiss had now been at the Unit for a number of weeks. The first time the matter was raised was 10 months later when it just happened to come up in the interview with Insp Hinds. Having found that there was no report of the incident by either one of the eyewitnesses, I am struck again by their apparent indifference to their obligations to immediately report such conduct. What is even more curious is that the Roscoe incident is only a month after their alleged witnessing of the puppies incident. If there really was a pattern emerging of SC Gilmour's conduct amounting to cruelty to animals, their silence must raise grave concerns as to the credibility of their evidence overall.
286 In addition, much attention was directed in Ms Sayhoun's oral evidence to the force with which the object was said to be thrown. In my view, significant force was necessitated by the nature of the assessment itself; to create a loud enough distraction for the dog to be diverted from what it was doing. It would simply have had no effect if the object was limply thrown such as to make little, or no impression.
287 Given all these matters I cannot be satisfied, on the balance of probabilities, that SC Gilmour deliberately intended to hit Roscoe when he threw the rubber hose towards him on 1 November 2005. Accordingly, I find that this allegation cannot be sustained.
The Tyson Incident
288 Apart from some controversy about the appropriate distance between the trainer firing a gun at the dog during a mandatory gun steadiness test, there would appear to be little factual dispute in respect to this incident. The issue, it seems to me, is whether SC Gilmour fired the gun at a distance of 10 metres such as to intentionally frighten the dog, Tyson. It will be readily apparent that the allegation itself actually contains an inherent inconsistency. Mr Howell was correct, in my view, in observing that the very purpose of the gun steadiness test is to establish whether a dog is frightened by the sound of sudden loud noise, such as a gunshot. There is no dispute that, if it is, then it is unlikely to be of any use as a police dog. It followed, so the argument goes, that as the test proved the dog Tyson was frightened then the purpose of the test had been well and truly demonstrated. Therefore, SC Gilmour could hardly be criticised, particularly as it seems he was instructed by Insp Hinds to test the dog, notwithstanding that SC Gilmour believed it was unnecessary because the dog was a 'fear biter', which rendered it unsuitable in any event. He had had an argument with Insp Hinds about it. The first matter that springs to mind is that I consider it was absolutely inappropriate for Insp Hinds to have conducted the investigation into this incident, given his direct involvement in the circumstances he was investigating. Nevertheless, a number of other issues are pertinent to determining this allegation.
289 Firstly, prior to July 2006, there were no documented approved protocol or operating procedures for the performance of gun steadiness tests on dogs at the Unit. Indeed, it is true to say that the now documented procedure arose from this incident and an earlier incident involving a dog 'Storm'. Secondly, what is relevant here are the views of the trainers themselves as to what constituted the usual practice of gun steadiness testing, as distinct from the observations of those eyewitnesses who neither conducted such tests, nor were informed as to the usual practice.
290 Thirdly, I accept that the usual practice was that the dog is released into an enclosed area and given time to familiarise itself with its surroundings. A play article is tossed towards the dog to gain its attention and having done so a blank shot is fired by the trainer at a distance of approximately 20 metres. The undisputed evidence was that the test had been conducted in this way for many years.
291 Fourthly, there is a contemporaneous note of this incident by SC Gilmour dated 26 April 2006, which demonstrated that he followed the procedure on Tyson; although I accept he made no reference to the distance the shot was fired at.
292 Fifthly, the preponderance of evidence (Sgt Mayer, AS Wright, SS Williamson and Mr Pearse) would suggest that the usual distance was 20 metres. I accept this evidence. Only Insp Hinds said the usual distance was 30 metres.
293 Sixthly, SC Gilmour believed the dog was already unsuitable because it was a 'fear biter' and there was little point in proving the obvious. All of the witness evidence would suggest that the dog was already fearful when he was released into the compound. In light of this evidence, it would seem that SC Gilmour could hardly have intentionally frightened the dog (by firing at a distance of 10 metres, or even 20 metres), if it was already exhibiting signs of fear and anxiety. Even so, I do not accept the evidence of Ms Sayhoun and Ms Ralph for similar reasons of inconsistency that I have referred to earlier. These inconsistencies include:
294 Firstly, Ms Ralph corroborated SC Gilmour's contemporaneous note and his consistent evidence ever since, that he threw a play article at Tyson in order to have him retrieve it. Yet, Ms Sayhoun was most insistent, in her interview with Insp Hinds, that no toy had been thrown.
295 Secondly, Ms Sayhoun said that he fired the gun 'directly' at the dog from a distance of 10 metres. Earlier she had told Insp Hinds it was two metres. Ms Ralph said he fired the gun at a distance of 10 to 15 metres. She had told Insp Hinds she had seen SC Gilmour fire the gun at the furtherest of 20 to 30 metres and closest at 10 to 15 metres. In my view, from two to 15 metres is too great a distance to be considered merely a vagueness of recollection.
296 Thirdly, Ms Sayhoun makes no reference to Ms Ralph being present and witnessing the incident. Yet, Ms Ralph said Ms Sayhoun 'may' have been there.
297 Again, Ms Ralph and Ms Sayhoun made no complaint about the matter at the time, despite Ms Ralph being aware of the earlier gun steadiness test issue involving 'Storm' (she had returned 'Storm' to its owner, Ms Boyle). For the reasons earlier expressed this failure raises real and serious questions, in my mind, as to the credibility of the evidence of Ms Sayhoun and Ms Ralph. In my view, Ms Sayhoun sought to exaggerate her claims about this matter in order to have the incident appear much more serious than it was.
298 For the reasons I have expressed, I find that SC Gilmour conducted an appropriate gun steadiness test on Tyson on 26 April 2006, and he did so according to the Unit's usual practice. It follows that the allegation of intentionally frightening Tyson has not been made out and no misconduct occurred.
299 Even if I be wrong about the distance the gun was fired at, I would not be able to conclude, given the lack of any standardised documented procedures, that SC Gilmour would have been guilty of the misconduct alleged against him.
300 Mr Howell submitted that the definition of misconduct, in the disciplinary context, cannot mean mere mistakes, errors in judgement, errors in discretion, carelessness, negligence, inefficiency or poor performance. He put that misconduct means 'wrongful, improper or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts'. He submitted that none of the allegations against SC Gilmour fell into the definition of misconduct. Strictly speaking, it is unnecessary for the Commission to make findings on these submissions, as I have found that the evidence advanced in these proceedings, on the balance of probabilities, does not permit a finding that any of the allegations have been proven to the requisite standard. The question of whether the conduct was misconduct does not, therefore arise. That said, I consider Mr Howell's submissions are thoughtfully made and soundly based.
301 Similarly, the conclusions I have come to would invariably result in my revoking the Commissioner's order without consideration of such other matters as the procedural deficiencies Mr Howell has identified in this case. That said, in deference to the parties detailed submissions on this subject, I would make the following observations and findings.
Issues of Procedural Unfairness
302 As these proceedings are in the nature of a fresh and independent review of the basis for the s 173 order, (see par 9) Mr Howell correctly acknowledged that SC Gilmour had now received all of the relevant information which was necessary for him to properly and thoroughly prepare his defence of the allegations which were made against him.
303 Ms Nomchong submitted that as these proceedings were in effect a de novo hearing and because SC Gilmour now had had an opportunity to thoroughly put all matters he wished to put in these proceedings, that any claims of procedural unfairness in the Police Force's investigation and decision making, related to the making of the s 173 order, were not relevant, or at the very least, would not have prejudiced his ultimate defence advanced in these proceedings. With respect, I must disagree. If this was so, then the statutory requirements of ensuring procedural fairness in s 173 reviews, or indeed in any disciplinary process, including dismissals, would have no work to do. An employer could merely overcome any procedural deficiencies in the process by rectifying them in a second review by this Commission. Such a proposition is obviously untenable and contrary to all well settled authority. With that said, it is my view that the investigative process, as revealed in the uncontested evidence in this case, was so infected by procedural deficiencies as to contaminate the process and make the ultimate result for SC Gilmour harsh, unreasonable and unjust. These deficiencies include the following and are not ranked in any priority order.
304 Firstly, Supt Middlemiss was the ultimate decision-maker, under delegated authority of the Commissioner of Police, who made the order pursuant to s 173 of the Act on 5 April 2008. Significantly, before doing so, there are mandatory requirements on the decision-maker under s 173(5)(c) of the Act 'to take into consideration any written submissions received from the police officer in response to the notice'. However, in a startling and brutally frank admission found in her statement in these proceedings, Supt Middlemiss said that after becoming aware of the CMT recommendation in January 2007, she had 'wanted an outcome where Kim Gilmour would be transferred out of the Dog Unit'. Accordingly, it is very clear that the decision-maker had made up her mind about what outcome she wanted from the investigation, not only before the investigation was completed, but before SC Gilmour was given a fair and proper opportunity to respond to the investigator's findings and to the Show Cause Notice. This was patently unfair. Supt Middlemiss' determination to secure the outcome she wanted when, in fact, she was the only person who could ensure it happened, was contrary to the principles of procedural fairness and, in my opinion, was in plain breach of s 173(5)(c) of the Act. This is self evident because Supt Middlemiss could not have sufficiently considered, or at all, SC Gilmour's reply of 1 February 2008, because her mind was made up long before and nothing he could have put would have (and didn't) alter her position.
305 Mr Howell's reliance on Von Doussa J, in Sutcliffe v General Motors-Holden's Automotive Limited (1998) 80 IR 142 at 161, is entirely apposite to these circumstances, and I quote the following passage from that decision:
Further, the evidence of both Mr Fox and Mr Brown strongly suggests that they had each decided, on seeing the film, that Ms Sutcliffe had been guilty of serious and wilful misconduct, and that the interview process was merely a matter of form and had to be gone through. If the purported opportunity extended to an employee under s 170DC to defend himself is no more than a ritualistic exercise by the decision-maker who has a closed mind, no real opportunity is extended to the employee. An employee does not receive an opportunity to defend himself unless the decision-maker before whom he presents his defence has a mind that is still open: see de Smith , Judicial Review of Administrative Action (5th ed, 1995), p 505.
306 What is even more disconcerting is that Supt Middlemiss' determination to obtain the only outcome she wanted, was against a background where the CMT had recommended that SC Gilmour receive a Commander's Warning and a three month CMP, and where this view was endorsed by a second review of Insp Hinds' investigation by Det Insp Jenkins. While I acknowledge that both these outcomes were recommendations only, I consider Supt Middlemiss' rejection of the recommendation to be entirely partisan and without foundation. She merely said that she didn't consider the penalty was sufficient and it had not taken account of the uncompleted investigation by Insp Freeman. (I note that this investigation ultimately found SC Gilmour had 'no case to answer' and therefore should not have influenced the outcome at all.) While I accept that the IRP (of which Supt Middlemiss was a member) recommended a reduction of increment and disciplinary transfer on 14 August 2007, I believe Supt Middlemiss had a predetermined outcome of what she wanted and nothing was going to change her mind. That being so, she should not have participated in the IRP's deliberations. I think it also relevant to note that Supt Middlemiss did not independently interview any of the persons involved in the allegations. In my judgement, Supt Middlemiss' predetermined view was such a serious denial of procedural fairness towards SC Gilmour, that it would be sufficient, without anything else, for the Commission to safely conclude that the s 173 order was harsh, unreasonable and unjust.
307 Secondly, in my opinion, it was entirely inappropriate for Insp Hinds to have conducted the investigation. It was not disputed that he and SC Gilmour had had past disagreements about dog training methods and procedures. Moreover, Insp Hinds was actually directly involved in one of the allegations; that concerning Tyson, where he and SC Gilmour had disagreed about whether the gun steadiness test should be conducted. SC Gilmour was justified in raising concerns about Insp Hinds participating and indeed, the CMT had accepted these concerns by appointing Insp Jenkins to conduct a second review. In addition, on his own admission, Insp Hinds had no training qualifications or experience in the handling and training of Police dogs.
308 Thirdly, two serving police officers SC Collier and SC Martin were said to be present at two of the three incidents, the subject of the allegations. Neither of them were interviewed by Insp Hinds, nor did they give evidence in these proceedings. Unsurprisingly, Insp Jenkins concluded in his second review 'If anything needs to be looked at in review, I would suggest the interviewing of SC Chris Martin'. It was said that the reason that he wasn't interviewed was because he was on long term sick leave. I do not accept this is a sufficient explanation. He was at the relevant time, a serving officer and, at the very least, could have been approached to give his version of what happened in the Tyson incident. In addition, there was no explanation as to why SC Collier was not interviewed.
309 Fourthly, Mr Howell strongly criticised the delay SC Gilmour had to endure between the commencement of the investigation (June 2006) and the issuance of the s 173 Show Cause Notice (January 2008). I have no doubt that the delay caused him stress and anxiety. In my view, such a delay itself was totally unreasonable.
310 While I accept that there are a number of unavoidable circumstances and unusual complications associated with this matter, which might take it out of the ordinary (in Police Force terms), it seems extraordinary to me that an investigation of this kind would take over one and a half years. There are at least two inexplicable and unexplained gaps of inactivity which exacerbated this delay. Firstly, SC Gilmour was not interviewed for over four months from the commencement of the investigation in June 2006 to 22 November 2006. This was notwithstanding he was told it would be in three to four weeks after he made an inquiry on 2 August 2006. Secondly, from the date Insp Hinds handed his report to Supt Middlemiss (11 January 2007), there is a period of a year before the issuance of the Show Cause Notice of the proposed order. Even putting aside the legislative requirements relevant to the process, I consider that such delays are completely unacceptable. I do not accept the excuse that it took five months, from the date of the IRP's decision (14 August 2007) to the issuance of the Show Cause Notice (10 January 2008) to find a LAC willing to accept SC Gilmour. In addition, I would conclude, as did the second reviewer, Insp Jenkins, that SC Gilmour was entitled to be told of the progress of the investigation and the reasons for the delays. There can be no doubt that he was stressed, upset and anxious about the delay in concluding the investigation, particularly in circumstances where he had been transferred from a specialised activist role he had been in for many years, to one which he regarded as 'mind-numbing' and boring. To my mind, this is a case which falls squarely within the concerns I raised in Police Association of New South Wales and Commissioner of Police [2008] NSWIRComm 176, and with those expressed by his Honour, the President, in Burrows v Commissioner of Police (see paras 17 and 18). It was manifestly unreasonable and rendered the s 173 order unreasonable.
311 Fifthly, at no time from the commencement of the investigation until he was interviewed by Insp Hinds, was SC Gilmour given details of the allegations against him. All he knew was that it concerned cruelty to dogs. Obviously, he had no opportunity to review his training records, given no time to recollect the incidents or otherwise appropriately prepare for the interview. Given that he had conducted numerous and varied assessments of puppies and dogs over many years, and was faced with 15 allegations (some dating over 12 months earlier), it is little wonder that he would have had difficulty recalling particular dogs and individual assessments on certain days. In my view, this was a gross denial of natural justice. In addition, SC Gilmour didn't even know a second review had been undertaken, let alone been given an opportunity to put his position to that review.
312 Sixthly, it is difficult to know what weight Supt Middlemiss gave to the issues surrounding SC Gilmour's attitude and demeanour towards other staff, particularly the kennel attendants. It is plain that she was well acquainted with SC Gilmour's accepted deficiencies in this regard. However, in my opinion, it is a reasonable inference to draw that Supt Middlemiss did have regard to these matters when she made the s 173 order. Indeed, from the tenor of her evidence, she could hardly be said to be favourably disposed towards him. This is exemplified by her comment that she had 'grave concerns about the applicant's lack of ability, knowledge and skill to undertake the core functions of a Police Officer'. Unsurprisingly, SC Gilmour took great offence to this comment. I consider his offence to be justified. None of these concerns formed part of the grounds for the s 173 order and obviously SC Gilmour was given no opportunity to refute them or otherwise defend his position and reputation. Accordingly, to the extent these matters intruded into the decision making process, it was both wrong and irrelevant to the actual allegations made against him.
313 In addition, I am further satisfied that SC Gilmour was not provided, in a timely fashion, with a copy of all the documents relied upon by Supt Middlemiss in issuing the s 173 notice in accordance with the Police Force's own policy. He was not told in the Notice what accepted practices and procedures he was alleged to have breached, or in what way he had departed from them. In the absence of standardised training methods and procedures, it was perfectly understandable that he would seek the views of his fellow trainers of what were the usual practices and procedures at the Dog Unit.
314 Having regard for the breaches of the mandatory statutory procedures and the other procedural deficiencies I have referred to above, I am satisfied that the Commissioner's s 173 order was beyond power and was otherwise unreasonable. Accordingly, the Commission is able to properly conclude that SC Gilmour's case must succeed on both substantive and procedural grounds.
315 That said, there is a mandatory obligation on the Commission, in consideration of this matter, to have regard to both the public interest and the interests of the police officer, noting that neither wing has priority over the other; see s 175(4). However, I concur with Mr Howell's submission that there is a significant overlap in the interests of SC Gilmour and the public interest such as to starkly demonstrate that the weight is overwhelmingly in his favour.
316 Such matters include the following: Firstly, I believe that there is an obvious public interest consideration in the Police Force not losing the significant knowledge, skills, experience and expertise of SC Gilmour as a long standing police dog trainer. That SC Gilmour possesses such skills and experience was not really put in doubt during these proceedings and, in fact, all of his fellow trainers attested to his experience and knowledge as a police dog trainer and assessor. Police dog training is a valuable and specialised field of policing and, in my opinion, it would be a great shame if someone of SC Gilmour's experience was lost to it.
317 Secondly, there is no doubt that SC Gilmour considers the allegations against him to be a smear on his professional reputation and have caused him great stress and anxiety. I do not cavil with how he must feel after the long and sorry history of this matter. As the Commission has found all of the allegations not to be proven, there is both a public interest and personal interest in SC Gilmour being publicly cleared of any wrongdoing so that this smear does not attach itself to him, in terms of future promotion, and the Police Force more generally. In this latter regard, there is a need to ensure the maintenance of the standing, integrity and reputation of the Police Force and the Police Dog Unit, in particular, which only a properly considered fresh and independent review of the allegations has been able to achieve.
318 Thirdly, it will be plain from my critical comments about the investigation of the allegations and the delay it took to conclude the investigation, that there must be a recognition by the Police Force that it needs to conduct its disciplinary processes in a fair, transparent and expedient way. A failure to do so will engender a lack of confidence amongst its officers and the wider community. It behoves the Police Force to treat its own employees with the dignity and fairness that all employees expect and deserve. There could hardly be a greater public interest consideration than this.
319 Fourthly, as to SC Gilmour's direct personal circumstances, I consider that the financial penalty, its effect on his superannuation at his age and years of service and the indignity of being transferred out of a specialist area of policing which he loved to a desk job, was a grossly disproportionate response. It would seem the CMT itself did not regard transfer and loss of increment as an appropriate penalty.
Appropriate relief to be ordered
320 Mr Howell sought the following orders be made by the Commission:
1. The Order be revoked pursuant to s 177(1)(b); and
2. Make either of the following additional orders which we put in the alternative:
a. The Commissioner is to immediately return, by way of non-disciplinary transfer, Mr Gilmour into an "available" position as an Operational General Purpose Police Dog Handler within either the Sydney metropolitan or Illawarra area; or