Prasad v Commissioner of Police

Approach

1. In approaching an application under s 181D, the Commission is required, by s 181F(1) of the Act, to take the following approach: 1. Consider the Commissioner's reasons for the decision to remove the applicant from the Force. 2. Consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust; and 3. Consider the case presented by the Commissioner in answer to the applicant's case.
2. Section 181F(2) of the Act places the burden of proof on the applicant to establish that the removal was harsh, unreasonable or unjust.
3. In Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 at [84] the Court of appeal determined that in some cases, the applicant may satisfy his burden by casting sufficient doubt on the respondent's reasoning process.
4. The Commission is also required under s 181(3) to take into account the applicant's interest as well as the public interest.
5. There were nine allegations of varying level of seriousness, however the applicant conceded and the respondent submitted that allegations four and five provide a proper basis for the Order if not able to be overturned on review.
6. Given the above, it is appropriate to deal firstly with allegations four and five as this is sufficient to determine the entire application if the appeal is unsuccessful in relation to those allegations.

Reasons

1. Allegations four and five are as follows: Allegation Four - On 12 June 2019, the Applicant interfered with a witness in an internal police investigation. In particular, he did so by telling Probationary Constable Marc Brown: (a) "You've really fucked up Follo's life"; and (b) "Be careful it's really easy to lose your job around here." Allegation Five- The Applicant gave untruthful answers during a record of interview on 19 August 2019 in response to questions he was asked about the comments Probationary Constable Marc Brown alleged the Applicant made to him on 12 June 2019. In particular, the Applicant was untruthful when: (a) he denied he said to Probationary Constable Brown "You've really fucked up Follo's life", and "Be careful it's really easy to lose your job around here"; (b) he said he made comments to Senior Constable Follington on 12 June 2019 such as "You've really fucked up Follo's life", "Be careful, it's really easy to lose your job around here", "You can fuck up Follo's life too", and "Old man, your shit can fuck up Follo's life"; (c) he said he was talking to himself when he said words to the effect of, "Be careful it's really easy to lose your job around here" while in the presence of Probationary Constable Brown and Senior Constable Follington; (d) he suggested that Probationary Constable Brown may have misinterpreted comments he said he made to Senior Constable Follington as being directed to him; (e) he said that he never referred to Senior Constable Follington as 'Follo'; and (f) he said that he was referring to Senior Constable Follington's son when he said, "You've really fucked up Follo's life."
2. The background to these allegations is that, at that time, Senior Constable Marc Brown, then a probationary constable in the NSW Police Force was a witness in an internal police investigation relating to an arrest involving himself and then Senior Constable Mark Follington.
3. Mr Follington is no longer in the NSW Police Force and was ultimately convicted of criminal charges relating to the arrest.
4. The respondent in reaching the finding as to allegations four and five, relied primarily on two statements provided by Senior Constable Brown dated 24 July and 24 September 2019 and one of Senior Constable Mark Follington dated 11 October 2019.
5. In addition, the Commissioner took into account the applicant's disciplinary history which included a number of reprimands, counselling and Commissioner Warnings.
6. In his statements before the respondent, Senior Constable Brown says the applicant was looking directly at him when he said the comments and that Senior Constable Follington was not present when the words were said. Furthermore, the Commissioner noted that Senior Constable Brown relayed the interaction to Sergeant Richard Buglass later in the same shift.
7. Senior Constable Follington in his witness statement denied that the applicant said the comments set out in the allegation to him.

Applicant's case

1. In support of his case, the applicant relied upon his own affidavit, the cross examination of Constable Brown and the record of computer logins and logouts of himself, Constable Brown and Senior Constable Mark Follington during the shift of 12 June 2019.
2. The applicant's evidence was that he did say words to the effect that are attributed to him, however he alleged that the reference to "Follo" was said to Senior Constable Mark Follington and that the reference to "Follo" was a reference to Senior Constable Follington's son, who was also a serving police officer.
3. In relation to the remark, "losing your job", the applicant alleged that he said this aloud to himself.
4. In relation to Constable Brown, the applicant denied that he was looking directly at him when he said the words in allegations four and five.
5. It was also put by the applicant that the evidence of Senior Constable Brown was unreliable by reference to concessions under cross examination that Senior Constable Brown was incorrect in relation to a number of statements made by him in written statements, both before this Commission and in relation to other proceedings.
6. The applicant also relied on the records of computer logins and logouts in an attempt to disprove the evidence of Senior Constable Brown, that the Senior Constable Brown was in uniform at the time that the words were said and that, contrary to the applicant's submission, Senior Constable Follington was not present for the conversation.
7. As to the denial of Senior Constable Follington of the applicant's version of events, the applicant alleged that when he raised this with Senior Constable Follington, he replied with a statement to the effect of "I do not want to get into more problems".
8. The applicant also submitted that to the extent the respondent wishes to rely upon the statement of Senior Constable Follington, it should not be accepted as he has been convicted of perjury and a Jones v Dunkel inference should be drawn on the basis that he was not called to give evidence in these proceedings.
9. As to his own credit, the applicant through his counsel made a submission to the effect that he was not deliberately being untruthful in relation to a number of unsatisfactory answers he gave or failed to give under cross examination providing the following explanation as to why: There were times when his expression was not clear, in my submission. That was plain at times. There is obviously some barrier that the applicant has in relation to English being his second language, or at least having two dialects. There is at times the ability for the applicant to be misunderstood or to poorly express himself, with no disrespect to him.
10. The applicant submitted that his evidence should be accepted and if it is accepted, then he has met his onus in respect of proving that allegations four and five are not made out.
11. The applicant said very little regarding his interest other than the harshness of his removal and it was submitted that the public interest was neutral in this case.

Respondent's case

1. The respondent's primary position is that the applicant has failed to meet his onus and that the Commission would accept the evidence of Constable Brown and reject that of the applicant.
2. It was put that the Commission should accept the evidence of Constable Brown for a number of reasons and reject the applicant's submissions concerning his evidence. The first being that the Commission should accept Senior Constable Brown as a believable, credible witness in that he answered questions directly, made concessions, and accepted that he had been inaccurate in an earlier statement. Additionally, Senior Constable Brown responded to some questions such as "Could this have possibly happened", with answers along the lines of "It could have, but this is my recollection".
3. Secondly, the respondent put that Senior Constable Brown was clear and direct in his answers when questioned about things that happened at a particular time, and his recollection of the observations of the circumstances.
4. The third reason provided in relation to accepting the evidence of Senior Constable Brown was that it was implausible that he would have been untruthful, for reasons including that he had no reason to be.
5. Furthermore, it was put that the evidence of Senior Constable Brown was consistent with that of the statement of Senior Constable Follington which was before the respondent.
6. The respondent submitted that any Jones v Dunkel inference regarding the failure to call Senior Constable Follington should be drawn against the applicant, given his onus and also given the respondent's submission that Senior Constable Follington is "in the camp" of the applicant.
7. As to the computer records, the respondent submitted that, when objectively viewed, they were not inconsistent with the account given by Senior Constable Brown.
8. The respondent submitted that the applicant was not a witness of credit for reasons including that he dissembled, gave inconsistent answers and gave non-responsive answers to questions.
9. The respondent submitted that the applicant's interest in returning to work was outweighed by the public interest in maintaining the integrity of the Force, by upholding the Order particularly when regard is had to the applicant's disciplinary history.

Consideration

1. For the applicant to be successful in meeting his onus in relation to allegations four and five, his evidence would need to be accepted over that of Senior Constable Brown.
2. In relation to the evidence of Senior Constable Brown, overall, my observation was that he was an honest and frank witness. He made concessions where they should have been made and he had no motivation to provide untruthful evidence.
3. In relation to the computer records of logins and logouts, they revealed that there was sufficient time for Senior Constable Follington to have left prior to Senior Constable Brown entering the area where the alleged comments were made. Furthermore, Senior Constable Brown provided a plausible explanation that he and Senior Constable Follington avoided each other due to the investigation that they were subject to at the time.
4. As to the evidence of the applicant, I agree with the submission of the respondent that he dissembled and gave inconsistent and non-responsive answers to questions. The applicant's answer under cross examination that he had no idea what Senior Constable Follington was alleged to have done in regards to the investigation when he said words to the effect that he "fucked up" is one of several examples of his failure to provide credible evidence.
5. Given the applicant's onus under ss 181F, his submission concerning a Jones v Dunkel inference with respect to the failure to call Senior Constable Follington is rejected.
6. For the reasons set out above, I do not accept the evidence of the applicant and I accept that of Senior Constable Brown and accordingly I find that the applicant has not met his onus with respect to allegations four and five.
7. Given the concession made by the applicant, I do not need to consider the balance of the allegations.
8. As to the requirement to consider the applicant's interest and the public interest, I accept the submissions of the respondent that the public interest is best served by the application being dismissed in order to uphold the integrity of the Force.
9. For the reasons articulated above, I make the following order: (1) The application is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2023