Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201

See also Starr v Commissioner of Police [2001] NSWIRComm 226. 15 The onus on the applicant to establish a case that the order of Supt Commins was 'beyond power' and/or was 'harsh, unreasonable or unjust' is a mixed question of fact and law: See Allchin v Commissioner of Police (No 2) (2007)168 IR 170. It is now well accepted (see Newton v New South Wales Police Service (1999) 87 IR 66) that the words 'harsh, unreasonable or unjust' have the same meaning as they have in s 181D review proceedings, which, in turn, have the same meaning as they have in s 84 of the Industrial Relations Act 1996. Each of these words have their own discrete meaning as was said in Byrne v Australian Airlines Limited (1995) 185 CLR 410: Clause 11(b) is aimed at the situation where the termination of employment brought about by the dismissal, rather than the steps leading up to the dismissal, or lack of them, is harsh, unjust or unreasonable. A dismissal with notice may be harsh, unjust or unreasonable because it is based on a ground defined as such by cl 11(b). This refers to such matters as termination "on the ground of" race, colour, sex and marital status. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

See also Laird v Commissioner of Police [2001] NSWIRComm 253 and Commissioner of Police and Wayne Edward Collins [2008] NSWIRComm 162. 16 In addition, the Commission should be careful in ensuring that each of the words are given express consideration in the Commission's findings in a particular case: See Bankstown City Council v Paris (1999) 93 IR 209. I note that some emphasis was given in the applicant's case to the alleged 'harshness' of his transfer to Wollongong. I shall deal with this aspect of the case later. 17 This was a review in which the applicant's case heavily focussed on the lack of procedural fairness in the investigation process, the steps taken in respect to the issuance of the notice and order and in the role of the final decision maker, Supt Commins. There is, of course, an abundance of authority for the proposition that a failure to afford an applicant procedural fairness may result in a finding that a reviewable order was either 'beyond power' and/or was 'harsh, unreasonable or unjust'. This was precisely the submission Mr Docking pressed on the Commission in this case: See Wells v Commissioner of Police (2000) 100 IR 106, Van Huisstede v Commissioner of Police (2000) 98 IR 57, Starr v Commissioner of Police [2001] NSWIRComm 226; Cassel v Commissioner of Police [2003] NSWIRComm 73; Newton v New South Wales Police Service and Police Association of New South Wales (on behalf of Gilmour) v Commissioner of Police (2009) 183 IR 176. 18 Section 173(5),(6) and (7) of the Act outline a series of mandatory steps the Commissioner of Police (or his delegate) is required to take before making an order of reviewable action. These are: (5) (a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and (b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and (c) must take into consideration any written submissions received from the police officer: (i) during the period of 7 days referred to in paragraph (b), or (ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served. (6) As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post. (7) The written notice must contain the terms of the order and must indicate: (a) the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and (b) whether the order results from a complaint that has been investigated, or is being investigated, under Division 5 of Part 8A, and (c) the Commissioner's reasons for making the order. 19 The import of the mandatory procedural requirements under the Police Act was discussed in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at par [75], which I quote below: 75 These latter considerations then lead to a consideration of the second major aspect of the appellant's case, namely, whether his Honour was in error in concluding that, where the substance of the allegations made against a police officer were satisfied, it was unnecessary to embark on any examination of process. In substance, his Honour suggested that, in such circumstances, a procedural failure could not suffice to justify any interference with the ultimate sanction. Thus stated, we cannot agree with the conclusion reached by his Honour. The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act , laid down various procedural stipulations associated with the removal of a police officer which, in our view, require, if not strict compliance then at least "a careful and punctilious regard to correct procedure", and are of significant importance to the review of a decision made under s181D of the Police Service Act . In this respect, we consider that the correct approach to issues of this kind is synthesised in Van Huisstede as follows at [193] to [200]: 193 In my view, the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree: … it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: … a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself … That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons.

194 What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. 195 As was said by the Full Bench in Bigg (No. 2) , the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision.

196 In the first place, the fairness of the process adopted by the Commissioner, and particularly whether the Commissioner adhered to the procedural requirements of s181D, are vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389, the Full Bench stated: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss" or a failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

Further, the Full Bench stated (at 390): While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust.

198 These comments were supported in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 50. 199 Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458): However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion. 20 It seems to me that the key to the Commission's consideration of whether procedural fairness has been denied to the applicant is found in the following principles distilled from the authorities:

1. The procedural requirements in s 173(5) require 'if not a strict compliance at least a careful and punctilious regard to correct procedure'.

2. The Commissioner of Police is not free to 'act ill advisedly or capriciously' in respect to giving the aggrieved officer proper and adequate reasons for his decision to make the order.

3. The discretion to make the order is intended to be exercised 'according to rules of reason and justice, not according to private opinion'.

4. There would need to be demonstrated that a failure to afford procedural fairness causes 'a substantial and irrevocable prejudice to the employee'. 21 There is also a mandatory and significant requirement of what the Commission must have specific regard to in a s 174 review. This is found at s 175(4) and is no different in relevant terms to s 181F(3) of the Act: (4) 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: (a) the interests of the applicant, and (b) the public interest (which is taken to include the fact that the Commissioner made the order pursuant to section 173). 22 Obviously, there are no equivalent provisions in the Industrial Relations Act, but they have a particular meaning under the Police Act. Section 181F was recently considered by the Court of Appeal in Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198, where Spigelman CJ, with whom Macfarlan JA and Young JA agreed, said at paras [78] to [81]:

78 In any event, in each of the respects on which the applicant relies, it is, in my opinion, clear that both Haylen J and the Full Bench gave consideration to the matters which s 181F required the Commission to take into account. 79 It is sufficient to quote the following extracts from the judgment of Haylen J. With respect to the requirements of Div 1C his Honour said at [80]: "[T]here could be justification for the Commissioner losing confidence in an officer but such a penalty as removal may be, on proper assessment, harsh or unjust in the circumstances. This approach involves a balancing exercise, requiring consideration be given to the interests of the applicant and the public interest, including the integrity of the New South Wales Police and the fact that the Commissioner had made an order for removal." Under the subheading "The Commissioner's Reasons", his Honour made several references to the issue of integrity (for example, at [85] (a), (b) and (c)). Under the subheading "The Applicant's Case", his Honour made findings of fact that the respondent was "less than frank during the course of the investigation" and made reference to inconsistencies between answers given during the investigation and answers given in the Commission (at [87]). Under the subheading "Commissioner's Case in Answer", his Honour referred to submissions made on behalf of the applicant and concluded at [122]: "Mr Sewell's lack of candour is also an important element in assessing the seriousness of his conduct". His Honour then proceeded under a subheading entitled "Balancing the Considerations on Review" (at [124]-[132]). His Honour referred to many of the matters said by the applicant not to have been taken into account. For example, his Honour reiterated his finding that Mr Sewell "was less than frank in his responses" (at [127]). His Honour then made express reference to the elements of the statutory scheme when he said: "[128] … In this balancing exercise, the Police Act , by s 181F(3) requires the Commission to have regard to the interests of the applicant and also to have regard to the public interests, including the interests of maintaining the integrity of New South Wales Police and the fact that the Commissioner for Police had made an order under s 181D(1). [129] There can be no issue that it is in the public interest to maintain the integrity of the New South Wales Police Service. Actions taken by police officers on or off duty may be of such seriousness that it compromises the integrity of the Police Service and demands the highest penalty, dismissal. The Commissioner, having regard to the nature of the allegations and the breaches of police policy, determined that the penalty of dismissal was appropriate and that he could not condone Mr Sewell's actions. These are significant matters and weigh heavily with the Commission on review. The Commission on review is also to have regard to the interests of the applicant." His Honour went on to balance the conflicting considerations and came to the conclusion that the removal was "harsh and unfair" and the respondent "should be given a second chance" (at [131]). 80 I can see no relevant oversight in this analysis. The matters said not to have been given appropriate weight are all referred to. Indeed, as his Honour said at [129] as quoted, they "weigh heavily with the Commission on review". 81 The Full Bench also clearly referred to the issues now sought to be relied upon. Their Honours said at [14]: "A further matter which requires comment concerns the issue of integrity raised by the appellant during oral submissions in the context of whether Haylen J fell into error by not taking the issue into account (or sufficiently taking the issue into account) in the exercise of discretion when determining relief. We think it is important to emphasise the relevance of the public interest to this exercise of discretion. A necessary component of the public interest, in the present circumstances, was the respondent's integrity, which the appellant had linked to what has been described as the respondent's, 'lack of candour' and, his, 'less than frank' responses, when giving evidence." 23 Often described as competing interests, the Full Bench in Commissioner of Police and Wayne Edward Collins at 53, said: "We would add that it is important when balancing the applicant's interest against the various countervailing factors relevant to the public interest, that no one factor should be accorded any greater weight than any other factor, or factors." 24 After conducting a review, the powers available to the Commission in determining an application are those spelt out in s 177 of the Act: (a) by revoking the order, or (b) by revoking the order and making such other order as it considers appropriate, whether or not an order that the Commissioner is empowered to make under section 173, or (c) by upholding the order, or (d) by dismissing the application. (2) If the Commission revokes the order, it may also direct the payment of compensation for any loss suffered by the applicant as a consequence of the making of the order. 25 Section 178 deals with the rules of evidence and legal formality and is not dissimilar to s 163 of the Industrial Relations Act: 178 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence, but may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) However, the rules of evidence and other formal procedures of a superior court of record apply to and in respect of the Commission in Court Session. THE EVIDENCE List of witnesses and positions

Senior Constable Stephen Probst ( the applicant) Constable Sally Ann Thompson (Constable Thompson) Mr Matthew Cain Bonfield (a friend of the applicant) Senior Constable Douglas Kristian Nyholm (SC Nyholm) Ms Elizabeth Keran (the complainant) Detective Sergeant Dale Andrew Holmes (Sgt Holmes) Detective Inspector Bradley Mark Blanchard (Insp Blanchard) Superintendent Gary John Commins (Supt Commins)

Statement tendered but not required for cross-examination:

Ms Belinda Catherine Day (a friend of the applicant) The applicant's first statement

26 The applicant said he was not provided with any reason/s for his suspension in August 2007, and was not told the reasons until 24 January 2008. During his suspension he lived in Queensland (October 2007 to March 2008) and Melbourne (March 2008 to November 2008). During this time, he found it stressful and frustrating in that no one could tell him what was going on, or what the outcome of the investigation would be. He suffered a severe reduction in income, through the loss of allowances and overtime and the loss of his rent subsidy in the Police residence at Urana where he paid $20.00 per week. After he was advised that he was not to be dismissed, he was directed to work at Albury Police Station on restricted duties. When he returned, Supt Commins said to him on numerous occasions 'You need to think if you still want to be in this job'. He felt he was being pressured into resigning. 27 On 21 November 2008, Supt Commins informed him that the Internal Review Panel (IRP) had recommended a disciplinary transfer. He protested his innocence and said he would be launching an appeal. He said that Supt Commins told him not to take it personally and not to poison other people with his own perceptions. The applicant said he asked Supt Commins if a 'P' number had been given to his complaints against the behaviour of Insp Blanchard and Sgt Holmes. Supt Commins did not know. The applicant said he left the office and went outside and spoke into a hand held recording device detailing this conversation. He later made notes of the conversation on his computer. 28 Since returning to work, the applicant said that while he was restricted to office duties, he had been commended by the Domestic Violence Liaison Officer for his good work in dealing with domestic violence victims attending the station. He had been thanked by numerous colleagues and supervisors for his helpfulness and good work. He worked at the front counter from 9:00am to 6:00pm and said he found it boring. He liked being out on the road. The applicant said he had suffered a significant financial loss, totalling approximately $32,400; comprising $15,000 in lost shift allowances and overtime, $13,800 in rent concession, removal costs and attending the Industrial Relations Commission in Sydney for legal consultations. He claimed that a transfer to Wollongong would be overly harsh. He had no friends or family there and his mother is ill. He had received positive feedback from his supervisors in Albury and said another transfer would leave him almost bankrupt in circumstances where the allegations against him were baseless. 29 In oral evidence, the applicant said he had always wanted to be a police officer because he had an interest in the law and wanted to help people. After graduating as a probationary constable, he had applied to be stationed in Albury and his request had been granted. He had never had aspirations to live anywhere else. He agreed he had thought of joining the Queensland Police Force when Ms Keran moved there, but did not take it any further. 30 The applicant said that his career goal is to become a police prosecutor and this would involve moving to Sydney for training. This had been offered in conciliation, but rejected by the Force. He said he was now not prepared to conciliate when he had done nothing wrong. 31 In oral evidence, the applicant said he had attended numerous domestic violence incidents while stationed in Albury and was aware that the Force has policies and procedures to deal with domestic violence incidents. The applicant said that in cases where an Apprehended Violence Order (AVO) is sought by Police it was his practice to make that judgment after talking to all those involved. He agreed a victim might be reluctant to press for an order if there is still a relationship, have low self esteem and may be fearful. Quite often it is 'word against word'. About half of all incidents involve alcohol. The applicant agreed that if a police officer had been found to have engaged in domestic violence it would be in breach of the Force's Statement of Values and demonstrated a lack of integrity. However, the applicant did not agree that such an officer's credibility within the community would be affected. It depends on the nature of the matter. Drug trafficking would definitely affect the officer's credibility. The applicant said he was aware of the Force's Standards of Professional Conduct and the Code of Ethics. He agreed the Code covered 'off duty' conduct.

Character references 32 The applicant provided a number of character and professional references:

SC Nyholm said: "I have been impressed at times with Steven's ability to read situations, maintain a cool persona in times of heightened alertness and his intellect. He presents as a very articulate and well planned man. I have had great trust in his ability to work single unit and entrusted with the power of Constable that comes with the oath of office. He is a very competent Police Officer. He is GOOD at his chosen profession. Steven does not suffer fools lightly and is not afraid to express his view. This is the stance of a proud, knowledgeable individual, which I feel at time (sic) becomes confused with arrogance. His brutal honesty has at times offended others, whom instead of taking on board positive forms of criticism, have construed them as a personal attack. I admire him for that, he has a strong character, nothing more nothing less. ... In my experience with Steven I cannot believe the extent of the accusations and prefer his version of the events with quantifiable restraint. I would have little hesitation in offering my opinion that Steven is a truthful person who can be relied on to tell the truth under oath." 33 SC Nyholm has known the applicant since 2006 and offered his reference after only being shown the allegations against him, and no other documentation, including Ms Keran's evidence. SC Nyholm agreed the allegations were very serious and, if true, the applicant should have been charged. 34 SC Nyholm understood there had been witnesses to the various incidents after speaking to the applicant. When asked how he could prefer the applicant's version of events when he had not even seen Ms Keran's evidence, he replied that the applicant had never lied to him before and he had no reason to doubt him now. 35 SC Nyholm said that if it was one person's word against another's, he would not have taken any action. However, he agreed he had not spoken to Ms Keran and had not seen her transcript or video evidence. SC Nyholm stated that he would continue to support the applicant, even if there was an adverse outcome for him. SC Nyholm based his assessment of the applicant's character from a personal and professional perspective. He had observed him on a few occasions defending a factual position which others construed as a personal attack. He agreed the applicant did speak his mind and could offend people more so than others. This would sometimes lead to heated discussions. 36 SC Nyholm confirmed the applicant had a mistrust of senior management in the Albury LAC. He named Superintendent Mark Cooper (Supt Cooper), Superintendent Tony Crandell (Supt Crandell) and Insp Blanchard, but said there were others. SC Nyholm had acted as a peer support and union official for over 150 officers and the applicant was not the only one who came to him to express mistrust with Management. SC Nyholm acknowledged that he did not always agree with the applicant's complaints. He handled things differently to the applicant after more years of experience and having children. He agreed the applicant would deal with things totally differently to how he would. The applicant would often speak out without acting on it. For example, the applicant did not agree with the way the Queensland matter had been investigated. SC Nyholm believed the applicant did not understand the detail and intricacies of an investigation and the necessary procedures involved. 37 SC Nyholm agreed that the applicant had been left suspicious of senior management and that this does impact on the effectiveness of the Police, as an organisation. He said the applicant was disappointed with Supt Commins because he had not come to an independent view of the issues involved, as it had followed shortly upon a s 181D process. 38 Mr Luke Daniel Glasgow, a friend of the applicant's living in Queensland said: "I have always known Steve to be of the upmost integrity, honest and considerate and consider him to be one of the best police officers I know. This I believe to be reinforced by his performance record. ... I do not believe that Steven would engage in the conduct outlined in the notice. This is reinforced by my interactions with Liz as well as my observations over several of Steven and Liz's relationship (sic)." 39 Ms Rebecca Caroline McHale, a close friend of the applicant's and witness to an incident in October 2003 said: "As mentioned above I have known Steven on and off for the past five years and have never witnessed any incidents or behaviours that would lead me to believe he would physically harm anybody outside the realms of his job as a NSW Police Officer. Steven has shown care and concern for his friends and family (including myself) when they have been upset or troubled. This care and concern extended to Elizabeth also. ... Steven is a truthful person, this is something that I have always admired about him. He can be relied upon to tell the truth under oath." 40 Constable Thompson said: "Steven is an intelligent, confident, strong willed person who speaks his mind and is not afraid to do so. The views he chooses to express are always based in fact, reasoning and logic. I believe that these qualities are his strongest points and are necessary to being a good police officer. Unfortunately, his greatest strength can also be a downfall as people do, at times, take offence to his blunt and matter of fact way of expressing himself. ... The allegations made by Ms Elizabeth KITCHIN (aka KERAN) do not correspond with my experience of Steven and I do not believe that he is the type of person to have conducted himself in the alleged manner. I do not believe that Steven is violent in nature. Whilst Steven and I have not always agreed, there has never been any issue of domestic violence, verbal or otherwise, nor have I ever had any reason to fear violence from Steven." 41 In oral evidence, Constable Thompson was asked about her understanding of a 'domestic relationship' and said she did not live with the applicant at any time. She said their relationship had lasted some months and had ended because they both had aspired to different outcomes, eg she wanted children and the applicant did not. She said that this had been the subject of significant discussion between them. However, she could not recall any specific arguments they had about the subject. 42 Constable Thompson said the applicant was strong willed and confident about his views and his opinions were based on fact. She agreed they had argued from time to time, but not in a heated way. She could not think of any specific instances where others had taken offence at the applicant's nature, although she had observed a few occasions. 43 Constable Thompson said the applicant had provided her with the allegations made under s 181D so that she could provide him with a reference. She agreed she had not seen any other evidence relating to the allegations. 44 Constable Thompson recalled an incident in January 2008, in which the applicant put something on an MSN chat line about going to 'crumble away and die'. She became worried he might self harm and, when he did not reply to her multiple calls to him, she told her duty officer of her concerns. She was later told by the applicant that she had misconstrued what he had put on the MSN line. He had used the term 'crawling away and die' after mowing the lawn in Queensland in 40 degree heat. 45 Senior Constable Russell Altley Morris (SC Morris) said: "I have read through the allegations made in the Notice pursuant to section 181D(3)(a) of the Police Act 1990 (Notification No:1126). It is not my place to agree or disagree with this document and the claims made. I will however state, that I know Steven PROBST is a man of integrity and honesty. I have always found him to accept responsibility for his actions even when possible consequences are looming. I have no hesitation in stating without a shadow of doubt Steven is a man who can be relied on to tell the truth under oath.

Due to the nature of our work, it is not uncommon to find ourselves as Police to be faced with hostile individuals or groups. In the incidents I have attended with Steven, I can confirm at no time have I EVER seen Steven use an excess of force before, during or after an arrest. In instances of heightened anger, fear and other emotions during confrontational episodes, I am yet to see Steven react violently. I was surprised to read the allegations made as the violent acts are not within the character of the Steven PROBST I know.

In closing, I would like to assure the reader, I have always found Steven PROBST to be a level headed, sensible, articulate man who is well aware his actions carry consequences. I have always found Steven to err on the side of caution in confrontational situations maintaining a firm stance with offenders while tolerating more than I ever would. When reading he allegations as contained in the Section 181D(3)(a), I find it hard to believe they refer to Steven Shawn PROBST." 46 Constable Hollie Briallen Baker (Constable Baker), a friend of both the applicant and Ms Keran and who was witness to a number of incidents said: "Shortly after I met Steven, I soon met his new house mate, who soon became his girlfriend, Elizabeth KITCHIN. I always remember Elizabeth being polite and courteous most of the time. Though I would also describe her as irrational and un-predictable, as I know Elizabeth was on medication for a mental health issue, she would often have moments of lashing out as Steven verbally or by throwing things at him.

I am unsure of some dates but distinctly remember events. I remember Elizabeth laughing that she threw Steven's phone at him because they had had an argument. She had stated the phone smashed and he had to buy a new one and she couldn't care less.

One of Steven's female friends had had a baby. The father was overseas. Somewhere along the line wires got crossed. Elizabeth arrived at the Urana Police Station in hysterics, accusing him of being the father and cheating on her whilst in a relationship. She had forced entry into the Police house and was being violent. I was told that Senior Constable NOLAN was present. I know the situation was vulgar and the incident was bigger than I am giving it credit for.

Steven and one of his friends went up to Queensland for a holiday. Steven was staying with Elizabeth. He rang me to tell me he had been arrested the night before. He told me of the incident that had taken place. Steven and his friend Matt had gone out for drinks. He arrived home later on and Elizabeth was having one of her episodes that she usually had when she didn't take her medication. She was throwing his belongings at him, telling him to leave and she wanted nothing to do with him. She had pushed Steve when he was bent over packing his bag and he head butted the wall, leaving a dent in the plaster and him with a black eye. Steven took his belongings and took refuge in his car, as he would have been over the limit to drive. It was then he was arrested and conveyed to the Police Station.

I have read the alligations (sic) and the background evidence surrounding it, I don't deem this to be true at all.

I have always held a high regards (sic) for Steven, and believe his Code of Conduct Ethics in his duty and would bring credit to any Police force or employer." 47 Mr Bonfield, a friend and involved in the Queensland incident said: "Steve has always been honest as long as I have known him and I believe that any evidence given by him under oath will be the truth.

I have read the notice given to Steve by the Police Commissioner. I know that incident one as mentioned in the notice is not true. Liz did come to my house that night but did not show any signs of injury to her head or otherwise. I do not believe that Steven would ever have assaulted Liz as he loved her and was always caring towards her.

Allegation 5 in the notice is not true as I was there that evening in Queensland and as stated Liz was the aggressor towards Steve without reason. In so far as the other allegations I saw Liz and Steve on a very regular occasion whilst they were in Albury and never saw any injuries on Liz. Liz never appeared afraid of Steven and there were never any violent arguments. I do not believe Steve ever assaulted Liz. Liz never gave any indication that Steve was violent towards her, but Steve had told me on numerous times he was having trouble with Liz going off her mental health medication." 48 Ms Day has known the applicant since 2007 and met Ms Keran when she started living with him. She provided a statement in the proceedings, but was not required for cross-examination. She recalled an occasion after they had broken up and the applicant had visited her. He had taken a call from a girl in Sydney. The applicant told her the girl was pregnant, but the baby was not his. Later that night, Ms Day had a conversation with Ms Keran and told her the applicant was interested in a pregnant girl. She could not recall exactly what was said, but she was sure that she told Ms Keran the baby was not his. 49 Ms Day recalled that sometime in August 2007, while she was working as a hairdresser in Cairns, she received a call from a detective from New South Wales. She did not remember his name, but he had said that the applicant had beaten up Ms Keran and he was coming to Cairns to take a statement from her. She just agreed and told him to call later. The same officer called back a few weeks later. She told him she did not know anything and did not want to get involved. Ms Day said the officer kept on asking if she was being threatened and she kept telling him she had nothing to say. Ms Day stated that she did not speak to the applicant about the Police contacting her until she moved back to Albury and saw him in 2009. No one had told her not to make a statement - she just did not want to get involved. 50 Ms Day agreed that the applicant had a temper and could get angry. However, she had never seen him violent and, at no time, had she seen him act violently towards Ms Keran.

Relationship between Ms Keran and the applicant 51 The applicant first met Ms Keran in February 2003 when she shared a house with a friend of his in Melbourne. Their relationship began as a friendship and they became house mates when Ms Keran moved to Albury to undertake her nursing studies. Later, they began a casual sexual relationship and soon it became a committed mutual relationship with them acting, and living, as a couple. In March 2006, the applicant applied for, and was successful, in his request to move to Urana, about 120km north west of Albury, which had a police residence attached to the station. Ms Keran moved with him to Urana, but stayed with his parents for two to three days a week while she was attending university in Albury. 52 The applicant described their relationship as turbulent. He said Ms Keran had mental health issues and required medication. The applicant said that while he did not know exactly from what Ms Keran was suffering, he thought she was bipolar. He said the doctors had offered different diagnoses and medications. If she did not take her medication she would 'constantly go off'. The applicant said Ms Keran's mother told him she had concerns for her. Notwithstanding what some of his character references said about his arrogance, he denied that his conduct contributed, in any way, to her behaviour. 53 The applicant also denied that the difficulties with Ms Keran were, in part, a result of his drinking. He said he did not deserve to be hit and pushed and have his possessions broken. 54 Ms Keran conceded there had been occasions where she had been aggressive and violent towards the applicant. She admitted to slapping him across the face in the Globe Hotel. She agreed she had joked with Constable Baker about smashing the applicant's phone, but she denied throwing it at him and did not tell Constable Baker that she did. She agreed to describing Ms McHale as 'that red headed slut' and said she was very jealous of the applicant's relationship with her. She had banged on the bedroom door when Ms McHale had been there. Ms Keran also agreed they had an argument about a lawnmower, but she denied kicking and damaging it. Ms Keran also denied smashing the beer stein given to the applicant by Ms McHale. 55 Ms Keran recalled the night she finished her final exams and attended a celebratory dinner at Taco Bell. She denied telling Constable Baker that she just wished the applicant would 'fuck off', that he made her sick and that she did not need him. She was going to end their relationship that night. She agreed she said she was sick of him and did not need him. She also agreed that she ignored him and was rude to him that night and they had broken up. He went home upset and she remained out for a short while afterwards. 56 Ms Keran denied she told the applicant on another occasion to 'fuck off, I do what I please' when he had expressed concern that she had been driven home by a known drug dealer. She said the applicant had not said anything about the driver, because he could not have known who he was. 57 Ms Keran said their relationship actually improved in the three weeks before she left for Queensland to study and they had discussed the applicant moving to Queensland and possibly joining the Queensland Police Force. 58 Ms Keran was asked about another incident in Queensland on 14 February 2007, when they had both gone out for Valentine's Day. She was very intoxicated and the applicant and Mr Bonfield were laughing at her. She denied continuously hitting the applicant on the arm. He did not say 'stop hitting me, that hurts'. She denied continuing to hit the applicant when he went into the bedroom. 59 Ms Keran said that despite the applicant wanting her to become a doctor, when she sat for the entrance exams, he told her it no longer suited him. Around this time, she would stay at the nurses quarters at Corowa. The Allegations - Issues 1-5 60 I shall now deal with the evidence given in the proceedings concerning each of the allegations by reference to the terms of each allegation as expressed in the s 173 order as Issues 1-5. Issue 1 - Incident on 30 January 2005 Ms Kitchin says that, on 30 January 2005 while she was driving you in Albury, an altercation developed. Ms Kitchin states that you were quite intoxicated. Ms Kitchin says she got out of the car. According to her, you then said " If you go home, I'm going to stab myself and call the police and tell them that you've stabbed me." Ms Kitchin alleges that you then physically shoved her in the chest causing her to fall backwards onto the dirt, hurting her head. She claims that you again repeated your comment about stabbing yourself. Ms Kitchin states that she then asked Ms Kate Lenne to collect her from the service station on the corner of Thurgoona and Pemberton Streets. It appears that Ms Lenne was at that time the girlfriend of your friend, Ms Bonfield. Ms Kitchin says she told Ms Lenne what had occurred in the presence of Mr Bonfield. Ms Kitchin says she took the next day off sick as a result of her head hitting the ground. Ms Kitchin's employer at the time confirms that she was absent on 31 January 2005. Ms Lenne confirms that Ms Kitchin told her of the events at the time and had dirt on her hair, back, face and hands. Mr Bonfield says that he did not take notice of the conversation between Ms Lenne and Ms Kitchin. You denied the allegations. You say that, once out of the car, Ms Kitchin grabbed you. You deny threatening to stab yourself. You claim that, as you walked off, she was sitting on the ground, screaming. I note in your response that you maintain your denial of the allegations. However, in all of the circumstances, I conclude, on the balance of probabilities, that you did shove Ms Kitchin in the chest causing her to fall and hurt her head. As such, I find that your conduct was inappropriate and unlawful and would have the potential to bring discredit to the NSW Police Force.

61 The applicant said that on this day he and Ms Keran had gone to the local pub and he had had a few beers. Ms Keran was not drinking because she was driving his car. He described his level of intoxication as 'moderate'. After they left the pub (between 6:00pm and 7:00pm) they picked up a pizza at Rebels in Young Street, Albury, which is where they always went for pizza. The applicant said it definitely was not 10:00pm. The applicant agreed he criticised Ms Keran's driving when she went through a stop sign. He denied saying 'I could pull the handbrake on and get you to have an accident and be charged with negligence'. He stated that he loved his car and would never have threatened to damage it. He further denied seeing his parents' car while driving home. He also denied telling Ms Keran she could not see her parents because she would not let him see his. 62 The applicant said Ms Keran stopped in Thrugoona Street, got out of the car and started walking in the opposite direction to home. She came back and said she would drive his car home. He replied 'don't bother'. She then said she was staying at a friend's house. The applicant denied following her in the car. He denied saying 'If you go home I'm going to stab myself, call the police and tell them that you've stabbed me'. He denied pushing her with an open hand in the chest (a police manoeuvre called a 'check drill'). She did not fall to the ground and hit her head. He said she was just sitting on the ground and he kept walking up Pemberton Street to his home. When she did not come home, he called her that night because she had his wallet, keys and phone. He denied saying 'if you're going to involve my parents in this, don't. You've run off to your other boyfriend's place and you've stolen my ID badge'. 63 In re-examination, the applicant reaffirmed that there was no way he would damage his car. It was an Alfa Romeo 75 Twinspark and he had spent many hours working on it. It was his pride and joy. 64 Ms Keran's evidence was that on the way home from picking up a pizza at North Albury, the applicant kept going on about her driving. She ignored him. At that point he said he could pull the handbrake on, get her in an accident and have her charged with negligent driving. She ignored this comment as well. When they saw the applicant's parents' car go past, he had wanted her to go after them. As it was about 10:00pm at night, she refused because she had to go to work in the morning. He then went on about never letting her see her parents if they ever came to visit. Ms Keran said she stopped the car and told him she was walking home and he could do what he wanted. She walked part way up the street, but returned. She told him she would drive the car home. He said 'don't bother'. As she was walking home the applicant drove onto the footpath and told her to stop following him. He then said he was going home to stab himself and tell the police she had stabbed him. She said she was a bit stunned by this and told him she was going to stay with friends. 65 Ms Keran said the applicant then shoved her with open hands in the chest and she fell back into the dirt. He made the comment again about stabbing himself. She had said that she was fine and she would go and stay somewhere else. She rang a friend, Ms Kate Jacqueline Lenne, but when she did not answer, she rang Ms Lenne's boyfriend, Mr Bonfield. Kate was there and she asked to stay the night as she and the applicant had been arguing. Ms Lenne picked her up at the corner of Thrugoona and Pemberton Streets. Ms Keran said she felt sore, but had no visible injuries. On returning to Mr Bonfield's residence, she told Ms Lenne what had happened and Mr Bonfield had said 'he's being an idiot'. Ms Keran said the applicant's parents had phoned her to see if she was okay because he'd rung them to come and get his car. Later, she received a voice message from the applicant telling her not to involve his parents, that she'd run off to her other boyfriend's place and stolen his ID badge. However, she did not know he had put his ID badge in her bag at the pub. In the morning, Ms Lenne drove her home and she gave the applicant his ID badge. When she got to the house, the applicant had taken the immobiliser out of her car. They talked and he talked her into staying with him. She rang in sick that day. Issue 2 - Incident on 13 February 2005 Ms Kitchin says that, on the evening of 13 February 2005, you "goaded" her by suggesting you wanted to see other girls. She says she went to bed, and claims you burnt a number of her documents and photos and smashed a couple of photo frames. She says you threatened to set her car on fire. She says that, in the bedroom, she pushed you away and walked out of the bedroom and that you came after her. She says you then "...did some kind of foot sweep on me and I went down... I think I must of [sic] hit my head on the edge of the tiles. I don't remember him hitting me in the head but he was on top of me one moment and sort of pinning me down and then he got up and he walked off, and I touched my face because I thought I was really sweaty and crying and I had blood all over my hands... I had probably a 3 centimetres laceration on my head, the left side in the hair...". Ms Kitchin says she did not seek medical treatment although she states that she felt ill for a number of days. She says she told her University lecturers that she had hit her head on a cupboard. Ms Goddard, one of Ms Kitchin's lecturers, recalls Ms Kitchin having a head injury around later 2005 or early 2006, but is not sure of the timing. Ms Lenne says Ms Kitchin told her of the incident in August or September 2005. You denied the allegations. You say Ms Kitchin attacked you. You say that, in the ensuing struggle, she fell on the floor, causing a " tiny cut on her eyebrow ". I note in your response that you maintain your denial of the allegations. However, in all of the circumstances, I conclude, on the balance of probabilities, that you did threaten Ms Kitchin and that you used physical force to cause her to fall and split open her head before pinning her down. I also conclude, on the balance of probabilities, that you destroyed and threatened to destroy property belonging to Ms Kitchin. As such, I find that your conduct was inappropriate and unlawful and would have the potential to bring discredit to the NSW Police Force.

66 The applicant said that on that day they both went by taxi to the pub. He had drunk 10 to 12 light beers and he agreed he was moderately intoxicated. They had both been drinking. He could not recall if they got a lift or a taxi home, or if they picked up a pizza. He denied telling Ms Keran when they got home that he did not want a relationship at the moment and wanted her to wait until he was ready so he could see other girls. He denied that she said, 'well you know that's not going to happen' and that they would talk about it tomorrow when he'd sobered up. The applicant said that Ms Keran had told him that she had smashed a heavy beer stein a former girlfriend (Ms McHale) had given him and said, 'I smashed the beer stein that red headed slut gave to you'. He denied responding by saying that he could smash her possessions to control her as well. He also denied smashing her photo frames and burning some documents. He denied threatening to burn her car. He denied saying no one loved her, no one cared about her and that was why she did not care if her stuff got burnt. Further, he denied saying that it was great to cheat on her because he liked to hurt her. 67 The applicant claimed that Ms Keran barrelled into him and they both fell to the floor. She was not trying to walk out of the bedroom. He denied taking Ms Keran down with a 'foot sweep', as it was impossible to do so from behind. He had not tripped her. It was she who pushed him and they both fell and she hit her head on the edge of the bathroom tiles. There was a bit of blood from a cut less than a centimetre long on her head. He said that it stopped bleeding pretty much straight away. He then helped her into the shower and cleaned up the blood from the carpet. He denied asking her for sex. 68 Ms Keran's evidence was that after she drove the applicant home from the pub and they were having pizza, he had said that he wanted her to wait around so he could see other girls. She told him that that was not going to happen and they would discuss it the next day. He then started to go on about the beer stein she had accidentally broken a few weeks earlier while she was cleaning. She had told him at the time and he had been fine about it. However, he then went on about her smashing his possessions and that he could do the same. He burnt some of her documents and smashed a couple of photo frames. In cross-examination, Ms Keran said that the applicant burnt some of her objects that night in the enclosed barbeque space. The fire would not necessarily have been seen by other neighbours. Later, when she was in bed, he came close to her and told her no one loves or cares about her and it was great to cheat on her because he liked to hurt her. At this point, Ms Keran said she decided to leave and pushed him out of the way. She said the applicant was really drunk and as she was walking out of the bedroom he came after her and did a kind of 'foot sweep' on her and she fell down. She could not be sure what happened next, but when she got up she had a 3cm cut on the left hand side of her head with blood running down her front and back. The applicant had left the room, but came back and appeared stunned by what he had done. He helped her up, put her in the shower and cleaned the carpet. He then wanted to have sex. 69 Ms Keran said she should have gone to hospital because the wound bled for the next three days. She said she went to work the next day and her lecturer asked her what was wrong, as she did not look too good. She told her she hit her head on the edge of a cupboard. She said she felt unwell for a couple of days. As to the cut on her head, Ms Keran said in oral evidence that no one had seen the cut because it was in her hair. However, her lecturer had noticed something was wrong. She did not show the cut to anyone, because she did not want anyone to see it and she denied injuring herself at sport. 70 Ms Keran referred to another incident on 4 or 5 April 2005, after she and the applicant went to the pub. She said he got quite drunk and wanted to pick an argument with a stranger. She told him to come home and when they got back he went on about how useless she was and how she had not supported him. He had kicked the glass shower screen and shattered it. Issue 3 - Incident on 23 August 2006 Ms Kitchin says that, while in Melbourne with you on 23 August 2006, she returned to the apartments, where you were staying together, on her own after being with you at the " casino " that evening. She says that she was in the bath when you returned to the apartment approximately 10 minutes later. Ms Kitchin states that you were " really drunk " and that you and she had an argument. In the context of the argument Ms Kitchin states that she told you that you could obtain " casino video footage " to verify what she was doing and you suggested they "shake on it", and she then stated that "...[she] reached up and I shook his hand and he started to crush my hand, and it was really hard like, feeling the bones grating together ... I swung with my left hand ... I sort of caught him on [sic] jaw to make, to try and make him let go and he went ... really berserk and I think he hit me in the face and he grabbed me by the hair and held my head under the bath water [for then seconds at a time], he did that twice and at the same time he's kind of shoving me about the bath ". Ms Kitchin says that she had bruises on her left elbow, left temple and on the side of her left jaw. Ms Jackie Urquart, a co-worker of Ms Kitchin at the time, states that she noticed bruising on Ms Kitchin's face some time in 2006, after Ms Kitchin had been on a weekend away. Ms Urquart says she asked Ms Kitchin about the bruises and Ms Kitchin said that it had been caused in an incident in the car. You deny shaking Ms Kitchin's hand and say she punched you when you sat on the edge of the bath. You deny holding her under water. You suggest that your parents could confirm that Ms Kitchin had no injuries the following morning since you had all taken breakfast together. The Notice alleges that you say that, on the journey back from Melbourne, a tyre blew on the car but it did not cause you to crash. I note that you had actually stated that this occurred on the way down to Melbourne. Your father states that he did not see any injuries the next day. He says you and Ms Kitchin seemed quite happy. Your father also states that you occasionally complained that Ms Kitchin had gone off her medication and that she acted irrationally, cutting up your clothes and breaking your possessions. I note in your Response that you maintain your denial of the allegations. However, in all of the circumstances, I conclude, on the balance of probabilities, that you did use physical force in hitting Ms Kitchin in the face, holding her head under water and shoving her while she was in the bath. As such, I find that your conduct was inappropriate and unlawful and would have the potential to bring discredit to the NSW Police Force.

71 The applicant deposed that they had both gone to Melbourne for his cousin's wedding. Ms Keran had booked an apartment which appeared to be opposite a brothel. He found this amusing. They had a heated discussion about prostitution. She said she found it offensive and disgusting. He denied saying it was okay for a guy to engage in sex with a prostitute. Rather, he said it was legal and none of their business. 72 At the wedding, the applicant said he had 15 light beers and was moderately intoxicated. After the reception they decided to go to the Crown Casino. They had their own money to gamble with. He played roulette and lost and they both then played the pokies. After a time, Ms Keran told him to stop and he said 'it's my money'. He claimed he was always free to spend his money as he wanted, as she was with hers. He went to the restroom and when he returned Ms Keran had gone - he assumed back to the apartment. He returned about 1:00am to 1:30am and Ms Keran was having a bath. He agreed he was upset that she had stormed off and left him but had not said he felt insulted. He denied saying 'all right, we'll shake on it'. He had not taken her hand and crushed it. She had punched him on the left side of his face on the jaw. He had not held her head twice under the water. Ms Keran did not sleep on the floor that night. She slept in the bed and he slept on the couch in the lounge room. 73 Ms Keran's evidence was that she was not happy about staying opposite a brothel and they had argued about it being okay for men to use prostitutes. As a result, they had slept in separate rooms. 74 Ms Keran said the applicant was drinking quite heavily at the wedding and when they went to the Casino they had an argument about how much money they would spend gambling. He got really upset and told her to go home, which she did. She was in the bath when he arrived home about 10 minutes later. They started to argue again and the applicant was really drunk. After continuing to disagree, the applicant had said 'all right we'll shake on it'. When she reached out with her hand he started to crush it. To make him let go, she swung her left hand and caught him on the jaw. He went berserk, grabbed her hair and forced her face down under the water. He did this twice. She did not know how long she was under the water, as she was so upset and only conscious of getting air and she did not know how long he would continue. She said that she ended up with a large bruise on her left elbow, a bruise on her left temple and left side of her jaw. At first none of the bruises were particularly obvious. She slept on the floor that night, as she did not want to be in the same room as the applicant. 75 Ms Keran deposed that she did not tell anyone about this incident. However, her mother noticed the bruises the following Monday. She said she got them when their car got a flat tyre. By the Wednesday the bruises were more obvious. The applicant actually asked her when she got them. When she said that he had done it, he denied it. Later in the week, a work colleague asked how she got the bruises. As she was embarrassed, she used the flat tyre excuse again. In oral evidence, Ms Keran said that everyone bruises differently and for her it could take three days for a bruise to come out. However, she agreed a bruise would generally be visible within 12 hours. She said that her bruising is often not fully visible for 24 to 48 hours. Ms Keran had breakfast with the applicant's parents the day after this incident. There was no visible bruising then as it would take to the third day before the bruise goes purple, then green. She denied she was the aggressor in this incident. However, she had agreed she hit the applicant in the face. Issue 4 - Incident in November 2006 Ms Kitchin states that, one evening during November 2006, an argument developed over your snoring while you were both at home in bed at the police residence in Urana. Ms Kitchin says that during the argument you got up and started slamming doors and yelling at her. She says she tried to walk past you to gather her things so that she could go to the nurses' residence in Corowa, but that you physically shoved her hard in the chest causing her to fall backwards onto the ground. She says that she then picked up a laundry basket of items and went outside to put them in her car at which point you locked her out of the house. Ms Kitchin states that she was in her pyjamas, with no wallet or work uniforms and states that she requested that you allow her entry to the house but that you refused. Ms Kitchin says that she telephoned your mother the following day and told her that you were " getting violent again ". You state that you cannot recall an incident where you and Ms Kitchin had an argument over your snoring. You say that Ms Kitchin sometimes woke at 2:00am or 3:00am, took her " things" and left the house, but you deny shoving or preventing her from entering the house or retrieving her possessions. I note in your Response that you maintain your denial of the allegations. However, in all of the circumstances, I conclude, on the balance of probabilities, that you did use physical force in shoving Ms Kitchin in the chest causing her to fall on the ground and that you displayed intimidating behaviour by not allowing Ms Kitchin to retrieve her belongings. As such, I find that your conduct was inappropriate and unlawful and would have the potential to bring discredit to the NSW Police Force. I also find that you treated Ms Kitchin in a disrespectful and unlawful manner which would have the potential to bring NSW Police into disrepute. 76 The applicant denied that he was upset about Ms Keran being accepted into medical school at Griffith University. In fact, he had always encouraged her to become a doctor. 77 On that particular night Ms Keran just got up and left the bedroom. She always had trouble sleeping. He denied having an argument with her over his snoring, as he never denied it. He had not slammed a door. He did not even get up out of bed. She had not said 'this is not worth the hassle, I'm going back to the nursing home'. He said it was normal for her to do so if she could not sleep. The applicant denied pushing her in the chest (shake drill). She had not fallen to the ground. He said such a manoeuvre is designed to push someone away, not to have them fall. He denied saying 'I'm going to shove you on the ground again if you are going to keep coming at me'. Ms Keran then left and took her stuff. He had not locked her out as he'd been in bed the whole time. She had said 'I will have to get the police involved if you don't give me back my belongings'. In any event, the applicant said she could have called the police - there was a police 'eagle' phone outside the house and a phone box. She had not called back the next day to ask for her stuff back. She just came back home. 78 In re-examination, the applicant said an 'eagle' phone is a 24 hour direct access to a manned police station. He said Ms Keran knew where it was and how it worked, because he had shown her. 79 Ms Keran's evidence was that on that night she told him he was snoring. He began to argue, got up and started slamming doors. She decided it was not worth it and she was going back to the nurses' home. As she walked past the applicant, he pushed her with both hands in the chest and she fell backwards to the ground. She knew this to be a police manoeuvre. When she got up and tried to walk past him, he had said he was going to shove her again as she was coming at him. Eventually she grabbed a laundry basket of stuff and put it in her car. However, the applicant had locked her out. Her wallet, work uniforms and work contracts were inside. She told him she would have to get the police involved. Ms Keran said she drove back to Corowa in her pyjamas and rang his mother to tell her the applicant was getting violent again and was talking about suicide, which he did occasionally, by referring to a hunting accident or taking an overdose of Valium. His mother said she did not want to tell her husband and that she was sure her son would get over it. Ms Keran later got in touch with the applicant as she really needed her possessions back. She said she had reached a point where she felt defeated by it all.

80 In cross-examination, Ms Keran said she had a room at the hospital, but she would not usually leave her uniform there. She agreed she would sometimes come and go at night from Urana to the nursing quarters. However, as she frequently had 7:00am starts, it was not practical to drive all the way back. She agreed she was off medication at this time and she did feel more emotional when she was off her medication. She could not recall having problems with sleeping at this time. She denied going back to the nursing quarters because of sleeping problems. Issue 5 - Incident on 16 February 2007 In February 2007, you stayed with Ms Kitchin at her new home in Queensland. It appears that, on the evening of 16 February 2007, you returned to Ms Kitchin's residence with a friend, Mr Matthew Bonfield (who was also staying at Ms Kitchin's home). Ms Kitchin states that you and Mr Bonfield were " a bit drunk ". Ms Kitchin states that an argument developed between you and Ms Kitchin. Ms Kitchin says that you " pulled down the curtain and the rail. I told him to leave but he told me that he was not going and I would have to call the Police. He was swearing aloud. ... I called the police and hung up. ...[they called back] ... after I spoke to the police [he] threw the phone smashing it to the floor. [He] started to smash his head against the wall and caused a large dent. I went to sit outside as I was frightened and crying. [He]... told me to get his stuff ...he went to sit in the car port. He told me that he wanted me to call the police as he knew how to play this game...". Constable Urquhart and Senior Constable Stephen of Queensland Police attended Ms Kitchin's home on the evening of 16 February 2007. Constable Urquhart states that he observed substantial damage to the plasterboard wall, which he though may have been caused by a kick. Senior Constable Stephen took photographs of the damage to the curtain rail, telephone and plaster board. Senior Constable Stephen says that you were "clearly under the influence of alcohol ". You were detained by police and subsequently served with a protection order. On 29 March 2007, you responded to a directive memorandum in relation to the incident. You were also interviewed that day. You accept that you were slightly intoxicated on the night of 16 February 2007. You claim that when you arrived at Ms Kitchin's home that evening Ms Kitchin " started screaming at both myself and [Mr Bonfield]. [She] was shouting that she hated me, and wanted us both out ." You claim that Ms Kitchin told you to pack your things and leave. You say that she hit you on the arm. You say she then " pushed me from behind causing me to fall over the suitcase and me (sic) head hit the wall. As a result I had a black eye ." You say that Ms Kitchin threw your belongings outside. You say that you put your possessions in the back of your car and then got inside the car to keep out of the rain. You claim that you left messages for a friend, explaining that you needed somewhere to stay that night and then fell asleep in the car. You were awoken by police officers knocking on the window of the car. You deny damaging Ms Kitchin's property. Mr Bonfield provided a statement on 26 September 2007, but does not comment on Ms Kitchin's allegations. On 19 February 2007, you contested the application for an interim protection order before the Queensland courts. I note that when Ms Kitchin gave evidence in Queensland on 31 May 2007, the magistrate commented that she was "impressed" by her. I note that ultimately the application was dismissed on the basis that you had moved back to NSW and Ms Kitchin was no longer in fear of violence. I note in your Response that you maintain your denial of the allegations. However, in all of the circumstances, I conclude, on the balance of probabilities, that you did behave in an abusive and intimidatory manner towards Ms Kitchin on 16 February 2007 which had the potential to bring the NSW Police Force into disrepute. 81 The applicant deposed to the following: Ms Keran moved to Queensland in January 2007 for her medical studies. The applicant was disappointed because he was in love with her. He considered applying to the Queensland Police Force. He actually moved up for a short time on 3 February 2007, while on annual leave. Even though Ms Keran had started her course, there was plenty of things for him to do on the Gold Coast while she was at university. She would walk to university and he had the use of the car. 82 A friend of his, Mr Bonfield, came and stayed with them on 12 February 2007, while on his way to Port Douglas. Ms Keran had got on well with him, but she became unhappy with how he was just hanging around. On 16 February, the three of them went to a local pub and played poker. The applicant said he had a few beers. Ms Keran left about 10:00pm and he had a few more beers. He bought two kebabs on the way home and when he arrived she just started yelling at him and Mr Bonfield to get out. He and Mr Bonfield started to pack their belongings. He had said 'I am not yelling at you but you can yell if you want I'm leaving'. He had not said 'Matt can hear what we're arguing about'. The applicant denied ripping the curtain rail off. He did not see Ms Keran call the police, but she must have done so because they rang back about 10 minutes after he had left. The applicant said he was only back for five to 10 minutes, not 30 to 40 minutes. He denied picking up the phone and pretending to dial and yelling down the phone 'stop hitting me Liz, stop hitting me Liz'. He did not throw the phone on the ground smashing it. He had not said 'See how that sounds on the emergency tape'. He said the police phone records show no such call was made. The police phoned at 10:40pm and he was not even there. He further denied smashing his head into a wall. He had not continued to yell 'stop hitting me Liz'. He had said 'I'm leaving, I'm fucking leaving'. When he walked out, Mr Bonfield had already left. It was pouring with rain and he sat in the car. Ms Keran threw his stuff out into the rain and the police came. One of them spoke to him. 83 An AVO was taken out and heard on 31 May 2007, in the Queensland Magistrates Court. The applicant attended court that day and the application was dismissed, as he no longer posed a threat to Ms Keran. The applicant agreed the Magistrate found the events occurred as Ms Keran described them and that she was a credible witness. However, the Magistrate had made his findings without hearing any evidence from him or any of his witnesses. This had been his lawyer's advice because it was irrelevant to the outcome of the proceedings. The applicant said he was not concerned with the Magistrate's findings because he believed it was a closed court matter and the allegation had been untested. 84 Mr Bonfield provided two statements, the earlier one is referred to at par 47 and another was in the Force's materials. In oral evidence, Mr Bonfield clarified his evidence about what occurred that night. He said Ms Keran kept yelling 'get out'. He did not know what was going on. When he heard his name mentioned by Ms Keran in a raised voice, he started to pack his suitcase to leave, as he thought he was part of the problem. 85 Mr Bonfield provided a statement to Sgt Holmes on 26 September 2007, in which he said that while he had limited information about their relationship, he had never seen the applicant abusive or violent towards her and knowing the applicant well, he was sure he would not ever be abusive or violent towards her. In this statement, Mr Bonfield gives no evidence of what happened on the night of 16 February 2007. This was because Sgt Holmes had not asked him about it. He had said that it was a Queensland matter. Mr Bonfield said he told the truth to Sgt Holmes and where he said he could not remember incidents, this was the truth. Since making his earlier statement, no one from New South Wales Police had approached him to discuss it further. Mr Bonfield was shown Sgt Holmes' references to him from the Investigator's Report: On 26 September 2007, I obtained a statement from him. At the conclusion of the statement, I intentionally did not supply a copy of his statement, as I believe it would jeopardise the investigation. Shortly after leaving the police station, I received a telephone call from BONFIELD. He informed me I was required to give him a copy of his statement and requested a copy. This request was denied. I have no doubt BONFIELD had been in contact with the subject officer prior to calling me.

86 Mr Bonfield said he had asked for a copy of his own statement because he was legally entitled to it and the applicant's parents had told him he was entitled to it. He had not spoken to the applicant because he was not at home at the time and he did not know where he was. Mr Bonfield denied saying that 'he's being an idiot' after Ms Keran allegedly told his then girlfriend (Ms Lenne) that she had hit her head on the ground in the first incident. They had since broken up and do not speak after Ms Lenne had his dog put down. In further oral evidence, Mr Bonfield said he had known the applicant and been friends with him for 18 years. They regularly kept in contact, even when he was interstate. 87 Mr Bonfield's statement of 11 August 2008, details the incident on the night of 16 February 2007. The statement largely corroborates the applicant's version of events. In addition, he said that the applicant only yelled at Ms Keran when he was leaving and said he was sick of her mood swings. He had not threatened her and Ms Keran was definitely the aggressor. 88 In oral evidence, Mr Bonfield said they had not been drinking heavily that night because they were going to a theme park the next day. He confirmed that when they returned from the pub and Ms Keran was in the bedroom, the applicant went in to give her a kebab. He could hear the yelling. He could not pick up what was being said, but did hear his name mentioned. He did not know what the yelling was about. Mr Bonfield agreed that his observation that Ms Keran was the aggressor, was incomplete, because he could not hear what was said. He said he did not see any curtain rails ripped off the window and thrown to the floor. 89 Mr Bonfield said that when he described the applicant as having a 'touch of arrogance' he meant he was very direct and straight forward and sometimes his demeanour got people offside. Mr Bonfield agreed that there was a contrast of personalities between the applicant and Ms Keran, but he did not think this had led to any difficulties in their relationship. Mr Bonfield was asked if anyone had suggested he use the words 'touch of arrogance'. He could not recall. 90 Ms Keran's evidence was that when the applicant and Mr Bonfield got back from the pub they were both intoxicated. She was angry and wanted to be left alone. She said the applicant continued to argue with her and refused to leave her alone. She had said that if he was going to continue arguing, his friend should leave. He said 'No, Matt can hear what we're arguing about'. Ms Keran told him to stop yelling because she was worried about the neighbours. As he was packing his things, he ripped the curtain rail down and threw it across the room. She said if he did not leave she would call the police. He had told her to go ahead. She phoned the number, but then 'chickened out' and hung up. The police phoned back and she said it was okay as he was leaving. Ms Keran said the applicant became very angry and he picked up the phone and made out he was dialling the emergency number. He yelled into the phone 'stop hitting me Liz, stop hitting me Liz'. He then threw the phone and smashed it and said 'see how that sounds on the emergency tape'. 91 Ms Keran said the applicant then walked out and sat next to the fridge. He smashed his head backwards into the wall yelling the same stuff so the neighbours would hear. She walked outside and went to the other side of the road in her nightgown. The applicant came out and sat on the lawn and appeared calmer. She went back into the house and noticed a large hole in the wall and assumed he had done it with his head. She went back in the house and put his bag out on the lawn. It had started to rain. The applicant then collected his bag and went and sat in her car. At about 10:40pm, two police officers arrived and asked what happened. She began to cry and said the applicant had left and she did not want more trouble, because he was a police officer and she thought there might be ramifications. The officer asked about damage to the wall and she said the applicant had done it. She then showed the officer the other damage in the bedroom with the phone and curtain rail. She provided a statement to the police and signed it. The police explained about domestic violence applications and what would happen. They then went out to see the applicant. 92 In cross-examination, Ms Keran agreed she had earlier told the Police the applicant had dialled the police and started yelling repeatedly 'stop hitting me Liz'. However, the police phone records indicated no such phone call was made. She now believed he had pretended to make the call. Ms Keran denied tailoring her evidence having now known the call had not been made. She had not smashed the phone or pulled the curtain rail down. She had not smashed the applicant into the wall. 93 In oral evidence, Ms Keran said she knew Mr Glasgow and he visited occasionally when they were in Queensland. She agreed she had never told him of any instance of violence by the applicant. She could not recall if she had told him she had travelled to Tweed Heads to make a statement to Police and was not allowed to leave until she did. She could not deny telling him she felt pressured by the Police.

Medical Evidence 94 Mr B Docking of Counsel for the applicant, tendered Ms Keran's medical records from Griffith University Medical Centre. The following extracts are relevant:

In a letter from Dr Maryann Neal to Professor Phillip Morris of 20 August 2007, it was said: "... her last relationship which has involved the NSW Police Service as her ex partner was a policemen (sic) with them. She has told them numerous times that she does not remember any specific events other than the night he punched a hole in the wall when Qld police attended their flat. ... She is unable to trust her own recollections and does not want to go to court on this basis." (ex 8)

The Doctor's notes of 15 August 2007, record: Relationship ended earlier in year, alleged domestiv (sic) violence but she can't recall specifics Admits to going into denial about some events Can't trust her recall of things going on Has different recollection compared to friends etc Concerned going crazy

The Doctor's notes of 20 August 2007, record: History: Long history of dysthymia. More recent depressive illness after trauma of de facto violence eposide (sic) earlier this year. Probably pei-traumatic (sic) dissociation and patchy memory for trauma events. There is a childhood history of difficulties she is reluctant to talk about. Earlier treatment for depression at age 17 and 21. On citalopram in past. No substance abuse. Medically ok. Examination: Tearful, distressed, depressed and mild anxiety, not psychotic, not suicidal/homicidal, cognition intact, insight preserved. Diagnosis: Dysthymia, current depressive illness. 95 In her statement, Ms Keran admitted she was significantly depressed during 2007, but she had no doubt her recollection of events was accurate. She has not required any further treatment since December 2007. She said the applicant had subjected her to emotional manipulation and threats to get her to change her story. This had made her a difficult witness at times. 96 Ms Keran had received her medical records when Griffith University Medical Centre was summonsed to produce them. In referring to these records, she said that Dr Neal recorded on 20 August 2007, as her being prescribed Cipramil for several weeks. 97 At age 17 her mother sent her to a psychologist because she thought she was very angry and strange. She did not believe she was depressed at the time and only saw the psychologist once. She agreed she had told Dr Neal in 2007 that she had had mental health issues at the age of 17. Ms Keran said that in 2003, when she was 21, she was diagnosed with clinical depression after a bout of glandular fever. 98 Ms Keran acknowledged that she had lied to Dr Neal when she told her that she had told the New South Wales Police numerous times that she did not remember any specific incidents, other than the night he (the applicant) punched a hole in the wall of their flat in Queensland. She agreed she had told the doctor that her memory of events was different to that of her partner's. She deposed that the applicant was pressuring her to get a psychiatrist's letter saying that she was incompetent. She agreed this claim was not mentioned in the doctor's notes. However, she insisted she had discussed it with Prof Morris and Dr Neal. 99 Ms Keran said she had told Dr Neal that she was unable to trust her own recollection. This was because the applicant had been putting a lot of pressure on her and she had started to question herself. She accepted there was no record anywhere of her saying that she was under pressure from the applicant. She had said that she did not want any criminal investigation or any disciplinary action taken against him. Ms Keran said that she had not discussed specific incidents with Dr Neal, because she could not remember exactly what happened at times of high stress. She agreed that nowhere in the doctor's notes is there a reference to her being held under water in the bath. However, she had told the doctor this had happened. She had also told the doctor some specifics because that was where the concept of 'disassociation' that he referred to, comes from. She agreed she had told the doctor that she thought she was 'going crazy'. She had felt pressured from the applicant and the New South Wales Police as Insp Blanchard had already had an interview with her. The Police were quite persistent and she also had contact from Senior Constable Sharon Margaret Boulton (SC Boulton) and Sgt Holmes. 100 Ms Keran said that on 20 April 2007, she had told a Dr Julie Mitchell that the applicant had been unfaithful to her and that she was concerned she may have contracted a sexually transmitted disease (STD). She was concerned because the applicant had multiple sexual partners during their relationship. She agreed she described one such person as 'that red headed slut'. Ms Keran said that she had seen a doctor around July 2007 at Labrador Park Medical Centre and had been prescribed Cipramil. She claimed she did not always go to the University Medical Centre. She had done so because the applicant told her that she 'needed a referral to a psychiatrist to get a letter to protect him'. 101 Ms Keran was asked about her knowledge of the symptoms of people with depression. She agreed they might include low self esteem, irritability, mood changes, anger, frustration and insomnia. She did not deny that she was very depressed at the time. Ms Keran said she and the doctor had talked about depression and 'disassociation'. She understood it involved not having a distinct recollection of episodes of high stress, including the incidents involving the applicant.

102 Ms Keran said she would not have told Prof Morris of the long history of 'dysthymia'. Rather, she had told him she had a long history of 'feeling flat'. She was aware of the clinical definition of 'dysthymia' (chronically depressed for most of the day, more days than not, for at least two years). She had told the Professor of trauma involving de facto violence and that she had a patchy memory for trauma events. She did not accept that she was the aggressor in any of the incidents. She agreed she told the Professor of a childhood history of difficulties. She denied being treated for depression at 17. She had merely seen a psychologist. She told the Professor that she was on Citalopram and had been since 2003. She agreed she was tearful and distressed during the appointment, but not suicidal. She was not sure if the Professor told her she had dysthymia, but she knew she was suffering from low mood. She did not know what the Professor meant by 'boundary diffusion'. 103 Ms Keran was shown a publication, Statistical Manual of Mental Disorders, 4th Edition, DSM 4 TR. She was aware of the text from her nursing studies. She was shown the definition of 'dysthymia'. She described her own condition as feeling flat and low. Ms Keran agreed she had very high standards for herself and, at that time, had low self esteem. Ms Keran was also asked about the condition 'endogenous depression'.

104 Ms Keran said she was not qualified to comment on the Professor's reference to 'bipolar variant'. She agreed he had suggested 'continue explorative psychotherapy'. However, she was not referred to anyone else. He had prescribed Citalopram and a small dose of Mirtazapine. Ms Keran was asked about the effect of these drugs from her own knowledge and from information on the website. She agreed she often stopped taking her medications. She denied she had symptoms such as agitation and restlessness. However, she agreed she was sometimes irritable and emotional. Nevertheless, she believed the applicant used her medication as a control mechanism although she agreed she had punched him on several occasions. 105 Ms Keran saw Prof Morris again on 22 October 2007, 5 November and 19 November 2007 and a General Practitioner, Dr Anthony Mackay on 13 February 2008. She had no other psychotherapy sessions. Ms Keran agreed that she had been on and off various medications in 2005 and 2006. She found her condition was seasonally affected. She had often went off medication in summer, and went back on it in winter. Ryan and Bosscher's letter - 28 June 2007 106 The applicant's case relied, in part, on a letter from Ms Keran's solicitor dated 28 June 2007, addressed to Insp Blanchard ('the Ryan and Bosscher letter'). It was said that this letter confirmed that Ms Keran had told her solicitor she had an extensive and documented history of depression. The letter also stated that 'she now feels the information given regarding Constable Probst is an extremely distorted reflection, if not entirely baseless' and she requested that Police not contact her again. 107 The applicant believed that this letter had not been placed before the Commissioner of Police in the s 181D process. The applicant said he believed Sgt Holmes spoke to Ms Keran after becoming aware of her solicitor's letter and told her she could be prejudicing herself if she withdrew her allegations. 108 In cross-examination, Ms Keran agreed that she had been told that if she changed her story about the applicant committing acts of domestic violence, she might be charged for giving a false statement to Police. In a phone conversation with Sgt Holmes in July 2007, he told her she would be at risk of prosecution, if she changed her story. 109 In cross-examination of the applicant, he denied encouraging Ms Keran to see his own lawyer in the AVO case, Mr Michael Gatenby, in Queensland. He noted that it did not make sense why he would refer her to his lawyer. He denied seeking a letter from her saying her evidence in the Queensland Magistrates Court was untrue so as to stop the New South Wales Police pursuing further action against him. He claimed that, at that stage, he did not even know the Force was taking action against him. He had not even known Ms Keran had seen Mr Gatenby on 25 June 2007. 110 Ms Keran deposed that it was the applicant who suggested she see his lawyer and get him to write a letter to say what she had said was untrue so as to stop New South Wales Police hunting him. He also suggested she see a doctor and get on antidepressants so that the doctor could write a letter and say she was not in a sound state of mind and hence her evidence was questionable. Ms Keran saw Mr Gatenby on 25 June 2007. However, he suggested she see a different law firm, Ryan & Bosscher. Mr Andrew Moloney from that firm, believed that she was being used by the applicant for his own interests and believed what she had said was true. 111 Ms Keran said she saw Mr Moloney, an accredited specialist in criminal law, on 25 and 26 June for about 30 minutes in total. This was before she flew to Wagga Wagga on 28 June to meet the applicant. She edited the emailed draft of the letter at Urana and sent it back to him. She insisted she was not lying about receiving a draft at Urana and emailing it back to Mr Moloney, notwithstanding this matter was not mentioned in her statement. Apart from talking to the applicant about the letter, she had not spoken to anyone else about it. Ms Keran said she had told Mr Moloney the truth. She was distressed and vulnerable and had told him it was her 'subjective impression'. She also told him she was seeking medical intervention for depression. However, she denied telling him that her evidence 'is an extremely distorted reflection, if not entirely baseless'. She had seen the last sentence, but did not agree with it. She believed that with the applicant putting pressure on her, this was the best way 'to cast enough doubt to stop the proceedings'. She had merely wanted the investigation to stop and for the Police to leave her alone. 112 Ms Keran said it was true that, at the time, she did not wish to co-operate with Police, she was upset by the way the situation was handled and had felt pressured by Insp Blanchard and SC Boulton to provide information. However, it was not true that she had an uncertainty as to her recollection. The applicant was putting pressure on her and had seen the letter. Ms Keran conceded she had agreed to the letter being sent to the New South Wales Police in order to cast doubt on the criminal investigation, even though she knew it was untrue. Ms Keran believed Mr Moloney accepted there was domestic violence because he suggested she get out of the relationship and 'move on'. She reiterated that Mr Moloney believed she was telling the truth. It was put to her that if this was true, it would mean Mr Moloney was putting a position to the New South Wales Police, which he knew to be untrue. Ms Keran said she could not speak for Mr Moloney, but she believed he accepted that the applicant was 'using her' and he believed her version of events as to the domestic violence. Complaints about Inspector Blanchard 113 On 10 July 2007, the applicant complained to Inspector Wadsworth (Insp Wadsworth) about Insp Blanchard's conduct. The applicant believed that Insp Blanchard continued with an active role in the investigation, even after it was handed over to Sgt Holmes. Insp Blanchard had sat on the Internal Review Panel (IRP) which recommended his removal from the Force. 114 In oral evidence, the applicant said he had told Ms Keran, on numerous occasions, that Insp Blanchard was corrupt. He claimed that on an earlier occasion when he had been assaulted by four people, Insp Blanchard had withdrawn the charges against them, with no explanation, even though the Prosecutor had said there was a good case and believed something else must have been going on. 115 The applicant said Insp Blanchard covers up for people, and is willing to withdraw charges to cover people. It was not ethical or honest. He had charged other officers, without a prima facie case, and there were numerous other issues. He had told Ms Keran about his concerns and she had believed him at the time. Other officers had also told her about these concerns.

116 In further oral evidence, the applicant said that since his return to Albury, his relationship with other officers has been excellent. It was only Supt Commins and Insp Blanchard who were hostile. He had a complete lack of trust in Insp Blanchard. He again alleged Insp Blanchard was corrupt and he could support his allegation. The applicant said that other officers spoke to him about concerns with Management. He did not like Sgt Holmes because he slandered him, told people he got a girl pregnant and told other people he had killed a cat. He believed Sgt Holmes was hostile and had made up his mind without talking to his witnesses. He had been denied natural justice. His problem with Supt Commins was that he withheld documents from him and had not considered other relevant matters before making his decision. 117 The applicant said he had discussed his mistrust of senior management with SC Nyholm. He said he had raised his complaints against various officers with the Police Integrity Commission (PIC). He had made other complaints five years ago that the PIC referred back to the Police. He accepted these complaints were investigated by Professional Standards, but he claimed they had done nothing. He had never received any written explanation as to the reasons why. He had believed Insp Wadsworth had lied to him. He also had problems with the Queensland Police who had detained him. 118 In cross-examination, the applicant said he had made a formal complaint about Insp Blanchard to the PIC in 2003. He had not heard anything from the PIC since. In re-examination, the applicant said he now had great concern that he had been revealed as the complainant in an internal complaints procedure that protects disclosure of a complainant's identity. These complaints relate back to 2003 and, since that time, he had experienced no difficulties at Albury, despite him being an internal complainant. These complaints had only mentioned Insp Blanchard. The did not involve Supt Commins or Sgt Holmes who was, in any event, based in Wagga Wagga. 119 The applicant said he had a good working relationship with Supt Commins and since being back at Albury, had very limited contact with Insp Blanchard, who is the Crime Manager. The applicant said that if he was returned to Urana, he would have no contact with Insp Blanchard and would only have limited contact with him, even if he remained in Albury. 120 Ms Keran said that Insp Blanchard called her on 5 March 2007, and she told him she was not willing to make a statement or assist New South Wales Police with any investigation of the applicant. In her statement, she said that the applicant had told her repeatedly, during their relationship, that Albury Police were corrupt and Insp Blanchard was 'out to get him'. She knew the applicant had made a complaint about him in 2003. He had blamed Insp Blanchard for being sent to Sydney for a psychiatric assessment in August 2003 and when he got overlooked for a job in the Target Action Group (TAG) in mid 2005. He had also said that Insp Blanchard had opposed his application for the Urana position and was 'out to get him' because of his involvement in an investigation in respect to another officer ('SS'). Events after the primary incidents - the applicant's evidence 121 In oral evidence, the applicant claimed that in a conversation with Ms Keran on 22 June 2007, she said words to the effect of 'I'm so sorry, I know its untrue. They pulled me aside and told me unless I said it I would be charged'. She had asked him to come to Queensland to see her. However, he told her that he did not trust her. She had asked to come to Wagga Wagga to see him. The applicant said she had told him she was sorry for lying about him. She knew the allegations were not true, but they (the Police) convinced her into saying them. The applicant claimed she apologised repeatedly and promised to make a statement. 122 The applicant said that in November 2007, Ms Keran told him she was going to meet Sgt Holmes with her lawyer and tell him that 'you didn't do these things'. In cross-examination, Ms Keran denied telling the applicant in Queensland 'I'll make a statement telling the truth'. She did tell the applicant she had been contacted by Sgt Holmes and she was going to meet him with her lawyer. 123 In cross-examination, the applicant denied he had contacted Ms Keran around 20 June. He insisted it was her who had contacted him. He had not apologised to her. He denied telling her that he loved her and wanted to work out their situation. Rather, he said he did not trust her after all the lies she had told about him. He had not asked her to draft a statement which was designed to demonstrate she had been untruthful. He was not concerned with his future employment because he believed the Queensland matter was closed. He had not known that Insp Blanchard and SC Boulton had spoken to Ms Keran at that stage. 124 The applicant said he was 'definitely not seeking to reconcile with Ms Keran at this time'. He had not spoken with her since February and, in any event, he was seeing someone else. Their relationship had ended. He denied saying he was keen to make amends. They had, however, agreed to meet in Wagga Wagga because he had refused to meet in Queensland, Sydney or Urana. The applicant denied encouraging her to see a doctor to demonstrate she was mentally unwell. Rather, she had told him that she was seeing a doctor and a lawyer, because she did not think it was right. 125 The applicant said he knew about the 'Broken Spirits' website because Ms Keran referred him to it in an email. He knew it was a domestic violence site. He agreed he probably told her it was 'bullshit'. He knew how to find it because she used the name 'Liza' instead of Liz. He agreed he was upset by what she had put on the website, but he had not told her he would sue her for having done so. However, he did agree he had 'cautioned' her, because it was illegal in Queensland to post details of domestic violence mediation. 126 The applicant was advised of his suspension by Supt Cooper and Insp Blanchard on 4 August 2007, when they arrived at his residence 45 minutes before he was due to commence work. He was given 60 days to vacate Urana. He was upset and angry because he did not know why he was suspended and was not told why. He had a suspicion it had something to do with the events in Queensland. The applicant said he spoke to Ms Keran that day by phone. He was angry and upset and said he never wanted to speak to her again because she had lied (in Queensland). The applicant denied speaking to her again that day and telling her he was considering resigning and starting a law degree in Queensland. The applicant also spoke to his father that day and told him that the Force would not tell him why he was suspended. His father was bewildered and upset. After this time, the applicant said he became extremely depressed, he would not answer phone calls and drank more. He was later made aware his father had rang Ms Keran to express concern for his son's welfare. 127 The applicant said Ms Keran flew to Wagga Wagga and drove to Urana to see him. He was drunk and did not want to speak to her. She stayed probably five to 10 minutes and drove back to Wagga Wagga. He denied phoning her the next day asking her to come and see him. Rather, it was Ms Keran who phoned him, pleading for him to come and see her, as she had come all that way (from Queensland). They spent the entire next day together. They discussed getting away from everything and moving to Queensland. Ms Keran stayed overnight and he drove her to Wagga Wagga airport the next day. The applicant agreed that, at this stage, he was hopeful of re-establishing their relationship. He flew to Queensland around 23 August and they found a rental property together about a week later. 128 During this time, the applicant said Ms Keran told him that Sgt Holmes had threatened her. He did not know Sgt Holmes, or that he was to be the investigator, but he had called him a 'rat'. He denied telling her that no one wanted to investigate the matter and that Sgt Holmes had only agreed to do so and was promoted to do it. 129 The applicant moved to the Gold Coast on 4 October 2007. He took all his belongings with him as he intended to stay until he was returned to work. Ms Keran was attending university at the time and the applicant said he became very bored. He did not know anyone there except a good friend, Mr Glasgow, who he saw on quite a few occasions. He agreed he probably drank more - every day starting about 5:00pm, he would drink eight mid strength beers. He would be slightly intoxicated. He was worried he was now receiving $200 to $300 less per week than before his suspension. Ms Keran covered the rent and he paid for the bills, groceries, internet and his move to Queensland. The applicant said he had planned to study law by distance education, but now could not afford it. He had never contemplated joining the Queensland Police Force because of the way they had treated him. He described it as 'like the 1950's up there'. 130 The applicant deposed that he was still angry with Ms Keran and they often had shouting matches. He denied telling her she had ruined his life. However, she had often said she was going to tell the truth, but it never happened. They had discussed the 'Broken Spirits' website and he had told her he was unhappy about what she had said. He had never asked her to prepare a written statement. The applicant said that Ms Keran had told him she was going to see a lawyer and write a letter to the Director of Public Prosecutions (DPP). However, it did not happen. The applicant was aware Ms Keran had been to see Sgt Holmes with her lawyer. He agreed he had said to her 'If you don't tell the truth we are not going to work'. He never would have gone back to her, if she had maintained her lies about him. The applicant agreed that he may have yelled at Ms Keran on 18 November about her not having written a statement. He could not recall if he was drunk at the time. They had also argued about her going out with a man named Garfield around that time, because he had bragged about being in an 'open' marriage and going to swinger's clubs. He told her not to see him again, or they would break up. 131 On 20 November 2007, the applicant flew back to Albury for two weeks as he was an informant in a court case. He flew back to Queensland on 4 December 2007. Ms Keran picked him up at the airport and when they went home they agreed their relationship was over. They had argued about her going to Fiji while he was in Albury. He suspected that she had gone with another man. She later went to New Zealand for about five weeks. 132 The applicant agreed that although the relationship had ended, he had stayed in Queensland. This was because he could not afford to move back again. He claimed he was distraught and heart broken their relationship had ended. Nevertheless, he deleted her number, her email address and Facebook contacts. He agreed he had seen Facebook photos of Ms Keran in New Zealand with another man and this had made him angry and jealous. He conceded he was still interested in what she was doing. It was after this that he deleted her from his Facebook contacts. 133 The applicant said he last saw Ms Keran again when she returned from New Zealand and they both moved out the same day. He had helped her move and he moved to Mr Glasgow's house where he stayed until March 2008. After he saved enough money, he moved back to Melbourne for two weeks where he 'house sat' his aunt and uncle's house. He claimed he had not gone straight back to Albury because he had a lot of family in Melbourne and he did not want to be reminded of his relationship with Ms Keran and the problems he had at work. He visited his parents about once a month during this time and he moved back to live with them in November 2008. 134 The applicant further deposed that Ms Keran never had any fear of him. He noted that neither Insp Blanchard nor SC Boulton raised such a fear in her interviews, yet both of them now assert that Ms Keran had held such fears. Moreover, Ms Keran had told the Magistrate on 19 February 2007, that she felt no immediate threat from him (given the distance between Queensland and Victoria and his employment) and that she was unconcerned that he knew where she lived. Indeed, the applicant said that in August 2007, Ms Keran travelled from Queensland to Urana to see him, stayed with him for a few days and, in late 2007, he went to stay with her in a house at Labrador in Queensland. Ms Keran's evidence 135 Ms Keran said it was the applicant who contacted her on 19 June 2007. He was very remorseful and apologetic. He told her he still loved her and missed her and that he was being helped by antidepressants. He said the New South Wales and Queensland Police were 'out to get him', and had tried to stall the AVO hearing to bankrupt him. They had told lies about her to make him angry. He told her Insp Blanchard was corrupt and that he hated him because he had got Insp Blanchard's friend disciplined. Ms Keran said she then began to question the motives of New South Wales Police and their keenness to obtain her statements. She was suspicious that she was being used to get him removed from the New South Wales Police Force. 136 Ms Keran's evidence was that it was the applicant who was keen that they meet and that he really wanted to see her. She flew to Wagga Wagga. The applicant did not meet her at the airport. She said he was calm and attentive at the time, but insistent that she could not accurately recall events in their relationship. He also said that domestic violence counselling was 'brainwashing'. He told her she could get her sued for writing on the 'Broken Spirits' website. 137 Ms Keran said the applicant drafted a statement for her which said that all she had said was untrue. However, she refused to sign it. He assisted with the statement she eventually signed on 10 July 2007. Ms Keran denied telling the applicant she had lied to the police and would be charged if she changed her story. She denied saying to him 'I didn't mean to lie. I'm so sorry'. She also denied saying 'I know the allegations were not true. They have convinced me to make a statement' and denied saying 'I'm going to fix all of this. I know its untrue'. 138 Ms Keran had regular phone contact with the applicant throughout July 2007, but he kept on about her needing to stop this from happening and how Albury Police were corrupt and were 'out to get him'. He discussed coming to Queensland to start a law degree. When the applicant was suspended, he phoned her and was very angry. He told her it was all her fault. That same day the applicant's father called her and said that he was aware his son had caused her to split her head and that he wanted to do something to fix things for him. Mr Hans Probst told her he had 'sources' who knew that Insp Blanchard was corrupt. 139 On 9 August 2007, Ms Keran received a dramatic voice message from Mr Probst saying no one could get in touch with his son. She flew to Wagga Wagga, hired a car and drove to Urana. The applicant was at home. He was very intoxicated and depressed. As she thought his behaviour was a bit scary, she stayed in Wagga Wagga that night. They spent the next day together and the applicant was loving and attentive. 140 Ms Keran said that when the applicant moved to the Gold Coast in October, his behaviour rapidly deteriorated. He was drunk virtually every night and paid no rent. He would 'go off' at her for ruining his life and frequently yelled at her for not having written a statement to support him. He threatened to sue her for posting material on the website. Ms Keran said she spoke to the Domestic Violence Hotline on two occasions to get advice. On 24 October 2007, he screamed at her again for not fixing things for him and how she had to write a statement saying she had lied. 141 On 26 October 2007, Ms Keran wrote to the DPP. In the letter she said inter alia: ... I want to ensure that the Department of Public Prosecutions is aware that I do not wish to have any action taken against the abovementioned police officer. I have held this stance since NSW Police initially contacted me in February 2007 regarding an incident in Queensland. At this time I was contacted by telephone by both NSW Police Inspector Brad BLANCHARD and NSW Domestic Violence Liaison Officer Sharon BOULTON. On both occasions I expressed that I did not wish any further action from NSW Police. In addition to this, I made a statement to Queensland Police in April 2007 stating that I wanted no further action from NSW Police. ... In accordance with the Prosecution Guidelines of the Office of the Director of Public Prosecution Appendix E "ODPP Protocol for Reviewing Domestic Violence Offences", I feel that prosecution of Steve PROBST is not in my best interests. I have repeatedly reaffirmed that I wish no criminal action be taken against Steve PROBST and was lead to the belief that any material suppled to the NSW Police was for internal investigative purposes only. Hence, I am requesting that the Office of the Director of Public Prosecutions do not proceed with any action against Steve PROBST. I also request that a copy of my interview be provided to me within seven working days.

142 On 13 November 2007, Ms Keran made a further statement to Police in which she said she had not been forced, threatened or coerced into writing the letter to the DPP. 143 Ms Keran said that on 18 November 2007, the applicant screamed and yelled at her for not writing a statement. He told her she was not to have any male friends. He was drunk and playing loud music. The applicant flew back to Albury on 20 November and she went on a holiday to Fiji. The applicant had refused to go because he said it was not his kind of holiday. When she picked him up from the airport, she told him their relationship was over and she was going to New Zealand for five weeks. He sent her several emails during this time. 144 On 19 January 2008, Ms Keran returned to the Gold Coast and took a friend to collect her belongings, because she was concerned about how the applicant might behave. That night he sent her numerous messages asking her to come over for one last night. She refused. 145 On 20 February 2008, Sgt Holmes rang her to tell her of the findings of his investigation. She told him she was no longer involved with the applicant and apologised for her previous behaviour, saying she had been under a lot of pressure. Queensland Magistrates Proceedings 146 Ms Keran attended the Southport Magistrates Court on 19 February 2007, and told the Magistrate she did not wish a domestic violence order be taken out against the applicant. 147 On 26 February 2007, Ms Keran said she received a phone call from SC Boulton, who described herself as the Domestic Violence Liaison Office at Tweeds Heads. She was inquiring as to her safety and well being and asked if she would come and see her. Ms Keran did not want to go and did not wish to elaborate on what happened that night (in Queensland). She had no fears because the applicant had gone back to Albury. Ms Keran made another statement to Queensland Police indicating that she did not want to make any statements to the New South Wales Police. She was concerned that the applicant had told her, many times, that the New South Wales Police were trying to get rid of him because of his corruption allegation. She was unsure as to who to trust.

148 Further proceedings in the Southport Magistrates Court were listed for 27 April and 31 May 2007. Ms Keran gave evidence in the Magistrates Court on 31 May. SC Boulton attended with her. She said her evidence was true and correct. The transcript of the Southport Magistrates Court proceedings was included in the Investigator's Report. Ms Keran had given evidence and was subject to cross examination by the applicant's solicitor. Ms Keran described the Queensland incident, the Melbourne wedding incident, the 'head bleeding incident', the earlier car incident in Albury in 2005 and other incidents. Ms Keran said she did not feel under any immediate threat from the applicant because of the distance they were apart. His solicitor made a 'no case' submission based on the unlikelihood of the events reoccurring and the Magistrate had no option but to agree. 149 During cross-examination, Ms Keran was asked about her internet posting on the 'Broken Spirits' website. She agreed she had described some of the Court proceedings and had been warned by the Magistrate that she was not obliged to answer any questions which might incriminate herself in the admission of an offence; namely, the publishing of closed proceedings brought under the Domestic and Family Violence Protection Act 1989 (Qld). 150 On 7 June 2007, Ms Keran attended Tweed Heads Police Station to speak to Insp Blanchard. She initially expressed reluctance to be interviewed. Ms Keran was assured her evidence would only be used during an internal investigation and she agreed to be interviewed. Insp Blanchard told her that criminal proceedings could not take place without her agreement. She had first gone to the Tweed Heads Police Station at 9:50am and then went with SC Boulton and Insp Blanchard to Gloria Jeans Coffee Shop in Coolangatta. She made no notes of this meeting in the coffee shop and did not think she saw the Police making any notes. The recorded interview started at 11:40am. She said that everything she said in the video interview was the truth. 151 On 13 June 2007, the domestic violence application continued. The application was not successful because of the geographical separation between Ms Keran and the applicant. In his decision the Magistrate said: Miss Keran does not fit the - sorry - quite often category of domestic violence victims who do come before this court. She is a lady who is quite well educated, has a nursing background, now studying to be a doctor, and, it was quite clear, has sought significant assistance and educated herself in respect of domestic violence issues. The education which she has now obtained, to my mind, clearly shows that she has obtained a significant amount of insight in respect of matters under the Domestic and Family Violence Protection Act. That insight places her, to my mind, in a far stronger position than most aggrieved spouses who come before this Court. She does have that significant insight. She understands where she has come from and she understands what she was being subjected to, she will not place herself in that position again, and that any untoward behaviour will not occur again in the future. I was, as I said, impressed by Miss Keran in her evidence which she gave before me ... Mr Gatenby did say that I may not be impressed with his client as a result of what I have heard here today. He basically took the words out of my mouth, and I must deal with this matter in accordance with the law and the authorities. There is no real chance of anything occurring in respect of this matter. It needs something more probable than a mere chance of risk. In my mind, on the state of the evidence which is before me here today, and, again, I do accept that I do not particularly have to deal with this matter purely on the evidence of the aggrieved spouse but, even taking into account all of the evidence which is before me here today, to my mind, the prosecution have not discharged the onus cast upon it to satisfy me of the second limb that is under section 20(1)(b), that is, a person is likely to commit an act of domestic violence again. I uphold the submission of no case to answer and the application is dismissed. 152 Ms Keran said that Sgt Holmes contacted her on 14 August 2007. He told her that he was investigating the allegations arising from the Queensland incident. She told him the allegations were correct, but that she did not want to proceed with a complaint. When she raised concerns about her interview with Insp Blanchard, Sgt Holmes told her that under New South Wales law she was a compellable witness and could be summonsed to court if charges were laid in New South Wales. Ms Keran said she had spoken to a lawyer in August 2007, who told her that she was not required to give statements or provide assistance to the Police. As she had eventually given a statement, her lawyer told her it was technically given under duress. He further told her SC Boulton should not have been allowed in court as a support person, because she was a police officer. Ms Keran said that when she had another brief conversation with Sgt Holmes on 26 August, she told him he had lied to her and he could not use her interview, because it was taken under duress. 'Broken Spirits' Website 153 From February to June 2007, Ms Keran posted various entries on a domestic violence support network titled the 'Broken Spirits Network'. Extracts from the 'Broken Spirits' website were included in the Investigator's Report. The following passage is an extract from a posting on 17 April 2007: Sorry, I really am a little bit pissed off today. And this is just one long rant. My apparently 'wonderful' boyfriend did these things. He smacked my head on a tiled floor because I had tried to get out the room when he was in my face telling me that it was great to cheat on me because he knew he was hurting me. Apparently I deserved that because I pushed him to get past him. He crushed my hand while I was sitting in the bath and he was standing over me and when I hit him to let go, he held my head under the bath water. All because I had told him he was wrong about something. He burnt my things all the while saying "you can make this stop", because I won't respond to one of his tantrums. This in response to me breaking a mug (from one of his mistresses) while I was cleaning (him not being home at the time) and me feeling guilty and telling him several weeks later even though he hadn't noticed. Then a couple of weeks after telling him he wants to pick a fight so uses this as an excuse because "I'm trying to control him by breaking his things". He cheated on me repeatedly and used it as a threat should I not meet his sexual demands. He had to be forceful during sex - putting his arm across my throat so I couldn't breathe properly, doing things that hurt me and then saying it was my fault because I wouldn't relax, keeping doing things when I'd say to stop, wanting me to 'talk dirty' during sex even though I hated it. And if I didn't want sex because I tired (sic) or (sic) sick or sad, he'd say I was using it as a tool to control him. I never once said to him "I won't have sex with you unless..." but apparently refusing is trying to control him. He had excessive amounts of porn and wanting me to perform oral sex whilst watching it. Breaking things, tipping over furniture, putting holes in walls, slamming doors when he was angry. Punching the dog excessively hard when it did things wrong. His theory was, you don't praise when the dog (or people) do good things, but punish for bad. He kept knives and a sword under the bed. And would want to play with the sword and the guns when he was drunk even though he knew I didn't like this. Threatening to pull the hand brake on the car when I was driving so I would have an accident and he could get me charged with negligent driving. Threatening to stab himself and call the police and say I did it. Threatening to not allow me to see my parents should they come to visit. Threatening to kill himself. Threatening to kill me should I ever cheat. Telling me "he didn't really want me, but didn't want anyone else to have me". Criticising and being rude to and about my friends so that they didn't feel comfortable in coming to visit. Calling me nasty names and accusing me of cheating when I did go out with my friends (who were all female). Refusing to do things like hold my hand in public or dance with me (just in case it gave the impression he was taken and scared potential mistresses away). Yet he was quite happy to do this with other women. Expecting me to tag along after him and his friends yet not wanting anything to do with my friends. And when we were out with his friends, I'd end up having to walk behind them. Making completely filthy and inappropriate marks (sic) about women, particularly when out with his friends (even when I was with them). Going on about how many women they had "scored" with. Yes, they are all scum like him. And yes, I have now rad (sic) this is a warning sign for abusers - having a reputation as a "player". Telling me that I was mentally ill. Yes, I was diagnosed with depression at age 21 just before I met him. But either I "couldn't cope in the real world" because I was on medication or "was a crazy, psycho b*tch" because I was off it. Getting excessively drunk and trying to get me excessively drunk because he knew that I would be less resistant to painful, humiliating sex when I was drunk. Sorry about the rant. Just needed to get it down on paper. Guess it gives me something to look at whenever I get the "love him" feelings. (annex 14, 3 pages of DH1 vol 2)

In another posting on 19 April 2007, she said: Sorry, don't bother with reading this, I'm really just trying to straighten things out in my head. My reasons for wanting the application dropped. I won't have to face S in court. I had an awful dream the other night that we were in court and he cried. I know this is pathetic but if he really did this, all I would want to do would be to give him a hug. I'm worried that, ridiculous as it is, by seeing him, all the really strong love emotions are going to be stirred up again and I'm going to have to start the grieving process again. It's not going to make any difference. S is not going to see he did anything wrong and his family and idiot friends will support. I know I really shouldn't care about this but I just can't see the point of putting myself through it if is not going to have an impact on the way he sees things. He's going to lose his job out of it and blame it on me. The stupid, emotional part of me doesn't want him to lose his job because he really loves it and I sort of feel like it isn't fair that because we failed at our personal relationship it should have consequences on his employment. If he does blame me for him losing his job and decide he wants to do anything, a DVO is not going to make any difference. I have major exams around the time of the proper court hearing. I cannot afford to fail these and I know for sure I won't be focussed on them if I have to face S.

Applicant's evidence concerning procedure 154 In his s 181D response, the applicant strongly objected to the inclusion in the notice of a section headed 'Background'. He said the allegations there outlined were wrong and their inclusion gave the overall effect of extreme prejudice to him. 155 The applicant believed that the Commissioner had only considered material which remotely appeared to corroborate Ms Keran's allegations and had omitted later material in which she had withdrawn her complaint. 156 The applicant claimed that the Force did not produce all of the relevant source documents relied upon by Supt Commins in making the s 173 order. He said that when Supt Commins told him in February 2009 he would be relying on the c@tsi file, he had protested that he had never seen it and therefore could not respond to it. Supt Commins had said it was not up to him to decide what material he (the applicant) was provided with. 157 The applicant said that even after the Industrial Relations Commission proceedings commenced, he had sought material supporting the s 181D notice. However, there appeared to be a substantial amount of documents missing. He had also sought, but not received, the report Supt Commins made pursuant to s 48(2) of the Police Regulations. 158 The applicant said that in April 2009 he was finally given documents he had not seen before, but was not provided with either the Investigator's Report or the c@tsi file (these matters became the subject of my decision in Steven Probst and Commissioner of Police [2009] NSWIRComm 114). 159 In his reply to the s 173 notice, the applicant expressed concern that Supt Commins had not read or seen certain evidence and had not sought to obtain further material referred to in his s 181D reply submission. The applicant also criticised Supt Commins' reliance on anonymous material contained on a public website (presumably the 'Broken Spirits Network').

160 Sgt Holmes joined the New South Wales Police Force in April 1990. He is currently the Investigations Manager at Wagga Wagga LAC. He has carried out a number of internal police investigations of a criminal and departmental nature and, as a detective, has conducted a large number of criminal investigations, including those involving domestic violence. Sgt Holmes was allocated the investigation of 15 allegations involving the applicant, spanning 7 August 2003 to November 2006. He understood that he was allocated the investigation following claims of bias in the Albury LAC. Sgt Holmes found 10 of the 15 allegations sustained.

161 Sgt Holmes' 30 page Investigator's Report attached 56 annexures. These included extracts from a Domestic Violence Workshop, a number of witness statements, the transcript of the Queensland Magistrates Court proceedings, extracts from legislation and other documents. Sgt Holmes also viewed the recorded interview between Insp Blanchard and Ms Keran of 7 June 2007. At page 24 of the Investigator's Report, Sgt Holmes said this: Recommendations : I recommend the subject officer is considered for a loss of Commissioner Confidence, under Section 181D of the Police Act. The officers actions and overall demeanour do not reach the expected level of integrity required for a serving member of the NSW Police Force. General Comment : During this investigation, I have encountered a number of difficulties in establishing the truth. I have no doubt from the outset of the investigation, the subject officer has interfered with the investigation, where I strongly suspect collusion of witnesses, hence affecting their credibility. I have largely based my conclusions upon the credibility of witnesses, with the complainants credibility far outweighing that of the subject officer. Witness Credibility : My conclusions throughout this investigation are based largely upon uncorroborated allegations made by the complainant. From eighteen years policing experience, I have learned the majority of domestic violence offences are not committed in public, however committed in private setting, away from the prying eyes of potential witnesses. Due to this common theme amongst domestic violence offences, I do not anticipate identifying multiple witnesses at the commencement of the investigation. I will comment of the credibility of each of the key witnesses, detailing the reasons for my decision.

162 In commenting on the witness' credibility Sgt Holmes said this about Ms Keran: ... After viewing the interview, I formed a belief the complainant was a credible, but reluctant witness. On both occasions, the complainant described incidents in detail. The presiding magistrate quotes in his summing up, "I was, as I said, impressed by Miss Keran in her evidence which she gave before me." ... Police have also obtained copies of a transcript recorded on the "Broken Spirits" website. The details recorded by the complainant strongly support her previous interview and evidence during the protection order hearing. Since the commencement of this investigation, the complainant and subject officer again become involved in a relationship, however from my understanding this relationship has since ceased. During this period, the complainant has become hostile towards investigators. ... Whilst speaking to her, I continually asked whether the allegations were correct. She reaffirmed the complaint, however stated she did not want it to proceed. ... I had a strong suspicion the complainant had been influenced in relation to her co-operation. I later learned the subject officer and complainant had been in contact, with the subject officer moving to the Gold Coast to live shortly after. During the subject officers interview, he continually alleges the complainant is mentally unstable, suffering from a mental illness. He alleged she was the aggressor within the relationship. After speaking to both the complainant and subject officer, I find these allegations absurd and designed solely to deflect responsibility. From my observations, the complainant is extremely intelligent, however lacks self esteem. This lack of self esteem has been abused by the subject officer, as he identified her as a target for abuse. ... Due to the mentioned reasons, I find the complainant to be an extremely credible witness. 163 Sgt Holmes found the applicant's supporting witnesses of doubtful credibility due to their friendship with the applicant (Mr Bonfield, Mr Bryan James Rau, SC Nyholm and Constable Stephen Gerard Nolan (Constable Nolan)) or family ties (the applicant's father). He formed the view that Mr Probst was very protective of his son who he believed was being victimised by New South Wales Police. He also raised corruption allegations against officers within the Albury LAC. 164 Sgt Holmes made the following observations about the applicant: On 24 January 2008, the subject officer was interviewed at Albury Police Station. During this process, he was argumentative and appeared defiant of anyone in authority. Throughout the evidence contained within the investigation, the subject officer displays a number of typical domestic violence indicators applicable to offenders. These include, extreme insecurity and ability to trust others, denial of responsibility for their behaviour and a need to control, as documented in Annexure 1, page 27. I strongly believe the subject officer lacks any form of credibility. Interference with Investigation : From the commencement of the investigation, I suspect the subject officer has interfered, either personally or by influencing others. Examples of this are the change in demeanour of Belinda DAY and the complainant. DAY was originally happy to speak to police, however suddenly decided she would not co-operate. The complainants demeanour also changed, where she agreed to speak to me, prior to her decision not to co-operate. ... On 28 August 2008, I spoke to the subject officer by telephone. Throughout the entire conversation he continued to make a number of threats to take legal action against police, alleging Inspector BLANCHARD perverted the course of justice by coaching KITCHIN. He further stated police had no right to contact the complainant and she was being harassed. From this conversation, I had no doubt the subject officer was attempting to influence my investigation, through threats and unfounded allegations. 165 Annexure 1 was an extract from a Domestic Violence Workshop. I quote page 27 in full: Offender Behaviour Offenders come from all lifestyles, occupations, socio-economic backgrounds, races and cultures. Offenders may be very good at deception. Many do not exhibit their violent behaviour to anyone other than their victims. Some offenders possess winning personalities and are well liked by their peers. They can be charismatic or highly manipulative and may attempt to win your confidence with a friendly veneer, whilst trying to minimise any reported violence or intimidation. Another strategy may be to appear to be the epitome of respectability -an upright citizen - to discourage any investigation or close examination of their behaviour and activities. There may be a stark contrast between their public and private personas and behaviours. It can almost appear that the offender has a dual personality as they can present so differently inside or outside the home. When police attend a domestic violence incident, offenders may try to convince police that the victim is mentally unstable or contributing to the incident. Offenders may see the police as a threat to their control over the victim/home environment. When police attend the scene, the victim may be hysterical or angry and the perpetrator behaves as the calm and rational one. It may seem initially much easier for police to speak with the offender to ascertain what has transpired, rather than interviewing both parties. This can result in police leaving the incident without conducting a proper, thorough investigation. When investigating any incident, police need to keep in mind the following points about the characteristics of perpetrators: s Low self-esteem - this may be a result of physical or sexual abuse and/or disappointment or neglect by a parent during their childhood. Many will have seen their mother abused. They have learnt through observation, that violence is a way to resolve difficulties/stressors in life. s Extreme insecurity and an inability to trust others - perpetrators have difficulty establishing close friendships and tend to be critical or jealous of their partners. s Denial of responsibility for their behaviour - perpetrators will deny that the abuse has occurred. They also minimise the impact of their behaviour or blame their partners for causing an incident. s The need to control - perpetrators choose to abuse their partners. Their purpose is to control them. Offenders use violence (actual, attempted or suggested) to make their partner comply to their wishes. 166 Annexure 8 contains the statements made by Constable Leia Urquhart (Constable Urquhart) and Senior Constable Garry John Stephen (SC Stephen), the two Queensland police officers who attended the Queensland incident. Their statements largely corroborate Ms Keran's version of what occurred, including descriptions of the damaged property. The photos of the damage are not discernible. 167 Annexure 11 is the transcript of Ms Keran's ERISP (Electronically Recorded Interview of Suspected Person) interview with Insp Blanchard and SC Boulton. Insp Blanchard's statement of 24 August 2007 (annexure 12), described his meeting with Ms Keran on 7 June 2007. He said: ...

At this time I observed KITCHIN to be very nervous and on edge. I enquired as to KITCHIN's welfare and spoke with her in relation to the processes which would take place that morning if she still wished to make complaint against PROBST for the assault matters which had occurred in NSW. KITCHIN raised concerns for her welfare as there was no ADVO in place at that time. KITCHIN expressed fears that if she gave information against PROBST that it would affect his job and 'he would come after her'. During the conversation KITCHIN stated that she 'didn't feel safe' and that she 'didn't trust' PROBST even though there was some distance between them because he knew where she lived. KITCHIN stated that she was very worried about the repercussions if she said anything that could be responsible for PROBST losing his job. 168 Insp Blanchard and SC Boulton explained why they went to Gloria Jeans Coffee Shop before the interview. Insp Blanchard said: Due to KITCHIN's emotional state at this time (still very nervous and on edge) I took steps to provide victim care and support to her prior to commencing the ERISP interview. Due to the environment and facilities available at Tweed Heads Police Station I thought it appropriate to invited (sic) both KITCHIN and Senior Constable BOULTON for coffee away from the Police Station where we could sit in a more relaxed atmosphere and discuss any other concerns KITCHIN had prior to commencing interview. KITCHIN appeared happy with my invitation and accepted it willingly. 169 SC Boulton said: As KITCHIN was so nervous and apprehensive Inspector Blanchard suggested the three of us go for a coffee. As the meal room is unsuitable for guests we left the station and went to Gloria Jeans at Coolangatta. There we spoke about he ERISP machine procedures and how it works. We also talked about the fact that she was doing the right thing and that we would do what we could to support her. We chatted about other things that didn't relate to PROBST. KITCHIN appeared to be a little more relaxed so we returned to Tweed Heads Police Station. 170 Annexure 15 was a statement of Ms Lenne dated 22 August 2007. Ms Lenne corroborated Ms Keran's version of events in the car incident by observing Ms Keran and recalling what she had told her at the time. She also recalled Ms Keran telling her of when she had hit her head on the bathroom tiles after an argument with the applicant. 171 Both Mr Bonfield and Mr Rau gave statements to the Investigator. They had known Ms Keran and were friends of the applicant. Both of them said they had not been aware of any abusive or violent behaviour by the applicant towards Ms Keran and neither of them had seen a cut to her head, nor were they aware of any damage being caused to a shower screen. 172 Ms Linda Goddard is the associate head of the School of Nursing at Charles Sturt University. She said that Ms Keran was a quiet, but friendly person who had never displayed any symptoms of a mental illness. In Ms Goddard's statement to the Investigator, she recalled a conversation in late 2005 or early 2006 when Ms Keran came to her office and said she had an injury to her head after 'taking a fall' and hurting herself. She suggested she keep an eye on herself for any other symptoms, such as dizziness or headaches. 173 Annexure 27 is a statement of Constable Nolan, a friend of the applicant. Constable Nolan witnessed an incident in August 2006 in which Ms Keran had accused the applicant of infidelity. They had both been arguing and Ms Keran was very upset. He had told his station supervisor of the incident and that Ms Keran was the aggressor, but there had been no violence. 174 Ms Jackie Anne Urquhart is a nurse who worked with Ms Keran and recalled seeing a bruise around her eye after she had returned from Melbourne in August 2006. She asked her about it and she said something about a tyre blow out. Ms Urquhart did not think this explanation made sense, but she did not want to pry any further. 175 Mr Probst said he and his wife had breakfast with the applicant and Ms Keran the day after the wedding in Melbourne. He had not noticed any marks or bruises on her face and she seemed quite happy. 176 Mr Probst said that his son told him when Ms Keran went off her medication she would act irrationally - she had cut up his clothes and broke his possessions. Mr Probst said that he found Ms Keran strange, but had never seen his son acting violently towards her. 177 Sgt Holmes spoke on the phone to the applicant on 28 August 2007. The applicant had said he was taking legal action against Insp Blanchard, SC Boulton and the entire Albury Conduct Management Team (CMT) for perverting the cause of justice in 'soliciting' Ms Keran's complaint and coaching her before the interview. He complained about being victimised and about how he (Sgt Holmes) was harassing his ex-partner, despite her solicitor's letter (Ryan and Bosscher letter) to leave her alone. 178 Annexure 43 was advice from the Office of the New South Wales DPP dated 21 December 2007, as follows: The material briefed has been considered carefully. The material indicates several allegations of domestic violence on the part of the Constable. Further, there is a suggestion of a more serious matter, namely a sexual assault.

On the evidence as it presently stands, there is no reasonable prospect of conviction: significantly the complainant is obstructive and is not co-operating. However, should supportive evidence become available, the allegations may be reconsidered.

179 Sgt Holmes interviewed the applicant in the company of his solicitor, Mr Marshall Sheehan on 24 January 2008, in respect to a criminal allegation of assault and intimidation of Ms Keran. The interview concluded after 2 minutes, with the applicant declining to respond to the allegations. A longer departmental interview was conducted on the same day at 1:00pm and concluded at 4:23pm. 180 Annexure 52 was a statement of Sergeant Peter John Dean (Sgt Dean) who was the applicant's Team Leader. Sgt Dean said that soon after the applicant's arrival, he alienated himself from other officers and staff by believing himself to be superior to them. He would tell more senior officers how to do their job. Sgt Dean said the applicant never made any specific allegations in relation to Management, but would continuously 'whinge' about how the Command was run. At one stage, he had been sent to Sydney for a psychological assessment. Sgt Dean said the applicant would often complain about other staff members and he suspected he kept notes and dossiers on others. 181 Annexure 53 contained two letters from the Victoria Police. These letters identify that the Victoria Police did not consider there was a reasonable prospect of conviction of the applicant of the allegations said to have occurred in Victoria (Melbourne). A number of impediments were cited:

· The Statute of Limitations for summary matters expired prior to Victoria Police receipt of this file. · The attitude of the victim (KERAN) has been less than helpful. Numerous attempts have been made to contact her, including written correspondence; however the victim has either refused to assist or refused to acknowledge police requests. · The lack of corroboration of KERAN's version of events (i.e. no witnesses or opportunity to examine the crime scene or medically examine the victim). · Issues relating to the interview of PROBST.

182 In cross-examination, Sgt Holmes denied telling Ms Keran that if she changed her statement she would put herself at risk of being charged. However, he had made notes of this conversation which went for about an hour and a half. His note formed an Investigation Log Entry dated 15 August 2007, as follows: Spoke to Elizabeth KERAN on telephone - KERAN has issues with Inspector BLANCHARD re: circumstances of interview and wanted to know whether she could / simply drop the complaint. She was advised with DV legislation that she was a compellable witness and would be subpoenaed/summoned to court if charges were laid. She was also informed I was not prepared to supply her with a copy of her interview until the investigation is completed, as I believe it may compromise the investigation. KERAN agreed to talk personally to me in relation to the matter in QLD, with the view of obtaining a further statement and or adopting her original interview into admissible evidence.

183 Sgt Holmes conceded that while he knew Ms Keran had depression issues, he had made no inquires of her actual medical condition and had had no training in depressive conditions. Nevertheless, Sgt Holmes had no reason to disbelieve what Ms Keran had told him at that time. Sgt Holmes agreed he had not studied any literature on depressive conditions, but had gained his knowledge from 18 years of policing. Sgt Holmes said he did not know Ms Keran had consulted Prof Morris and Dr Neal, nor what they had recorded in their clinical notes. If he'd had such information, he said he might not have said the applicant's allegations of Ms Keran's illness were 'absurd' and he may have agreed her evidence was unreliable. 184 Sgt Holmes was questioned about the Ryan and Bosscher letter and said he believed Ms Keran was under pressure not to deal with the Police. He did not accept the letter necessarily meant Ms Keran's evidence was unreliable in terms of her accuracy of the allegations and he did not accept the letter was the correct position. Sgt Holmes agreed he did not even mention this letter in his report. He added that the letter was not 'hidden' from anyone, but, in hindsight, he acknowledged it should have been put into his report. 185 Sgt Holmes said he had corroboration of the Melbourne incident from a nurse which the Victoria Police did not have. He agreed Mr Probst had said there were no visible injuries to Ms Keran the day after the incident. Sgt Holmes agreed with the Victoria Police and the DPP that there was no reasonable prospect of a criminal conviction, but his investigation rested on the 'balance of probabilities'. 186 Sgt Holmes accepted that, at no time, did he approach Mr Bonfield, Constable Nolan and Mr Probst to answer his criticisms of their 'loyalty' to the applicant. Sgt Holmes did not consider this had been unfair to them. Sgt Holmes agreed he had not interviewed Ms Sandy Mackey from the University even though Ms Keran said she would assist her. She had said she could not recall Ms Keran attending university with a head injury or suffering concussion. 187 Sgt Holmes acknowledged that Ms Keran had made inconsistent remarks in her statements to Queensland police and in her recorded interview. 188 In re-examination, Sgt Holmes said that the Ryan and Bosscher letter had no effect on the outcome of his investigation. 189 Sgt Holmes said he did not re-approach Mr Bonfield about his criticisms of him, because he would have obviously disagreed. In any event, he had suspicions Mr Bonfield had been influenced by someone, because he had asked for a copy of his statement, after he said he was satisfied that a copy was not necessary. 190 Sgt Holmes also had suspicions the applicant had been in contact with Mr Rau about statements he had made which were later complained about by the applicant. Sgt Holmes did not approach Mr Probst because he believed he would not have altered his view and he had also made a whole lot of allegations, including corruption against the Albury LAC. 191 Insp Blanchard joined the New South Wales Police Force on 21 June 1985. He has been a Detective Inspector since June 2000. On 17 February 2007, Supt Cooper contacted Insp Blanchard to inform him that the applicant had been involved in a domestic assault incident whilst on annual leave in Queensland. Insp Blanchard said he was appointed to investigate the matter on 19 February. He concluded his investigation on 5 April 2007. He found that on the information available to him at the time, none of the allegations could be sustained. As a result, the applicant was simply reminded of his obligation under the Act to notify his Command should any similar issue arise in the future. 192 Insp Blanchard said he later became aware that the incident in Queensland had been before the Southport Magistrates Court and had been adjourned until 31 May 2007. He requested SC Boulton attend future hearings of the case. On 4 June 2007, SC Boulton told him that Ms Keran was prepared to report the other domestic violence incidents. Arrangements were made for him and SC Boulton to interview her at Tweed Heads Police Station on 7 June 2007. 193 Insp Blanchard said that at the interview he had asked Ms Keran if she had been threatened or induced to participate in the interview. She agreed she had not and Insp Blanchard understood she was freely participating. Insp Blanchard denied Ms Keran's reference to being pressured and, at no time, was a person (MB) mentioned to him. 194 Insp Blanchard said that, having obtained a transcript of the Queensland Magistrates proceedings, he updated his earlier Investigator's Report and now found that three allegations against the applicant were sustained and that there had been a breach by him of the Police Code of Conduct and Ethics. 195 Insp Blanchard said that as a result of new information and new allegations, a fresh complaint was commenced and he was assigned to investigate it. However, as a result of the Ryan and Bosscher letter and adverse comments made by the applicant to Insp Wordsworth, it was determined that the new investigation would be conducted by the Wagga Wagga LAC and Sgt Holmes was appointed. Insp Blanchard was interviewed and provided a statement to Sgt Holmes. Insp Blanchard deposed that in October 2007, when the applicant moved back to Queensland, he had concerns for Ms Keran's safety and he notified Southport Police accordingly. 196 On 3 April 2008, the Albury CMT determined that, arising from his and Sgt Holmes' investigations, the applicant should be referred to the Commissioner's Advisory Panel (CAP) for consideration for removal under s 181D of the Act. 197 Insp Blanchard said that from his experience, it is not uncommon for victims of domestic violence, once having disclosed they are the victim, to become reluctant to assist with police investigations. This reluctance is due to a fear of reprisal, embarrassment and the stress of attending court. 198 Insp Blanchard agreed he was aware of the applicant's complaint against him, but denied 'smirking' at him when he served his suspension notice on him. 199 In cross-examination, Insp Blanchard agreed he was the informant in an earlier prosecution of two officers. He agreed these charges were dismissed. Insp Blanchard categorically denied telling Ms Keran that the applicant was an internal informant. Insp Blanchard acknowledged he had not been trained in respect to depressive conditions and he had not taken such matters into account. 200 Insp Blanchard said that in the discussion with Ms Keran in the Gloria Jeans Coffee Shop on 7 June 2007, no notes had been taken because they had not discussed the details of the allegations. They had not prepared or coached Ms Keran about the interview, but simply explained the procedures involved. He said he would do the same again in similar circumstances. Insp Blanchard denied leading Ms Keran in her interview. Rather, he said it was an open ended cognitive style of interview. 201 Insp Blanchard said that in his first investigation he had not spoken to Ms Keran. He had no information to go off until after the Magistrates' proceedings. The outcome of those proceedings was that the domestic violence order was not made because of the 'tyranny of distance'. He agreed the allegations had not been tested by contrary evidence. 202 Insp Blanchard said that he had attended the IRP meeting and did not consider his participation inappropriate. He had not taken notes and this was not unusual.

203 Supt Commins joined the New South Wales Police Force in 1968 and has been the Albury LAC Commander since 4 September 2008. He recalled first becoming aware of the applicant soon after arriving at Albury. He attended a CMT meeting around 12 September 2008. 204 Supt Commins said that he was advised on 27 October 2008, that the Commissioner of Police had decided not to remove the applicant and had referred the matter back to the IRP for consideration of appropriate Management action. 205 Supt Commins recalled phoning the applicant on 7 November 2008, to advise him his suspension had been lifted and that he was to commence restricted duties on 10 November. Supt Commins denied telling him that if he failed to attend work his pay would cease. Nor did he oppose him taking leave so he could arrange his return to work from house sitting in Melbourne. The applicant returned to work on 17 November and, on that day, Supt Commins told him that the complaints against him would be going to the IRP and that it was appropriate for him to be on restricted duties while the complaints were investigated. Supt Commins denied trying to pressure him into resigning. 206 Supt Commins said he spoke to the applicant again on 27 November 2008, about the proposed sanction of a disciplinary transfer. He told him to 'keep positive'. The applicant asked if his complaint against Insp Blanchard had been allocated a 'P' number. He told him to speak to Executive Officer Christine Bentley. The applicant raised this matter again on 28 November. Supt Commins denied yelling at the applicant, but did tell him to remember who and where he was. He was not in the practice of calling his staff 'sonnyboy'.

207 Supt Commins said that before making the s 173 order, he had read the applicant's response, the two Investigator's Reports of Sgt Holmes and Insp Blanchard and the applicant's s 181D response attached to his 2 February 2009, submission. Supt Commins wrote to the applicant on 11 February 2009, advising of his decision after having 'familiarised myself with the content of the investigation by viewing and reading interviews of the subject officer, victim/complainant, witnesses, investigating police and Queensland Court Transcripts'. 208 On 17 April 2009, Supt Commins provided the applicant with copies of numerous documents. After the applicant's complaint of the list of documents being incomplete, further documents were provided on 29 and 30 June 2009, including the applicant's complaint history. 209 Supt Commins said that there is no vacancy at the Urana Police Station and if the applicant was returned to full duties, it would need to be to a vacancy at Albury. 210 In cross-examination, Supt Commins conceded that he did not personally draft the s 173 notice. When shown the earlier s 181D(3)(a) notice, he agreed the s 173 notice was largely a 'cut and paste' of the s 181D notice. His only explanation was that the documents were prepared by the same section within the Police Force. Supt Commins did not consider this was unsatisfactory. He had not acted merely as a 'rubber stamp' nor had he improperly exercised his delegated statutory authority. Supt Commins could not recall if he had training about what is required in the valid exercise of a decision makers' powers under s 173 of the Act. 211 Supt Commins said he had received one day's training on psychological illnesses, but the training did not cover specific clinical conditions. Supt Commins agreed he did not take any steps to identify what clinical condition Ms Keran suffered from, or what medications she was on. He was aware of Ms Keran's medical reports from Griffith University, but had not read them and did not know what 'dysthymia' was. Supt Commins accepted that the doctors' reports could be a factor, but may not mean a s 173 notice would not have been issued. It had depended on all the evidence which was available. 212 Supt Commins denied not having come to his own independent decision. He could not say if he would have issued the notice if he had been aware of Ms Keran saying she could not recall anything, other than the Queensland incident. Supt Commins agreed all of the medical evidence had not been made available to him. He could not recall if he had been made aware that Ms Keran had indicated she had a patchy memory of trauma events. 213 Supt Commins could not recall if he had been made aware that Ms Keran had spent two hours with Insp Blanchard and SC Boulton before her taped interview in Tweed Heads. He could not say whether he would have acted the same way - it depended on the circumstances. 214 Supt Commins said he could not recall if he had seen the Ryan and Bosscher letter at the time, but believed it was part of the c@tsi file. Now that he was aware of it, it would not have changed his decision to issue the order. After being taken to what Ms Keran had said on 15 August 2007, and having regard to the Ryan and Bosscher letter, he said he was now not confident that he 'would have gone ahead with the order based on the review that I had seen'. 215 In further cross-examination, Supt Commins said he had not discussed this matter with Police Commissioner Andrew Scipione. He was shown a document from the Commissioner which referred to 'consideration of appropriate management action'. He believed he had seen the document before. Supt Commins said he did not receive any minutes from the IRP meeting which had recommended the applicant's disciplinary transfer. A notification came through requiring his signature. As to the meeting of the IRP, Supt Commins said he could name two officers who were in attendance, Inspector Dennis Clifford (Insp Clifford) and Superintendent Karen McCarthy (Supt McCarthy). He did not have any record of the meeting and could not recall who said what as he had been on a phone hookup. He had not been provided with any minutes of the meeting and was not sure if there were any. 216 Supt Commins was shown a document identifying the role of the IRP and a requirement that it consider Industrial Relations Commission decisions and precedents. He agreed he had not taken such precedents into account or whether the 'principle of waiver' applied in this case, because the Commissioner had already determined the s 181D application. Supt Commins said he did not know what the Briginshaw principle meant and had received no training about it. 217 Supt Commins was shown a risk assessment prepared by Supt Cooper on 22 February 2007, which identified a 'low rating' for the applicant. Supt Commins said he had not conducted a risk assessment himself. 218 Supt Commins said he did not read every page of every document, in the c@tsi file and could not identify those he had read, and those he had skimmed. He had read the witness statements, the Investigator's Report and viewed the CCTV interviews of the applicant and Ms Keran. He could not recall reading any material from Ms McHale or Ms Day. 219 Supt Commins agreed that when he met the applicant on 27 November 2008, he may have told him he was waiting for documents from the IRP. He agreed the applicant had denied the allegations and said he would appeal. He could not recall if he told him that the IRP had taken a lot more into account. Supt Commins could not recall telling him that nothing had cropped up since he came back to work, other than whispers he had been poisoning people with his own perception. 220 Supt Commins agreed that he had not read all of the documents in the c@tsi files before issuing the notice. He agreed that Sgt Holmes' Investigator's Report was not in the supporting documentation for the s 181D matter, even though it was said the documents had been relied upon in the s 173 process. Supt Commins agreed that as at 18 June 2009, the Force had not provided the applicant with Sgt Holmes' Investigator's Report. Supt Commins said he did read the applicant's s 181D response, because it was attached to his s 173 submission. 221 Supt Commins agreed that he did not record what swayed him to prefer Ms Keran's version of events in the Melbourne incident to that of the applicant's. He referred to the witness who relayed what Ms Keran had told her about injuring herself and said he did not explain why he disregarded Mr Probst's evidence of seeing no injuries to Ms Keran the next day. 222 Supt Commins acknowledged that the words used in the order finding the allegations proven, were written by someone else, who he did not know. He agreed that there was no explanation in the order as to why one person's evidence was preferred over another's. He agreed that there was nothing necessarily implausible in the applicant's version of events in Melbourne and that his father supported his version of events. He had not had regard to Ms Keran's medical condition, nor was there any mention of the applicant's past good record and character. He conceded he had not taken those matters into account. Supt Commins agreed he did not explore any other explanation for Ms Keran's alleged injuries. He agreed he had not specifically found the allegations sustained and that the words were repeated 'parrot fashion' by someone else. He now agreed he should have questioned those words and come to his own view and, given what he now knows, he would not have found the allegations proven. 223 Supt Commins said he had not noticed Insp Blanchard leading Ms Keran's evidence in her recorded interview. He was not sure if he had seen the Victoria Police document which referred to 'many prejudicial issues (by Insp Blanchard) which may not be admissible'. Supt Commins conceded that part of the notice contained four unsustained findings of aggressive and intimidatory behaviour. 224 Supt Commins confirmed that he took no steps to obtain Mr Bonfield's version of events in the Queensland incident, and could give no reason why the Force took no steps to do so. He had read Mr Bonfield's statement, but could not recall what he had said. Supt Commins agreed that he never identified anything which made the applicant's version of events implausible. He also agreed that he had not taken into account the principle that saying something a number of times does not make it true, if it was untrue in the beginning. 225 Supt Commins said he did not consider the fact that Ms Keran said that the applicant had made a phone call during the Queensland incident and later said she thought he may have made a call. Supt Commins said he would not withdraw the findings he made on the Queensland matter, based on the last few questions he had answered. Supt Commins said he had relied on the Magistrate's conclusions as to the credibility of Ms Keran, notwithstanding that no contrary evidence was called. 226 As to Issue 1, Supt Commins accepted that there was nothing implausible about the applicant's version of events. He agreed Ms Lenne did not say she saw any injuries. Supt Commins said, however, that he had adopted a 'holistic' view to all of the incidents. He agreed there were two incidents in which Ms Keran had slapped the applicant's face and had broken his beer stein. Supt Commins agreed he did not mention these in the notice or in his statement to the order. He did not accept that this was 'unbalanced'. 227 Supt Commins said that he did not rely on the applicant's complaints history when deciding to impose reviewable action. Supt Commins agreed that both the Victoria Police and the New South Wales DPP had said there was no reasonable prospect of a conviction in respect to the allegations. 228 Supt Commins was shown template documents relating to s 181D and s 173 processes. He agreed that the s 173 notice and order referred to 'conduct and integrity' in both. However, 'integrity' is not a statutory criterion under s 173. He could not say if he had misdirected himself or someone else had, by including 'integrity' in the s 173 notice and order. Supt Commins was also asked if the notice complied with s 173(b)7 of the Act and he agreed it did not. SUBMISSIONS For the applicant 229 Mr B Docking of Counsel submitted that there was an overwhelming case for the Commission to conclude that the s 173 order made by Supt Commins was 'beyond power' and that the applicant would be successful on this basis alone: See R v Anderson; Ex parte Ipec-Air Pty Limited (1965) 113 CLR 177, and how the general principle there expressed has been applied in Bigg v New South Wales Police Service (1998) 80 IR 434; Oswald v New South Wales Police Service (1999) 90 IR 42 and Van Huisstede v Commissioner of Police. Mr Docking cited the Full Bench's decision in Little v Commissioner of Police (No 2), as demonstrating the proposition that the various procedural stipulations in the Act require, if not strict compliance, then at least 'a careful and punctilious regard to correct procedure'. 230 Mr Docking identified 11 matters which he submitted demonstrated that the order was 'beyond power'. Additionally, or in the alternative, each of the 11 grounds identified establish that the order was 'harsh, unreasonable and unjust' and that the Commissioner's delegate had acted illegally: See Van Huisstede v Commissioner of Police. He said the Commissioner bears the onus of demonstrating that the requirements under s 173 of the Act had been met, and had failed to do so. There was a failure to call unknown persons who wrote, or prepared, the s 173 notice and order. Supt Commins did not even know who they were. 231 Mr Docking developed his arguments on each of the 11 grounds earlier referred to as follows: 1. The order is beyond power as a decision was made by the Commissioner to not remove the applicant under s 181D because the Commissioner did not lose confidence in this police officer and, accordingly, there is no power to subsequently deal with the applicant under s 173.

Mr Docking said that the Commissioner expressly took into account the applicant's conduct in deciding not to lose confidence in him and that this exhausted any power in the Police Act in respect to the alleged misconduct. 2. The Commissioner waived the right to take reviewable action for the alleged conduct or "condoned" that conduct. 232 Mr Docking noted that the five issues or allegations in the s 181D(3)(a) notice (14 August 2008) and the s 173(5) notice (5 January 2009) are identical and hence the Commissioner condoned that conduct: See Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 and McCasker v Darling Downs Co-operative Bacon Association Ltd (1988) 25 IR 107. Mr Docking submitted that these authorities are not distinguishable and the IRP should have been aware of these decisions, as per the Employee Management Policy. 3. The written notice containing the terms of the s 173(2) order that was issued by the Commissioner's delegate fails to indicate whether the order results from a complaint that has been investigated, or is being investigated, under Division 5 of Part 8A, in contravention of s 173(7)(b). 233 Supt Commins admitted that the allegations in both c@tsi files were complaints made under Div 5 Pt 8A of the Act and the notice under s 173 did not refer to it. Mr Docking submitted that the requirement under s 173(7)(b) is express and unequivocal. Mr Docking said that a s 173 merits review was never intended to be a forum for a 'slip rule' to be applied to cure defects in the Commissioner's process. 234 Mr Docking submitted that having regard to 'the language of the relevant provision and the scope and object of the whole statute', it was a purpose of the legislation that an act done in breach of the provision would be invalid: See Project Blue 194 CLR 355 and by analysing Sharman v Director of Public Prosecutions (2006) 161 A Crim R 1. 4. The Commissioner's delegate purports to rely upon "integrity" but this is beyond power as it is not a prescribed statutory criterion in any of s 173(2), (4) and (7)(a). 235 Mr Docking submitted that Supt Commins misdirected himself, or someone else misdirected him, by including the criteria of 'integrity' in the order where it does not appear in the statutory instruction. It followed that the order was 'beyond power' because Supt Commins' discretion was not exercised according to law. There was an error of law because he (or the unknown author) asked the wrong question, misdirected himself or took into account an irrelevant consideration: See Buck v Bavone (1976) 135 CLR 110. 5. The applicant was denied natural justice because the Commissioner's delegate based a decision on findings or reasoning not disclosed to the applicant and the applicant was thereby deprived of the opportunity to address such matters. 236 Mr Docking submitted that the applicant was not provided with a copy of the two complete c@tsi files during either the s 181D removal process or the s 173 process, including the Investigator's Report. This was contrary to s 175(5) of the Act and Police Regulation 2008. When he asked for the Investigator's Report, Supt Commins told him he was not entitled to it. Mr Docking put that the applicant was denied the opportunity that 'God gave Adam': See Muin v Refugee Review Tribunal (2002) 190 ALR 601. Mr Docking also relied on extracts from Hosemans v Commission of Police (No 4) (2005) 150 IR 263 and Police Association of New South Wales (on behalf of Gilmour) v Commissioner of Police. 6. The applicant was denied natural justice because the Commissioner's delegate was not neutral or free from any bias. 237 Mr Docking submitted that Supt Commins had told the applicant on 27 and 28 November 2008, that the IRP outcome was a disciplinary transfer and he agreed with the IRP's recommendation. This was well before the actual show cause notice signed by Supt Commins on 5 January 2009. This evidence proves there was a reasonable apprehension of bias or actual bias: See Livesy v New South Wales Bar Association (1983) 151 CLR 288, 151 CLR 288; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 and Police Association of New South Wales (on behalf of Gilmour) v Commissioner of Police. 7. The Commissioner's delegate accepted another's direction as to the way in which the discretion should be exercised, namely, the Internal Review Panel ("IRP") or person(s) unknown employed by the NSWPF. 238 Mr Docking submitted that, on the balance of probabilities, it had been proven that Supt Commins had not read any of the documents from the c@tsi files until after the applicant's s 173 response was provided. Supt Commins admitted he had not read the Investigator's Report until after the applicant's response. Further, Supt Commins accepted that both the notice and the order had been prepared by other sections of the Force. 239 Supt Commins did not receive any IRP minutes, only the decision. The IRP was not created to assist the decision maker in s 173 matters. This meant the decision maker accepted another person's direction as to which way his discretion should be exercised: See Evans v Donaldson (1909) 9 CLR 140. 8. The Commissioner's delegate failed to comply with the requirement of pre-condition in s 173(5)(c) that the decision-maker "must take into consideration any written submissions received from the police officer". 240 Mr Docking said that despite the evidentiary conflict, the Commission would be satisfied that Supt Commins had not read the applicant's s 181D submission and that he 'went off the Investigator's Report'. Even if he did read it, the mere reading does not satisfy the statutory command to evaluate and consider all relevant matters. Mr Docking identified the following deficiencies in Supt Commins' process, in that he did not: a. Make himself aware of what were the statutory criteria for taking reviewable action under s 173. b. Provide any, or any adequate reasons (dealt with below as the 9th argument). c. avoid the use of either formula in the s 173(2) order or parrot like incantations (dealt with below as the 10th argument). d. Consider adequately or at all the psychiatric condition of depression of Ms Keran (dealt with below in the 11th argument), despite it being raised by the applicant in his s 181D submission at [2], [3]. e. Take any step to identify the clinical nature of the condition or conditions that the complainant had. f. Take any step to identify what medication or medications the complainant was on. g. Take any step to identify what were the indicia of somebody with the condition or conditions the complainant had. h. Recall if he read the Ryan & Bosscher Lawyers letter. i. Follow up the note in the c@tsi file "Rebecca McHale pregnant girl clarify this and find her. Sydney". j. Recall reading anything from Rebecca McHale concerning these allegations made by the Police about the applicant. This is incredible because the s 181D submission of the applicant, which was attached to his s 173 submission, attached, as stated at [8], a 2-page witness statement of Ms McHale and made references to this witness in respect of one of the background issues at [17], [18] and in respect of the second issue or allegation at [40]. k. Make any notes or highlight or place any post-it notes on a copy of the applicant's response. Further Superintendent Commins gave evidence: Q. But they are virginal, there is not a mark on them, is there? A. No, that's right. I am sorry, I don't go through documents and not my practice to write over them.

Q. Did you make any notes on the computer or blank bits of paper so that you can see the complainant alleges X, Senior Constable Probst says that is not correct, did you make any notes so that you can match up the version? A. No. l. Take either the applicant's good work record or good character into account for the purposes of making this purported review of the order. m. Recall whether or not he had seen the Melbourne Victoria Police 15 October 2007 document, before making the purported order and statement of reasons and, in any event, never placed himself in a position to dispute the written representations 'no medical treatment sought, no photographs taken, no corroboration, if friends and relatives enquired as to the source of the injuries she consistently told them it was from the motor vehicle accident caused by the blowout of a tyre. n. Recall whether or not he had seen the Melbourne Victoria Police 5 February 2008 document. o. Provide any explanation in relation to the four (4) issues in the "Background" as to how he could rely upon not sustained findings to impose a reviewable action of disciplinary transfer. p. Recall what Mr Bonfield says about what happened in Queensland (in a statement attached to the officer's response) or recall what weight was given to it. It is not mentioned in the purported reasons. q. Take into account the principle, the fact an assertion is repeated does not make it any less true if it were untrue to begin with, despite Superintendent Commins claiming familiarity with that principle. See Papakosmos (1999) 196 CLR 267 at [31] per Gleeson CJ and Hayne J. Rather, it was said that "These accounts are all consistent". r. Take into account the inconsistency and the change in the version of the complainant, in that the complainant originally said Senior Constable Probst did telephone whilst in the unit and made some comments but when the complainant was told that the Queensland Police record records no such comments being made by Senior Constable Probst, the complainant then changed her evidence to say he didn't phone, he appeared to phone. s. Recall the incidents of domestic violence committed by the complainant on Senior Constable Probst in Queensland. t. Turn his mind to whether there was any piece of information or evidence which directed him to be swayed in favour of the complainant over the applicant for issue or allegation 4 - November 2006 snoring at Urana. u. Identify in relation to issue or allegation 2 - 13 February 2005 foot sweep and 3 cm laceration that in his practical experience as a police officer that the statements of Ms Lenne and Ms Goddard could not be considered evidence which supports or strengthens the complainant's version; their timing was out by many months. v. Consider in relation to issue or allegation 1 - 30 January 2005 driving and on the ground that it is a bit odd or inconsistent that Ms Lenne was not told about injuries alleged by the complainant. w. Undertake a separate consideration of each of the five (5) issues or allegations (as required by analogy KRM [2001] HCA 11; 206 CLR 221; 178 ALR 385; 75 ALJR 550 per McHugh J at [36], [38] and Kirby J at [79]). Rather Superintendent Commins took a so-called a "holistic review of all incidents", namely, "...There's a number of incidents that would appear to be domestic violence related over a period of time". x. Deal with the incidents of domestic violence committed by the complainant on Senior Constable Probst or that the complainant was the aggressor. See in particular: Q. His response squarely raised those matters with you? A. Yes

Q. Your so called statement of reasons does not deal with the part of his case I just raised? A. That's correct.

Q. Didn't these unknown person or persons suggest to you: We better deal with information which corroborates him? A. No. The applicant was corroborated by (i) Ms Baker ex 21 p 45 (ii) Mr Bonfield at [7], [10], [20] (iii) Mr Glasgow (iv) Ms Baker and (v) even the complainant herself on occasions . 241 Mr Docking put that Supt Commins failed to exercise his power in a manner consistent with the requirements of the Act and failed to consider all relevant information, both for and against the applicant, and the process of attributing weight to particular facts or material. Supt Commins cannot simply 'rubber stamp' the allegations, but rather must form his own independent view, after assessing the material before him and testing it: See Patten v Justice of the Peace, Redfern Court (1986) 22 A Crim R 94; Wells v Commissioner of Police and Weal v Bathurst City Council (2000) 111 LGERA 181. 9. The Commissioner's delegate in the written notice containing the terms of the s 173(2) order did not indicate his reasons for making the order or, alternatively, the reasons written by a person(s) unknown are inadequate, in contravention of s 173(7)(c). 242 Mr Docking submitted that Supt Commins had admitted he did not know he was even required to provide reasons for his decision to make the order or, in the alternative, the reasons written by persons unknown, were inadequate and therefore in contravention of s 173(7)(c) of the Act. The decision was uninformed and not reasonably open on the evidence. There was a fundamentally inadequate assessment of the available information. There was an obligation on the Commissioner to give proper, adequate and intelligible reasons, just as such an obligation is imposed upon any judge in an ordinary court of law: See Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Mifsud v Campbell (1991) 21 NSWLR 725; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 and Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186. 10. The use of formula in the s 173(2) order provide evidence of an actionable abuse of power by the purported decision-maker. 243 Mr Docking referred to the use of the same words in the concluding paragraph after each allegation and described it as a 'parrot song' written by somebody else. Particularly in respect to the Melbourne incident, Supt Commins now admitted that he relied on the words of others and had he considered the Victoria Police report and Mr Probst's evidence, he would not have found the allegation sustained. Mr Docking said this was tantamount to an actionable abuse of power by the decision maker: See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. He said it was not sufficient for the decision maker to simply say he had given a proper and genuine consideration to the merits of the case. It must be consideration in the real sense with reasons as to why certain evidence was accepted or rejected: See Dodson v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 451 [1991] FCA 454. 11. The Commissioner's delegate decision is so unreasonable that no reasonable decision-maker could properly have arrived at it. 244 Mr Docking relied on Morton v Transport Appeal Board (No 1) (2007) 168 IR 403, which was a similar 'word against word' case requiring a close analysis of independent evidence supporting one version or another. 245 Alternatively, Mr Docking submitted that the transfer decision was unreasonable because it was decided upon inferences which could not be reasonably drawn from the material before the employer. Either of these submissions were grounded on the following: 246 Mr Docking said that proof of the allegation was always fraught with insurmountable difficulties. The DPP and the Victoria Police had evaluated Issues 2-5 as having no reasonable prospect of conviction. The Queensland Magistrate's decision should not have altered Insp Blanchard's original findings of the allegation not being found to be sustained. He had identified differing versions of events. 247 Mr Docking said that Sgt Holmes had wrongly based his conclusions largely on the uncorroborated allegations of Ms Keran and not on a close analysis of independent evidence. Supt Commins wrongly took unsustained matters into account and it was not for the decision maker to take into account irrelevant considerations. Mr Docking noted that Supt Commins had also conceded that the applicant's version of events in each of the allegations was not implausible. Mr Docking submitted that there was an absence of any medical evidence supporting Ms Keran's claims of being injured during any of the incidents. 248 Mr Docking noted that Supt Commins had not given any consideration to the applicant's good character and work record. This was inexcusable and contrary to authority: See Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1; Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333; Little v Commissioner of Police (No 2); Stuart Boyd Formston v New South Wales Police [2006] NSWIRComm 88; Commissioner of Police v Evans (2006) 153 IR 144; Laird v Commissioner of Police; Mahoney and Commissioner of Police [2003] NSWIRComm 67 and Saliba and Commissioner of Police [2006] NSWIRComm 200. 249 Mr Docking said Ms Keran's medical condition had been raised squarely by the applicant, but the Force took no steps to find out from her medical records, or general literature, the condition she suffered from, or the medications she took. Neither Supt Commins, Insp Blanchard nor Sgt Holmes took Ms Keran's admitted condition into account.

250 Mr Docking observed that both Supt Commins and Sgt Homes were ignorant of the requirement to apply the Briginshaw standard to their consideration. The evidence must be clear and cogent. The test is whether the Commissioner is reasonably satisfied, given the seriousness of the allegations, the inherent unlikelihood of the occurrence and the gravity of the consequences, that the allegations are proven. Reasonable satisfaction should not result from inexact proofs, indefinite testimony or indirect inferences. Mr Docking said it would be an error to rely too heavily on the Management team's assessment, instead of the Commissioner being satisfied by strong and convincing evidence that the misconduct had occurred.

251 Mr Docking submitted that the CCTV footage of the Police interviews was not reliable because Ms Keran had met with Insp Blanchard and SC Boulton for two hours before her interview. Insp Blanchard had asked many leading questions of Ms Keran: See Libke v R (2007) 230 CLR 559 and Fox v Percy (2003) 214 CLR 118. 252 Mr Docking identified a number of other procedural unfairness grounds in the investigation. These were:

a) Supt Commins did not seek to interview Mr Bonfield;

b) Supt Commins did not notice that Insp Blanchard asked Ms Keran leading questions during her interview;

c) The Ryan and Bosscher letter was ignored by Supt Commins and Sgt Holmes;

d) Sgt Holmes found no reason why Ms Lenne would fabricate her evidence which merely invites speculation and is neutral;

e) There were insufficient grounds to reject the statements of Mr Bonfield, Mr Rau, Mr Probst and Constable Nolan;

f) The Police Force decided not to obtain phone records which might have corroborated the applicant's version of events;

g) The IRP and Supt Commins did not take into account regulation obligations, service standards and precedents and Industrial Relations Commission decisions and precedents;

h) No minutes were kept of any CAP or IRP meetings; and

i) Supt Commins did not read every page in both c@tsi files and no record was made of what pages were read or skimmed or not read at all. 253 Mr Docking added that Ms Keran had made prior inconsistent statements about:

1. The applicant appearing to make a phone call to Queensland police;

2. Whether she hit the floor near the bed or the exercise machine in the lounge room;

3. Whether it was Griffith University or another medial centre which prescribed her with Cipramil in 2007; and

4. Whether it was in 1999 or 2003 that she was first diagnosed with depression. 254 Mr Docking further submitted that Ms Keran had engaged in recent invention and had motives to lie, including the threat from the Police that she risked prosecution for giving a false statement. She was jealous of the applicant's former girlfriends and she was pressured by Police to make a statement. 255 In other respects, Ms Keran gave versions of events which were incredible, inconsistent and improbable involving her alleged injuries, her reasoning behind the Ryan and Bosscher letter and her lying to doctors. 256 Finally, Mr Docking said the applicant's transfer was 'harsh' because he has suffered enough, he was deemed a low risk, had an undisputed good work record and he would be sent away from family and friends. 257 Mr Docking cited Police Association of New South Wales (on behalf of Gilmour) v Commissioner of Police and Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell, for the authorities on the balancing of the interests of the applicant and the public interest under s 175(4). 258 Mr Docking referred to the applicant's statement as to the relief he seeks from the review being that the: (a) Order be revoked; and (b) He be reinstated to his previous position at Urana Police Station. For the Force 259 Mr Seck of Counsel provided the following overview of the Force's case: 1. The Industrial Relations Commission of New South Wales ("the Commission") has the difficult task of determining whether the Applicant, Senior Constable Probst, has engaged in unlawful and inappropriate conduct in the nature of "domestic violence" against his former domestic partner, Ms Elizabeth Keran. By any measure, allegations of domestic violence are serious in nature. If proven to be true, the Respondent has an obligation to take appropriate action to demonstrate that suitable police officers of the highest integrity undertake the important public function of policing. 2. No individuals were present who directly observed or heard the alleged events other than the Applicant and Ms Keran. The Applicant and Ms Keran have provided different accounts of what occurred without corroboration. The Commission therefore must determine the truth of the allegations largely based on the credibility of the Applicant or Ms Keran, the circumstantial evidence and the plausibility of their respective versions of the events concerned. 3. By its inherent nature, domestic violence occurs behind close doors; out of the public eye. It is rare that persons outside the relationship have the opportunity to observe the actual incidents of physical violence or gain a meaningful appreciation of the nature of the psychological and emotional abuse and manipulation which can take place. 4. The Respondent submits that the Commission should accept the evidence of the alleged victim, Ms Keran, in preference to that of the Applicant. As will be developed in these submissions, Ms Keran has been a credible witness. In their essential terms, her versions of events have been consistent. Ms Keran has no 1 plausible motive to fabricate the allegations against the Applicant. No expert medical evidence has been adduced on her alleged medical conditions to impugn the reliability of her evidence. 5. Domestic violence is rarely a single isolated incident of assault but usually forms part of a pattern of ongoing conduct. The perpetrator often exercises psychological control by the threat of physical violence, the prospect of withdrawing ongoing love and support and emotional abuse against his or her victim to manipulate the victim's response and behaviour. An offender's behavior can affect victims in various ways including acquiescence to the perpetrator's behaviour, lapses in rational judgment in making decisions and a willingness to excuse or cover up the perpetrator's behaviour. These coercive techniques can create the impression that the victim is the irrational and untrustworthy provocateur rather than the other way around. 6. The Respondent contends that Ms Keran's actions of endeavouring to impugn her own memory of events by obtaining letters or reports from medical practitioners and lawyers and to deflect the prosecution of the Applicant must be placed in the context of the Applicant's manipulative behaviours towards Ms Keran. Once the timing and circumstances of the Applicant's conduct are properly understood, Ms Keran's explanation that the Applicant had pressured her to take these apparently irrational steps is completely plausible as it is consistent with the responses of victims in cases of domestic violence. 7. Upon the Applicant's conduct coming to the Respondent's attention, the Respondent took Ms Keran's complaints seriously. The Respondent began an investigation into the complaints. A police officer outside the Albury Local Area Command, Detective Sergeant Dale Holmes, undertook the investigation. Senior and experienced police officers interviewed Ms Keran and the Applicant. Detective Sergeant Holmes obtained statements from other material witnesses. He produced a thorough and transparent investigation report including the evidence he obtained during the course of his investigation. 8. The Respondent delegated the decision to determine appropriate action to the Local Area Commander, Superintendent Gary Commins. Given the serious nature of taking reviewable action against the Applicant, he read the relevant documents contained in the investigation report and the investigation file. The Applicant had an opportunity to respond to the allegations. Superintendent Commins took into consideration the Applicant's response. After reviewing the material, Superintendent Commins concluded that, on the balance of probabilities, the Applicant had engaged in the misconduct. 9. Ultimately, the Respondent's decision came to determining whether Ms Keran or the Applicant should have been believed. The Applicant has the statutory burden of demonstrating that the misconduct did not occur. Unless the Commission is persuaded that, on the balance of probabilities, the Applicant did not engage in the alleged misconduct, then the Commission should not intervene on behalf of the Applicant. 10. The Respondent's decision to impose reviewable action on the Applicant of a disciplinary transfer was reasonable and appropriate having regard to the seriousness of the conduct and the specific circumstances. It was a penalty at the lower end of the scale and designed to give the Applicant a fresh start away from the troubles at the Albury Local Area Command. 260 Mr Seck discussed the concept of 'misconduct' as comprehended under the Act and by reference to the Police Regulation 2008, the New South Wales Police Standards of Professional Conduct and the New South Wales Police Code of Conduct and Ethics. These all require a police officer to behave honestly, and in a way that upholds the values and good reputation of the Force, whether the officer is on or off duty: See New South Wales Attorney-General's Department v Miller (2007) 160 IR 185. Mr Seck said the applicant's alleged misconduct plainly has the potential to cause serious damage to the relationship between employer and employee, damages the interests of the Force and is incompatible with the applicant's duty as a police officer. The misconduct in this case may be distinguished from misconduct which would justify instant dismissal. Misconduct may include only one instance of a finding of misconduct or a pattern of misconduct. 261 Mr Seck referred to the evidence (see par 165) which identified the nature of domestic violence and its features. These include that: · it occurs behind closed doors with no corroborative witnesses; · offenders may be good at deception; · victims often accommodated or acquiesced to the perpetrator's behaviour; · victims are usually reluctant to co-operate with Police; · victims can be subject to psychological abuse and emotional manipulation; and · victims can make poor judgements, cannot accept their situation and seek to excuse the perpetrator's conduct. 262 Mr Seck submitted that Ms Keran was a credible witness whose consistent evidence, given on numerous occasions, ought to be believed. The Force had accepted Ms Keran's evidence over that of the applicant's considering she had told SC Boulton of some of the incidents, given a detailed account in the Queensland Magistrates Court and in her ERISP interview. She also posted consistent details of the incidents on the 'Broken Spirits' website. In addition, Ms Keran had provided a detailed statement in these proceedings and was subject to extensive cross-examination. The consistent statements demonstrate the credibility of her evidence and rebut any suggestion that it was of recent invention, improperly constructed or the result of suggestion: See R v MDB 2005 NSWCCA 354. 263 Mr Seck said that the postings on the 'Broken Spirits' website were similar to diary entries and were intended to be private and anonymous. This strengthens the likelihood that the events did occur. Mr Seck provided extracts of Ms Keran's evidence which corroborated the consistency of her evidence over time. 264 Mr Seck noted that Ms Keran never sought to bring the applicant's conduct to the attention of the authorities. She did not initiate the domestic violence order and 'chickened out' when she called the Police in the Queensland incident. She was initially reluctant to pursue the matter and was unwilling to co-operate with Police. She had no motive, other than a desire to tell the truth and have her side of the story presented. 265 Mr Seck set out Ms Keran's evidence to the Queensland Police immediately after the incident when she spoke to SC Stephen and Constable Urquhart. These officers noticed the damage to the kitchen wall and Ms Keran provided details of other incidents in September 2006, where the applicant had hit her and in February 2005 when she had injuries to her forehead and bruising to her face. She provided two statements to the Queensland Police. In the last of these she said the incidents had occurred, but she now wished to put this episode in her life behind her. Both officers gave evidence to the Queensland Magistrates Court and the Magistrate even commended them for the conduct of their inquiries and said they gave truthful and reliable evidence. 266 Mr Seck said that Ms Keran also gave details of the incidents to SC Boulton (31 May 2007) after initially telling her that she was reluctant to disclose any information, that she distrusted the New South Wales Police and that she had concerns about jeopardising the applicant's police career. She had then wanted to make a statement about the domestic assaults in New South Wales, because she was angry with the applicant and his friends, who knew what had gone on, but had betrayed her (Mr Bonfield and Constable Nolan). 267 Mr Seck noted that Ms Keran gave evidence in the Queensland Magistrates Court on 31 May, 1 June and 13 June 2007, and gave unprompted details of the events of 30 January 2005, 13 February 2005, 23 August 2006 and 16 February 2007. She was rigorously cross-examined. The Magistrate found her to be a credible and impressive witness and accepted that an act of domestic violence had occurred. Mr Seck said that even though the Magistrate had little option but to dismiss the application, because the applicant no longer posed a threat to Ms Keran (as he was living in a different State), this did not diminish his findings about Ms Keran's credibility. 268 Mr Seck referred to Ms Keran's ERISP interview with Insp Blanchard and SC Boulton on 7 June. Again she had expressed concerns that she did not feel safe and did not trust the applicant. Given that she was nervous and apprehensive, it was entirely reasonable that Insp Blanchard decided to provide support and outline the processes involved, in a less threatening environment - the coffee shop. It was simply good policing practice. Mr Seck said there was no evidence Ms Keran had been coached or influenced about what she would say in the interview and nothing improper or illegal could be asserted. 269 Mr Seck said that during the ERISP interview Ms Keran gave her version of events in a clear and detailed narrative, providing dates and answering questions promptly and directly. Mr Seck put that there was no basis for claiming that Insp Blanchard asked leading questions. She had presented her account naturally and without interruption and later signed and attested to the interview's accuracy. Mr Seck added that Ms Keran's demeanour during the interview confirmed her credibility. She presented as quietly spoken, but bright and articulate. She admitted to embarrassment over certain matters and made concessions about her own culpability. This demonstrated that she gave a balanced and truthful account. With all this material, Mr Seck submitted that Sgt Holmes was readily able to conclude that Ms Keran was 'an extremely credible witness'. 270 Mr Seck answered the challenge to Ms Keran's credibility following her admission of lying to her doctors by noting that the applicant had been pressuring her to see a doctor and have her prescribed antidepressants so that the doctor could say her evidence was questionable. Her visits to Dr Neal and Prof Morris were shortly after the applicant had been suspended on 4 August 2007. Mr Seck said that it was perfectly understandable that Ms Keran succumbed to the applicant's pressure, because he was holding out a reconciliation in their relationship. He was also telling her that the Police were 'out to get him' and that Insp Blanchard was corrupt. Mr Seck also noted that Dr Neal's referral identified that Ms Keran had told her of the domestic violence in the relationship, but that she could only recall the specifics of the punching a hole in the wall in Queensland. This was a clear acknowledgement that domestic violence had occurred. Mr Seck submitted that it was crucial that Ms Keran never denied to her doctors the incidents had occurred, only that she did not trust her recollection. Mr Seck said that Prof Morris had concluded precisely the opposite of what Ms Keran had sought from him. He found her 'tearful, distressed, depressed and mild anxiety, not psychotic, not suicidal/homicidal, cognition intact, insight preserved'. He later refused to certify her as mentally unwell. 271 Mr Seck submitted that Ms Keran's actions were entirely plausible and while they may have demonstrated no more than poor judgment, her emotions were reasonable and compelling in the circumstances. 272 Mr Seck submitted that the applicant had pressured Ms Keran to see his lawyer in order to have her say that her earlier evidence was untrue. Ms Keran agreed to do so and Mr Gatenby then referred her to Ryan and Bosscher Solicitors. Ms Keran sought to persuade Mr Moloney that the applicant had told her that her recollections were distorted and inaccurate. She had said that, at the time, she wanted to cause sufficient difficulties so the Police could not proceed with the investigation. This had all occurred around the time when Ms Keran flew to Wagga Wagga to see the applicant and he was calm and attentive during his visit. Nevertheless, he kept insisting that she could not accurately recall events. He had dangled the potential of reconciliation, conditional on her obtaining a letter designed to impugn her own credibility. Mr Seck emphasised that, despite the wording of the letter, there was no withdrawal or denial by Ms Keran of the allegations and she now said the wording of the letter was untrue. Mr Seck put that the letter was carefully crafted with the objective of making it difficult for the Police to pursue the applicant. It was clearly in his interests and not hers. Mr Moloney had not acted improperly, but merely recorded Ms Keran's subjective belief that her depression had created a mistaken perception of events, rather than Mr Moloney's own views of what had really happened. 273 Mr Seck said that the applicant sought to suggest that Ms Keran's medical condition and her medication were proof of her being the likely provocateur in the relationship. Mr Seck said there was no expert evidence to suggest that this was the case, or to link her condition to potentially volatile behaviour. He said Mr Docking's reliance on text book definitions of her condition were nothing but conjecture, and if proof was required, expert evidence linking Ms Keran's condition and medications to such behaviour should have been adduced. On the contrary, Ms Keran's own treating psychiatrist found her 'insight preserved' and refused to certify her as having a mental illness. In addition, Ms Keran's evidence about the extent of bruising being variable from person to person should be accepted. 274 Mr Seck dealt with the applicant's own hostile and truculent attitude towards the Investigator (who he had not even known), during his interviews with Insp Blanchard and towards Queensland Police, who he complained about and who the Magistrate had commended. Mr Seck said this demonstrated his attitude was belligerent, accusatory and hostile to anyone who had an adverse opinion of him or his conduct. Moreover, the applicant made allegations of corruption against Insp Blanchard and said that Insp Blanchard, SC Boulton and the whole Albury CMT were guilty of perverting the course of justice. The applicant had admitted he mistrusted local management, including Insp Blanchard, Supt Commins, Supt Cooper and Supt Crandell. Mr Seck said that this attitude was hardly surprising. The applicant was bitter and distrustful of anyone who crossed him and could never accept he might be wrong. Moreover, his inability to get on with people was confirmed by his own support witnesses. Mr Seck submitted the applicant's approach had all the hallmarks of a classic domestic violence perpetrator. 275 Mr Seck put that the evidence to support Ms Keran's version of the Queensland incident is overwhelming and included the following: (a) The Queensland Police arrived at the scene immediately after the incident and observed the damage to the wall. (b) On the evening of the incident, Ms Keran provided statements on the events to Senior Constable Stephen and Constable Urquhart immediately after the incident. (c) Ms Keran sets out what occurred in detail on the Broken Spirits website shortly after the incident on 21 February 2007; (d) Ms Keran then confirms these events to Senior Constable Boulton; (e) Ms Keran testified in the Magistrates Court about these incidents and, on the balance of probabilities, the Magistrate determined that the events on the evening occurred. (f) Even to Dr Neal, Ms Keran explicitly stated that she distinctly remembered the Queensland incident as "the night he punched a hole in the wall when Qld Police attended his flat". (g) The alleged independent witness, Mr Matthew Bonfield, agreed he did not hear the argument and could not determine who was responsible and left the apartment before certain events took place. 276 Mr Seck submitted that the Commission would be careful to overturn the findings of a court of law (the Queensland Magistrate's findings): See Blaire v Curren (1939) 62 CLR 464. The applicant cannot now seek to prove the misconduct did not occur because he is prevented from doing so on the basis of issue estoppel. 277 Mr Seck submitted that the burden of proof in these proceedings, at all times, rests with the applicant: See s 175(2) of the Act. It is different to the burden of proof in unfair dismissal matters, based on misconduct: See Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers' Union (NSW) v Gartrell White (No 1) (1999) 35 IR 51 and Four Sons Pty Limited v Sakshai Limsiripothong (2000) 98 IR 1. Mr Seck said that even assuming the burden of proof lies with the Force, the standard of proof is on the balance of probabilities. Applying the rule in Briginshaw means that the Commission must have the requisite degree of satisfaction that the misconduct occurred: See Wang v Crestell Industries Pty Ltd (1997) 73 IR 454. Mr Seck submitted that the principles in Briginshaw are nothing more than a guide on the perception that ordinary people do not usually engage in criminal or fraudulent conduct: See Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd. The Commission would be satisfied that the misconduct has occurred in a 'word against word' case: See Varmedja v Varmedja [2008] NSWCA 177. 278 Consequently, Mr Seck submitted that the letter from the DPP and the Victoria Police cannot assist the Commission in this case, because they each involved a consideration of the prospect of obtaining a criminal conviction on the criminal test of 'beyond reasonable doubt'. In any event, there is no requirement in the general rule of law for corroboration to exist in order to make findings on the allegations. 279 Mr Seck traced the history of the investigation which first commenced the day after the Queensland incident, when Queensland Police advised the Albury LAC that the applicant had been detained for an alleged domestic violence incident. Supt Cooper (then Albury LAC Commander) appointed Insp Blanchard as the Investigator on 17 February 2007. On 22 February, Supt Cooper undertook a preliminary risk assessment which, given the early stage of the investigation, deemed the applicant suitable to perform full operational duties. 280 Insp Blanchard relied on the statement of Constable Urquhart and a 'directed memorandum' from the applicant in which he alleged Ms Keran was the aggressor. He denied any physical violence at any time. As Ms Keran refused to supply a statement or assist in the investigation, Insp Blanchard concluded that the findings could not be sustained. He counselled the applicant for failing to notify the New South Wales Police of the service of an application for an AVO. Insp Blanchard's actions refute the allegation that he had a biased view towards the applicant, or the Police Force had reached a predetermined result concerning the allegations. However, after the Queensland Magistrate's findings, Insp Blanchard revised his report and concluded that the applicant had breached the Force's Code of Conduct and Ethics and recommended he be counselled. 281 Mr Seck said that after Ms Keran's ERISP interview on 7 June 2007, New South Wales Police commenced another investigation in relation to other incidents raised by her. Insp Blanchard was initially appointed to investigate the matters, but when Ms Keran's lawyer wrote to Insp Blanchard, the Albury CMT decided to refer the complaint to the Southern Region CMT and Sgt Holmes from Wagga Wagga was appointed to investigate. He had not known the applicant and was asked to investigate 15 allegations against the applicant over the period 7 August 2003 to November 2006. 282 Mr Seck submitted that Sgt Holmes' investigation was thorough and transparent. He had a wide experience, had interviewed 20 witnesses, read the transcript of the Queensland Magistrates Court and viewed the taped interviews of Ms Keran and the applicant. On 26 August 2007, Ms Keran refused to participate in another interview at a time when the applicant had subjected her to significant pressure and duress. On 13 November, Ms Keran indicated she did not wish to proceed with any criminal or departmental investigation against the applicant. The applicant was interviewed on 24 January 2008, in the company of his lawyer, Mr Sheehan. 283 Sgt Holmes found Ms Keran to be an extremely credible witness on the following grounds: (a) Ms Keran's evidence on 31 May 2007 and 1 June 2007 before the Magistrates Court; (b) viewing the video of Ms Keran's interview with Detective Inspector Blanchard and Senior Constable Boulton on 7 June 2007; (c) the Magistrate's findings on 13 June 2007 that Ms Keran was a credible witness; (d) Ms Keran's posts on the Broken Spirits website; (e) Detective Sergeant Holmes's discussion with Ms Keran on 14 August 2007 where she reaffirmed that the allegations were correct but that she did not wish to proceed with the allegations; (f) the Applicant's allegations that Ms Keran was mentally unstable, suffered from a mental illness and was the aggressor in the relationship were, after having spoken directly to the Applicant were " absurd " (and not supported by any medical evidence) and " designed solely to deflect responsibility " (pp 25 - 26); 53 (g) Detective Sergeant Holmes's observations that Ms Keran was " extremely intelligent, however lacks self-esteem ... [which] has been abused by the subject officer, as he identified her as a target of abuse " (p 26); (h) Even though Ms Keran had pleaded that the investigation not go ahead, she never stated that she had lied or the allegations were false. 284 Sgt Holmes recommended the applicant be considered for removal under s 181D of the Act. Mr Seck said that far from condoning or waiving the applicant's conduct, the Commissioner, in deciding not to lose confidence in him, returned the matter to the IRP for consideration of appropriate management action. It was nonsense to suggest the Force could be limited to a simple choice of dismissing the applicant or taking no action at all. It would mean that the Commissioner would be pressured to remove an officer, because a failure to do so would be to tantamount to condoning the conduct. In any event, Mr Seck put that the 'doctrine of waiver' does not apply to these circumstances. The doctrine applies where the employer has full knowledge of the misconduct justifying dismissal, but does not exercise the right to dismiss. The misconduct cannot later be used as a defence for wrongful dismissal. In this case, the Force does not rely on the misconduct to justify dismissal, but relies on it to impose disciplinary action. 285 Mr Seck then considered the use of the term 'beyond power' in the Act and said it was simply the English translation of the legal term ultra vires, being a lack of power under the law: See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. Mr Seck submitted that the simple use of the term ultra vires is concerned with the question of whether or not a decision maker has exceeded an express power authorised by law: See McGuirk v University of New South Wales [2009] NSWADT 12. 286 Mr Seck drew a distinction between broad or extended ultra vires and narrow ultra vires, which may include decisions made for an improper purpose, in bad faith or by acting so unreasonably that no reasonable person would have reached the decision. Mr Seck said the Commission's task is to determine whether the Force had exceeded the express limits of its power, and not to analyse the decision by reference to the quality of the decision making process. The Commission's jurisdiction to review an order on the basis that it is 'beyond power' is consistent with the review being based on whether it is 'harsh, unreasonable or unjust' i.e. a full merits review. If there had been a breach of administrative law principles the applicant had the opportunity to seek prerogative relief in the Supreme Court. Mr Seck added that the term ultra vires refers to jurisdictional error: See Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 and Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82. 287 Mr Seck said that jurisdictional error will only occur where the legislature intended that a breach of the requirement at issue would result in invalidity: See SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129. Mr Seck submitted that just because there had been non compliance with a statutory condition, does not necessarily mean there has been a jurisdictional error, rendering the decision invalid: See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. For example, a procedural requirement serving essentially administrative purposes or which had not lead to adverse consequences, is unlikely to affect the validity of an exercise of the power to which it attaches: See Minister for Immigration and Citizenship v Szizo (2009) 259 ALR 405 at 35. Mr Seck submitted that, to determine whether the Force had the power to make the decision, it was necessary to identify the limits of the Force's powers and whether the consequences of breaching those limits would mean that the decision was invalid. This would require a process of statutory construction to determine when a breach of a specific requirement would amount to the act being invalid i.e. 'beyond power'. 288 Mr Seck dealt with the meaning of the term 'harsh, unjust or unreasonable' by reference to Mahoney and Commissioner of Police; Byrne v Australian Airlines Limited; Bankstown City Council v Paris; Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167. 289 In dealing with the procedure, Mr Seck submitted that the applicant had not shown that there was any defect in the investigation or the process, which, had it been done a different way, would have led to a different outcome. It would only be in exceptional circumstances, where a defective process will mean the action taken was unreasonable: See Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385; Wilson v Department of Education and Training (2000) 100 IR 1; Oswald v New South Wales Police Service and D&R Commercial Pty Ltd v Flood (2002) 113 IR 344. 290 Given that the applicant had had an opportunity to respond to the allegations, it is hard to conceive how he was denied procedural fairness. Cataloguing a whole series of complaints, does not go to the essential question as to whether the process was flawed as to have compromised the integrity of the outcome or that it would have changed the outcome. Criticising Sgt Holmes' forensic choices does not assist the applicant's case. 291 Mr Seck discussed the role of the IRP, which is to provide assistance and advice to Local Area Commanders and to ensure reviewable action is consistent and be able to be subject to scrutiny. Its role is not to be over technical or for there to be discussion of the finer points of law or the Commission's decisions. It only recommends to the delegated decision maker. 292 Mr Seck said that Supt Commins did not fail to take account of the merits of the case and did not fail in his duty because he could not recall every aspect of the material: See Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation (2003) 126 FCR 304. Supt Commins openly told the applicant of the IRP's recommendation. There was nothing remarkable in him doing so. 293 As to the statutory requirements, Mr Seck put that there could be no dispute that the Force had complied with s 173(5)(a) and (b) and that issue was taken in respect to Supt Commins' obligation to consider the applicant's submissions under s 173(5)(c). Mr Seck referred to Supt Commins' evidence that he had reviewed the applicant's response, read the Investigator's Report and viewed and read the interviews with the applicant and Ms Keran, the witnesses, the investigatory police and the Queensland Magistrates Court transcripts. He also read and viewed the contents of the c@tsi files. Mr Seck said that ultimately Supt Commins had to reach a decision, on the balance of probabilities, of two differing versions of events. Given this task, it was hardly surprising that he could not remember every document many months after the events. He is a busy Local Area Commander. 294 Mr Seck put that it was unrealistic and unfair to expect the Superintendent to have read and have a recollection of every document in the process: See Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381. Mr Seck said that Supt Commins considered the substance of the matter and made a 'holistic' assessment of all of the evidence to determine who should be believed. 295 Mr Seck accepted that Supt Commins must take 'into consideration' the applicant's submission. However, this does not mean the Superintendent is required to take into account each point in the submission. Just because the applicant disagrees with the weight he gave, or reasons given, does not mean he did not take them into consideration. His lack of specific recollection of minute details several months later can not be criticised. In any event, the suggestion that Supt Commins had not done so because he did not highlight or mark up documents, is mere guesswork and wrong. 296 Mr Seck put that the applicant had not been able to demonstrate that having not been given every document, which have since been produced, would have made any difference to the original decision. The DPP and Victoria Police letters deal with a criminal proceeding. He had every opportunity to respond to the Investigator's Report and the failure to produce certain documents is itself not unfair, unless it can be shown to have denied the applicant due process: See Mahoney and Commissioner of Police [2003] NSWIRComm 67 at par 128. 297 Mr Seck rejected the applicant's submission that Supt Commins misdirected himself or was misdirected by someone else, by including the criterion of 'integrity' in the order. This submission wrongly assumes that misconduct does not impact on the officer's integrity - which it must. It is unarguable that acts of domestic violence demonstrate a lack of integrity and constitute breaches of the Code of Conduct and Ethics. Mr Seck said it was misconceived to treat misconduct and integrity as foreign and distinct concepts. 298 Mr Seck submitted that the background material had no bearing on the ultimate outcome and was merely a recital of Ms Keran's earlier allegations. This criticism has no substance. 299 Mr Seck further submitted that the Force is merely required to give 'reasons for the making of the order', not reasons for the findings of misconduct or why certain evidence was accepted over other evidence. Mr Seck said that it was misconceived and unrealistic to impose on the Force the same obligation there is on a judicial officer to give full reasons for a decision. These are not appeal proceedings, but are proceedings entitling the applicant to have a fresh and independent review of the merits of the case: See Hosemans v Commissioner of Police (2004) 138 IR 159. The applicant's reliance on the raft of decisions in the context of the judicial duty to give reasons cannot apply to the Force and are of little or no assistance: See Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462. Mr Seck emphasised this point by reference to the decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang. Mr Seck added that the Courts have held that the failure to give proper reasons does not amount to jurisdictional error: See Sasterawan v Morris [2008] NSWCA 70. In any event, any shortcomings in this regard can be cured by the Commission's fresh and independent review of the order. Moreover, the reasons given were perfectly adequate - Ms Keran's evidence was preferred over the applicant's. 300 Mr Seck acknowledged that the order failed to mention that the complaint had been investigated or was being investigated under Div 5 Pt 8A of the Act as required by s 173(7)(b) of the Act. However, this failure does not lead to a conclusion that the order was 'beyond power'. It is merely to 'sign post' whether external bodies have been involved. It has no direct consequence for the applicant or that he was denied any procedural fairness by its omission. 301 Mr Seck submitted that it was little wonder the s 181D notice and the s 173 notice and order were identical when they arose from the same set of allegations of misconduct. He submitted that a document is not invalid, merely because it employs a verbal formula: See Minister for Immigration and Ethnic Affairs v Wu Shan Liang. Mr Seck put that, given the scrutiny under which the order was subject, it was prudent to have it drafted by persons other than the Local Area Commander so as to be consistent with the Force's protocols. Indeed, the Force's Management Action Procedures specifically require the Process Unit to prepare the notice and order. It has the expertise and knowledge to do so. Mr Seck said there was nothing in the process to suggest Supt Commins improperly delegated his role or did not undertake an independent decision making process. 302 Mr Seck put that Supt Commins weighed up the applicant's character references against the gravity of the misconduct. However, caution should be exercised when considering character references. Mr Seck said that, given all the character references were from the applicant's good friends or ex-girl friends, it was hardly surprising they would be positive. Accordingly, they should be given very little weight. The only two professional references were from SC Nyholm and SC Morris; neither of whom had worked with the applicant since the events had occurred. SC Nyholm gave evidence that he would continue to support the applicant, even if the decision was that he had engaged in misconduct. Such comments, by a good friend, can have little weight. 303 Mr Seck dealt with the two imperatives on the Commission in determining this matter - the public interest and the interests of the applicant. This exercise involves a balancing of the two interests. Mr Seck said that public interest embraces matters such as a disciplined police force, the rule of law, community expectations about police behaviour and public safety. Mr Seck referred to the decision of Peterson J in Wells v Commissioner of Police, and said that the interests of the applicant become less relevant where the misconduct is proven. 304 Indeed, Mr Seck submitted, the Force could have taken more punitive action against the applicant. He said that given the seriousness of the misconduct and the importance of the value of integrity as a police officer, the applicant's transfer to Wollongong was a relatively light punishment. It had a rational purpose considering the applicant's stigma in the community and the obvious difficulties he has with the Albury Management Team. 305 Mr Seck further submitted that the applicant's contention that his transfer would be harsh, given his mother's medical condition, should not weigh heavily in the applicant's favour, given he has spent long periods away from home in Queensland and Melbourne in recent years. There is no reason why he could not visit his parents and friends on the same basis that he did when he was living in Melbourne. In any event, the applicant joined the Force on the understanding he could be transferred at any time. It was his good fortune that he secured appointment to his home town, but he knew it could not be guaranteed forever. 306 Mr Seck put that, by his own admission, the applicant lacks trust in Albury senior management. He accused Insp Blanchard of being corrupt and he mistrusts Supt Commins and other unnamed officers in the Command. He had made serious allegations against senior officers. Mr Seck said that the necessity for trust and confidence between police officers is higher than other occupations and it would undermine morale and create disfunction in the Albury LAC if the applicant was returned. The position would be more acute if the applicant was returned to Urana where he would be working without direct daily supervision. Mr Seck said that the applicant's credibility in the local community has been seriously compromised. A transfer to Wollongong would allow him to make a fresh start. In addition, the position at Urana has been filled. The position is now not available. Mr Seck submitted that this matter raises different considerations than in an unfair dismissal matter. 307 In the alternative, Mr Seck submitted that the Commission could make alternative orders which are suitable and proper in the circumstances: See Police Association of New South Wales (on behalf of Gilmour) v Commissioner of Police. Alternative orders might include: (a) the imposition of "reviewable action" such as a reduction in rank or seniority for a period to reflect the seriousness of the Applicant's actions; (b) the Applicant receiving a Regional Commander's Warning Notice; (c) the Applicant being placed on a Conduct Management Plan for 6 months to monitor regarding interaction with the Senior Management Team at Albury Local Area Command; (d) the Applicant undergoing remedial training in the management of domestic violence matters and counselling for anger management.

308 As to compensation, Mr Seck said the Commission's powers in this regard were limited to making orders of compensation for any loss suffered by the applicant 'as a consequence of making of the order' (see s 177(2)). Mr Seck submitted that the applicant's claim for compensation in relation to a loss of shift penalties, overtime and rental subsidy does not arise out of the order, but from the original decision to suspend him and place him on restricted duties. Mr Seck added that shift penalties, overtime and rent subsidy are to compensate for any inconvenience of working outside normal hours. As the applicant suffered no hardship in this regard he cannot be entitled to compensation for a loss he did not suffer. In addition, the rental subsidy ceased when he stopped living at Urana. The applicant lived at various times in Queensland, Melbourne and with his parents, where he paid no rent. Consequently he suffered no loss. Claims for compensation for travelling to Sydney for these proceedings cannot be sought. Further, under s 179 of the Act, the costs provisions under s 181 of the Industrial Relations Act do not apply. 309 Finally, Mr Seck submitted that the Commission would be satisfied the applicant's misconduct had occurred and that this s 174 application should be dismissed. In reply 310 Mr Docking opened his reply by submitting that the Force's submissions were replete with errors. He said that the words 'beyond power' should be given a beneficial construction in favour of the applicant: See Cole v Director-General of Youth and Community Services (1986) 7 NSWLR 541. Mr Docking further submitted that a s 173 order will be 'beyond power':

a) where the person making the decision does not have the delegation to make it;

(c) the decision is invalid because of a failure to accord procedural fairness; or

(d) where there is a failure to follow an essential precondition: See McGuirk v University of New South Wales . 311 In the present circumstances, there may be no need for a merits review. This was the case in Bigg v New South Wales Police Service and Van Huisstede v Commissioner of Police. Mr Docking put that the wording in the Act does not require an administrative law remedy being pursued. 312 Mr Docking put that there is a distinction between a legal onus and an evidentiary onus and the Commissioner in this case had not discharged his burden of proof. Mr Docking said it was erroneous to draw a distinction with the burden of proof in a s 174 review and s 181D dismissal case. Mr Docking put that it can safely and reasonably be inferred that the Commissioner, in not losing confidence in the applicant, determined that the five allegations could not be proven. Surely he would have removed him if the Force had been able to prove unlawful and inappropriate conduct in the nature of domestic violence. 313 Mr Docking relied on Project Sky Blue to identify and distinguish acts done in breach of an essential preliminary to the exercise of statutory power being mandatory and acts done in breach of a procedural condition for the exercise of a statutory power which may be directory, rather than mandatory. The better test is to ask whether it was a purpose of the legislation that the act done in breach of a provision should be invalid. 314 Mr Docking said that the Force's elaborate submission as to the inclusion of the word 'integrity' in the order was a distraction. If the Force could prove the misconduct (which it could not) then it was, of course, misconduct, and integrity would not come into it. 315 Mr Docking submitted that the Investigator's Report could hardly be 'transparent' when relevant documents, including the DPP and Victoria Police advice, were not produced until the hearing of the review and the Investigator did not clarify the nature of Ms Keran's medical condition and its impact on her being the aggressor and an unreliable witness. There was no foundation to a claim of conspiracy between the applicant's witnesses. Further, it was false to submit that the applicant was given all the material documents as part of the s 181D notice. There were deliberate non disclosures by the Commissioner which denied the applicant due process: See Mahoney and Commissioner of Police. The Investigator's Report could not be said to be thorough when the Force did not follow up Mr Bonfield or resolve the issue of the 'pregnant girl'. 316 Mr Docking put that there was no evidence that the 'draft' 2002 New South Wales Police Management Action Procedures or later drafts were ever implemented. Supt Commins could not recall ever seeing the document and there was no evidence that the Process Unit of the Employee Management Branch possessed the expertise and knowledge to draft statutory documents. 317 Mr Docking submitted that the IRP did not take any minutes. The IRP, the Investigator's Report and the final decision maker had not considered the applicant's s 173 show cause response. 318 Mr Docking put that it may be comfortably concluded that Supt Commins did not read any of the documents, the c@tsi files or the Investigator's Report until after the applicant's response. He did not read the Victoria Police documents, the Ryan and Bosscher letter or the statements attached to the applicant's submissions. Moreover, Supt Commins did not define what he meant by giving a 'holistic' assessment of the allegations. 319 Mr Docking criticised the Force's selective reliance on Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 as to what a decision maker must take into consideration. He said the process must rely on an 'intellectual process' depending on the nature of the information and its degree of relevance. Reliance on someone unknown, plainly does not meet the test: See Tickner v Chapman (1995) 57 FCR 451. He said that Supt Commins was not aware of certain information and never engaged 'in an active intellectual process'. 320 Mr Docking submitted that it was erroneous to conclude that the Commissioner or his delegate is not an administrative decision maker. The decision maker is statutorily required to provide proper and adequate reasons why he made the s 173 order. The way he goes about the task, as well as the merits of the decision, are subject to review. Mr Docking submitted that there is no equivalent provision to s 13 of the Administrative Decisions (Judicial Review) Act 1977 in s 173. However, an aggrieved person can only show how a decision has been improperly reached if they know how the decision was reached. Mr Docking said that the reasons of the decision maker will usually provide the only insight into considerations which were, or were not, taken into account. Supt Commins was not an untrained layman but, in fact, 'stood in the shoes of the Commissioner'. 321 Mr Docking submitted that the enormous costs to both sides could have been avoided if proper and adequate consideration of the reasons had occurred: See Cypressvale Pty Ltd v Retail Shop Lease Tribunal. Mr Docking submitted that on a proper reading of Inglewood Olive Processors Limited v Chief Executive Officer of Customs [2005] FCAFC 101, Supt Commins did not start and end his deliberations with the correct legal test. Supt Commins did not even know what the statutory criteria were in s 173 of the Act. A statutory scheme which made the giving of reasons a condition precedent, requires a decision maker to give reasons, or it will be made without authority, or as is the case here, is 'beyond power' and/or is 'harsh, unreasonable and unjust'. Any shortcomings cannot be cured by the Commission's fresh and independent review of the decision: See Van Huisstede v Commissioner of Police. 322 Mr Docking submitted that the applicant was not overzealously scrutinising the purported reasons. The reasons were founded on a fundamentally inadequate assessment of the available information. He said there was no challenge to the fact that the applicant's accounts of the incidents were consistent. Mr Docking further put that the applicant's version of events was corroborated by the Victoria Police Reports. He said friends are well placed to have the experience and knowledge of another friend's character and behaviour. Ex-girlfriends, particularly so, in respect to domestic violence. 323 Mr Docking said it was not up to the applicant to call expert medical evidence concerning Ms Keran. Her existing medical records corroborate that she was the aggressor and proved she was not a reliable witness. The Commission would also be entitled to take account of a direct body of lay evidence of Ms Keran's behaviour: See the evidence of the applicant, Ms McHale, Constable Baker, Mr Probst and SC Nyholm. Mr Docking described as 'desperate' the submissions that medical evidence was required to disprove Ms Keran's claim of bruising. Concessions were made by Sgt Holmes, Supt Commins and Ms Keran on this point. 324 Mr Docking said it was wrong to suggest the Briginshaw test was not as great where the applicant's job was not in jeopardy. The fact was he was accused of criminal and unlawful conduct. Mr Docking referred again to the authority in Fox v Percy as to the danger of too readily drawing conclusions about truthfulness and reliability solely, or mainly, from the appearance of witnesses. 325 Mr Docking said it was illogical and overly simplistic to rely on the allegations of domestic violence being believed merely by taking judicial notice and not having regard to specific facts and circumstances. Mr Docking said the applicant's evidence was corroborated, whereas Ms Keran's was not. He referred to various extracts of the evidence in respect to each of the incidents. 326 Mr Docking put that the applicant's approach to the Victoria Police and DPP letters is not premised on the standard of proof, but on the evaluation of the weight of the available evidence and its persuasive strength. In addition, SC Nyholm's and Ms McHale's unchallenged statements corroborate that Ms Keran was not a reliable witness. It was incorrect and contradictory to characterise the applicant as exhibiting all the hallmarks of a domestic violence offender. 327 Further, Mr Docking said it was incorrect to argue that Ms Keran was a credible witness, merely because her version of events had been consistent. The Commissioner misconceived both what can constitute either 'fresh' prior consistent statements or evidence that is capable of restoring credibility or rebutting any allegation of fabrication, reconstruction or suggestion: See R v MDB [2005] NSWCCA 354. 328 Mr Docking put that Ms Keran's consistent statements do not assist the Commission when the incidents occurred months or years before she posted her thoughts on the 'Broken Spirits' website. Furthermore, her statements were made after the Queensland Police were involved in circumstances where she had been threatened with prosecution if she changed her story. The Force's case presented Ms Keran as bright and articulate and this explained why a detailed and so called unprompted narrative was able to be given to the Queensland Magistrates Court and during her ERISP interview. 329 Mr Docking said there were a number of examples of Ms Keran demonstrating she was jealous - her reference to the 'red headed slut' and her telling the doctor her boyfriend was unfaithful. 330 Mr Docking submitted that the Commission should not rely on hearsay statements of Queensland Police officers, who the Force elected not to call and be tested under cross-examination: See Wells v Commissioner of Police; Amalgamated Metal Workers' Union v Electricity Commission (NSW) (1989) 28 IR 155; New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 and Australian Postal Commission v Hayes (1989) 23 FCR 320. 331 Mr Docking said that there were numerous examples of where Ms Keran herself had complained about the New South Wales Police Force's conduct and treatment of her and how she was asked leading questions in the ERISP interview. 332 Mr Docking said there was no issue of estoppel in this case because neither the Commissioner nor the New South Wales Police Force were a party to the Queensland Magistrates Court proceedings: See Kuligowski v Metrobus (2004) 220 CLR 363. Moreover, Mr Docking said there was a 'fraud' perpetrated on the Magistrates Court, arising out of the 'tip of the iceberg' comment (probably sourced to Insp Blanchard and the false allegations of Ms Keran). 333 Mr Docking submitted that it beggars belief that the Commissioner argues that the alleged lies to medical practitioners and her lawyer are completely plausible. The reality was that Ms Keran had to reconstruct her evidence to fit, when her stories were caught out by the records. The fact was that Ms Keran had a history of attending medical specialists when having mental health problems. 334 Mr Docking rejected the extraordinary attack on the credibility of the applicant merely because he used language like 'rubbish', or he was argumentative, flippant or because he had a 'touch or arrogance'. There was no evidence that he was violent or dishonest. Moreover, the issue of the 'pregnant girl', and it not being followed up, entitled the applicant to feel aggrieved about how the investigation was conducted. Other examples were Sgt Holmes not checking Mr Bonfield's statement and the applicant's suspension without him being told the reason. 335 Mr Docking said that the Force did not apply the more contemporary authority concerning the balancing of the interests of the applicant and the public interest: See Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell and Commissioner of Police v Hugh Gerrard Brennan [2008] NSWIRComm 52. 336 As to the award of relief, Mr Docking said it was a 'fiction' to argue the applicant's reinstatement was impractical, when no evidence was called concerning his loss of trust or confidence or stigma in the community; particularly when the applicant is currently on the front desk and is allowed to arrest persons and deal with domestic violence victims. 337 Mr Docking submitted that the term 'available' position does not mean vacant: See Commonwealth Steel Company Limited v Ward (Matter No IRC 3144 of 1993; unreported decision; 16/12/94) and Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98. It was now too late for the Force to propose alternative orders where the applicant had not been provided an opportunity to address the appropriateness of such orders.

CONSIDERATION General findings as to the allegations 338 At the outset, I intend to make what I consider to be the fundamental finding in determining this s 174 review application. That finding concerns who is to be generally believed in respect to the allegations forming the basis of the s 173 order - Ms Keran's version of the incidents or the applicant's version. I specifically use the word 'generally', because this is not a case where discrete or specific aspects of the evidence are in evidentiary contest. The applicant maintains, and has done so from the beginning of the Force's investigation, that all of the allegations against him are untrue and have been manufactured by a jealous former partner who is mentally unstable. I shall come to the medical evidence concerning Ms Keran shortly. The closest the applicant's evidence ever got to Ms Keran's version of the incidents was that he may have raised his voice from time to time, that they had numerous verbal arguments and that their relationship was volatile and tumultuous. Moreover, the applicant maintained that it was Ms Keran who was the aggressor - mostly when she went off her medications. 339 That this is a classic 'word on word case' cannot be doubted. There are no eyewitnesses to any of the incidents, and the Commission (like the Force's decision maker) is required to consider whether the incidents, as Ms Keran described, on the balance of probabilities, had occurred. There are obvious differences between the Force's investigation and this Commission's full merits review. Despite the Force's initial refusal to provide certain documents: See Steven Probst and Commissioner of Police [2009] NSWIRComm 114, the applicant now has had all of the material he had complained about not receiving, he has had a full and comprehensive opportunity to put, and respond to, any material and evidence before the Commission. He has had the benefit of a rigorous and thorough legal defence team. 340 That being said, I return to the earlier question I posed. In answering that question, I am able to comfortably find, on the balance of probabilities, that where the evidence of the applicant differs to that of Ms Keran's, it is Ms Keran's version of events which is to be preferred. In other words, I do not believe that Ms Keran was untruthful in her evidence before the Commission. Nor did she seek to exaggerate her evidence to cast the applicant in an unfavourable light. All of what she described has a sincere 'ring of truth' about it. Indeed, Ms Keran made a number of admissions against her interests which are completely understandable and plausible, given the circumstances she was experiencing. In my view, Ms Keran's admission of lying to her doctors served to enhance her credibility, rather than detract from it. 341 Curiously, Mr Docking invited me to consider two quite contrary propositions - firstly, on the one hand, he said that Ms Keran should not be believed because she was a liar. Yet, on the other hand, he queried why she would lie to her doctors knowing how important it was, as a medical student, not to. It cannot be both propositions. In any event, I accept Ms Keran's evidence that she had lied to her doctors because the applicant was pressuring her to go to a doctor so as to be prescribed with antidepressants and then have the doctor write a letter saying her evidence was unreliable. The timing is pertinent. Her visits to the doctors were shortly after the applicant's suspension; he had held out a false hope of a reconciliation; he had told her that he missed her and he appeared remorseful. It is little wonder that with this emotional blackmail, and her professed continued love for the applicant and her fears for his career, that she would succumb to his pressure, if it only meant lying to her doctors. This explanation makes so much sense as to hardly warrant a hint of scepticism. 342 By contrast, while the applicant's explanations may have been plausible in light of the defence he sought to create around Ms Keran's alleged mental condition, he accepted not a skerrick of responsibility for his own actions, and made not a single admission. He blamed Ms Keran for his predicament and sought to cast her in the worst possible light. Mr Docking emphasised that Supt Commins had conceded that the applicant's version of events in all five allegations, were not implausible. That may be so, but that is really stating the wrong proposition. The real question is whose version of events is more plausible? Any explanation might be seen to be completely plausible when viewed in isolation. However, when balanced against a more plausible explanation, it will be seen to be unacceptable and be rejected. Moreover, I found the applicant's strident and determined adherence to his version of events to be quite unnerving. Anyone who did not support him, or who criticised him through the investigation and since, was treated with disdain and unfairly criticised. In some cases, the applicant made serious allegations against senior officers. In my opinion, these were little more than poor diversionary attempts to deflect attention and focus from the serious allegations made against him. 343 The reasons why I have formed a favourable view as to Ms Keran's credibility are as follows: There is an entirely believable consistency in Ms Keran's version of events told not twice, or three times, but eight times. I consider it highly improbable that she had made up a version of events of so many detailed incidents over a long period of time and be able to recall them, seemingly without notes or prompting. Firstly, Ms Keran told two Queensland police officers, SC Stephen and Constable Urquhart contemporaneously of the incident in Queensland on 16 February 2007, as to what had occurred. The officers observed damage to property and recorded Ms Keran's version of events.

Secondly, Ms Keran's postings on the 'Broken Sprits' website, under the alias of 'Liza', from 21 February to 20 June 2007, were entirely consistent with her other evidence. In my view, Ms Keran's only motive in posting these messages was to share her experiences and seek support from other victims of domestic violence. She could have had no way of knowing that her identity would be revealed or that other persons, outside of the website users, would ultimately become aware of the postings. In other words, she had nothing to gain by anonymously posting such personal and embarrassing details, in circumstances where it might have been open to her to make more exaggerated claims. Her motives were completely understandable, considering the pressure she was under from the applicant to change her story and the court case she would have had to endure.

Thirdly, Ms Keran told SC Boulton on 31 May 2007, of the abuse she had suffered from the applicant, of his aggressive behaviour and how she felt betrayed by the applicant's friends, who knew how he had treated her.

Fourthly, Ms Keran gave detailed evidence of the incidents to the Queensland Magistrates Court and was tested under cross-examination. Notwithstanding the applicant gave no evidence in those proceedings, the Magistrate accepted that there had been an incident of domestic violence (on 16 February 2007). He also said he accepted and was impressed by Ms Keran's evidence.

Fifthly, Ms Keran was interviewed by Insp Blanchard and SC Boulton on 7 June 2007. The Commission has viewed the CCTV footage of the ERISP interview (and that of the applicant) a number of times. Ms Keran presented as a slightly nervous, but articulate person who was able to recall in meticulous detail each of the alleged incidents, without resorting to any notes or prompting. She made concessions, and even accepted part blame for the breakdown in the relationship. I reject the suggestion that the interview was tainted by Insp Blanchard asking her leading questions. To the extent he may have done so, it was so insignificant as to have had no bearing on the general impression that Ms Keran was giving a truthful, open and detailed account of relevant incidents. I also reject the suggestion that Insp Blanchard and SC Boulton had 'coached' Ms Keran for two hours in the Gloria Jeans Coffee Shop, before the ERISP interview. Both Insp Blanchard and SC Boulton categorically deny such a suggestion. When Ms Keran turned up at the Tweed Heads Police Station she appeared nervous and unwilling to help police. In my view, it was a perfectly reasonable course of action to allow Ms Keran some time to relax with the two officers and have them explain to her the process involved in a calm and unthreatening environment. In any event, I could find nothing in my viewing of Ms Keran's ERISP interview to suggest that she had been 'coached' about the incidents. For example, one might reasonably expect elements of hesitancy, confusion or uncertainty if she was telling the Police a bundle of lies that she had only just been told to tell.

Sixthly, in my judgment, Ms Keran's clinical notes corroborate her version of events, in a general sense, because her doctors record that she had told Dr Neal that there were issues of domestic violence in her relationship, but that she could not remember specifics, other than the night he (the applicant) punched a hole in the wall of the Queensland flat. I agree with Mr Seck that this statement represents an unequivocal and unqualified acknowledgement that domestic violence had occurred. Moreover, Dr Neal later records that Ms Keran told her that her recollections were different to that of her partner. Importantly, Ms Keran never denied the incidents had occurred, only that she could not trust her recollections. It is obvious that Ms Keran never imagined her private clinical records would be subpoenaed and become evidence in these proceedings. There could be no other basis for her telling her doctors what had occurred, except to construct a foundation for claiming that her recollections were suspect. This was precisely what the applicant wanted to secure from her.

Seventhly, Ms Keran provided a detailed statement to this Commission dated 8 July 2009, which is entirely consistent with her earlier version of events given to the Queensland Police, her postings on the 'Broken Spirits' website, her evidence to the Queensland Magistrates Court and what she described in her ERISP interview.

Eighthly, Ms Keran gave detailed evidence before the Commission and was subject to a rigorous cross-examination by Counsel for the applicant. Her recollections, after so many months, were entirely consistent with all of her previous statements and her evidence to the Queensland Magistrates Court. Ms Keran presented as a highly intelligent, well educated (which she is) articulate individual who was prepared to make concessions against her interests. I have no hesitation in concluding that she was a witness of credit and her testimony is to be believed. 344 Again, Mr Docking used two contradictory arguments to question Ms Keran's recall of the incidents. He speculated that if (as the Force had submitted) Ms Keran was bright, thoughtful and articulate, then this explained why she could give detailed and so-called unprompted evidence to the Queensland Magistrates Court and during her ERISP interview. However, the general thrust of his case was that Ms Keran was so mentally unwell that her evidence must be unreliable. Surely, she cannot be both according to Mr Docking's alternative propositions. 345 I make this further observation. I acknowledge the self-evident proposition postulated by Counsel, that merely repeating something does not make it true, if it was untrue to begin with. However, in my view, that proposition cannot possibly be applied to the present circumstances. Ms Keran's recollections went to many specific details about a number of incidents. It would seem incredibly unlikely that a person, particularly one allegedly suffering a mental illness, would not slip up or be hesitant on numerous occasions in giving consistent versions of events eight times, including under oath to two tribunals. Either Ms Keran has an unprecedented photographic memory of meticulous detail and had memorised numerous concocted stories or she was telling the truth from the very beginning. I consider the latter to be the case.

Even so, Mr Docking insisted that there were inconsistencies in Ms Keran's version of events, such as to impugn her overall evidence, although he could only point to four relatively innocuous ones:

1. Whether the applicant had actually phoned the police in the Queensland incident or had pretended to. In my opinion, it was entirely understandable that Ms Keran believed the applicant had phoned the police and yelled out 'stop hitting me, Liz, stop hitting me' . After all, this was exactly what the applicant wanted her to believe he was doing. The fact that he did not and she was proven wrong by the police records does not discredit Ms Keran in any way. Rather, I consider it demonstrates very clearly the lengths to which the applicant would go to intimidate her by tricking her into believing he had rung the police to falsely claim she had been the aggressor. It was a clever ploy, indicative of the plan the applicant was engaged in of pressuring her and bending her to his will.

2. Whether Ms Keran had hit the floor in the bedroom or near the gym equipment in the 'head bleeding' incident. In my view, this inconsistency is understandable in the context of what had occurred during the incident and was hardly a matter of grave significance in the overall context of the evidence.

3 and 4. Whether Ms Keran was prescribed Cypramil by Griffith University or another medical centre and whether Ms Keran was diagnosed with depression in 2003 or 1997. Neither of these two inconsistencies assist the applicant's case and do not amount to anything of significance such as to justify a view that Ms Keran was lying about the totality of her experiences. These are very minor considering the context of the surrounding circumstances, at the time, the effluxion of time and the general acknowledgement that no person is likely to have a perfect recall of such precise details. In any event, I consider that these inconsistencies do not detract from the overall conclusion I have that Ms Keran was a witness who told the truth to the best of her ability and recollection. Hearsay evidence 346 Mr Docking criticised the reliance by the Force on hearsay evidence of the Queensland Police Officers. He called into aid the principles discussed in Wells v Commissioner of Police; Amalgamated Metal Workers' Union v Electricity Commission (NSW) (1989) 28 IR 155; New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation and Australian Postal Commission v Hayes. 347 In my view, the circumstances in the cases relied upon are distinguishable to the circumstances disclosed in this case. The evidence of the Queensland police officers was not hearsay upon hearsay. It was not from persons directly involved in the decision making process or involved at all. It involved persons who were present immediately after the incident, and it involved the taking of statements by police officers in the ordinary course of their duties and who were ultimately praised by the Magistrate for their actions. Nevertheless, the most significant difference to the circumstances of this case was that the Force did not rely solely, or even primarily, on the Queensland police statements. As I have said, there was an abundance of other corroborating evidence to demonstrate Ms Keran's version of events of the Queensland incident was completely believable. The claims of Ms Keran's medical condition 348 The thrust of the applicant's case was that Ms Keran had a history of mental illness. Not only was this the cause of her being the aggressor on all occasions, but demonstrated any evidence she gave about the incidents must be suspect and unreliable. After all, it was said, had she not admitted to her medical condition and sought to distance herself from the allegations because of it (through the Ryan and Bosscher letter). 349 In my view, Ms Keran's alleged medical condition was a complete 'red herring' in this case and was the only cover the applicant could come up with to falsely claim his evidence should be preferred over Ms Keran's evidence. 350 That Ms Keran had a medical condition, possibly related to depression, and with the indicia of a loss of self esteem, tearfulness and mild anxiety, is as far as the evidence before me can take it. I agree with Ms Seck that the only evidence that can be relied upon is the evidence of Ms Keran's treating doctors. Nowhere does this evidence suggest that Ms Keran's medical condition could lead to violent or aggressive behaviour, let alone have as a symptom a propensity to fantasize, exaggerate, confuse or lie about traumatic experiences. While obviously professing no medical expertise, I think I am entitled to take judicial notice of my own observations of Ms Keran in the witness box and during her ERISP interview. In this regard, I could detect nothing unusual in Ms Keran's behaviour, demeanour, speech or body language which might lead to a lay person's conclusion that she suffered from a psychological or mental problem. On the contrary, her clarity of thought and her articulate exposition of the incidents, would lead a lay observer to the very opposite conclusion. That said, I do not find the reliance on textbook definitions which describe typical or common symptoms of medical conditions to be particularly helpful in diagnosing or explaining an individual's behaviour. A fortori, in hotly contested legal proceedings where the credibility of a crucial witness is called into question by allegations of that person's mental condition. In such cases, the proper approach is to adduce expert medical evidence in order to establish the appropriate clinical link between an individual's known condition and prescribed medications and the individual's alleged errant behaviour. 351 In this respect, I find Prof Morris' clinical notes of 20 August 2007, compelling evidence that Ms Keran was not suffering from a serious mental disorder. He noted that Ms Keran was: "tearful, distressed, depressed and mild anxiety, not spychotic, not suicidal/homicidal, cognition intact, insight preserved"

352 Moreover, and significantly, Prof Morris refused to certify Ms Keran was mentally unwell when he was asked to do so.

The 'Ryan and Bosscher letter' 353 There was considerable reliance placed by the applicant on a letter dated 28 June 2007, sent by Ryan and Bosscher (Solictors) acting for Ms Keran to Insp Blanchard. The key paragraphs relied upon are the final two which state: You are aware that our client has had an extensive, documented history of depression. Given the events of the preceding months, it should not be surprising that our client was distressed and vulnerable and the information she has provided regarding her personal relationship with Constable Steven Probst is only a subjective impression. She has since sought further medical intervention regarding her depression and now feels that the information given regarding Constable Probst is an extremely distorted reflection, if not entirely baseless. Given our client's uncertainty regarding the accuracy of her recollections of her relationship with Constable Steven Probst, it would be unreasonable to use this information in any investigation. Please do not attempt to contact our client personally again regarding any further assistance. 354 Given that I have accepted the credibility of Ms Keran and believe her version of the incidents, I also conclude in respect to this letter that the applicant was both pressuring her to write a statement saying her earlier evidence was untrue and was pressuring her to obtain a medical opinion which would cast doubt on the reliability of her evidence. I accept the applicant encouraged her to see his own solicitor and when she contacted him, Mr Gatonby, quite properly referred her to another firm. I also accept that Mr Moloney from Ryan and Bosscher, who wrote the letter on Ms Keran's behalf, had more than likely believed her story, but accepted her instructions to write a letter querying her own mental state and therefore her reliability as a witness. Significantly, this letter does not constitute a recanting of her allegations; nor does it constitute an admission of having earlier lied to the Police or the Queensland Magistrates Court. 355 In my judgement, this letter and its significance to the applicant's case, must be seen in the contextual matrix at the time. Firstly, Ms Keran had travelled to Wagga Wagga to see the applicant. He had appeared calm and was attentive to her. He had held out a false hope of reconciliation with her or she believed he did. Secondly, Ms Keran was plainly worried that changing her evidence might put herself at risk of prosecution. Thirdly, Ms Keran was entitled to feel that she had co-operated sufficiently with the Police and wanted no further contact with them. Fourthly, she was emotionally motivated by a desire not to cause further problems for the applicant. Fifthly, given the applicant's repeated insistence that she was wrong, she may have genuinely started to question her own recollections of the incidents. This snapshot must also be viewed in the context of the applicant knowing the only way to get the Police to stop the investigation was have Ms Keran recant her evidence and/or become unwilling to co-operate. In my opinion, the applicant was playing a cruel, selfish and expedient hoax on Ms Keran and she fell for it - but not completely. As I earlier said, she ultimately did not admit to lying about matters which she knew to be true. Nevertheless, her reactions were entirely understandable, given the pressure she was under and her misplaced love for the applicant. As a consequence, I find this letter to be of no assistance to the applicant's case. Profiles of Domestic Violence Perpetrators and Victims 356 Another matter I rely on to support my preference for Ms Keran's evidence are the documents tendered in evidence which provide a general profile and describe common characteristics of the perpetrators and the victims of domestic violence. Even so, the Commission is entitled to take judicial notice of the following features of relationships which involve domestic violence.

Invariably, domestic violence will take place behind closed doors;

It will be common for alcohol to be a factor in incidents involving domestic violence;

Often the couple will appear in public to be involved in a perfectly loving, normal and unaffected relationship;

The victim is often subject to psychological abuse and emotional blackmail. For reasons of love or deep attachment to the perpetrator, economic reasons or because of children in the relationship, the victim will 'stick it out' in the hope that things will improve;

The victim may make up excuses for the observations made by others that the victim does not appear to be acting normally or may have physical injuries exhibited; and

Victims will often not want the perpetrator to be arrested knowing that a court case might follow, fearing retribution, embarrassment or shame. Consequently, the victim will become reluctant to co-operate with Police or give formal evidence to a Court. This is why domestic violence proceedings can be initiated, irrespective of the reluctance or refusal of the victim to give evidence. 357 In my view, the applicant fitted neatly into the profile of a domestic violence perpetrator as described in the Police Domestic Violence Workshop Papers. For example: · offenders may be very good at deception; · many do not exhibit their violent behaviour to anyone other than their victims; · some offenders possess winning personalities and are well liked by their peers; · offenders may appear to be the epitome of respectability; · offenders may try to convince police that the victim is mentally unstable or contributing to the incident; · offenders tend to be critical or jealous of their partners; and · offenders will deny that the abuse has occurred. 358 It cannot be passed without noting that the consumption of alcohol was a precursor in at least four of the five incidents in which actual physical violence was involved. The applicant himself described his condition in three of the five incidents as being 'moderately intoxicated'. 359 It also seems to me that Ms Keran's behaviour fitted many of the characteristics of a victim as described in the Workshop Paper: Low self esteem - the victim may begin to believe that they are responsible for what is happening to them, they may even believe that they deserve it. Increasing social isolation - they may feel too ashamed to go out unless absolutely necessary and may impose self-exile in order to not be discovered. Living in constant fear - the unpredictability of when the explosion will take place will put the victim on edge. Constant rule changes will mean the victim is unsure of what till trigger off the next violent attack. Mental and physical exhaustion - this occurs due to living within a stressful environment and being repeatedly victimised. This impacts on the victim's mental and physical capacity to be able to take steps to end the violence. Higher rate of health problems - victims of domestic violence generally present to health professionals with a higher rate of somatic complaints including headaches, stomach pains, fatigue and general unwellness. Perceived passive acceptance - they become attuned to learned helplessness as a result of feeling that there is very little that they can do. This can lead to high levels of anxiety and depression. The task of re-organising their life and that of the children becomes an overwhelming one. They wait for the perpetrator to change. Sometimes, the victims are making plans and taking small steps to leave the relationship. Leaving a violent relationship is a process and not an event, it may take years to get the courage and resources to end the violence. Very compliant - low self-esteem, impacts on a persons capacity to make effective choices about their circumstances. Often victims will agree with support workers and police, unfortunately, they may also be agreeing with the perpetrator or unsupportive family. An example may be where police ask the victim to attend court in order to apply for an ADVO, the victim will say yes they'll attend. After the police leave, the perpetrator may contact the victim and ask them to not go to court and possibly make threats. The victim may also say yes to this. Problem solving capacities depleted - strategies provided to the victim which may seem logical or straightforward to the police officer, can seem unobtainable to the victim. Psychological stress placed on the victim can result in a reduced capacity to solve problems and make plans. 360 That the applicant was guilty of the allegations against him was further reinforced in my mind, by the following uncontested evidence of the applicant:

1. Hostile and argumentative attitude displayed in his ERISP interview with Insp Blanchard; 2. Contempt towards Sgt Holmes who he had not even known prior to the Investigation;

3. Extraordinary allegations of corruption against Insp Blanchard;

4. Threats to take legal action against Insp Blanchard, SC Boulton and the entire Albury CMT for perverting the course of justice;

5. Admitted mistrust of senior managers, including Insp Blanchard, Supt Commins, Supt Cooper and Supt Crandell and others; and

6. Hostility towards, and complaints about, the Queensland police officers who arrested him. They were merely carrying out their duties. The Queensland Magistrate actually commended them for their role in the incident. 361 The abovementioned matters plainly demonstrate to me that the applicant would say, or do, almost anything, no matter how absurd or outrageous to deflect attention from his own behaviour and conduct. His intention was to 'muddy' the investigation in such a way as to convince both Ms Keran and anyone else prepared to listen, that it was really he who was the victim. In my view, this is the classic diversionary tactic of a person who is the perpetrator of a pattern of domestic violence. 362 To complete the picture of the applicant, even his closest friends and witnesses called to give character evidence on his behalf, could not 'gild the lily' sufficiently for any other conclusion from their evidence, that the applicant was arrogant, blunt and proud and that other persons could take offence at his attitude. 363 On the other hand, Ms Keran, in my assessment, had no motive such as jealousy or revenge in co-operating with the Police in these proceedings. Given that she has moved on with her life, has chosen to become a doctor, and has not spoken to the applicant in almost two years, there was, in fact, a powerful disincentive for her not to co-operate with Police or participate in further stressful and humiliating public court proceedings. This observation merely fortifies my conclusion that Ms Keran had only wanted to ensure that her version of events was put, in circumstances where the applicant had used as his defence that she had either lied about the events, or was so mentally unstable that her recollection was unreliable. Allegations of procedural unfairness - 'beyond power' 364 There was considerable emphasis in the applicant's case on allegations of procedural unfairness and claims that the order of Supt Commins was 'beyond power' because of procedural irregularities and/or his failure to comply with the strict procedural requirements identified in s 173(5) of the Act. 365 I would wish to make such general observations as to these matters before dealing with the major procedural criticisms advanced by Counsel for the applicant. Before doing so, I would particularly address Mr Docking's primary submission that the s 173 order of Supt Commins was 'beyond power' by adopting the reasoning of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority at paras [91] to [93]: [91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; 65 there is not even a ranking of relevant factors or categories to give guidance on the issue. [92] Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice , Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale , Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not. [93] In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". 366 In my opinion, the failures in the process identified by Mr Docking under s 173(5) of the Act fall squarely within the latter proposition identified by the High Court and do not render the order as 'beyond power'. 367 The question of whether a failure to follow mandatory legislative procedures invalidates the ultimate decision was recently considered by the High Court in Minister for Immigration and Citizenship v Szizo (2009) 259 ALR 405. At par 36 the High Court said: [36] Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the tribunal's jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case. 368 It seems to me that the plain statutory purpose of the strict procedural steps in s 173 have, at their foundation, the fundamental premise of ensuring natural justice to an accused police officer such as the officer knows exactly what is being alleged against him or her and by whom, and is given a fair and proper opportunity to defend him or herself against such allegations. Put another way, whether the principles of natural justice have been applied to the given facts and circumstances. In my view, the Commission is bound to give careful consideration in any merit review under s 174 of the Act, to whether these underlying principles have been denied to the accused officer in such a way, or to such an extent, that a substantial injustice is visited upon the accused officer. 369 Obviously, paying mere 'lip service' to the procedural requirements under s 173 of the Act, would likely result in any consequent order being found to be 'beyond power'. On the other hand, a word by word excruciating dissection of each and every step in the process will often deflect from the real task the Commission is required to undertake in its fresh and independent merits review. It would be an unusual result indeed if such strict and prescriptive procedural processes, as found in the Police Act, were not free of minor and insignificant irregularities. Indeed, it seems to me that the more prescriptive the process, the more likely there will be an opportunity for criticism if each and every step if not rigorously complied with. However there is not a requirement for strict compliance with the procedural stipulations. In this regard, I would adopt the words of the Full Bench in Little v Commissioner of Police (No 2), where it was said, albeit in the context of a s 181D removal case: "The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act , laid down various procedural stipulations associated with the removal of a police officer which, in our view, require, if not strict compliance then at least "a careful and punctilious regard to correct procedure", and are of significant importance to the review of a decision made under s181D of the Police Service Act ." 370 That said, I would wish to add that strict adherence to procedural form is not an end unto itself. When strict adherence to form triumphs over the substantive merits of the case, and results in the overall interests of justice not being served, then the Commission would be very cautious in granting relief to an applicant whose case would not otherwise succeed. This must be a fortori in s 174 reviews where there is a statutory mandate on the Commission to have regard to, and balance the public interest against the interests of the applicant. These are the difficulties confronting the Commission in this case. For there is no doubt that Mr Docking effectively and comprehensively established (primarily through the oral testimony of Supt Commins) that not all of the statutory requirements of s 173 of the Act were complied with. He also identified other deficiencies and faults in the process which would ordinarily be characterised as issues of procedural unfairness. However, that surely cannot be the end of the matter. Moreover, as was said by Boland J (as he then was) in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161, I consider in this case 'that much of the complaint about procedural unfairness was at the periphery'. Even so, there is a real risk that in immersing oneself in the minutia of the process, that the fundamental issue of whether the applicant was guilty of serious misconduct will be completely overshadowed or lost altogether. Faced with the findings I have made on the incidents involving the applicant and Ms Keran, it would, in my judgement, be tantamount to giving the Commission's imprimatur to a grave injustice, and clearly contrary to the public interest, if I was to revoke Supt Commins' order. 371 Indeed, on one view of it, the applicant should consider himself very fortunate that, firstly, the Commissioner did not dismiss him under s 181D of the Act and secondly, more severe disciplinary action was not imposed under s 173 of the Act. As a consequence of the current order, the applicant loses no salary, no increment or seniority. I agree with Mr Seck, given the seriousness of his misconduct, that the proposed transfer to Wollongong must be seen at the lower end of the scale. Moreover, it seems to me, at least arguable that the Commission, after a full and fresh merits review, has the power under s 177(b) of the Act, to revoke the order and to actually increase the sanction by making another order (or adding to the existing order). As such a course was not advanced by the Force and I have not given the parties an opportunity to address the Commission on such an outcome, I take this matter no further. I raise it merely to highlight that, as a matter of substance, the order could not be considered, in my opinion, to be harsh, unreasonable or unjust. I shall come back to these matters later. Principles of Condonation and Waiver 372 In my view, the doctrine of condonation and waiver cannot possibly be applicable to the circumstances of this case. The authorities referred to me can be of no assistance: See Clarke and Metropolitan Meat Industry Board [1967] AR (NSW) 16; ATOF 25 IR 235 and Burge v NSW BHP Steel Pty Ltd. This is not a case where the employer has simply ignored the misconduct, allowed the employment relationship to continue and then relied on the misconduct to justify the employee's later dismissal. I do not see how it could possibly be argued that the Force ignored the applicant's misconduct. On the contrary, the position of the Force was exactly the opposite. The Force expressly said that the misconduct did not justify removal, but warranted a less severe disciplinary penalty. The Commissioner expressly referred the matter back to the IRP for further management action. In my view, he would have hardly done so if he believed the Panel would do nothing or take the matter no further. Importantly, the Commissioner did not say that he disagreed with the findings of the Investigator or that he preferred the applicant's version of events over Ms Keran's. It is to draw a very long bow indeed to translate the conclusion of the chain of events in the s 181D process, as a waiver or condonation of the applicant's conduct. It would be wrong to characterise the Commissioner's referral in that way. Moreover, it would be fanciful to submit that the New South Wales Police would waive or condone misconduct of the kind Sgt Holmes had found to have occurred and to take no action at all in respect to it. Such a result would, in my view, be unthinkable in terms of the public's expectation of the Force's handling of its officers who breach the Code of Conduct and Ethics and act in complete disregard for the community's expectations of a police officer's off duty conduct. I reject Mr Docking's submissions as to condonation and waiver. Use of Template Documents 373 The omission in the s 173 order of the reference to Div 5 Pt 8A of the Act and the inclusion of the word 'integrity' in the order, plainly demonstrate the problems which may arise by the use of template documents. Mr Docking vigorously criticised what he described as a 'cut and paste' exercise which, he said, plainly demonstrated Supt Commins did not bring his own independent decision making to the making of the order. In my view, Mr Docking's strident criticism does not advance the applicant's case very far. The use of template documents, per se, is not inherently bad, nor is it uncommon, particularly if there is a need to ensure consistency across an agency as to disciplinary outcomes. Moreover, the s 181D and s 173 processes were undertaken about the same subject matter. 374 The crucial question really is whether, in the crafting of the wording in the order, the applicant was denied procedural fairness to such an extent as to invalidate the process leading to the making of the order. There was no evidence that he had been denied procedural fairness by the process undertaken by the Force in preparing the documentation. In addition, I agree with Mr Seck that the reference to Div 5 Pt 8A of the Act is to 'sign post' the involvement of outside bodies in the investigation, such as the Independent Commission Against Corruption (ICAC), the DPP and the PIC. As it comes at the very end of the investigation in the form of the actual order, I do not apprehend how its omission could be said to have denied the applicant procedural fairness and the order was therefore, 'beyond power'. 375 Similarly, I fail to see how there can be criticism or suspicion about both the s 181D notice and the s 173 notice and order being in the same form and containing the same wording. After all, they were hardly secret documents; they are the pivotal documents required to be given to the applicant. Given that they both arose from the same allegations of misconduct, arising from the same facts and circumstances, it is little wonder that they are identical. Indeed, if they had not conveyed the same material, the applicant might well have had cause for alarm. In addition, I find this criticism rather curious given the applicant himself relied on his s 181D response in his s 173 response. In other words, he had the same response for both. In my opinion, a critical document will not be invalid merely because it employs a verbal formula used by the employer in similar or identical circumstances. Unless a legal error is disclosed in the documents, they are not invalid merely because they contain the same or similar recitations. No such legal error was demonstrated in this case. The notices and order contain no procedural irregularity which invalidated the process and made the order 'beyond power'. 376 Mr Docking strongly criticised the fact, readily and candidly conceded by Supt Commins, that he had not personally prepared the s 181D notice and s 173 notice and order. Mr Docking said that persons, unnamed and unknown, had prepared the documents. He concluded that Supt Commins could not therefore have brought an independent mind to his decision making process. In my opinion, there was nothing improper or faulty in Supt Commins' consideration of the material he had before him, nor could Supt Commins be accused of delegating his independent decision making process by signing the notice and order which had been prepared by someone else. The process adopted here is akin to any disciplinary process found in the public sector, where Departmental Heads make final decisions based on recommendations and material, adduced, collated and crafted by others. It would be absurd to suggest that a final decision maker, at the level of the Police Commissioner's delegate, would personally craft and outline in his/her own words, the terms of a disciplinary letter or notice. In any event, it was hardly surprising that it was the Force's Process Unit which prepared the documentation. It was perfectly understandable that Supt Commins did not know who had personally done so. The Process Unit is the Force's central co-ordinating body responsible for preparing notifications, nominations and submissions in disciplinary matters. Its existence and role was hardly a secret. It is mentioned in the Force's Management Action Procedures as performing the very functions Mr Docking sought to discredit: · Process notifications · Process nominations · Prepare 181D submissions · Co-ordinate and facilitate the administrative functions of the Internal Review Panel · Maintain corporate records in relation to the process 377 Mr Docking dismissed the Management Action Procedures as being a draft only which had never been promulgated throughout the Force generally. I reject this submission. On any plain reading of the Procedures, it will be readily apparent that the Procedures are those which have been in force and applied for some time in s 181D and s 173 matters. Moreover, correspondence dated 20 September 2002, from the Police Association, confirms the Procedures were agreed to by the Association and were the subject of ongoing review. 378 Mr Docking criticised the decision maker for what he described as his adoption of a mere 'formula' to his decision making process. I do not agree. True it is, he relied on the documents prepared by the Process Unit, arising in turn from the Investigator's Report, as the basis for the making of the order. However, the order contained very specific and precise allegations and conclusions he agreed with after considering a wide range of other material, including the applicant's response. The order did not contain standard paragraphs, but merely standard headings. This falls a long way short of the adoption of a formula of conformity with the law as envisaged in Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 266: A different delegate rejected the claims of each respondent in separate reasons for decision. Each set of reasons followed a broadly similar form. This was, at least partly, due to the practice of addressing common claims with "standard paragraphs" which had been prepared for the use of delegates. This practice was the subject of extensive argument before Wilcox J. His Honour rejected submissions that the use of such standard paragraphs indicated that the delegates "failed to give proper, genuine and realistic consideration to the merits of each application". Wilcox J's conclusion on this point was not the subject of consideration by the Full Court and the matter was not pressed in this court. A statement of reasons for a decision reviewable under the ADJR Act is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions. If the formula is used to guide the steps in making the decision and reveals no legal error, the use of the formula will not invalidate the decision. On the other hand, if a decision-maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity. In such a case, the use of the formula may even be evidence of an actionable abuse of power by the decision-maker. As the significance of the formulae employed by the respective delegates of the minister in making their decisions in the present cases was not canvassed before us, we say no more about it. 379 As to the inclusion of the word 'integrity' in the order, I do not consider that much turns on the criticism by Mr Docking of this criterion being included, notwithstanding that it does not appear in the statutory framework in s 173(4). I do not see how it could be doubted that unsatisfactory performance and, most particularly, misconduct (the two specific statutory criteria) will, if proven, invariably impact on the integrity of the police officer concerned. I regard the criticism of the word's inclusion in the order, as a distinction without a difference. 380 In addition, the allegations must be viewed in the context of the specific findings made in the order in respect to the applicant's breaches of the Force's Code of Conduct and Ethics which state: An employee of NSW Police must comply with the law whether on or off duty. NSW Police is responsible for upholding the law. Unlawful and/or criminal conduct by employees of NSW Police is incompatible with that role and also likely to bring NSW Police into disrepute. All employees of NSW Police are expected to comply with the law at all times. 381 A breach of these requirements squarely falls within the scope of an officer's integrity. I cannot imagine how they might be said to be distinct to, or set apart from, the officer's integrity. It was hardly an irrelevant consideration taken into account by Supt Commins. It follows, that I do not consider that Supt Commins misdirected himself, or that he was misdirected by others, by the inclusion of the word 'integrity' in the order. In any event, as was said in Buck v Bavone: It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously.

382 I do not consider that Supt Commins acted in bad faith or acted arbitrarily or capriciously. On the contrary, in my opinion, Supt Commins was perfectly entitled to come to the view he did in light of all of the evidence and material he had before him. He described it as a 'holistic' assessment. It was an assessment open to him considering the mountain of evidence and material he was required to consider. It was an approach which I would endorse and have applied myself to all of the evidence and material presented in these proceedings. 383 Having made these findings, I nevertheless wish to send a strong message to those who are involved in the preparation of notices and orders under the Act, whether it be the Processing Unit or law firms retained by the Force. There should at least be careful attention given to the wording of the statute when it is to be referrable to the wording in the relevant notices and orders. Had this simple task been done with due diligence, these proceedings would have been shortened and the Commission would not have been required to rule on the question. The Force's Bias and Predetermined Outcomes 384 The applicant claimed he was denied procedural fairness in that the IRP had recommended a disciplinary transfer and Supt Commins told him on 27 November 2008 of the recommendation and that he agreed with it before the issuance of the notice (5 January 2009) and before the final decision maker had an opportunity to consider his response. Mr Docking relied on my decision in Police Association of New South Wales (on behalf of Gilmour) v Commissioner of Police in this respect. In my view, the circumstances giving rise to my conclusions in Police Association of New South Wales (on behalf of Gilmour) v Commissioner of Police can be distinguished to those pertaining here. The final decision maker in that case candidly admitted early in the investigation, and prior to a meeting of the CMT and IRP, that the only outcome she wanted was for Mr Gilmour to be out of the Police Dog Unit. The CMT actually recommended a different and lesser penalty than the Superintendent actually determined i.e. that Mr Gilmour be transferred out of the Dog Unit. 385 In the present case, the IRP had recommended a disciplinary transfer. Supt Commins had told the applicant of the recommendation and that he agreed with it. He also told him that he should 'keep positive'. The applicant told him he would appeal. In my view, far from denying the applicant procedural fairness, Supt Commins had in fact alerted the applicant to the possible outcome and gave him a significant period of opportunity to gather his defence, until his reply of 2 February 2009. The fact that Supt Commins candidly admitted to agreeing to the recommendation at that time, cannot be elevated to the accusation of him having adopting a predetermined and closed view of the matter. It would have been an entirely different matter if he had said or inferred that he did not care what the applicant put in his defence, he would only accept an outcome that saw the applicant transferred out of the Albury LAC. 386 In my view, there was no evidence that Supt Commins did not bring an open and independent mind to his decision making process. In this regard, I refer to what was said in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at paras [71] and [72]: ..The precise content of those adjectives, in the context, is not clear. Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

[72] The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson . The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected. 387 There was also criticism of the Force for not having trained Supt Commins in how to deal with s 173 matters and him not being aware of Industrial Relations Commission precedents. In my view, this criticism was disingenuous and uncalled for. Supt Commins is a very senior and experienced police officer. His task was relatively straight forward. It is one which experienced police officers would be frequently making in the course of their duties - to determine, on the balance of probabilities, who was telling the truth. This task did not require specialist training, nor do I think recourse to Industrial Relations Commission precedent would be of much assistance. Supt Commins' decision came to be decided on its own particular facts and circumstances. In addition, there was no evidence that members of the IRP did not take into account past Industrial Relations Commission decisions. Mr Docking merely advanced the argument that they could not have done so - presumably, because they did not support his arguments in support of the applicant's case. For the reasons already expressed, I do not consider that Ms Keran's medical condition was a relevant factor in these proceedings and I do not consider it a basis for rejecting her version of events. Consequently, I do not consider that the criticism of Supt Commins for not knowing, and not taking into account Ms Keran's alleged medical condition and medications, to be an error in his decision making process. 388 During the course of argument, there was much debate about the meaning of the expression 'take into consideration' and as Mr Docking submitted, Supt Commins had plainly failed to engage in an active intellectual process, but rather had relied on others to decide the matter for him. While I readily acknowledge the authorities referred to me by Mr Docking highlight that a decision maker must engage in an active intellectual process, there is no authority which gives guidance as to what such a process must, or should entail. A recent Court of Appeal judgement considered the meaning of (a decision maker giving) 'proper, genuine and realistic consideration' to a relevant matter. In Anderson v Director General of the Department of Environment and Climate Change (2008) 163 LGERA 400, Tobias JA (with whom Spigleman CJ and Macfarlan JJA agreed) said at paras [57] to [59]: [57] I agree with Basten JA in Belmorgan that there is a need to apply with caution the epithets or formulations that have been judicially expounded with respect to the requirement in administrative law for the decision-maker to consider a relevant matter. Other formulations adopted in the past require consideration "in a real and conscientious way" ( Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405 at 420 ; 24 ALD 657 at 664 per Einfeld J); "in any real sense" ( Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 391-2 ; 55 FLR 180 at 184 ; 4 ALD 237 at 240-1 per Toohey J); or that the consideration be "adequately addressed" ( LEK v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 45 FCR 418 at 434-5 ; 117 ALR 455 at 472 per Wilcox J); and see Bruce v Cole (1998) 45 NSWLR 163 at 186 per Spigelman CJ. It is obvious that their use is fraught with the danger of a slide into impermissible merits review. I would therefore prefer that they be avoided. [58] Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v FCT (2002) 123 FCR 499 ; 50 ATR 253 ; [2002] FCA 845 at [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not, I believe, assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely, "consider" and which, as the Full Federal Court observed in Anthonypillai , invoke "language of indefinite and subjective application". [59] Furthermore, the formulation that the decision-maker must evince an understanding of the relevant matter may require no more than that he or she must not misdirect himself or herself as to the meaning of the particular matter required to be taken into consideration in the context of the relevant statute. 389 Obviously, each case must be decided on its own particular facts and circumstances, but it appears to me to be somewhat of an abstract exercise to enter the mind of the decision maker to judge the full extent of an 'active intellectual process'. True it is, that it might be readily apparent if the decision maker said he spent five minutes reading and evaluating thousands of pages of relevant documents, or if certain relevant documents were not available and therefore could not be considered. In those circumstances, an active intellectual process could not possibly have occurred. But, that is not the case here. Supt Commins said he had read and considered all of the relevant material. There was no evidence that he did not. 390 Mr Docking put that it could comfortably be found that Supt Commins did not give proper consideration to the Investigator's Reports and the applicant's responses. Supt Commins specifically told the applicant on 11 February 2009: After having read and viewed the contents of the C@ts.i Investigations relating to this matter as well as your response provided through Solicitors Oates & Smith dated 3 February 2009, I believe there is sufficient evidence contained within the investigations to support the Reviewable Action continuing to Order. I have therefore recommended this date that that action commences. 391 Given the Superintendent's experience, I can find no basis to conclude that he did not undertake an active intellectual process of taking into consideration all of the relevant material in making his decision. In any event, it must be observed that the phrase 'take into consideration' in s 173(5)(c) only relates to the applicant's written submission in reply to the notice. It would seem Mr Docking's real attention was focussed on whether Supt Commins had given 'reasons for making the order' (s 173(7)(c)). I consider unreservedly that he did. 392 In addition, there is no sound evidentiary basis for concluding that Supt Commins did not properly consider all that he had before him because documents were not annotated, highlighted or post-it noted. Not everyone highlights documents in the manner insisted on by Mr Docking. This criticism took his argument nowhere. Further, I do not consider the process was impugned because Supt Commins could not recall each and every piece of information in the Investigator's Report and the c@tsi files. He could hardly be expected to do so. The material was detailed and voluminous. It was unfair to criticise Supt Commins' recall in circumstances where it had been many months since he had considered the vast amount of material he had to consider at the relevant times. 393 There was also a specific claim of bias against Insp Blanchard and a general claim of the Force having had a predetermined view of the outcome. In my opinion, neither of these criticism sits at all comfortably with the fact that Insp Blanchard's initial investigation did not find the allegations against the applicant sustained (largely because Ms Keran would no co-operate). This was obviously before Ms Keran's evidence in the Queensland Magistrates Court materially changed the course of the investigation. It seems to me that if Insp Blanchard and the Force generally were 'out to get the applicant' and had a predetermined view, they would have moved 'heaven and earth' to find a way of doing so well before the order of 2 March 2009. 394 These proceedings are in the nature of a full merits review of the order made under s 173 of the Act. Even accepting (which I do not) that Supt Commins had not taken into account all relevant matters and had not properly weighed them, for and against the applicant's interests, (and notwithstanding Supt Commins said he adopted a 'holistic' approach to the allegations), the reality remains that this Commission has undertaken a full merits review of the order, including hearing and weighing the sworn testimony of the direct participants in the alleged incidents. Respectfully, I find myself in agreement with what Haylen J said in Hosemans v NSW Police Service (2003) 136 IR 376 at paras [176] to [177]:

176 The applicant has now had the opportunity of canvassing all of these matters, in detail, in this review conducted before the Commission. The Commission was taken to numerous parts of the transcript and the statements given by various witnesses to the police in order to explore, in detail, the extent and consequences of each point. In a sense, this flaw in the process adopted by the Commissioner, has been addressed and rectified on review. Although I do not need to decide the issue, this may be one of the cases where, even if there was a denial of procedural fairness, the existence of a full right of review on fact and law to the Commission would remedy that defect (see R v Marks; ex parte Australian Building Construction Employees Builders Labourers Federation (1981) 147 CLR 471; Twist v Randwick Municipal Council (1976) 136 CLR 106; Calvin v Carr [1980] AC 574). Indeed, not every failure to follow fair procedure will lead to the conclusion that the dismissal was harsh, unreasonable or unjust ( Bigg v New South Wales Police Service (No 2) (1998) 80 IR at 460; Newton (1999) 87 IR at 77). 177 There will be cases, of course, where a denial of procedural fairness will be so central to the proper and fair disposition of the matter that the defect will be regarded as fundamental - this is not such a case. Indeed, a similar situation was faced by Staunton J in Dangerfield v Commissioner of Police [2003] NSWIRComm 96. In that case, in deciding to remove the police officer, the Commissioner did not view a video of the officer's action, the transcript of the Local Court proceedings, the Magistrate's findings or a number of photographs which formed part of the evidence in the Local Court. Her Honour concluded at paragraph [82] that all of the material now having been viewed, she could not agree with the submission that the officer had been denied procedural fairness in a way that significantly impacted upon the decision ultimately taken by the Commissioner and the reasons relied upon by him to remove the officer. Her Honour, having read all the material, decided that it would not alter the outcome - a consideration of the material would not alter the decision that was made by the Commissioner. I find myself in a similar position in this case. 395 It was irrelevant that Supt Commins had not read the advice from Victoria Police and the DPP. He was not required to consider whether there was a reasonable prospect of a criminal conviction for assault and neither do I. My decision will similarly be predicated on whether, on the balance of probabilities, the applicant or Ms Keran is to be believed. This case, as was said from the outset, rests squarely on 'word against word' findings in circumstances where two direct witnesses have given diametrically opposed versions of the incidents. There were no eye witnesses to any of the incidents and dancing around the periphery of the evidence by suggesting that Ms Keran displayed no visible injuries and had demonstrated a propensity to lie (which was completely explicable (see par 341 above) does not alter the findings I have made. The applicant has had every opportunity to present all the material and documents he wished to put in his defence. Nevertheless, as I said earlier, I have not been convinced that the applicant was telling the truth to the Investigator, his superiors, his family, his friends or this Commission. 396 In any event, it seems to me that it would be utterly impractical and unreliable for the decision maker to identify each and every piece of evidence and information, for and against the applicant's interests, and provide reasons why certain weight was given to particular evidence over other evidence. That was clearly the role of the Investigator. One could well imagine if the notice and order was to require such detailed commentary and findings it would end up as long, or even longer than the Investigator's Report which in this case was some 31 pages with 54 annexures in two folders. The Investigator's Report would be superfluous if the final decision maker was required to undertake his role. That could surely not be the intention of the legislature. 397 In my view, Mr Docking's submission misunderstands the role of the final decision maker. His role is to balance all of the relevant information and evidence, including the officer's response, and determine both the outcome of the allegations and, if sustained, any penalty to be imposed. It is unrealistic and unfair to expect the decision maker to give the same level of attention and detail to the giving of reasons as a judicial officer. The following remarks from the Queensland Court of Appeal in Cypressvale Pty Ltd v Retail Shop Lease Tribunal are apposite:

The calibre, legal training and experience of members of the judiciary raise expectations that reasons they give for their decisions will attain a high level of sophistication. The same would not always be true of decisions of persons whose primary qualification for decision-making consists of specialist knowledge or experience rather than ability to produce reasons conforming to accepted judicial tradition. Reasons that would not be considered adequate if given by a judge may nevertheless suffice for some other decision-makers not chosen for their task because of their resemblance to the judiciary. In the end, the question whether reasons are "adequate" falls to be considered in the context afforded by the nature of the question which has to be decided and other factors, including the functions, talents and attributes of the tribunal members or the individual in whom the duty of deciding questions of that kind has been vested.

... However, even adopting the principles to be applied to the reasons of administrative decision-makers, the High Court of Australia stated in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 that the reasons should be given a "beneficial construction". It explained the basis for this approach (omitting footnotes): 30. When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic . In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (23). The Court continued (24): "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". 31. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. 398 Supt Commins' function is not a judicial one, but an administrative function in the context of the specific statutory instructions in the Act. Moreover, these are not appeal proceedings where issues of errors of finding, or law, are to be considered. Rather, these proceedings entitle an aggrieved officer to have a disciplinary decision reviewed based on a fresh and independent review, including the admission of new evidence: See Hosemans v Commissioner of Police (2004) 138 IR 159. Consequently, reliance on a long list of authorities in the context of the duty of a judicial officer to give full and proper reasons is not helpful to the applicant's case. 399 To suggest that the final decision maker undertake what, is in effect a second investigation or a judicial review, (as Mr Docking submitted in the 24 stated failings of Supt Commins) is to require the decision maker to do far more than what is envisaged in the statutory command. It could not have been the statutory intention. In any event, the statutory command is expressed as giving 'reasons for making the order', not reasons for the findings of misconduct or reasons why certain evidence was preferred over other evidence in a 'word against word' case. I concur with Mr Seck that the written statement accompanying the order is to inform the applicant why the order was made and for the officer to understand why the order was made. It would only be if the order left some room for doubt which did not permit the officer to appropriately respond, would the wording of the order be open to challenge or criticism. In my view, the applicant could have been in no doubt why the order had been made in this case and what he was required to respond to in his reply. In this respect I refer to what Boland J (as he then was) said in Hosemans v NSW Police (No 3) at par [179]: 179 The Statement of Reasons lacked structure and precision. Nevertheless, I am satisfied that the Statement captured the essential reasons underpinning the Commissioner's decision to remove Mr Hosemans and was sufficiently comprehensible that Mr Hosemans was able to understand what those reasons were and was able to, and did, mount a coherent and comprehensive challenge to them. 400 I have no doubt the statement captured the essential reasons underpinning the order and were sufficiently comprehensible for the applicant to mount a coherent and comprehensive challenge to them, which he did. 401 There was also some criticism that Supt Commins did not independently interview witnesses favourable to the applicant, particularly Mr Bonfield and Ms McHale. Again, this is the role of the Investigator. Even so, Mr Bonfield was not an independent witness. He said he did not hear all of the argument between Ms Keran and the applicant, could not determine who was responsible and had left before certain events had occurred. Re-interviewing Mr Bonfield in these circumstances was unlikely to have changed the position. It is up to the final decision maker to be satisfied that he has sufficient evidence and information available to him or her in order to make a proper decision. He or she will obviously make forensic decisions about the course of the Investigation along the way. In any event, none of the witnesses, who Mr Docking said supported the applicant's version of events, were actual witnesses to the incidents. Moreover, they were friends and family. I'll say more about that shortly. Finally, it seems to me that the criticism of Supt Commins' approach to his task, is really more about the applicant not being happy with the outcome or the weight given to certain evidence which would have lead, in his view, to a different outcome. That is the applicant's personal view, but is no more than that. It cannot possibly be grounds for challenging the order as being 'beyond power'.

Failure to Produce Documents 402 In my opinion, the applicant has failed to demonstrate why, or how, certain documents which were not originally produced would have affected or altered the final decision. As I have said, the DPP and Victoria Police letters are irrelevant. There was nothing the applicant could point to in any of the documents which were later produced, which he would not have been aware of or had already responded to. The failure to produce certain documents is itself not unfair, unless it can be shown to have prejudiced the applicant's position or denied him fair or due process. I refer to par [128] of Mahoney and Commissioner of Police, in this respect: 128 Mr Docking successfully established that a number of documents relevant to the Commissioner's order were only made available to the applicant four days before the arbitration in annexures to Supt Wookey's statement. Mr Docking 's submissions on this point are well made. On its face, s174(5) of the Act was not complied with. However, in my opinion this deficiency was not decisive to a finding of whether the applicant was denied due and fair process. It is, however, one of the matters I consider relevant to the ultimate determination of this case. 403 In addition, the proposition that the applicant was initially denied access to certain documents in the Investigator's Report and the c@tsi files, and ipso facto he was denied procedural fairness is not a proposition able to be sustained. Something more must be demonstrated. I also rely on what Boland J (as he then was) said in Hosemans v NSW Police (No 3) at paras [153] to [155], concerning the wording of s 181E which is relevantly the same as s 174(5): 153 Section 181E of the Police Act provides: Except to the extent to which the regulations otherwise provide, 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, as referred to in section 181D (1). 154 Section 181E requires 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". That is, after deciding that he does not have confidence in an applicant's suitability to continue as a police officer, the Commissioner is required to make available to an applicant the documents and materials on which he relied in coming to that decision. That has to be taken to mean that the Commissioner is required to make available all of the documents and material he, personally, relied on and all of the documents and material relied upon by those to whom the Commissioner delegated the function under s 181E. 155 There is, however, nothing in the statute that required the Commissioner to make available documents and materials relied on by him (or his delegate) to the applicant prior to arriving at his decision. This is clear from the wording of s 181E and the context in which s 181E is to be found, namely, "Division 1C - Review of Commissioner's decision under Division 1B in Part 9 of the Police Act ." Moreover, s 181D(3)(a), which is to be found in Division 1B of Part 9 of the Act, provides that the Commissioner, before making an order under the section 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. There is no indication that the Commissioner is required to provide to the officer, at this stage, all of the material relied upon in coming to a view that the Commissioner has lost confidence in the officer. This is not inconsistent with the rules of natural justice. Nonetheless, I note in this case the documents and material relied upon by the Commissioner were contained in the Commissioner's Confidence Submissions, which was provided to the applicant at the same time as the Notice under s 181D was served on him.

404 The applicant's obsession with insisting on the Force's strict compliance with procedure, sits in contradiction to his own failings as to what was required of him. For example, when he was arrested in Queensland he was obliged to report it immediately to New South Wales Police. He did not do so. When he was served with the application for a domestic violence order, he again failed to advise New South Wales Police in accordance with his obligation to do so under the Act.

Character references and work record 405 Much weight was placed by the applicant on the evidence of his character references. Most of these were from good friends of the applicant or his ex-girlfriends. Given these relationships, I would hardly expect their references to be anything but positive (even noting some of their reservations about the applicant's demeanour and strong will). In balancing these references, and considering none of the witnesses actually witnessed the incidents of alleged misconduct, I am unable to conclude that they assist the applicant's case such as to prove Ms Keran was wrong or to mitigate his behaviour. I note that the applicant only selectively showed his character witnesses the allegations as outlined in the order. None of them were made aware of Ms Keran's evidence in particular, or of any of the vast amount of supporting documentation and evidence which was available to the Investigator and Supt Commins. Consequently, having been given only the bare bones of the allegations and in face of the applicant's unequivocal denials, it was hardly surprising they sprang to the applicant's defence. Accordingly, their forensic weight in these proceedings must be very limited. I adopt what was said in Toshack v Commissioner of Police [2009] NSWIRComm 31, at paras [73] to [75]: 73 The caveat, of course, is that whether character evidence is a material consideration in a consideration of whether the dismissal was harsh, unreasonable or unjust, will depend on the facts of each case. In the present case, we are dealing with the very serious misconduct of a police officer telling lies that misled a court. The character evidence comes from police officers, including very senior officers, who encountered the appellant after the events that led to his removal and when he had been transferred to Armidale. The evidence was that over the six months or so that the other officers had come into contact with the appellant they perceived him to be "hard working", "capable", "great people skills", "learned from his mistake", "professional", "attempting to re-build his career" and as having "a lot to offer". It should be borne in mind that Watson J in Metropolitan Meat Industry Board identified as a relevant factor "past good conduct", although there may be cases where subsequent conduct may be relevant, particularly as to the evaluation of an appropriate remedy. 74 Undoubtedly, the officers who gave evidence supporting the appellant were completely honest in their assessment of him. However, the appellant was obviously under notice of the disciplinary inquiry into his conduct when he transferred to the New England Local Area Command in July 2007. It is to be expected that the appellant would conduct himself in such a manner as to avoid any adverse comment given that his career could be in jeopardy. 75 Given the seriousness of the appellant's misconduct, the importance of integrity in the Police Force and the particular significance that is to be attached to the reasons for the Commissioner's loss of confidence, we consider his Honour erred as a matter of fact and law in allowing himself to be influenced to the extent he did in having regard to the character evidence. His Honour could have only properly reached the conclusion that, in the light of that evidence the dismissal was harsh, if his Honour had accepted that the applicant was rehabilitated and that there was, therefore, an insufficient basis upon which the Commissioner could maintain his loss of confidence accordingly. No such conclusion was properly available on the evidence in this case. Evidence of fellow officers' perceptions of the appellant over a relatively short space of time where the appellant was most likely on his best behaviour is not sufficiently strong to counteract what was evidence of misconduct of the most serious kind and which was found by the trial judge to justify removal. 406 SC Nyholm's evidence was most instructive - indicative of nothing more than a loyal friend. Amazingly, he said he would continue to support the applicant, even if the allegations are found to be proven. 407 As to the evidence of the applicant's father, I consider it to be of little weight. That a father would support his son, bearing in mind what his son had told him about alleged police corruption and bias, was perfectly understandable. However, it could not be seen, in any objective sense, to be of any value. I note my comments in Ian Ueckert and Australian Water Technologies Pty Ltd [2000] NSWIRComm 123, in this respect at par [329]: 329 In my experience, the evidence of a parent in favour of his/her progeny must be treated with some caution. The likelihood that a parent will bring an objective assessment to such evidence is not great. I referred to this difficulty in Myers and Police Service of New South Wales , where at p148 I said: It is very rare for a parent to have a completely unbiased and objective view of his/her progeny. The potential for bias and subjectivity is even more likely when the behaviour, attitude or performance of a son or daughter is under scrutiny or challenge by persons in authority. While Mrs Myers' defence of her son is admirable and natural, it does not, in my opinion, prove a very reliable source of objective assistance in this case. I find her evidence to be coloured by a mother's natural protective instincts and bias. Consequently, such evidence is of little practical value.

It is predictable, as night follows day, that a father would defend his son against serious sexual allegations which the son vigorously and unrelentingly asserts are untrue. There is however, a point which must be reached where absolute and dogged confidence in a son's denials, must fall away in the face of overwhelming and incontrovertible evidence to the contrary. Mr Ueckert was unable, or unwilling, to recognise that his son's denials were baseless and his defence, pure fantasy. 408 As to Mr Probst's evidence of Ms Keran's normal and happy demeanour the day after the Melbourne incident, I find this behaviour to be entirely consistent with her other evidence of her covering up, or excusing the applicant's behaviour, because of the emotional control he had over her at the time. 409 I accept that Supt Commins gave evidence that he had not taken account of the applicant's good work record. There is no doubt that this is a requirement to be balanced against all the other relevant factors: See Laird v Commissioner of Police; Mahoney and Commissioner of Police and Saliba and Commissioner of Police. On one view, the allegations, having been found to be proven by the Superintendent, were of such seriousness that his alleged good work record would not have 'tipped' the balance the other way. While the Superintendent may not have called up the applicant's work history directly, there is no doubt that he had before him the character references of fellow officers, SC Nyholm, Constable Thompson, SC Morris and Constable Baker and the applicant's own assertions of his good work record, his competency, honesty, diligence and positive feedback from supervisors and his peers. Supt Commins said he took the applicant's responses into account, which must logically include the above. There was no evidence that Supt Commins did not do so. The Commission has also had regard to these matters and was also appraised of the applicant's complaint history. I consider that whatever comfort the applicant might draw from his character references (which I have dealt with separately) and his own assertions, the only possible conclusion I can come to, in balancing these matters against the public interest, is that they are far outweighed by the seriousness of the allegations found to be sustained. Harshness of transfer - balancing the applicant's interests against the public interest 410 In balancing the applicant's interests against the public interest, as required by s 175(4) of the Act, it seems to me that the applicant's interests in this matter are relatively narrow. He will not lose any increment, rank, seniority or salary by the transfer to Wollongong. He does not have to uproot his family; he is a single young man. 411 In any event, the applicant's interests are far outweighed by the seriousness of his misconduct - a matter I consider to be absolutely relevant to the public interest. 412 There does not appear to be any doubt that having found the applicant was guilty of the misconduct alleged against him, that it would be incomprehensible not to conclude that the public interest far outweighs the applicant's interests in determining this matter. I have no hesitation in so finding and note in this respect the following passage from a Full Bench decision, albeit under s 181D, in Johnston v Commissioner of Police [2007] NSWIRComm 293, where at par [41] it was said: 41 There is a significant overlap between the matters that might be relevant to the public interest under s 181F(3) (which, as we have noted, includes the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1)), and whether reinstatement of a police officer is practicable. For instance, conduct that calls into question an applicant's credibility and exposes him to attack at any time during which he may be required to give evidence under oath in court, is clearly relevant to whether reinstatement is practicable. It is equally relevant to a consideration regarding the maintenance of the integrity of the Police Force. 413 Moreover, I do not consider the punishment of transfer to Wollongong to be too harsh given the seriousness of the applicant's misconduct, his failure to accept any responsibility for his actions, his stated difficulties with the Albury Management Team and the requirements of the Force to maintain the highest standards of propriety and integrity of its officers. 414 I do not accept the applicant's plea that his mother's medical condition is an important consideration which should weigh heavily in his favour. It seems rather a hollow plea given that it does not appear to have been a factor in his own thinking considering he spent long periods of time away from Albury in recent years. In any event, the applicant could readily visit his parents and friends on the same basis as he did when he was living in Melbourne. In my view, the distance from Wollongong to Albury is not so onerous as to completely isolate him from his friends and parents in Albury. I also note that he applicant's career goal is to become a police prosecutor. This would require training in Sydney. 415 Moreover, like all police officers, the applicant joined the Force on the understanding he could be transferred to any location, at any time, for operational reasons. It is a reality of policing life. The fact that he secured appointment to his home town was very fortunate, but he knew this could not be guaranteed indefinitely. 416 In my assessment, it would be most unhealthy, highly problematic and contrary to good policing practice for the applicant to remain stationed in Albury or anywhere in the Albury LAC. (He remains there at present pending the outcome of these proceedings.) This would be so even if I had found in the applicant's favour and revoked the order of Supt Commins. Given the applicant's unconcealed contempt and distrust for senior management in Albury, I consider it would not be in the public interest for the employment relationship to be restored. Officer's of the Police Force are required to maintain the highest level of trust and confidence in each other, and respect for their supervisors, given their difficult policing duties and the trust and confidence expected of them by the community. In my opinion, the applicant in this case displayed an utterly unreasonable and irrational view of most of the senior management. It would be fair to say, that he imagined or unfairly constructed allegations of bias, and even corruption, against anyone in authority who was not supportive of him or who had a reasonable basis to criticise him. In short, everyone else was wrong, and he was right. A few examples serve to illustrate his misguided and irrational views of senior management. He accused Insp Blanchard of the very serious charge of corruption, having made similar allegations against him in 2003. He threatened legal action against him and SC Boulton and the entire Albury CMT for perverting the course of justice in respect to the investigation, by the allegation of 'coaching' Ms Keran with her evidence - a claim I have firmly rejected (see par 343). He said he mistrusted Supt Cooper and Supt Crandell and other unnamed officers and he called Insp Wadsworth a 'liar'. 417 It is no answer to the applicant's attitude towards senior management, that he has little or no contact with Supt Commins and Insp Blanchard. The applicant plainly told others, (his father and Ms Keran) including a fellow officer (SC Nyholm) of his allegations. In my judgement, this would have the potential to disrupt the morale and discipline within the Command and undermine and authority of the senior management leading to further problems within the Command. It cannot be considered a practical or realistic outcome, nor would it be in the public interest. 418 In addition, it appears to me to be incredible that, given the toxic view the applicant has for his supervisors, that a claim for reinstatement to the Albury LAC would be in anyone's interest, let alone the public interest and even the applicant's best interests. It is to be noted that the applicant's interests and the public interest may not always be mutually exclusive. In this respect, I refer to what his Honour Walton J said in Van Huisstede v Commissioner of Police at par [217]: 217 However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. 419 In some respects it might be said that the applicant's interests will in fact be served if he removes himself from the unpleasantness of his relationship with senior officers in Albury. I consider it would be in his interests to have a fresh start with new management in order for him to demonstrate that he can conduct himself appropriately and continue his career in the New South Wales Police Force. 420 In view of my findings in this matter, it is unnecessary for me to consider the applicant's submissions in respect to claims for compensation and costs, although I would note that s 181 of the Industrial Relations Act, dealing with costs, is specifically excluded from the Police Act by the provision of s 179.

421 In respect to these review proceedings under s 174 of the Act, the Industrial Relations Commission finds that:

1. On the balance of probabilities, where there is conflict of evidence, the evidence of Ms Keran is to be preferred to the evidence of the applicant. 2. Consequently, Ms Keran's version of events in respect to the incidents on 30 January 2005, 13 February 2005, 23 August 2006, November 2006 and 16 February 2007, is to be preferred over the version of events deposed to by the applicant. 3. On the balance of probabilities, the five allegations identified in the s 173 order made by Supt Commins on 5 January 2009, are sustained. 4. The applicant's conduct breached the New South Wales Police Force's Code of Conduct and Ethics and the New South Wales Police Standards of Professional Conduct. 5. Any irregularities in the procedural requirements under s 173(5) of the Act are so insignificant as to be far outweighed by the seriousness of the applicant's misconduct. 6. The Police investigation of the allegations against the applicant was fair, exhaustive and thorough. 7. At all relevant times, the applicant was aware of the allegations against him and was given every opportunity to defend himself against the allegations. 8. There were no issues of procedural unfairness of such significance as to outweigh the seriousness of the applicant's misconduct.

9. The public interest outweighs the applicant's interests in this matter. 10. The s 173 order made by Supt Commins on 5 February 2009, was not 'beyond power' and was neither 'harsh, unreasonable or unjust' within the meaning of s 174 of the Act. 11. This application for review under s 174 of the Act is dismissed, pursuant to s 177(1)(d) of the Act.

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