63 Constable Dickson recalled New Years Eve 2005 and being at the hotel with Ms Horan. During the night, Ms Horan came to him in the beer garden looking angry and upset and told him that Mr Sewell tried to undo her blouse top. Ms Horan was wearing a blouse that did up around the back of the neck. In oral evidence, he said that Ms Horan was wearing a halter top blouse that wrapped around the neck and came down and wrapped around the body but tied off at the back of the neck. He could not recall whether Ms Horan was wearing a bra but knowing the type of top she was wearing he felt that a bra would not suit because it would be fairly obvious underneath the blouse.
Ms Café
64 Ms Donna Café was employed as an administrative assistant at the Coonamble office of the Probation and Parole Service when Mr Sewell attended on 24 January 2006. Together with Acting District Manager, Isabel McDermott, Marissa Callaghan and Pamela Robinson she sat with Mr Sewell having afternoon tea. While this was occurring, Ms Cafe heard Mr Sewell telling jokes that were crude and about sexual topics. She tried not to listen to the jokes and found them to be "totally inappropriate". She had discussed Mr Sewell's inappropriate behaviour with Ms Callaghan a few days after the incident. In oral evidence, Ms Cafe could not remember the jokes that were being told or the words that were used but she thought offensive language had been used. She stayed with the group for approximately ten minutes or more and then left.
Ms Robinson
65 Ms Pamela Robinson was a Sessional Supervisor with the Probation and Parole Service in Coonamble and was at that office on 24 January 2006 when Mr Sewell attended. In a statement given to police she recalled that while sitting having afternoon tea in a group, Mr Sewell spoke to all of the women and was asking questions of Ms McDermott and writing in his book and at the same time continuing a conversation with everybody in the room. He was speaking about an incident in a cell and he also spoke of masturbation. She said that she was surprised that he would speak like that in the company of the women and she immediately removed herself from the conversation and proceeded to perform other work. While Mr Sewell was talking to the women, she answered the telephone and therefore was not present during all of the time he was speaking to them. She spoke to all the women in the office after Mr Sewell left and they related to her their feelings about the content of Mr Sewell's conversation. In oral evidence, Ms Robinson agreed that, while taking the statements, Mr Sewell was telling "war stories" and jokes although she could not recall in particular what she found to be offensive. She could not remember the detail of what was said about an incident in a cell and about masturbation. When she had finished her tea she left the tea area because she had work to do rather than because anything that was being said by Mr Sewell. Ms Robinson, in the course of her duties, had telephone contact with Mr Sewell after this incident and had no concerns about future contact with Mr Sewell. She said he could have told Ms McDermott that she was so offended by what was said by Mr Sewell that she had to leave the room but she had no real recollection of saying that. The fact was that she left the room because she had other work to do.
Ms Callaghan
66 Ms Marissa Callaghan had given a statement to the police and gave oral evidence in the proceedings before the Commission. She recalled being involved in a discussion in the Probation and Parole office in Coonamble in January 2006 where she was employed as an administrative assistant. The people in the office had sat down at a table to have coffee while being spoken to by Mr Sewell and they were having a general chat although Mr Sewell seemed to dominate the conversation with stories and jokes. When she joined the conversation it seemed to predominately revolve around sex or violence. She recalled Mr Sewell telling jokes about a group of men at a convent who were in the final stages of becoming priests and being exposed to a pretty, naked woman while having a bell around their "old fellars". She did not recall the exact punch line but that was the context and she thought it was inappropriate, especially as Mr Sewell did not know anything about the religious beliefs of the women. Mr Sewell had also mentioned that at some stage in his life, when dating his wife, he had been on a rugby trip and had become quite drunk on rum. On returning home to his wife and family and when he was asked if he had been hurt during the game, he had dropped his pants in front of all of them, "who knows for what reason". Ms Callaghan said that he obviously thought it was quite funny. Mr Sewell had also mentioned stories how he had assaulted someone for no reason although she could not remember how that story came about. They were talking about criminals or indigenous people and she thought he was talking about Wellington. She did not specifically remember what it was he was talking about but he appeared to be trying to impress the women.
67 When speaking to Ms Callaghan about the incident they had reported to the Police, Mr Sewell had asked her for her address and telephone number. She was quite uncomfortable with Mr Sewell at this point and asked him why he wanted those details although she did give him her address and mobile telephone number after Ms McDermott explained that he needed the details to make the statement. Ms Callaghan said that there was "a bit of a chuckle" but Mr Sewell then said he could come around and visit her when her husband was away working and mentioned coming to see her at approximately 3.00 am. Ms Callaghan said she did not give any indication that coming to her house would be alright and her interpretation from his conversation was that he wanted to come to her house for something more than just a statement. She stated that even though most of the conversation involved Mr Sewell talking, the staff could do nothing more than laugh along with him as it was uncomfortable. She supposed that she laughed as well, as a way of dealing with the conversation, but it was just nervous laughing. He was not encouraged to continue. She noticed that Ms Robinson actually left the table while the others were making eye contact and rolling their eyes in disbelief while Mr Sewell was speaking to them. She said that, over the next few days, there was much discussion about Mr Sewell's conversation and the women could not believe the comments he was making while being there on a professional basis. Ms Callaghan had previously met Mr Sewell at a Christmas function in December after he had just commenced duties at Coonamble and on that occasion she felt he had an unusual sense of humour that made her feel uncomfortable.
68 In oral evidence, Ms Callaghan stated that she had refreshed her memory from her statement given to the police and that she basically relied on that statement for her memory of the events on the day in question. She had no independent memory of the details of the conversation with the others but they had discussed the inappropriateness of Mr Sewell's conversation. The reference to the rugby trip was something said by Mr Sewell and was not something that Ms McDermott had mentioned. She could not recall anything in more detail than was in her statement. She understood the story about the rugby game as Mr Sewell being intoxicated and dropping his pants completely in front of his family. She heard this story at the time in the office and did not recall discussing it with Ms McDermott. She rejected the suggestion that Mr Sewell did not speak of assaulting someone for no reason although she could not recall the details. She had no recollection of who was being assaulted but it appeared as if Mr Sewell was trying to impress them with his authority. She had given her statement to the police approximately five weeks after the event and although the matters were fresh in her mind, her memory was beginning to fade. She agreed that he appeared to be telling "war stories" but that, in her experience, did not happen a lot in conversations with police officers. She had spoken to a police officer about the event two weeks after it occurred but could not recall precisely what she had said. She had raised specifically what had been said to her by Mr Sewell about visiting her at home and had also raised his overall behaviour. Ms Callaghan said that in the office everyone had name badges and her name bade had her full name on it. Others in the office had a first initial and a surname but she did not think that anyone had only a first name on their name badge. She was not aware whether or not Ms McDermott's badge had her full name on it. There had been a discussion with co-workers about their reaction to Mr Sewell's conversation but that was more about their reaction to it rather than the content of his conversation. The women were all very surprised and disturbed by his behaviour because of its inappropriate nature.
Ms McDermott
69 Ms Isabel McDermott had given two statements to the police concerning Mr Sewell. On 29 December 2005 between 6.00 pm and 8.00 pm, she had been in the beer garden of the Commercial Hotel in Coonamble with a group of people who were predominantly off-duty police officers with their partners and friends. During the course of the evening a conversation commenced concerning perfume that had been started by Mr Sewell. There were approximately 12 people sitting at two tables. There was some general conversation about the smell of perfume and as Ms McDermott stood up and walked past Mr Sewell, he grabbed her by the upper right arm and pulled her around to face Mr Sewell. She was not initially aware of who had grabbed hold of her. Mr Sewell then said, "Perfume smells better on breasts". She pulled away and he let go. At the time she felt uncomfortable and was not sure of Mr Sewell's intention as she hardly knew him. At the time, she was wearing a singlet type top and three-quarter pants with the top being low cut. She stated that she had a large bust and was adamant that Mr Sewell's comment was directed at her. Mr Sewell had been drinking schooners of beer and he appeared to be moderately affected by alcohol. For the remainder of the night she avoided Mr Sewell because she did not want to put herself in that situation again with him. She did not appreciate the comment that he had made or the way in which he had grabbed her. Sergeant Horan, she believed, had seen the incident and approached her and asked her if she was alright. Ms McDermott said she did not want to make a big issue of the incident and left it at that, telling Sergeant Horan that she was alright.
70 In oral evidence, Ms McDermott denied saying during this conversation that she put perfume, "on my tits" and had pushed out her chest. There had been a discussion of perfume smelling differently on different people but no body parts were referred to in the conversation. She had made no reference to her "tits" but Mr Sewell had grabbed her by the arm and said, "Perfume smells better on breasts". She did not recall him saying, "You're right" and then commenting about perfume smelling better on breasts. Mr Sewell immediately let go when she pulled away. Mr Sewell was not simply catching her attention but pulled her around and put his face into her breasts. She did not laugh, she was disgusted and she did not know if anyone else laughed. In a further statement Ms McDermott, although she was offended by Mr Sewell's action in the hotel, stated that she did not wish the matter to go to court and preferred to have it dealt with internally by the police. She noted that, although he had grabbed her by the arm against her will, he had immediately let her go after she pulled away. Mr Sewell's behaviour may have been attributed to his sobriety and she remained concerned about the incident but she was more concerned about him attending her workplace and conducting himself as he had done in late January 2006.
71 On 24 January 2006, Ms McDermott was at work at the Probation and Parole Office in Coonamble and had reported an incident to the police. Mr Sewell had attended to obtain details of the matter and when he arrived they sat down to have a cup of coffee. Mr Sewell took out his notebook and commenced to ask Ms McDermott questions commencing with asking for her full name. As he asked this question he was looking at her name badge that was on the right side of her chest: he focused on the badge stating that he required the correct spelling and then kept looking at her breasts and then said, "If that one is named Isabel, what is the other?". Ms McDermott said she was dumbfounded at the comment and ignored it. She was then joined by her work colleagues, Ms Callaghan, Ms Cafe and Ms Robinson. In her oral evidence, Ms McDermott said that she did not misunderstand what Mr Sewell had said to her and she saw it as a sexual comment.
72 After being joined by her work colleagues, Mr Sewell commenced to tell sex-related jokes and Ms McDermott became quite offended and embarrassed by his behaviour. She noted that the jokes became so offensive that Ms Robinson left the room but Mr Sewell continued to tell disgusting jokes for approximately 20 minutes.
73 Ms McDermott then heard Mr Sewell speak to Ms Callaghan and after taking her name had said words to the effect that he knew where she worked and lived and that he could get her statement some other time. He went on to say words to the effect that he could come to her house anytime and Ms Callaghan said that she did not think her husband would appreciate that and that he worked with the Ambulance Service in Dubbo. Mr Sewell then said that he could come to see her when her husband was at work. Ms McDermott interpreted this conversation as being Mr Sewell making advance towards Ms Callaghan. At the time of this incident, Ms McDermott was acting District Manager. She could see that her staff were affected by the incident and told them that she would be making an official report about the matter once Sergeant Horan returned to work. She was aware that Sergeant Horan was on annual leave.
74 In her statement she expressed concern at the female staff of the Parole Service having to deal with Sergeant Sewell in the future. In oral evidence, Ms McDermott said that she had become uncomfortable when she saw Mr Sewell working at Walgett while she was there and that it was her duty roster to be there once per fortnight. She said she felt traumatised and intimated by him and asked not to be put in the position of having to be in contact with him. She denied that this was an exaggeration. Ms McDermott was cross-examined in relation to appearing bare breasted in a photograph in the Rebel bikers magazine. Ms McDermott said she had attended a fund raising event, which was a wet T-shirt event, with a number of friends and professional people to raise money for children with cancer. She was unaware at the time that the pictures would be published nor was she aware that the Rebels were regarded as an outlaw gang. The publication of the photograph had prompted an investigation by her employer.
75 After the production of certain departmental documents, Ms McDermott was recalled for further cross-examination. Ms McDermott conceded that, although in her earlier evidence she had said that the internal investigation by the Department of her participation in the biker gang day and the appearance of a photograph of her bare breasted in a biking magazine resulted in her being found not guilty of any offence, she had in fact been suspended for three months on pay while being interviewed and investigated. She accepted that documents from the Department showed that she had been found guilty of three counts of misconduct by the Assistant Commissioner for Corrective Services and had received a formal warning. She stated that was the only action that she was aware of taken against her arising from these matters. Ms McDermott also accepted that her position as acting local manager had been terminated and she had returned to her substantive position, although she did not know why that had occurred. When being interviewed by the Assistant Commissioner in relation to the disciplinary investigation, she had informed the Assistant Commissioner that she believed the informant in relation to this matter was a person against whom she had made allegations of sexual harassment and although she did not name Mr Sewell, that is the person she was to referring to in the interview.
Dr Benjamin and Dr Anderson
76 There was considerable medical evidence with the Commissioner of Police calling Dr Benjamin and Mr Sewell calling Dr Anderson, both consultant psychiatrists. By agreement between the parties, the doctors were asked to respond to written questions under six specific headings and were asked to confer prior to giving evidence about their responses to those questions and to discuss the basis of any differences in their views. Their oral evidence, by agreement with the parties, was given concurrently with each counsel able to examine both doctors consecutively in relation to particular issues.
77 Both doctors agreed that Mr Sewell suffered from a psychiatric condition but they disagreed as to the nature and cause of that condition. Dr Benjamin identified two psychological problems being a personality disorder and an alcohol abuse/dependence disorder. Dr Anderson found that the applicant suffered from an adjustment disorder with anxiety and depression caused by trauma associated with being charged with a number of serious criminal offences in 1999 while a police officer. That condition continued from 1999 until the present. Mr Sewell was being treated with psychotropic medication namely, Arapax. Dr Anderson stated that Mr Sewell's behaviour was adversely affected by the degree of alcohol consumption taken while on this medication.
78 Dr Anderson expressed the view that Mr Sewell's judgement was seriously impaired when he took alcohol: the decision to drink alcohol while on psychotropic medication was a sign of impaired judgement. Dr Benjamin identified a recurring pattern in Mr Sewell's life suggesting an underlying condition stretching back to his early life: there was a history of conflict with his parents, both as a child and as an adult, a conflict in his marriages and with his children. In relation to a possible adjustment disorder, Dr Benjamin stated that this condition was a self-limiting condition caused by the presence of a stressor and resolved itself when the stressor was removed. If the stressor for Mr Sewell was the 1999 criminal charges, they resolved when he was acquitted. Dr Anderson, however, believed that the humiliation and odium associated with being charged as a serving police officer remained after the acquittal and accounted for the continuing nature of the condition.
79 Dr Anderson saw the history of symptoms as being continuous and unrelated to alcohol. Both doctors agreed that the symptoms in the main were poor stability, mood control, poor anger control, irritability and poor communication. These symptoms were continuous. Dr Anderson thought that, at the time of the service of the s 181F Notice, Mr Sewell was not coping with his duties and ultimately became unfit for duty. Dr Benjamin, however, thought that Mr Sewell was fit for duty at all relevant times.
DELIBERATION
80 It is appropriate to initially deal briefly with the process of review under Pt 9, Division 1B and Division 1C of the Police Act. In view of the fact that the review process has been intermixed with a number of provisions dealing with unfair dismissals under the Industrial Relations Act 1996, in previous decisions of the Commission some attention has been paid to exactly what process is involved. In Brennan v Commission of Police [2007] NSWIRComm 229, an analysis of the process was conducted against a somewhat complex legislative background and determined that, while some residual questions might remain, it was appropriate to adopt the approach of the Full Bench in Little v The Commissioner of Police (No 2) (2002) 112 IR 212. In essence, that approach recognised that at all times the applicant bore the onus of demonstrating that the decision for removal was harsh, unreasonable or unjust. The requirement to examine the evidence to see whether the decision was harsh, unreasonable or unjust necessarily meant that, even if there was a basis in fact for the Commissioner to form a view as to the conduct of an officer, that did not necessarily mean the decision to terminate employment was not also capable of being characterised as harsh, unreasonable or unjust. Therefore, a review that only looked at the Commissioner's decision and whether it was justified did not meet the statutory requirements to consider the applicant's case: there 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. In this exercise, the reasons of the Commissioner were to be considered and that itself may involve a consideration of whether there was a basis in fact for the allegations levelled against an officer. The reasons for decision can only be properly understood in the context of the s 181D(3)(a) Notice, the Executive Summary and the Officer's Response upon which the Commissioner acted. In the present proceedings, it is sufficient to state that the approach adopted by the Full Bench in Little (No 2) will be applied in dealing with this particular application.
81 As indicated above, s 181F(2) of the Police Act provides that an applicant has, at all times, the burden of establishing that the removal from the Police Force was harsh, unreasonable or unjust. In Starr v Commissioner of Police (2001) NSWIRComm 226 it was confirmed that the relevant standard to be satisfied in relation to allegations of misconduct against employees was on the balance of probabilities: the standard had to be satisfied to a degree that was appropriate to the gravity of the facts to be proved. Thus, the approach in Briginshaw v Briginshaw (1938) 60 CLR 336 applied. That approach has since been taken up in s 140 of the Evidence Act 1995 which provides that, in civil proceedings, the court must find the case of a party proved if it is satisfied that the case has been proved to the balance of probabilities and without limiting the matters that the court may take into account in deciding whether it was so satisfied, the court was to take into account: the nature of the cause or action or defence; the nature of the subject matter of the proceedings; and, the gravity of the matters alleged.
The Commissioner's Reasons
82 In dealing with Mr Sewell's application, s 181F(1) of the Police Act requires the Commission to proceed by firstly considering the Commissioner's reasons for decision to remove the applicant from the Police Force: the reasons have been fully set out at paragraph [24]. Those reasons make it clear that the Commissioner was concerned that Mr Sewell had not always been frank and honest during the investigation of the allegations and had found all of the allegations (including those denied by Mr Sewell) made out on the evidence of the witnesses interviewed. The Commissioner acknowledged the fact of Mr Sewell's long service and apparently accepted his expressions of regret and his contrition and noted his undertaking to receive appropriate counselling and to no longer engage in drinking alcohol: however, primacy appeared to be given to the nature of his actions taken in relation to members of the general public and how they breached various well publicised Police Codes that bound Mr Sewell. Those matters can be acknowledged as raising serious issues of concern regarding Mr Sewell's behaviour and continued service as a police officer.
83 There are a number of aspects of the Commissioner's decision that remain unclear or uncertain. It is not clear, for example, to what extent the Commissioner took into account the circumstances resulting in Mr Sewell performing duties in Coonamble and how he had become isolated from his family on a day to day basis. In this connection, the Commissioner does not seem to have considered that the conduct occurred during a period of two months, with the evidence now before the Commission showing that prior to and following this period, Mr Sewell did not behave in a like manner and that, indeed, on his return to Coonamble after a period of approximately eight months' absence, was accepted back into the Police Force by those directly affected by his previous conduct and was also accepted by the Probation and Parole Service as constituting no likely risk of a repetition of offending behaviour when dealing with members of that Service. Those matters are of real significance and in a general sense indicate that, while exception and strong exception was taken to his behaviour over this two-month period, those directly involved have been prepared to again subject themselves to contact with Mr Sewell. They do not condone or excuse his offensive behaviour but that behaviour is apparently treated as an aberration and unlikely to arise again. These were important matters to be considered by the Commissioner in reaching his decision as were the indications that neither Ms Horan nor Ms McDermott wanted criminal proceedings brought and did not wish to give evidence in such proceedings if brought, but clearly wanted to bring these matters to the attention of the Police Service and to have Mr Sewell dealt with for his transgressions.
84 The question of appropriate penalty for these proved acts of misconduct were considered by two senior officers, Inspector Szaak and Superintendent Single. Inspector Szaak recommended that Mr Sewell be demoted to the rank of Senior Constable, be given a Commissioner's Warning Notice and placed on a Conduct Management Plan for a minimum of 12 months as well as being relocated out of the Castlereagh local area command. This penalty was to be imposed in relation to the three issues of indecent assault concerning Ms Horan. In relation to the incident involving Ms McDermott at the hotel and the issues arising at the office of the Probation and Parole Service, it was recommended that Mr Sewell be served with a Commissioner's Warning Notice, deferred from receiving pay increments for a period of 12 months and to enter into a Conduct Management Plan for a minimum of 12 months. Superintendent Single agreed with those recommendations having referred the matter to Inspector Szaak to investigate. The Superintendent was surprised that Mr Sewell had been dismissed believing his conduct was attributable more to stupidity than sexually predatory behaviour. The views of these two senior officers was of significance both as to the nature of the behaviour and as to an appropriate penalty. The Commissioner, it is readily accepted, was not bound by those recommendations but they were deserving of recognition in his reasons together with an explanation why the finding as to the nature of the misconduct was rejected (if indeed it was) and why the recommended penalty was inadequate and why the harshest penalty, that of dismissal, was appropriate. There is no indication in the Commissioner's Reasons that, in fact, these matters were considered.
85 In the Reasons for Decision, the Commissioner records and gives consideration to Mr Sewell's response and his apology for his behaviour and his promise not to repeat this unacceptable behaviour again and his regret for having conducted himself in this manner to the women involved. The Commissioner accepts that response as exhibiting contrition but then seems to have been influenced by the following matters:
(a) the behaviour reflected negatively on Mr Sewell's ability to conduct himself appropriately and in accordance with New South Wales Police Code of Conduct and Ethics;
(b) the Commissioner was of the opinion that his conduct and integrity had brought discredit to the Police Force;
(c) although giving consideration to the personal issues raised by Mr Sewell, the Commissioner also had to have regard to the public and the community expectations of police officers;
(d) Mr Sewell's conduct was not behaviour he expected of a non-commissioned officer and was behaviour that could not be sanctioned and was in breach of the Police Code;
and,
(e) overall, his conduct and integrity was viewed seriously by the Commissioner to the extent that he had lost confidence in Mr Sewell's suitability to remain a member of the Police Force.
86 Given that there was an acceptance of contrition exhibited by Mr Sewell and he had promised to undertake suitable counselling and had promised to stop drinking in circumstances where alcohol and his medication played a significant role in the majority of the incidents, the Commissioner does not explain why the combination of prior and recent unblemished behaviour, contrition, excessive alcohol mixed with prescribed medication and undertakings as to future conduct were rejected as being an inadequate response. There does not seem to be a rejection of the sincerity of Mr Sewell in offering these undertakings but there is no examination as to why the undertakings, and perhaps the penalties recommended by two senior officers, were not an adequate response. Every lapse of conduct and lack of integrity or breach of a Police Code does not automatically lead to circumstances where the appropriate response is removal from the Police Force. It was not a question of the behaviour being "sanctioned": but a recognition that the behaviour was at such a level of seriousness that removal was the appropriate and fair response by the Commissioner. A reading of the Commissioner's reasons does not suggest that this balancing exercise took place or to what extent, if any, it took place.
The Applicant's Case
87 In a nutshell, the applicant's case is that, in a career spanning some 22 years, this behaviour was something of an aberration that occurred over a period of two months and under the pressure of isolation from his family, falling into the company of heavy drinkers and consuming large amounts of alcohol in conjunction with medication that had an adverse effect on his appreciation of the nature of his conduct. A number of observations need to be made about those matters. It is clear from all of the material that Mr Sewell was less than frank during the course of the investigation and that there had developed some inconsistencies between answers given during that investigation and evidence given in the Commission. Mr Sewell did accept that some of the alleged acts did occur but then sought to put the best possible construction on those events, for example, not untying Ms Horan's halter neck blouse but rather merely tucking in a loose bra strap. In each case, the Commission accepts the evidence of those who had complained of Mr Sewell's behaviour and is unable to accept his evidence to the contrary. These matters are dealt with in the following pages.
88 It is to be noted that not all of Mr Sewell's conduct occurred while he was under the influence of alcohol or a combination of alcohol and his medication. Certainly the incident at the offices of the Probation and Parole Service fall into this category and there was no suggestion of any state of intoxication at the police station when Mr Sewell placed his hand on and pinched Ms Horan's buttock. The best that might be said of these occasions is that they represent irrational and unacceptable behaviour that was unrestrained by usual social norms and, on the evidence, appears to be aberrant behaviour for which Mr Sewell was not known prior to this brief two months of extraordinary behaviour in Coonamble nor was it evident on his return to Coonamble after an absence of eight months and it has not arisen since. The conversation with Ms Callaghan and the suggestion that he could attend at her home in the early hours of the morning while her husband was absent, while undoubtedly causing Ms Callaghan concern and apprehension, ultimately appears to be appropriately characterised as stupid and unthinking behaviour with no clear sexual intent, bearing in mind that it was said in the presence of Mrs McDermott. It is of some importance that suggestion was not followed up by any action or any other contact with Ms Callaghan that may have suggested a more serious intention on the part of Mr Sewell.
89 The applicant's case strongly contested the allegations that Mr Sewell denied or of which he said he had no recollection. Ms McDermott's credit was heavily attacked and all inconsistencies or divergences in the evidence were closely examined to suggest unreliability in the evidence against the applicant. In this context it was noted that Ms Horan and Ms McDermott had made the complaints about Mr Sewell's behaviour and that there was a close friendship between the two women. It was also noted that senior police officers had recognised that Mr Sewell had admitted the most serious of the offences but expressed concern that he was not frank in his responses about the other issues. Superintendent Single, in particular, was surprised at the dismissal and Inspector Szaak had recommended other penalties short of dismissal. There had been a risk assessment on his return to Coonamble but no problems were raised, either within the Police Service or within the Probation and Parole Service.
90 It was further noted that, in his Reasons, the Commissioner did not find Mr Sewell to be untruthful in relation to the first incident concerning Ms Horan but he was found to be untruthful regarding the incidents at the Probation and Parole Service. Primarily, the Commissioner was concerned at Mr Sewell's behaviour in relation to the women concerned.
91 In relation to the first incident at the police station, it was pointed out that Ms Horan's evidence in the Commission proceedings had Mr Sewell placing his hand on her buttocks for a few seconds rather than pinching or squeezing her buttocks. Ms Horan did accept that she was giving evidence on the basis of her memory and it was likely that her statement, given close to the time, was more accurate. Attention was drawn to a number of differences in the accounts such as, where people were standing and which hand had been observed on Ms Horan's buttocks. In light of these differences and the differences in the evidence given in the Commission, it was submitted that the material before the Commission was inconclusive and this breach could not be found against Mr Sewell.
92 The second incident occurred on 31 December 2005 at the Coonamble Hotel. This was the incident where Mr Sewell was alleged to have undone Ms Horan's halter blouse top but it was pointed out for Mr Sewell that there was not direct independent corroboration of this incident, although there was evidence of Ms Horan being upset and angry and telling Constable Dickson of the incident. At the initial interview, Mr Sewell denied the incident but in submissions to the Commissioner he recalled the surrounding events and the fact that he was fairly intoxicated, was taking medication and that he had pushed a bra strap back into Ms Horan's blouse. Mr Sewell said that he made a comment which, in hindsight, he regarded as being inappropriate but stated that it was not a sexual comment but being "smart". In his evidence on review he repeated that account but then stated that he could not recall saying anything inappropriate but if he did, it would not have been sexual. In cross-examination, when it was put to Mr Sewell that his version meant that Ms Horan was lying, he agreed that was the case.
93 In submissions to the Commission, counsel for Mr Sewell offered what was described as an alternate and plausible explanation, namely, that Mr Sewell could be speaking of completely separate events. This was possible because Sergeant Horan was certain that the event occurred before Christmas 2005 and not at New Year. Further, the applicant stated that, when he drank and combined alcohol with his medication, at times he had no recollection of what had occurred and only became aware of what he was doing or any problem the following day. Dr Anderson had stated that Mr Sewell's judgment and behaviour was affected by the mixture of alcohol and his medication and it was likely that Mr Sewell would act in a disinhibited manner without necessarily recalling what he thought or did, and with no necessary perfect or continuous memory when he had some recollection of events. In submissions it was suggested, therefore, that Mr Sewell had recalled another event in trying to answer these allegations and had no memory of this particular event. It was asked why would he admit to the most serious of the allegations but deny the lesser allegations?: it was to be noted that he had made proper concessions during the course of his evidence.
94 In relation to the third event that occurred on 27 February 2006 at the Coonamble Hotel when Mr Sewell grabbed Ms Horan's buttocks using both hands, it was noted that he immediately confessed his actions to Constable Dickson and apologised the next day to Ms Horan and thus demonstrated his remorse. It was after this incident that Mr Sewell recognised his problem, ceased drinking alcohol and modified his off-duty behaviour.
95 The incident involving Ms McDermott at the hotel on 29 December 2006 was placed in the context of the delay in raising the issue and speaking with Sergeant Horan. It was submitted that it was likely that Sergeant Horan raised the issue concerning Ms McDermott in an attempt to help his sister and her complaint.
96 At interview, Mr Sewell did not recall the event or the discussion about perfume in the hotel and grabbing hold of Ms McDermott and putting his head down near her breasts. In his submissions to the Commissioner and evidence on review in the Commission, Mr Sewell stated that Ms McDermott said, "I put some on my tits" and poked her chest out. He then admitted that he took hold of her arm, put his head down and smelt the perfume and said, "You're right, perfume smells better on breasts". He thought that Ms McDermott and the group laughed at that point, although Sergeant Horan did not recall any laughter but remembered that Ms McDermott was embarrassed and uncomfortable and that he told Mr Sewell that he could not keep acting like this. It was noted that Ms Horan saw Mr Sewell putting his head down towards Ms McDermott's chest, but she did not remember any conversation.
97 On behalf of Mr Sewell it was submitted that it was possible that he was under the influence of medication, mixed with alcohol and misunderstood the conversation, or part of it. Mr Sewell's response was a poor attempt at humour but he misunderstood the context of the conversation so that the punch line did not fit or it misfired as a joke. It was pointed out that Ms McDermott was not necessarily always truthful.
98 On 24 January 2006 at the Probation and Parole Service office, Mr Sewell said that he had attended the office and had looked at Ms McDermott's badge and had asked for her name but denied that he had said words to the effect, "If that one's named Isabel, what's the other". Ms McDermott said her full name was on the badge but Mr Sewell denied that was so. It was submitted that there were conflicts in Ms Dermott's evidence and it became more exaggerated in oral evidence. Counsel for Mr Sewell emphasised the variations in the accounts of the witnesses in relation to these incidents and the fact that no one could recall the terms of any offensive or dirty stories told by Mr Sewell. Contrary to Ms McDermott's evidence and other evidence showing that the women did discuss the matter after the event, all these issues raised by them were said to be too vague to permit an adverse determination to be made against Mr Sewell. There was a possibility that one of the stories had been heard in the hotel while Mr Sewell was present with his wife and have been passed on by Ms McDermott, and could have been passed on in group discussions while the women were talking amongst each other.
99 In submissions, the closeness of the community in a small country town was emphasised and the fact that Mr Sewell was an outsider as contributing to the version of events raised against Mr Sewell. It was submitted that one story, about him lowering his trousers while under the influence of alcohol and in front of his future in-laws, was in fact very embarrassing to Mr Sewell. There was an analysis of Ms McDermott's evidence and her credit in relation to the way in which she had underplayed her own disciplinary problems and the events surrounding her appearing bare breasted in a biker magazine. It was also submitted that Ms McDermott might have misunderstood what Mr Sewell was saying to her when he arrived at the Probation and Parole Service and the possibility that he may have noticed only her first name on her name badge and her second name had somehow become obscured. It was suggested that, considering all of these matters, nothing could be made of the allegations arising from Mr Sewell's attendance at the Probation and Parole Service.
100 The medical evidence was then examined in submissions and three matters were raised to call into question Dr Benjamin's diagnosis. It was suggested that, on a proper analysis of the evidence, Dr Benjamin had wrongly formed the view that Mr Sewell had been not only a heavy abuser of alcohol in his late teens and early twenties but continued to drink to a significant degree thereafter. The evidence suggested that, until his transfer to Coonamble, Mr Sewell had been a light drinker and when he did drink he was not a binge drinker. Dr Benjamin also over-emphasised violent domestic behaviour, but that conduct appeared to be limited to times of acute domestic breakdown occasioned by divorce and alienation between the applicant and his stepson. Dr Benjamin's diagnosis did not take into account the fact that this type of behaviour did not arise during Mr Sewell's employment in the Police Force and that he showed no violent manifestations of a personality disorder in his duties as a police officer. His behaviour, while stationed at Coonamble between December 2005 and February 2006, was not of a "violent thug" but was that of a "bore and sometimes a groper". Lastly, it was pointed out that Dr Benjamin relied on the fact that, between 2000 and 2005, Mr Sewell was not taking psychotropic medication whereas the evidence showed that, during this period, he was taking Aropax and for a brief period changed to Edonix and then was placed back on Aropax. Another important issue was the presence of the stressor of the 1999 criminal charges that clearly had not been resolved by October 2003, well after the acquittal, when Mr Sewell consulted Dr Wong complaining of depression relating to the incident in 1999. It was also of importance to note that the diagnosis of personality disorder was unlikely because it did not manifest itself in Mr Sewell in terms of anger management and violent behaviour: other than domestic issues, there was nothing in Mr Sewell's service record to indicate such a pattern of behaviour.
101 Having conducted that analysis of Dr Benjamin's evidence and suggesting that Dr Anderson's diagnosis was likely to be more accurate, how that evidence was relied upon by Mr Sewell was then clarified. In his evidence, Mr Sewell did not advance his drinking as a reason in itself for his misconduct and in fact, took responsibility for his actions by saying that it was due more to his stupidity in drinking while on medication. Also, he took responsibility for his behaviour following the 28 February 2006 incident by ceasing to consume alcohol and taking steps to address a healthier lifestyle and reducing stress in his life. Mr Sewell's case then was that, having decided to drink, it was the mixture of his medication, his psychiatric condition and alcohol that had a magnifying effect and caused him to act in a disinhibited fashion and in a manner that was out of character and led to his misconduct on those occasions when he was intoxicated. These matters also contributed to his imperfect memory in relation to certain events that were said to have occurred while he was intoxicated. It was not part of the applicant's case that the alcohol, his psychiatric condition or the medication caused or contributed to his conduct while he was not intoxicated. Two allegations arose when the applicant was not intoxicated but they were matters in dispute and were not able to be proved to the Briginshaw standard against Mr Sewell. In relation to the last remaining matter where no alcohol was involved, the applicant's case was one of mitigation in accordance with well-established principles applied by the Commission in cases of alleged misconduct: it was submitted that, on a proper weighing of the matters, termination was too harsh a penalty to impose in all the circumstances.
102 Dr Benjamin had reached the conclusion that, at all relevant times, Mr Sewell was fit for duty but Dr Anderson considered that when the s 181D Notice was served, Mr Sewell's performance at work had begun to deteriorate and that he was beginning to manifest behaviour indicating that, at the time, he was not coping with his responsibilities. Dr Anderson ultimately reached the conclusion that Mr Sewell was unfit to perform his duties from approximately 4 November 2007. While identifying factors that would support Dr Anderson's conclusions, counsel for Mr Sewell sought that, ultimately, in these proceedings what was sought was reinstatement. If Mr Sewell was successful in that application he would like to continue his career or, if he were found to be unfit on a subsequent consideration of his condition, he would like to receive a medical discharge. That was a matter to be dealt with after a reinstatement order was made by the Commission. The significance of Dr Anderson's conclusions were that, at the time Mr Sewell was dismissed, he was not coping with work and at that stage may not have been fit for duty and that the dismissal of the applicant in those circumstances was unfair and the Commissioner should have offered him medical retirement as an alternative.
103 A further factor identified by counsel for Mr Sewell was that there had been a significant unexplained delay between the time of the initial investigation and the issuing of the s 181D Notice, a period of some 16 months. During this period, Mr Sewell had demonstrated that his inappropriate conduct was an aberration and had rendered good service to the Police Force both when relocated to Walgett and later when transferred back to Coonamble. That service could continue to be rendered without a recurrence of the incidents of which complaint had been made during the period of two months between December 2005 and February 2006. The Commissioner had clearly given insufficient weight before termination to the applicant's good service prior to the period of complaint, or in 16 months following the complaints. There was no indication that Mr Sewell's psychiatric illness had been taken into account in mitigation or the fact that he had continued when he had been promoted into a difficult command and transported to a new location, without the support of his family and without an appropriate routine. The combination of prescribed medication and the consumption of alcohol by Mr Sewell had exacerbated the effect of his medical condition and significantly contributed to his aberrant behaviour, particularly when he was intoxicated. Credit had to be given to Mr Sewell for the fact that he had made a full admission in relation to the most serious allegations, and it could not be reasonably concluded that he was motivated by a desire to minimise his misconduct or exculpate himself in relation to the disputes he raised about the other allegations.
104 There are a number of difficulties with these submissions made on behalf of Mr Sewell. Dealing generally with the idea that here was a tight knit local group who simply treated Mr Sewell as an outsider and had banded together to support Ms Horan, there is no evidence to support such a conclusion. Indeed, the evidence suggests that Mr Sewell was able to slip easily into the social world of his fellow officers, having had the advantage of a previous association with Ms Horan. Accepting that there was a friendship between Ms Horan and Ms McDermott, that alone does not support a finding of an exaggeration of the evidence, nor does it explain what appeared to be the genuine distaste of the other female officers from the Probation and Parole Service when they were required to recount Mr Sewell's behaviour and his unseemly stories. Although the women were unable to recount the detail of the distasteful stories, they were as one in expressing their concern at Mr Sewell's behaviour. Nothing sinister can be found in the fact that the women discussed Mr Sewell's behaviour after the event and rather than suggesting that they were fabricating an account, it is entirely consistent with their version of events and how astonished they were at his behaviour. Similarly, there is nothing of substance in the attack on Ms McDermott's credit. While it might be accepted that she understated the findings in her disciplinary proceedings, she had openly answered questions about that matter and the result being a reprimand and undoubtedly, in that context, Ms McDermott regarded the process as having been largely resolved in her favour. Importantly, there is nothing about this aspect of her evidence that leads to a reasonable apprehension that other aspects of her evidence were not to be believed.