Smith v Commissioner of Police - [2023] NSWIRComm 1064 - NSWIRComm 2023 case summary — Zoe

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Smith v Commissioner of Police

[2023] NSWIRComm 1064

Industrial Relations Commission (NSW)|2023-02-08|Before: Ms P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2023-02-08

Before

Ms P

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

Summary

The Commissioner of Police removed the applicant from the NSW Police Force pursuant to s 181D of the Police Act 1990 (Police Act). The removal occurred by order dated 29 November 2021 and served on the applicant on 3 December 2021.
The applicant had worked for the NSW Police Force in a civilian capacity for six years before deciding she wished to become a police officer. On 3 May 2014 the applicant attested as a Probationary Constable and on 2 May 2015 she was confirmed as a Constable of Police.
At the time of her removal, although the applicant had been a police officer for approximately six and a half years, due to a workplace injury she had only performed the principal work of a police officer for less than three and a half years. This is set out as background to observe that the applicant was not a very experienced police officer at the time of her removal.
The Commissioner of Police (Commissioner) levelled three groups of allegations against the applicant through Division 1B of Part 9 of the Police Act and sustained those allegations in findings against the applicant.
At a high level the reasons, in the sequence set out in the Commissioner's reasons, covered: 1. Three allegations relating to the applicant's attendance at the home of a member of the public (Person A) in relation to difficulties experienced by Person A regarding the custody of her child (Group One); 2. Three allegations relating to the seizure of licensed firearms from a member of the public (Person B) during the applicant's attendance at the home of Person B (Group Two); and 3. Five allegations relating to a statement obtained by the applicant from a member of the public (Person C) and entered into the applicant's official notebook following the arrest of Person C on charges unrelated to the statement (Group Three).
The applicant directly denied engaging in the specific conduct set out in each of the allegations. She also submitted that, even as specified in the allegations, the allegations in Group One could not support a removal pursuant to s 181D of the Police Act. The applicant submitted that the allegations set out in Group Two were so misconceived that, far from being a basis to remove her, she should have been commended for the actions she took.

[2]

The evidence before the Commission

The applicant gave sworn evidence, responding in detail to the factual basis of each of the 11 allegations. She was cross examined at length, substantially maintaining her evidence in chief, and largely on the basis of answers which were rational and credible. It should be observed that the applicant on occasions answered questions she preferred, over those which she had been asked.
The Commission does not make any general finding that the applicant was a witness who should be disbelieved. Nevertheless, there are some allegations in relation to which the Commission has not accepted her version of events. Some of these are disputes over which the outcome either way was insubstantial. Others related to matters of substance, with the Commission not accepting parts of the applicant's evidence.
In the former category is the applicant's evidence concerning the factual background to the Group One allegations. The applicant denied that she had been, rude, as alleged, either to Person A, or to Probationary Constable Lewis-Keating, during their attendance at Person A's home. Against this sworn evidence was material in the Commissioner's Confidence Bundle (the Bundle) in the form of a signed statement of Probationary Constable Lewis-Keating, and reports from other police officers that Person A had complained about the applicant.
In the latter category are some parts of the applicant's evidence concerning the factual background to the Group Three allegations, and in particular to the circumstances under which Person C came to write a statement in the applicant's official notebook.
The details of both of these categories of evidence, and the resolution of the conflicting accounts before the Commission, are set out below in considering the case presented by the applicant, and the case presented by the Commissioner in answer.
Two other witnesses were called by the applicant to give evidence in support of her application. These were Ms Donna Glover and Senior Constable Benjamin Goulder.
Ms Glover was a civilian employee of the NSW Police Force. She supervised the applicant during a period in which the applicant was performing "suitable duties" while recovering from a workplace injury. Senior Constable Goulder was formerly a senior colleague of the applicant at the Hume Police District (Hume PD), where she was assigned prior to her removal.
Ms Glover's evidence related to the period during which she temporarily supervised the applicant. On Ms Glover's evidence, this was a short period, made shorter by the applicant being required to take annual leave. Given this, and that the substance of concerns raised by Ms Glover about the treatment of the applicant were not matters put in issue by the applicant during proceedings, little importance can be attached to Ms Glover's evidence. I find no criticism of Ms Glover as a historian but observe that she was prone to overstate her qualifications to give opinions.
Senior Constable Goulder gave evidence which directly contradicted material in the Bundle. He was cross examined only briefly, with the apparent point that certain of his opinions were inflated, given the facts from which he said they were drawn. During his short cross examination Senior Constable Goulder gave direct, responsive answers. Given conclusions set out below concerning the antagonistic working environment Senior Constable Goulder and the applicant experienced at the Southern Highlands Police Station, it seems likely that Senior Constable Goulder risked suffering personal detriment in giving evidence. The Commission accepts Senior Constable Goulder's evidence at its highest.
The respondent called Superintendent Christopher Schilt, who at the time of giving evidence was the senior officer in charge of the Manning Great Lakes Police District. Prior to that appointment he had been the senior officer in charge of the Hume PD. Superintendent Schilt's time as the senior officer in charge of the Hume PD partially overlapped with the applicant's assignment to the Hume PD.
Superintendent Schilt did not give direct evidence of the factual background to any of the allegations. He did give opinion evidence, as a senior police officer, that allegations against the applicant were, for each Group, serious.
The applicant submitted that the Bundle should be admitted only as to the truth of what was before the Commissioner when determining to remove the applicant from the NSW Police Force. The respondent submitted that the Bundle should be admitted as to the truth of the facts set out in the various documents within the Bundle. The Commission did not rule as to the basis on which the Bundle was before the Commission. As is set out below at [32-33], the basis on which the Bundle is before the Commission is different from the basis submitted by either party.

[3]

The statutory framework

The Police Act, in Divisions 1B and 1C of Part 9, sets out the power of the Commissioner to remove a police officer, and the power of the Commission to review that order. The relevant provisions are: Division 1B Summary removal of police officers in whom Commissioner does not have confidence 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. … (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. … Division 1C Review of Commissioner's decision under Division 1B 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. … 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows - (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to - (a) the interests of the applicant, and (b) the public interest (which is taken to include 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)). …

[4]

The application of the statutory framework

In her written submissions, and in her written submissions in reply, the applicant posited that the respondent had not established that the conduct in the 11 allegations had been made out by the respondent. This, of course, misconceives the effect of s 181F of the Police Act, and especially s 181F(2).
In oral submissions, Mr Nagle of counsel for the applicant acknowledged the decisions of the Court of Appeal, particularly in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236, and set out that he would proceed on the basis that the applicant was required to "cast sufficient doubt" on the Commissioner's reasons for removal, before the Commissioner could be required to prove matters set out in the Commissioner's reasons.
Mr Nagle submitted that the applicant was not required to cast the required doubt on the Commissioner's reasons solely through the calling of evidence. An applicant could do so, for example, through submissions pointing to the inherent unreasonableness of the Commissioner's reasons. Ms Bindon of counsel for the respondent made similar submissions in relation to the way the respondent could, pursuant to s 181F(1)(c), put her case in answer to the applicant's case.
Ms Bindon took the Commission to passages from the Court of Appeal decision in Zisopoulos, in particular to paragraphs [84] and [85], where Bell P set out: "84. … But it is important always to remember that 'sufficient doubt' is not 'any doubt', and the raising of a doubt, sufficient or otherwise, does not in any way alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. So also, the mere 'going into evidence' by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that removal was harsh and unreasonable or and just nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner's original decision on the strength of the evidence lead by the removed officer and or the credibility of the turning of hypothesis. 85. If what the Full Bench in the present case referred to as 'sufficient doubt' is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of the evidence before the IRC …"
Ms Bindon submitted that the Commission should draw two principles from this. First, that merely because the applicant had given sworn evidence, and the Commissioner had not called sworn evidence to contradict the applicant's evidence, would not be a basis to cast sufficient doubt on the Commissioner's reasons. Ms Bindon pointed to other decisions of the Commission where the Commissioner had called no evidence yet had successfully defended the decision to remove a police officer.
Second, Ms Bindon submitted that, where the applicant has raised "sufficient doubt", the Commissioner is able to respond through either evidence or by submissions, returning to the point that neither the applicant nor the respondent in the cases presented respectively under s 181F(1)(b) and (c) need rely only on sworn evidence.
In further support of this proposition, Ms Bindon took the Commission to the decision of Commissioner Newall in Tredinnick v Commissioner of Police [2016] NSWIRComm 1026: "28. … it must also be understood that the Commissioner, even if he does go into evidence, is not acquired in every case to establish by evidence all the facts on which she has relied in coming to the decision to remove an officer. That is not what the 'shifting evidentiary burden' referred to in Hosemans means. Whether the Commissioner brings evidence about some, or all, or none of those facts in a given case will depend on the case advanced by the applicant. …"
Ms Bindon also took the Commission to the decision of the Full Bench in Bolton v Commissioner of Police (No 2) [2021] NSWIRComm 1055, where the Full Bench, referencing Bell P in Zisopoulos, set out: "22. … Whether an applicant cast sufficient doubt on the Police Commissioner's reasoning process to warrant the intervention of the Commission will be a function of the basis of the Police Commissioner's decision, the strength of the evidence lead by the applicant and/or the credibility of any alternative hypothesis advanced. …"
During the respondent's submissions, the Commission expressed a view that an applicant needed to "disapprove" allegations of misconduct. This should more correctly be expressed as the Full Bench did at [44] of the decision in Tredinnick v Commissioner of Police [2016] NSWIRComm 14: "44 … The burden of proof residing upon the appellant may include proof of a negative to displace a finding which constitute a basis for a removal …"
That is to say, that in appropriate cases an applicant will bear the onus of proving a negative.
The combined effect of s 181F(1) and (2) is that the Commissioner's reasons for the removal are the starting point and, without more by way of evidence or submissions, would indeed be the end of the matter. Their effect does not extend so far as to create a presumption that everything set out in either the Commissioner's reasons, or the material before the Commissioner in support, are established as truth. However, the Commissioner can only be put to the test of proving the truth of any facts in the Commissioner's reasons, if an applicant raises "sufficient doubt" about the matters in the Commissioner's reasons.
Only when the applicant has advanced "sufficient doubt", will the Commission be required to address and determine if the Commission accepts that the events as set out in the Commissioner's reasons accurately reflect what occurred. This may, for example, be because the Commission accepts sworn evidence given during a hearing, or because the Commission accepts a submission as to the inherent improbability of a fact set out in the Commissioner's reasons.
That the Commissioner has successfully "defended" other applications for review without calling witnesses to give evidence at the Commission, as Ms Bindon correctly submitted, does no more than demonstrate the onus on an applicant, and the flexibility available to each party in presenting their case pursuant to s 181F(1)(b) and (c) respectively.
It was common ground that the Commission should specifically address the interests of the applicant and the public interest, as required by s 181F(3).

[8]

Allegation 3 " … on 9 July 2018, while dealing with [Person A] you behaved in a rude and intimidating manner towards Constable Lewis-Keating influencing his handling of the concerns raised by [Person A]. In particular, I am satisfied that when Constable Lewis-Keating attempted to ask [Person A] questions to obtain further information from her, you interrupted him and angrily said to him words to the effect of 'just stop, we are not here for that, I'm not looking into that'."

In each case, the Commissioner's reasons articulated that the conduct was contrary to one or more of: s 7 of the Police Act, Points 1, 2, 3 and 4 of the NSW Police Force Code of Conduct and Ethics, the NSW Police Force Domestic and Family Violence Policy, and/or the NSW Police Force Customer Service Guidelines.
When considering the Group One allegations, even in their totality, but in isolation from any other events, it is difficult to see them amounting to conduct which would require much more than coaching, or at most informal disciplinary action such as a verbal admonishment.
This is particularly so in a context where nothing was put before the Commission to suggest that the applicant had ever previously been disciplined for conduct of a similar nature. Certainly, none of the earlier disciplinary action referred to and relied on in the Commissioner's reasons was of a similar nature.
It should also be borne in mind that police officers will often need to speak firmly with members of the public, given the nature of their interactions with those members of the public. Doubtless this will, at the least occasionally, be perceived by members of the public as rudeness by police officers.
Allegation 2, in its terms, sets out the gravamen of the respondent's concern about the conduct of the applicant when attending on Person A, being that she was rude and dismissive. The additional allegation that the applicant stood over Person A does not in my view add much to the allegation. That the applicant clearly did send an email which accused Person A of "shopping for police" adds even less, as on the face of the email it would be better characterised as direct rather than rude.
The same general observations apply in relation to Allegation 3. While the applicant was the more senior police officer present, she was, as previously observed, a relatively inexperienced officer. Even at its highest, such conduct would likely warrant no more than coaching.
In totality the allegations in Group One appear out of proportion, particularly as has already been observed, they are made in the context of an officer for whom no similar previous misconduct was alleged.

[16]

Allegation 11 " … you repeatedly asked [Person C] to provide a statement to police regarding Senior Constable Finch and influenced Person C to provide that statement for the purposes of victimising Senior Constable Finch. In particular, I am satisfied that on several occasions, you asked [Person C] to make a statement regarding what Senior Constable Finch had purportedly told [Person C] about her arrest on 27 July 2017; and on 27 August 2018, you advised [Person C] to provide the statement regarding Senior Constable Finch 'to help [you] solve the issues between [you] and Constable Finch'."

In each case, the Commissioner's reasons articulated that the conduct was contrary to one or more of: s 7 of the Police Act, Points 1, 2, 3, 4, 7 or 9 of the NSW Police Force Code of Conduct and Ethics or the NSW Police Force Procedures for Managing Conflicts of Interest, and/or NSW Police Force Respectful Behaviour Guidelines.
Allegations 6 to 11 in Group Three are on their face serious. As a group, and at a high level they allege misconduct by the applicant which involves a substantial level of dishonesty which is clearly serious. On the face of the Commissioner's reasons, the allegations, and the background to them, they appear coherent and able to lead rationally to a conclusion of serious misconduct by the applicant. They appear to be a basis on which the Commissioner could properly lose confidence in the applicant's suitability to remain a police officer.
The factual background to the Group Three allegations extends over months, beginning on an occasion when the applicant was the arresting officer for Person C in relation to robbery, and concluding on 27 August 2018 when the events forming the substance of the Group Three allegations took place.
Person C appears to have taken exception to the manner of her arrest by the applicant, alleging the arrest was unnecessarily physical. On the evidence of the applicant, Person C complained to the applicant several times about the arrest and cited a conversation Person C says she had with a Senior Constable Finch about the arrest. During that conversation the Senior Constable was said to have told Person C that the Senior Constable had seen video footage of the arrest, and further that it was the Senior Constable's opinion that the applicant was too physical in her arrest of Person C.
Person C it should be observed has an extensive criminal history including numerous offences which include dishonesty, such as theft and gaining financial advantage by deception.
The essence of the allegations against the applicant is that, on 27 August 2018, she: 1. Improperly persuaded Person C to give a statement for the applicant to use against Senior Constable Finch; 2. Did so in circumstances where the applicant knew that the substance of any complaint by Person C involved the applicant, and thus failed to avoid or manage a conflict-of-interest; 3. Improperly provided details to Person C about the date of her arrest and concerning the identity of Senior Constable Finch for inclusion in the statement; 4. Was untruthful in stating she first became aware of the content of Person C's statement after reading what Person C had written; and 5. Had on previous occasions attempted to obtain a similar statement from Person C about Person C's conversations with Senior Constable Finch.
The Commissioner's reasons preferred the version of events given by Person C, where that version differed from the applicant's version. It should be observed that the substance of the factual allegations against the applicant concerned conversations between the applicant and Person C, which no other person witnessed.
Under a heading "Consideration", the Commissioner's reasons relevantly set out: "Regarding Allegation 7, you admit in your Response that you were aware that [Person C] felt aggrieved by the arrest you carried out in connection with the 2017 robbery charge. Nevertheless, your response seems to suggest that it was appropriate for you to take [Person C's] statement regarding matters related to that charge. It should have been apparent to you as the arresting officer that any statement provided by [Person C] concerning matters related to the charge had the potential to involve yourself and give rise to a conflict of interest. In any event, your version of events is inconsistent with the evidence of [Person C] and I do not accept your version of events. I find that in taking [Person C's] statement you failed to demonstrate the minimum standards of integrity I expect from any police officer. What further aggravates your behaviour is your conduct as described in Allegations 8, 9, 10 and 11. I have considered your Response concerning those Allegations and I am satisfied that you deliberately interfered with the contents of [Person C's] statement. I am also satisfied that you were dishonest when asked by Senior Constable Canestrai if you were aware of the contents of [Person C's] complaint prior to her making the statement. Your conduct in respect of Allegations 7 to 11 was motivated by a desire to impugn the integrity of a fellow member of the NSW Police Force. Your conduct amounts to a serious breach of NSW Police Force policies and procedures and demonstrates such a significant absence of integrity that I simply do not have confidence in you consistently meeting the minimum standards expected from police officers in the future."
In summary, the Commission considers that the allegations in Group Three, and the background to them set out in the Commissioner's reasons, are such that if they remained in place the Commission would not find that the applicant's removal was harsh, unreasonable or unjust. In that event, it is doubtful that the allegations collectively forming Group One add very much to the Commissioner's reasons in relation to Group Three. Allegations 4 and 5 in Group Two, as expressed in the Commissioner's reasons add substance to the Commissioner's decision. Allegations 6 aligns more closely to the allegations in Group One.
Conversely without the allegations comprising Group 3, it is difficult to see how the Commission could find other than that the removal was both unjust and harsh. More particularly allegations 1, 2, 3 and 6 could not be said to rise to a proper basis for removal of an officer and therefore would be unjust. Removal based on only allegations 4 and 5 would likely be harsh, although not undoubtedly so.

[19]

Group Two

In presenting her case on the allegations in Group Two, two significant documents were tendered. The first of these was the COPS file notes [1] covering the seizure of Person B's firearms. The second was an email circulated to the Hume PD police muddle, from a Senior Sergeant in the Domestic and Family Violence Team at Hume PD, a Senior Sergeant Nightingale. The email attached a document titled "Seizing Firearms When Attending DV Incidences" (the DFV Attachment) [2] .
The applicant gave coherent and measured evidence about these allegations, which in summary was that: 1. She was the more junior of two police officers attending Person B's home; 2. The officers had attended Person B's home in response to a complaint in the nature of a domestic dispute reported by Person B's ex-wife; 3. On arrival, the officers observed a hostile relationship characterised by inflammatory verbal exchanges. The applicant agreed that there was no basis to conclude there had been, or was threatened to be, anything more than verbal exchanges; 4. The officers spoke separately to each of Person B and Person B's ex-wife, with the applicant speaking to Person B's ex-wife; 5. The officers established that Person B was the holder of a firearms licence and the owner of several licensed firearms. It emerged these were stored legally off-site at a gun club; 6. Despite there being no anticipation of anything more than verbal exchanges, the applicant considered that it was her obligation to seize any firearms on the premises or in the possession of Person B, and this included firearms owned but stored away from the residential premises; and 7. Person B agreed with this seizure because it reduced the prospect that he would be accused of threatening to use the firearms.
The last point was not raised by the applicant in her written statements in these proceedings, or when she responded to the Commissioner's show cause letter. The respondent consequently submitted that this was evidence of the unreliability of the applicant's evidence.
During proceedings, the Commission asked the parties if that evidence should be regarded as recent invention. On reflection the Commission considers this inclusion is of little moment, merely showing that recollections can vary somewhat over time. Giving evidence before the Commission was the first time the applicant had given her version of events orally.
In short, the DFV Attachment set out that firearms should be seized on any occasion police officers attend a reported domestic dispute, not just on those occasions when they suspect physical violence had already occurred. The absence of physical violence having been the basis on which the Commissioner alleged that the applicant seized Person B's firearms without justification.
The respondent submitted, correctly, that the DFV Attachment was not endorsed formally by police command. I consider that the force of this argument is diminished when it is recalled that the DFV Attachment was circulated within the Hume PD by a Senior Sergeant from its Domestic and Family Violence Team. It is further dissipated by Superintendent Schilt's evidence under Cross-examination. His evidence was that he would regard it as the proper process to seize firearms, regardless of whether physical violence was already suspected when attending a reported domestic dispute. He resiled somewhat from this position in re-examination, but the best that could be said for the respondent's position is that the evidence was confused. Such a state does not assist the respondent's position on this issue.
Further, the lengthy COPS entry in relation to the seizure shows that more senior police officers were aware of the seizure, reviewed and approved entries in relation to the seizure and the ongoing suspension of Person B's firearms licence. This included the Senior Constable who attended Person B's home with the applicant at the time the firearms were seized.
So far as Allegations 4 and 5 are concerned I find that they are unjust for two reasons. Firstly, far from the applicant's seizure of the firearms being a source of criticism, the evidence before the Commission demonstrates that the applicant's conduct was appropriate and in conformity with NSW Police Force procedures. Secondly, to the extent that any criticism could be levelled against the applicant it was a matter which should have been detected and the subject of remedial action by one of the more senior police officers who were aware of the ongoing seizure of the firearms.
Relying on Allegations 4 and 5 to remove the applicant is unequivocally harsh, even if the respondent had been able to demonstrate that the applicant had acted in excess of the process set by the NSW Police Force. Even in that case, these allegations would have been the basis for no more than non-reviewable disciplinary action, at the highest. Neither before the Commission, nor set out in the Commissioner's reasons, was there any material which demonstrated any prior misconduct of a similar nature.
The applicant did not accept that she had failed to keep a Person B informed as to any progress on the return of his seized firearms. Indeed, she went so far as to say that, as the suspect or person of interest in relation to the domestic dispute attendance, Person B was not a customer in the sense contemplated by the policy.
The submission that Person B was not covered by the customer service obligations seems an overly technical submission, and this submission is not accepted. While there was some evidence from the applicant of contact with Person B, and some noted in the COPS file, none of it demonstrated regular or frequent contact with Person B.
I do not consider that the applicant has cast sufficient doubt on the allegation that she failed to keep Person B properly informed. However, I accept the applicant's submission that Allegation 6 is incapable of properly forming the basis to remove a police officer. Removal for this reason would be both unjust and harsh. Allegation 6 would have been the basis for no more than counselling or informal disciplinary action. Neither before the Commission, nor set out in the Commissioner's reasons, was there any material which demonstrated any prior misconduct of a similar nature.

[20]

Group Three

The applicant's case was premised on her evidence, which challenged the factual basis of the Commissioner's reasons, and on submissions as to the harshness of removing the applicant based on the Group Three allegations, especially if only some of the allegations remained at the conclusion of the review.
The Commissioner's reasons recite that Senior Constable Finch denies ever viewing any footage of Person C's arrest by the applicant. Against this is the sworn evidence of Senior Constable Goulder, and several references in both the Commissioner's reasons and the Bundle to repeated complaints by Person C about the nature of her arrest by the applicant, including based on Person C's asserted conversation with Senior Constable Finch.
Allegation 11, and indirectly some of the other allegations in Group Three, make more sense if such a conversation between Senior Constable Finch and Person C did occur. Given my earlier findings as to the credibility of Senior Constable Goulder, it is inevitable that the Commission would conclude that Senior Constable Finch did view a video of Person C's arrest and did have a conversation with Person C to the effect that the applicant's arrest of Person C was too physical.
In this context it would be unusual that Person C would need reminding of the matters set out in Allegation 10. This is both because Person C appears to have regularly complained about the matters referenced in Allegation 10, and because Allegation 11 directly alleges that the applicant regularly raised the issues with Person C.
The Commissioner's reasons lose considerable force when it is considered that they rely on accepting the word of Person C over the word of the applicant. The reasons rely on a record of interview with Person C, conducted by Detective Sergeants Price and Gal on 6 October 2018, and found in the Bundle. In that record of interview Person C is regularly prompted with details, and reminded of events.
It is in my view inevitable that the foregoing means that the applicant has not raised sufficient doubt as to Allegation 11, but has clearly done so in regard relation to Allegation 10
I observe that the Commissioner, in relation to a conversation between a police officer and a person with the criminal record of Person C, and with no other witness, has accepted in totality the latter's version of that conversation. In such a circumstance it should not be a surprise that this Commission would more readily than usual accept that an applicant has raised "sufficient doubt".
The applicant denied that she had advised Person C that making a statement would benefit her as alleged in Allegation 9. While the resolution of the applicant's case against Allegation 9 is less clear, on balance I am satisfied that the applicant has raised "sufficient doubt". In part this depends on the totality of the allegations levelled against the applicant; effectively that the applicant wanted a statement from Person C attesting to certain conduct by Senior Constable Finch.
Putting aside for now whether that is what the applicant was attempting, it is unclear what benefit would flow to Person C from giving such a statement, when other material set out in the Commissioner's reasons discloses that Person C was aware that she was effectively caught in a dispute between the applicant and Senior Constable Finch.
Person C, given her extensive criminal record and consequent interactions with the police, can be assumed to have an reasonable understanding of the consequences of making a statement to police. Accordingly, even if such a statement was made by the applicant it is not clear why it would have materially influenced Person C.
The statement made by Person C in the applicant's official notebook is essentially a re-statement of Person C's complaint about her arrest by the applicant. It calls in support of that complaint the reported views of Senior Constable Finch, but largely the statement is one about why Person C should not have been arrested.
If the true substance of Allegation 8 is that the applicant sought to have Person C make a statement contradicting Senior Constable Finch, then that is not what Allegation 8 sets out. Moreover, if that is what the applicant set out to do, then the statement in her notebook only partially achieved that.
In its terms therefore, Allegation 8 has had "sufficient doubt" raised against it by the applicant. It is of concern that the applicant hasn't been as open and forthcoming as the Commissioner is entitled to expect of a police officer. Allegation 8 is not framed in such terms.
The difference between the applicant and respondent as to Allegation 7 depends on what would constitute "[a] complaint [involving the applicant]". It was the applicant's evidence, and her submission, that she understood Person C to be wanting to make a statement concerning Senior Constable Finch. The Commission has determined that this is unlikely to be the circumstance in which Person C came to write her statement in the applicant's official notebook.
On a very technical reading of Allegation 7, the kind of statement which the respondent alleges the applicant sought to obtain from Person C concerns Senior Constable Finch, and not the applicant. I do not consider this is how Allegation 7 should be understood. It is clear that the arrest of Person C, her grievance about that arrest, and comments made by Senior Constable Finch to Person C about the arrest, are all interrelated.
I accept that while the best process would not have involved the applicant attempting to obtain such a statement, it is not at the upper end of a conflict of interest. Given my earlier findings as to the relative inexperience of the applicant this might have been a matter for which education and some form of disciplinary action would have been more appropriate, even perhaps reviewable disciplinary action.
I conclude that the applicant has not raised "sufficient doubt" about Allegation 7 to put the Commissioner to responding.

[21]

The case presented by the Commissioner in response - s 181F(1)(c)

The Commissioner called Superintendent Schilt, who Ms Bindon fairly described as an institutional witness. The Commissioner did not call any witness with direct evidence of the relevant events in support of her case in response. The Commissioner's case in response relied on submissions as to the conclusions the Commission should draw from the applicant's evidence.
As to the allegations in Group One, the respondent's submission was that the Commissioner's reasons set out an inherently more plausible account of events forming the background to the relevant allegations. The Commission has already concluded that the applicant was unable to cast "sufficient doubt" on the Commissioner's reasons in relation to Allegations 1, 2 and 3, and so it is likely unnecessary for the Commission to address this submission. To the extent it is considered necessary, the Commission concludes that neither party's version of events strains credulity.
In responding to the allegations in Group Two, the respondent relied on three submissions: 1. That the applicant's case did not sufficiently address the fact that there was never an allegation that Person B had committed a domestic violence offence; 2. That the applicant had given new evidence before the Commission, and this counted against her credibility; and 3. That the applicant was wrong to say that Superintendent Schilt's evidence amounted to evidence of official NSW Police Force procedures on the seizure of firearms in relevant circumstances, at the relevant time.
The first two of these have been addressed above at [68-69] and [66-67].
While the third has been addressed above at [69], the Commission reiterates the difficulty in according this submission much weight given the seniority of Superintendent Schilt, and that for a period he was the officer in charge of the Hume PD to which the applicant was assigned.
The respondent also submitted that the applicant regularly gave overstated evidence, in particular drawing the Commission's attention to her evidence that she always complied with NSW Police Force policies. It is true that the applicant's evidence could properly be criticised on such a basis. Nevertheless, the Commission has not, as already set out, drawn a general conclusion that the applicant lacked credibility as a witness.
In a similar vein, the respondent submitted that, as a witness, the applicant demonstrated an unreasonable reluctance to admit to any errors. In particular, the respondent referenced the background to earlier disciplinary findings against the applicant when she failed to attend a scheduled court hearing. Her failure to attend resulted in the dismissal of those proceedings. The applicant's evidence was that the earlier disciplinary action against her was unreasonable, but it was non-reviewable action and therefore she could not challenge that disciplinary action.
The applicant explained the reason she had missed the court date related to a bereavement in her family. There may have been a reason the applicant did not attend the scheduled hearing, but her failure to accept any error on her part does demonstrate a lack of insight by her, and tend to show an unwillingness to accept responsibility for the consequences of her action.
Finally, the respondent submitted that allegations by the applicant of a conspiracy against her by police officers at the Hume PD, all but one of whom were senior to her, were made without any "objective evidence". This submission is accurate in its terms, although by their very nature it is likely that such allegations would be made largely on the basis of oral evidence. The respondent developed her submission on this point, inviting the Commission to find that the applicant's evidence demonstrated her unwillingness to accept that the NSW Police Force operates on the basis of a strict command structure.
Having observed the applicant while she gave evidence, the Commission finds there is considerable force to these submissions by the respondent. It is one thing to point to differences between people's versions of events and explain why they might have differing recollections, or an incentive to incorrectly recall events. It is another to allege that essentially every other police officer is involved in a conspiracy. The latter would, as the respondent submitted, amount to serious misconduct by those other police officers.
In its totality the Commissioner's case in response has either been dealt with previously in considering the applicant's case, or does not amount to matters which bear on whether the removal was harsh, unreasonable or unjust. Some of it, as is set out below, does bear on whether reinstatement or re-employment is impracticable.
I have had regard to Superintendent Schilt's opinions about the seriousness of the allegations against the applicant. I do not consider that those opinions warrant any change following the Commission's consideration of the case presented by the applicant.

[22]

Interests of the applicant and the public interest - Section 181F(3)

Pursuant to s 181F(3)(a) the Commission must have regard to the interests of the applicant in making its decision. Pursuant to s 181F(3)(b), the Commission must have regard to the public interest, and this is taken to include the interests of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order to remove the officer.
Most fundamental to the interests of the applicant is that she does not suffer the outcome of removal for reasons which are harsh, unreasonable or unjust.
Mr Nagle, in addition to his submissions which addressed these points, drew the Commission's attention to the satisfaction the applicant drew from being a police officer, and to her desire to return to that position. The applicant worked for the NSW Police Force in a civilian capacity for many years before joining as a police officer.
At the time of her removal, the applicant was attempting to return to full-time duties as a police officer, having spent some time performing other duties as a result of workplace injuries. The Commission considers that the applicant's interests in reinstatement, as opposed to compensation, are therefore enhanced by the likely rehabilitative benefits of such reinstatement.
The public interest, unlike the applicant's, will usually not be a factor in the civilian equivalent of a s 181E review, an unfair dismissal claim under the Industrial Relations Act 1996 (IR Act). The parties only directly addressed how the Commission should assess the public interest in so far as the public interest was always, or alternatively mostly, to be seen as contrary to the applicant's interest. The Commission observes that the cases in which the public interest has been held to have an element supportive of the applicant's interests appear to be confined to circumstances in which the public would lose the services of an experienced police officer. That is not the case here.
Other than this point, the parties made no submissions as to the manner in which the public interest should be considered by the Commission. This may be because the Police Act articulates two issues which are taken to be included in the meaning of that phrase, and those are the key to the Commission's consideration.
The first of these is the interest of maintaining the integrity of the NSW Police Force. This may be capable of covering a wide range of matters, but clearly includes matters such as discipline, compliance with lawful orders, honesty, diligence and competence. To some extent this has been addressed in analysing whether the removal was harsh, unreasonable or unjust. The respondent also squarely put this in issue, as set out at [101-102], when it addressed the applicant's evidence as to the existence of a conspiracy against her. The Commission considers those submissions must be taken into account as to the public interest.
In this respect it is important to observe that the phrase "its decision" in s 181F(3) references the entirety of the review of the Commissioner's decision, including as to any remedy.
In taking into account the fact that the Commissioner made an order to remove the applicant it is apparent that the legislature intended the Commission to give some weight to the order having been made, independent of whether the Commission determines that the removal was harsh, unreasonable or unjust. It is in a case such as this, where the Commission has determined that some of the Commissioner's reasons for the removal are harsh, unreasonable and/or unjust, and some are not, that this aspect of the public interest will require more consideration.
This obviously places an applicant and a respondent in positions which are different from the same parties in an unfair dismissal application under the IR Act. This is one of a number of differences between a review by the Commission of an order made under s 181D, and an unfair dismissal application determined by the Commission.
In this case the respondent has made submissions in relation to the public interest which go both to whether the removal was harsh, unreasonable or unjust, and as to whether the applicant should benefit from reinstatement or re-employment. These are as set out above at [111] and [113].

[23]

The evidence before the Commission on review

There are a number of issues arising from the evidence which have influenced the outcome of this review. They relate to facts accepted, or apparently accepted, in the Commissioner's reasons and which I have concluded against the respondent. Other than the first issue, they are matters which were not central to the 11 allegations. However, I consider they are important in determining whether the applicant has raised sufficient doubt in challenging aspects of the Commissioner's reasons.
Given the conclusions of the Commission as to the credibility of Senior Constable Goulder, and given the evidence from Senior Constable Goulder and the applicant herself, the Commission was left in no doubt that the applicant's workplace was rife with factions, personal agendas and animosity between police officers of various ranks.
I consider this is relevant as to the weight the Commissioner ought to have placed on the version of events, given by a range of people, and set out in the Commissioner's reasons or in documents in the Bundle. It is clear that the applicant perceived that a number of police officers shared an agenda which was directed to damaging or ending her career as a police officer. That Allegations 1 to 6 were either ill-founded or patently unable to sustain removal will no doubt have fuelled this perception.
The Commission does not find that such a "conspiracy" exists, and certainly not one involving the Commissioner who signed the removal order. It is nevertheless apparent to the Commission that such matters should have been expressly addressed when considering the applicant's removal. No such consideration appears in the Commissioner's reasons.
One matter set out in the Bundle, and repeated in the Commissioner's reasons, was an observation by a Constable Bailey that the applicant had been observed to go to the bathroom five times. The applicant denied this was true. It was never articulated by the respondent why this "observation" was in any way relevant.
Constable Bailey's, and a Senior Constable Canestrari's, recollection of 27 August 2018, set out in statements in the Bundle, and repeated in the Commissioner's reasons, was that the applicant left Person C and asked if either officer had an adoption sticker for Person C's statement. The applicant denied ever seeking an adoption sticker. The statement by Person C in the applicant's official notebook contains no adoption sticker.
The adoption sticker, and whether it was sought, is ultimately peripheral to the events in dispute. That the Commissioner's reasons would articulate the applicant seeking such a sticker, and yet there be no sticker on Person C's statement, adds to the credibility of the applicant's version of events and detracts from the Commissioner's reasons as historically accurate.

[24]

Was the removal harsh, unreasonable or unjust?

The Commissioner levelled 11 allegations against the applicant as the basis for removing her from the NSW Police Force. Oddly, as they were not set out in chronological order, they were set out with the most serious set of allegations, Group Three, as the last of the allegations.
The applicant was able to challenge some of these allegations to an extent that, in the absence of any satisfactory response from the Commissioner, the applicant would have discharged the burden on her of establishing removal on such a basis was harsh, unreasonable or unjust.
In this category are Allegations 4, 5, 8, 9 and 10. In each case the Commission has determined that removal on the basis of, or including, those allegations would be unjust as the Commission has concluded there is no basis for a conclusion that the events which support those allegations occurred as alleged.
Nothing put by the Commissioner in her case in answer to the applicant's case persuaded the Commission that these conclusions are not correct.
For the reasons set out above at [63], [75], [81] and [92], in respect of Allegations 1, 2, 3, 6, 7 and 11 the applicant has either failed to discharge the burden on her, or the Commission is indeed satisfied that events occurred as set out in the Commissioner's reasons.
Despite this, the Commission has determined that, because of the lower gravity of the misconduct alleged in those allegations, removal based on Allegations 1, 2, 3 or 6 would be unjust. To this point, there still remains the question of whether the existence of these allegations would support the removal, where that removal is more substantially based on Allegations 7 and 11. This could, as submitted by the respondent, be further supported by the applicant's previous disciplinary history.
The Commission has concluded that the applicant's removal based on Allegations 7 and 11 was not unjust. This conclusion is reinforced as correct when the totality of Allegations 1, 2, 3 and 6, and the applicant's prior disciplinary history are considered.
It is important to observe that the decision of the Commission is a review of the decision of the Commissioner, and at the time that the decision of the Commissioner was made. On this basis, the Commission has concluded that removal on the basis of Allegations 7 and 11, even supported as a group by Allegations 1, 2, 3 and 6, and by the previous disciplinary history of the applicant, would be harsh.
In reaching this conclusion the Commission has had regard to a number of factors including, in order of importance: 1. The matters set out above from [105] to [115] as to the interests of the applicant and the public interest; 2. The relative inexperience of the applicant as a police officer; 3. The objective seriousness of Allegations 7 and 11, but which are nevertheless not the most egregious examples which could be contemplated; 4. The absence of any evidence that the applicant was counselled or disciplined as a corrective measure, or that any more senior police officer saw fit to intervene at an early juncture to prevent matters escalating; and 5. The Commission's findings as to the antagonistic workplace to which the applicant was assigned.
This conclusion was an on balance conclusion. Each of the matters set out above contributed to this conclusion, and the absence of any of them may have been sufficient to tip the balance against the applicant.

[25]

Is reinstatement or re-employment impracticable?

In such circumstances, the respondent's submissions as to why reinstatement and/or re-employment are impracticable warrant careful consideration.
Clearly the interests of the applicant are best served, in the usual course, by either reinstatement or re-employment. In this case there is, on the evidence of the applicant herself, a question as to whether it is in her interests for there to be an order for reinstatement. As the respondent submitted, the applicant was unable to say unequivocally she would be able to return to her previous appointment to the Hume PD.
The Commission has determined that reinstatement or re-employment of the applicant would be impracticable.
In addition to all the matters which were considered above as to whether the removal was harsh, unreasonable or unjust, the Commission may, and in my view should, take into account any post removal conduct of the applicant which would be relevant to the public interest, particularly as it is defined in s 181F(3)(b).
In giving evidence, the applicant expressed a strident view that several police officers at the Hume PD were involved in a conspiracy against her interests. When given opportunity to resile from, or at least moderate, this view, the applicant pointedly refused to do so. While the applicant called evidence from Senior Constable Goulder, which established the antagonistic nature of her workplace at Hume PD, this evidence fell substantially short of establishing any conspiracy. Neither she nor anyone else provided any evidence, beyond her bare assertion, of such a conspiracy.
Her evidence compels the Commission to the view that her reinstatement or re-employment would be contrary to maintenance of the integrity of the NSW Police Force.
The fact that the Commissioner removed the applicant supports this conclusion. The removal would not of itself have been a basis to find reinstatement and re-employment impracticable. It is not an essential part of reinstatement and re-employment being impracticable.

[26]

What if any compensation should be ordered?

The jurisdictional limit on orders for compensation is "the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed" (s 89(5) of the IR Act).
The applicant did not address the Commission as to compensation should her removal be found harsh, unreasonable or unjust, but reinstatement or re-employment be impracticable. The respondent said nothing more than that any compensation should be at the lower end of what the Commission may order.
Albeit in respect of s 89(3) of the IR Act, the respondent submitted that the applicant had produced no evidence of mitigation by her. This is correct, albeit in circumstances where there was an underlying issue of whether the respondent was fit for fulltime work.
At the time of her removal, the applicant was on a path leading, it was hoped, back to full time work as police officer.
Given the basis on which the Commission has determined that the removal was harsh, but subsequently determined that reinstatement or re-employment is impracticable, an award for compensation at or near the midpoint of compensation permitted is fair in the exercise of the Commission's discretion. This recognises that the applicant has succeeded in persuading the Commission that her removal was harsh. On the other hand, it recognises that the reason the Commission has determined reinstatement or re-employment would be impracticable is the conduct of the applicant herself.
In exercising the Commission's discretion the applicant should be compensated in an amount of 13 weeks' pay. Given the wording of s 89(5) of the IR Act, and in the absence of any evidence or submissions to the contrary, this should be an amount equivalent to the remuneration of the applicant during the 13 weeks immediately prior to her removal from the NSW Police Force. The parties will be directed to calculate this by agreement, failing which they may seek to have the matter returned for determination by the Commission.