Starr v Commissioner of Police

Starr v Commissioner of Police - [2001] NSWIRComm 226 - NSWIRComm 1999 case summary — Zoe

[34]

20 As to the substantive unfairness issue, Mr Willis submitted that the Commission should make a determination as to the allegations made against the applicant. It was submitted that the conclusion as to the substantive issue should be that the applicant is guilty of the conduct alleged against him (this contention will be further discussed in the following section dealing with the 'course of the proceedings' in relation to the making of the order by the Commissioner). The Commissioner had discharged, it was contended, any evidentiary burden falling upon him to warrant such a conclusion. The parties' submissions as to the issue of the "evidentiary burden" shall be discussed later in this decision. 21 Broadly speaking, the Commissioner submitted that the applicant must be found to have committed the conduct alleged due to the ample circumstantial evidence presented against him. It was said that this evidence was sufficient to show that the applicant did shoot himself with the rifle contained in the boot of his car. Course of the Proceedings 22 The following are three aspects of the course of the proceedings which should be referred to at the outset. Evidence as to an Object 23 The programme initially set for the hearing of the matter was interrupted near the commencement of the proceedings by an application by the Commissioner to vacate the dates which had been fixed for hearing. That application was based upon the service by the applicant upon the Commissioner of statements of evidence. The service of the evidence was late, being served outside the dates set in the timetable. The Commissioner contended that the statements of evidence filed raised fundamental new questions of fact. 24 The evidence included certain medical and forensic reports relating to a metallic object which the applicant claimed had been expelled from the same site of his body where he was initially wounded. It was submitted that the new material substantially altered the case and the nature of the material that the Commissioner was being asked to meet. Further, the Commissioner submitted that the evidence was significant as it went to the truth of the applicant's story as to the events of 25 April 1998. In that sense, it was submitted that it might be the case that the results would lead the Commissioner to reconsider his original decision to remove the applicant. It was submitted that more time was required to conduct examinations of the object as the case depended upon whether or not the applicant's version of events was the truth. 25 The applicant believed this evidence was crucial to his case as corroborative of his version of events and, as a result, he now planned to engage in a "head on" attack upon the medical and forensic evidence put forward by the prosecution in the Local Court proceedings. This "attack", grounded in the new evidence, would be in the form of calling expert witnesses to firmly counter the Commissioner's allegations. 26 The Commission granted the Commissioner's application to vacate the scheduled hearing dates as the dictates of justice required that the Commissioner be given more time to examine the material which was said to give rise to new issues in the proceedings. The Applicant's Police Shirt and the Gecado Air Rifle 27 A summons was issued by the applicant to the Commissioner for the production of various items and documents. Two of those items were the police shirt the applicant was wearing at the time of the incident and the air rifle found in the boot of his vehicle. Upon the calling of the summons on the date originally set for the hearing of the matter, Mr Willis submitted that the shirt had been cut up for forensic testing and only the cut up sections of the shirt could be supplied at that stage. These were produced to the Commission. Further, it was submitted the air rifle could not be produced as it had been destroyed following the Local Court proceedings in accordance with a court order. 28 The Commission required the Commissioner to file an affidavit as to the items not produced. In the result, an affidavit by Detective Inspector Champion was filed. The Detective Inspector detailed the circumstances of the non-production under the summons of the shirt and rifle. With regard to the rifle, Detective Inspector Champion deposed that the rifle remained in the custody of the Sydney Crime Scene Unit until the completion of the Local Court proceedings and then was destroyed pursuant to the order of the Magistrate, Mr McIntosh. As to the shirt, Detective Inspector Champion deposed that Detective Sergeant Roach had taken the shirt into his possession on the day of the incident and then returned it later that day. It was then taken to the Crime Scene Laboratory on 27 April 1998 and then later taken into the possession of Detective Sergeant Roach on 20 July 1998. The shirt was retained by the Crime Scene Section and produced in the Local Court proceedings. Upon the completion of the Local Court proceedings the shirt was returned to Detective Inspector Rees and retained at Fairfield Police Station. Detective Inspector Champion then deposed that, despite exhaustive inquiries, the shirt could not be located. 29 The absence of the shirt led the applicant to raise objections to the admission of parts of the evidence of a police expert witness called for the Commissioner, Sergeant Roach. Sergeant Roach had conducted ballistics and forensic examinations on both the gun and the shirt. The objections specifically went to the reports of Sergeant Roach dated 22 July 1998 and 28 March 2000. The objections broadly concerned the following: 1. In the case of the reports of Sergeant Roach dated 22 July 1998 and 28 March 2000, any reference to the breakage of fibre pertaining to the police shirt. 2. In the case of the report of 28 March 2000, opinions expressed as to what the applicant described as medical issues. 30 The second category of objection pertained to the Sergeant's opinions as to the metal object and the likelihood that it had expelled from the applicant's body some 18 months after the original wounding. 31 The first objection related to the loss or destruction of the police shirt. The applicant contended that the shirt was a critical exhibit; an essential issue being the cut, hole or tear in the shirt. In this respect the applicant referred to the evidence of Sergeant Roach in the Local Court proceedings which, it was submitted, showed inconsistency and/or ambiguity in what had been said about the cut, hole or tear. For example, it was submitted that there was a conflict between "the pellet entered" as opposed to "not penetrating the shirt", and between "a broken fibre of the shirt weave" and "breaking some cloth fibres". 32 It was submitted that the applicant would suffer prejudice as a result of the loss of the shirt. The applicant pointed to the evidence of Detective Inspector Champion under cross-examination (given during the course of the proceedings) to the effect that the shirt was an exhibit of critical importance. The Detective Inspector also conceded, it was submitted, that it was grossly unfair to the applicant that the shirt was not made available. Due to the absence of the shirt, the applicant was prejudiced from conducting any examinations on or analysis of it. 33 In light of these circumstances the applicant submitted that the Commission should make appropriate orders to remedy the prejudice to the applicant and to "address his quite intolerable position that interferes with a fair trial." It was submitted that this could be done by rejecting the tender of any evidence relating to the breakage of fibre and the opinions put forward by Sergeant Roach in his 28 March 2000 report where he stated that the damage to the shirt was completely consistent with pellet impact. 34 The Commission ruled on these objections and admitted the entirety of the report of 22 July 1998, thereby ruling against the applicant's objections arising from the loss of the shirt. The Commission upheld the balance of the objections earlier described. At the time of this ruling it was indicated that reasons for that decision would be given in the final decision in this matter. Those reasons are found later in this decision. The Discovery of the Applicant's Police Shirt 35 Some time after the decision in the proceedings was reserved, Mr Lynch of the Court and Legal Services section of the Police Service, wrote to my associate indicating that "an object" previously called upon by the applicant had been discovered. 36 Detective Chief Inspector Randall of the Mount Druit Local Area Command of the Police Service, swore an affidavit to the effect that upon receipt of a file concerning a Departmental Inquiry into the loss of the shirt he contacted the Exhibit Officer at Fairfield Police Station who informed him that the shirt was on hand with the other exhibits pertaining to the criminal charges brought against the applicant. During his investigation, Detective Chief Inspector Randall found that the shirt had been handed to a Constable Dixon of the Greater Hume Region Anti-Theft Unit, who had been given the shirt one day whilst at court by a detective he could not name. Constable Dixon then returned the shirt to the Fairfield Police Station. 37 By notice of motion the Commissioner sought to re-open the case in order to tender the shirt into evidence for the purpose of complying with the summons for production issued at the beginning of the proceedings. The orders sought in the notice of motion were in the following terms: 1. That the police shirt identified in the affidavit of Alan Maurice Champion be produced to the Commission in answer to the summons for production served upon the respondent by the Applicant. 2. That the evidence in this matter be re-opened. 3. That the police shirt identified in the affidavit of Alan Maurice Champion be admitted into evidence in the Respondent's case. 4. That the Applicant be given access to the police shirt identified in the affidavit of Alan Maurice Champion, for the purpose of conducting any tests and/or examinations upon it, relevant to the issues in this case. 5. That the Applicant be given leave to call evidence arising from any tests and/or examinations of the police shirt. 6. That the Respondent be permitted to cross examine any witness called by the Applicant to give evidence concerning any test or examination of the police shirt. 38 Detective Inspector Champion also swore an affidavit in support of the notice of motion requesting that the Commission make the orders sought notwithstanding the fact that the shirt was not available at the time of the hearing. 39 The applicant swore an affidavit in reply in support of his opposition to the re-opening of the case. He deposed that the application was grossly unfair and he was now being put through further emotional and financial burdens due to the gross negligence of the Commissioner. He further questioned the integrity of the explanation for the loss of the shirt, alleging that it was contrary to and difficult to reconcile with the evidence given on the subject at the hearing. Further, the applicant did not concede that it was the same shirt he was wearing on the day in question.

[54]

A procedure was then adopted to assist the Commissioner in determining whether or not to issue a notice pursuant to s181D(3)(a) of the Act. This involved a person entitled an 'analyst' preparing the profile, which was then provided to the Commissioner (after some scrutiny, in this case, by Detective Inspector Champion). The Commissioner played no role in the preparation of the Commissioner's Confidence Submission and at no stage received any of the source materials that were provided to the analyst. 3. Having reviewed the material in the Commissioner's Confidence Submission, the Commissioner determined that he would issue the Notice pursuant to s181D(3)(a). 4. The applicant made a submission to the Commissioner pursuant to s181D(3)(b). Together with his response, the applicant forwarded various documents to the Commissioner. These included the applicant's statement made on 27 April 1998 and numerous character references and messages of support. 5. An analyst then prepared an analysis of the applicant's submission. This document, together with the profile and the applicant's submissions and accompanying documents, were then provided to the Commissioner for the purposes of considering whether to issue an order. 6. The Commissioner read the above documents and determined that he would issue the order to remove the applicant from the Police Service. The preparation of the "Statement of Reasons", earlier referred to, was then undertaken. The document was prepared after a face to face meeting between Detective Inspector Champion and the Commissioner. They discussed, at this meeting, the points that had influenced the Commissioner's decision and which were considered important to be referred to in his reasons. Upon an agreement having been reached between the Commissioner and the Detective Inspector as to what should be referred to in the reasons for the decision, Detective Inspector Champion prepared a draft of those reasons. 7. Once a final draft of the Statement of Reasons had been settled, the Commissioner signed the order and it was served on the applicant along with the Statement of Reasons. The Profile 60 Detective Inspector Allen Maurice Champion, an officer attached to the police internal affairs unit, was provided the applicant's name as "a candidate for a Commissioner's confidence action" by the applicant's then commander, Superintendent Laycock. He was then assigned the task of preparing a "Commissioner's Confidence Submission" (hereafter "the profile") to a member of the internal affairs staff, referred to as an analyst. He gave instructions to prepare a summary of the applicant's service history, a summary of facts involved in the charges that had been proffered against the officer and the action taken by the Police Service to that point of time.

[59]

65 The standard operating procedure does not lay down any specific criteria as to the assessment of factual issues. The analyst/s examine the material provided to them in preparing the profile. They are required to consider the bona fides of the material supplied and to weigh up competing evidence, including the consideration of corroborative and scientific evidence. Where there are conflicts between versions of events, the analysts are instructed to "resolve the issue as best they can". In this case, Detective Inspector Champion conducted a final review of the profile before it was sent to the Commissioner. He examined whether the material was of an appropriate standard to progress to the Commissioner and whether it was in a suitable style having regard to grammatical and typographical accuracy. 66 The source material presented to the analyst in this case included a file described as CIS 98002582 brought into existence as the result of an internal investigation of the matter by Detective Inspector Rees, the officer in charge of the investigation into the events of the 25 April 1998, and a brief of evidence prepared in the Local Court proceedings. These two files were purported to be largely similar in terms of their contents. The source material included, inter alia, numerous statements of officers at the scene, medical reports concerning the applicant, reports from ballistics and other expert witnesses, photographs of the scene and a copy of the Magistrate's decision in the Local Court proceedings. More relevantly, for present purposes, is what the brief did not contain. It did not contain any of the transcripts or other record of the proceedings before the Local Court (other than the final decision). These transcripts were not obtained and were not before the analyst or the Commissioner at any time. 67 The profile forms the substantial basis of the applicant's complaint as to a denial of procedural fairness. This complaint goes to the lack of material before the analyst when preparing the submission and subsequently the manner in which the profile utilised the evidence from the source material. The issue also extends to the absence of such material before the Commissioner.

[65]

76 In his submission, the applicant expressed some concerns regarding the investigation and the treatment meted out to him by other officers. He wrote: If you think that I am being over sensitive about the manner in which I was treated, then may I point out to you just a few of the things that happened to me after I was wounded? Superintendent Laycock told me that he did not believe my account of what had happened and he told me that if I resigned from the Police Service he would not criminally or departmentally charge me, as I understand it, that conduct by Mr Laycock probably amounts to an intent to pervert the course of justice. I hope Sir, that you are aware that Mr Laycock and Mr Rees were both the subject of an Internal Affairs investigation which examined their conduct in relation to a variety of matters concerning the way I was treated. As I understand it, both Mr Laycock and Mr Rees had [adverse] findings made against them. Whilst I was waiting for my hearing in relation to the three charges that were brought against me, I was subjected to acts of vandalism, theft, vilification and harassment. Letters that were sent to me at the Fairfield Police Station were removed from my pigeonhole and destroyed, so too were some of my pay cheques. I was the subject of ongoing rumour and innuendo and on one occasion some drunken police attended the front of my house late one evening, and harassed my family and I. 77 The applicant put in his submission further examples of a similar nature, including some comments attributed to Inspector Laycock contained in a local newspaper. He submitted to the Commissioner (emphasis in original): Even after I was found not guilty of the charge of making a false report that I had been assaulted, Superintendent Laycock still could (sic) accept the Court's decision, and when he was interviewed by somebody from the Fairfield City Champion Newspaper, he said that "The firearm located was the one used to inflict the injury". I attach hereto a copy of that article. In fact, the very thing that the magistrate found was that the firearm found in the boot of my car was not the one that had been used to injure me. Thus sir, you may be able to see why it is that I am confident that no matter what I say in this response, will no change the minds of people like Mr. Laycock and Mr. Rees, or those other members of the Police Service who are incapable of accepting the decision of the magistrate. Returning to the two page document that was served on me with the Notice, I note that somebody who conducted an internal investigation found there was "insufficient evidence to support findings of 'Public Mischief' and 'Not Ensuring Safekeeping of Firearm' but found the issue of 'Possess Unlicensed Firearm' sustained". If only one issue was sustained, I ask why it is that all three issues are the basis of the Notice? 78 The applicant set out his employment history in his submission. This included reference to a number of commendations. He annexed a series of character references addressed to the Commissioner.

[70]

Constable Starr concludes "the very thing the Magistrate found was that the firearm found in the boot of my car was not the one that had been used to injure me". This was not the Magistrate's findings. The court did not reject the case out of hand, but found that a prima facie case existed. The expert ballistic evidence presented to the court was that the air rifle found in the boot of Constable Starr's vehicle was a 4.5mm air rifle. In the opinion of the expert the damage to Constable Starr's police shirt is consistent with having been caused by the impact of a pointed air gun pellet fired for (sic) a .177 calibre (4.5mm) firearm, with the muzzle held in hard contact with the material at the time of discharge. The expert was unable to state whether the rifle taken from Constable Starr's car was the firearm used in the shooting, as the absence of a spent air gun pellet precluded comparative examinations. The Magistrate was not satisfied beyond all reasonable doubt that the air rifle found in the boot of Constable Starr's car was in fact the rifle used in the offence. 82 Under the heading "Other issues", the analysis contained the following: Constable Starr raises, from the time of the shooting incident, that he has been subjected to acts of vandalism, theft, vilification and harassment. This matter is currently being investigated by the Greater Hume Region. To date there is no outcome for this complaint file. Starr is critical of the treatment he received by his Commander, Superintendent Laycock and the investigator Inspector Rees. An Internal Affairs investigation concerning this subject, produced an adverse finding. This investigation concluded that Commander Laycock did breach the Commissioner's Instruction and Circular concerning the questioning of police officers in disciplinary investigations. There were no adverse findings for Inspector Rees. Secondly, the investigation identified various combinations of events which, together with the supported management style of Commander Laycock, may have contributed to, or created an atmosphere of dissension within the Fairfield Local Area Command. It has been recommended that Commander Laycock receive counselling in relation to management related issues, including the ideology of Employee Management and the development of interpersonal skills. The Order and Reasons for Decision 83 Detective Inspector Champion swore two affidavits in these proceedings. In the first of these, dated 15 December 1999, the Inspector identified himself as the officer within the Police Service responsible for the management of the Commissioner's Confidence actions, including the management of the processes that led up to the issuing of the order against the applicant. He gave evidence as to the procedure that was followed during the s181D process and deposed that the material contained in exhibit 1 in the proceedings was the only material that was considered by the Commissioner in coming to a decision to remove the applicant. Exhibit 1 consisted of the following documents:

[74]

A. Yes, he said he had turned his mind to those. When I asked him individually he said yes, on his feeling of the material he found that those issues, as far as he was concerned, had been things that had influenced his decision. 87 The document was in the following terms: STARR S181D CONSIDERATION Grounds 1. Made false representation that you had been assaulted 2. Possessed a firearm without a licence 3. Failed to take reasonable precautions for safekeeping firearm The grounds fall into two categories - 1/2, 3. Commissioner's Case i. That the incident occurred ii. Evidence of witness seeing you at the boot with a long object shortly before incident iii. The fact of a firearm in the boot of your vehicle iv. Ballistic evidence that your inquiry is consistent with a firearm of the same type being fired against your stomach v. Clinical pathology evidence that your injury is consistent with a firearm of the same type being fired against your stomach (original emphasis) vi. Clinical pathology evidence that DNA from your shirt and the firearm is consistent on the basis of 2600 to 1 of the population vii. The court outcome in relation to the public mischief was based on the onus of proof of beyond all reasonable doubt. The matter was not dismissed out of hand as not brought in good faith. Starr's case i) Deny the shooting event ii) Claim the case was thrown out iii) Claim discrimination by LAC and investigator iv) Court only imposed the minimum penalty v) blank Interrogation of Starr's case What is the preferred version - - Ballistic and clinical evidence to suggest at a high probability that the incident occurred with the firearm nominated by the police - Evidence of independent witness to factual issues surrounding the case - Negated only by Starr himself - The question of managerial issues by Commander Laycock does not attract or detract from primary issue - The claim of lack of provision of materials is not an issue at this stage - The court did not reject the police case out of hand but on the criminal standard of proof Question of your credibility

[98]

106 The Commissioner denied there was unfairness in the decision making process adopted under s181D. Mr Willis submitted that the materials considered by the Commissioner in coming to his decision to remove the applicant were sufficient to allow the Commissioner to make an informed decision. Mr Willis indicated that the following information was available to the Commissioner: - At the relevant time and date, whilst on duty, the applicant left the police station and went to his private motor vehicle; - It is alleged that the applicant obtained an air rifle from the boot of his vehicle and wounded himself; - He called for assistance on police radio indicating that he was in foot pursuit of two Asian men, one of whom had shot him; - The applicant was subsequently treated in hospital for a minor stomach wound; - When the applicant's vehicle was searched, an air rifle was located; - An independent witness saw the applicant shortly before the incident at the boot of his car with a "long object"; - Summonses were issued against the applicant for offences of "public mischief", "unlicensed firearm", and "not ensuring safekeeping of a firearm"; - A ballistics expert examined the air rifle and the applicant's damaged shirt and formed the opinion that the damage to the shirt was consistent with having been caused by an impact of a pointed air gun pellet fired from an air rifle of the same calibre as that found in the applicant's vehicle; - The same expert was unable to state that the air rifle taken from the applicant's motor vehicle was the one used to cause his wound; - The Local Court Magistrate dismissed the "public mischief" information because he was not satisfied that the air rifle found in the boot of the applicant's vehicle was the one used; - The Director of Public Prosecutions withdrew the information relating to the safekeeping of the air rifle and the applicant pleaded guilty to the possession of it whilst unlicensed. That matter was dismissed under s556A of the Crimes Act; - An application for costs by the applicant was rejected and the Magistrate made no adverse comments concerning the investigation; - The investigator relied upon the court result in determining whether the issues were "proven from a departmental perspective."

[99]

107 The Commissioner was informed that the Magistrate dismissed the charge because he was not satisfied beyond a reasonable doubt that the rifle found in the applicant's car was the weapon used to inflict the wound on the applicant. However, it was submitted that the Commissioner was not bound to follow the Magistrate's decision or reasoning process. In contrast to criminal proceedings, it was contended, the Commissioner's decision was made on the balance of probabilities and not on the criminal standard of proof, namely proof beyond reasonable doubt. The Commissioner thereby applied the civil standard to the question of whether the applicant wounded himself. 108 In relation to the deficiencies in the evidence, Mr Willis submitted that the Commissioner did know that Mr Roach could not state that the air rifle found in the boot of the applicant's vehicle was definitely the one used to wound him. It was submitted that there were no concessions made by Mr Roach in this regard during the Local Court proceedings that were not already known. Mr Willis also defended the use of the evidence in relation to the description of the "long object". He contended that the witness consistently adhered to the same description of the object and it was always clear that the witness was not certain of the nature of the object. The witness qualified the description by saying the object was possibly a coat or a bag. 109 Mr Willis did, however, concede that the material before the Commissioner was inadequate in relation to the DNA evidence. As a result of not bringing certain matters to the Commissioner's attention, the information provided to the Commissioner was misleading as to its nature and effect. In oral submissions at the close of the proceedings, Mr Willis stated: … the respondent has to concede that there was at least misinformation contained within the profile in terms of the effect of the DNA evidence. That may well have resulted from a misunderstanding as to the nature of that evidence. The respondent has to accept that as a procedural problem. And the cause of that would seem to me to be that the transcript wasn't obtained and wasn't placed before the Commissioner or any part of it. Had it been it would be likely, in my submission, that that concession made by Mr Roach as to the DNA evidence would have been apparent and that it's effect would have been understood and accurately conveyed to the respondent to take into account in reaching his decision … The only aspect of the profile in which I would concede is wanting at all is that part of it which deals with the DNA evidence. 110 Further, when the Commission raised with Mr Willis for consideration that one problem in dealing with forensic evidence was that it was, by its nature, often construed as determinative or conclusive evidence which lends itself to few alternative inferences, Mr Willis agreed, stating that generally one can safely treat such evidence in that manner, however: … on this occasion the fact that it was found in the boot wrapped in the towel, Mr Roach properly conceded that the DNA found on the muzzle of the air rifle, as I understand it, could have come from the towel and it isn't determinative of the issue at all. 111 Nevertheless, it was submitted, that the inadequacy of the information provided to the Commissioner concerning the DNA evidence did not entitle the applicant to relief. Rather, Mr Willis submitted that the Commission "should examine the evidence on the substantive issues and take the Commissioner's difficulty with the DNA evidence into account as a factor in determining the ultimate question."

[128]

136 The jurisprudence which has arisen from applications for review made under s181E of the Act and its predecessors indicates that it is appropriate for the Commission, when determining whether the removal of an officer was harsh, unreasonable or unjust, to consider the process adopted by the Commissioner in coming to his decision. In Van Huisstede, there was occasion to consider the relevant authorities dealing with applications to review decisions of the Commissioner to remove police officers in whom he did not have confidence. It was stated, at 104 - 105: … the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree: ... it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: ... a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself ... That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons. What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. 137 I note that no contrary application of principle was argued in this matter. I adopt the above statements of principle in Van Huisstede in this matter. The failure to obtain or consider the transcript of the Local Court proceedings against the applicant constitutes a procedural flaw in the process adopted under s181D. This failure results in misconceptions of the veracity of certain evidence, particularly the ballistics and DNA evidence. Mr Docking urged that this flaw is itself a sufficient basis upon which to determine this case.

[129]

138 It was acknowledged in Van Huisstede that the failure of the Commissioner to adhere to the procedures set down by the Act or have regard to all relevant and available information may constitute grounds for concluding that the removal was harsh, unreasonable or unjust. It was said, at 106: Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No 2) or Oswald (No 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. 139 The passages cited from the decision in Van Huisstede indicate that the authorities under the Act have identified two relevant issues that may arise from the method adopted by the Commissioner in removing a police officer. Firstly, the Act sets down, in s181D(3), certain procedures which must be followed by the Commissioner when removing an officer under that section. The Commissioner must give the officer a notice setting out the grounds on which he does not have confidence in the officer, allow the officer to make written submissions and take into account any written submissions made by the officer. Secondly, the cases of Bigg v NSW Police Service (No.2) (1998) 80 IR 434 and Oswald v NSW Police Service (No.2) (1999) 90 IR 42 indicate that, following the decision of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, the discretion conferred on the Commissioner must be exercised in accordance with the rules of reason and justice. Under this ground, it is open to the Commission to assess whether the Commissioner considered all information and materials available both in favour and against the officer. It is this kind of argument which is raised by the applicant in this case.

[133]

143 As discussed, it may be appropriate for particular matters to be resolved upon the basis of procedural flaws of the kind characterised in Bigg (No 2) and Oswald (No 2) (see also Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389). However, it should also be noted that in other matters it might be undesirable on the facts and circumstances to strictly distinguish procedural and substantive issues for the purposes of determining whether a removal (or dismissal in ordinary proceedings under Part 6 of Chapter 3 of the IR Act) was harsh, unreasonable or unjust. This accords with what was said by members of the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ; at 466 per McHugh and Gummow JJ: see also Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456. Onus of Proof in relation to the Substantive Issue 144 It will be remembered that in Van Huisstede the applicant alleged that his removal was harsh, unreasonable or unjust both by virtue of the process adopted by the Commissioner and as a result of the substance of the decision. In that case, the Commission concluded that the deficiencies in the process adopted by the Commissioner provided a sufficient basis to determine that the applicant's removal from the police force was harsh, unreasonable and unjust. Because of the way the case was argued by the parties in that case the judgment went on the consider the substance of the allegations and a finding was made in favour of the applicant. In so doing, the Commission did not consider it necessary to express an opinion concerning the question of onus. It was stated (at 116): 235. In making these findings, I do not think it necessary to express an opinion concerning whether the Commissioner bears the onus of establishing that an officer removed under s181D is guilty of the misconduct alleged against him or her: see Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83 - 84 and Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463 - 464. In this case, I consider that the veracity of the allegations may be determined without recourse to the question of onus, as I consider that the applicant has made out his case even upon an assumption that he bears the onus and evidentiary burden as to all the relevant matters in dispute (see Bankstown City Council v Paris , at 13).

[141]

Incidence of Onus in Unfair Dismissal Cases under Part 6 153 Having regard to the statutory framework and the submissions advanced by the parties, a useful starting point is a consideration of the approach to the question of onus that has been adopted in unfair dismissal applications generally. An employee claiming to have been unfairly dismissed bears the onus of establishing that his or her case is a proper one for the Commission's intervention: see Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279. The burden lies with the employee to provide evidence to prove to the Commission that the dismissal was harsh, unjust or unreasonable. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct or incompetence it will be for the employer to establish that the alleged misconduct or incompetence in fact occurred and warranted dismissal. 154 In Pastrycooks, for example, an employee was summarily dismissed for an alleged failure to follow what the employer believed to be a lawful order. In the course of dealing with the question of onus Hungerford J stated (at 83 - 84): It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street [1947] AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) [1949] AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 and Homebush Abbattoir [1966] AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW 547 at 552, 553; North Television Corporation Ltd [1976] 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1975) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: "Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principles to regard fault as a particular exception defeating the right only when alleged and proved." The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submissions on onus, Mr Walton referred to the judgment of Dey J in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355 in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority. 155 Some questions have been raised as to the notion of a shifting onus in cases of alleged misconduct. In Bigg (No 2), the Full Bench discussed the decision in Pastrycooks where Hungerford J referred to a shift in the evidentiary burden. The Full Bench said (at 455): The concept of "a shifting onus" has only recently been discussed in industrial decisions and more often in submissions, particularly where parties wish to obtain a spurious lexicographical advantage. Such a term can seldom be right and is always confusing. In the common law courts the onus is usually readily identified as falling upon the party who moves the court for an order. In the course of the hearing the onus rarely changes and then only where statutory intervention has altered common law concepts. What frequently occurs, however, is that during the course of a hearing, the evidentiary burden shifts from one party to another. 156 Whether the terminology of an "evidentiary burden" in Bigg (No 2) or of a "legal burden in an evidentiary sense" in Pastrycooks was preferred, it appears that essentially the same conclusion may be reached, at least in the procedural sense of resolving issues as to evidence as may arise in unfair dismissal proceedings where the employer asserts that an employee has engaged in misconduct. Where an allegation of misconduct is raised, the employer must prove the misconduct occurred: see also Coles Myer Ltd v Shop, Distributive and Allied Employees Association (1989) 27 IR 299 at 303 - 304; Franklins Ltd v Mervyn Webb (1997) 72 IR 257 at 261 and Wang v Crestell Industries at 463 - 464. A similar approach to the question of onus in dismissal cases has been adopted in the federal jurisdiction: see, for example, North v Television Corporation (1976) 11 ALR 599 at 602 - 603 and Miller v Australian Industrial Relations Commission (2001) 104 IR 415 at 429.

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157 The question of onus in unfair dismissal matters was further considered in Wang v Crestell Industries, where the Full Bench considered an appeal by three employees who had been summarily dismissed by the respondent who alleged the employees had been stealing materials from the workplace. At first instance, Commissioner Connor considered the decision of Hungerford J in Pastrycooks applied and the employer bore the burden of establishing the misconduct. The Commissioner found that the employees had engaged in the criminal activity of stealing Crestell's products to use in a business operated from one of the employee's homes. As a result, their dismissal was justified. 158 On appeal, the employees claimed this finding was not supported by the evidence. In upholding Commissioner Connor's decision and considering the principles relating to onus and standard of proof in such matters, the Full Bench stated (at 463 - 464): The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employee's Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299. 159 Thus, the relevant standard to be satisfied in relation to allegations of misconduct against employees is on the balance of probabilities. However, that standard must be satisfied to a degree which is appropriate to the gravity of the facts to be proved. Hence in New South Wales Bar Association v Livesey [1982] 2 NSWLR 231, it was considered that a finding which may put a career in jeopardy must be made with regard to such considerations of the gravity of the facts in issue. The most often cited case for such a proposition is Briginshaw v Briginshaw, which was again confirmed recently by this Commission in Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1. In that case, the Full Bench of the Commission noted that the principle in Briginshaw v Briginshaw is now embodied in s140 of the Evidence Act 1995, which provides: 140. Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 160 The Full Bench pointed out that the principle in Briginshaw v Briginshaw had been applied in unfair dismissal cases when considering allegations against an employee of serious misconduct involving criminal conduct. However, the Full Bench noted (at 7): Ordinarily, the principle in Briginshaw v Briginshaw is applicable to findings of criminal conduct or fraud (see, for example, Neat Holdings ), however, the statements of principle may be applied to allegations of a broader nature. In all matters, it is necessary for a tribunal to consider the nature and seriousness of the allegation made before finding it proved at the requisite level. 161 If an employer cannot prove to the requisite standard the misconduct or other acts said to justify dismissal then it will usually be found that the dismissal was harsh, unreasonable or unjust, although the relief granted in any particular matter will depend upon the various discretionary considerations: see, for example, the approach adopted in Pastrycooks at 98 - 99 and Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [36]. Burden in Proceedings concerning the Removal of a Police Officer 162 The incidence of legal or evidentiary burdens may be altered by statute. Legislation may dictate expressly that a certain party bears the onus of proving a particular fact or a burden may be established by necessary implication from the legislative framework. An example of the former type of provision may be found in s95 of the IR Act which provides that, in proceedings for the reinstatement of an injured employee, it is presumed that the employee was dismissed by reason of the injury. It is for the employer to show that the injury was not a "substantial and operative cause of the dismissal of the employee." Examples of burdens shifting as a result of necessary implications from statutory provisions may be found in Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 and Darling Island Stevedoring & Lighterage Company Limited v Jacobsen (1945) 70 CLR 635. The latter case was discussed by Hungerford J in Pastrycooks.

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163 A number of decisions have had occasion to consider the question of onus in the case of applications for the review of a decision of the Commissioner to remove a police officer under previous provisions of the Act. The decision of the Full Bench in Bigg (No 2) considered the reinstatement of an officer who had been removed pursuant to s181B of the Act (now repealed). Section 181B was introduced into the Act as an immediate measure to combat corruption in the Police Service exposed by the Police Royal Commission. It allowed the Commissioner to order an officer's removal if, on the basis of information arising from the Police Royal Commission, he had formed the opinion that the officer had engaged in corrupt conduct and was no longer fit and proper to hold a position in the Police Service. 164 Mr Bigg was removed from the Police Service by the Acting Commissioner pursuant to s181B after evidence given in the Royal Commission alleged that he had received corrupt payments and engaged in other criminal activity. At first instance, Fisher P in Bigg v NSW Police Service (1997) 72 IR 330 considered that Mr Bigg carried the onus of securing the Commission's intervention and declined to grant reinstatement. 165 Mr Bigg appealed to the Full Bench of the Commission. In the course of its judgment, the Full Bench conducted an extensive inquiry into the nature of the legislative scheme. In particular, the Full Bench noted the "tension" between the radical provisions for police removal and the unfair dismissal provisions of the Industrial Relations Act 1991. It was noted (at 449) that s246 of the Industrial Relations Act 1991 proceeded upon review with the notion that such proceedings generally required "at least credibility and belief of the detrimental information on which an employer acted in determining to dismiss to be established". However, s181B of the Police Service Act enabled the removal of an officer on the basis of an "opinion" formed by the Commissioner, arising from information over which the officer had no control. 166 The question of onus then arose, both in relation to the procedure and evidence supporting the allegations against Mr Bigg. The Full Bench rejected the argument that the approach in Wang v Crestell Industries should apply and concluded that the Commissioner did not bear the onus of proving that the conduct had occurred. The Full Bench noted that the decision to remove Mr Bigg was made following the formation of an opinion by the Commissioner under s181B of the Act. The question was not whether the employer had fairly, or properly, exercised a contractual right of summary dismissal. At 456, the Full Bench said: Given the circumstances in which the legislature has provided for that opinion to be formed under s181B of the Police Service Act , namely coerced and untested evidence before the Police Royal Commission, there cannot be an onus on the Acting Commissioner in any later reinstatement proceedings before the Industrial Relations Commission to establish that any corrupt or criminal conduct in fact occurred. To adopt that approach would require this Commission to ignore the statutory scheme, a new scheme not previously considered in Wang or cases there referred to. In our view, were such an approach adopted, the result would make the s181B process almost nugatory. The result would be that an opinion formed by the Police Commissioner on the basis of information before the Police Royal Commission that a police officer had engaged in corrupt or criminal conduct would permit dismissal, but if acted upon, unless the information could later be proved by the Police Commissioner to the necessary civil standard if challenged, reinstatement before the Industrial Relations Commission must flow. It would seem s181B provided a fast track for dismissal and an equally fast track for reinstatement. We reject a construction of the section which would have that result. 167 The Full Bench rejected the notion of the Commissioner having an onus of proof on the basis that it would not give effect to a statutory scheme which allowed the Commissioner to remove an officer on the basis of information revealed before the Police Royal Commission.

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168 However, the Full Bench did not consider that this completely dealt with the question of proof. The Full Bench stated that the extraordinary powers and authorities conferred by the Act required a careful and punctilious regard to correct procedure. As discussed earlier in the judgment, the Full Bench concluded that there was an evidentiary burden on the Commissioner (once the applicant has produced evidence to suggest otherwise) to show that the decision to remove the officer was made in compliance with the procedures laid down in the Act and to demonstrate that he had met the obligation to act in a manner which allowed no allegation of an uninformed decision. It was on this basis that the Full Bench found in favour of Mr Bigg. The Commissioner failed to discharge his evidentiary burden to show that he had complied with the procedure prescribed by s181B. This approach was followed by the Full Bench in Oswald (No 2) at 57. 169 In Van Huisstede, the Commission considered that the Act in its present form also established that once an applicant raised sufficient doubt as to whether procedural requirements for removal had been met by the Commissioner, the Commissioner then bore the evidential burden of establishing that those requirements were satisfied. It was stated (at 107): This view is supported both by the Full Bench in Oswald (No. 2) and by the structure of the review established by s181F. Section 181F requires that the Commission consider the reasons of the Commissioner, then the case put by the applicant and finally any case presented by the Commissioner in response. If, in the case brought by the applicant, doubt is raised as to compliance with the procedural requirements of the Act, that matter would then need to be answered in the case brought by the Commissioner. 170 Mr Willis concluded, from the approach in Van Huisstede, that there was a burden on the Commissioner in this case to demonstrate that alleged misconduct had occurred. What remains for discussion is whether this concession was properly made.

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171 The concession made by Mr Willis was, in my view, sound having regard to the circumstances of this case. The question of onus in this matter may be resolved in line with the approach adopted in Bigg (No 2) and Oswald (No 2). Those cases, it will be remembered, were decided on the basis that once the applicant had produced evidence casting sufficient doubt on whether the Commissioner had adhered to the procedures set down by the Act or raised a substantial allegation of an uninformed decision, the burden passed to the Commissioner to demonstrate that the decision was properly made. It was said in Bigg (No 2) (at 458) that if the material provided in the reinstatement case by the applicant called for rebuttal by the Commissioner, then "an evidentiary burden shifted to the … Commissioner to demonstrate that the requirements had been observed." In Van Huisstede, it was found (at 107) that the same approach is appropriate under the present provisions of the Act, notwithstanding the presence of s181F(2). There does not appear to have been a provision equivalent to s181F(2) in the legislation considered in Bigg (No 2) and Oswald (No 2). 172 In Bigg (No 2) and Oswald (No 2), the consideration focussed on whether the Commissioner had discharged the evidentiary burden of establishing compliance with the requirements of the Act or that the decision was properly informed by the available evidence. As has been discussed, in this case also the Commissioner failed to consider available evidence that would have assisted the applicant's case, namely, the transcript of the Local Court proceedings. The Commissioner was, as a result, not aware of deficiencies in the evidence he relied upon when deciding to remove the applicant from the Police Service. Mr Willis conceded that the Commissioner's decision was misinformed, at least in relation to the nature and strength of the DNA evidence. On the approach adopted in the earlier cases, it then falls for the Commissioner to establish that the decision to remove the applicant was properly made. 173 Having reached this point in the consideration, it is difficult to avoid the conclusion that the Commissioner bore the evidentiary burden as to both the procedural and substantive issues. The essential approach of the Commissioner in this matter was to make a finding, on the basis of the evidence before him, that the allegations against the applicant were made out and to conclude that the Local Court finding was insufficient to vindicate the applicant. It was found earlier in this decision that the Commissioner's decision was founded on an inadequate assessment of the available evidence. Once it has been demonstrated that the Commissioner's reasoning process was attended by doubt of the kind referred to in Bigg (No 2) and Oswald (No 2), it must fall to the Commissioner to demonstrate that the misinformed decision could be otherwise justified, notwithstanding his failure to consider all the evidence. Because the defect in the Commissioner's decision-making process goes to the validity of his factual findings, the burden extends, in my view, to establishing an evidentiary basis for those findings. 174 In this case, the Commissioner, quite properly, responded to the applicant's case by seeking to introduce evidence establishing that the applicant was guilty of the conduct alleged. Mr Willis contended that the removal was justified, notwithstanding the failure to consider the Local Court transcript, having regard to the evidence introduced in these proceedings concerning the conduct of the applicant. It was the Commissioner's case that the applicant used the air rifle found in the boot of his car to wound himself and hence made a false report. The Commissioner sought to introduce evidence to demonstrate that this was the case. As has been mentioned, Mr Willis submitted that the Commissioner had discharged "his evidentiary burden" of establishing that the applicant committed the conduct relied upon by the Commissioner in making his decision. 175 The structure of the review to be conducted by the Commission dictated by s181F(1) supports the conclusion that the Commissioner may bear some evidentiary burden at this point. That section requires the Commission to consider the Commissioner's reasons for removing the applicant, then the case presented by the applicant as to why the removal is harsh, unreasonable or unjust and finally the case presented by the Commissioner in response. In Newton, the Full Bench emphasised the importance of adhering to the procedure laid down in s181F(1). The Full Bench stated (at 75): Section 181F(1) is prescriptive as to the matters which the Commission must consider when entertaining an application brought under s181Eof the Police Service Act. While s181F requires the Commission, firstly, to consider the reasons provided by the Commissioner of Police for the decision to dismiss, it also requires the Commission to consider, secondly, the case presented by the applicant as to why the dismissal was harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner of Police in answer to the applicant's case.

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179 The fact that the decision to remove an officer is based on the Commissioner's confidence does not, in my view, alter the conclusion reached above. The Act does not permit the Commissioner to determine that he does not have confidence in the suitability of an officer to continue as a police officer in a manner that is arbitrary or capricious: see Bigg (No 2) at 457. As mentioned, the finding on confidence must relate to the officer's competence, integrity, performance or conduct. Where, as in this case, the Commissioner bases his confidence decision on express findings of fact, it is not, in my view, inconsistent with the provisions of the Act for the Commissioner to be obliged to produce evidence establishing those allegations in subsequent proceedings. It does not render s181D inoperative to require the Commissioner, once sufficient doubt has been cast on the fairness of the decision, to provide evidence that would vindicate his factual findings. 180 Nor do I consider that s181F(2) precludes the conclusion that the Commissioner may be required to produce evidence vindicating his factual findings. This provision may, in my view, be construed as merely stating the general proposition that the applicant must establish his or her case. This proposition does not preclude the possibility that an evidentiary burden may shift during the proceedings. As was said in Bigg (No 2) (at 455), "in the course of the hearing the onus rarely changes and then only where statutory intervention has altered common law concepts. What frequently occurs, however, is that during the course of a hearing, the evidentiary burden shifts from one party to another." Indeed, the structure of the review contained in s181F(1) must involve some shift in the burdens depending on the portion of the case being considered by the Commission. 181 This discussion is, in my view, sufficient to resolve the question of an evidentiary burden in this case, namely, that the Commissioner bears the onus of demonstrating that the applicant had wounded himself with his own weapon (located in the boot of his car). That is the essence of the allegation specified in ground 1 of the notice. Nothing in this conclusion affects the requirement that the applicant make out a case to warrant the intervention of the Commission in ordering reinstatement. I note that part of the case brought by the applicant in that respect concerned his contention as to the discharge of a metallic object from his body on 19 November 1999.

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190 In deciding whether or not to accept the applicant's version of events, Mr Willis submitted that the applicant's credit was affected by a number of inconsistencies in his story. It was submitted that the inconsistencies arose because the applicant was being untruthful. Three major inconsistencies were said to exist between the applicant's account and other evidence. Firstly, it was submitted that Sergeant O'Keefe contradicted the applicant's statement that he requested Panadol. Secondly, it was submitted that the applicant's account conflicted with the evidence of Mr Humphreys that he saw the applicant at the boot of his car with a "long object". Finally, it was submitted that inconsistencies existed between the applicant's claim not to have seen a weapon and the evidence of other witnesses, including Sergeant O'Keefe, Constable Stroud and Constable Deeley, that the applicant had described a weapon. 191 As to the issue of motive, Mr Willis submitted that it would only be speculative to suggest one. Put simply, the applicant's behaviour is disturbing and does not justify him remaining a police officer, regardless of the reason behind the conduct. 192 In response to issues raised by Mr Willis, Mr Docking submitted that the inconsistencies in accounts of the other police officers could not be used as evidence of lying or dishonesty on the part of the applicant. The accounts of the other officers were not entirely consistent with each other. Any inconsistencies with the applicant's story could be explained by the confusion of the applicant and chaotic nature of the scene. There was no evidence, it was contended, to show that there were "incomprehensibly contradictory" accounts of what was said by the various witnesses. 193 In relation to whether the applicant had a conversation with Sergeant O'Keefe about Panadol, Mr Docking submitted that the end result of Sergeant O'Keefe's evidence was that he could not remember the conversation. When a witness who has no recollection was placed alongside a witness who does, the witness who does recall the events should be preferred. Further, it was put that if it was considered that the applicant was lying, it was not a matter which would significantly affect his credibility. The Evidence Relating to Events of 25 April 1998 194 The evidence in these proceedings comes from a variety of sources. Evidence was adduced directly in these proceedings from the applicant and a range of other witnesses. Relevant parts of the transcript of the Local Court proceedings were also tendered. Expert and medical reports were also commissioned and tendered and experts and medical practitioners were called to give evidence. It is proposed here to examine some critical aspects of the evidence. This examination is not intended to be an exhaustive summary of the entirety of the evidence in the proceedings, but to crystallise the evidentiary issues, as well as give reasons in relation to rulings made on objections to particular evidence. The Applicant's Account of the Events of 25 April 1998 195 In his written statement to the Commission, the applicant gave an account of the events of 25 April 1998 by reference to his statement made on 27 April 1998. The events that initially took place during the applicant's shift on the evening of 24 April and morning of 25 April have been set out earlier in the decision. The events now in issue occurred after the applicant returned to the Fairfield Police Station. The applicant's statement of 27 April 1998 identified those events as follows: 14. When we arrived at the station we drove the truck into the driveway, removed the prisoner from the back of the truck and he was placed into the dock of the chargeroom. I gave his details to Jim Deeley, the Custody Officer. He was pat searched, placed in the dock. Rob went into the station area, Jim was still on the computer, I walked into the station and I said to Rob will you be right with him for a minute, I just want to duck to my car. Rob said sure, no worries. I returned to the truck, got the keys out of my bag in the truck, I walked back through the station, out into Smart Street, left into Spencer Street to my car. 15. I went to the left hand passenger door and took two Panadol out of my glovebox and then I went to my boot and got a bottle of fountain water. I took the Panadol, I threw the water bottle onto my back seat. Whilst I was taking my tablets an old digger walked past and I had a conversation with him. We were talking about the old days. He was telling me when he was a kid and you did something wrong the coppers would give you a kick in the bum. He said the laws are too soft today, younger people had no respect and that the coppers do a good job. This same man walked past me later that morning when I was on the ground and I saw Jim Deeley speaking to him and I'm sure Jim got his name. 16. The digger walked off towards Smart Street and I shut my car and I walked back across the road diagonally towards a group of shops and I heard a noise to my right and rear. I looked over my shoulder looking towards the court house. I had nearly reached the footpath on the Western side of Spencer Street when I saw a male climbing over a fence. I'm not sure if it was a brick fence or a cement rendered wall. 17. I stopped and watched. I then saw another male come over the same wall. It was a wall between the shops and the courthouse. I saw a white coloured Ford which I believed to be a court house car parked in a driveway in a 90 degree angle to Spencer Street. They both got over the fence when the first male just looked at me. He said something in a foreign language and they both bolted towards Court Road. I chased them. I yelled out, "Stop." I called on the police portable radio, "Fairfield 17, foot pursuit, Spencer Street." 18. I continued running after them. When I got to Court Road I grabbed the second bloke, who was the male I didn't' see climbing over the fence. I grabbed him on the right shoulder. The other bloke kept running. He spun around, facing me. I didn't see anything. I didn't see him pull anything out. I just felt something pressed against my stomach. It felt like a finger but it was hard. I then heard a popping noise. I let go of my grip, I continued to chase him. I only took a couple of steps when I felt pain in my stomach and I think I got as far as the service station on the corner of Court Road and Alan Street. I then realised that something was wrong. I had my hand where the pain was and when I looked down I could see drops of blood on my shirt. 19. I called something on the radio but I can't remember what it was however I do remember I gave the description of a male, Asian, wearing dark coloured clothing whilst I was at the service station. The next thing I know is Rob Albert, Sergeant O'Keefe and Rebecca Stroud were around me. Sergeant O'Keefe had his jacket under my head and Rebecca had hold of my hand. I remember Sergeant O'Keefe was talking on the police radio. There was a number of police but I remember a man in a suit, I don't' know who he was, I don't even know if he was a cop. He had a note pad and a pen and he was asking me question. This person was wearing glasses. I have since seen a photo of this person in the Telegraph. I now know he is a Detective Sergeant from the Homicide Squad. 20. It seemed like ages but when the Ambulance arrived they treated me. Someone removed my gun and then my gun belt. I don't know who it was. I was then conveyed to Liverpool Hospital. 21. I remained in the Liverpool Hospital until Monday 27th of April, 1998 when I was released and I was driven to my parents address where I have made this statement. Earlier today the Surgeon that operated on me, I'm not sure of his name, came and saw me and said that I've found nothing in your wound, it could have been a crude or home made weapon. There was a doctor that spoke to me on the Sunday 26th of April who may have been Indian or Asian and this doctor was the doctor that told me he wanted me to stay a few days. I still have the hospital tag on my wrist. It had the name Professor S.DEANE but I was never introduced to a Professor Deane. 22. I would describe the person that struggled with earlier that day as being male, Asian, late teens to early twenties, 5 foot 7 to 8 tall, thin build, he had jet black hair which was straight, parted in the middle and shoulder lenght (sic) , similar to a girl's hairstyle. He was wearing a black tracksuit with a sports logo. It had a white stripe, either two or three on the jacket only, not on the pants. This jacket appeared to be too big in size for the person wearing it. He was wearing runners which were dirty grey in colour. He was clean shaven and looked baby faced. I would recognise this person if I saw him again. 23. The second male was also Asian. He was wearing a baseball style cap. He was a little bit taller. He was about the same age. He was also wearing dark clothing. I would not recognise this person as I did not get a good look at him. This person was also not carrying anything in his hands. When I first saw these two persons as they climbed over the wall I was approximately six metres in distance from them. The area is fairly well lit due to the lights in the shop windows and also the street lighting although I was not wearing my police cap I believe that they would have no difficulty in knowing that I was a police officer. At no stage during this incident did I remove my police service revolver from its holster. 24. I did not give any person permission to assault me in any manner whatsoever. Inconsistencies with other evidence 196 Questions were raised during the proceedings concerning the veracity of the applicant's version of events and the consistency of this account with the other evidence. As has been mentioned, Mr Willis alleged three specific inconsistencies existed in the applicant's story. It is proposed here to set out some of the evidence relating to the alleged conflicts between the applicant's account and other evidence.

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217 None of the treating doctors from the applicant's time in hospital, nor any of the doctors that produced the reports tendered into evidence, were called to give evidence in the proceedings. Mr Docking objected to the admission of these documents on the basis that the applicant would be denied the opportunity to cross-examine the medical practitioners involved. The Commission ruled that the documents should be admitted into evidence. In these proceedings, the Commission is not strictly bound by the rules of evidence: see s181G(1)(f) of the Act and s163 of the IR Act. The documents were relevant and probative, and the applicant suffered no serious prejudice as a result of their admission. In any event, the documents would be admissible as a business record: see s69 of the Evidence Act 1995. 218 A radiology report indicated that x-ray examinations were conducted of both the applicant's chest and abdomen. The report was in the following terms: CHEST: No evidence of pneumoperitoneum is seen No abnormality can be identified in the heart or lungs ABDOMEN: No abnormality can be identified in the distribution of bowel gas. No other abnormality can be identified The upper abdomen is incompletely seen. 219 The document headed "Trauma Assessment" contained, inter alia, a section headed "Physical Findings", which, on diagrams of a human form, identifies where the injury was visible upon physical examination. The document was marked to indicate an "entry wound" on the right hand side of the applicant's abdomen, about midway between the base of the applicant's rib cage and the top of the applicant's right hip. It further noted that there was no exit wound and noted that there was "no obvious radioscopic F/B" (foreign body). 220 A document headed "Operation Report" indicated that on 25 April 1998, the applicant was the subject of an exploratory examination at the site of the wound and an exploratory laparoscopy. The notes (handwritten) were in the following form: OPERATION PERFORMED: Exploration? Gunshot wound Laparoscopy DETAILS OF PROCEDURE: · Penetrating wound, 3mm · Explored · Dermis not breached · Sutured (4/0 Nylon)

[215]

231 The details of the examinations conducted by Sergeant Roach have been given earlier in this decision. It is sufficient to note that he examined the shirt and reported a circular damaged area approximately 5.5mm in diameter showing yellowish coloured residue and a broken cloth fibre and a larger circular pattern surrounding this area which measured approximately 15mm in diameter. As has also been discussed, Sergeant Roach carried out a number of pellet impact tests on the police shirt material using the rifle found in the boot of the applicant's car and six brands of lead pellets suitable for use in air guns. Separate tests were conducted with the muzzle pressed against the material and with the muzzle held approximately 2.5 metres away. Telephone books were used as the backing for the material, both as a support and to trap the pellet upon firing. 232 Sergeant Roach made the following observations of these tests: · The impacts of the pellets with the material at contact distance appeared less severe on the material than those fired from approximately 2.5 metres distance. · The contact impacts produced a more regular (circular) discoloured halo around the impact site than those from impacts at distance. · The impacts from distance left a more pronounced lead smear on the material than those fired from contact. · Impacts at contact left the pellet jammed into the muzzle of the firearm on most occasions, whilst falling straight to the ground on others. Impacts at distance embedded into the material and phone book more deeply or bounced off onto the ground. · The impacts of some of the pointed pellets only produced breakages of the material fibres. · No appreciable stretching of the material in a larger circular pattern surrounding the smaller inner impact point at contact distance. More noticeable but irregular stretching seen on some of the distant impacts. · Of the six brands and styles of pellets tested, the WINCHESTER (pointed) fired at contact distance produced damage most similar in appearance to that observed on the exhibit Police shirt … 233 Under the heading "Summary and Opinions" Sergeant Roach stated the following: (a) In my opinion, the damage to the front lower right side of the exhibit Police shirt, (13a), is consistent with having been caused by the impact of a pointed air gun pellet fired from a .177 calibre (4.5mm) firearm, with the muzzle held in hard contact with the material at the time of discharge. (b) The inner and outer diameters of the impact damaged area on the exhibit Police shirt, (13a), are similar in size to the inner and outer diameters of the barrel of the exhibit GECADO air rifle, (10a), at the muzzle.

[217]

235 As discussed earlier in this decision, Sergeant Roach conceded during the Local Court proceedings that the tests conducted failed to discover any residue, oil, fibres or blood linking the air rifle found in the applicant's car with the shirt. Further, Sergeant Roach conceded that any matching DNA material recovered from the air rifle and shirt could have come from a number of different sources, one being the towel in which the rifle had been found. Sergeant Roach reiterated both these concessions in his evidence in these proceedings. 236 Sergeant Roach also conceded that the damage to the shirt was consistent with a pellet being discharged from any other .177 calibre air or gas powered rifle, pistol or home-modified firearm. During cross-examination in the Local Court proceedings, Sergeant Roach at one point agreed that it was "most unlikely that that [the weapon found in the applicant's car] was the weapon that caused the wound to Mr Starr." In these proceedings, Sergeant Roach insisted that this statement was made in response to a particular line of questioning. He nonetheless agreed that "it is likely it [the air rifle] could have been [used], but not more likely than any other weapon of that particular class, so I suppose that equates to a possibility." 237 Mr Docking attacked the findings and methods adopted by Sergeant Roach in a number of respects. Mr Docking noted various discrepancies in the various references to the size of the hole in the shirt and whether there had been one or more than one broken fibre. In cross-examination the Sergeant conceded that he had not used any accurate measuring device to record the size of the hole, nor had photographs been taken. Rather, he made only a determination based on a rule of thumb. Sergeant Roach admitted in cross-examination that no precise measurement was made when the shirt was further analysed by him on 22 July 1998. 238 Mr Docking also drew attention to the evidence given by Sergeant Roach concerning the hole in the shirt in the Local Court. The prosecutor led from the Sergeant that there was a break in the fibre which was presumably where the pellet had entered. The examination-in-chief in the Local Court included the following exchange: Q. Do I understand that, in layman's terms, that you've got a smaller five millimetre or so diameter circle of yellowish staining? A. Yes Q. Which is contained within a large 13 or 15? A. It's about a 13, about a 13 millimetre diameter. Q. 13 millimetre larger circle with the crest stretching on either side of that circle. A. Yes. Q. And in the very middle is a small cut in the fabric? A. Yep. Q. Break in the fabric? A. Break in the fibre, yes. Q. Break in the fibre of the fabric which is presumably where the pellet entered? A. That's right, yes. 239 When questioned by Mr Docking about this exchange, Sergeant Roach could not remember agreeing that the broken fibre was presumably where the pellet had entered. Upon his memory being refreshed from the transcript passage above, the Sergeant confirmed his observation that the pellet had entered the shirt: Q. And that confirms, doesn't it, that the pellet had, according to your observations, entered the shirt? A. Yes it does. Q. By "entered the shirt" that means it had cut, put a tear, put a hole in the fabric? A. It had breached that fibre.

[265]

280 Dr Cala's report contained the following discussion and conclusions in relation to the object: In my opinion, I do not believe this "object" represents a spent air rifle projectile. I have seen air rifle projectiles previously, and the "object" I examined bears no similarity to any of these air rifle projectiles. I am unsure of the exact nature of this "object", and would suggest a metallurgist or similar person working in the metals industry examine it for their opinion. Although it resembles a ball bearing in size, it is not shiny nor spherical in shape. I am unsure as to the exact nature of this but it may represent a cast-off or waste product from the steel or iron foundry industry. ... I do not believe it is possible that this object, whatever its nature, was shot into the abdomen of Constable Starr on 25 April 1998. I do not believe that abdominal x-rays which were taken at the time would fail to show up this object had it been in the skin, subcutaneous tissue or abdominal cavity of Constable Starr. As well, this object is clearly not that of an air gun pellet but some other metallic object, possibly from the steel making process. Constable Starr may have been shot in the manner he has described in April 1998, however there is no evidence at all that any projectile entered his body at the time. I believe it is more likely that the "object" I was shown was introduced into the front of the abdomen of Constable Starr some time after 27 April 1998, and possibly several days or weeks prior to 13 August 1999. I do not believe that Constable Starr has ingested this object, as on two successive occasions, x-rays have identified this object in a very similar location. Likewise, I do not believe that Constable Starr would have been able to place this object into his colon via the rectum for similar reasons. I am unable to say exactly why the CT scan of the abdomen failed to show up the object which was present on one two abdominal x-rays, however a possible explanation is that the horizontal slices taken through the abdomen to perform the CT scan took images above and below the foreign object, with no images taken actually through the object. Another possibility remains, although I believe it is less likely, that this object might have been taped to the inside of Constable Starr's clothing that he was wearing at the time of the two abdominal x-rays. At most competent and reputable radiology facilities, patients would be requested to remove unnecessary clothing, so I am of the opinion Constable Starr would almost certainly have had no singlet, tee-shirt or shirt on while the x-rays were being taken, thus dismissing this possible explanation. There is no evidence that any projectile entered the body of Constable Starr on 25 April 1998. After a period of approximately eighteen months, Constable Starr has complained of symptoms necessitating further investigations. As part of this, a metallic "object" has been seen in two x-rays of the abdomen, however a CT scan failed to reveal its presence. Some time after this, an "object" was spontaneously discharged out of the subcutaneous tissue of the front of Constable Starr's abdomen. I submit that this scenario is medically impossible. In my opinion, it is more likely that the "object" was inserted into the body of Constable Starr some time after 27 April 1998. Its shape, texture and general characteristics are not that of an air-rifle projectile, but more likely cast off material from the steel or iron industry.

[277]

288 It is also appropriate to have regard to the applicant's evidence in relation to the way in which the metallic object emerged. The applicant stated that his response to the notice was given at around the same time as the x-ray of August 1999 showed a dense metal fragment in his abdomen. Mr Willis questioned the applicant in relation to his reasons for withholding this information from the Commissioner in his submission. His evidence was as follows: Q. That must have been at about the same time that you were preparing your written submissions to the Commissioner? A. Possibly the same time, or within a - late July or early August, or some stage round that time, yeah. Q. Then on 13 August, you had this x-ray which showed the dense fragment, as it is described? A. Yes, that's correct. Q. You knew, didn't you, that the case against you in the Local Court and the issue that was one of the grounds upon which the Commissioner was expressing his concerns in the notice to you, was that in effect, the injury that you suffered was inflicted by yourself? A. That's correct. Q. By an air rifle? A. That's correct. Q. And that one of the issues in the course of the hearing in the Local Court, was the nature of the injury that was caused to you. That was something that was examined in the evidence wasn't it? A. Yes. Q. When you got that x-ray result, which showed that there was a dense fragment, did you think it was in the wound firstly, or in the vicinity of the wound? A. In the vicinity of the wound, yeah. I am not a doctor but in, or round it. Q. Did you think it was related to the incident on 25 April 1998? A. Yes I did, certainly. Q. You thought that it was the object that had been fired at you? A. That's correct. Q. Did you think that was important to your case? A. Certainly did. Q. Did you think it was important to the Commissioner's deliberations, in terms of whether he should remove you or not? A. Yes, in fact, yes. Q. Firstly, in the written submissions that you made to the Commissioner, you made no mention of any recurring problem at the wound site, did you? A. No. Q. You didn't make any mention in there of undergoing any further tests did you? A. At that state I hadn't been to the doctor, or specialist. Q. You had been to see Dr Lakshmanan and he must have referred you to Dr Fulham? A. I think it was a week or so after my submission was made to the Commissioner. Q. When you got the result of the x-ray on 13 August, why didn't you then bring it to the notice of the Commissioner? A. I bought it to the notice of my solicitor immediately and he told me - I gave him the necessary information and what not. He instructed me as my solicitor, to leave it with him and to keep it suppressed, let him handle it. That's exactly what I did. I acted under the instructions of my solicitor. Q. They were your written submissions and it was your job? A. Yes, that's what I pay a solicitor for, to represent me.

[279]

Forensic Evidence 290 The object, which the applicant claimed discharged itself from his abdomen on 19 November 1999, was also the subject of a number of tests. A report was prepared by Mr John Barber, a Forensics Ballistics Consultant with 29 years of experience who was previously employed as a firearms and crime scene examiner of the Scientific Investigation Section of the NSW Police Department and as the Senior Forensic Ballistics expert of the NSW Police Department for several years. Sergeant Roach also examined the object and completed his second report dated 28 March 2000. Sergeant Roach expressed similar opinions to Mr Barber. 291 It is unnecessary to set out the findings in the reports in extensive detail because the two experts concurred in a number of important findings. Both experts agreed that the metallic object was not a commercially produced air rifle pellet and that, because of its size and nature, the object could not have been discharged by the air rifle recovered from the boot of the applicant's car. Mr Barber added that, to his knowledge, there was no commercially produced firearm capable of discharging the object. Sergeant Roach agreed that the object was not suitable for discharge from the most common commercial air rifles or pistols. Both experts conceded that it was possible for the object to have been fired by some kind of home made weapon or perhaps slingshot or catapult. Mr Barber stated that "a home made device is only limited by the imagination of the designer." 292 Sergeant Roach was also requested to comment on the likelihood of the object being responsible for the damage to the applicant's police shirt. He expressed his conclusions as follows: (5) I have been asked to comment on the likelihood of the 'object' having been responsible for the damage noted to the Police shirt worn by Constable STARR at the time he received his injury on the 25 April 1998. My examination of the shirt, as outlined in my certificate dated 22 July 1998, indicates that the shirt displayed ONLY ONE BROKEN FIBRE within the weave (warp and weft) of the cloth at the impact site. The shirt HAD NOT BEEN PENETRATED by a projectile to the point where it had passed through the cloth. In my opinion, whilst it is POSSIBLE that the 'object' contacted the shirt and broke the fibre, IT IS NOT POSSIBLE FOR THE 'OBJECT' TO HAVE ENTERED THE ABDOMEN OF STARR IF IT DID NOT FIRST PENETRATE THE SHIRT.

[283]

294 As discussed earlier in this decision, Mr Docking objected to the evidence of Sergeant Roach concerning the damage to the applicant's shirt. It will be remembered that the evidence was admitted. In any event, Sergeant Roach was cross-examined in relation to his assertions that there had been no penetration of the applicant's shirt. He eventually conceded that there had been a breach in a fibre of the shirt and that a pellet or other object may have entered the shirt. Submissions concerning the Discovery of the Metallic Object 295 The applicant submitted that the claimed expulsion of the metallic object from the applicant's abdomen, being information not in existence at the time of his removal from the Police Service and not capable of being known to the respondent, is not relevant to the central question as to whether the removal was harsh, unreasonable or unjust: see Bankstown City Council v Paris (1999) 100 IR 363 at 370. The matter is only relevant in resolving the substantive issue, it was contended, as a matter of credibility. 296 During closing submissions, Mr Docking conceded that the evidence as to the object was set out in the applicant's own statement in support of his application for relief and was presented as such during the proceedings. It was suggested to Mr Docking that, as a result, the evidence could be used in resolving the substantive issue as to whether the applicant shot himself with the weapon found in the boot of his car. However, Mr Docking submitted that ultimately these later events were a matter of credit and should be properly treated as such. 297 In any event, it was submitted by Mr Docking that the discharge of the metallic object and associated medical evidence supported the applicant's contention that he did not wound himself on 25 April 1998. It was submitted that the question of whether the applicant suffered a penetrating wound must be resolved in his favour. Mr Docking submitted that the Commissioner had failed to satisfy the evidentiary burden of demonstrating that the object had been introduced into the applicant's body at some later time.

Parties

Applicant/Plaintiff:

Starr

Respondent/Defendant:

Commissioner of Police

Cases Cited (49)

CITATION : Starr v Commissioner of Police [2001] NSWIRComm 226 APPLICANT: Andrew Starr PARTIES : RESPONDENT: Commissioner of Police FILE NUMBER: IRC 5614 of 1999 CORAM: Walton J Vice-President CATCHWORDS : Removal of police officer - review of order - whether removal was harsh, unreasonable or unjust - allegation of misconduct and criminal offences - Commissioner alleged applicant shot himself and made false report - applicant acquitted of all but one criminal charge - whether decision of the Commissioner properly informed - Commissioner did not obtain or consider transcript of criminal trial - concessions made in criminal trial as to strength of evidence - failure to obtain available evidence resulted in misconception of strength of evidence - failure in process adopted by Commissioner - whether failure of Commissioner to obtain available evidence rendered removal harsh, unreasonable or unjust - substance of allegations - onus of proof - whether onus on Commissioner to prove that the allegations were true - whether Briginshaw standard applies to allegations of misconduct - Commissioner's case depended on circumstantial evidence - whether circumstantial evidence sufficient to prove conduct occurred - new evidence as to VKG radio tape and events occurring after removal - inconsistencies in evidence of applicant - inconsistency between applicant's evidence and what was said on police radio - later conduct - applicant gave evidence that metallic object was discharged from his body which related to incident - applicant's evidence of later events not accepted - later conduct adversely reflected on credibility of applicant - whether later conduct relevant to fairness of decision to remove applicant - on evidence applicant guilty of the misconduct alleged - removal not harsh, unreasonable or unjust - application dismissed Crimes Act 1900 s547B Evidence Act 1995 s140 LEGISLATION CITED : Firearms Act 1996 s39 Industrial Relations Act 1996 ss84 85 86 87 88 89 95 163 Police Service Act 1990 ss 181B 181D 181E 181F 181G 181H Ahmedi v Ahmedi (1991) 23 NSWLR 288 Apps v Clark Equipment Pty Ltd (unreported, CIM, No. 98/2479, 4/8/1999), Antonakopoulos v State Bank of NSW (1999) 91 IR 385 Bankstown City Council v Paris (1999) 100 IR 363 Belhaven and Stenton Peerage [1875] 1 AC 278 Bigg v NSW Police Service (No.2) (1998) 80 IR 434 Boston Deep Sea Fishing v Ansell (1888) 39 Ch D 339 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Capral Aluminium Ltd v WorkCover Authority (2000) 99 IR 29 Carr v Baker (1936) 36 SR (NSW) 301 Coles Myer Ltd v SDA (1989) 27 IR 299 Darling Island Stevedoring & Lighterage Company Limited v Jacobsen (1945) 70 CLR 635 Department of Corrective Services v Public Service Association (unreported, Peterson J, Matter No 98/3890, 2/10/98) Drake Personnel Ltd v WorkCover Authority (1999) 90 IR 432 Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1 Franklins Ltd v Mervyn Webb (1997) 72 IR 257 Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 Hollingsworth v Commissioner of Police (1999) 88 IR 282 Holmden v Bitar (1987) 27 A Crim R 255 CASES CITED : Holtman v Sampson (1985) 2 Qd R 472 Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 Martin v Osborne (1936) 55 CLR 367 Miller v Australian Industrial Relations Commission (2001) 104 IR 415 NSW Bar Association v Livesey [1982] 2 NSWLR 231 Newton v NSW Police Service (1999) 87 IR 66 North v Television Corporation (1976) 11 ALR 599 NRMA Insurance Ltd v Tatt (1989) 92 ALJR 299 Oswald v NSW Police Service (No.2) (1999) 90 IR 42 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 PDS Rural Products v Corthorn (1987) 19 IR 153 Printing and Kindred Industries Union v Vista Paper Products (unreported, 1357/1991, Riordan DP, 13/12/91) R v Anderson, Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 R v Hatfield [1999] NSWSC 998 R v Reeves (1994) 121 FLR 393 Ramsay v Watson (1961) 108 CLR 642 Retail Traders' Association of NSW v SDA (1990) 36 IR 38 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 SDA v Jewel Food Stores (1988) Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 WorkCover Authority v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 WorkCover Authority of NSW v Bitupave Ltd (2000) 98 IR 246 HEARING DATES: 04/10/2000; 05/29/2000; 06/16/2000; 08/07/2000; 01/19/2001; 01/31/2001; 02/27/2001 DATE OF JUDGMENT: 10/05/2001

(1991) 23 NSWLR 288

(1999) 91 IR 385

(1999) 100 IR 363

(1998) 80 IR 434

(1938) 60 CLR 336

(2001) 105 IR 325

(1995) 185 CLR 410

(2000) 99 IR 29

(1989) 27 IR 299

(1945) 70 CLR 635

(1999) 90 IR 432

(2000) 98 IR 1

(1997) 72 IR 257

(1995) 60 IR 149

(1999) 88 IR 282

(1985) 2 Qd R 472

(1990) 27 FCR 427

(1936) 55 CLR 367

(2001) 104 IR 415

(1999) 87 IR 66

(1976) 11 ALR 599

(1989) 92 ALJR 299

(1999) 90 IR 42

(1990) 35 IR 70

(1987) 19 IR 153

(1965) 113 CLR 177

(1994) 121 FLR 393

(1961) 108 CLR 642

(1990) 36 IR 38

(2000) 49 NSWLR 262

(2000) 98 IR 57

(1997) 73 IR 454

(2001) 105 IR 81

(2000) 98 IR 246

(1965) 113 CLR 117

(1982) 3 IR 413

(1984) 7 IR 82

(1985) 12 IR 34

(1975) 70 CLR 635

(1988) 63 ALJR 108

(1987) 22 IR 1

(1997) 72 IR 330

(1988) 22 IR 1

(1990) 170 CLR 573

(1989) 92 ALR 299

(1985) 59 ALJR 844

(1966) 8 FLR 433

(1987) 10 NSWLR 247

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (326 paragraphs)

Parties

Cases Cited (49)