Storey v Commissioner of Police

Application for Leave to Appeal and Appeal

1. Mr Storey's Amended Application for Leave to Appeal and Appeal ("Application") described the questions raised by the appeal as follows: "1. What is the correct approach to the assessment of whether a removal of a police officer under section 181D of the Police Act 1990 was harsh, unjust or unreasonable. 2. What is the correct approach to the assessment of the public interest under section 181F of the Police Act 1990. 3. Does section 213 of the Police Act 1990 prevent the assigning of liability (including the assigning of liability by the Commissioner of Police through a formal 'loss of confidence') for any injury or damage (loss) caused by any act or omission of a New South Wales Police Officer in the exercise by the member in good faith of a function conferred or imposed by or under any Act or law (whether written or unwritten). 4. Does a police officer assuming a 'role' within the New South Wales Police Force (described as being the 'role' of a general duties police officer) have the effect of restricting the duties able to be performed by that police officer at law." (Sic)
2. The Application set out the reasons why leave should be granted as follows: "1. Given that an appeal bench is concerned with the correction of error, and here error has been made in respect of the grounds below, it is in the public interest that leave to appeal be granted in this case. 2. The questions raised by the appeal as to the exercise of the Commission's jurisdiction in the application for review under the Police Act 1990 have potential to affect the conduct of similar proceedings in the future. 3. The approach by Commissioner Constant is inconsistent with section 181F of the Police Act 1990 and the proper exercise of jurisdiction. 4. The failure by the commission in the first instance to exercise jurisdiction resulted in the appellant being denied his right to have his review application properly determined. 5. Several of the principles relied upon and stated within the decision affect a class of persons beyond the litigant to the matter, namely all other police officers, as the subject matter deals directly with the functions and powers of police officers and their ability to operate, including the scope of their office and the protections available to them. 6. The decision deals with the ability of employers to subjugate the original legal functions of individuals by means of an employer-employee relationship (if any), by way of using a direction to over-awe an original legal function in circumstances where such control of legal functions is not otherwise available, and in circumstances where no such direction was even given. 7. The decision has implications for the public, who rely on Police Officers for the provision of law enforcement services that would be restricted in the provision of those services if the principles in the decision were to be widely followed. 8. The decision draws inferences in a number of aspects where it is not reasonable or fair to draw such inferences, and therefore has the ability to affect the jurisprudence of the Commission more broadly in future proceedings."
3. The Application contained 14 grounds of appeal. We will address them later in this judgment.

Legal principles to apply

1. An appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench: s 188(1) of the Industrial Relations Act 1996 (NSW). The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188(2) of the Industrial Relations Act.
2. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated: "10. It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. 11. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]."
3. In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12] and [13]: "12. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held…that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. 13. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decision maker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal."
4. The principles outlined in the cases cited above have since been approved in numerous decisions of the Full Bench. It is not necessary to list them all. We will apply these principles.
5. In an appeal challenging the exercise of a discretion the appellant must, if leave to appeal is granted, demonstrate error in the exercise of the discretion of the nature contemplated in the principles enunciated in House v The King (1936) 55 CLR 499; [1936] HCA 40.

Mr Storey's subjective belief

1. At the heart of the Application, and indeed the fundamental premise of his case in the proceedings below, was Mr Storey's contention that when he accessed and downloaded child pornography and child abuse material he was acting in the course of his duties as a police officer. This is reflected in Mr Storey's Outline of Submissions as follows: "24. The Appellant submits, as his global position, that at all relevant times, he was, or at least believed that he was, acting in the course of his duties as a police officer."
2. Mr Storey submitted that leave to appeal should be granted on the basis that the Decision had the potential to impinge upon or unjustifiably confine the duties in which a police officer may legitimately engage. This submission was grounded in a finding by the Commissioner that "the task of a general duties police officer is to take a complaint, enter it in the system and then refer it to the Child Abuse and Sex Crime Squad to investigate". [7]
3. When the extract on which Mr Storey relies is read in context, it becomes apparent that his submission in misguided. In its entirety, [145] of the Decision reads as follows: "145. The applicant's evidence does not establish that the respondent acted in a way which signalled or implied it approved of, tacitly or explicitly, the applicant's behaviour in investigating crimes outside of work or to imply that such approval would be granted. The respondent's evidence, which I accept, is that child abuse and child pornography matters are investigated by Child Abuse and Sex Crime Squad. The task of a general duties police officer is to take a complaint, enter it in the system and then refer it to the Child Abuse and Sex Crime Squad to investigate. Despite his submissions to the contrary, the applicant's conduct was completely at odds with this process."
4. It is clear that in the sentence on which Mr Storey relies the Commissioner was doing no more than paraphrasing the evidence adduced by the Commissioner of Police. On a proper reading, the Commissioner did not attempt at [145] or elsewhere in the Decision to articulate the full scope of a police officer's duties and responsibilities. Her analysis was confined to determining whether Mr Storey had established that when accessing and downloading child pornography and child abuse material he was acting in the course of his duties as a police officer. Nothing in the Decision can properly be construed as defining, much less delimiting, the role and functions of a police officer.
5. Mr Storey next challenged the following finding by the Commissioner: "146. The applicant's subjective belief that he was conducting policing duties was unfounded and in these circumstances his subjective belief that he was conducting policing duties is not relevant."
6. Mr Storey submitted that Commissioner had erred in finding that his subjective belief was "unfounded" and, further, by failing to explain the basis by which this conclusion was reached. As the subjective belief of a police officer "is something that is exercised every day" [8] the error was of potentially wide application exciting the public interest.
7. These contentions disregarded the analysis by the Commissioner, set out at [140]-[145] of the Decision, of the arguments advanced by Mr Storey as to why he should be regarded to have been acting in the course of his duties as a police officer. The Commissioner explained why she was not persuaded by those arguments. Mr Storey has not demonstrated any relevant error in the Commissioner's analysis or finding.
8. Mr Storey further relied on s 213 of the Police Act. His submissions in this regard were once again underpinned by the assertion that he was at all relevant times acting in the course of his duties as a police officer.
9. Section 213 of the Police Act provides as follows: 213 Protection from personal liability A member of the NSW Police Force is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten).
10. Mr Storey's submissions in relation to s 213 came down to the following propositions: 1. in accessing and downloading child pornography and child abuse material he was exercising in good faith the function conferred or imposed on him as a police officer; 2. this behaviour caused the Commissioner of Police to lose confidence in him; 3. this is "injury or damage" to the Commissioner of Police, in the form of "injury" to his previously good opinion of Mr Storey; and 4. by dismissing him from the NSW Police Force, the Commissioner of Police has held Mr Storey "liable" for that injury or damage.
11. Mr Khoury submitted that Mr Storey's contention required "a novel interpretation" of s 213. [9] If anything, this was to understate the situation.
12. The Commissioner held that s 213 had no operation in the circumstances of this case, observing that "the section is directed to circumstances such as where a police officer is effecting an arrest and they injure someone and in those circumstances the officer will not be personally liable". [10] We respectfully agree.
13. The Commissioner's findings are supported by the recent decision of Police Association of New South Wales v State of New South Wales [2019] NSWSC 587. That case concerned an application for judicial review of a "Non-Disciplinary Transfer Order" made by the Commissioner of Police (through his delegate) pursuant to s 173(2) of the Police Act. The defendants sought to rely on s 213 as a privative position, arguing that the Commissioner exercised a function under s 173(2) in good faith and that the words in s 213 "not liable for any injury or damage" included being liable to suit in respect of the public law remedies sought in the proceedings. In rejecting that argument, Adamson J stated: "74. Further, although the heading of the section, 'Protection from personal liability' is not part of the Act (s 35(2) of the Interpretation Act 1987 (NSW)), it nonetheless constitutes extrinsic material which can be used in the interpretation of the Act: ss 34(1) and 31(2)(a) of the Interpretation Act. The protection from 'personal liability' in the heading is apt to refer to liability for 'any injury or damage'. This section is related to the provisions in the Law Reform (Vicarious Liability) Act 1983 (NSW) which require persons seeking damages for torts committed by police officers in the performance or purported performance of their functions as police officers generally to sue the Crown instead of the police officers concerned."
14. We make two further observations regarding Mr Storey's reliance on s 213 of the Police Act. Firstly, his proposed construction of the section is difficult to reconcile with Part 9 of the Police Act, and the power that Part confers on the Commissioner of Police to manage the conduct of police officers.
15. Secondly, the section requires that the police officer be "exercising…in good faith…a function conferred or imposed" on them. During the hearing Mr Khoury acknowledged that whether the police officer was acting in good faith was subject to a test of reasonableness; the officer could not be "running on fantasy". [11] Mr Khoury further acknowledged that this question is ultimately a question of fact. While this question was not raised directly in the proceedings below, based on the Commissioner's findings we question whether Mr Storey would be able to invoke the section, even if his preferred construction was available to him.
16. Finally on the question of Mr Storey's reliance on his subjective belief that he was acting in the course of his duties as a police officer, we observe that there are troubling policy implications in the position being advanced by him. To paraphrase his position, a police officer is never "off duty". His or her duty extends to the detection, investigation and prevention of crime even when they are not rostered for work. Provided that the officer has a subjective belief that they are acting in the course of their duties, they are immune from any disciplinary or legal sanctions as a result of their conduct, however misguided their belief may be. Simply asserting a subjective belief would render them immune from any breaches of the law and of any policies, procedures and guidelines that operate within the NSW Police Force. The proposition is self-evidently misguided.

Alleged misapplication of the legislation

1. Mr Storey submitted that the Commissioner "misapplied the requirements of section 181F of the Police Act 1990, in particular through a misapplication and inconsistent application of the 'public interest test' required by section 181F(3)(b) of the Police Act 1990 [sic]". Once again, we do not consider that there in any substance to this submission.
2. At [11]-[21] of the Decision the Commissioner summarised the powers of the Commission on a review under s 181E of the Police Act. She followed the approach to such reviews set out in s 181F of the Police Act in an orthodox manner. At [150]-[166] the Commissioner analysed both Mr Storey's interests and the public interest. The Decision discloses no misapplication or inconsistent application of the relevant principles.

Alleged errors in the Decision

1. Mr Storey further submitted that it was in the public interest for leave to be granted so that the errors in the Decision, as set out in the Application, may be considered and corrected by the Full Bench. This requires an examination of the grounds of appeal. We can do so relatively briefly.

Ground 1

1. At [19] above we reproduced [146] of the Decision. Mr Storey "disputed" that paragraph in two respects. Firstly, he submitted that his subjective belief as to his conduct was a relevant consideration for the Commissioner under s 181F of the Police Act. Secondly, he asserted that his belief was not "unfounded" but had a legitimate basis and was grounded in good faith.
2. We have already found that the Commissioner's finding that Mr Storey's belief was unfounded is not affected by error. The reasoning was clear on the face of the Decision and the finding was available to her on the evidence. Mr Storey's submissions in this regard are little more than a statement that the Commissioner should have, but did not, accept the case he put at first instance. This is not sufficient to establish appellable error.
3. Having formed the view that, in effect, there was no proper basis on which Mr Storey could have believed that he was acting in the course of his duties as a police officer, it was appropriate for the Commissioner to find that that subjective belief was not relevant in the disposition of the matter. To have held otherwise would have given rise to the policy considerations outlined at [30] above.

Grounds 2, 3 and 8

1. At [163]-[164] of the Decision the Commissioner held as follows: "163. There is a significant public interest in ensuring that the most vulnerable in society are protected. Child abuse and exploitation of children is abhorrent, and I agree with the respondent that because there was no record or oversight of the applicant's conduct, the Commission cannot know the extent to which the applicant's conduct increased the risk of exploitation to children. 164. The Commission does not know, and cannot know, when the applicant was having these communications, or accessing these websites. I accept that the applicant's conduct led, at least, to the risk of a furtherance of exploitation, including on the basis of the applicant's evidence, the risk of further exploitation of the applicant."
2. Mr Storey submitted that it was implicit in these passages that his conduct did in fact increase the risk of exploitation to children, when there was no evidence to that effect. He submitted that there was no contribution to a risk of exploitation, because the relevant website was created by the offender before he viewed it. He argued that the Commissioner had made a finding of fact without supporting evidence, or at least a finding of fact not open on the evidence.
3. These submissions misapprehend the Decision. The Commissioner did not make any findings but noted simply that there was a risk of a furtherance of exploitation. On this point we accept the submissions made by the Commissioner of Police as follows: "19. In those circumstances it was correct (and in any event open) for the Commissioner to conclude that there might have been a risk of - not a concluded finding that there was - exploitation of children and the Appellant. It is manifest that the mere fact that someone - the Appellant - was contacting the website administrator of the abuse sites runs the risk of that person - the administrator - concluding that someone is interested in that type of material. It is therefore entirely possible that that administrator might seek to obtain further or additional material for that audience, including the Appellant…" (Emphasis in original)
4. We note further that Mr Storey adduced evidence that he had himself been the subject of exploitation. In continuing to engage in on-line activities to detect and prevent cybercrime, he was at least running the risk of being further exposed to such exploitation.

Grounds 4 and 6

1. Appeal grounds 4 and 6 rest on the contention that the Commissioner erred by limiting the scope of the office of a police officer. We have addressed this contention above.

Ground 5

1. Ground 5 challenges the finding of the Commissioner that s 213 of the Police Act had no operation in the circumstances of this case. For the reasons set out above, we do not accept that this ground establishes any error.

Ground 7

1. Ground 7 challenges the following findings of the Commissioner: "169. The applicant has not met the task required of him under the statutory scheme, if the review is to succeed, of establishing that the removal of the applicant from the Police Force is harsh, unreasonable or unjust: s 181F(2) of the Police Act. Consequently, I cannot uphold the Application."
2. The submissions on which Mr Storey relied in respect of this ground did little more than express disagreement with the Commissioner's conclusions and re-agitate some of the arguments that were ultimately unsuccessful in the proceedings below. The submissions do not demonstrate appellable error.

Ground 9

1. Mr Storey submitted that the Commissioner erred by not considering the relevant defences available to him under s 91HA(6) of the Crimes Act 1900 (NSW) and ss 474.21 and 474.24 of the Crimes Code Act 1995 (Cth). He submitted that the Commissioner erred by "casting the defences aside without justification or [providing] contradicting authorities".
2. We make two observations in relation to these submissions. Firstly, there is no evidence that Mr Storey sought to advance these defences in the proceedings before the Commissioner. As the Commissioner of Police submitted, it is generally not an error for a decision-maker not to address issues of fact and law that are not the subject of argument or advanced for resolution: Linfox v Fair Work Commission (2013) 240 IR 178 at [48].
3. Secondly, and perhaps more significantly, each of the defences on which Mr Storey would seek to rely require the relevant person to be "acting in the course of his or her duties". For the reasons set out above, Mr Storey has not demonstrated that any of the statutory defences would be available to him.

Ground Ten

1. This ground is said to arise from [139] of the Decision. It is useful to place that paragraph in the context of those which immediately preceded it, as follows: "137. The applicant cites in the Applicant's Response to the Notice a number of authorities which he says support his submission that he was acting in the course of his duties and the applicant's Counsel referred broadly to these authorities in closing submissions. The applicant relies on these authorities to establish, amongst other things: 'a police officer is never off duty': Shepherd v Martin (1991) 55 SAST 367 at 370; a constable acts with, and exercises, original authority Attorney-General for New South Wales v Perpetual Trustee Company Limited (1954) 92 CLR 113 at 119; and an officer's 'absolute and unconditional' duty is 'to take all steps which appear to them to be necessary for keeping peace, for preventing crime, or from protecting property from criminal injury': Glasbrook Bros v Glamorgan County Council [1925] AC 270 at 277. 138. The applicant's submissions in this case did not address in any detail how these authorities apply in the applicant's circumstances and the respondent did not deal in a substantial way with these authorities. 139. If I accept the submissions made by the applicant in the Applicant's Response to the Notice that these authorities support the proposition that the applicant was never off duty and that he was required to take all steps for preventing crime, then the facts in this matter do not establish the applicant's case that he was acting in the course of his duties."
2. Mr Storey's first contention took issue with the Commissioner referring only to the authorities at [139] of the Decision. He claimed that the Commissioner failed to refer to or consider other authorities which were provided to her.
3. However, it is clear from [137] of the Decision that the Commissioner had regard to all of the authorities advanced by Mr Storey. To the extent that particular cases were mentioned, they were put forward to highlight the propositions which Mr Storey contended could be drawn from them. At [139] of the Decision the Commissioner proceeded on the assumption that the submissions of Mr Storey, reliant on all of the authorities he had raised, were accepted. She proceeded to find that even then the facts did not establish that he was acting in the course of his duties. This did not constitute an error.
4. Mr Storey further contended that the Commissioner erred by referring only to the "prevention of crime", when his duties extended to encompass the investigation and detection of crime. Read properly and in context, the Commissioner was simply attempting to paraphrase the submissions which had been advanced by Mr Storey. The Commissioner's summary should not be construed as placing some restrictions on the role and responsibilities of police officers.

Ground 11

1. This ground is derived from [134]-[136] of the Decision in which the Commissioner stated as follows: "134. The applicant says that he performed non-internet related policing duties and engaged in an investigation while he was off duty and he describes in Exh A3 three occasions of significance. I accept this evidence of the applicant but note that none of these occasions involved cyber-crime. 135. The applicant relies on Exh A6 which is an intelligence report dated 15 June 2009 about a person with a particular username on YouTube uploading clips of assaults occurring in the applicant's local area. The applicant says this evidence shows when, in his mind, he had sufficient information to further action a matter he did so and when he had a matter he could identify as being local in his area in which he could assist, he would assist and make a record."
2. Mr Storey stated that he had provided evidence to the Commissioner of examples where he had engaged in investigations when he was off duty. By providing those examples he intended to illustrate his use of personal devices for various public policing functions, not just those related to crime, cyber-crime and child abuse material. He submitted that the Commissioner erred by limiting the relevance of that evidence when evaluating his submission that he was using the devices in public policing functions.
3. This ground does not establish error. Mr Storey simply disagrees with the conclusions reached by the Commissioner. It is apparent from [134] of the Decision that the Commissioner not only had regard to that evidence but that she accepted it. She was simply not persuaded that those examples established that Mr Storey was acting in the course of his duties when accessing and downloading child pornography and child abuse material.

Ground 12

1. Ground 12 relates to findings made by the Commissioner as to Mr Storey's failure to record the details of his supposed investigations into the NSW Police Force's Computerised Operational Policing System ("COPS"). The Commissioner found that there were no proper reasons disclosed by Mr Storey for not recording the information he had gained through his on-line investigations in COPS.
2. In the Application, Mr Storey alleged that the Commissioner had erred by treating the COPS policy as a "monolith". He asserted in his Outline of Submissions that the Commissioner had erred by erroneously concluding that it would have been possible for him to create a COPS event and further by considering that a COPS record was determinative as to whether he was acting in the course of his duties or not.
3. The Commissioner of Police submitted as follows: "42. This alleged error was not made by the Commissioner because [Decision at] [130]-[131] do not demonstrate that the Commissioner 'treated the COPS policy as a "monolith"'. What is set out in [the Decision] at [130]-[131] has to be read in the context of [the Decision at] [128] and [129] and the evidence referred to therein. That evidence was that the Appellant understood his obligations in respect of recording matters in COPS and what COPS was used for by the NSW Police. His failure to do so in respect of the investigations he alleged he was undertaking when accessing and downloading material from the child abuse websites was simply another matter the Commissioner was entitled to take into account in considering the Appellant's case that he was carrying out policing duties at those times."
4. We accept those submissions.

Ground 13

1. This ground contains several limbs. Firstly, Mr Storey challenged the following findings in the Decision: "161. It is in the public interest that the respondent act so as to preserve the integrity of the Police Force by removing persons who access and download child abuse material for their own means even if the persons considered that they were doing so in the pursuit of justice and who cannot accept, even at conclusion of the hearing of this matter that his actions were not done in the course of his duties."
2. Mr Storey made the fairly novel submission that the Commissioner "erred by affording too much weight" to his own evidence, namely that he still believes his conduct was done in the course of his police duties. His submissions amount to a protestation that despite having based his case on the proposition that he was at all times acting in the course of his duties as a police officer and was therefore, in essence, immune from any disciplinary or other consequences for his conduct, it was not open to the Commissioner to conclude that he did not accept that his conduct was not in the course of his duties as a police officer and that there was consequently a risk that the behaviour might recur. Mr Storey has failed to establish an appellable error in this regard.
3. The second limb of ground 13 flows from the following paragraph in the Decision: "166. I also agree with the respondent that in circumstances where the applicant was concerned about hacking, and concerned about the security of the intelligence he says he was gathering, the applicant's decision to store that material on his own computers demonstrates why the applicant lacks the sufficient insight to be a New South Wales Police Officer."
4. Mr Storey submitted that the Commissioner had failed to comprehend why he "adopted the conduct described in paragraph [166]". He further submitted that it was not open for the Commissioner to conclude that he lacked insight to be a police officer. Finally, he submitted that the Commissioner had erred by failing to properly consider his evidence regarding his investigation of cyber-crimes.
5. It is apparent from a reading of the Decision that the Commissioner considered all the evidence put forward by Mr Storey. The inferences and conclusions she drew from that evidence were reasonably open to her. Mr Storey's submissions simply disagree with those findings and conclusions. The submissions do not disclose appellable error.
6. The third limb of ground 13 is a submission that the Commissioner erred by failing to properly consider his evidence regarding his investigation of cyber-crimes. The submissions do not specify precisely how the Commissioner is said to have so erred.
7. In any event, Mr Storey's submissions lack substance. It is clear from the Decision that the Commissioner not only considered his evidence regarding his investigation of cyber-crimes, but accepted that evidence in the context of explaining his activities. She simply did not accept that his activities were conducted in the course of his policing duties, which was in essence the key matter for determination by her.
8. Finally, Mr Storey made reference to the following paragraphs from the Decision: "162. There is the clear public interest in ensuring that those who are vested with the special privileges and powers that come with the office of being a member of the New South Wales Police Force understand when they can properly use and deploy those powers, so that they use them in a just and reasonable manner: Van Huisstede v the Commissioner of Police [2000] NSWIRComm 97 at [219]."
9. Mr Storey submitted that this paragraph is inconsistent with [161] of the Decision, referred to at [59] above. That is, there is a finding in [161] that he was not acting in the course of his duties. However, he contended that [162] suggests that his conduct was done in the execution of his duties, but that he has acted irresponsibly.
10. There is no inconsistency. The finding at [161] simply reflects the findings by the Commissioner referred to earlier that Mr Storey was not acting in the course of his duties. The observations at [162] serve to emphasise that Mr Storey apparently did not understand when he could exercise the special privileges and powers that come from being a member of the New South Wales Police Force, and that this was properly a matter to be taken into account in considering the public interest. Mr Storey has demonstrated no error.

Ground 14

1. This ground relates to the Commissioner's finding that the third allegation against Mr Storey - that is, that he was in possession of child pornography or child abuse material - had been substantiated. The Commissioner did not accept that Mr Storey could not reasonably have known that the offending material was contained in thumb caches on his computer.
2. It was not in dispute in the proceedings below that child pornography and child abuse material was contained in thumb caches on Mr Storey's computer. The Commissioner considered expert evidence to the effect that a person with Mr Storey's "self-directed learning" would be aware of the presence of thumb caches on a computer. Indeed, Mr Storey led a considerable amount of evidence attesting to his technological proficiency and how he was able to utilise his computer knowledge in the detection and prevention of crime. In light of this evidence, it was reasonably open to the Commissioner to find that Mr Storey had not established that he could not reasonably be expected to have known of the existence of the thumb caches on his computer and that they contained the offending material.
3. Mr Storey failed to demonstrate any appellable error in the Decision.
4. It was for all of these reasons that leave to appeal was refused.

Non-publication order

1. At the conclusion of the hearing Mr Darams sought a non-publication order restricting access to the Commission's file in these proceedings, consistent with orders made by the Commissioner in Storey v Commissioner of Police (No. 3) [2019] NSWIRComm 1083. Mr Khoury raised no objection and the Full Bench stated that it would make the order and continue the non-publication order made by the Commissioner in Storey v Commissioner of Police (No. 3).

Orders

1. The Full Bench makes the following orders: 1. Leave to appeal is refused. 2. Access to the Commission's file in these proceedings will be by leave on application to the Industrial Registrar.

Endnotes

1. Decision at [123]
2. Decision at [141]
3. Decision at [148]
4. Decision at [167]
5. Decision at [168]
6. Decision at [169]
7. Decision at [145]
8. Tcpt p 1(43-44)
9. Tcpt p 10(27)
10. Decision at [147]
11. Tcpt p 12(1) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2019