Stuart Boyd Formston v New South Wales Police

Stuart Boyd Formston v New South Wales Police - [2006] NSWIRComm 88 - NSWIRComm 2006 case summary — Zoe

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8 Under s 181D(1) of the Act, the Commissioner may remove, by order in writing, a police officer from the NSW Police if the Commissioner does not have confidence in the police officer's suitability to continue duties as a police officer, having regard to the officer's competence, conduct, integrity or performance. 9 Before making such an order under s 181D(3) of the Act, the Commissioner is to serve notice of consideration of a police officer's suitability to continue employment with the Police upon the officer concerned. Mr Formston was served with the s 181D(3)(a) notice on 23 August 2005. In his written submission in response to the notice, Mr Formston identified the following grounds as to why the dismissal was harsh, unreasonable or unjust: · The Commissioner was required to have regard to a 'complete and balanced' profile in considering an officer's conduct and the profile that had been presented to the Commissioner was not a 'complete and balanced profile'; · Procedural fairness was denied to the applicant in that a number of documents relied upon by the Commissioner had not been made available to Mr Formston; · The removal of Mr Formston from his position was unduly harsh, especially with regard to his personal and financial circumstances; · Mr Formston's clear record as a police officer and person of good character was not properly taken into consideration. Mr Formston stated that while his transgression against Mr Hwang was under the influence of alcohol and was not excusable, it was out of character. 10 On 5 October 2005, Mr Formston was issued with an s 181D(1) order. The order set out that Mr Formston's removal from the police stemmed from his conduct. The Commissioner, in his statement of reasons attached to the order, set out the conduct which gave rise to the order: At the time of the incident you were off duty with fellow officers having attended the North Shore Local Area Command Christmas Party. You became involved in a verbal altercation with Hwang over a matter of illegal parking. As a result Hwang drove his car away and parked nearby. He walked back towards you and in his statement alleges that you grabbed him by the throat, pinned him against the wall and verbally threatened him. He alleges that you repeated this three more times and you told him you could do whatever you wanted because nobody could see you. The final assault was in fact witnessed by three members of the public. 11 In his Statement of Reasons, the Commissioner commended Mr Formston for seeking counselling in relation to alcohol as well his display of contrition for the events by pleading guilty and apologising to Mr Hwang. However, the Commissioner stated: Notwithstanding, of primary concern to me is that when you participated in a directed interview on 6 January 2005, you denied the allegations and stated that you had acted in self-defence by pushing Hwang away with your open hand. You later pleaded guilty to the offence and in the afore-mentioned agreed statement of facts you only admit to assaulting Hwang once. Hwang, in his statement alleges that you assaulted him a total of four times. I have no reason to doubt the version of events given by the victim.

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12 Mr Formston was promptly removed as a police officer upon receipt of the above order. Relevant principles 13 Under s 181E the applicant may seek a review of an s 181D order made by the Commissioner to the Industrial Relations Commission on the basis that the removal is 'harsh, unreasonable or unjust'. In reviewing the order, the Commission is empowered by s 181F of the Act. That section sets out the basis for the proceedings as well as matters which the Commission must take into consideration: (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner' s reasons for the decision to remove the applicant from the Police Service; (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary; (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to section 181D(1). 14 Before addressing those provisions as necessary, it is relevant to detail the factual circumstances underpinning the Commissioner's decision to remove Mr Formston from the NSW Police. Notwithstanding that Mr Formston pleaded guilty to assaulting Mr Hwang, some factual matters relating to the incident still remain in dispute. More particularly on that issue is the assertion by Mr Hwang and accepted without more by the Commissioner, that Mr Formston assaulted Mr Hwang 'a total of four times'. As the Commissioner stated in his reasons for removing Mr Formston: ... I have no reason to doubt the version of events given by the victim. 15 In entering a plea of guilty to assaulting Mr Hwang, the agreed facts that were placed before the Local Court were to the effect that Mr Formston assaulted Mr Hwang only once. The agreed facts relevantly stated: ... After a verbal argument, the complainant moved his vehicle around the corner and returned to the store. It is alleged that at this time, Formston assaulted the complainant by grabbing him around the neck and push (sic) him up against a wall. ... 16 It was Mr Formston's assertion that, to the best of his recollection, he assaulted Mr Hwang only once and in circumstances at odds with those recounted by Mr Hwang. 17 Given the factual matters in issue between the parties, it is necessary to determine them for the purposes of these proceedings. In determining such matters, regard must be had to the requisite onus and standard of proof. 18 In the first instance, s 181F(2) of the Police Act provides: The applicant has at all times the burden of establishing that the removal of the applicant from NSW Police is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. 19 As is clear, consistent with that provision, the primary onus rests with the applicant: see Newton v Commissioner of Police (No 2) (1999) 87 IR 66 at [80] and Hosemans v Commissioner of Police (2004) NSWIRComm 253 at [129]. 20 The principle relating to standard of proof has been well established in prior decisions of the Commission including in matters involving a review under s181F of the Act. For example, it was canvassed extensively by Walton J, Vice-President in Starr v Commissioner of Police (2001) NSWIRComm 226 at [158] where his Honour referred to the principle as enunciated in Wang v Crestell Industries Pty Limited (1997) 73 IR 454 at 463-464. Applying that principle, his Honour stated in Starr at [159] as follows: 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. Relevant factual circumstances and considerations

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21 The relevant facts in relation to the incident that gave rise to the s 181D order occurred when Mr Formston was off duty from work, attending the North Shore Local Area Command Christmas party. The function was held at Gordon Rugby Club in Chatswood on 16 December 2004. 22 Mr Formston had consumed alcohol before the function at a nearby bar and continued to drink alcohol heavily at the party. By the time he left the party to travel home, Mr Formston was, as assessed by Inspector Campbell immediately after the incident involving Mr Hwang, 'moderately to well affected' by alcohol. 23 Mr Formston left the party venue at around 12:10am with a group of his colleagues in order to catch a train home from Chatswood Station to the Central Coast. The group missed the train and walked, via an escalator, out of the railway station towards a nearby Seven Eleven convenience store. As the evidence disclosed, the store is located on the corner of Orchard Road and the Chatswood Mall in Chatswood. Next door to the Seven Eleven store in Orchard Road is a hotel known as the Orchard Tavern. 24 As well as Mr Formston and Constable Corrigan, a number of other off duty police officers who had also attended the Christmas party were gathered in the same area. Most of them were seemingly drawn there in order to get something to eat from the Seven Eleven store. Those persons included Constables Katrina Gee, Michael Haley, Daniel Murphy, Ryan Lynch and Acting Sergeant Matthew Parker. All of those officers, amongst others, had also attended the above-mentioned Christmas party. 25 In addition to the off-duty police officers mentioned above and members of the public coming and going in the area, Mr Woong Jae Hwang was also present at that location at that time. Mr Hwang had been at a karaoke bar in Chatswood that same evening. He had left the bar to drive a friend, Ms Hang Thanh Mai back to her car. Along the way, he drove to the Seven Eleven store in Orchard Road to buy a bottle of water. When he got there, he parked his car illegally and alighted to enter the store. Ms Mai remained in the car. 26 Standing nearby, Mr Formston and Constable Corrigan noticed Mr Hwang park his car illegally. Although off duty, in plain clothes and well affected by alcohol, the two men approached Mr Hwang, ultimately identified themselves as police officers and directed Mr Hwang to move his car. According to Mr Hwang, that direction was couched in what can only be described as unseemly language. As he described in his statement: [5] ... As I was getting out of the car I saw a large group of males coming from the Orchard Tavern. A number of them yelled out, "You can't fucking park here" and "Get your fucking car out of here". They all appeared to be intoxicated. 27 According to Mr Hwang, when he walked towards the store, Constable Corrigan opened the driver's side door of his car. 28 Mr Hwang then became involved in an initial verbal argument with Mr Formston and Constable Corrigan although neither of them have any recollection of it. It was at this time that Constable Corrigan and Mr Formston identified themselves as police officers and continued to demand that Mr Hwang move his car. Mr Hwang did so and drove his car around the corner to Endeavour Street. He then returned to the Seven Eleven store. As he conceded in evidence before me, he was also intent on further confronting Constable Corrigan and Mr Formston and getting their details. According to Mr Hwang's statement made on 17 December 2004, the events that then transpired were as follows: [13] I then left my car and walked back up to the shop, which was the Seven Eleven. As I was walking toward the shop I stopped and spoke to a guy whom I know as a Police Officer as I had seen him around the Chatswood area in uniform before, he wasn't one of the persons who was standing around my car before. He is about 40 years old. I said to him, "Look I know you're cops but don't you think your guys are out of line." He said, "Fuck off mate, you go and sort it out with him". At this time he pointed at the guy who had gotten into my car. [14] I walked towards this guy, he was sitting by himself, I said to him, "Look don't you think." He cut me off and said, "Fuck off." I said, "Are you serious." As I was talking to him I felt someone come from the side, he grabbed me by the throat and pinned me against a wall near the Seven Eleven. I remember he was wearing a red coloured shirt. As I hit the wall he let go of me and I said, "What the fuck are you doing?" He grabbed me by the throat again, pushed me up against the wall and said, "Look mate, no one can see you here I can do whatever I want." I was scared and was panicking. I didn't know who this guy was. I pushed his hands away from my throat, broke free and ran around the corner of the Seven Eleven to the front of the Orchard Tavern where there was a crowd of people. The guy in the red shirt followed me. I saw a couple of people I know, Max from Killara and Alvin who lives in Chatswood. I said words to the effect, "They're hassling me". [15] This same guy then grabbed me again around the throat, in front of everyone, including the bouncers from the Tavern. He slammed me up against a wall, I put my hands in the air to show him and everyone that I was doing nothing. He let go and I said, "Someone call the cops". He said, "Who's calling the cops?" He turned around and again grabbed me around the throat. That's when one of the bouncers came over and pulled this guy off me. 29 Not surprisingly perhaps, Mr Hwang was cross-examined vigorously as to the contents of the above paragraphs. That was particularly so with respect to the events described by Mr Hwang in para [14] when the first two of the alleged assaults are said to have occurred. That is: (i) "... he grabbed me by the throat and pinned me against a wall near the Seven Eleven". ... and (ii) "He grabbed me by the throat again, pushed me up against the wall ... I pushed his hands away from my throat ..." 30 It should be added at this point that in cross-examination Mr Hwang stated that reference to 'hands' above was incorrect and that he only ever said 'hand'. 31 Mr Formston has no recollection of those events. His belief that the above events alleged by Mr Hwang had not occurred as he asserted was reinforced in some respects by forty six still photographs contained within the police brief of evidence prepared for the assault proceedings in the Local Court in 2005 (exhibit 8). 32 It is evident the forty six still photographs comprising exhibit 8 before me were taken from diverse closed circuit television (CCTV) footage on the night in question. They predominantly depict aspects of the area in and around the end of the Chatswood Mall and Orchard Road intersection, particularly the escalator leading from Chatswood railway station and the area outside the Seven Eleven store. They are timed from 00:18:08 to 00:39:09 on 16 December 2004. 33 In a number of those still photographs Mr Formston is identified located in the vicinity of a park bench outside the Seven Eleven store. That is the area where the first two assaults were said to have occurred. There is no evidence of any assault by him on any other person. If anything, reference to those photographs would only have reinforced Mr Formston's recollection, or lack of it, that those first two assaults had not occurred. Interestingly, the statement by the Police Investigator, Inspector Yeomans, that the CCTV footage at the time of the incident 'did not show the area where the assaults are said to have taken place' led to the belief, perhaps, that nothing of what occurred between Mr Hwang and Mr Formston had been captured on any CCTV footage. While the events in Orchard Road were not so caught, the events encompassing the first two assaults alleged by Mr Hwang adjacent to the Seven Eleven store certainly were. 34 The significant differences between Mr Formston and Mr Hwang about those first two alleged assaults was to a large extent answered by the production during the proceedings of CCTV footage held by the Commissioner. It had not been provided to Mr Formston as part of the documentation provided to him by the Commissioner as material upon which the Commissioner relied in making the decision he did to remove Mr Formston. It would also appear that this particular CCTV footage was not viewed by the Commissioner or anyone acting on his behalf as part of his deliberations leading to his decision to remove Mr Formston. 35 The CCTV footage produced in answer to a call from the applicant's counsel was produced and admitted without objection by counsel for the Commissioner as new evidence. The compact disc (CD) compilation of the CCTV footage held by the Commissioner was from a number of CCTV cameras (or channels) in the relevant area around the Seven Eleven store on the night in question. The specific CCTV footage relied upon before me was identified as being from Channel 2 commencing at 00:34:03 to 00:45:00 on 16 December 2004. That time sequence covers the period and location of the first two assaults alleged by Mr Hwang outside the Seven Eleven store as described by him in para [14] of his statement set out above. 36 Apart from Mr Hwang, there are no witness statements in the material before me that throw any light on the first two alleged assaults by Mr Formston upon Mr Hwang. Two acquaintances of Mr Hwang, Mr Chung and Mr Sofjan were present in the area but their actual observations of relevant events are confined to the last two alleged assaults on Mr Hwang that occurred in Orchard Road adjacent to the Orchard Tavern. 37 Included in the material filed on behalf of the Commissioner were a number of statements from police officers who were off-duty and in the vicinity of the Seven Eleven store at the time of the altercation between Mr Hwang and Mr Formston. All of them had also been to the Christmas party for the Northern Area Local Area Command. 38 The statements made were from: · Acting Sergeant Matthew Parker dated 26 December 2004 · Constable Michael Haley dated 27 December 2004 · Constable Ryan Lynch dated 2 January 2005 · Constable Melissa Perry dated 27 December 2005 · Constable Katrina Gee dated 24 December 2004 39 None of the above were required for cross-examination. 40 All of the above off-duty police officers stated that at the relevant time they were moderately affected by alcohol. All of them had observed different aspects of the altercation between Mr Hwang, Mr Formston and Constable Corrigan, particularly the initial confrontation when Mr Hwang was told to move his car because it was illegally parked. 41 A reading of their respective statements would suggest that whatever took place between Mr Hwang and Mr Formston was in Orchard Road near the Orchard Tavern. That would be, in my view, because it was in that area that they predominantly congregated after they had been to the Seven Eleven store. None of them make any mention of any altercation or possible assault between Mr Formston and Mr Hwang adjacent to the park bench near the store where Mr Hwang alleged he was assaulted on two occasions. 42 In relation to the two assaults alleged by Mr Hwang that occurred in Orchard Road near the Orchard Tavern, none of the deponents saw any assault by Mr Formston on Mr Hwang. It would be fair to say, I believe, that most of them, in addition to being moderately affected by alcohol, were not directing their close attention directly to what was occurring but rather it was more something they became aware of because of the raised voices taking place between Mr Hwang, Mr Formston and Constable Corrigan. Certainly they were all aware that an argument had erupted between Mr Hwang and Mr Formston and Constable Corrigan concerning Mr Hwang's illegal parking. Two of them also refer to hearing Mr Hwang's complaint that he had been assaulted: See Constable Haley's statement at para [7] where he stated that Mr Hwang asserted he had been 'pushed in the throat four times' whereas Constable Lynch stated that Mr Hwang asserted 'the guy in the red shirt assaulted me'. 43 Acting Sergeant Matthew Parker became aware of the initial confrontation between Mr Hwang, Mr Formston and Constable Corrigan. As he explained, he ultimately intervened, seemingly in an attempt to defuse the situation: [6] I saw Constable Corrigan approach the Asian male at the rear of the car, there appeared to be some verbal altercation between the two, I couldn't hear exactly what was said but I did hear Constable Corrigan say 'You can't park there.' As this continued Constable Formston approached them and I noticed he had his Police badge out and I say him hold it up to the Asian male and he said something. I didn't hear what was said between the three of them but I am aware that they were talking about where the Asian male had parked. [7] At this time the three of them moved onto the footpath and were situated about 10 to 15 metres away from where I was standing. I saw another Asian male walk over to the group, and a heated argument ensued. At this time our group began to walk away to get a taxi, (this group included Jodie Garrod, Melissa Perry, Ryan Lynch, Mic Hayley and Katrina Gee). As we were walking away the argument between the group began to get louder and there appeared to be more people milling around where the argument was taking place. [8] As a result of what was transpiring I borrowed the Police identification of Constable Lynch and walked over to where Constables Formston and Corrigan were standing and told the two of them to move away. I then identified myself as a Police Officer to the driver of the vehicle and asked him what was going on. He said to me, 'What are you doing just helping your mates out' (or words to that effect). I said, 'I don't know what's gone on here but can I help'. I can't remember exactly what he said to me but I recall the second Asian male then started to jostle me by taking hold of my shoulder and arms, waving his hands around and screaming out something in relation to Police. I asked this second Asian male to move away, which he didn't. I then asked the driver of the motor vehicle to tell his friend to move away. He gestured to him to move away and he did. [9] At that stage the driver of the motor vehicle was on his mobile phone, talking to someone. When he got off the phone I spoke to him about what had gone on and the next thing I knew Inspector Campbell pulled up on the opposite side of the street. She approached me and the driver of the vehicle and directed the bystanders away. She then had a conversation with the driver. At that stage I had moved to the other side of the road with the rest of my group and I later spoke to Inspector Campbell and then went home. 44 Interestingly, Acting Sergeant Parker did not notice Mr Hwang moving his car. As he said: I don't remember seeing the car from when Formston and Corrigan approached the Asian male. I didn't pay any attention to the car again. 45 A very careful and detailed consideration of that CCTV footage relied upon discloses a sequence of events somewhat at odds with Mr Hwang's recollection as stated in his official statement on 17 December 2004. It is also at odds with the contemporaneous notes of Inspector Campbell in her diary. Inspector Campbell was the senior police officer who attended the scene following an 000 call made by one of Mr Hwang's friends. Mr Hwang has never been asked to adopt that statement and Inspector Campbell was not called. In her notes, Inspector Campbell made the following entry, relevantly: ... Corrigan has then approached the victim as he left the store & spoke to him. A second male in a red shirt with blonde hair (Formston) suddenly grabbed the victim & smashed him against the wall of the store, put his hands around his throat & began to choke him. ... 46 The CCTV footage relied upon is confined to a view encompassing the entry door to the Seven Eleven store and its immediate surrounds. There is a clear view of a park bench located near the door of the store at the top (western) end of the mall nearest to the railway station. Beyond the park bench, somewhat further down the mall, is a tree and one of a series of concrete type pillars with lighting erected at intervals down the mall. There is little or no view of the Orchard Road or the Orchard Tavern. 47 In the footage and based on the evidence received, Mr Formston is clearly identified by his red shirt. Mr Corrigan is identified by his blue shirt and his presence with Mr Formston on relevant occasions. Mr Hwang identified himself in some parts of the footage but he was unsure about his identity in other parts. In some parts of the footage, a person appears dressed in the dark shirt and trousers identified by Mr Hwang in the footage viewed by him as the colour of the clothing he had on that night. However, apart from those parts of the footage where Mr Hwang confirms his identity, it is not possible to be certain that the person who, judging by the person's clothing appears to be Mr Hwang, is indeed him. 48 Relying on that respective identification and guided by the time sequence on the CCTV, the actions of Mr Formston, Mr Corrigan and Mr Hwang during the time period identified would appear relevantly to be as follows:

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49 It has to be said that the clarity of the CCTV footage suffers from a degree of distance distortion. Nevertheless, it is clear that there was an altercation between Mr Hwang and Mr Formston adjacent to the park bench outside the Seven Eleven store. What is not clear is the precise extent of physical contact between them. Whatever contact did occur, and I believe there was some, it was at approximately 00:42:21 to 00:42:22. 50 The best one is able to ascertain is that Mr Hwang was definitely not 'smashed against the wall of the store' as reported by Inspector Campbell. Further, he was not, as best as I can determine, 'grabbed by the throat and pinned against a wall near the Seven Eleven''. 51 If anything, Mr Hwang was assaulted by Mr Formston at or about the time identified above in that there was some physical contact between them. Notwithstanding vigorous cross-examination as to inconsistencies (of which there are a number) in his statement and his recollection before me, as well as aspects of Inspector Campbell's notes, Mr Hwang was consistent about one thing. That is, that he was assaulted outside the Seven Eleven store on 16 December 2004 by Mr Formston. That assault consisted of at least one occasion when he was grabbed by the throat by one hand and that he was 'definitely' hit against the wall of a building. 52 I have to say that notwithstanding Mr Hwang's insistence in his evidence before me, I cannot conclude that the CCTV evidence supports him. At best, that evidence is conclusive of an altercation occurring between Mr Formston and Mr Hwang near the bench in question. I am satisfied to the requisite standard there was physical contact between them but there is no evidence to support Mr Hwang's quite emphatic contention he was pushed, hit or 'smashed' against a wall. Further, it is not possible to conclude to the requisite standard that Mr Hwang was grabbed around the throat but I do accept that there is every indication he was hit or pushed in the chest area in his altercation with Mr Formston. There is certainly no evidence to definitively confirm Mr Hwang was pinned up against anything, as he suggested. 53 Whatever did occur between the two men was of very short duration. Mr Formston turned relatively quickly and walked away. Mr Hwang followed him and ultimately ducked around him, seeming to overtake Mr Formston as he was walking past the door of the Seven Eleven store in the direction of Orchard Road. 54 As I indicated in my observations of the timed sequence CCTV footage, the last view of Mr Formston and Mr Hwang on screen is strongly suggestive of Mr Hwang, having caught up with Mr Formston, turning towards him, giving the appearance of remonstrating or talking with him. This would accord with Mr Hwang's evidence that the second series of alleged assaults by Mr Formston occurred in Orchard Road near the Orchard Tavern. These assaults were preceded by Mr Hwang challenging Mr Formston, as it were, to 'come on, have a go' only this time in front of witnesses. This was in response to Mr Formston allegedly having said to Mr Hwang when he assaulted him on the first occasion words to the effect of: Look mate, no one can see you here. I can do whatever I want. 55 Mr Formston denies saying those words or, more correctly, he has no recollection of them. Mr Hwang was not challenged as to that assertion appearing in his statement but he did refer to it in passing in his evidence before me. Ultimately, it is not possible to come to any concluded view as to whether those words were said as alleged. 56 On one view, it would be surprising for the words alleged to have been said in the situation Mr Hwang alleges. The words alleged imply that the first round of assaults by Mr Formston on Mr Hwang took place in circumstances removed from the possibility of being observed by anybody else. And yet that was not the case. 57 The confrontation between Mr Formston and Mr Hwang in which the words quoted above are alleged to have been said took place in a very public place just outside the Seven Eleven store. The area was, on any view, well lit and, as the CCTV footage evidences, there was a reasonably constant stream of people coming and going into the store while the confrontation between Mr Formston and Mr Hwang on that occasion was occurring. It simply does not make sense to suggest that whatever was occurring between Mr Formston and Mr Hwang was somehow removed from the public gaze or the casual passerby such as to escape all likelihood of being seen. 58 Notwithstanding that observation and in the absence of any further evidence from Mr Hwang on the issue apart from that contained in his statement, it is simply not possible for me to be conclusive to the requisite standard as to whether the words were said or not. A number of factual inconsistencies in Mr Hwang's statement when compared with the CCTV footage would simply reinforce the need for caution before accepting, without equivocation, that the words were said as stated by Mr Hwang. 59 The second sequence of assaults alleged by Mr Hwang occurred near the Orchard Tavern in Orchard Road. As I understand it, the entrance to the Orchard Tavern is virtually next door to the Seven Eleven store in Orchard Road. On 16 December 2004, there was a security officer/bouncer at the Tavern entrance which meant that he was located out the front of the Orchard Tavern, next door to the Seven Eleven. His name was Mr Jason Ridgewell. 60 In addition to Mr Ridgewell, two other persons were seated on a planter box nearby. Both were acquaintances of Mr Hwang. One was Mr Max Chung and the other was Mr Sofjan. Both had been to the karaoke bar in Chatswood and had left together. They were waiting near the Seven Eleven store to get a lift home from Mr Chung's mother who was coming to pick them up. 61 Each of the three persons identified above have given different accounts of what they observed between Mr Hwang and Mr Formston. 62 Mr Ridgewell observed the initial incident between Mr Hwang, Mr Formston and Constable Corrigan involving the demand by them that Mr Hwang move his car. He also observed later events near the Orchard Tavern. In his statement given on 24 December 2004 he relevantly stated: [5] Between 12 midnight and 1am I was working on the front door… [6] Around this time, I saw an Asian man park his car in front of the Orchard Tavern, he hopped out of his car and ran toward the Seven Eleven. A couple of these guys from the group walked up to his car, and yelled out to the Asian guy, 'You can't park your car here'. It was then that these two guys, plus a couple of others from the group pulled out their Police badges. I don't know if they identified themselves as Police but they showed their badges toward the Asian guy. I remember one of the two guys then opened the driver's side door and leaned into the car. The Asian guy then ran back to where these guys were and they spoke. I didn't really listen to what they said but I know that it was a heated argument, as I heard voices raised. [7] After a while, the Asian guy moved his car around the corner and came back shortly after. He walked past me and said, 'They shouldn't be able to do that'. He then walked toward the Seven Eleven out of my sight. [8] He then walked back towards me a few minutes later yelling, 'I've got a witness'. That's when I saw the same two men who were speaking to the Asian guy before, walking behind him. The Asian guy continued saying, 'Now try and touch me when I've got a witness'. One of the guys walked past the Asian guy whilst the other guy grabbed him around either the shirt or neck and pushed him against the wall. The Asian guy put his hands up and said, 'Can you see this.' At this time he was looking directly at me, as he was only two metres away. The guy then let the Asian fellow go and walked away with his friend. [9] The Asian fellow kept yelling, 'You can't do this'. A guy in a white t-shirt came over and tried to calm the Asian guy down and then the lady Police officer turned up and I spoke to her. ... 63 As is evident, Mr Ridgewell says that two men (Mr Formston and Mr Corrigan) 'were walking behind' Mr Hwang. He also confirms that Mr Hwang was challenging the two men to 'have a go' as it were, this time with witnesses. It must be noted that Mr Ridgewell makes no mention of intervening between Mr Hwang and Mr Formston whereas Mr Hwang says he did. 64 Mr Chung's recollection in his statement of 31 December 2004 is as follows: [4] I went with my friend Alvin and we walked up in the direction of the Seven Eleven. When we got there we went over and sat near the planter box near the Orchard Hotel. [5] At this time I saw my friend Woong…Woong told me that he had been trying to buy something at the Seven Eleven and two men had approached him about how he had parked. He told me how they had hassled him about it and he asked, 'Who the hell are you guys' and they replied 'We're fucking cops'. He then told me he drove his car away from the Seven Eleven, around the corner in front of Space Gym. He told me he came back to get the details of the officers. [6] He then walked over to a man in a red shirt and said, 'Can I have your details, you can't do what you did'. The guy in the red shirt said, 'Piss off'. The guy in the red shirt got up and walked off in the direction of the Seven Eleven and then around the corner. Woong followed him. [7] About 20 to 30 seconds later I looked up and saw the guy in the red shirt walking back towards me. There was another guy with him at this time, he was wearing a blue shirt. Woong followed behind them and said, 'Look they're Police officers they can't do this'. At this time the guy in the blue shirt started to walk off. The guy in the red shirt stopped and turned, looked at Woong and said, 'Piss off, I don't care'. At this time he grabbed Woong by the neck and slammed him up against the wall. (I was less than five metres away from where the guy in the red shirt grabbed Woong at this time). Woong said, 'Look everyone they're cops, they can't do this'. [8] The bouncer who was standing in front of the Orchard Hotel said, 'Mate get off him' - toward the guy in the red shirt, who still had hold of Woong. That's when I intervened, I said, 'What the fuck are you doing to my friend?' Woong then raised his hands and pushed the guy in the red shirt away. Woong said to me, 'Call the Police'. I called 000 and the two guys walked off up Orchard Road. Some guy then approached me and asked me to hang up the phone, he then spoke to Woong and the Police called me back, and the Police arrived shortly after. 65 Mr Chung's statement differs from Mr Ridgewell in that he said Mr Hwang was 'following behind' Mr Formston and Mr Corrigan. As well, he asserts Mr Ridgewell intervened and that Mr Hwang 'pushed the guy in the red shirt away'. 66 To muddy the factual waters even further, Mr Sofjan's statement of 2 January 2005 says, relevantly: [5] I sat down with Max in front of the Orchard Hotel and saw Woong Jae and these two guys walk off around the corner from the Seven Eleven. I could hear them arguing more around the corner; I don't know what they were saying. [6] Woong Jae came back around the corner about 30 seconds later yelling, 'That's assault, he strangled me'. The same two guys were following close behind Woong Jae. [7] All of a sudden the guy in the red shirt caught up to Woong Jae and grabbed him around the neck and pushed him up against the wall. Me and Jason walked over to them and put our hands on the guy who was holding Woong Jae, I said 'Stop it'. Woong Jae had his hands upright saying words similar to, 'That's assault'. The guy in the red shirt then let Woong Jae go and walked off with the guy in the pattern shirt. [8] Woong Jae then spoke to another guy; he was a solid bloke with a shaved head. Uniformed Police then arrived and spoke to Woong Jae and this other guy. Woong Jae then got me to go back to his car to keep his passenger company whilst he sorted the matter out with Police. 67 The inconsistencies between Mr Chung's recollection and Mr Sofjan's, let alone Mr Ridgewell, are obvious. Significantly, Mr Sofjan claims it was he and Mr Chung who intervened and not Mr Ridgewell and that Mr Formston and Mr Corrigan were following Mr Hwang rather than the other way around, as asserted by Mr Chung. 68 None of the above witnesses were called. Accordingly, one is left with some doubt as to the precise sequence of events particularly when compared against Mr Hwang's recollection as follows: [14] …I was scared and was panicking…I…broke free and ran around the corner of the Seven Eleven to the front of the Orchard Tavern where there was a crowd of people. The guy in the red shirt followed me. I saw a couple of people that I know, Max from Killara and Alvin who lives in Chatswood. I said words to the effect, 'They're hassling me'.

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[15] This same guy then grabbed me again around the throat, in front of everyone, including the bouncers from the Tavern. He slammed me up against a wall, I put my hands in the air to show him and everyone that I was doing nothing. He let go and I said, 'Someone call the cops'. He said, 'Who's calling the cops?'. He turned around and again grabbed me around the throat. That's when one of the bouncers came over and pulled this guy off me. 69 Despite the fact that Mr Hwang's recollection is now uncertain as to detail, he reaffirmed his statement of December 2004 as being true and correct. He gave his evidence by reference to that statement. 70 What can be said with a considerable degree of certainty is that Mr Hwang did not break free and run around the corner of the Seven Eleven and 'the guy in the red shirt followed me'. As the CCTV footage confirms, whatever contact initially took place between Mr Hwang and Mr Formston near the park bench, it was Mr Formston who walked away. There is no evidence of Mr Hwang 'breaking free' of anything. As earlier stated, Mr Hwang followed Mr Formston, ducked around him and appeared to be walking more or less alongside him, remonstrating or talking at him as they disappeared from the CCTV footage. 71 Despite Mr Hwang's reference to 'bouncers', there is only a statement from Mr Ridgewell. He makes no reference to being with any other bouncer that night. No other bouncer is mentioned by Mr Chung or Mr Sofjan. 72 Mr Ridgewell, Mr Chung and Mr Sofjan all make reference to only one contact between Mr Formston and Mr Hwang. That is, that Mr Formston did push Mr Hwang up against the wall. According to Mr Ridgewell, Mr Formston then walked away whereas Mr Chung said the bouncer intervened on Mr Hwang's behalf and Mr Sofjan said that he and Mr Chung intervened. Mr Hwang was emphatic the bouncer intervened. 73 Putting aside the clear inconsistencies in the above recollections, it is clear Mr Hwang was assaulted by Mr Formston near the Orchard Tavern when Mr Formston grabbed him around the neck and pushed him against the wall. 74 It was this assault to which Mr Formston subsequently pleaded guilty. 75 Despite Mr Hwang's statement that he was grabbed around the throat twice by Mr Formston outside the Orchard Tavern, there is no evidence to support this. Mr Ridgewell, Mr Chung and Mr Sofjan all only refer to one incident of pushing and grabbing around the neck by Mr Formston. 76 Mr Formston's evidence on the events between he and Mr Hwang is set out in his statement as follows: [23] If the 'primary concern' of the Commissioner is that I denied the assault allegation, then I can say that during the course of the incident, when my judgment was severely affected by alcohol and afterwards, doing the best I can to recall the incident, accepting that I only have a partial recollection, I believe that I did feel threatened by the actions of Mr Hwang as witnessed by Constable Katrina Gee. Constable Gee heard Mr Hwang saying to me, 'Come on. Have your go' (Attachment 11 to the Commissioner's Confidence Submissions at paragraph 11). However, as I said in my directed interview at questions 35 and 36, I have no recollection of any argument. At this point in the incident I believe that I was attempting to leave the area with my friend so that the situation would not escalate and Mr Hwang was blocking my path and waving his arms around, moving from side to side as I attempted to pass him to leave. [24] As best I can remember by relying upon my partial recollection, I acted reflexively, and shoved him out of the way to create space for myself. I believe that I used an open hand and attempted to shove Mr Hwang in his chest area. He was shorter than me and if this meant that I struck him high and contacted with his neck by grabbing around his neck, I believe that I was not aware of it at the time and that would certainly not have been my premeditated intention. However, as demonstrated by my guilty plea and the 'Agreed Facts' in the common assault charge, after my directed interview, I accept, "Formston assaulted the complainant by grabbing him around the neck and push him up against a wall." 77 Taking into account all of the evidence I have referred to and having heard the evidence of Mr Formston and Mr Hwang, I am satisfied there were two incidents between Mr Formston and Mr Hwang that are able to be considered as assaults - not four as asserted by Mr Hwang. 78 The second of the two assaults is more clear cut as to the actions of Mr Formston. He grabbed Mr Hwang around the neck and pushed him up against a wall near the Orchard Tavern. 79 The first assault is not able to be so precisely described notwithstanding the CCTV footage. To start with, there is no evidence Mr Hwang was pinned against a wall. It is also not possible to be satisfied to the requisite standard that Mr Hwang was 'grabbed by the throat'. As best as can be ascertained, he was pushed by Mr Formston but beyond that it is not possible to say. Further, there appears to be only one such incident between them on that occasion, not two as asserted by Mr Hwang. 80 None of what I have determined to date should be seen as in any way minimising the seriousness of what Mr Formston did. It is simply my conclusion of the events between them, having regard to the disputation going to the extent of Mr Formston's actions as alleged by Mr Hwang. 81 My conclusions to date should not be seen as any reflection on Mr Hwang's veracity. He gave his evidence before me as best he could given that the passage of time has blurred his recollection. If anything, he would appear to have overstated some aspects of what he experienced that evening at the hands of Mr Formston and Constable Corrigan. That is not surprising, on one view. Despite the fact that he parked illegally, Mr Hwang was going about his life on 16 December 2004 peacefully and, by all accounts, soberly. He did not deserve what happened to him and quite understandably, he was very angry and upset. He was entitled to be. To be accosted in the way he was by drunken off-duty police officers abusing their authority in the way that they did was disgraceful and unacceptable behaviour. Mr Formston has properly acknowledged that. Considerations going to matters raised by the applicant and generally

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82 The grounds relied upon by the applicant in the review process to be undertaken by the Commission were identified as six primary grounds as follows: (i) The professional support from police officers, including senior officers, for Mr Formston as well as Mr Formston's unblemished community reputation; (ii) Mr Formston's removal was too severe a penalty or it was too harsh a consequence in all circumstances and the Commission should intervene because of mitigating circumstances or past good conduct; (iii) The removal of Mr Formston was too harsh in its personal and economic consequences for Mr Formston; (iv) There was reason to doubt Mr Hwang was assaulted four times and not once, as accepted by the Commissioner; (v) Mr Formston's removal is indicative of inconsistent or differential treatment having regard to other similar type circumstances involving off-duty assaults by police officers where some such police officers have not been removed from the New South Wales Police; (vi) The Commissioner adopted or applied an unfair procedure for the removal of Mr Formston. This ground has a number of aspects: · No comprehensive records to help encourage consistency in decision making; · No fair application of making references to similarity; · The failure to provide the source documents disclosing bench marking by the Commissioner; · Unfair application of discretion inherent in New South Wales Police Code of Conduct and Ethics; · CCTV footage. 83 Dealing seriatim with the above grounds identified (i) to (vi) above, I have no difficulty in finding that the level of personal and professional support favouring Mr Formston is of considerable weight. Mr Formston annexed a significant number of personal and professional testimonial material to the statement filed on his behalf as part of this review process. That material, as I understand it, had also been provided by Mr Formston to the Commissioner in response to the Commissioner's initial s 181D Notice. The professional testimonials were from the following persons: (i) Sergeant Patrick J Gooley; (ii) Sergeant Anthony Bear; (iii) Superintendent Doreen Cruickshank; (iv) Sergeant Graham Baker; (v) Leading Senior Constable Antony Solinas; (vi) Sergeant Rod Millington; (vii) Sergeant Kim Urbaniak; (viii) Sergeant Peter Taylor; (ix) Inspector J Bell; (x) Sergeant James Minard; (xi) Leading Senior Constable Joanne Stepto; and (xii) Sergeant Gemini Bakos. 84 Of those persons listed above, Leading Senior Constable Antony Solinas and Leading Senior Constable Joanne Stepto were amongst the number of off-duty police officers who were present in the vicinity of the incident involving Mr Formston on 16 December 2004. They had attended the same Christmas function as he had with other officers from the North Shore Local Area Command. 85 It would not be overstating it, in my view, to say that the professional references provided on behalf of Mr Formston were impressive. As the above list demonstrates, they came from officers of significant senior rank within the NSW Police. It would be fair to say it is entirely possible that, for some of them, their precise knowledge of the factual circumstances surrounding Mr Formston's behaviour on 16 December 2004 may not be comprehensive in all respects. Nevertheless, judging by the general tenor of their testimonial material, it is clear that they were aware, at the time of writing, of the general circumstances that had given rise to Mr Formston's removal. That is, he had assaulted a member of the public while off-duty in circumstances of intoxication which, on any view, is a serious matter. Notwithstanding that, they all affirmed Mr Formston's overall competence, enthusiasm and integrity, as they perceived it, such as to consider the circumstances of 16 December 2004 as one that was entirely 'out of character' as far as Mr Formston's general behaviour and character was concerned. I particularly refer to the reference provided to Mr Formston by Ms Doreen Cruickshank APM who is the Superintendent of the North Shore Local Area Command. Superintendent Cruickshank was Mr Formston's relevant Commander in the field. 86 In her assessment of Mr Formston, Superintendent Cruickshank stated, inter alia, as follows: Constable Stuart Formston commenced duty as a Probationary Constable in my Command on 2 May 2003 and he has remained here performing general duties to a very professional standard and he has always displayed great enthusiasm and motivation towards all aspects of his duties. In December 2004, because of his aptitude, integrity and dedication to his policing duties he was selected by a Management Team to be placed on the 'A' List and work in the Detectives Office which was to have commenced in January 2005. ...

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Stuart has my full support and I would be more than willing to have him return to full duties in my Command as I believe he has a future with the NSWP. 87 In addition to the above professional references, there are a number of personal and professional references from persons who have known Mr Formston outside of his role as a police officer. Those persons identify their knowledge of Mr Formston having observed and dealt with him with respect to the printing business that he was involved in in the Central Coast area before joining the Police Service. As well, a number of those personal referees arise as a result of Mr Formston's participation and involvement with the Central Coast Rugby Union Referees Association. Those references attest to the authors' respective beliefs that Mr Formston was a man of integrity and truthfulness and that the assault charge that he was involved in was, again, 'out of character'. There was the need for some of those personal referees to further clarify their original references in relation to perceived extenuating circumstances surrounding the assault charge. Notwithstanding the need to clarify that mistaken belief, the referees were still more than willing to speak highly of Mr Formston's character. 88 All of the above matters, going as they do to Mr Formston's general personal and professional character, are matters that the Commission ought properly to have regard to under s 181F(3) generally, and specifically under s 181F(3)(a) as part of the review process. 89 Having said that, it can, I believe, be properly assumed that the Commissioner took account of the testamentary material submitted by Mr Formston in deciding to remove Mr Formston from the NSW Police. I say that in that such material would have to have been included in the Commissioner's Statement of Reasons where he said: I have carefully reviewed all of the material associated with this matter and see no mitigation or reason that would provide me with any basis not to lose my confidence in your suitability to remain a police officer. 90 It is part of Mr Formston's submission that the Commissioner failed to give proper and balanced weight to the above-mentioned personal and professional testimonials in coming to the decision that he did. I will return to that issue in due course. 91 Grounds (ii) and (iii) identified above, going as they do to the submission that the Commissioner's decision was too harsh in all the circumstances and too harsh having regard to the economic and personal consequences that it represents, are matters, in my view, to be properly weighed in my considerations under the process to be followed under s 181F and s 181F(3) in particular. 92 In submitting that the Commissioner's decision was too harsh in all the circumstances of the matter, counsel for Mr Formston relied on the well established principle enunciated by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233.5 where his Honour said: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 93 The application of the above-stated principles was affirmed as relevant by the Full Bench of the Commission in Little v Commissioner of Police (No 2) (2002) 112 IR 212 as follows: [68] Further, the requirements of s 181F(3) are relevant to determining whether the removal of a police officer was harsh, unreasonable or unjust: see Van Huisstede (at 248). However, those factors do not diminish the obligation on the Commission to determine whether the removal of a police officer was harsh, unreasonable or unjust having regard to the principles ordinarily applied in unfair dismissal matters. The provisions of s 181F(3) are simply matters to which the Commission is also to have regard in making such an assessment (which, in any event, would be considerations broadly relevant in the adjudication of many unfair dismissal applications under the Industrial Relations Act ) and particularly so where the proceedings relate to positions in the public sector or other areas where the public interest may have particular relevance. …

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[70] In order to illuminate this conclusion, it is unnecessary to go any further than to recall the classic exposition of principles applicable to unfair dismissal matters given by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at 233 ... 94 While on the issue of removal being too harsh in its consequences, it can hardly be denied that the removal of a person from his or her employment, whether it be as a police officer or otherwise, would have harsh economic as well as personal consequences for that individual. The proper approach must surely be that, given the particular facts and circumstances relied upon to justify the person's removal or termination from the workforce, the removal or termination is too harsh given the personal and economic consequences that such a decision brings. In other words, there may well be occasions when the facts and circumstances relied upon to remove or terminate an employee are justified notwithstanding the harsh personal and economic circumstances that may arise. Ultimately, it is a matter to be taken into account in the overall balancing exercise that s 181F(3) requires. 95 The fourth ground raised on behalf of Mr Formston is that the Commissioner was wrong to accept that Mr Formston assaulted Mr Hwang on four occasions and not once, as was stated by Mr Formston. 96 My conclusions in relation to the incidents that occurred between Mr Formston and Mr Hwang have already been detailed. In considering this issue, it should not be said that the Commissioner was wrong to have accepted Mr Hwang's assertion as to the number of times he was assaulted. He was entitled to do that but all of the available evidence simply does not support such a conclusion. 97 Further, the statement of Mr Hwang asserts that the last two of the alleged assaults occurred in rapid succession in view of 'everyone', as Mr Hwang described the witnesses. It can properly be presumed, in my view, that if there were two such assaults as asserted by Mr Hwang, one or more of the three witnesses would have observed. Yet a careful comparison of the statements of Mr Ridgewell, Mr Chung and Mr Sofjan discloses no reference that asserts Mr Hwang was assaulted twice by Mr Formston outside the Orchard Tavern. Accordingly, accepting Mr Hwang's assertion on this issue without equivocation does not, it seems to me, reflect a fair and balanced consideration of all of the other competing witness statements of that particular incident. 98 While it is understandable that the Commissioner may prima facie be inclined to accept the statement of any alleged victim, it should not be accepted unequivocally in light of other material that suggests somewhat to the contrary. It would be for that reason, in my view, that the DPP were satisfied that the only assault that they could confidently rely upon for the purposes of prosecution was the one witnessed by Mr Ridgewell, Mr Chung and Mr Sofjan. 99 In making the comments that I do about this aspect of the Commissioner's findings, I am not in any way forgetting the Commissioner's stated primary concern as to his reason for removing Mr Formston from the NSW Police. That primary concern, to which I have referred earlier, is that when Mr Formston participated in a directed interview in January 2005, he denied the allegations and stated that he had acted in self defence by pushing Mr Hwang away with his open hand. Further, as the Commissioner pointed out, Mr Formston later pleaded guilty to the offence of assault and in the agreed facts subsequently submitted to the Court, he admitted to assaulting Mr Hwang once only. In short, the Commissioner is challenging Mr Formston's veracity going directly to the substance of Mr Hwang's complaint. I will return to that primary contention of the Commissioner's in due course. 100 The fifth ground relied upon and, in some respects, also encapsulated within the sixth ground relied upon, is the submission emphasised by counsel for Mr Formston that goes to what he submits was the differential treatment that is accorded to police officers who come to the Commissioner's attention in what might be considered similar fact type circumstances. That is, whilst off-duty and intoxicated, police officers become involved in assault type incidents with members of the public. In relation to this similar fact type behaviour, it was contended there was differential and inconsistent treatment of those officers in the way in which they were ultimately dealt with in that some were removed from the NSW Police and some were permitted to remain within the NSW Police, generally with a Commissioner's Warning Notice. Overall, it was said, in undertaking on a limited basis what I would refer to as a comparative outcomes analysis, it could be demonstrated that this differential treatment by way of outcomes applied and, on behalf of Mr Formston, it was said, applied unfairly. 101 In interlocutory proceedings relating to this matter, there was disputation between the applicant and the respondent surrounding a Summons to Produce served on the Commissioner. That Summons sought the production of a wide variety of documentary material over a significant time period sourced from both Local Area Command and Commissioner's Office level going to this issue of comparative outcomes analysis. The forensic purpose of seeking such material, it was said, was to highlight the inconsistent and differential treatment meted out to diverse police officers in relation to off-duty, alcohol-related assault type incidents. Indeed, within the body of the Summons to Produce, documentation was sought in relation to an identified number of police officers who had been involved in such incidents and dealt with under s 181D. 102 Ultimately, I ruled against the majority of the Summons for Production on the grounds of both irrelevancy to the task before the Commission in undertaking the review process as well as that of oppression given the broad and wide-ranging nature of the material being sought to be produced balanced against the resources of the Police in trying to sensibly comply with it. There was, however, a relatively limited amount of such comparative material tendered without objection on behalf of the applicant. That was material that had been previously placed before the Commission in a matter dealt with by Boland J in Evans v New South Wales Police (2005) NSWIRComm 404. In those proceedings, his Honour said as follows in relation to this material: [46] Mr Docking also relied on the contention that there was such a marked inconsistency in the treatment of the applicant compared to that of other officers who engaged in the same conduct as the applicant that his removal was manifestly unjust: Burrows v Commissioner of Police ; Giardini v Commissioner of Police [2001] NSWIRComm 333 at [188]. [47] Mr Docking pointed to the evidence of a number of police officers that had committed assault. Some had been removed under s 181D and others had been given a "Commissioner's Warning Notice". Four examples where warning notices had been issued were as follows: 1. Incident in March 2004 in a club where an off duty sergeant of police assaulted another off duty police officer by hitting him in the face. Sergeant intoxicated. Pleaded guilty to assault causing actual bodily harm. Dealt with under s 9 of Crimes (Sentencing Procedure) Act and placed on good behaviour bond. Twenty-one years' service. Took positive steps to rehabilitate by counselling. Support from colleagues and victim.

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Incident in January 1999. Off duty constable assaulted an off duty police officer. Pleaded guilty to an assault charge and convicted and fined $400. Said to be reprehensible behaviour; that of a hooligan and an assailant rather than a police officer. Known to victim, showed genuine regret, admitted the offence, pleaded guilty on first occasion and re-established a relationship with victim. Recognised alcohol abuse problem and rehabilitation program. Strong support from LAC and Regional Commander. [48] All that can reasonably be concluded from these examples is that not all police officers that have committed assault have been removed from the Police. That is, there has not been any hard and fast rule that if an officer commits assault he or she will automatically be removed. Rather, it would appear the relevant Police Commissioner at the time has been prepared to consider the individual circumstances of the case and to exercise his discretion not to remove an officer if satisfied there were, for want of a better term, extenuating circumstances. This is as it should be. 103 This similar fact type approach coupled with an outcomes analysis was pressed before me in an earlier decision concerning an assault type complaint in Dangerfield v Commissioner of Police (2003) NSWIRComm 96. In relation to that issue in those proceedings, I said as follows: [85] Counsel for the applicant further submitted that Mr Dangerfield's dismissal by the Commissioner was harsh, unreasonable or unjust when compared with the treatment of other officers within the Police Service who had been convicted of assault but who had not been dismissed. [86] To lay the groundwork for this submission, the applicant's solicitor served a Summons for Production in respect of certain documents on the Commissioner of Police in December 2002. Of the documents sought for production, one group was identified as: All files, documents, reports, submissions, including but not limited to the 181D file held by the NSW Police Service, which relates to a 181D Notice served on the following members of the NSW Police Service: Michael Duxbury; former Senior Constable Peter Watson; and Senior Constable Peter Schonberg. The said 181D Notices served on the above named officers in relation to an allegation that on 5 December 1997 they assaulted a man by the name of Rodney Carter at the Broken Hill Police Station. [87] In response to that Summons for Production, some three lever arch files of material was produced. From those three lever arch files, the solicitors for Mr Dangerfield extracted a number of documents they considered relevant that formed the basis of exhibit 5 before me. Those documents revealed, and it is not in dispute, that in 1997 the three above named persons, then police officers in the NSW Police Service stationed at Broken Hill, were involved in the arrest of Mr Rodney Carter in relation to a drink driving offence. Mr Carter resisted the arrest and police at the scene called for assistance. Mr Carter was later conveyed to the Broken Hill Police Station in a caged truck and on route from the van dock to the Charge Room, Mr Carter was assaulted by the three police officers above-named. [88] Following a complaint and the inquiry that followed, Senior Constable Schonberg pleaded guilty to a charge of assault and was dealt with at the Broken Hill Local Court in June 1998. He was convicted, fined $1000 and placed on a three year bond. Senior Constable Duxbury and Watson both pleaded not guilty. These matters were subsequently heard in the Local Court in October 1998. Both were found guilty, convicted, fined and placed on three year bonds. Senior Constable Watson subsequently appealed his conviction and sentence to the District Court of NSW, and his conviction and sentence were subsequently quashed. [89] Having regard to the above events, and the outcome in relation to the three officers named, steps were taken pursuant to the Police Service Act to consider their conduct under the Commissioner's Confidence provisions, and specifically s 181D of the Act. Subsequently all three officers were issued with a Performance Warning Notice pursuant to such a review. [90] In a nutshell, counsel for Mr Dangerfield submitted that, on any view, the circumstances giving rise to the Broken Hill incident involving the three police officers, was worse on any comparative basis than the incident involving Mr Dangerfield. Further, that when compared with the Performance Warning Notices issued to those three officers and their ability to remain within the NSW Police Service, Mr Dangerfield's removal from the Service for similar type conduct was harsh, unreasonable or unjust in all the circumstances. [91] Such an approach is, I believe, ultimately superficial and too simplistic. What has to be done if such a proper comparison in outcomes can be made is the necessity to look at the facts and circumstances of each case. While at first glance the background facts may be of the same general tenor, the precise details as well as the prevailing circumstances of the incident and the personal circumstances of the three police officers was not before me in any detail. While on one view it could be said that the three police officers involved in the Broken Hill matter got off lightly, and without knowing anything further as to the particulars of matter, members of the community do not expect to be assaulted while in police custody. ... 104 Having regard to the similar type submission that has now been placed before me in these proceedings, I concur with the view expressed by Boland J in Evans above as to the conclusion to be drawn from such a comparative analysis. I also reaffirm the view expressed by me in Dangerfield that such comparative outcomes analysis are not, in the final analysis, of any assistance to the role of the Commission in undertaking the review process that it does pursuant to s 181F of the Act. It is very much a matter of considering each case in the light of its own particular facts and circumstances having regard to the decision taken by the Commissioner to remove the officer from the NSW Police. That is as it should be. Any approach that suggests 'one size fits all' in terms of outcome could result in the real unfairness that counsel for the applicant asserts now applies here. It is clear that the Commissioner has a discretion. In exercising that discretion, he must do so fairly, reasonably and not harshly, as those principles are understood. Any consideration as to how that test should be applied requires that each employee should be assessed having regard to the particular facts and circumstances applying to him or her. 105 In support of his contention as to the need for some consistency of outcome in the type of matter under consideration here, counsel for Mr Formston referred to the Royal Commission into the New South Wales Police Service: Final Report: Volume 2: Reform handed down by Commissioner the Honourable Justice J R T Wood in May 1997. In that Report and more specifically in Chapter 4 dealing with the Complaints and Discipline System, Commissioner Wood, as he then was, stated as follows: [4.56] The recording of information concerning the management of complaints and the retention of those records is of importance because: · ·it is appropriate for proper staff management and promotion and transfer decisions, that as much information in relation to the performance of individual members (both that which is commended and that which is subject to adverse action) is retained by the Service as is possible, commensurate with fairness and its accuracy; · such a record helps encourage consistency in decision-making; · an overall recording system is needed so that trends and potential problem areas can be recognised, statistics compiled, and the system monitored; and · in the case of a subsequent complaint, it is necessary for information to be available as to any prior managerial action. [4.57] Such a system would provide for: · the holding of the information in a confidential file containing full personal details, including matters dealt with managerially, commendations, integrity declarations, and (subject to separate security) financial statements; · restriction of access other than as reasonably required by the PIC, Internal Affairs or Local Commander, for their purposes, or otherwise as might reasonably be required in connection with a promotion application, but subject to the Commissioner's authority for release of any financial statements; · retention of the full file, without culling, although it would be expected that suitable discretion and common sense applied to ignore stale matters followed by a period of satisfactory service; and · production to the member for inspection on request, except to the extent that it involves details of a current investigation or complaint not yet disclosed to that member. He or she should have the right to have noted on the file matters which are disputed. 106 Ultimately, the recommendation made by the Commissioner in his Report concerning 4.56 and 4.57 above was as follows: · Information about complaints, allegations of misconduct and the way in which they are managed be comprehensively recorded. 107 Let it be said now, to the extent that I am able to understand from the nature of the material produced, there seems to be a very comprehensive database kept by the Commissioner as to the way in which complaints against serving police officers are recorded, investigated and ultimately concluded. I can see nothing that could raise any criticism of that database as not responding to the recommendation made by Commissioner Wood above to the extent that I am now aware of it. Having said that, I acknowledge that the keeping of such a database, apart from any other considerations, would be helpful in ensuring and encouraging consistency in decision making. 108 The extent of the database information to which I was referred and which was admitted before me cannot, by itself, necessarily point to an absence of consistency in decision making. If that was to be the case, on a relatively superficial perusal of the database information, one would expect to find that all police officers involved in assault type incidents in an off-duty capacity with alcohol involved would all be removed from the NSW Police or all be retained. That is simply not the case, as the partial databases which I have been given, is evidence. Beyond that, it is simply not possible to come to any concluded view that the Commissioner does not pay due account to the facts and circumstances of each incident as well as the personal and professional circumstances relating to each officer in arriving at his decision to remove or otherwise. What is important in the review process being undertaken relevant to Mr Formston is to focus on the nub of the review under s 181F and the facts and circumstances pertinent to those considerations. 109 The other matter going to the alleged unfair procedure relied upon by the applicant is grounded in the contents of the NSW Police Code of Conduct and Ethics as currently applying and more particularly as promulgated in February of 2002. That Code contains, amongst other matters, the following:

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Any private activity which adversely affects your job performance will be regarded as a work-related issue. 110 There is little doubt, having regard to the Code in general and, more particularly, the above-mentioned extract relevant to Private Conduct, that what Mr Formston did on 16 December 2004 was done in an off-duty and therefore private capacity. Nevertheless, it certainly contravened the Code in that it was not lawful behaviour, it was not behaviour that would be seen to be acting in accordance with the spirit and the letter of the law and it was private activity which adversely affected his job performance and was therefore a work related issue. 111 In relation to the Code and its reference to criminal convictions, it is abundantly clear that any criminal charge that is brought against a police officer 'may result' in the officer's removal from the NSW Police. Offences detailed include assault. The substance of the contention in relation to this aspect of the Code is that it was asserted that the Commissioner had, as it were, adopted a view that all alcohol related assault type incidents involving off-duty police officers warranted automatic removal from the NSW Police. I have to say that, to the best of my knowledge, such a contention was not relied upon by the Commissioner. Rather, in the exercise of his discretion, the Commissioner determined that Mr Formston's conduct warranted his removal from the NSW Police. That was a decision that he was entitled to make. Further, there is nothing, in my view, in the Commissioner's consideration of the matters pertaining to Mr Formston that does anything other than reaffirm what the Code says. That is, if a police officer is charged with a criminal matter, there will be a mandatory nomination under s 181 and this 'may' result in the officer's removal from the NSW Police. Indeed, the comparative outcomes analysis benchmarking and other material placed before me in this matter only confirms that the Commissioner's discretion to remove a police officer rather than automatically doing so, in all the circumstances, continues to apply. 112 Finally, in relation to the CCTV footage that was produced before me. As I have earlier indicated, that particular CCTV footage was not viewed by the Commissioner and it was certainly not provided to Mr Formston as part of the material that the Commissioner relied upon in coming to the decision that he did to remove Mr Formston. 113 Whether the viewing of that material may have altered the Commissioner's ultimate decision to remove Mr Formston is debatable, in my view. As I have already detailed, it throws considerable light on events between Mr Hwang and Mr Formston in relation to the first of the two alleged assaults. Also, when the CCTV footage was called for, produced and viewed by the Court, it was open for counsel for the Commissioner to further cross-examine Mr Formston as to that footage. Mr Formston was made available for that purpose and counsel for the Commissioner did not seek to do so. 114 It is apparent, notwithstanding that the CCTV footage is of assistance in clarifying a number of events between Mr Hwang and Mr Formston, it does not address the 'primary concern' identified by the Commissioner as to the reason for his decision to remove Mr Formston. That is, as I read the Commissioner's Statement of Reasons, the Commissioner formed the view that when he was initially confronted with the allegations made by Mr Hwang in January 2005, Mr Formston was not truthful about it and attempted to transfer blame to Mr Hwang. Further, when Mr Formston was confronted with certain statements of witnesses that made it inevitable that an assault had occurred, he pleaded guilty but only in a very confined way. In short, it would seem apparent that the Commissioner saw Mr Formston's initial explanation for the events that occurred as that of a police officer who failed to honestly and openly acknowledge his wrong doing and attempted to blame the victim. That much was acknowledged by counsel for the Commissioner who submitted that: ... the Commissioner ... is well justified in this case particularly because of what he considered to be Mr Formston's lack of candour and lack of truthfulness in what really went on that night in deciding he didn't have confidence in him. ... 115 The importance of matters such as that cannot be overstated. They go to the very heart of what is important for an officer in the NSW Police. That is that police officers can be relied upon to act honestly and with integrity in the conduct of their duties and that that honesty and integrity carries over into the way in which they conduct their private lives. The Commissioner, it would seem, clearly felt that Mr Formston lacked those characteristics in that he was not honest and forthright in his recollection of events when questioned in January 2005, let alone the stand alone nature of Mr Formston's conduct on the night in question. 116 Having given this matter very careful consideration and observed Mr Formston in giving his evidence, I have to say that the conclusion that the Commissioner came to as to Mr Formston's candour and truthfulness, or lack thereof, is I believe, in all the circumstances, unreasonable. In the giving of his evidence before me, including his demeanour, I did not form the conclusion that Mr Formston's credibility on this issue was compromised as counsel for the Commissioner asserted. I come to that view for a number of reasons. 117 In the first instance, the personal and professional testimonial material before me relevant to Mr Formston was of a very high standard. It was not in any way challenged on behalf of the Commissioner. The substance and weight of that material is of considerable merit. It goes directly to what is, in my view, the heart of the Commissioner's reasons for removing Mr Formston. That is that Mr Formston was not open and honest in his initial interview as to his actions on the night in question. The testimonial material comments positively on those aspects of Mr Formston's character and should not be lightly discounted in coming to an overall assessment of Mr Formston's ability to operate with integrity and honesty as a police officer. Also, that a person's behaviour is 'out of character' is, it seems to me, an assessment that a person's unacceptable behaviour on one occasion has to be judged against that person's otherwise good behaviour rather than suggesting that the person has a propensity to conduct himself or herself in that particular way more often than not. 118 Next, the extent of Mr Formston's intoxication on the night in question does not excuse his behaviour but does go some way, in my view, to explaining some aspects of his recollection. There seems little doubt that Mr Formston was very intoxicated on 16 December 2004 when the events occurred between he and Mr Hwang. Mr Hwang described him in evidence before me as being 'blindly drunk'. As Inspector Campbell noted in her statement, at the time she spoke to Mr Formston when she arrived on the scene, she observed as follows: At the time there was a strong smell of intoxicating liquor on his breath, his eyes were watery, his speech was slow and he appeared to be concentrating on what he was trying to say. I formed the opinion that he was moderately to well affected by intoxicating liquor. 119 In my view, that is an assessment that can and should be accepted. Of any group in the community that is well versed in assessing levels of intoxication, police officers are admirably equipped to do so. That is because they see so much of it in their operational activities. The extent to which Mr Formston's intoxication genuinely blurred his ability to fully recall all of the events that occurred between he and Mr Hwang cannot be overlooked in any assessment as to whether or not he was being open and honest in his statement given on 6 January 2005. 120 If it is to be said that Mr Formston had a clear recollection of all that he said and did on the night in question, then there can be no doubt that he has sought to deny his culpability for his actions and attempted to divert the blame to Mr Hwang. I think that is too strong a conclusion to come to based on the material that I have now considered. I believe the more accurate judgment is that Mr Formston was genuinely and significantly affected by alcohol on that night and that his ability to properly recall all that he said and did on that night was impaired. In other words, I am not persuaded that Mr Formston has sought to deliberately mislead or be untruthful in his statements in relation to this matter. 121 In some respects, albeit limited, there is some evidentiary support that Mr Formston may well have formed the view in his drunken state that Mr Hwang was hassling him and was, as it were, 'in his face'. I say that because even on Mr Hwang's own admission, he did challenge Mr Formston outside the Orchard Tavern with words to the effect of 'come on, have a go in front of witnesses'. In no way excusing Mr Formston, it is entirely plausible in my view, that such behaviour of Mr Hwang's may well have produced the result that it did in the drunken perceptions of Mr Formston that he was in some way being hassled and provoked by Mr Hwang. Those actions of Mr Hwang's may well have precipitated the assault by Mr Formston on him outside the Orchard Tavern as recounted by Mr Formston when he was first interviewed. 122 Further, I believe that when Mr Formston was confronted with the evidence that he was from the witness statements of Mr Ridgewell, Mr Chung and Mr Sofjan, he properly acknowledged that he had in fact assaulted Mr Hwang and pleaded guilty accordingly. I do not see that behaviour as amounting to anything other than a proper acknowledgement by Mr Formston of what he had done. As Mr Formston said in his statement: [26] I told my version of events as open and honestly as I was able to, given that I had been arrested in my workplace, in front of my colleagues and was under extreme stress as a result. I had not seen or read any part of the brief of evidence. I had sought advice from the Police Association and from the solicitor whom they appointed, Mr Eric Oates, which was to be honest and open and to tell the truth. I believed, naively and I now accept incorrectly, that I had been provoked. [27] Later, when I sat down with Mr Oates and discussed the details of my assault, he sent me away with the brief and instructed me to find every piece of evidence that would prove self-defence. When I next spoke to Mr Oates, after reading the brief of evidence, I had arrived at the realisation that I had no choice but to plead guilty to the charge of assault. Although there is mention of Mr Hwang being aggressive toward me by witnesses, I realised that I had acted in an improper manner and that I had to take responsibility for my actions.

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[28] The Commissioner goes on to refer to the allegation that I assaulted Mr Hwang on more than one occasion and that I assaulted him a total of four times. I believe that this is not a matter of fact. Why I hold this belief includes what I can recall of the incident using my best recollection. [29] In preparing this statement I have been asked to consider whether I might be mistaken in this belief because I admit that I only have a partial recollection and I was severely affected by alcohol. My response to this question is that I still believe I only assaulted Mr Hwang one time. 123 Further, to the extent that Mr Formston acknowledged one assault on Mr Hwang, as he then understood it, that was in accord with the witness statements of Mr Sofjan, Mr Chung and Mr Ridgewell. There was no other evidence available to Mr Formston at that time to suggest that any other assertions made by Mr Hwang had in fact occurred. Mr Formston has consistently said he has no recollection of the first two assaults alleged by Mr Hwang adjacent to the Seven Eleven store. I am not persuaded that Mr Formston is being untruthful when he said he has no recollection of those assaults alleged by Mr Hwang. If anything, the CCTV footage assists Mr Formston in some respects. That is, there is no evidence of Mr Hwang being 'slammed' or 'pushed' up against a wall in that footage. There is evidence, albeit unclear, of some contact between Mr Formston and Mr Hwang that, doing the best I can in studying the footage, I would describe more in the nature of shoving and/or pushing between the two. It is simply not possible to be more certain than that. 124 While the CCTV footage does confirm that contact, it appears minimal and not overtly aggressive. It is entirely possible, in my view, that while such contact did occur between Mr Formston and Mr Hwang, that it was not of such moment as to register with Mr Formston in his intoxicated state. It is a possibility that cannot be discounted. 125 As earlier stated, counsel for Mr Formston made him available for further cross-examination when the CCTV footage was produced and viewed. That offer was declined. 126 It was put by counsel for the Commissioner that Mr Formston's version of events as put in his statement and as adhered to by him under cross-examination was not the truth. As he said, '... the Commissioner got it right in accepting Mr Hwang'. On the evidence before me, I do not accept such a submission can be accepted without question. 127 I have already detailed my consideration as to what I believe occurred between Mr Hwang and Mr Formston. I also do not accept, for the reasons already stated, that the Commissioner acted reasonably in coming to the view that he did as to Mr Formston's veracity in relation to his recollection of the events of 16 December 2004. 128 I also seen no material significance going to Mr Formston's credibility arising from his statement of January 2005 and adhered to before me when compared with the agreed facts placed before the Local Court when Mr Formston pleaded guilty to assaulting Mr Hwang. What Mr Formston said in January 2005 and what he reaffirmed before me was, if accepted, his genuine recollection of events between he and Mr Hwang. For the reasons I have already stated, I am not persuaded that Mr Formston was being untruthful in asserting the extent of his recollection to the best of his ability. 129 Likewise, the statement of agreed facts contains those agreed facts which the Court was able to accept to ground the assault charge and which was objectively supported by the evidence available. That does not alter Mr Formston's own independent recollection nor does it establish, without more, that Mr Formston was being untruthful when he reaffirmed his 'partial recollection' as he had initially detailed. The entry of the guilty plea and the accompanying agreed facts are reflective, no more no less, of Mr Formston's proper acknowledgement of the evidence then available. To assert that those agreed facts, when compared with Mr Formston's earlier statement directed to his recollection of events and subsequently affirmed is evidence of deliberate dishonesty on Mr Formston's behalf is, in the light of all that is before me, simply unsustainable. 130 It is understandable that prima facie one would be inclined to prefer the statement of Mr Hwang to that of Mr Formston concerning the issues in dispute. Nevertheless, it has to be said that the evidence of Mr Hwang and his own demeanour in the witness box certainly persuaded me that there was, in some instances, a degree of overstatement by Mr Hwang as to what did occur notwithstanding the passage of time as well as assertions by him in the face of evidence to the contrary. There was more than a hint in Mr Hwang's evidence that his anger on the night in question about the behaviour of Mr Formston and Constable Corrigan was such as to make him very angry in return. Such a reaction is entirely understandable. Nonetheless, it does not, in my view, mean that all of the evidence of Mr Hwang should be accepted without question. 131 Putting aside for the moment the primary concern of the Commissioner as to Mr Formston's perceived lack of candour and truthfulness about the events between he and Mr Hwang and the conclusions I have come to, there is still the stand alone issue of Mr Formston's conduct on that evening. That is, while off-duty and intoxicated, he abused his authority as a police officer and assaulted a member of the public. Those actions in themselves call for the strongest condemnation and legitimately give rise to considerations such as whether Mr Formston should be removed. 132 While those considerations are entirely justified, they must produce an outcome that is not, in all the circumstances, harsh, unreasonable or unjust. As is well known, those concepts will often overlap. See Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465 where McHugh and Gummow JJ said: … the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 133 For the reasons already detailed, I believe the Commissioner's adverse conclusion as to Mr Formston's truthfulness and candour concerning his recollection of the events on 16 December 2004 as being the primary reason for removing him was unreasonable in all the circumstances. I am also of the view that, taking into account the facts and circumstances of the events that occurred between Mr Formston and Mr Hwang as well as matters relevant to Mr Formston's interests, the decision to remove Mr Formston was too harsh. 134 There is no evidence to suggest Mr Formston has an entrenched problem related to alcohol. The evidence points to his intoxication on the night as being more in the nature of a one-off binge drinking event arising from the end of year Christmas party. Further, the nature and extent of the assaults by Mr Formston can, I believe, properly be described as minor rather than overtly aggressive as is often the case where alcohol is an underlying factor in explaining, not excusing, an offender's behaviour. 135 Finally, there is no evidence to suggest Mr Formston is a person or a police officer who has a propensity to respond aggressively in his day to day life, either in his private capacity or otherwise. All the evidence is to the contrary. As Superintendent Cruikshank stated: ... he is a very easy going, light hearted person who would rather talk than resort to aggression. 136 If the integrity and general good nature of his character attested to by many is to be accepted, as I believe it should, Mr Formston has learnt a lesson from this experience that he will carry for the rest of his life. 137 In weighing up the matters identified in s 181F(3)(a) and (b), I believe that, in all the circumstances and, having regard to the findings I have made, Mr Formston's interests outweigh public interest considerations. Let it be said now that I do not come to that decision lightly. I have done so only after very careful consideration of all the material to which I have referred. Mr Formston's behaviour on 16 December 2004 cannot be excused nor condoned. It is understandable that the Commissioner would view such matters seriously, particularly having regard to his role in overseeing a police service that should be seen by the public as discharging the considerable power and responsibility it has with integrity such as to warrant community respect and support. 138 I am however satisfied, notwithstanding the blemish that his conduct of 16 December 2004 clearly was, Mr Formston can return to the NSW Police as a serving officer and one in whom the Commissioner should have confidence in his abilities to discharge the duties of his office with competence, efficiency and integrity. Accordingly, I am of the view that Mr Formston should be returned to his position at the same rank as at the time of his removal with no back pay. I order accordingly.

At a glance

Court

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Before

Source

Judgment (65 paragraphs)

Parties

Cases Cited (6)

Cited By (12)