Toshack v Commissioner of Police

Industrial Relations Commission (NSW)|2009-03-03|Before: Boland J, Walton J, Staff J, Ms J, Marks J

CITATION: Toshack v Commissioner of Police [2009] NSWIRComm 31

APPELLANT: Ricci Allan Dallas Toshack PARTIES: RESPONDENT: Commissioner of Police

CORAM: Boland J President; Walton J Vice-President; Staff J

LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990

Alexander v Commissioner of Police [2009] NSWIRComm 3 Austin v NF Importers [2005] NSWIRComm 136; (2005) 146 IR 113 Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner of Police and Raymond Sewell [2008] NSWIRComm 147 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 CASES CITED: Greg Anderson and Karen Lansdell [2008] NSWIRComm 179 Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 Raymond Sewell v New South Wales Police Force. Application by Raymond Sewell for review of an order under s 181E of the Police Act 1990 [2008] NSWIRComm 93 Toshack and Commissioner of Police [2008] NSWIRComm 150

APPELLANT: Mr A Metcalfe of counsel with Mr M Treharne, solicitor Walter Madden Jenkins, Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr M Kimber SC with Ms J Oakley of counsel Henry Davis York, Lawyers (Mr S Joseph)

11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BOLAND J, President WALTON J, Vice-President STAFF J

RICCI ALLAN DALLAS TOSHACK v COMMISSIONER OF POLICE

Application by Ricci Allan Dallas Toshack for leave to appeal and to appeal against a decision of Justice Marks given on 24 September 2008 in Matter No IRC 2235 of 2007

1 Ricci Allan Dallas Toshack was a senior constable with the New South Wales Police Force. Mr Toshack was removed from the Police Force by the Commissioner of Police on 27 November 2007 by an order made under s 181D of the Police Act 1990. The Commissioner had lost confidence in Mr Toshack for reasons relating to his conduct and lack of integrity. 2 Mr Toshack sought a review under s 181E of the Police Act of the Commissioner's order. In Toshack and Commissioner of Police [2008] NSWIRComm 150, a decision given on 24 September 2008, Marks J was not persuaded that the removal of the appellant from the Police Force was harsh, unreasonable or unjust. The application was dismissed. Mr Toshack has sought leave to appeal his Honour's decision and, if leave is granted, to appeal. 3 Except for two matters referred to at [9] and [10] of the trial judge's decision, the factual basis for the appellant's removal was not disputed (see [11] of the decision at first instance where his Honour quoted from the appellant's written submissions). 4 The appellant was removed from the Police Force following certain events that occurred in 2006. The appellant deliberately lied to the Police Prosecutor about the reasons why a complainant was unable to attend court on a particular day. It was further alleged the appellant failed to provide a victim statement by the complainant for use in court proceedings after repeated requests to do so and failed to provide adequate support to the complainant, failed to keep the complainant updated throughout the investigation and failed to consult him before seeking to withdraw his AVO application. Marks J summarised the factual background and the reasons relied upon by the Commissioner to remove the appellant at [4]-[7] of the first instance decision: [4] These grounds are said in the Statement of Reasons to refer to the applicant's conduct and integrity. The grounds arise out of proceedings in the Bathurst Local Court in which the applicant was the informant and which followed the arrest of the defendant by police officers. At the time the applicant was stationed at Oberon police station. The arrest had occurred on 30 May 2006 and the matter was set down for hearing in Bathurst Local Court on 14 September 2006. On 22 June 2006, the applicant was advised that a brief of evidence against the defendant was to be served on the defendant's solicitor by 17 July 2006. The applicant put together a brief of the evidence but was advised on 11 July 2006 that a statement taken by the applicant from a Mr Duggan, who had been allegedly assaulted and whose property had been damaged by the defendant, was missing. The police prosecutor, Sergeant Brett Donaghy, contacted the applicant on 31 July 2006 and again on 14 August 2006 enquiring whether the missing statement of Mr Duggan had been served. On 13 September 2006, Sergeant Donaghy again made contact with the applicant because he had been informed by the defendant's solicitor that the statement of Mr Duggan had not been served. At that stage, the applicant advised Sergeant Donaghy that the statement had been forwarded by facsimile to the Bathurst Court Process Unit "weeks ago". The applicant said that he was unable to provide proof of the facsimile transmission. On 5 September 2006, the applicant caused a subpoena to give evidence to be issued to Mr Duggan to attend Bathurst Local Court on 19 September 2006, being a date that was incorrect. On the morning of the hearing the applicant realised that Mr Duggan had been served with a subpoena showing the incorrect hearing date. The applicant did not disclose this to Sergeant Donaghy prior to the commencement of the hearing but told him that Mr Duggan was unable to attend Court to give evidence because he had to stay at home to care for his sick children. This was a lie. Sergeant Donaghy applied to the presiding magistrate for an adjournment admitting that due to an administrative error, the statement of Mr Duggan had not been served and informing the magistrate of a reason for Mr Duggan's absence from Court which the applicant knew to be false. The application for an adjournment was refused and Sergeant Donaghy was unable to offer any evidence. The assault and malicious damage charges were dismissed. [5] There was also before the Court an AVO application brought by Mr Duggan against the defendant in the proceedings. The Statement of Reasons alleges that the applicant "did not consult with Mr Duggan before instructing Sergeant Donaghy to withdraw Mr Duggan's AVO application…. and as such the AVO application was withdrawn." [6] The Statement of Reasons continues in part: "On 23 November 2006, you were interviewed under direction. You admitted that you had received memos from Sergeant Donaghy regarding the whereabouts of Mr Duggan's victim statement, however you maintained you sent the victim statement to the Brief Handling Manager by facsimile. You were unable to access the transmission records to prove that the statement had been sent. In your interview you admitted that you lied to Sergeant Donaghy in court, when you told him that Mr Duggan would not be attending to give evidence because his children were sick, and he had to stay home to care for them. You said you told Sergeant Donaghy something that was not true because you realised that you had made an error with the date on the subpoena. You wanted the matter adjourned so that Mr Duggan would have the opportunity to attend court. You also admitted that you did not consult with Mr Duggan before instructing Sergeant Donaghy to withdraw the AVO. Your conduct in this matter has brought discredit to the New South Wales Police Force and you have breached the New South Wales Police Code of Conduct and Ethics - 'Statement of Values' and 'Guide to Ethical Decision Making' when you failed to provide the victim statement after repeated requests to do so, and when you deliberately lied to Sergeant Donaghy regarding the absence of Mr Duggan in court on 14 September 2006." "You have also breached the Code of Conduct and Ethics - 'Customer Rights' and section 6.1, 6.4 and 6.5 of the Charter of Victims' Rights (as set down in the NSW Victims' Rights Act 1996), when you failed to provide adequate support to Mr Duggan, keep him updated throughout the investigation and consult him before seeking to withdraw his AVO application." [7] The Statement of Reasons then refers to some material within the applicant's written response and I set out in part that reference. "On 22 October 2007 I received a written response to the ground set out in my Notice to you, which was provided by way of your legal representative. I have read and carefully considered your written response. I have taken into account the issues you have raised, and I acknowledge that around the time of the incident you state that you were experiencing stress due to various circumstances that may have impacted on your decision making process. While the reasons of mitigation that you have raised in your written response may in part explain, and have contributed to your 'absent mindedness' at the time, I am unable to balance the reasons of mitigation against your untruthfulness to an officer of the court; you had an opportunity to be honest with the prosecutor but you chose not to. Consequently your actions, and inactions, had serious repercussions for the victim in this matter, Mr Duggan, who without doubt deserved 'his day in court'." 5 Marks J noted that in large measure the appellant admitted the allegations of misconduct and the breach of integrity brought by the Commissioner. Two matters that the Commissioner had relied upon in his statement of reasons for removing the appellant, but which his Honour found were not made out on the evidence, were addressed by his Honour at [9]-[10] of his decision: [9] … The first is an assertion that the applicant did not consult with Mr Duggan before instructing Sergeant Donaghy to withdraw Mr Duggan's AVO application. An affidavit of Sergeant Donaghy, which became an exhibit in the proceedings, demonstrates that this assertion is incorrect. The applicant was asked to make contact with Mr Duggan to see whether he would agree to withdraw the AVO. The applicant told Sergeant Donaghy that he was unable to contact Mr Duggan but had left messages on his mobile. Sergeant Donaghy asked the applicant whether he thought that Mr Duggan would object to the AVO application being withdrawn on the basis of the defendant giving written undertakings to the Court in the same terms as the AVO application. The applicant responded that he did not think that Mr Duggan would object to the undertakings being given. Based on this evidence, it could not be said, in my opinion, that the applicant had instructed Sergeant Donaghy to withdraw the AVO application. Rather, he had expressed an opinion as to whether Mr Duggan would agree to that course. [10] The next area of disagreement is an assertion that as a result of the dismissal of the charges against the defendant, Mr Duggan was unable to claim compensation for damage caused to his property. Again, there would appear on basic principles to be no basis for this assertion. The dismissal of the criminal proceedings after the prosecutor offered no evidence would not appear on a prima facie basis to raise any barrier to civil proceedings being commenced by Mr Duggan against the defendant. 6 In his consideration of the matter the trial judge: (a) noted that the "significant matter" contained within the Commissioner's Statement Of Reasons was the fact that the appellant lied to Sergeant Donaghy concerning the inability of Mr Duggan to give evidence. This misconduct occurred and it was serious. The trial judge also noted the Commissioner relied on the failure of the appellant to complete the police brief in a timely manner, especially by failing to include the statement of Mr Duggan within it. This was a matter of significance, albeit of a less serious quality than the untruthful statement made to the Police Prosecutor ([46]); (b) stated that integrity and honesty are integral characteristics that must be displayed by members of the New South Wales Police Force at all times ([49]); (c) was impressed by the substantial evidence given on behalf of the appellant by fellow police officers including senior members. If it were not for some matters that were raised by the Commissioner in answer to the appellant's case, the trial judge would have been persuaded that, in all the circumstances, the appellant's removal was harsh for the reasons advanced in the submissions made on his behalf ([51]); (d) had a concern that at least in two other instances, the appellant conducted himself in a manner which was inconsistent with the integrity and honesty which one would expect of a person who submitted that his acknowledged misconduct represented a single instance and, by implication, was out of character and motivated by personal and professional stress ([52]); (e) identified the first instance as being related to a letter authored by the appellant and dated 13 May 2006. At some time prior to April 2006 the appellant's supervisor, Senior Constable Thompson, had expressed concern about the management of certain cases being conducted by the appellant. After raising the matter with Detective Inspector Stinson, the Crime Manager for the Chifley Local Area Command, Senior Constable Thompson forwarded a memorandum to the appellant requiring an explanation for the delay in dealing with a particular investigation. The appellant responded on 13 May 2006. The appellant stated in his reply "… during the months of January, February and March 2006, I was absent on leave following the birth of my son …" The appellant did take some limited leave during the months of January and February 2006 and none during March 2006 ([53]); (f) considered that in the context of the appellant's letter of 13 May 2006, the manner in which the sentence was framed was intended to convey that the appellant was substantially, if not totally, off work during those months on leave. "It was intended to convey the impression that for a period extending over three months the applicant was unable to attend to the investigations because he was absent on leave." The trial judge considered that "the representation contained in the letter was incorrect and represented a distortion of the true situation. It reflects adversely on the integrity of the [appellant]" ([54]); (g) identified the second instance as involving the appellant being evasive and ready to rationalise his evidence in order to enhance his situation for the purpose of the proceedings: "He was not prepared to readily acknowledge matters that were plain to see, and he prevaricated in a manner that attempted to avoid dealing with particular questions directed to particular matters. Again, I conclude that the [appellant's] evidence in these proceedings was inconsistent with the maintenance of a high level of integrity expected of a police officer whilst giving sworn evidence before a Tribunal" ([55]); (h) acknowledged the adverse impact that the appellant's removal from the police force has had on the appellant and his family: "He has suffered some financial loss. He has expressed a keen desire to be reinstated to the police force and has acknowledged his misconduct and expressed contrition and remorse. However, these matters need to be balanced against the public interest" ([56]); (i) held that the conduct of the appellant in connection with the proceedings before the Local Court brought discredit upon the New South Wales Police Force, especially in terms of the impact that it had on the Local Court proceedings ([56]); (j) in balancing the interests of the appellant with the public interest, took into account the fact that any employee who is dismissed or removed from employment in circumstances which are harsh, unreasonable or unjust will suffer adverse consequences both of a personal and financial nature. Whilst these matters must be taken into account, and his Honour did so, they had to be carefully balanced against the public interest ([57]); and (k) was not persuaded that the removal of the appellant from the New South Wales Police Force was harsh, unreasonable or unjust. The application was dismissed ([58]). GROUNDS OF APPEAL

His Honour erred in finding that the removal of the Appellant from NSW Police was not harsh;

In finding that the removal of the Appellant from NSW Police was not harsh His Honour made errors of law and made findings of fact that were either wrong and/or not reasonably open on the evidence.

His Honour erred in not ordering the reinstatement of the Appellant given his finding that, but for the two matters said to be against the Appellant's case at first instance that his admitted misconduct was an aberration, His Honour would have found that the Removal was harsh.

Particulars Re: The Appellant's letter dated 13 May 2006 (i) His Honour erred in concluding that the letter was inaccurate in a material sense; (ii) His Honour erred in concluding that even if it were inaccurate, the letter was misleading; (iii) His Honour erred in concluding that the letter was intentionally inaccurate and misleading; (iv) His Honour erred in considering whether the letter was inaccurate, misleading and reflected adversely on the Appellant's honesty and integrity in circumstances where the Respondent did not produce any witness to attest that the letter was inconsistent with the Appellant's entire leave record and his duty roster in relation to the relevant period in circumstances where such material was within the knowledge of NSW Police; (v) His Honour erred in finding that the letter reflected adversely on the Appellant's honesty and integrity in the absence of a sustainable finding (applying the Briginshaw test) that the Appellant intended to mislead or deceive; (vi) His Honour erred in finding that the letter reflected adversely on the Appellant's honesty and integrity in circumstances where the existence of the letter was within the knowledge of NSW Police at the time of the Appellant's removal but it did not form part of the Respondent's reasons for removal; (vii) His Honour erred in finding that the letter reflected adversely on the Appellant's honesty and integrity in circumstances where the recipients of the letter had or ought to have had knowledge of the accuracy of the letter and condoned its content; Re: The Appellant's evidence before the Commission at First Instance (viii) His Honour erred in finding that the Appellant's evidence before the Commission at first instance, reflected adversely upon his honesty and integrity in the absence of either a finding that he had deliberately lied or sought to deceive the Commission; and (ix) His Honour erred in concluded that the Appellant's "evidence in these proceedings was inconsistent with the maintenance of a high level of integrity expected of a police officer whilst giving sworn evidence before a Tribunal" on the basis that he "was evasive and ready to rationalise his evidence in order to enhance his situation for the purpose of the proceedings" .

8 In a notice of motion filed on 24 February 2009, the appellant sought to have the Full Bench receive further evidence pursuant to s 191(2) of the Industrial Relations Act 1996. The further evidence was an affidavit of Mathew Treharne, solicitor. Attached to the affidavit was information concerning leave taken by the appellant in the period 1 January 2006 to 30 April 2006. The information purported to show that the appellant had taken considerably more leave than what the trial judge understood to be the case. 9 The significance of the further evidence, according to the appellant, was that if the trial judge had the information before him he would not have concluded that the representation in the appellant's letter of 13 May 2006 ("…during the months of January, February and March 2006, I was absent on leave following the birth of my son…") "was incorrect and represented a distortion of the true situation. It reflects adversely on the integrity of the [appellant]". 10 The Full Bench refused leave to have the evidence received. In addition to reservations about whether the appellant had exercised due diligence in obtaining the evidence in a timely manner so that it could have been used in the trial, the evidence would not have caused the Full Bench to arrive at a different conclusion about the significance of the letter in the context of the trial judge's findings. In other words, as it will be seen, we have taken the view that it was not appropriate for the trial judge to place the weight that he did on the letter in coming to the conclusion that the dismissal was not harsh.

11 The appellant is required to make out a case for leave to appeal to be granted: see s 181(1). The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: see s 181(2). 12 We had given serious consideration to treating this as a leave case and refusing leave. However, whilst we have concluded that there is ultimately no basis to interfere with the trial judge's finding that the dismissal was not harsh, there were errors committed by his Honour in arriving at that conclusion which are of such a nature that it is in the public interest to correct them. Indeed, we have determined to dismiss the appeal only upon the basis of the Notice of Contention relied upon by the respondent (although we have not accepted all such contentions). We, therefore, propose to grant leave.

Trial judge's reasoning 13 In considering the appeal in this matter, we note that at the commencement of his chain of reasoning the trial judge was of the opinion that the Commissioner was entitled to remove the appellant "in all the circumstances based on the Commissioner's lack of confidence in the applicant's integrity" ([49]). This seems to indicate that his Honour was satisfied that, from the Commissioner's perspective, the Commissioner was entitled to remove the appellant for the reasons that the appellant "failed to provide the victim statement after repeated requests to do so, and when you deliberately lied to Sergeant Donaghy regarding the absence of Mr Duggan in court on 14 September 2006." 14 However, we note what his Honour said at [43]: In forming an opinion as to the evidence given by the applicant that is adverse to his interests, I am not concerned with, and I am prepared to put aside, the circumstances in which the applicant failed to complete the prosecution brief in a timely manner. I am, however, concerned with what I regard is his failure to give his evidence in these proceedings in a forthright and appropriately unequivocal manner. His propensity to rationalise his evidence in the manner that I have described was said by counsel for the respondent to go to the applicant's integrity and to reflect adversely on his integrity. I agree with this submission. 15 His Honour then stated at [46]: The Commissioner also relied on the failure of the applicant to complete the police brief in a timely manner, especially by failing to include the statement of Mr Duggan within it. I agree that this is a matter of significance, albeit of a less serious quality than the untruthful statement made to the prosecutor. 16 It is not immediately apparent how the statement that his Honour was prepared to put aside the circumstances in which the appellant failed to complete the prosecution brief in a timely manner is reconcilable with the statement that this was a matter of significance, albeit of a less serious quality than the untruthful statement made to the prosecutor. It seems to us that in considering the appellant's conduct, the trial judge was of the view that the most significant matter relied upon by the Commissioner in his Statement of Reasons dismissing the appellant was "the fact that the applicant lied to Sergeant Donaghy concerning the inability of Mr Duggan to give evidence." The failure by the appellant to complete the police brief in a timely manner was a matter of significance but of a less serious quality than the lies. To that extent, the trial judge was prepared to put the police brief issue aside. That is to say, his Honour was prepared to discount the fact that the appellant failed to ensure the victim's statement was in the police brief in considering whether the dismissal was harsh. However, as it will be seen, his Honour was not prepared to put aside the appellant's failure to give his evidence in these proceedings in a forthright and appropriately unequivocal manner, including his evidence about the failure to complete the police brief in a timely manner. 17 That then left the telling of the lies as the central consideration and about which Marks J felt the Commissioner was entitled to remove the appellant. However, in his Honour's view this did not dispose of the matter because the task confronting him in reviewing the Commissioner's decision "extended beyond a mere consideration of the reasons for the decision of the Commissioner to remove the applicant from the police force." 18 Importantly, after indicating how impressed he was by the formidable body of evidence from fellow police officers given in support of the appellant, his Honour stated at [51]: If it were not for some matters which were raised by the Commissioner in answer to the applicant's case, I would have been persuaded that, in all the circumstances, the applicant's removal was harsh for the reasons advanced in the submissions made on his behalf. 19 In other words, the trial judge was of the view that had it not been for some matters (of which there were two) raised by the Commissioner in answer to the appellant's case (see s 181F(1)(c) of the Police Act, which required the trial judge to consider the case presented by the Commissioner in answer to the applicant's case), his Honour would have been persuaded that "in all of the circumstances" the appellant's removal would have been harsh for the reasons advanced in the submissions made on his behalf. 20 The reasons put forward by the appellant as to why his dismissal was harsh, and which his Honour would otherwise have accepted, were (at [50]): … (i) it involved a single instance of aberrant behaviour that occurred in police career spanning 7 years and that occurred in circumstances where the Applicant was suffering from considerable personal and professional stress;

Moreover, the removal is relevantly harsh because of the Applicant's prior good conduct and excellent post-event good conduct extended for over a year before the removal.

It is significant to have regard to the opinion of his superior and peers at the New England Local Area Command as to the Applicant's abilities as a police officer in that period, in particular when examining his integrity. 21 The inculpatory matters his Honour was referring to were the letter of 13 May 2006 where the appellant described the leave he had taken during January, February and March of that year and, secondly, the manner in which the appellant gave his evidence. In respect of that evidence, Marks J said the appellant (at [55]): [W]as evasive and ready to rationalise his evidence in order to enhance his situation for the purpose of the proceedings. He was not prepared to readily acknowledge matters that were plain to see, and he prevaricated in a manner that attempted to avoid dealing with particular questions directed to particular matters. 22 These two matters, his Honour said, led him to conclude "that the applicant's evidence in these proceedings was inconsistent with the maintenance of a high level of integrity expected of a police officer whilst giving sworn evidence before a Tribunal." 23 To be clear, then, on how we understand the trial judge's reasoning: Marks J considered that the appellant's conduct in lying to the Police Prosecutor was serious misconduct. Counsel for the appellant conceded on the appeal that it was "very serious misconduct". However, his Honour was prepared in all of the circumstances, which included the matters put forward by the appellant as to why his dismissal was harsh, to find that the appellant's removal was harsh. In a reversal of his Honour's initial view, what appears to have been the catalyst was the letter of 13 May 2006 and the manner in which the appellant gave his evidence in respect of both the victim's statement and the preparation and service of the subpoena on Mr Duggan. His Honour appears to have been of the view that these two factors tipped the balance against the appellant because of their adverse implications for his integrity, which had already been seriously compromised by the appellant's conduct in lying to the Police Prosecutor. 24 We do not understand his Honour, in finding the dismissal was not harsh, to have relied only on the letter and the appellant's evidence in the proceedings. Those two considerations cannot be divorced from his Honour's finding, and the appellant's concession, that lying to the Police Prosecutor was serious (the appellant accepted it was "very serious") misconduct. Appellant's attack on trial judge's reasoning

25 Not surprisingly, the appellant's attack on the trial judge's decision focused on the two matters that ultimately tipped the balance in leading his Honour to conclude the dismissal was not harsh, namely, the letter and the manner in which the appellant gave his evidence. As the appellant correctly observed, Marks J found that both the appellant's letter of 13 May 2006 and his evidence relating to the preparation of the brief of evidence reflected adversely on the appellant's honesty and integrity. It was submitted that no finding was made by his Honour that the appellant lied in his evidence; the positive findings his Honour made were limited to an apparent evasiveness and a propensity to rationalise his evidence in order to enhance his situation (see O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 208 per Kirby P). It was submitted that these findings could not sustain a conclusion that this evidence reflected adversely upon the appellant's honesty and integrity. 26 It was further submitted that the impugned words in the appellant's letter of 13 May 2006 ("...during the months of January, February and March 2006 I was absent on leave following the birth of my son ...") could only reflect adversely upon his honesty and integrity if it were not only inaccurate, but carried with it an intention to mislead or deceive its intended recipients. The appellant asserted that his Honour's conclusion that the appellant's letter of 13 May 2006 and his evidence before the Commission reflected adversely upon his honesty and integrity was largely drawn from inferences of that evidence. This was not sufficient, it was submitted, to sustain a finding that the dismissal was not harsh (see O'Reilly at 230 per Clarke JA; see also Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and 363 per Dixon J). 27 The appellant also submitted that in the absence of direct evidence that he lied or deliberately deceived the Commission in giving his evidence about the preparation of the brief, the inference that his evidence reflected adversely against his honesty and integrity was not open to his Honour. This, it was submitted, was a significant error of principle. 28 As to the claimed error of jurisdiction by the trial judge, the appellant submitted that the two matters held to be adverse to the appellant's honesty and integrity were said to be in answer to the appellant's case as to harshness. As these matters did not go to the appellant's integrity (for the reasons outlined above) and, therefore, were not in answer to the appellant's case that his admitted lie was "a single instance of aberrant behaviour", this involved a significant departure by his Honour from the approach upon review mandated by s 181F(1) of the Police Act. 29 Further, in relation to the appellant's letter of 13 May 2006, it was submitted Marks J erred in finding that the letter reflected adversely on the appellant's honesty and integrity in circumstances where the existence of the letter was within the knowledge of the Police Force at the time of the appellant's removal but it did not form part of the Commissioner's reasons for removal. Given this prior knowledge, it was contended that it was difficult to see how the content of the letter was "in answer to" the appellant's case (see s 181F(1)(c) of the Police Act). Overview of conclusions

30 As we have noted, the appellant directed his attack to the inculpatory factors relied upon by Marks J in dismissing the application at first instance. For reasons we will shortly give, we consider the appellant has made out those contentions and that his Honour was in error in relying upon those inculpatory factors in dismissing the first instance application. 31 However, the respondent contended in his written submissions that the conclusion reached by his Honour (that the removal was harsh but for the inculpatory factors) was itself in error because of two considerations, one of which concerned his Honour taking into account the positive views expressed by senior police officers as to the character of the appellant (in a manner favourable to the appellant's case). (Whilst nothing turns on it in this matter, that contention was required to be advanced by a Notice of Contention: see Weisser v Spur Group Pty Ltd [2003] NSWIRComm 79 at [51] and [52].) When combined with the concession made by counsel for the appellant that his Honour had also had regard to the conduct of the appellant in causing the Local Court to be misled (what Mr M Kimber, senior counsel for the respondent, described as the "third pillar" of his Honour's reasoning) in reaching his conclusion as to 'harshness' in the context of considering the inculpatory factors, the Notice of Contention constitutes a proper basis for sustaining his Honour's decision to dismiss the application on the basis that the dismissal was not harsh. In short, this conclusion entails the orders made at first instance being sustained upon reasons other than those relied upon by the trial judge. We will develop these considerations below.

32 It was contended by the respondent that when asked in May 2006 to explain in writing his failure to perform his investigation functions in an efficient and timely manner, the appellant deliberately sought to mislead his superiors by suggesting that he was absent from work on leave for three of the five months under review. This was a reference to what the appellant said in his letter of 13 May 2006, namely, "[a]lso during the months of January, February and March 2006, I was absent on leave following the birth of my son. There was no assisting Police attached to the matter and the case was not reallocated during my absence …" 33 In his decision, the trial judge dealt with the question of the letter. His Honour said at [30] and [54]: [30] In cross-examination, the applicant was asked about how much leave he had taken during the months of January, February and March 2006. It transpired that during these three months he had taken leave between 30 January and 8 February 2006, on 9 February 2006, between 13 February and 22 February 2006 and on 23 February 2006. He had not taken any leave during the month of March. It was said that the information conveyed by the applicant was incorrect, misleading and indicative of a lack of integrity on his part. Whilst it was submitted on behalf of the applicant that the information was partly correct, it is my impression that the words used by the applicant are more capable of indicating a substantial absence from work throughout the months of January, February and March 2006, contrary to the reality of the situation. I would conclude that based on this attempt by the applicant to explain the delay in concluding the particular investigation that he was prepared, on this occasion, to colour his response so as to present it in the best possible light, and in a manner that was misleading and incorrect.

[54] The purpose of the letter was to explain why the applicant had delayed carrying out certain police investigations. I agree with the Commissioner's submission that in the context of the letter, the manner in which the sentence is framed is intended to convey that the applicant was substantially, if not totally, off work during those months on leave. It was intended to convey the impression that for a period extending over three months the applicant was unable to attend to the investigations because he was absent on leave. To read this sentence in any other way would constitute a distortion of the plain English meaning which, in my opinion, the ordinary reader would attach to the words used by the applicant. The letter was written on 13 May 2006 so that the events of those months must have been in the forefront of the applicant's mind. In all the circumstances, I agree that the representation contained in the letter was incorrect and represented a distortion of the true situation. It reflects adversely on the integrity of the applicant. 34 The appellant was certainly not on leave for the three months of January, February and March 2006. However, he did take leave in each of those months. It is probable that the appellant did seek to present his position in the best possible light and to that extent may have coloured his response to the extent he was not entirely candid, but we think the trial judge placed too much emphasis on what was said in the letter about leave. We have obviously read the letter and the transcript of proceedings as it relates to this issue. 35 The authorities make it clear that appellate courts should be reluctant to overturn findings based on such assessments of credit and demeanour, save in the clearest of cases (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Greg Anderson and Karen Lansdell [2008] NSWIRComm 179; Austin v NF Importers [2005] NSWIRComm 136 (2005) 146 IR 113 at [5]; Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484; Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 at [20]). However, we consider more was required to enable the trial judge to draw a direct inference that the appellant deliberately set out to mislead by what he wrote in the letter about leave and to use that as one of the main limbs to base his decision that the dismissal was not harsh. In writing the letter, the appellant would surely have been aware that it would have been a simple matter for his superiors to check his leave record. 36 We consider that the Briginshaw standard should have been applied in relation to what the letter revealed about the appellant's intentions. And had it been, it would inevitably have led to the conclusion that the contents of the letter constituted only inexact proof or an indirect inference that fell short of what was required to establish that the appellant deliberately set out to deceive his superiors. 37 His Honour was in error in concluding that this consideration could have properly founded a basis for overcoming a finding of harshness which was otherwise available (although, for reasons we develop in relation to the respondent's contention, that conclusion did not properly follow in the circumstances of this case). Appellant's evidence

38 In addition to the matters we have thus far addressed, the trial judge found that the appellant "failed to give his evidence in the proceedings in a forthright and appropriately unequivocal manner". 39 We have examined the appellant's oral evidence and his statements tendered in the proceedings. It was reasonably open to his Honour to find that the appellant equivocated, rationalised and was, to a degree, evasive in giving his evidence. We note that his Honour did not find that the appellant was deliberately untruthful in giving his evidence. This was similar to the situation in Commissioner of Police and Raymond Sewell [2008] NSWIRComm 147: [19] In relation to his Honour's findings on the respondent's "lack of candour", it is clear, when they are considered in their totality, that his Honour did not make findings of deliberate untruthfulness, or lies, against the respondent. Rather, his Honour made careful findings which reflected something less than a positive finding of untruthfulness, and were more in the nature of preferring the evidence of the female complainants over the evidence of the respondent, on a particular issue, or accepting that a number of the respondent's responses, lacked plausibility. The distinction is significant and has been recognised as such in a number of authorities: see for example Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268 ( Brennan , Dawson , Toohey and Gaudron JJ ), at 271 ( Deane J); O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230. 40 Whilst it is unnecessary to decide the question in this matter, there must be some real doubt as to whether findings made by the Commission about the reliability or veracity of evidence given by an applicant in support of an application brought under s 181E of the Police Act (particularly when weighed as being preferable or not to the evidence of other witnesses) could of itself sustain a conclusion going to the integrity of a police officer for the purposes of deciding whether or not the Commissioner's reasons for removal were sustainable or whether the removal was harsh, unreasonable or unjust (unless the applicant's evidence casts some light directly upon the factors or conduct relied upon by the Commissioner in reaching his decision including issues of credit as to disputed facts). This is particularly so in relation to evidence of later conduct or matters discovered after the removal of the police officer. The same position will apply in relation to findings required under s 181F(3). 41 The situation may be otherwise if the Commission were to find deliberate untruthfulness or lying by the applicant in his evidence before the Commission. However, the nature of the applicant's evidence before the Commission may well be a factor which affects the exercise of discretion by the Commission in a particular case.

42 Given this consideration, on its own, and even in conjunction with the letter of 13 May 2006, the manner in which the appellant gave his evidence was not sufficient to support a conclusion that the appellant's removal was not harsh.

Integrity 43 Section 181D(1) of the Police Act provides: (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. 44 In the present case, the Commissioner relied on the appellant's conduct and integrity. We will come shortly to the evidence regarding the appellant's conduct as it reflects on his integrity. In respect of integrity, the word has a wider meaning than honesty, although it may countenance honesty. The Macquarie Dictionary Online (fourth edition, 2005) relevantly defines integrity as "soundness of moral principle and character; uprightness; honesty." The online Oxford English Dictionary (Oxford University Press, 2008), in defining "integrity" when it is used in the moral sense, states: "a. Unimpaired moral state; freedom from moral corruption; innocence, sinlessness. b. Soundness of moral principle; the character of uncorrupted virtue, esp. in relation to truth and fair dealing; uprightness, honesty, sincerity." 45 Thus, when this Tribunal is called upon to review the Commissioner's decision to remove a police officer on grounds relating to the officer's integrity (or more particularly, lack of it) the Commission will consider whether the officer is a person of sound moral principle and character. That may involve questions of the officer's honesty, uprightness and sincerity. The Commission will also have regard to s 7 of the Police Act which sets out a "Statement of values of members of NSW Police Force", foremost amongst which is that: Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, … 46 It has been said, however, in various ways, that the requirement of a police officer to act with integrity does not constitute an absolute test of the officer's suitability to remain in the Force. See, for example, Alexander v Commissioner of Police [2009] NSWIRComm 3 at [48]; Raymond Sewell v New South Wales Police Force. Application by Raymond Sewell for review of an order under s 181E of the Police Act 1990 [2008] NSWIRComm 93 at [131]. That must be so, in our opinion, otherwise the whole system of review under Division 1C of Pt 9 of the Police Act would be otiose. 47 Similarly, the Commissioner may promulgate from time to time codes of conduct or ethics or statements of value which may act as a 'touchstone' of the integrity of the officer. However, as Haylen J pointed out in Sewell v NSW Police Force (as approved in Commissioner of Police v Sewell [2008] NSWIRComm 147 at [20]), such codes "should not be treated as a monolith but should be treated as blueprints with layers indicating what should be the behaviour of police officers. Those layers should also acknowledge a role for flexibility, compassion and fairness in dealing with the variety of human behaviour that will be called for review".

48 There is another important consideration in this respect. Whilst the question of integrity has been considered in the context of the requirements of s 181F(3) (Commissioner of Police v Brennan [2008] NSWIRComm 52), and whilst considerations under that section may impact upon the question as to whether the removal of an officer was harsh, unreasonable or unjust and discretionary matters such as the determination of appropriate relief in a given case (Van Huistedde v Commissioner of Police (2000) 98 IR 57 at [216] and see Commissioner of Police v Sewell at [15]), it must be steadily borne in mind that there is a distinction between the consideration of a police officer's integrity by the Commissioner under s 181D(1) and general notions of integrity that may be raised more broadly in the context of review proceedings brought under s 181E(1). 49 The Commissioner's consideration of integrity is undertaken in a particular context, including requirements of the Police Act, standards established by the Commissioner from time to time (subject to the observations above) and the particular factual substratum (including documentary materials and submissions) which underpinned the Commissioner's decision to remove a police officer. That decision and the reasons given for it must be considered firstly, and will require the Commission to consider, inter alia, whether the decision of the Commissioner is sustainable or not in the light of the reasons given by the Commissioner having regard to the provisions of s 181F(1)(a). Other considerations may arise in an appropriate case such as the later conduct of a police officer or matters arising before the removal, which are appropriate to be taken into account in accordance with the principles discussed in Starr v Commissioner of Police [2001] NSWIRComm 226 at [321] to [326]. Additional matters to those considered by the Commissioner may be taken into account in the review to decide whether the removal was harsh, unreasonable or unjust under s 181E (see Little v Commissioner of Police (2002) 112 IR 212 at [75]). But none of this removes the primary obligation of considering the reasons provided by the Commissioner (in the context in which they were given). So much will also ground any consideration of the integrity of the police officer arising in the reasons for removal. Matters arising for consideration under s 181F(3) will be assessed later in the sequence of deliberation and involve broader considerations (which have been much discussed in the authorities). Appellant's conduct

50 Against that background, it is necessary to consider the appellant's conduct. First, the lies told to Sergeant Donaghy in relation to the assault matter in the Local Court. In that respect, the appellant lied by saying to Sergeant Donaghy: (a) that the victim of the alleged assault, namely Mr Duggan, was not at court and available to give evidence in the matter listed for hearing on 14 September 2006 because his children were "extremely sick"; (b) (in response to a question from Sergeant Donaghy as to why Mrs Duggan could not look after the children so that Mr Duggan could attend court that day) that Mrs Duggan had to work that day and so could not stay home to look after her sick children; and (c) (in response to a further question from Sergeant Donaghy about the availability of a medical certificate to support the adjournment application based on the illness of the alleged victim's children) indicated that a doctor's appointment had been made for the Duggan children later that day and a medical certificate would then be provided.

51 On any analysis, the lies were elaborate and clearly calculated to deceive. Sergeant Donaghy conveyed this information to her Honour, Magistrate Quinn, as one of the reasons why an adjournment should be granted. Her Honour considered the reasons for Mr Duggan's absence in deciding the adjournment question. Not only did the appellant lie deliberately to Sergeant Donaghy, but he also had the effect of knowingly misleading the Local Court by the provision of that information to the Sergeant. The appellant conceded that the lies told by the appellant to the prosecutor were capable of misleading the Court, but the fact is that the Court was misled as to the basis upon which the prosecutor was seeking an adjournment. The irony perhaps is that if the appellant had been truthful about the reasons for an adjournment it may well have been granted. 52 The appellant told Detective Inspector Stinson and Detective Sergeant Wakeling, who were charged with investigating the appellant's conduct, that he was not aware that the story he had concocted with a view to getting the Local Court proceedings adjourned would be relayed by the Police Prosecutor, Sergeant Donaghy, to the Court. He said in his response to the s 181D notice that he had not considered that his lies to the Prosecutor would be repeated in court and "naively thought an adjournment would be sought without the need for further reasoning to be provided." He said he felt "sick to the stomach" when he realised the impact of his actions. 53 It is impossible to accept that a senior constable with seven years' experience as a police officer would expect to obtain an adjournment of the hearing of an assault charge in the Local Court without being called upon to provide reasons. The only reasons the Prosecutor was aware of were those conveyed to him by the appellant. 54 The other reason proffered by Sergeant Donaghy to justify an adjournment was that the alleged victim's statement of evidence had not been served on the accused or his lawyers because of some inexplicable administrative error. The appellant maintained that he had faxed a typed version of the victim's statement to the Brief Handling Section on 10 August 2006. However, the Brief Handling Section said the fax was not received. 55 As early as 11 July 2006, the Brief Handling Section had alerted the appellant through the COPS system to the fact that the victim's statement was not included in the original brief. The appellant made no effort to send a copy of the victim's statement recorded in his notebook and did not respond to the COPS recording. On 1 August, Sergeant Donaghy raised with the appellant the whereabouts of the victim's statement but nothing came of that conversation. The appellant also did not respond to Sergeant Donaghy's written inquiry about the missing statement on 14 August, either by making reference to the alleged facsimile of 10 August, followed by the simple act of re-faxing the statement on that date or at all. On 13 September 2006, when Sergeant Donaghy again contacted the appellant, he said for the first time that he had faxed the statement "weeks ago" but was unable to provide a transmission report. 56 In his decision at [40] the trial judge stated: The evidence as a whole demonstrates, in my opinion, that the applicant was not prepared to confront reality, namely concede that he had failed to include Mr Duggan's statement within the police brief. 57 We agree with this finding. There was a very clear inference available to be drawn that the appellant did not include the statement in the police brief despite requests for it to be done. We also agree with what Marks J said at [43] that the appellant had a propensity to rationalise his evidence about this matter. It must be kept steadily in mind that the appellant was removed from the Police Force because the Commissioner lost confidence in him, in particular because of the appellant's failure to maintain an acceptable standard of personal integrity. The question of the appellant's integrity was clearly on trial. As counsel for the appellant conceded, the appellant clearly failed in his duty to ensure the victim's statement was in the police brief. Yet the appellant, in the trial judge's words, "was not prepared to confront reality, namely concede that he had failed to include Mr Duggan's statement within the police brief."

58 Despite being "sick to the stomach" about his lies regarding Mr Duggan's absence, the appellant did not confess to Sergeant Donaghy what he had done. On the contrary, he compounded his untruthfulness by subsequently misleading and deceiving the Duggans in a face to face meeting on 14 September 2006 by: (a) implying that the accused, Mr Bailey, had been found guilty of "the assault/malicious damage and the firearm offences" and put on a "12 month bond with undertakings" in circumstances where he knew that this outcome related only to the firearms charges and where he knew that the assault charge had been dismissed by the Local Court due to the inability of Sergeant Donaghy to produce and lead evidence from Mr Duggan himself (as there were no witnesses to the alleged assault by Mr Bailey on Mr Duggan); (b) not telling them that there had been a failure to serve the victim's statement with the Police brief and his role in that failure; (c) not telling them that he had concocted a story with a view to getting the Local Court matter adjourned that involved a false assertion that their own children were seriously ill at home and that this was the reason why Mr Duggan was not at court; and (d) suggesting to them that the only mistake that he had made was putting the wrong date on the subpoena to give evidence in circumstances where there had been a failure to serve the victim statement and where he knew it was his obligation to have made contact with Mr Duggan in the weeks immediately prior to the trial for the very purpose of keeping him updated throughout the investigation. We agree with the respondent that if the appellant had carried out his obligation under the Code of Conduct and Ethics - "Customer Rights" to keep Mr Duggan advised (which he clearly failed to do), the mistaken date on the subpoena may well have been corrected. 59 In the interview with Detective Inspective Stinson and Detective Sergeant Wakeling, the appellant asserted that the reason why he lied to Sergeant Donaghy was because he believed that he "had to do so", as he had let Mr Duggan down (by giving him a subpoena with the wrong hearing date on it). We note the respondent's submission in this respect, with which we agree, that the appellant said his motive in lying was to avoid letting down Mr Duggan in circumstances where he had seemingly been indifferent to that happening by failing to ensure that the witness statement was added to the Police Brief despite the fact that he was on notice from mid-July onwards that this was missing and needed to be fixed and by failing to keep Mr Duggan informed of the progress of matters. 60 One of the grounds on which the appellant sought to rely was that he "freely and unreservedly admitted" his wrongdoing. In fact, he did not admit any wrongdoing until after his lies were discovered by Sergeant Donaghy. The appellant did not acknowledge to Sergeant Donaghy that the reason he had given him for Mr Duggan's absence was untrue after hearing Sergeant Donaghy relay the false information to the Court in support of the adjournment application. He continued to attempt to cover up his lies in speaking with the Duggans on 14 September. The first time the appellant acknowledged the lies was in the undated document he handed to Detective Sergeant Wakeling on 23 November 2006 when he was interviewed as part of the investigation into his conduct. The case against Mr Toshack by that stage was so overwhelming that he had no choice but to admit his untruthfulness, so we do not consider there is any substance in the proposition that because the appellant freely admitted his wrongdoing that is a factor to count in his favour. 61 What is also a matter of concern is that the appellant appeared unwilling to accept that blame rested entirely with him. He maintained that in lying to Sergeant Donaghy he was attempting to achieve an adjournment to ensure Mr Duggan had his day in court. To be fair, that may have been part of it, but in our opinion the appellant was also seeking to cover up his mistakes. In that respect, the appellant was only prepared to concede that a cover up could be seen as "a by-product of what I did". The fact that the appellant was motivated to cover up his mistakes is very apparent when the conversation between the appellant and the Duggans is considered. Moreover, the appellant maintained that he had been subjected to unfair criticism by Sergeant Donaghy and, therefore, felt on the day of the Local Court hearing that Sergeant Donaghy would not support his "error". Consequently, he felt he had to lie. Under cross-examination, it became apparent that the Sergeant had merely raised problems with briefs prepared by the appellant that were "minor". 62 The evidence shows that the appellant lied to the Police Prosecutor, quite deliberately, and by virtue of those lies, had the effect of misleading the Local Court. He, in effect, maintained the lies by failing to advise the Duggans of the true facts and in doing so misled and deceived them. He refused to accept that he was at fault in failing to ensure that the victim's statement was in the Police Brief. He failed to keep Mr Duggan informed about progress in the assault matter in the Local Court, despite the fact that it was his duty to do so and if he had done so it is most likely the wrong date on the subpoena would have been discovered. The appellant only admitted his wrongdoing when it became inevitable that he would be found out. 63 Despite the seriousness of this misconduct, the trial judge indicated that in all of the circumstances he would have been persuaded that the appellant's removal was harsh for the reasons advanced in the submissions made on his behalf. This, of course, was his Honour's view prior to giving consideration to the letter of 13 May 2006 and the manner in which the appellant gave his evidence.

Notice of Contention 64 The respondent formally contended by what was said to be a Notice of Contention (the form of which was not objected to by the appellant and in respect of which the appellant responded without taking any objection), that his Honour was in error in finding that the appellant's lies on 14 September 2006 to the Police Prosecutor would have been outweighed by other considerations that favoured the appellant, as he was wrongly influenced by two considerations, namely: (a) His Honour's apparent but erroneous belief that, whilst the Police Prosecutor Sergeant Donaghy was obviously misled by the Appellant, this "serious infraction" only " arguably misled the Court" in circumstances where the Court was clearly misled;

(b) The views of a number of senior police officers who expressed themselves to be supportive of the Appellant and prepared to have him back (in circumstances where the Respondent submits that such evidence was not relevant to deciding whether or not the Commissioner's decision was harsh). The unwarranted significance that his Honour placed on the evidence of those police officers was also demonstrated during the course of the submissions of the parties. The Respondent submits that the lay evidence of those other police officers could only have been relevant to the question of the "practicability" of reinstatement and not to the question of whether the removal order was "harsh" or not, especially given that it is the Respondent's level of confidence that is the cornerstone of this legislation: see Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [74] (page 239.4 - where this question was said not to arise for consideration). See also Van Huisstede v Commissioner of Police (2000) 98 IR 57 (" Van Huisstede ") at [246]-[253] (pages 119-121). 65 In considering the Notice of Contention, it is appropriate in this case to have regard to the aforementioned consideration of the appellant's conduct. This is necessary because the contention, in substance, gives rise to a question as to whether his Honour's assessment of the harshness of the removal was correct. However, we have had some concerns about that approach because of the limited way in which the Notice of Contention was drawn by the respondent; in many respects it failed to squarely raise the broader question of any error associated with findings of harshness in this matter (as opposed to two particular grounds). We have, however, ultimately decided to proceed with a consideration of the broader question of the appellant's conduct in relation to the Local Court proceedings to review the finding as to harshness at first instance because of the concessions made by the appellant in that respect (that is, the concept of the "three pillars" of his Honour's reasoning earlier referred to in this decision). Appellant misled court

66 The appellant's lies to the Police Prosecutor did not directly mislead the Local Court to the extent that based on those lies the Magistrate refused to grant an adjournment, although that could have been the result. But it was unquestionably the case that the basis upon which the Magistrate refused the adjournment was false and that this was due to the appellant's lies. It is beyond argument that the appellant's conduct had the effect of misleading the Local Court. In this context the trial Judge's observations should not be seen as equivocal, but merely reflecting the indirect nature of the misleading conduct. His Honour was, therefore, not in error.

67 Nonetheless, the effect of finding that the Court was, in substance, misled underscores the seriousness of the appellant's misconduct. That a police officer would tell lies to a more senior officer in circumstances where the police officer knew or ought to have known there was every probability the content of the lies would be conveyed to the Court so that the Court was placed in the position of acting on a false premise, is wrong and worthy of severe sanction. It cannot be excused on the basis that the behaviour may have been aberrant.

Character evidence 68 The second matter relied upon by the respondent was that the trial judge placed unwarranted significance on the evidence of those police officers called to give character evidence for the appellant. There is no doubt that the other officers' evidence was foremost in his Honour's mind when he said that he could have been persuaded the dismissal was harsh and that such evidence was, for his Honour, highly persuasive. 69 Character evidence of police officers that may be led in support of an officer who has been removed under s 181D of the Police Act will undoubtedly be relevant to the question of what relief may be ordered where the removal is found to be harsh, unreasonable or unjust. It may also be relevant, depending upon the circumstances of a particular case, to the question of whether the removal was harsh, unreasonable or unjust. Where a person's integrity is being assessed it will involve questions about his or her character. The Commissioner of Police may take one view about a person's integrity but there is no reason why the Commission, in undertaking the type of review that is required under Division 1C of Part 9 of the Police Act, may not have regard to evidence indicating a contrary or divergent view to that of the Commissioner in deciding whether the removal was harsh, unreasonable or unjust. 70 Of course, as the Full Bench observed in Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 at 239, the reasons for the Commissioner's loss of confidence "will be plainly a matter of particular significance". However: [T]he Commission will consider other matters and bring into account such matters as to whether the dismissal was harsh, unjust or unreasonable, which go to the merits of the application, including a consideration of the procedures adopted by the Commissioner. These matters may transcend the particular reasons stated by the Commissioner for his loss of confidence, as the statutory directive is for the Commission to consider whether the removal was harsh, unreasonable or unjust on any relevant or reasonably available basis and not simply whether the Commissioner's conclusion was sustainable or not… 71 The observations of a Full Bench in Commissioner of Police v Sewell as to the Commissioner's determination of loss of confidence (see at [12]) does not diminish the observation of the Full Bench in Little v Commissioner of Police (No 2) as to the particular significance of the Commissioner's "reasons for decision"; consistently with the importance attached to those reasons in s 181F(1)(a). 72 Further, as Watson J observed in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233: 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. 73 The caveat, of course, is that whether character evidence is a material consideration in a consideration of whether the dismissal was harsh, unreasonable or unjust, will depend on the facts of each case. In the present case, we are dealing with the very serious misconduct of a police officer telling lies that misled a court. The character evidence comes from police officers, including very senior officers, who encountered the appellant after the events that led to his removal and when he had been transferred to Armidale. The evidence was that over the six months or so that the other officers had come into contact with the appellant they perceived him to be "hard working", "capable", "great people skills", "learned from his mistake", "professional", "attempting to re-build his career" and as having "a lot to offer". It should be borne in mind that Watson J in Metropolitan Meat Industry Board identified as a relevant factor "past good conduct", although there may be cases where subsequent conduct may be relevant, particularly as to the evaluation of an appropriate remedy. 74 Undoubtedly, the officers who gave evidence supporting the appellant were completely honest in their assessment of him. However, the appellant was obviously under notice of the disciplinary inquiry into his conduct when he transferred to the New England Local Area Command in July 2007. It is to be expected that the appellant would conduct himself in such a manner as to avoid any adverse comment given that his career could be in jeopardy. 75 Given the seriousness of the appellant's misconduct, the importance of integrity in the Police Force and the particular significance that is to be attached to the reasons for the Commissioner's loss of confidence, we consider his Honour erred as a matter of fact and law in allowing himself to be influenced to the extent he did in having regard to the character evidence. His Honour could have only properly reached the conclusion that, in the light of that evidence the dismissal was harsh, if his Honour had accepted that the applicant was rehabilitated and that there was, therefore, an insufficient basis upon which the Commissioner could maintain his loss of confidence accordingly. No such conclusion was properly available on the evidence in this case. Evidence of fellow officers' perceptions of the appellant over a relatively short space of time where the appellant was most likely on his best behaviour is not sufficiently strong to counteract what was evidence of misconduct of the most serious kind and which was found by the trial judge to justify removal. 76 His Honour was, therefore, in error in attaching the weight that he did to the character evidence in favour of the appellant. We consider that this was the main factor leading his Honour to the decision that the removal was harsh, although his Honour did identify other factors in his reasons as follows: … (i) it involved a single instance of aberrant behaviour that occurred in police career spanning 7 years and that occurred in circumstances where the Applicant was suffering from considerable personal and professional stress;

(ii) although the dishonesty was serious, it has been mitigated significantly by the full admissions and co-operation of the Applicant in the investigation process and the genuine expressions of remorse that he has made not only to the victim in relation to his mistakes in the investigation process, but also to his colleagues. Moreover, the removal is relevantly harsh because of the Applicant's prior good conduct and excellent post-event good conduct extended for over a year before the removal. 77 We do not consider that these factors could have constituted a proper finding of harshness in this case. The starting point of our analysis, in this respect, is the seriousness of the appellant's misconduct. There is not, in our view, any aspect of the history of the conduct of the appellant prior to his removal that would warrant a conclusion that the decision to remove was harsh. The notion that the conduct was a single, aberrant act does not sit well with the premeditation and calculation involved in the appellant's acts and the maintenance of the deception until he was caught "red handed". We have given some anxious consideration as to whether the personal and professional stress the appellant was suffering at the time of the incident or incidents would warrant a contrary view, but those factors are of insufficient gravity both in themselves and when considered in the light of the methods employed by the appellant in bringing about the misconduct as to warrant a countervailing view that, notwithstanding the seriousness of the appellant's conduct, the removal was harsh.

78 As to the "full admissions and co-operation" and expressions of remorse, these only came about when it must have been clear to the appellant that he could not maintain the lie in the face of the overwhelming case that was building against him. As to the post-event good conduct, we have dealt with that in the context of dealing with the character evidence. 79 All of this leaves a situation where there was no proper basis for the trial judge to reverse his initial view that the Commissioner was entitled to remove the appellant for the reasons advanced in the submissions made on his behalf.

CONCLUSION 80 We consider that the decision at first instance should be sustained, but upon a different basis than the reasons given at first instance and upon the partial success of the Notice of Contention brought by the respondent. We consider there is no basis for this Commission to interfere with the Commissioner's decision to remove the appellant from the Police Force. Accordingly, we propose to dismiss the appeal. ORDERS

81 The Commission makes the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed. ___________________________

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