Chronology of Events and Preliminary Factual Findings
28On Thursday 28 April 2011, at around 6.45pm, the applicant was situated at the Burwood police station ready to commence his night shift as a Leading Senior Constable. The applicant was scheduled to commence his shift at 7.00pm. It was the fourth consecutive 12 hour night shift the applicant had worked that week.
29 At approximately 6.50pm, the applicant was asked to attend reception at the police station pursuant to a request from a Korean man who had asked specifically for "Terry".
30During a meeting with Leading Senior Constable Voetrell, shortly prior to being asked to attend the reception desk, the applicant had been informed that he had missed out on a position at Byron Bay (he had applied for a transfer to that location).
31When the applicant reached the reception desk at around 6.50pm, the Korean man ('SHK'), who spoke only broken English, handed to the applicant a document hand written in Korean ('the Korean note'). Because the station's evening briefing was about to start, the applicant asked SHK to wait. The applicant went to the briefing. Then, in the applicant's own words, he "returned and tried to work out what was going on".
32SHK asked the applicant to show the Korean note to the applicant's (de facto) wife, Ms Green, who is also Korean.
33The applicant was able to elicit SHK's name, date of birth, mobile telephone number and address, which the applicant wrote down on a piece of paper.
34During the Burwood interview, the following exchange took place between Inspector Thomas and the applicant:
Q. 43. O.K. To get [SHK's] date of birth and, were you able to communicate with him sufficiently to obtain these answers?
A. As I said at the start of the interview he spoke broken English, um, very poor English but I was just able to find out the basics that he wanted me to show the letter to my wife and I was able to get his, you know, where do you live, your phone number, um, and I said "I'll find out and get, and tell you".
Q. Did he [SHK] wait around the station?
A. He waited and that's probably when I wrote down the contact details. So then he's basically just said, "Give to, give to wife", something to that nature...
Q52 Ah hmm
A...so that's what I did.
35At the same time SHK had handed the Korean note to the applicant, he provided to the applicant a note hand written in English ('the English note'). In the course of the Burwood interview the applicant described the English note coming into his possession in the following way:
Q140 How did that letter come to be in your possession?
A That was in amongst the, amongst those documents, the handwritten letter in Korean.
Q141. O.K. So at the time that you received the handwritten letter
A Yeah
Q141...you're saying that this was with it in English.
A Yeah, yeah and he was asking me to give that to, to my wife, um, which made me a Senior Constable Little confused ....
36The applicant, in his response to the Commissioner's notice, wrote in this respect:
He [SHK] said to me, give the notes to your partner and then tell me what to do.
37It is clear that SHK produced the English and Korean notes during the first exchange at the reception desk between SHK and the applicant. When the English and Korean notes are referred to collectively they shall be referred to as 'the notes'. It is also clear, on the applicant's evidence, that he had taken the notes into his possession by the end of the second exchange between himself and SHK. SHK asked the applicant to do two things, firstly to give the notes to his wife and then to give SHK guidance as to what to do.
38The English note said:
Someone is Blackmailing me that I Raped her, and to Requesting $100K from me or else she is going Report me to the police. Can you please Organize a Korean Interpreter Service so I can explain to you in more Detail.
39The applicant's shift ended at 7.00am on Friday 29 April 2011.
40The applicant conceded in the response that he read the English note at or about the time of its receipt. Having not obtained an interpreter, the Korean note was not translated during the course of his shift. That document was translated for the applicant at some time on 29 April 2011 by Ms Green.
41Despite having read the English note and receiving the Korean note, the applicant omitted to take any step which would have the effect of alerting any other officer of the Police Force as to the communication in writing from SHK or SHK's request for assistance, before the end of his shift.
42At no time during the period from 7.00pm on 28 April to 7.00am on 29 April 2011 did the applicant create a COPS event, make any record on COPS or bring to the attention of any other police officer his transactions with SHK in relation to SHK's attendance at the police station or in relation to SHK's provision to the applicant of the notes or the information contained therein.
43At no time during the period from 7.00pm on 28 April to 7.00am on 29 April 2011 did the applicant contact a Korean interpreter or record the notes as exhibits. Nor did the applicant make any record during his shift that he had obtained the notes, intended to retain them and did, in fact, retain them.
44The applicant accepted that, during the period from 7.00pm on 28 April to 7.00am on 29 April 2011, he should have created an event on COPS, recorded the notes as exhibits, brought the matter of the existence of the notes and his discussion with SHK to someone's attention at the police station and contacted a Korean interpreter.
45The applicant accepted that these omissions constituted failures in his duty as a police officer and that his conduct was inappropriate. However, he proffered four explanations for these failures as follows;
(1)He failed to follow proper procedure because of his psychological or emotional state, and was suffering from depression, anxiety and fatigue at the time he committed the errors of judgment during his shift commencing 28 April 2011;
(2)The contents of the English note did not enter his consciousness on 28 April 2011;
(3)Because of his involvement with the Korean community, he was angry and frustrated when SHK came to the reception desk on 28 April 2011 looking for help; and
(4)Because of his knowledge of Korean culture, and SHK being Korean, he dismissed the allegations contained in the English note (during his shift) as exaggeration, misinterpretation by the writer of the note or out of character with the Korean community.
(It might be noted that there is an interrelationship between these factors offered in mitigation. For example, the applicant raised that his psychological/emotional state may have caused, to some extent, him to mismanage the approach from SHK.)
46The applicant submitted that the first and fourth of these explanations carried over for the period from the morning of 29 April to 30 April 2011 thus continuing to be key factors which affected his subsequent conduct after the end of his shift.
47These explanations were contested in various ways by the Commissioner. It will be convenient to address these matters during the course of the following chronology of events, except the question of the psychological and emotional state of the applicant which will be considered at the end of the background chronology.
48On 28 April 2011 at 11.12pm, SHK telephoned Ms Green. He rang again at 11.18pm. The conversations lasted approximately two minutes and 13 minutes, respectively. The content of the conversations was not elicited during the course of the evidence. Ms Green's evidence was confined to a statement that she had two conversations with SHK on that evening and that the duration of the conversation was more than ten minutes between the two telephone calls.
49Upon leaving the police station at around 7.00am on Friday 29 April 2011, the applicant took both of the notes home.
50Sometime later on 29 April, Ms Green read the Korean note and had a discussion with the applicant about its contents. The applicant's appreciation of the seriousness of the allegation contained in the note at that time will be discussed in the course of outlining the subsequent events.
51It should be noted that the Korean note was formally translated by a Community Relations Commission Korean Interpreter for Detective Senior Constable Little on 4 May 2011. The Korean note was annexure 10 to the 'Commissioner's Confidence Submissions' and was described, in the 'Facts Sheet' of those submissions, as a "letter written by the accused" (presumably a reference to SHK). The English translation of the Korean note contained the following elements of what a Ms Nam, a Korean female, said to SHK:
I consulted a lawyer at the company, I was told that I can have you charged for sexual assault ...
52Ms Nam gave a statement to Detective Senior Constable Little on 30 April 2011 in relation to having been sexually assaulted early on 24 April 2011 by SHK. Ms Nam did not give evidence in the proceedings.
53Later in the Korean note there appeared the following entries:
Sooyeon told me that she would report me to the police unless I prepare 100M won ($100,000). She said to me "Do you know what will happen if we decide to report you to the police? You will get deported......."
...
I contacted Heejin the following day which was the 28th April, 2011. She said "What money? I am going to report you to the police straightaway after work". However she did not go to the police. She told me that she was hurt and that she did not need money.
However, when I telephoned her again today (29/04/2011) she was still asking for money.
54The reference to 29 April 2011 in the last excerpted paragraph seems inconsistent with the applicant's evidence that the Korean note was handed to him on 28 April 2011 during his shift and that he took the notes home after that shift. No issue arose, in this respect, in the proceedings and it may simply have been an error by SHK.
55Neither counsel referred to the content of the Korean note in their submissions.
56An issue arose in the proceedings as to when the applicant comprehended the allegations of criminality contained within the notes.
57Counsel for the applicant conceded that by Saturday 30 April that the applicant comprehended the criminal allegations contained in the notes because by then 'the penny drops" and 'he managed to get himself back into shape".
58However, this concession by counsel did not fully reflect, in my view, when the applicant acquired his knowledge and understanding of the content of the notes.
59The evidence discloses that the applicant knew of the content of the notes at least by sometime in the afternoon or evening of 29 April and, in particular, that there were expressed in the notes allegations of serious criminal offences.
60During the Burwood interview, the applicant admitted that he had taken the notes home and asked his wife to read the Korean note and translate it.
61The applicant answered questions about what happened when he took the Korean note home to Ms Green, in the following way:
Q 71...what happens then
A Ah, she [Ms Green] read through it [the Korean note] and basically, um, told me that, you know what the allegation was that, you know, he'd slept with both women, they found out that he's slept with both of them and that they wanted compensation otherwise they'd cause trouble for him.
Q 72 O.K. in the letter did he say that the, in sleeping with the women that they were alleging that it was non- consensual?
A Um, the main thing I got out of it from what I can recall is that, um they were pissed off that he slept with both of them, um, and that they wanted compensation if they didn't say give him compensation that they'd cause trouble for him and they might go to the police and say that, he, um, that it wasn't consensual
62In the response to the notice, the applicant stated:
On the 29/04/2012 I woke in the afternoon and some time on that day Christine read to me the note and I told her to ring him [SHK] and tell him to report it to the police.
63In his affidavit sworn 19 July 2013, the applicant stated that:
When I briefly met him [SHK] on 30 April [2012] and became aware of the extent of the matters relating to SHK and his dealings with the two alleged victims I immediately contacted Burwood Police, immediately told [SHK] to report to police and took steps to ensure that Burwood Police took steps to contact the alleged victims.
64In one component of his cross-examination, the applicant suggested his realisation of the contents of the notes came late Friday night or Saturday:
A. And, as I said, when I first had dealings with him I didn't pursue the conversation properly, I didn't identify the issues properly and I thought it was some personal issue that he's come in to drop off, to pass on to my partner and it wasn't still later on that I realised exactly what was going on, probably on late Friday night, Saturday that I really started to have an idea of what was going on. But when he first attended the police station I did not.
Q. Having discovered on the Friday night or Saturday what was going on, you still agreed to meet with him?
A. As I said in my affidavit, the only reason that we agreed to meet with him was we were in the area at the time, seeing somebody else next door, and just to tell him face to face, "You're going to have to come into the police station tomorrow and I'll introduce you to the detectives".
65In another part of his evidence the applicant stated that acquisition of his knowledge was probably as late as Saturday 30 April:
Q. Of course you had provided your partner with the two notes that you had received from SHK?
A. That's correct.
Q. The one in English?
A. Yes.
Q. By the time sir that you had done that you realised it was in English?
A. To be honest with you I never really looked at the notes until probably Saturday after giving them to her on the Friday morning when I finished my night shift.
66The applicant also gave the following evidence:
Q. And your partner had translated to you the notes in Korean?
A. She told me what the context of the letter was. Basically the allegation was that he slept with two flat mates on separate occasions, they found out that he slept with both of them. They took offence to him sleeping with both of them and they wanted compensation. That is how it was complained to me.
Q. You knew at that stage this was a serious matter?
A. Say again?
Q. You knew at that stage having had it translated?
A. Yeah.
Q. The general sense of the document, you knew it was a serious matter?
A. That's why I got my partner [John], I can't deal with it, he is going to have to come back to the police station I'll introduce him to the detectives.
Q. You waited to the evening to do anything about that? A. We told him on Saturday around the 1 o'clock phone call that he would have to come into the police station and I thought at that stage I had a shift on the Sunday and I was going to get him to come in on the Sunday.
67However, the applicant subsequently conceded he became aware of the content of the allegations in the Korean note on 29 April:
Q. And then you say on the 30 April [2012] having briefly met him, you became aware of the terms of the extent of the matters relating to Kang and his dealings with the two alleged victims you were aware of that in fact on the 29 April, were you not?
A. I was aware of the basic context of the allegation.
Q. You were aware of it when your partner either translated for you or provided you what was set out?
A. Yes.
Q. In the Korean letter?
A. Yes.
68Ultimately, the applicant conceded under cross-examination that he was aware, by 29 April, that serious criminal allegations had been made in the notes. His evidence was as follows:
Q. You agree with me you were aware of the nature of the allegations on the 29 April 2011?
A. Yeah.
And:
Q. "I was aware of the potential seriousness of the criminal offences being alleged"?
A. Yeah, I've written that. Yes.
Q. That was on 29 April 2011?
A. Yes.
Q. But, notwithstanding having that knowledge or that awareness, you still elected for your partner to have telephone discussions with him on 29 and 30 April?
A. Yes, that's already on the record.
Q. And you agreed to meet with him?
A. Yes.
Q. Knowing full well the potential seriousness of criminal offences being alleged?
A. Yes.
69As to his capacity to act earlier than 30 April, the applicant stated in evidence:
Q. Again sir nothing stopped you making a COPS entry on the 28 April in relation to this matter?
A. That's correct.
Q. And nothing stopped you making the notes and exhibits on the 28 April?
A. That's correct.
Q. And nothing stopped you going into the station on the 29 April with the notes and asking someone else to make as an exhibit?
A. That's correct.
Q. And nothing stopped you doing that on 30 April and asking someone else to take the notes?
A. That's correct.
70There remains the question as to whether the applicant comprehended the English note when he read it on 28 April and whether he had, therefore, an appreciation on that day that allegations of a serious criminal nature were being made.
71Counsel for the applicant submitted, in opening, that:
There is a handwritten note in English and then there is a much longer Korean note which is two pages long. Mr Vouden's version will be that the note in English did not really register, it did not compute for him; his mind was, unfortunately, on other things at the time and, as I said, he has admitted this the whole way through.
72On the final day of the hearing the following exchange took place between the Commission and counsel for the applicant:
HIS HONOUR: Did the applicant become aware of the allegation of rape on 28 April?
NAGLE: No, with respect, your Honour. What the applicant became aware of on 28 April is an allegation of blackmail. This is a different characterisation on 28 April. What happens on 28 April is that the applicant becomes aware, although on his version it didn't enter his consciousness, he became aware generally that there was some allegation and remember it is an allegation on the 28th being made by SHK and not the complainant, it is an allegation of a blackmail or shake down that these women had demanded $100,000 from SHK. That is serious enough, yes, but what he didn't have on 28 April was either complainant saying HK raped me; he had a demand for moneys as a result of potential allegations. I know that sounds odd but your Honour might recall
HIS HONOUR: Are you seriously submitting that a police officer of Mr Vouden's experience when possessed of a note of that kind would not have allowed for either possibility being at play, either that there is a blackmail afoot or someone attempting to deal in some other way with allegations of rape that might be made against him. In other words, why wouldn't a professional police officer informed of that information allow for either possibility in proceeding with an investigation that would follow from it?
NAGLE: The answer to your Honour's question is found in the applicant's state of mind that night. He said he was deeply distressed, that it didn't enter his consciousness, and the detail of the allegation was not in English. That is terribly important.
HIS HONOUR: When you say the detail, you say the accompanying Korean note? ...
NAGLE..He can't stand up and say it was just a plain error in circumstances where he was acutely distressed. It is all good and well for the Commissioner to say that wouldn't render you completely incapable of you doing your job, he wasn't rendered capable of doing his job, it just didn't enter his consciousness at that time. He didn't understand the gravity of the situation. His mind was elsewhere. We all make mistakes, with respect, your Honour. That is what this case was really about. He made a terrible error. What he should have done was terminate his shift and go home if he was that distressed, and he contemplated doing that, but unfortunately for Terry that's not the way that he operates all the time.
73In the response, under the heading 'Mitigation', the applicant referred to a failure by Inspector Thomas to interview Leading Senior Constable Voetrell as being procedurally unfair (as it would have revealed his "state of devastation and despair") and stated:
If you had such a statement from a witness who was easily accessible you would not find it difficult to accept that the note written in English did not enter my consciousness.
74This was a reference to the applicant's state of mind on 28 April. (The failure to interview Leading Senior Constable Voetrell shall be discussed later in this decision, as it relates to substantive and procedural issues in turn.)
75However, in para 18 of the response, the applicant also admitted that he read the English note at the time that it was handed to him, and stated:
I do not move away from the fact that I looked at both notes when he handed them to me. I did read the one that was in English but dismissed the words blackmail and rape as exaggeration since it was a second hand message and thought that it had been misinterpreted by the person who wrote the note in English. I do not recall reading the request for a Korean interpreter service. He said to me, give the notes to your partner and then tell me what to do. [SHK] did not ask me for an interpreter. I was angry when I saw him and frustrated by him coming to me at the station with a matter for my wife to sort for him. I say that the reason that was misguided but understandable in the circumstances and without a monovalent motive was that [SHK] represented yet another Korean who wanted assistance from my partner and I couldn't get away from the demands from that community. This frustration and disappointment coloured my judgment. I just wanted him out of the station taking up my time with what I assumed to be non-police business. If my judgment on that day had not been clouded by extreme disappointment and fatigue I would have read rape, blackmail, Korean interpreter, made a COPS entry, written up the exhibits, got an official interpreter and informed the detectives.
76The applicant had stated in his response that there was no evidence to suggest that either he or his partner knew SHK before 28 April 2011 and that when the applicant came into the station it was the first time he had met SHK. The evidence also showed that this was, according to the applicant, the first time someone had come to the station asking him to provide material to his wife:
Q. How many other people come to the station asking for you to provide material to your partner and you do that?
A. Well, I think you already know the answer to that; it hasn't happened before.
77Under cross-examination, the applicant gave the following evidence:
Q. You took the documents to give to your partner, that was a favour to him?
A. Well, at that stage I didn't realise the context in what was going on.
Q. You understood at that stage that there were issues of blackmail?
A. Well, as I said, I didn't really take much notice of it.
Q. You understood, sir, that there were issues of blackmail?
A. As I said, knowing the Korean community as I did that word sounded very strong for a Korean to be using.
Q. That was the word that was used?
A. That's correct.
Q. It didn't ring any alarm bells in your mind?
A. Not at that stage, no.
78The preceding passages from the applicant's response and evidence raise the related question as to whether the applicant's involvement with the Korean community played or contributed to his conduct between 28 and 30 April 2011. A brief departure into that issue is necessary to finally resolve the question of the applicant's comprehension of the English note.
79The applicant's involvement with the Korean community was confined to his interaction with it through his partner. This is reflected in the following answer given by the applicant during the course of his evidence:
In answer to what I think you're trying to elaborate from that sentence; I didn't have any private interests or socialising with the Korean community as an individual. I did have contact with them through my partner but not as a private individual. I did not go and socialise with them privately, I did not as for arguments sake go and play golf with them privately. Any social after interactions that I had was with my partner and they were her friends, her socialising events and I was tagging along for example.
80However, the evidence does disclose that his involvement with the Korean community did have an impact upon his approach to the English note on 28 April.
81In the Burwood interview, the applicant stated:
At the time I didn't, um, at the time I didn't really take it that seriously. Um, as I said, having, knowing what the Korean community's like, um, with the background and the way they do things I didn't really take it very seriously.
82During the Burwood interview the following question was asked of and answered by the applicant:
Q. 84 O.K. So correct me if I'm wrong, if it wasn't a Korean that had presented this letter, if it was somebody form a different ethnic background would you have taken this sort of scenario more seriously?
A. I probably would have taken it more seriously, um as I was saying, because of the cultural thing with the way Koreans are with, you know, with respect, if you ah, interfere with somebody's pride or whatever they, they want compensation things like that, it's very common between the Japanese and Korean cultures. Um, from a western culture it's not so common, it's quite different. Um, we don't have that sort of have that type of background in our culture. That's why sometimes, um, as I mentioned, sometimes people come to us for advice within the Korean community 'cause my partner's well respected in the Korean community. Um, she comes from an affluent family background in Korea. Many of her um, direct relatives are in um, politics, bank managers and high up in the military in South Korea. Um, as I said, sometimes I try and help and try and identify whether it's jus [sic] a cultural issue or whether it's something more severe, ah, more, sorry, more, um like, up I know, like a criminal background, sorry a criminal matter, if I identify or believe it's something that is more serious straightaway which I have done in the past and that's recorded, um, officially, um., I would take action straightaway.'
83Later, in answer to question 111 in the Burwood interview, the applicant admitted, as follows:
[if] It was an Australian I wouldn't have taken the same steps
And:
I would have acted differently, yes.
84In the applicant's response, he revealed he was plainly annoyed by what he considered to be another instance of a Korean wanting assistance from his partner. That frustration, he stated, coloured his judgment. He considered the reference to 'rape' and 'blackmail' to be an "exaggeration" and possibly a result of a misinterpretation by the author of the English note. The applicant had earlier said in his response to the Commissioner's notice that the word 'blackmail' may have been more aptly described as a request for compensation and 'rape' more aptly described as the embarrassment of a Korean woman discovering a man had slept with her flatmate as well as herself. The note did not ring any alarm bells at that time.
85The applicant stated in his evidence in these proceedings that when he looked at the English note he "didn't really take much notice of it" and that the use by a Korean person of the word 'blackmail' was very strong language.
86The applicant's evidence as to his lack of comprehension of the English note on 28 April and his evidence as to the evaluation of that note in terms of his appreciation of the Korean community's approach to such matters are inherently inconsistent.
87The justification by the applicant of his conduct by reference to his understanding of Korean culture or custom (as it may be applied to the allegations in the English note) is consistent with him not only reading the English note, but comprehending the allegations within it, albeit in a way which coloured his perception of Korean customs. This explanation is more plausible than a police officer of the applicant's rank and experience showing no comprehension of or reaction whatsoever to a note reflecting allegations of serious criminal offences, unless his psychological and emotional condition was such that it rendered him incapable of such judgment - a conclusion, as I will later find, which is not available on the evidence, even if, as I will also find, the applicant was affected, to a degree, by various psychological and emotional states and stress on 28 April.
88There is no evidence as to what transpired between the applicant and Ms Green from the afternoon of 29 April (when the Korean note was discussed) and the afternoon of 30 April. In the response the applicant stated that, on 29 April, he asked Ms Green to call SHK and tell him to go to the police station.
89 In any event, some time prior to 1.35pm on 30 April there was a discussion between the applicant and Ms Green as to what communication should be had with SHK.
90There are two aspects to that evidence. The first concerns the applicant's evidence that he requested Ms Green to call SHK and tell him to go to the police station. The second concerned Ms Green's resistance to this course, insisting that they should find out why SHK had contacted the applicant. Ms Green's view prevailed and a meeting was arranged.
91In the applicant's notes the following extract appeared:
Saturday 30/4/2011
I was out with my wife and the issue about the Korean guy came up. I thought I was working day shift on Sunday 1/5/2011. I told her to call him and tell him to come to the police station on Sunday and I would arrange for the detectives to take his report. This was at 1.34 pm.
92It is important to note here that in the response the applicant maintained it was his intention to make both the COPS entry and the notes exhibits when he returned to work on Sunday 1 May 2011. The applicant wrote:
I did not make a COPS entry, nor make the two notes an exhibit but I intended to do both when I returned to work on 31/4/2012.
(I note the applicant erroneously referred to the day after 30 April 2011 as 31 April 2011 instead of 1 May 2011.)
93He also stated that "late on 29/04/12 I learnt my roster had changed". Although this might suggest that the applicant knew, the day before he asked Ms Green to telephone SHK, that he was not, in fact, working on the following Sunday, no issue was made of this in the proceedings.
94These intentions were reflected in the following extract of evidence:
We told him on the Saturday around the 1 o'clock phone call that he would have to come into the police station and I thought at that stage I had a shift on the Sunday and I was going to get him [SHK] to come in on the Sunday.
95However, the applicant ultimately gave evidence that he succumbed to the view that a meeting should occur with SHK.
96Initially, the applicant gave evidence under cross-examination, that it was SHK who insisted on the meeting:
Q. Then in para H [7h of the response] you assert that in fact it was him that insisted upon the meeting, not your partner?
A. Yeah.
97The applicant's later evidence, however, was, it was his partner who insisted upon the meeting. This evidence was as follows:
Q Yes sir I was asking about your reasoning about what you did not about what you didn't do. So you have the notes translated or at least the sense of the note translated to you?
A. Yes.
Q. And you then decide that it is appropriate to meet with SHK?
A. Well I didn't really think it was a very good idea but I sort of gave into the idea because of the proximity that we were there at the same time.
Q. What was the purpose of meeting with him?
A. Because my partner wanted to see him face to face and she wanted to know who it was that sent him to the police station.
Q. All of that could have happened over the telephone?
A. Well, he wouldn't tell her over the telephone so she wanted to press the issue with him face to face.
Q. Did he want to meet with you or did your partner want to meet with him?
A. It was more my partner and him wanted to meet.
98The applicant's evidence was that at the time he saw no harm in meeting with SHK because Ms Green would then advise SHK (in the Korean language) that SHK should attend the police station. He conceded that, with hindsight, this was unwise and stated that "at this stage I was starting to realise I should have done something sooner".
99During cross-examination, the applicant conceded that at the time he asked Ms Green to call SHK he had already formed the view that the matter should be reported to the police:
Q. At that time you formed the view that the matter should have been reported to the police?
A. Yeah.
Q. That is prior to going to the meeting on 30 April?
A. Yeah. I already gave that in evidence earlier.
100At 1.35pm, Ms Green telephoned SHK using the applicant's mobile phone.
101At 1.44pm on 30 April, SHK called the applicant's mobile phone number. During those telephone communications, the applicant and Ms Green arranged to meet with SHK later on the evening of 30 April 2011.
102The applicant's evidence was that he and his wife only agreed to meet with SHK because they "were in the area at that time, seeing someone else next door".
103The applicant and his wife dined in a Korean restaurant in Ryde at 6.30pm on Saturday 30 April 2011.
104It is appropriate to pause this chronology to mention something further regarding Ms Nam.
105Ms Nam's full name is Heejin Nam. As earlier noted, she was interviewed by Detective Senior Constable Little. It is known, from the Korean note, that Ms Nam is one of the persons connected to the allegations contained within the notes.
106A statement given by Ms Nam was annexed to the affidavit of Detective Senior Constable Little. It was admitted in that form without objection. Nevertheless, it is replete with hearsay. However, two elements of the statement may be comfortably relied upon because they are corroborated. These two elements are as follows:
(1)Ms Nam's address, at the time, was 8 Rider Boulevard in Rhodes. This is corroborated by Detective Senior Constable Little and in the COPS printout of the event reference No E 45651255 dated 1 May 2011; and
(2)A text message was sent from Ms Nam to SHK in the following terms:
I have to give the Police your address and name. You send this by text to me. The Police will come to my place today, you should be prepared.
107There was no issue raised by either party as to the fact that the text message was sent to SHK. In any event, the fact and content of the text message was corroborated by para 14 of Detective Senior Constable Little's affidavit.
108At 6.53pm, SHK called Ms Nam. The parties to this call and the time it was made were not in dispute.
109At 7.07pm, SHK called Ms Green on her mobile phone and the conversation lasted for around two minutes. SHK wanted to meet with the applicant and his wife at Strathfield.
110Ms Green's evidence was that when she spoke with SHK on 30 April 2011 she communicated to SHK words to the following effect: "Meet me at Strathfield tennis courts".
111It might be noted at this juncture that there was no evidence that the applicant or Ms Green had a prior relationship with SHK.
112At 7.28pm, Detective Senior Constable Little received a call from her supervisor regarding a sexual assault matter. She was required to attend 8 Rider Boulevard, Rhodes in relation to the reported alleged sexual assault.
113At 7.30pm, SHK arrived at the Strathfield Recreation Club ('the Club') car park.
114The Club had CCTV cameras. The events which occurred at the Club from 7.30pm, as recounted in the agreed chronology, were largely drawn from footage taken by that technology.
115At 7.35pm, SHK called Ms Green. SHK and Ms Green then met in the beer garden of the Club at 7.38pm and were later joined by the applicant at 7.41pm.
116SHK told the applicant that the women making allegations against him had called the police. The applicant's notes stated that "About 7.40 pm we meet him [SHK], he said that the women had called the police".
117At 7.43pm, SHK called Ms Nam whilst he was sitting with the applicant and Ms Green at the Club. During that telephone call SHK handed the phone to Ms Green who then had a very short conversation with Ms Nam. At 7.45pm, Ms Green ended the telephone call.
118The applicant does not dispute that this telephone call was made. The applicant's evidence was that, because he does not understand the Korean language, he was unable to understand what SHK or Ms Green said during the phone call. However, the applicant does not dispute that he learnt, at least after the call had ended, that Ms Green had spoken with one of the victims of the alleged sexual assaults referred to in the notes. I note that the applicant had agreed to meet with SHK, in circumstances where the applicant knew of the contents of the notes and the related allegations.
119By the conclusion of the phone call between SHK, Ms Green and Ms Nam, the applicant knew that Ms Nam had either already reported the sexual assault or would imminently go to police to report the allegations against SHK.
120The applicant conceded that what had "changed" after the phone call was that the women mentioned in the notes were about to go to the police station or, in fact, may have gone to the police. The applicant gave evidence in this respect, as follows:
Q. So what motivated you was the fact that the women involved were about to go to the police station or in fact may have just gone to the police?
A. What was the last part sorry?
Q. What motivated you to make the telephone call was the fact that the women either had just gone to the police station or were about to go to the police station with their complaint?
A. That was the last factor of it, I had to make sure the information was provided to whoever was attending what I knew.
(This is a reference to the telephone call made from the applicant to police on the evening of 30 April, to which I will return.)
And, a few questions later:
Q. What had you learned that you did not already know on the evening of the 30 April?
A. That the women involved in the complaint maybe going to the police station that night.
121At 7.46pm, the applicant made a call on his mobile phone which ended at 7.47pm but there is no direct evidence as to whom the call was made.
122However, the applicant gave evidence that, after Ms Green had told him she had spoken with one of the women, he called Burwood police station and spoke with Sergeant Lee Patterson.
123At p 3 of the statement of reasons, the Commissioner set out Sergeant Patterson's unchallenged version of the conversation between himself and the applicant as follows:
You [applicant]: Has there been a job broadcast for a sexual assault at Rhodes?
Paterson: I'm not sure, why?
You [applicant]: I'm having a drink in Burwood with a guy and two girls are trying to extort him out of $100,000 dollars by saying that they'll go to the Police and say that he raped them if he doesn't pay them.
124Sergeant Patterson was not called as a witness in the proceedings.
125It is not in dispute that the applicant was informed by Sergeant Patterson during that conversation that Detectives Little and Kay were responding to 'a job' regarding an alleged sexual assault at Rhodes. In the applicant's notes he stated that he asked Sergeant Patterson for Detective Senior Constable Little's mobile number so he could call her. (Sergeant Patterson, in fact, provided the applicant with the number.)
126I find that the applicant's subsequent telephone call to Detective Senior Constable Little was prompted by the information provided to him by SHK at 7.40pm, the conversation between Ms Green and Ms Nam to the effect that Ms Nam had reported, or was about to report the sexual assault, to the police and the confirmation of that eventuality by Sergeant Patterson that, at the very least, one of the allegations of a very serious crime, namely rape, had been reported to the police and that an investigation had been or was about to be commenced.
127Whilst the applicant had expressed an intention for SHK to be taken and introduced to the Detectives at Burwood police station prior to this point, what galvanised the applicant into taking the actual step of reporting the matter to a police officer on the evening of 30 April was the fact of his acquiring knowledge that a process had commenced by which the allegations would be placed in the hands of the police and investigated. The evidence is unclear as to whether the fact of Ms Green holding a discussion with one of the complainants (as distinct from the knowledge imparted to the applicant post that conversation) also prompted that course of action.
128At 7.48pm, Detective Senior Constable Little received a phone call on her personal mobile from the applicant's personal mobile.
129The applicant's opening remarks to Detective Senior Constable Little in that phone call and her response was set out in para 6 of her affidavit as follows:
Vouden 'Are you attending a sexual assault at Rhodes?'
Little 'Yes'.
Detective Senior Constable Little then deposed that:
I was quite surprised by Mr Vouden's question as I had only just received the call regarding the job. I did not know how he would have known about it already especially when he was not on duty at the time.
130Detective Senior Constable Little's affidavit deposed that the following conversation then ensued between herself and the applicant:
Vouden "I want to give you a heads up about the POI [person of interest] in the matter you're attending, [SHK]. On Thursday [SHK] attended the police station when I was at the start of my shift, around 7 pm. He gave me a letter that was in Korean and said that it had something to do with him being threatened by the victims in Rhodes to pay them $100,000 otherwise they would go to the police and say he raped them.
Little "What did you do with the letter?"
Vouden: "My partner is Korean so I took it home for her to interpret it."
Little: "Did you create a COPS event?"
Vouden: "No not yet, I was going to do that on my next shift."
131Detective Senior Constable Little then requested details of SHK's date of birth and address. Whilst remaining on the phone with Detective Senior Constable Little, the applicant asked SHK and Ms Green for that information which he obtained and relayed to Detective Senior Constable Little during the phone call.
132The conversation continued, as follows:
Little: "Where are you Terry?"
Vouden: "Im at Strathfield Bowling Club, near the tennis courts."
Little: "Are you with [SHK]?"
Vouden: "Yes he's here too. He's told me that he slept with each of the flatmates at different times and when they both found out they've decided to ask him for money. I know you gotta do what you gotta do but I'm just giving you a heads up."
The call lasted for 11 minutes.
133At around 8pm, the applicant telephoned Detective Senior Constable Little for a second time and told her he had just received more information from SHK, namely, that SHK had text messages on his phone containing the complainant's account details.
134The applicant, Ms Green and SHK left the Club carpark at 8.09pm.
135After the two phone calls between Detective Senior Constable Little and the applicant, Detective Senior Constable Little visited Duty Officer Inspector Nichols and Detective Senior Constable Kay to inform them of her exchange with the applicant. Inspector Nichols instructed Detective Senior Constables Little and Kay to attend the 'job' at Rhodes and stated that he would attend to the matters raised in the applicant's phone calls to Detective Senior Constable Little.
136Whilst Detective Senior Constables Little and Kay were making their way to 8 Rider Boulevard, Rhodes, they received a call from Burwood police station stating that the complainants had actually arrived at the station. Detective Senior Constables Little and Kay returned to the station.
137At approximately 9.00pm, after having returned to the station, Detective Senior Constable Little met with three Korean women in relation to the alleged sexual assault matter which had been the subject of the call to the station at 7.28pm. Ms Nam identified herself as one of the victims of the alleged sexual assaults by SHK. With the assistance of a Korean interpreter, Detective Senior Constable Little took, inter alia, Ms Nam's statement at Burwood police station.
138At 10.40pm, the applicant attended Burwood police station after having received a call from Inspector Nichols. The applicant handed Detective Senior Constable Little the Korean note. The applicant then returned to his car, retrieved the English note and presented it to Detective Senior Constable Little.
139SHK was subsequently arrested and charged with two counts of sexual assault. The charges against SHK were ultimately not proceeded with. On 2 May 2011, Detective Inspector Ian Pryde (who had been Acting Burwood Local Area Commander) ('Inspector Pryde') allocated the investigation as to whether the allegations against the applicant were potentially allegations of a criminal nature to Inspector Thomas. On 16 September 2011, pursuant to advice from the Legal Services Division of the Police Prosecutions Command, that investigation concluded, inter alia, that there was no prima facie case for a criminal offence to be made out against the applicant. In or about the second week of October 2011, Inspector Thomas was requested by Superintendent Rodney Smith, to continue the investigation to determine whether there were departmental issues to be dealt with.