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[2011] NSWIRComm 26
Industrial Relations Commission (NSW)
2010-12-15
Staff J, Mr J
Original judgment source is linked above.
DECISION 1Mr Matthew Walsh ("the applicant") served in the New South Wales Police Force from 26 August 2005, until he was removed by order of the Commissioner of Police ("the respondent") on 24 June 2010. 2Applying the provisions of s 181E of the Police Act 1990 ("the Police Act "), the applicant seeks an order reinstating him to the New South Wales Police Force and the payment of wages lost over the period since his removal. 3The applicant had reached the rank of Constable. In his Statement of Reasons attached to the s 181D Order, the respondent cited five reasons for the loss of confidence in the applicant. Grounds (i), (ii) and (iii) were admitted by the applicant. The respondent did not proceed with grounds (iv) and (v). The grounds admitted by the applicant were: (i) you improperly used the steroid Ropel Liquid Testosterone, through injection, on a series of occasions from March 2008 to the end of April or early May 2008; (ii) you organised with Senior Constable Nathan McCulloch in about mid May 2008 to purchase other steroids (whether or not that transaction was actually completed); (iii) you failed to report your knowledge that Senior Constable Nathan McCulloch had: (a) repeatedly and improperly used steroids in your presence; (b) improperly imported steroids from Thailand; (c) improperly obtained steroids from other persons; (d) told you that he had improperly injected other persons with steroids; (e) you failed to report your knowledge that Senior Constable Nathan McCulloch and Senior Constable Whitton had discussed the possibility of improperly obtaining steroids from Mr Wilson (and that Senior Constable Whitton was in a relationship with a person whom you knew, or strongly suspected, was involved with steroids); (f) you failed to report that you were in possession of information which might have indicated to you that a substantial number of other persons (being both police officers and civilians) may have been involved in the improper use or supply of steroids; (g) knew, or at least strongly suspected, that Mr Hottes was involved in steroid use or supply (in circumstances where you have admitted that you had at least an acquaintanceship with him); (h) knew, or at least strongly suspected, that Mr Wilson was involved with steroids; (i) had been told that Senior Constable Todd Pascoe had used steroids in the past (regardless of whether that information was true); (j) had been told that " REIDY ", an officer of the NSW Police Force, had used steroids (regardless of whether that information was true); (k) had been told that a Queensland police officer, Adam Pascoe, had used steroids (regardless of whether it was true in relation to recent use); and (l) had been told by Mr Francis that he had used steroids. 4This judgment therefore deals with whether the respondent's decision to remove the applicant from the NSW Police Force, in all the circumstances, was harsh, unjust or unreasonable. For the reasons that follow, I find that having regard to the totality of the applicant's conduct, including his evidence during the review proceedings, it represented conduct inimical to his continual service in the NSW Police Force: see Commissioner of Police v Hugh Gerard Brennan [2008] NSWIRComm 52; (2008) 172 IR 56. Relevant statutory provisions and principles 5The respondent is empowered by s 181D(1) of the Police Act to remove a police officer from the NSW Police Force. Section 181D(1) provides: 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. 6The nature of the process and review provided by Div 1C of the Police Act of a decision of the Commissioner of Police by the Industrial Relations Commission is now well settled: see Hosemans v Commissioner of Police [2004] NSWIRComm 285; (2004) 138 IR 159; Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44; Flanagan v Commissioner of Police [2008] NSWIRComm 138; (2008) 180 IR 85 at [21] - [22]; Commissioner of Police v Sewell [2008] NSWIRComm 147; (2008) 180 IR 91; Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420; Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363. In the matter of Hosemans v Commissioner of Police (at [134]), the Full Bench stated that in undertaking a review the correct approach is that the Commission is "to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted." 7Section 181F(1) requires me to consider three matters. It provides: In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. 8Section 181F(2) provides: The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. 9Section 181F(3) provides: Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 10Mr A Howell, solicitor, appeared for the applicant and Mr J Murphy of counsel, appeared for the respondent in the review proceedings. In this decision, Senior Constable Nathan McCulloch and Senior Constable Elisa McCulloch are referred to as Mr McCulloch, Mrs McCulloch or Mr and Mrs McCulloch. Senior Constable Terri Whitton is referred to as Ms Whitton.
The applicant 11The applicant is aged 27 years and is in a long term relationship. After graduating from the Goulburn Police Academy in August 2005, the applicant was assigned to Tamworth Police Station where he performed uniform, plain clothes, Operational Support Group, and surveillance duties. He has received two complimentary remarks in respect of his contribution to a particular operation in Tamworth into an incident that he investigated. 12The applicant listed the courses that he has undertaken whilst a member of the NSW Police Force. He also set out duty-related injuries that he has received which included a broken right hand suffered whilst effecting an arrest. Although the applicant said that he had suffered psychological harm as a result of attending a number of traumatic incidents, he has not submitted any claims in respect of this injury. 13In respect of the three allegations, the applicant in his response to the s 181D Notice upon which the Commissioner based his decision to terminate, stated: Allegation 1 I agree with Allegation 1. When I gave evidence at the Police Integrity Commission (hereafter PIC) I admitted that I had used steroids and I had done so to aid in my rehabilitation in relation to an injury I was suffering to my left knee. Allegation 2 I agree that during the telephone conversation between myself and Senior Constable McCulloch I agreed to purchase some steroids with him. However I later changed my mind and I did not go ahead with it because I knew it was the wrong thing to do. Allegation 3 (i) In relation to the five matters concerning Senior Constable Nathan McCulloch and the matter involving Senior Constable Whitton and the man Wilson, I accept that I failed to report the matters referred to in Allegation 3 that relate to them. (ii) I can offer no explanation for failing to report the matters other than I realised that my own conduct was unacceptable and I was fearful of reporting the conduct of McCulloch and Whitton because I knew it would draw attention to myself. (iii) In relation to the remaining matters listed in Allegation 3, I respond as follows: a. I had no direct knowledge of Mr Hottes' use of steroids, only what I was told by Senior Constable McCulloch. I admit that I did not report the information received from Senior Constable McCulloch. b. I had no direct knowledge of Mr Ben Wilson's use of steroids. I had only heard rumours that he used steroids, and I did not report those rumours. c. Senior Constable McCulloch told me that Todd and Adam Pascoe used steroids a number of years ago. I did not report this information as I received it from Senior Constable McCulloch, and their use was said to have occurred years previously. d. Senior Constable McCulloch did tell me that Anthony Reid (who is not a NSW Police Officer) had used steroids in the past. I admit that I did not report this information. e. I admit that Ben Francis told me that he used steroids. However he said it to me in the context of a joke, while doing an impression of Arnold Schwarzenegger. I said this in my evidence at the PIC (transcript page 28; 4/12/08). Evidence in the review 14The applicant gave evidence and was cross-examined. 15The applicant, in a statement filed in these proceedings, stated that on 4 December 2008, he was called to give evidence at the Police Integrity Commission ("PIC") in relation to "Operation Oklahoma", which was an inquiry into the possible steroid use, and other associated misconduct by former NSW Police Officer, Mr McCulloch. He stated that he first met Mr McCulloch at the end of 2005 when he became one of his field training officers, his "buddy officer". This was during the applicant's probationary period. Mr McCulloch was a senior officer to the applicant and took [the applicant] "under his wing". In approximately early 2006, they began socialising with each other outside of work. They worked together on many occasions. 16The applicant provided information to the PIC that he had knowledge of Mr McCulloch's use of steroids and that he himself had used steroids, provided and administered by Mr McCulloch. 17The applicant says that the evidence he gave to the PIC was truthful. After giving his evidence during the PIC proceedings, he provided a number of further statements to both the PIC and the NSW Police Force to assist both agencies in their ongoing investigations. He provided an undertaking that he would give evidence for the prosecution in any subsequent court proceeding, if required. 18In addition to his assistance to Operation Oklahoma, the applicant also provided the PIC and the NSW Police Force with information into matters unrelated to Operation Oklahoma. This related to two police officers and what the applicant considered to be improper associations. 19On 24 May 2010, Mr A Nattress, a PIC Assistant Commissioner, provided Detective Superintendent Michael Fitzgerald of the Professional Standards Command NSW Police Force ("PSC"), with a "letter of comfort". This letter confirmed that the applicant had assisted the PIC and the NSW Police Force by participating in interviews and providing statements for use in Police and PIC prosecutions if required. A copy of the letter was annexed to the statement. 20The applicant stated that his co-operation with the PIC and the NSW Police Force, was due to the fact that he was remorseful and contrite for his actions. It was an indication of his realisation that his involvement with Mr McCulloch, and steroids generally, was a foolish and serious lapse in judgment. 21The applicant stated that he wanted to assist the authorities as much as possible to make amends for his conduct and not because he was trying to avoid being prosecuted. He said he was aware that he was unable to be prosecuted in any event, but chose to assist the PIC and NSW Police to make amends for his behaviour and demonstrate that he was remorseful in respect of his conduct. He stated that he was recently contacted by Mr V Russell, a PIC Investigator, who advised that he would probably be subpoenaed to give evidence in criminal proceedings arising out of Operation Oklahoma. 22The applicant stated that in respect of his conduct, he had always been interested in weight training and personal fitness. He said he had been weight training since he was 16 years old and currently trains five times per week. Prior to his involvement with Mr McCulloch, he had a very general knowledge of steroids from his fitness studies through TAFE and from general discussions over the years with various people at his gym. 23The applicant said he first became aware of Mr McCulloch's involvement in the use of steroids shortly after he injured his knee in March 2008. He said that he spoke to Mr McCulloch about his injury and that Mr McCulloch suggested that steroids would help his knee heal quickly so he could participate in an upcoming rugby league tournament. The tournament involved teams made up of New South Wales police officers. 24The applicant stated that he stopped taking steroids after about six weeks. He acknowledged that he had discussed purchasing a second lot of steroids with Mr McCulloch. However, he said he changed his mind and did not go ahead with the purchase because he knew it was the wrong thing to do. The applicant said that he knew he should not have taken steroids but was looking for a way to quickly heal his knee injury and to avoid another major operation. He said he thought about it for some time before he actually took the steroids because he knew it was wrong. He said he had not taken steroids before and would not have considered it but for his knee injury. He said if he were reinstated he would never again consider using anabolic steroids for any reason. 25The applicant said that he had no excuse for not reporting the misconduct of Mr McCulloch and the other matters raised in Allegation 3 of the s 181D Order. He stated that he could offer no explanation other than that he realised his own conduct was unacceptable and was fearful of reporting the misconduct of others because he knew he would draw attention to himself. He said he would never again let himself be compromised and if he ever again became aware of police misconduct, he would take the appropriate action and report it. 26The applicant stated that prior to being served with the s 181D Order removing him, he had been undertaking approved secondary employment for Challenge Disabilities Services ("Challenge"). He has continued working for Challenge since his removal, where he assists persons with disabilities to obtain suitable employment. He currently earns $38,907 per annum at Challenge. This is a difference of $23,912 to what he was earning as a Constable. He said when he started working for Challenge, while still in the NSW Police Force, he did so not for the financial reward, but for the personal reward in assisting people with disabilities. 27Notwithstanding his employment with Challenge, he said that his removal from the NSW Police Force had placed an enormous strain on his financial circumstances by reducing his income substantially. He has been in a relationship for over four years and has purchased a home with his partner. They have a mortgage of $295,000. They do not have any children. Since his dismissal, servicing the mortgage has become more difficult. His general practitioner referred the applicant to a psychologist after he was diagnosed as suffering from stress. He said he consulted the psychologist once at a cost of $110, however, he could not afford to continue to have ongoing treatment and has not returned. 28The applicant said that the loss of his career as a police officer has had a devastating affect on him, particularly also due to the stigma attached to steroids. He said living with this stigma has been more difficult in a country town. 29The applicant said that he loved his job as a police officer and dearly wished to continue in this career. He said that he had made a stupid mistake and let himself become compromised. He had not come under notice for conduct or performance prior to this incident. 30In about early 2008, when Operation Oklahoma commenced, various relevant telephone intercepts were lawfully obtained as part of the Operation. The relevant telephone intercept records are detailed below. 31Intercept records show that on 10 March 2008, the applicant had a telephone conversation with Mr McCulloch. During the conversation, the applicant noted that he had torn a muscle in his leg and strained his cruciate ligament. He asked Mr McCulloch, "Does that oil fix that shit up or not?" Mr McCulloch replied that it worked "real good". The applicant gave evidence in the review proceedings that he had continued to train right through when he was injured and during the rehabilitation. He said that the steroids were "just simply in conjunction with that training; the training wasn't anything extra." When asked by Mr Murphy in cross-examination, "But you expected that as a result of taking steroids you would put on greater muscle mass than just weight training without the use of steroids?", the applicant replied, "Yes, Nathan told me it would help put on weight." 32A further telephone intercept showed that on 11 March 2008, the applicant had a further conversation with Mr McCulloch. During this telephone conversation, the applicant is recorded asking, "how much oil have you got left?" and whether it was "f...in' good for cleaning up injuries". There was further discussion about the effect of the substance, during which the applicant asked whether it was going to make him "pass out and shit when I have it, like Reidy?", a reference to an acquaintance of Mr McCulloch. Mr McCulloch then invited the applicant to "come and get" some of the "stuff". The applicant responded that he "couldn't jab myself". Mr McCulloch said that the applicant was a "sook", "worse than Pascoe" and that he had "had to do it to Pascoe", a reference to Senior Constable Todd Pascoe. Mr McCulloch then said that "Pascoe" had only had "water based stuff". The applicant is recorded as asking "so this shit's heavy shit isn't it?", to which Mr McCulloch responded that it was "stronger". 33Intercept records show that at 1.04am on 21 March 2008, an SMS text message was exchanged between the applicant and Mr McCulloch in which the applicant asked whether he was "right to come over tomorrow for my medicine". In cross-examination, the applicant confirmed that "medicine" referred to his next steroid injection. At 6.14pm on 21 March 2008, the applicant had a telephone conversation with Mr McCulloch in which the applicant asked when he needed his "next f...in' dose of medicine", to which Mr McCulloch replied "Yesterday". The applicant then made a comment about thinking that he needed it "every f...in' four days or something", with Mr McCulloch stating that it should occur every three days. 34Intercept records show that on 2 April 2008, the applicant had a further telephone discussion with Mr McCulloch, during which there was apparently some discussion about the alleged use of steroids by other officers involved in a police rugby game. Earlier in the call, the applicant discussed a practical "joke" in which some other unnamed person involved in a police football game pretended that the applicant was required to participate in a random urine check for steroids. He said his "heart was pumpin'" and he "was thinking, f...k". 35Intercept records show that on 23 April 2008, the applicant and Mr McCulloch had a further telephone conversation in which Mr McCulloch referred to having "HGH". He then said it was "all kosher" as "Customs even opened" the package. As the conversation continued, the applicant and Mr McCulloch referred to taking two of the tablets a day, "like a supplement". Mr McCulloch then noted that on the receipt "they sent them in as perfume". During cross-examination, when asked by Mr Murphy whether the term "perfume" referred to the steroids sourced through the Internet, the applicant answered, "I'm not sure. We ended up using the term 'perfume'; it covered steroids and it also covered legal supplements." 36Intercept records show that on 3 May 2008, the applicant and Mr McCulloch had a further conversation during which Mr McCulloch referred to having "got onto some gear" called "Supertest" which is "four different types in one". The applicant then asked if "Jase" was getting the "Deca", and Mr McCulloch said that Jase was going to bring it around and show him the bottle. The applicant then asked about the price for "Deca". Mr McCulloch stated that the price was a $110 for ten millilitres. Mr McCulloch suggested that the applicant should get some, however the applicant declined because he did not want to "mix all the c...s up". 37Intercept records show another conversation between the applicant and Mr McCulloch on 13 May 2008. The applicant referred to a person as "Ling Ling" (now said by the applicant to be a reference to Senior Constable Troy Rowland) as a "loose lipped c..t" as he had been "skiting off about the f...ing perfume". During cross-examination, the applicant said the term "perfume" used in that conversation was in reference to a herbal supplement. The applicant said he might "get some of them c..ts too". The applicant then said that an unnamed friend had "got away with it" for a year, at which point Mr McCulloch suggested that "it's pretty, pretty pricey isn't it, it's like three grand or something". Mr McCulloch said that he might have a "squiz into it", at which point the applicant asked whether "you gotta order them over the net haven't ya?" The conversation then continued as follows: App: "You ordered the perfume over the net didn't ya?" NM: "Yeah." App: "I haven't got the internet, I'll, I'll just give you the f...in' money." NM: "Yeah if you want some, just f...in' let me know." App: "Yeah. Yeah, how much does it cost, two hundred isn't it?" NM: "Yeah." App: "I'll um, I'll give you the paperwork so you can order the perfume." NM: - Laughs - "Righto. Actually I've got um, I've got a, got a little f...in' jar of it here if you, like one unopened jar of it here, if you want to try it?" 38Mr McCulloch then invited the applicant to "drop up whenever" to get the substance under discussion. 39Intercept records show that at 6.19pm on 15 May 2008, Mr McCulloch had a telephone conversation with Mr Ben Wilson (the then partner of Ms Terri Whitton). Mr McCulloch said that he had been talking to "Sharrell" (apparently a reference to Ms Whitton), and said that he "wanted to get um, a couple of prices on things". At 6.55pm, the applicant and Mr McCulloch had a further conversation. Mr McCulloch said that he had obtained "that bot-bot". The applicant appeared to ask "[b]ot-bot?" When told "Jay's bot-bot", the applicant replied "[o]h right...that perfume we were talking about", and asked "what's the damage on the paperwork" to which Mr McCulloch said he did not know. Mr McCulloch then said he was also going to order some of the same substance from a different source which would be $440 for four. 40Intercept records show that at 1.27am on 17 May 2008, the applicant and Mr McCulloch had a further conversation. The applicant stated that he "got some more Intel" and "[a]pparently the f...in' phones at the station are being f..n' tapped by STIB". The applicant then stated, "Yeah so um, as far as like with, with Whitton making that f...in' phone call the other day, that's not f...in' very good." 41Intercept records show that on 22 July 2008, Mr McCulloch apparently had a telephone conversation with his wife, Mrs McCulloch. It appears that the applicant was present with Mrs McCulloch. The following was recorded: EM: "... Walshie's bringing me stuff out like," NM: "Yeah (ui) f...in' (ui)." EM: "[D]reaming."
Character evidence 59The applicant relied on a character reference from Detective Sergeant John Sommers. Detective Sergeant Sommers outlined that for a period of six weeks commencing in May 2008 he acted as the applicant's supervisor in the Tamworth Target Action Group. Before Detective Sergeant Sommers directly supervised the applicant, he had the opportunity to work with the applicant from time to time. He stated that in the early stages of the applicant's career, he formed the opinion that the applicant was "a hard working officer who from what I observed acted in a professional and ethical manner." After the applicant was appointed to a vacant position in the Tamworth Target Action Group, Detective Sergeant Sommers stated the applicant "continued to demonstrate a level of integrity, trust and moral standings that I could not falter." He stated that the applicant's actions were out of character and that he believed the applicant had learnt from his mistakes. He went on to state, "Although I do not condone Matthew for his actions, I still maintain a high level of trust in him and believe that if he was given the opportunity to remain within the NSW Police Force he could prove to himself and that of his peers to be a worthy member and I would not hesitate in having Matthew as a member of my team." 60Detective Sergeant Sommers was required for cross-examination and gave the following evidence: Q: If you go back, in paragraph 4 of your statement, talking about your observation of Matthew, you say, "He formerly appeared he was a hard-working officer" and from what you observed, "acted in a professional and ethical manner". See that? A: Yes. Q: Acting in a professional and ethical manner is entirely inconsistent with a police officer using steroids illegally, isn't it? A: Yes. Q: What would you have done, back in May of 2008, after you just started with your group, if you have become aware that he was part of a plan, together with McCulloch, to obtain steroids for people such as Hottes and Wilson? A: I would have been speaking to the crime manager in command, bringing it to their attention. Q: Would you be happy about him continuing as part of the Target Action Group, knowing that that's what was going on? A: No, not if he went through the process that he did. Because, as I said, that position he won through the process that he went through. If I had known about it then, my view would have been altered about his integrity. Q: Because when you nominated in support of him for one of the permanent positions in your group, you had absolutely no idea this was going on at that time? A: That's correct.
Consideration 61In light of the voluminous written submissions filed on behalf of the applicant, it may assist if I commence my consideration by stating what this case is not about. It is not about whether the applicant engaged in serious misconduct. This has been admitted. In such circumstances, therefore, attacks on procedural matters seem misplaced. Nevertheless, as they have been advanced, I will address them. 62It seems to me what this case is about is whether the decision by the respondent to terminate the services of the applicant, taking into account the applicable principles for a review was harsh. In my view, this question, as I have already stated, should be answered in the negative. 63The applicant gave evidence and was cross-examined. Regrettably, I formed the view that the evidence of the applicant should be assessed with caution. The reasons for arriving at this conclusion, which I will elaborate on during the course of these reasons, were that on occasions the evidence of the applicant was evasive. On other occasions, I found it to be unconvincing and straining credibility. Furthermore, the evidence that he gave to the PIC and the admissions made during that Inquiry, must be assessed against the background that the applicant was aware that Mr McCulloch's house was searched on 29 July 2008 and a quantity of steroids seized. In addition, the applicant also engaged in a number of telephone calls with Mr McCulloch and other police officers before and after they gave evidence to the PIC, and before he was called to give evidence at the PIC. 64The case advanced by Mr Howell was that the order removing the applicant from the NSW Police Force was harsh and, in all the circumstances, unreasonable. The contention that the applicant's removal was unreasonable was based on, what was submitted to be a series of flaws in the decision-making process disclosed in the evidence. They were: (a) that the Commissioner failed to consider the applicant's response; (b) failed to take into account relevant and important considerations, namely, Div 3 of Pt 5 of the Police Regulations entitled "consequences of breach of the Code of Behaviour", in particular, cl 83 "Consequences of Police Officers using prohibited drugs or steroids" and that the notice process was not consistent with the Act. 65In respect of the contention that the removal was harsh, it was acknowledged by Mr Howell that the principles were well settled and were recently summarised by Walton J in Lawrance at [8] - [26]. 66Mr Howell submitted that the only matters that the applicant would add to Walton J's summation was that the Commission, when assessing the gravity of the misconduct and the proportionality (see Lawrance at [24]), or severity (see Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at 233 as embraced by the Full Bench in Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212) of the response to it, must also be mindful that: (i) the loss of confidence Removal power is an "extraordinary power (see Bigg v Commissioner of Police (No.2) as adopted in Van Huisstede at [199] - [200]) at the apex of the disciplinary hierarchy (see Van Huisstede at [199] - [200]) contemplated by Part 9 of the Act (in light of Division 3 of Part 5 of the Regulations, particularly in cases involving a breach of the Code of Behaviour); (ii) is not intended to enable the Commissioner to punish an officer for misconduct (see Commissioner of Police v Brennan (2008) 172 IR 56 at [61]); and (iii) is to facilitate the removal of a police officer where the Commissioner forms the view he has lost confidence in the officers " suitability to continue as a police officer " (see s 181D(1)) having regard to certain identified grounds (competence, integrity, performance or conduct (see s 181D(1)), so as to protect the public interest. 67Mr Howell proceeded to analyse the acknowledged serious misconduct of the applicant in respect of his explanation for failing to report the misconduct of others; the gravity of the misconduct in using anabolic steroids, and the learning from other disciplinary jurisdictions in relation to drug use. Each of these contentions will be dealt with below. 68Mr Howell then proceeded to address the proper approach to assessing the "public interest". He noted that such approach was now well settled in s 181E review proceedings: see Lawrance at [15] - [16] and the cases cited therein. Mr Howell acknowledged that in the present case there were "no doubt competing public interests that need to be balanced and not all act against the applicant." He referred to Walton J's observations in Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57 at [219], where his Honour observed: In this case, there are many factors, which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable. 69The applicant submitted that the matters that weigh in favour of his interests when assessing whether the removal was unreasonable or harsh include: (i) the loss of a promising and stable career in the NSW Police Force; (ii) the avoidance of the significant reduction in income and consequential financial hardship associated with his Removal; (iii) the removal of the smear associated with Removal from the Police Force on loss of confidence grounds, and the damage to his reputation. 70In my view, it is clear that the respondent regarded the applicant's admitted conduct as being extremely serious. On any objective view, the applicant had substantially misconducted himself. This misconduct not only involved the improper use of anabolic steroids, but also included making arrangements to purchase further steroids (even if the applicant did not complete such a transaction). 71There is also a significant failure, over a lengthy period of time, to report his knowledge of seriously improper conduct by Mr McCulloch and the involvement in, and use of, steroids by others, about which the applicant knew, or strongly suspected. In particular, the applicant admitted that he did not report his knowledge of the unlawful importation, acquisition and use of steroids by Mr McCulloch and the involvement of Ms Whitton and Mr Wilson, with steroids. In my view, there can therefore be no criticism of the respondent's conclusion that the applicant had breached s 7 of the Police Act , Reg 20 of the Police Regulation 2000 (as enforced at the relevant time) and the NSW Police Force Code of Conduct and Ethics. 72Section 7 of the Police Act provides: 7 Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals, (d) seeks to improve the quality of life by community involvement in policing, (e) strives for citizen and police personal satisfaction, (f) capitalises on the wealth of human resources, (g) makes efficient and economical use of public resources, and (h) ensures that authority is exercised responsibly. 73Regulation 20 of the Police Regulation provided: 20 Police officer to report misconduct (1) If: (a) an allegation is made to a police officer that another police officer has engaged in conduct which, in the opinion of the officer to whom the allegation is made, constitutes a criminal offence or other misconduct, or (b) a police officer sincerely believes that another police officer has engaged in any conduct of that kind, the officer is required to report the conduct or alleged conduct by the other officer to a senior police officer (being a police officer who is more senior in rank than the officer making the report). (2) This clause does not apply to conduct or alleged conduct: (a) that has been made the subject of a complaint under Part 8A of the Act, or (b) that has been the subject of evidence or other material given, or submissions made, in the course of criminal proceedings, or (c) that has already been reported under this clause to a senior police officer. (3) A senior police officer to whom conduct (or alleged conduct) by a police officer is reported is required to report it promptly to the Commissioner or a police officer nominated by the Commissioner if the senior police officer believes that the conduct (or alleged conduct): (a) constitutes (or would constitute) a criminal offence, or (b) could provide sufficient grounds: (i) for taking section 80 dismissal action, or (ii) for making a reviewable section 173 order or a section 181D order. 74In my view, the applicant's admitted failures to report his knowledge of misconduct and illegal activity, were ongoing and raised serious integrity issues. 75Police officers must act in accordance with the clear obligation to treat "integrity above all" by reporting the misconduct of their fellow officers. 76On the admissions alone made by the applicant in his response and his evidence to the PIC, in my view, it is clear that the respondent was entitled to conclude that the applicant had full knowledge of the use and importation of steroids by Mr McCulloch. It is also clear, as I will demonstrate, that he had been told, and seems to have believed as true, information that other persons, both police officers and members of the public, were involved in the illegal use or supply of steroids. 77The respondent noted the applicant's assertion that he had used steroids to aid his rehabilitation from a knee injury. However, the respondent did not accept this as a reasonable excuse. The applicant's evidence is that even though he was not specifically aware at the time that NSW Police had a policy that specifically dealt with the use of steroids until June 2008, he knew it was wrong for police officers to take steroids and in taking steroids he "might also be breaking the law". 78In assessing whether to remove the applicant, the respondent further noted that the applicant said that he had changed his mind after 15 May 2008 in respect of the use of steroids and did not ultimately go ahead with the purchase of further steroids from Mr McCulloch because he knew it was wrong. 79The respondent, correctly in my view, observed that the applicant's admitted conduct showed that his involvement with steroids was not a "one off". The applicant admitted to discussing the purchase of further steroids. 80The respondent found that the applicant's deliberate disregard for the law and for the policy of the NSW Police Force in respect of steroids, was unacceptable. This finding was clearly open to the respondent and for the reasons which follow, was neither unreasonable, unjust, or harsh. 81As was observed by the Full Bench in Commissioner of Police v Hugh Gerrard Brennan at [104] "... having regard to the totality of Mr Brennan's conduct, it represented conduct inimical to continued service with the Police Force. ...". I have reached a similar conclusion in respect of the applicant's conduct. 82When an analysis of the totality of the conduct in this case is considered, it leads to, in my view, the conclusion that the applicant's removal was justified. 83The respondent is required to assess an officer's professional suitability, as at the date he is considering making an order. The respondent's obligations in this regard are well settled. In Hosemans v NSW Police (No 3) [2005] NSWIRComm 161, Boland J at [143] observed: ... [T]he obligation on the Commissioner is to consider all the most recent and accurate information and materials available both in favour of and against the officer and he must "obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. ... 84His Honour's observations were affirmed on appeal in Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263, and in Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 ; (2010) 192 IR 363.
Whether removal was "unreasonable" 85It was submitted by Mr Howell that the respondent in his Statement of Reasons, failed to properly consider the applicant's written Response. Mr Howell submitted that the respondent failed to pay regard to the applicant's rehabilitation, his contrition and remorse, character evidence provided by senior officers of the NSW Police Force and the fact that the applicant reported his misconduct, and that of others, to the PIC and provided assistance to the PIC and NSW Police Force thereafter. Mr Howell submitted that the respondent did not carry out the evaluative exercise required of him by s 181D(3)(c) of the Police Act. In support of this submission, Mr Howell referred to the Statement of Reasons, in particular the "glib" (Mr Howell using the expression adopted by Walton J in Lawrance ) discussion of the applicant's Response and the "glaring factual error" that "Reidy" was a member of the NSW Police Force. The use of the expression "glib" in Lawrance can be found at [281]: ...glib assurance by the Commissioner that he had 'carefully' considered all materials or that he had "taken into consideration all of the circumstances" or had "taken into account the applicant's written submission", without more, in these circumstances, does not permit a conclusion that the Commissioner had properly considered or taken into account this aspect of the applicant's response. This is particularly so where the Reasons do not descend to any discussion of the applicant's record of service or contribution to the Police Force (other than a reference to the applicant's disregard for prior warnings or counselling). 86In my view, there was no ambiguity in the grounds relied upon such that the applicant was unable to understand the grounds and respond. 87I am not persuaded that the respondent did not properly consider the applicant's Response. The term "glib", as used by the Vice President in Lawrance, cannot be made out here and is misconceived. In the present case, the decision to remove the applicant was based upon the admitted misconduct of the applicant. It follows that in these circumstances, there was no obligation on the respondent to dissect the applicant's Response into its various components. Furthermore, in light of the applicant's Response, the respondent did not pursue two additional grounds that he was considering relying upon in his s 181D(3)(a) Notice. In respect of "Reidy", the applicant informed the Commissioner in his Response that he was not a member of the NSW Police Force, a factor, no doubt, taken into account by the respondent. 88As was observed by the Full Bench in Commissioner of Police v Alyson Reid-Frost at [21]: ... [T]he grounds contained in a notice issued under s 181D(3)(a) must set out the essential bases for the Commissioner not having confidence in the officer's suitability in such a manner that they are sufficiently comprehensible to the police officer on whom they are served as to enable that person to understand those grounds and respond to them in a written submission as contemplated by s 181D(3)(b). 89The purpose of such a Notice was stated by the Full Bench in Commissioner of Police v Alyson Reid-Frost to be, at [22]: The statutory purpose with respect to the giving of notice is to ensure that the police officer has clear information as to why the Commissioner is considering the removal of the officer for lack of confidence, so that the officer may be given a reasonable opportunity to respond by a written submission (pursuant to s 181D3(b)) setting out, inter alia, any defence, explanation or excuse. The procedure is, therefore, intended to facilitate a fair hearing. The statutory requirement for the Commissioner to provide 'grounds' in s 181D(3)(a) merely underlines the gravity of the matters under consideration and the need to specify the allegations made with precision and with sufficient particularity. 90In my view, the Notice was consistent with these requirements. 91Mr Howell submitted that the respondent failed to take into account Div 3 of Pt 5 of the Police Regulation 2008 ("Police Regulation"), in particular cl 83 "Consequences for police officers using prohibited drugs or steroids". Clause 83 is as follows: 83 Consequences for police officers using prohibited drugs or steroids (1) This clause applies if: (a) the Commissioner considers, as a result of a test (other than an initial screening test) conducted under section 211A or 211AA of the Act or this Part, that a police officer has breached the code of behaviour by using a prohibited drug or steroid, and (b) the police officer has not breached the code of behaviour in that manner in the 5 years preceding the breach. (2) In such a case, the Commissioner may ask the police officer to choose whether to undergo counselling and rehabilitation or whether to face the possibility that a section 173 order may be made with respect to the officer. (3) If the police officer chooses to undergo counselling and rehabilitation, the Commissioner must direct the police officer: (a) to attend any interview organised with the officer's commander or manager, and (b) to attend an interview with a NSW Police Force drug and alcohol counsellor for assessment, and (c) to participate in any rehabilitation program recommended by that counsellor. (4) If a police officer: (a) chooses not to undergo counselling or rehabilitation, or (b) without reasonable excuse, fails to attend an interview or counselling session after choosing to do so, or (c) without reasonable excuse, fails to participate in a rehabilitation program after choosing to do so, the Commissioner may make a section 173 order with respect to the officer. (5) The Commissioner is not required to ask the police officer to choose whether to undergo counselling if the Commissioner, having regard to all the circumstances, considers that it would be more appropriate to make a section 173 order or section 181D order with respect to the officer. 92Mr Howell contended that the Police Regulation records a balancing exercise struck by the legislature to the effect that, pursuant to cl 83 of the Police Regulation, "if an officer is caught red handed or on a one off basis", having engaged in misconduct that was a breach of the Code of Behaviour, the consequences are either counselling or a s 173 order. Mr Howell went further to submit, even if an officer breaches the obligation more than once within a five year period, the Police Regulation gave the respondent a greater discretion than automatically contemplating removal. 93In my view, cl 83 of the Police Regulation does not apply to the applicant's situation. The matters raised by the applicant, as Mr Murphy submitted, "travel far beyond the use of steroids as a result of a urine test." In any event, it does not fetter the respondent's discretion to take disciplinary action in an appropriate case. 94Clause 83 of the Police Regulation applies to situations where prohibited drug or steroid use by a police officer has been detected following a urine test of on-duty police officers conducted pursuant to s 211A and s 211AA of the Police Act. Clause 83 does not apply to the circumstances in this case. It has no scope when serious integrity issues arise. 95Mr Howell submitted that the s 181D Notice was inconsistent with the Police Act in that it did not contain reference to the consideration of the finding that the applicant's involvement with the steroids was a "one-off". Mr Howell submitted that given the proximity of the applicant's steroid use between March and early May 2008, the proper conclusion was that the applicant's conduct amounts to a singular "one-off" breach. It was also submitted that the respondent failed to outline the grounds upon which the respondent was considering making the s 181D Order. In addition, Mr Howell submitted that the applicant did not have the opportunity to understand that this finding (that his use of steroids was not a "one-off"), was being considered. 96It is an abuse of the meaning of the phrase "one-off" to describe, as Mr Howell did, the conduct of the applicant. The applicant admitted being injected on approximately 10 occasions by Mr McCulloch with a steroid over a period of 6 weeks. Any submission that the misconduct should be characterised as a "one-off" is misconceived. The contention that the conduct was a "one off" aberrant act does not sit well with the premeditation involved and the applicant's silence until he was aware that his misconduct had been exposed. 97In addition, the s181D Notice clearly put the applicant on notice that it was alleged that he organised with Mr McCulloch to go halves in the future purchase of steroids. Although he did not proceed with this transaction, it is further evidence that his conduct cannot be described as "one-off". The basis of his admission in this respect was inevitable in the context of the telephone intercept of 15 May 2008. The respondent quite properly then concluded that the applicant's telephone call to Mr McCulloch showed that his involvement with steroids was not a "one-off". 98In my view, and I find, the s 181D Notice was consistent with the Police Act . I am not persuaded that the alleged procedural deficiencies relied upon by Mr Howell are sufficient to conclude that the removal was unreasonable.
Character evidence 99Turning to the character evidence in support of the applicant provided by senior officers, there was, in my view, little probative value in the references, especially when Detective Sergeant Sommers' evidence in cross-examination is considered. Detective Sergeant Sommers supervised the applicant for a period of a little over six weeks, although he had had the opportunity to work with him from time to time since 2005. Although he gave oral evidence supporting the applicant's return to the role as a police officer, he was only prepared to have him on his team "with systems in place." 100There is no comparison at all with the type of material put before the Vice President in Lawrance. In that case, there were 12 character references that the applicant in that matter provided from senior or supervising officers in the NSW Police Force including a Chief Inspector and Detective Inspectors. 101As was observed by the Full Bench in Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 at [73]: ... [W]hether 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. 102In applying these principles to this matter, in my view, the character evidence cannot be a material consideration when the seriousness of the misconduct is taken into account.
Whether removal "harsh" 103Mr Howell submitted that the Commission, when assessing the gravity of the misconduct and the proportionality or severity of the response to it, as reflected in the Statement of Reasons, must be mindful that the loss of confidence removal power is an "extraordinary power" at the apex of the discipline hierarchy contemplated by Part 9 of the Police Act . It is not intended to enable the respondent to punish an officer for misconduct and is to facilitate the removal of a police officer where the respondent forms the view he has lost confidence in the officer's "suitability to continue as a police officer" having regard to certain identified grounds so as to protect the public interest.
Poisons and Therapeutic Goods Act 1966 104The use of steroids generally is regulated by the Poisons and Therapeutic Goods Act 1966. Section 16 provides that "a person shall not have in his or her possession or attempt to obtain possession of a prescribed restricted substance" unless certain circumstances are met. In summary, these circumstances restrict the possession of anabolic steroids to medical practitioners, those who have written authorisation by the Director-General of the Department of Health, or those licensed or otherwise authorised by the Poisons and Therapeutic Goods Act . The Poisons and Therapeutic Goods Regulation 2002 , which was in force as at July 2008, provided that the substances specified in Appendix D are "prescribed restricted substances". Appendix D listed substances including "Nandrolone", "Oxymetholone", "Testosterone" and "Anabolic and androgenic steroidal agents as such substances."
NSW Police Force Drug and Alcohol Policy 105The NSW Police Force Drug and Alcohol Policy 2007 was annexed to an affidavit of Sergeant Shayne Lees, Education Officer for the Oxley Local Area Command. It included the Policy and Training Package. 106In the NSW Police Force, the following is relevant in respect of the use of anabolic steroids. 107The NSW Police Force Drug and Alcohol Policy 2007 relevantly states: New South Wales Police Force employees and contractors are not permitted to use anabolic steroids unless prescribed by a suitably qualified medical practitioner. ... There is no place for any person in the NSW Police Force who unlawfully uses, sells or supplies anabolic steroids. 108In the Commissioner's Foreword, the Commissioner personally states: All employees of the NSW Police Force are required to comply with the policy's general principles of total abstinence from using illicit drugs. The use of anabolic steroids is also prohibited unless lawfully prescribed and monitored by appropriate medical practitioners. My message to all staff is very simple. If you take illicit drugs, if you sell illicit drugs, if you abuse prescription drugs, there is no place for you in the NSW Police Force. On page 8 of the Drug and Alcohol Policy 2007: Steroids NSW Police Force employees and contractors are not permitted to use anabolic steroids unless prescribed by a suitably qualified medical practitioner. If an employee or contractor has been prescribed anabolic steroids, they are required to produce written documentation certified by a suitably qualified medical practitioner if requested by their Commander, Branch Manager or an Authorised Officer. There is no place for any person within the NSW Police Force who unlawfully uses, sells or supplies anabolic steroids. Only targeted drug testing may examine for anabolic steroids. At page 18 of the Drug and Alcohol Policy 2007: Anabolic steroids ... Any police officer who tests positive to a presence of anabolic steroids in their urine from a targeted drug test, and cannot provide documentary evidence of that steroid being lawfully prescribed by a suitably qualified medical practitioner, will be subject to the same disciplinary provisions as set out in the positive prohibited drug section of this policy. The relevant part of the Drug and Alcohol Policy 2007 is also found on page 18 of the document and provides: "Prohibited drugs Any police officer who tests positive to the presence of a prohibited drug is liable to dismissal. The Commissioner can apply the provisions of a s.181D order with respect to that officer unless that officer has had that positive drug test declared as accidental exposure by a Commander or Branch Manager as set out in the provisions of that part in this policy. If a police officer is permitted to remain in police employment following a positive drug test, that officer will be subject to unscheduled testing for the following five years. The officer will also be monitored by an approved counsellor and will be expected to comply with any rehabilitation program developed for them." Page 29 of the Drug and Alcohol Policy, where under the heading "Key Messages" is states: "There is no place for any NSW Police Force employee or contractor who uses illegal drugs, sells illegal drugs or abuses prescription drugs". 109The NSW Police Force Drug and Alcohol Policy 2007 was rolled out in July 2007 and was the subject of a training package that was developed in December 2007. It should be noted that the tightening of the approach adopted by the Commissioner by that policy is also reflected by the removal of the "Amnesty" that was previously provided for by the 2001 Drug and Alcohol Policy. As is evident from the training package that was delivered to police officers: The policy enforces a zero tolerance approach to drug use by police employees. The document does not contain a harm minimisation focus within the context of the application of the Policy. 110The "Key Points" in the December 2007 training package describe: Zero tolerance policy on prohibited drug and non prescribed steroid use by all NSWPF employees. 111The Powerpoint slide used as part of the delivery of the training package for the Drug and Alcohol Policy 2007 entitled "What's New?" (apparently by reference to the "revised policy introduced 1 July 2007" described in the previous slide), provides:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2011
Walsh
Commissioner of Police
(2010) 192 IR 363
(2006) 157 IR 44
(2008) 172 IR 56
(2008) 180 IR 91
(2008) 180 IR 85
(2004) 138 IR 159
(2005) 150 IR 263
(2007) 169 IR 301
(2002) 112 IR 212
(2009) 181 IR 420
(2000) 98 IR 57