Walsh v Commissioner of Police; Cook v Commissioner of Police

Walsh v Commissioner of Police; Cook v Commissioner of Police - [2023] NSWIRComm 1090 - NSWIRComm 2022 case summary — Zoe

[3]

The allegations against each applicant

The Respondent's Written Submissions summarised the three allegations against SC Walsh as: "3.2 In regard to SC Walsh, the Respondent alleges (and has concluded) that on 31 October 2017 SC Walsh: (a) issued, or was instrumental in issuing, Noah Sims a [Noise Abatement Direction] on the false pretence that he heard offensive drumming coming from Plantation Avenue. This conduct was contrary to: (i) Section 7 of the Police Act; and (ii) Points 1, 4 and 9 of the Code of Conduct and Ethics. (SC Walsh - Allegation 1) (b) entered false information in COPS Event E65723413 when he wrote 'loud drums could be heard by both attending Police officers over the sound of the Police vehicle' and 'the sound of a bass drum could be clearly heard.' This conduct was contrary to: (i) Section 7 of the Police Act; (ii) Points 1, 6 and 9 of the Code of Conduct and Ethics; (SC Walsh - Allegation 2) (c) failed to report the misconduct of SC Cook, namely her failure to avoid a conflict of interest on 31 October 2017 when she responded to the noise complaint by her father and intervened in his conversation with Noah Sims. This conduct was contrary to: (i) Sections 7 and 211F of the Police Act; (ii) Points 1, 3, 7, 9 and 10 of the Code of Conduct and Ethics; (iii) The Conflicts of Interest Statement; (iv) The Procedures for Managing Conflicts of Interest (SC Walsh - Allegation 3)" [Emphasis in original]
The Respondent's Written Submissions summarised the five allegations against SC Cook as: "3.1 In regard to SC Cook, the Respondent alleges (and has concluded) that: (a) by accessing the station summary of COPS Event E65429723, SC Cook was accessing COPS for personal reasons and in doing this, failed to avoid or report a conflict of interest. This conduct was contrary to: (i) Section 7 of the Police Act; (ii) The Computerised Operating Policing Systems (COPS) User Guide (COPS User Guide); (iii) The NSW Police Force Conflicts of Interest Policy Statement (Conflicts of Interest Statement); (iv)Clause 9 of the NSW Police Force Procedures for Managing Conflicts of Interest (Procedures for Managing Conflicts of Interest); and (v) Points 1, 3, 8, 7, 9 of the NSW Police Force Code of Conduct and Ethics (Code of Conduct and Ethics). (SC Cook - Allegation 1) (b) by attending Noah Sims' home on 31 October 2017 in answer to the noise complaint made by her father, SC Cook failed to avoid a conflict of interest and that she also failed to report that conflict of interest. This conduct was contrary to: (i) Section 7 of the Police Act; (ii) The Conflicts of Interest Statement; (iii) The Procedures for Managing Conflict of Interest; and (iv) Points 1, 3, 7 and 9 of the Code of Conduct and Ethics. (SC Cook - Allegation 2) (c) that SC Cook was untruthful on two occasions as follows: (i) Firstly, when SC Cook told Noah Sims on 31 October 2017 that she heard drumming on her arrival at his house and that police had received multiple complaints about Noah Sims' drumming from his neighbours; and (ii) Secondly, in SC Cook's interview on 14 October 2019 and her reply to the investigators' reports dated 30 August 2022, when she said that although she intended to let SC Walsh have sole carriage of the job, SC Cook had no option but to step in because SC Walsh was losing control of the situation and she was concerned Noah Sims' behaviour would escalate. This conduct was contrary to: (iii) Section 7 of the Police Act; and (iv) Point 1 of the Code of Conduct and Ethics. (SC Cook - Allegation 3) (d) that SC Cook was instrumental in issuing Noah Sims a 28-day Noise Abatement Direction (NAD) on the false pretence that she heard offensive drumming coming from his house. This conduct was contrary to: (i) Section 7 of the Police Act; (ii) Points 1, 4 and 9 of the Code of Conduct and Ethics. (SC Cook - Allegation 4) (e) that SC Cook sent a disrespectful and unprofessional email on 26 August 2019 to Rochelle Kentish and Louise Carter. This conduct was contrary to: (i) Section 7 of the Police Act; (ii) Points 1 and 4 of the Code of Conduct and Ethics; (iii) The NSW Police Force Respectful Workplace Behaviours Policy Statement; and (iv) The NSW Police Force Respectful Workplace Behaviours Guidelines. (SC Cook - Allegation 5)" [Emphasis in original]

[4]

Background to the orders

Aside from SC Cook - Allegation 1 and SC Cook - Allegation 5, the factual background to the allegations rises from the applicants' attendance at a domestic residence in response to a noise complaint. The Respondent's Written Submissions, in Section 2, set out the facts that are not in dispute between the parties. For convenience this background has been used: "2.2 On 4 October 2017, Michael Cook, being the father of SC Cook, contacted police to report that he had been assaulted by his neighbour Mr Sims. The alleged assault was said to have occurred when Mr Cook confronted Mr Sims about his drumming. Mr Sims denied he touched Mr Cook. Mr Sims was charged with common assault. 2.3 On 5 October 2017 at 7:14am, SC Cook accessed the event summary for COPS Event E65429723 through the station summary. COPS Event E65429723 related to the alleged assault of Mr Cook by Mr Sims. SC Cook did not access any other events or information on COPS until 9:55 am that same day. 2.4 On 9 October 2017, SC Cook emailed Senior Constable Scott McLean and Constable Renae Power stating that Mr Cook wished for the common assault charges against Mr Sims to be withdrawn. 2.5 On 30 October 2017, the common assault charges against Mr Sims were withdrawn. 2.6 On 31 October 2017 at 11:01am, Mr Cook contacted police to complain about the noise of Mr Sims' drumming. 2.7 At 11:09am, VKG broadcasted Mr Cook's noise complaint, which was acknowledged by Senior Constable Lindsay Mamone, who was working with Senior Constable McLean at the time. 2.8 At 11:48am, SC McLean indicated to KG that they were busy with a domestic violence incident. 2.9 At approximately 11:50am, the following exchange took place over VKG: SC Cook: Radio we are back on from the station now, so any jobs that 15 had that are outstanding we'll [audio cut off]. SC McLean: Yeah 15, they can have all our other jobs. Um but what do you want to do about the job at Plantation? We're happy to do it later. SC Cook: We will take that as well. My offsider can deal with that one. VKG: Copy. You're taking Plantation Avenue Coffs Harbour Job. I'll take Coffs Harbour 15 off it. 2.10 At 12:05pm, SC Cook contacted VKG again, and asked VKG to check whether there were any Noise Abatement Directions in place at Mr Sims' home. VKG advised that there was not. 2.11 At 12:05pm, SC Cook and SC Walsh attended Mr Sims' residence at 3 Plantation Avenue Coffs Harbour (Plantation Avenue). 2.12 At 12:14pm, SC Cook and SC Walsh left Plantation Avenue. 2.13 At 2:16pm, SC Walsh entered the following narrative into COPS: 'About 11.00am 31.10.17 Police were called to attend the poi's address in regards to a noise complaint that drums were being played at the location. About 12.05pm 21.10.17 Police attended the poi's address/ Loud drums could be heard by both attending Police officers over the sound of the Police vehicle engine. A Police walked to the front steps of the address the noise ceased for a short period. The sound of a bass drum could be clearly heard. Police knocked on the front door of the address several times. The door bell was rang and a short time later the poi and another male attended the front door. The poi stated that he was a lawful occupant of the address. He denied playing the drums loudly at the time of Police attendance. He denied that there had been any noise come from the address at the time of Police attendance. His details were obtained. He stated he last finished playing the drums at 10.30am. He was given advice by attending Police in regards to limiting the noise from the drums. A twenty eight day noise abatement direction was issued. Due to expire on 27.11.17.'" [Emphasis in original. Footnotes omitted.]

[5]

What is in dispute

The parties conducted the proceedings on the basis that the Commission should determine whether drums were being played by Mr Sims when the applicants arrived at his residence.
In respect of SC Walsh, the Commission considers that the issues in dispute between the parties should be summarised as follows: 1. in respect of SC Walsh - Allegation 1, the issue is whether Mr Sims was drumming at the time the applicants arrived at his residence. While the respondent contended there was no proper legal basis for SC Walsh to issue a NAD, the Commission considers this was put in issue by the respondent to dispute that SC Walsh actually heard any drumming; 2. in respect of SC Walsh - Allegation 2, again the issue is whether Mr Sims was drumming at the time the applicants arrived at his residence; and 3. in respect of SC Walsh - Allegation 3, the issue is primarily whether SC Cook's attendance at Mr Sims' residence was a conflict of interest, leading to an obligation on SC Walsh to report SC Cook. SC Walsh also put in issue whether any failure by him constituted misconduct or should better be described as an error in judgement, not warranting discipline in the nature of reviewable action.
In respect of SC Cook, the Commission considers that the issues in dispute between the parties should be summarised as follows: 1. in respect of SC Cook - Allegation 1, the issues are the extent of information accessed by SC Cook, the existence of policies prohibiting access, and instructions received by SC Cook during her training; 2. in respect of SC Cook - Allegation 2, the issue is primarily whether SC Cook's attendance at Mr Sims' residence was a relevant conflict of interest. SC Cook also put in issue whether any failure by her constituted misconduct or should better be described as an error in judgement, not warranting discipline in the nature of reviewable action; 3. in respect of SC Cook - Allegation 3, and relating to the first subpart, the issue is primarily about whether Mr Sims was drumming at the time the applicants arrived at his residence. SC Cook's evidence was that her comments to Mr Sims were designed to lower tension with Mr Sims' neighbours. Relating to the second subpart the issue is fundamentally whether SC Walsh was losing control of his conversation with Mr Sims; 4. in respect of SC Cook - Allegation 4, the issue is primarily about whether Mr Sims was drumming at the time the applicants arrived at his residence, but is also about the extent to which SC Cook was involved in issuing a NAD to Mr Sims; and 5. in respect of SC Cook - Allegation 5, the issue is whether the email sent by SC Cook was inappropriate at all, or alternatively as to whether its content warranted inclusion in an order subjecting SC Cook to reviewable action.

[7]

Submissions of the respondent

The respondent set out at length, in the Respondent's Written Submissions, how she said the Commission should proceed to determine the applications. including that: "4. Legal Framework 4.1 The principles that apply to the determination of these proceedings are now well settled. The principles are usefully summarised in Writer v Commissioner of Police (No 2) [2021] NSWIRComm 1023 at [32] (per Sloan C) including as follows: (a) decisions of the Commission in respect of orders made by the Police Commissioner under s 181D of the Police Act (concerning the removal of police officers) are of assistance; (b) the Commission's review is not 'de novo' but is closer to a merits review than judicial review: Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 ('Zisopoulos') at [83] (Bell P). (c) the correct approach is that the Commission is to make a fresh and independent review of the decision itself, based on the material before the Commissioner as well as any new evidence admitted: Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253 ('Hosemans') at [134]. (d) the Commission assesses allegations of misconduct or unsatisfactory performance and determines if those allegations are properly based, and then determines if those matters justify the relevant reviewable orders: A (a pseudonym) v Commissioner of Police at [45]. (e) the applicant 'at all times' bears the onus of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. The following comments from Zisopoulos (Wright J, albeit in dissent) are apposite: '188. The burden, which by virtue of s 181F(2) an applicant under s 181E(1) bears at all times, of establishing that the removal...was harsh, unreasonable or unjust involves two aspects: (1) the applicant must establish all of the factual elements upon which the applicant relies to the requisite standard of proof; and (2) the applicant must make good the propositions that those factual elements justify the conclusion that the removal was 'harsh', or 'unreasonable' or 'unjust' on the proper construction of those words in s 181E(1) of the Police Act. It was not in dispute in the present case that the requisite standard in this context was the civil standard of proof on the balance of probabilities.' (f) the Police Commissioner is required to 'answer the applicant's case': Tredinnick v Commissioner of Police [2016] NSWIRComm 14 at [54]. That is, without qualifying the burden imposed on an applicant by s 175(2) of the Police Act, if the applicant advances any evidence or argument that might go to establishing that the disciplinary order was harsh, unreasonable or unjust, or beyond power, the onus of addressing that case falls on the Police Commissioner. This may be described as a 'tactical onus', being 'a practical burden to adduce further evidence because the other party has produced enough evidence to win if that does not occur': Zisopoulos at [96]-[97] (MacFarlan JA); see also [61], [68]-[69]. As Bell P observed in Zisopoulos: '85. If what the Full Bench in the present case referred to as 'sufficient doubt is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust.' (g) section 175(4) of the Police Act requires that in making its decision the Commission 'must have regard to' the interests of the applicant and the public interest. The meaning of the phrase 'must have regard to' in that provision 'means to give weight to those factors as fundamental elements in the [Commission's] consideration': Wells v Commissioner of Police (2000) 100 IR 106; [2000] NSWIRComm 157 at [33] (Peterson J). (h) the requirement that the Commission have regard to the public interest 'operates adversely to the applicant': Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [27]. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service: Van Huisstede v Commissioner of Police (2000) 98 IR 57; [2000] NSWIRComm 97 ('Van Huisstede') at [216]. (i) the Police Act however does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Police Commissioner in taking action against an officer in deference to the public interest in the integrity of the Police Service: Van Huisstede at [217]. The public interest 'is one factor to be taken into account': Commissioner of Police v Evans [2006] NSWIRComm 170. See also Saliba v Commissioner of Police at [92]-[94]." [Emphasis in original]
Mr Darams of counsel for the respondent submitted orally that these decisions correctly represented the determined jurisdiction of the Commission in applications such as these. And further, that in totality these decisions required the Commission to proceed in determining an application under Division 1A of Part 9 in essentially the same manner as it would proceed to determine an application under Division 1C of Part 9 of the Police Act.
Mr Darams also submitted that in circumstances where the applicant's evidence before the Commission was the same as, or virtually identical to, the statements they had given in the process leading to the orders, there was no new evidence before the Commission.
The respondent agreed this might not make it impossible for the applicants to discharge their onus, but the Commission should give weight to Superintendent Clarke having already considered the entirety of their case. This was because the process of issuing of orders was a statutory one; a process which includes a specified procedure, and open access to material on which the orders are based.
During oral submissions from the respondent, the Commission questioned why the respondent was asking the Commission to follow the process articulated in s 181 F(1) of the Police Act, despite the absence of such a provision in relation to applications pursuant to s 174 of the Police Act. Further written submissions from the respondent (Respondent's Further Submissions), filed after the conclusion of oral submissions, responded to those questions from the Commission.
The Respondent's Further Submissions were largely to the same effect as Respondent's Written Submissions and oral submission from Mr Darams, citing further decisions of the Commission where the approach summarised in Writer had been accepted as correct.
The Respondent's Further Submissions set out: "8. In Writer at [32(c)], Sloan C stated that the 'correct approach [under Division 1A] is that the Commission is to make a fresh and independent review of the decision itself, based on the material before the Commissioner, as well as any new evidence admitted'. Sloan C cited as authority for that proposition the Full Bench decision in Hosemans v Commissioner of Police (2004) 138 IR 159 at [1341 where it stated: '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. Further, that review process is to be undertaken in accordance with the provisions of s181F(1) of the Police Act which states …' 9. Whilst it is accepted that Hosemans was a decision in respect of a review under Division 1C (but note the above in any event), that part of the decision at [134] cited by Sloan C was not predicated on what is set out in s 181F of the Police Act. That is evident because the statement appears before the reference to s 181F of the Police Act. It is also evident that what is set out in s 181F of the Police Act is directed to the procedure of the hearing before the Commission. Accordingly, the Respondent submits that it would not be correct to proceed on the basis that that part of Hosemans cited by Sloan C in Writer is not applicable to the proceedings for review under Division 1A or that it is justified (or only justified) by s 181F of the Police Act. 10. In that regard, it is pertinent to note (among other things) that: (a) what the Commission is undertaking pursuant to Division 1A and 1C is a review of orders of the Commissioner (see s 174(1) and 181E of the Police Act); (b) written notice must be given to the police officer of the Commissioner's reasons for making the order under s 173 (see s 173(7)(c) of the Police Act) and s 181D (see s 181D (4) of the Police Act), and orders made under s 173 must also include all relevant facts and circumstances on which basis the order is made (see s 173(7)(a); (c) the Commissioner must make available to a police officer all of the documents and material that the Commissioner relied upon or had regard to in deciding to make an order under s 173 or s 181D (see s 174(5) and s 181E(3) of the Police Act); and (d) in proceedings pursuant to Division 1A and Division 1C, the applicant has at all times the burden of establishing that the order to which the application relates is harsh, unjust or unreasonable (or beyond power in Division 1A proceedings) (see s 175 (2) and s 181F(2)). 11. That is, and perhaps demonstrating (in part) the synergy between Divisions 1A and IC referred to by Sams DP in Saliba, the task (ie a review) that the Commission is to undertake is effectively the same under those Divisions. The only substantive difference is the nature of the order that is being reviewed by the Commission. 12. Moreover, that part of Hosemans cited by Sloan C in Writer has also been applied in the following matters, all reviews under Division 1A: (a) Probst v Commissioner of Police (No 2) [2009] NSWIRComm 201 at [11] where Sams DP held: It is now well accepted that the correct approach to be adopted by the Commission. in as 174 review case, is that identified in Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159, where the Full Bench, albeit in a s 181D case, said at par 134: '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.' (b) Whyte v Commissioner of Police [2010] NSWIRComm 84 at [11] (Sams DP); (c) Wright v Commissioner of Police [2015] NSWIRComm 1016 at [156] (Tabbaa C); (d) Jackson v Commissioner of Police [2019] NSWIRComm 1033 at [79] (Sloan C); and (e) Duncan v Commissioner of Police [2020] NSWIRComm 1011 at [79] (Webster C). 13. Further, the paragraphs of Probst and Whyte referred to above were cited by Constant C (as she then was) in Flynn v Commissioner of Police [2019] NSWIRComm 1030 at [10] and in A (a pseudonym) v Commissioner of Police [2019] NSWIRComm 1091 at [45]. 14. Accordingly, the jurisprudence of the Commission referred to by Sloan C in Writer at [32(3)] once again is that developed by decisions of three current members of the Commission including the Chief Commissioner, one former Presidential Member and one former Commissioner. 15. As was evident from the hearing on 15 September 2022, the Respondent places particular emphasis on this principle in the current proceedings. The Respondent submitted (and submits) that: (a) the Commission must in undertaking this review take into account all of the material that was before the Commissioner when she (through her delegate) made the orders that are being reviewed. That includes the CCTV Footage, the statements of Mr Sims and his family, the fact that Mr Sims complained about the Applicants' conduct, the statements and documents of Mr Cook, the statement of neighbour, Kathy Ann Leaney-Ralph, and the recreation of the circumstances in 2020; and (b) there was no new evidence in respect of the factual circumstances that formed the basis of the sustained Allegations. 16. In those circumstances, there was no obligation on the Respondent to call Mr Sims or call anyone to establish the authenticity or veracity of the CCTV Footage. It is incumbent on the Applicants to demonstrate why the Orders were harsh, unjust or unreasonable in essence based on the material that was before the Commissioner. There was ample material before the Commissioner where she could be satisfied of the factual matters said to constitute the findings." [Emphasis in original]
The Respondent's Further Submissions pressed that these principles represented the established jurisdiction of the Commission from which a single member should not depart, as a matter of comity.

[8]

Submissions of Senior Constable Cook

In written submissions, SC Rebecca Cook set out that: "2. It is necessary to deal briefly with two particular aspects of the approach the Commission should adopt in dealing with the matter as they inform the way in which the Commission should consider the evidence and argument more generally. … 3. The first particular matter is that whilst it is accepted that SC Cook at all times bears the onus of establishing that order is harsh, unreasonable or unjust (see s. 175(2) of the Police Act 1990 (Act)) this is a case where SC Cook advances a significant body of evidence and argument going to establishing that the order is harsh, unreasonable or unjust so that the tactical onus falls upon the Commissioner to address that case (Commissioner of Police v Zisopoulos [2020] NSWCA 236 at [85] per Bell P; [96] - [97] per McFarlan JA). The Commissioner led no evidence and certainly no firsthand or direct evidence that was as a matter of fairness capable of being tested so far as most of the allegations are concerned, but certainly so far as the noise complaint allegations were concerned. The tactical onus fell to the Commissioner to lead that evidence and she did not do so. 4. Second, in dealing with a review of disciplinary action the legislature requires the Commission to have regard to both the interests of an applicant and the public interest (see s.175(4) of the Act). That requirement is significant because the legislature has specifically said that the Commission is to have regard to those things which carries with it an obligation to give real and genuine consideration to those interests: they are not matters that should be dealt with in a perfunctory or dismissive way especially in circumstances where they are referred to and engaged by an applicant in the running of their case. They are not matters that lend themselves to merely completing some checklist or formula that the Commission should apply. Further, the obligation to keep in mind that the interests of an applicant are not subordinate or less relevant to any other factor, including the public interest; both are matters which must be considered." [Emphasis in original]
In oral submissions, Mr Reitano of counsel for SC Cook, expanded on these, submitting that: 1. the Commission must have regard in particular to two matters, being the public interest and the interests of the police officer concerned. However, the Police Act does not provide that the Commission should give paramountcy to one over the other; the Police Act requires that both must be considered; 2. the structure of the Police Act does not give support to the public interest always being adverse to the interests of an applicant police officer, notwithstanding that the authority cited for such a proposition is a High Court judge. The part of Heydon J's decision relied on for such a proposition is obiter. Further, it is not difficult to conceive of examples where the public interest would not be adverse to the interests of an applicant police officer; 3. the Commission must have regard to, in the sense of having a real and active consideration of, the case put by any party and should not deal with matters in a perfunctory or dismissive way, particularly in circumstances where an applicant engages arguments on a matter or issue; 4. the way in which SC Cook's case was presented could in no way be described as a "bald denial". She joined issue with each of the allegations, providing alternative case theory and setting out at length her version of the events in question. She also filed detailed references from her superior officers, members of the public, and set out in detail what she asserted was the excessive travel which would be required of her were she reassigned as contemplated in the order against her; 5. while the onus SC Cook bore is set out in the same terms as that borne by an applicant for review under s 181D, there is no equivalent to s 181F(1) set out for applications for review pursuant to s 174. This absence, combined with authorities setting out that a review pursuant to s 174 is while "… not de novo is closer to a merits review than judicial review …", removes any suggestion that the orders should be the starting point for the Commission's consideration. Mr Reitano submitted that merits review involved "starting again", with the Commission coming to its own conclusions based on the relevant material; 6. while the material relevant to the Commission's consideration was the material before Superintendent Clarke, as well as any new evidence before the Commission, little weight should be given to material before Superintendent Clarke which was not available for scrutiny before the Commission, such as through cross examination. Mr Reitano objected to such material being admitted as evidence as to the truth of its content; and 7. SC Cook had discharged the onus on her through the evidence given by her, the statements of support as to her character and in part through the testimony of SC Walsh, as well as through submissions on her behalf such as to the inaccuracy of several positions taken by the respondent.
Further written submissions on behalf of SC Cook, replying to the Respondent's Further Submissions, reinforced a number of submissions made orally, including that in acting freshly and independently the Commission is entitled, and indeed required, to make its own assessment of what regard should be had to any of the material before Superintendent Clarke, and should do so in particular having regard to the submissions and evidence of the applicants.
Most fundamentally in her further written submissions, SC Cook submitted that the important principle to be drawn from Hosemans is that "… the Commission is not engaged in a process that either involves determining whether the Commissioner's findings of fact or analysis was correct etc. or assuming that the material that the Commissioner relied upon was either appropriate or satisfactory for the purpose of determining the matter." In support of this proposition her submissions set out paragraph 134 from Hosemans: "[134] In undertaking the review that he did, his Honour did so, he said, 'to determine that the decision made by the Commissioner was correct, rather than having the Commission make a fresh and independent decision itself'. As expressed, the task determined by his Honour was erroneous in a number of respects. To start with, the process to be undertaken by the Commission on review is, in our view, other than that as expressed by his Honour. 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. Further, that review process is to be undertaken in accordance with the provisions of s181F(1) of the Police Act …"

[9]

Submissions of Senior Constable Walsh

The oral submissions of Mr Nagle of counsel for SC Walsh, as to the process to be adopted by the Commission, were supportive of the submissions on behalf of SC Cook. Three points submitted by Mr Nagle are important to set out. These were submissions that: 1. even as alleged, SC Walsh has not engaged in misconduct. At its highest his conduct could constitute a mistake or an error of judgement or an error in the exercise of his lawful discretion. In this respect Mr Nagle cited Boland J in McDermid v Commissioner of Police [2012] NSWIRComm 100 where His Honour observed that misconduct is not defined in the Police Act and then cited with approval the definition of misconduct set out by Pres Kirby in Pillai v Messiter (No 2) 1989 16 NSWLR 197: "124. The applicant relied on the definition of misconduct provided by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201 where his Honour stated: In the 1988 supplement to the Corpus, reference is made to Beaunit Mills Inc v Board of Review, Division of Employment Security, Department of Labor and Industry 128 A 2d 20 (1956). In that case, the New Jersey Superior Court held that "misconduct" does not mean mere mistakes, errors in judgment or in the exercise of discretion or minor but casual or unintentional, carelessness or negligence. It did not mean mere inefficiency, unsatisfactory conduct, failure of performance as a result of inability or incapacity inadvertent in isolated instances or errors of judgment which were not made in bad faith or some other ingredient. Numerous other recent cases are cited to support the proposition that, in the United States, "misconduct" generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. Similar approaches to the meaning of the word "misconduct" have been taken in Australia, outside the context of professional discipline: see, eg, O'Connor v Palmer (No 1) (1959) 1 FLR 397. The primary dictionary meanings confirm that this is also the way "misconduct" is used in everyday speech. 125. Subject of course, to the statutory context in which I am required to consider the question of misconduct, I am prepared to accept Pillai v Messiter (No 2) helpfully distinguishes between what is and what is not misconduct. Misconduct does not mean, "mere mistakes, errors in judgment or in the exercise of discretion..." or "unsatisfactory conduct", but rather "wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts." I would not place too much weight on the word "obstinate", however. If the misconduct was reckless or careless indifference I think the test in Pillai v Messiter (No 2) would be met." 1. reliance on "[w]hat was said by Heydon J in Eaton … doesn't sit comfortably with a number of authorities in this Commission that have looked at … the public interest … . It was said, as obiter, it was not part of the ruling, it's a throwaway, and it's certainly not binding." Mr Nagle supported Mr Reitano by providing an example of the public interest being in favour of a police officer, pointing to the cost involved in training police officers and pointing to the benefit of retaining what he described as "corporate knowledge"; and 2. little if any reliance could be placed on material before Superintendent Clarke which was not formally in evidence before the Commission because to do so would be unfair to both applicants.

[10]

Requirements set out in the Police Act

Section 175 of the Police Act sets out some requirements as to the way in which the Commission is to deal with applications such as these. Subsections 175(2) to (4), which deal with the substance of the Commission's determination provide: 175 Proceedings on a review … (2) The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) In determining the applicant's claim, the Commission may take into account such matters as it considers relevant. (4) 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 fact that the Commissioner made the order pursuant to section 173).
Section 181F sets out similar, although more extensive requirements for reviews pursuant to s 181E, providing: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows - (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the 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. (2) 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. (3) 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)).
The operative wording of subsection 175(2) is identical to that in subsection 181F(2).
Subsections 175(3) and (4) are worded differently from s 181F(3). Further, section 181F(3)(b) provides that the public interest is taken to include two matters being, (a) maintaining the integrity of the New South Wales Police Force, and (b) the fact that the Commissioner made the order under review, whereas s 175 (4)(b) only provides that the public interest is taken to include the fact that the Commissioner made the order under review.
Nevertheless, it is difficult to see that the combined effect of ss 175(3) and (4) is different from s 181F(3). Both sections require consideration of the interests of the applicant and the public interest, as defined in each section. Both sections make clear that subject to consideration of these two interests the Commission should, and indeed must, take into account any relevant matter.
Missing entirely from s 175 is the requirement set out in s 181F(1) as to the way in which the Commission must proceed in conducting a review.

[12]

Item (c): Commission's to make fresh and independent review

The Commission's review is, as expressly set out in item (b), not de novo. Submissions from all parties accepted that the material before Superintendent Clarke was a part of material to be considered by the Commission. Both applicants raised objections to the use of material not formally before the Commission, although this was really a submission as to the weight to be given to such material.
As set out in the Respondent's Further Submissions: "10. … it is pertinent to note (among other things) that: (a) what the Commission is undertaking pursuant to Division 1A and 1C is a review of orders of the Commissioner (see s 174(1) and 181E of the Police Act); (b) written notice must be given to the police officer of the Commissioner's reasons for making the order under s 173 (see s 173(7)(c) of the Police Act) and s 181D (see s 181D (4) of the Police Act), and orders made under s 173 must also include all relevant facts and circumstances on which basis the order is made (see s 173(7)(a)); (c) the Commissioner must make available to a police officer all of the documents and material that the Commissioner relied upon or had regard to in deciding to make an order under s 173 or s 181D (see s 174(5) and s 181(3) of the Police Act); and (d) in proceedings pursuant to Division 1A and Division 1C, the applicant has at all times the burden of establishing that the order to which the application relates is harsh, unjust or unreasonable (or beyond power in Division 1A proceedings) (see s 175 (2) and s 181F(2))."
Because of the statutory framework the Commission is not engaged in a true merits review. Pursuant to s 175(2) an applicant bears the onus of persuading the Commission that any orders are beyond power or are harsh, unreasonable or unjust. This is not the circumstance in a true merits review process, where neither party enjoys an advantage from the decision under review.
Moreover, in a true merits review, the decision under review is being remade. The Commission is tasked with conducting such a review under, for example, s 229 of the Work Health and Safety Act 2011, and that process stands in contrast to the statutory framework for a s 174 review.
Mr Reitano's submission on Hosemans are, in terms accepted; the Commission is to conduct its own independent review and may accept or not material relied on by Superintendent Clarke. Importantly, the Commission is not remaking Superintendent Clarke's decision, but is conducting a fresh and independent review to determine if the orders are beyond power or harsh, unreasonable or unjust.
It should be observed that part of s 174 empowers the Commission to conduct what is closer to judicial review. A determination that an order, purportedly made pursuant to s 173, was beyond power is clearly closer to judicial review than merits review. A review for the purposes of determining whether an order was harsh, unreasonable or unjust is not of such a character.

[23]

The process to be followed in reviewing the orders

Given the legal burden borne by an applicant in reviews pursuant to s 181E, and that they are reviews of specific orders, the process set out in 181F(1) is rational to the extent that it might be considered unnecessary to have been explicitly stipulated in the Police Act.
Given that the legal burden borne by an applicant in reviews pursuant to s 174 is identical to that borne by an applicant in reviews pursuant to s 181E, and are also reviews of specific orders, it is at the least curious that such a procedure is not mandated in reviews pursuant to s 174. Ordinarily, something should be expected to flow from this difference.
Counter to this, the Respondent's Further Submissions cite a number of decisions by multiple members of the Commission. In each of those decisions, a process that is the same as the one set out in s181F(1) has been adopted. As the Respondent's Further Submissions also recite, amongst those members are the current Chief Commissioner and a former Vice President of the Commission.
To adopt a different process in these applications it would be necessary to positively conclude that those earlier decisions are plainly wrong. Far from concluding that they are plainly wrong, it is indeed clear that their conclusions have been reached rationally.
As the Respondent's Further Submissions articulate, an application pursuant to s 174 of the Police Act is an application to the Commission "… for a review of the order …". The starting point is the order, and it is the order which is to be reviewed.
As already set out above at [33]-[37], in reviewing the orders the Commission is not conducting a true merits review. The Commission agrees with the submissions of SC Cook to the extent that the Commission must come to its own conclusions based on the relevant material. However, the Commission must do so in the context of the Act under which the applications proceed.
Because of this, and the binding authorities as to the way an applicant might discharge the onus on them, the process set out in s 181F recommends itself as at least an obvious way, if not the most obvious way to proceed pursuant to s 174. Nothing set out in Division 1A of Part 9 of the Police Act prevents the adoption of such a process. Nor in my view is there anything set out in Division 1A which implicitly prevents the adoption of such a process, nor which suggests a different process is manifestly to be preferred.
The challenged orders, and reasons and logic underlying the orders, as articulated in those orders are the starting point of the Commission's review. For this reason, the orders and the reasons and logic underlying the orders do not need to be proved by the respondent, unless and until an applicant is able to raise the requisite level of doubt as to the appropriateness of the orders.
This resolves the initial weight to be given to statements of people who were not called to give their evidence to the Commission, but whose version of events were relied on by Superintendent Clarke in making the orders.
Because of the legal burden borne by the applicants, and the process the Commission has determined to follow in arbitrating each application, it is not necessary in the first instance to address whether the respondent is able to rely on the witness statements of Mr Sims, his brother, and Mr Cook as to the truth of their contents.
The orders, and reasons and logic underlying the orders, as articulated in those orders are the starting point of the Commission's review. If the applicants are able to raise the requisite level of doubt as to the appropriateness of the orders, then it may be necessary to consider whether it is appropriate for the respondent to rely on such statements as to the truth of their contents.
If an applicant is unable to raise the requisite level of doubt it will be unnecessary to consider whether such statements can be admitted as to the truth of their contents, the applicant having failed at the initial stage to discharge their legal burden.

[25]

SC Walsh's Order

Set out over 16 pages, and dated 12 August 2021, are Superintendent Clarke's orders in relation to SC Walsh. They recite the orders under appeal, set out at length the allegations against SC Walsh, summarise the evidence gathered and relied on by Superintendent Clarke, before concluding that the three allegations against SC Walsh are sustained to the satisfaction of Superintendent Clarke.
Under the heading "Consideration", Superintendent Clarke set out the following: "In the circumstances, I am satisfied that your conduct has fallen below that which is expected by the community and the NSWPF of a sworn officer. Your conduct in respect of Allegations 1 and 2 gives me cause me to question your integrity. You state that you heard drumming when you arrived at Mr Sims' home, and that, on this basis, you issued a NAD to Mr Sims. Having considered the available evidence, I am satisfied that you did not in fact hear drumming at the time of your arrival at Mr Sims' home, as Mr Sims was not drumming at the time. I am extremely concerned that you have exercised police powers on false pretences. It is essential that the public trust police to exercise their powers fairly and with proper reasons. Your behaviour had the potential to damage the reputation of the NSWPF. Indeed, Mr Sims has understandably said that he has lost trust in the NSWPF. I do not accept your assertion that you were entitled to Issue a NAD to Mr Sims, because he told you he had played the drums earlier that day. As you admitted in your interview, it is not unlawful to play the drums and it does not appear you took any steps to investigate whether Mr Sims' drumming was offensive. In your Response, you have referred to Mr Harrison's evidence, that you might have mistaken background noise (such as hammering from nearby automotive workshops) for drumming, or that the "suggestion of a particular noise may result in a person 'hearing' that noise", even though it was not there. Even if I were to accept that either of these explanations are applicable in the circumstances, which I do not, I could not accept that the background noises, or phantom noise, you heard could be deemed so offensive as to be mistaken for 'loud drums' and/or warrant issuing Mr Sims with a 28-day NAD. Further, I note that Mr Harrison has said it is possible there was low frequency noise (such as a bass drum) of medium to low amplitude that was not picked up by CCTV. I do not believe that you heard the bass drum being played at a medium or low amplitude when you arrived at Mr Sims' home. Additionally, even if you did hear a bass drum at a medium or low amplitude, I could not accept that you genuinely believed this was offensive noise, and that it would have been negligent not to issue a NAD. My concern is exacerbated by the fact that you falsely recorded that you had heard loud drumming at Mr Sims' home in COPS. This suggests to me that you either colluded with Senior Constable Cook, or at the very least discussed the need to be able to explain why you issued the NAD. The integrity of COPS is a matter of utmost importance. It is the responsibility of all officers to ensure that any information entered on COPS is accurate. I am extremely concerned by your disregard for this responsibility. Additionally, I am troubled that this is not be the first time you have engaged in conduct of this nature. Notwithstanding that it occurred over 10 years ago, I have regard for the fact that you were convicted of two counts of wilfully make false statement' in 2000 and were warned about your conduct by the then Commissioner of Police. As a result of this warning, you were made, and should have remained, well aware of your ongoing obligation to place integrity above all. Regarding Allegation 3, I do not accept that you did not realise Senior Constable Cook's attendance at Mr Sims' home created a conflict of interest in circumstances where you knew the complainant was Senior Constable Cook's father, and that he had had a "run in" with Mr Sims' a few weeks prior. Further, although you might have believed at first that Senior Constable Cook would only be an "observer", and that you would have sole carriage of the job, it would have become evident that this was not the case almost immediately. Senior Constable Cook intervened in your conversation with Mr Sims, told Mr Sims that several complaints had been received and mentioned that his radio had been playing loudly in the past (something that had not been reported to police by Mr Cook). I do not accept your claim that Senior Constable Cook's involvement in this matter was minimal. It appears to me that she spent as much, if not more, time speaking to Mr Sims as you. In these circumstances, I consider you did become aware that Senior Constable Cook's active involvement in the matter was a cause for concern. As a result, it was incumbent on you to report Senior Constable Cook's failure to avoid a conflict of interest. By falling to report her conduct, you have failed in your statutory duty to make a mandatory report in accordance with s 211F of the Police Act. I have considered your career history and have noted the large number of complimentary remarks and acknowledgements of good police work you have received. I have also taken into account your long career with the NSWF, your involvement in several community groups in the Coffs Harbour Area, and the fact that you have recently lost your wife. I also appreciate that a transfer to Coffs Harbour Police Station will require you and your daughters to move out of the Coramba Lock-up Keeper's Residence, where you have lived for many years, While I understand it may be personally difficult for your family to move from that residence, I must balance this against my serious concern that, as a senior officer who had over two decades of experience in the NSWPF at the time of these events, you have failed to adhere to your obligations under the Code of Conduct and Ethics and fundamental policies relating to COPS and conflicts of interest. I am also concerned that throughout the investigation into your conduct, you have not taken accountability or shown any remorse for your actions. In the circumstances, it is my view that the interests of the NSW Police Force require that you are transferred to the main police station within the Coffs/Clarence Police District. Being at this location, a 24-hour station, will ensure your daily duties are directly monitored by senior officers and it will provide you with an opportunity to demonstrate to me that you can reach and maintain the high standards of conduct that are required."

[26]

SC Cook's Order

Set out over 23 pages, and dated 12 August 2021, are Superintendent Clarke's orders in relation to SC Cook. Superintendent Clarke's orders in relation to SC Cook recite the orders under appeal, set out at length the allegations against SC Cook, summarise the evidence gathered and relied on by Superintendent Clarke, before concluding that the five allegations against SC Cook are sustained to the satisfaction of Superintendent Clarke.
Under the heading "Consideration", Superintendent Clarke set out the following: "In the circumstances, I am satisfied that your conduct has fallen below that which is expected by the community and the NSWPF of a sworn officer. In relation to Allegation 1, I am concerned that you viewed the station summary of a COPS Event that you were aware involved your father. Maintaining the integrity of COPS is a matter of great importance. As an organisation, we are entrusted to hold confidential information that can only be accessed as part of our official duties. Officers are permitted to peruse station summaries to gather general intelligence and monitor crime trends in connection with their duties. However, they must not access information on COPS for gratuitous or personal reasons. This is clearly stated in the COPS User Guide, and as an experienced officer I would expect you to understand this. I do not accept your submission that you accessed the relevant station summary for personal development and to improve your awareness of local crime trends. In this regard, I note that the summary involving your father was the only station summary you accessed at the time (despite there having been 16 other summaries listed ahead of it on the Coffs Harbour station summary that day). I also do not accept your assertion that whenever you read a station summary, it is for a personal reason. It is my view that your responses to this allegation have been disingenuous and self-serving, in an effort to avoid accountability for your actions. Regarding Allegation 2, I am extremely concerned that you attended Mr Sims' home in response to a noise complaint made by your father, noting also that you were aware your father had accused Mr Sims of assaulting him just weeks earlier. It is essential that the public trust officers of the NSWPF to impartially perform their duties. I do not accept that you had no option but to respond to your father's complaint, in circumstances where you have acknowledged that Senior Constable McLean had offered to attend to the job later. It was clearly open to you, and preferable for you to, ask someone else at the station to call your father and check whether the issue was ongoing, so that you could avoid unnecessary involvement. I also do not accept your evidence that you did not believe there was a conflict of interest that needed to be avoided or reported because Senior Constable Walsh was the officer in charge, and you were only assisting. In this regard, I note that I am satisfied that you intervened in Senior Constable Walsh's conversation with Mr Sims almost immediately, and that there was no need for you to do so. I am also satisfied you participated in the decision-making process by asking VKG whether there were any existing NADs for Mr Sims' address, and by telling Mr Sims "after the officer here gives you a noise abatement direction, you will be getting a fine" (or words to that effect). Your responses to this allegation show, at best, an alarming misunderstanding of your obligations in relation to conflicts of interest or, at worse, a level of dishonesty that calls into question your integrity. Your conduct in respect of Allegations 3 and 4 more starkly call into question your integrity. You have admitted that you told Mr Sims you heard drumming at the time of your arrival at his home. On this basis, you issued (or were instrumental in issuing) Mr Sims a NAD. There is no evidence to suggest you made any further inquiries as to whether offensive noise had been emitted from Mr Sims' home. The available evidence suggests that you did not in fact hear drumming at the time of your arrival at Mr Sims' home. I am extremely concerned that you have exercised police powers on false pretences. My concern is exacerbated by the fact that your father stood to benefit from your exercise of power, which prevented Mr Sims from playing the drums for 28 days. The available evidence demonstrates that you have been dishonest in order to benefit your father. You have clearly placed your and your father's interests over those of Mr Sims and the NSWPF. Your behaviour had the potential to damage the reputation of the NSWPF, and Mr Sims has understandably said that he has lost trust in the NSWPF. I am alarmed by your claim that your actions should have given Mr Sims more faith in the NSWPF, because you gave him advice on how to play drums in a suburban area. I imagine Mr Sims found little solace in this in circumstances where a member of the NSWPF had attended his home in response to a complaint made by her father, dishonestly claimed to have heard him drumming and, on this basis, issued him a 28-day NAD. I also consider that your comment suggests you have an alarming lack of insight into your own conduct. Finally, regarding Allegation 5, I am concerned that you have sent a rude and unprofessional email to a member of the NSWPF and an external provider. While I am sympathetic to your assertion that you were emotional, stressed and anxious around the time you sent this email, I am concerned by your continued refusal to acknowledge that your behaviour was inappropriate. Your stated belief that your email was appropriate, and that your Command should "be held to account" for the delays in arranging your return to full operational duties is concerning. Such views call into question whether you can be trusted to comply with your obligations under the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Respectful Workplace Behaviours Policy Statement and Guidelines in the future, and to demonstrate the most basic levels of courtesy and professionalism required of you. I have considered your employment history, and have noted the large number of complimentary remarks and acknowledgements of good police work you have received. I have also taken into account your long career with the NSWPF, your involvement in several community groups in the Coffs Harbour Area, and the many positive character references you provided. That said, I am extremely concerned that as a senior officer with almost 23 years' experience (who was a Leading Senior Constable at the time of your conduct in respect of Allegations 1 to 4), you breached fundamental policies relating to COPS and conflicts of interest. I am also concerned that throughout the investigation into your conduct, you have not taken accountability or shown any remorse for your actions. In fact, you continue to show a severely lacking understanding of your continuing obligations in relation to conflicts of interest. Although you claim you are now fully aware of the Conflicts of Interest Policy, I cannot accept this in circumstances where you assert that you "do not believe you breached the Conflicts of Interest Policy, in the essence of what it was created for" by attending a "low priority noise complaint job" that had been generated by your father. I have also had regard of the fact that, in 2010, you were issued a Commander's Warning Notice after you were found to have made photocopies of documents that formed part of an internal investigation regarding your then-husband. In this Warning Notice you were reminded of your obligations under point 7 of the NSW Police Force Code of Conduct and Ethics and advised that any future misconduct may result in management action. I acknowledge that you were served with this Warning Notice roughly seven years and nine months before your conduct in respect of Allegations 1 and 2. However, I do not accept that over this time you forgot core tenets of the of the Conflicts of Interest Policy Statement and Procedures, being the requirement to avoid and report actual and perceived conflicts of interests. Further, while I acknowledge that there is a large volume of policies and procedures in the NSWPF, I am extremely concerned that you have contravened the Code of Conduct and Ethics and the Conflicts of Interest Policy, in circumstances where they have been so squarely brought to your attention previously. I am also troubled that you have contravened several other fundamental policies, including the COPS User Guide and the Respectful Workplace Behaviours Guidelines. It is critical that I can trust all members of the NSWPF know and abide by these policies. Finally, I understand that a transfer to Mid North Coast Police District will mean you have a longer commute and increased travel expenses. I appreciate that this will mean you have less time to exercise, perform overtime shifts and spend with your family. However, I am of the view that your conduct, particularly your breaches of the Conflicts of Interest Policy Statement and Procedures and your continued failure to understand these documents, necessitates a transfer to a different Command."

[27]

Consideration of the Orders

There is, it is obvious to observe, a great deal of similarity between what is set out by Superintendent Clarke in each order. This similarity extends to Superintendent Clarke's summary of the evidence and his consideration as to conclusions to be drawn from that evidence. This is unsurprising as the allegations against each of the applicants largely arises from a single course of conduct.
There are two additional allegations against SC Cook which do not arise from the common course of conduct. These account for the extra length of the orders in relation to SC Cook.
As set out above, at a high level the two substantial questions raised by the orders and the applications to the Commission are whether the applicants heard drums being played when they approached Mr Sims' residence, and whether there was a conflict of interest in SC Cook attending Mr Sims' residence because the complainant in relation to the noise alleged was SC Cook's father.
There were four people who might be in a position to give first-hand evidence as to whether the applicants did hear the playing of drums when they arrived at Mr Sims' residence. The first two of these were the applicants themselves, and the other two were Mr Sims and his brother who were apparently the only two people at Mr Sims' residence at the time.
Strictly speaking, of course only the applicants can give evidence of what they heard, or perhaps what they thought they heard. Mr Sims and his brother can give evidence of whether Mr Sims was playing drums at the relevant time. The Commission observes that neither party made any submissions which made anything of this distinction.
Superintendent Clarke had statements from both applicants, Mr Sims and Mr Sims' brother, and Mr Cook. Superintendent Clarke also had access to a videorecording from Mr Sims' neighbour which included an audio component. Superintendent Clarke conducted what might be called a re-enactment and sought the advice of an audio expert as to the recordings from the neighbour's video.
Superintendent Clarke's conclusion from his consideration of all of that material was that Mr Sims was not playing the drums when the applicants arrived at Mr Sims' residence. Accordingly, the applicants had lied when they reported hearing drums from Mr Sims' residence.
It was a part of Superintendent Clarke's logic that the applicants were unable to satisfactorily explain how, even on the noise they said they heard, that the noise was offensive. It was clear that, from Superintendent Clarke's perspective, their inability to explain the basis on which the noise was offensive contributed to his conclusion that the applicants had predetermined to issue a NAD.
In respect of the allegations related to SC Cook's alleged conflict of interest, and in SC Walsh's case a failure to report such a conflict, Superintendent Clarke set out in each of the orders the rationale behind his findings.
It is clear that Superintendent Clarke viewed SC Cook attending Mr Sims' residence in response to a noise complaint from her father as unequivocally a conflict of interest. This conflict was, to Superintendent Clarke, even starker because of the earlier complaint made by her father which resulted in Mr Sims being charged with common assault. Superintendent Clarke was clearly unimpressed by the idea that any conflict was properly managed by SC Walsh leading the attendance by the applicants at Mr Sims' residence, even had SC Cook remained silent during that attendance.
Superintendent Clarke makes clear that he viewed reason for the conflict as manifesting, and being exacerbated, by SC Cook intervening and doing so early in the conversation with Mr Sims.
Superintendent Clarke makes clear that he has considered SC Walsh's response and not accepted that the response provides any proper explanation for SC Walsh not reporting SC Cook's conduct.
In relation to SC Cook accessing the COPS event in relation to assault charges against Mr Sims arising from a complaint by her father, Superintendent Clarke sets out his finding that such access was made, that there did not appear to be any work-related reason for that access, and that despite there being multiple other COPS events, that was the only COPS event which she accessed. For these reasons Superintendent Clarke concluded that SC Cook had improperly accessed the records, had done so for a personal reason and therefore had failed to manage a conflict of interest.
In relation to an email sent by SC Cook on 26 August 2019, the orders set out a background to the email, recite the relevant parts of the email and set out the conclusion that the email was disrespectful and unprofessional.
It is evident from the orders and the supporting material that a large body of work was undertaken by or for Superintendent Clarke, that this body of work was both thoroughly considered and articulated in detail.
There is no sense in which it could be said that the process had been shortcut, nor in which it could be said that the applicants had not been given a proper opportunity to understand the case against them and to respond to that case. Indeed, it was not the case put by the applicants that the process was unreasonable.
In respect of SC Walsh, there is nothing on the face of the orders, the underlying logic and factual conclusions that suggests anything that is beyond power or is harsh, unreasonable or unjust. Those orders are rationale and proportionate, based on the thorough and logical consideration set out in them.
In respect of SC Cook, save for SC Cook - Allegation 5, there is similarly nothing on the face of the orders, the underlying logic and factual conclusions that suggests anything that is beyond power or is harsh, unreasonable or unjust. Those orders are also rationale and proportionate, based on the thorough and logical consideration set out in them.
SC Cook - Allegation 5 is clearly ancillary, and by itself could not sustain reviewable action against SC Cook. As an isolated example, it would at most warrant informal counselling, absent any history of similar conduct. No such history was set out in this case.
The Commission has set out below conclusions as to the general demeanour of SC Cook as a witness, which include an unnecessarily and unreasonably strident approach, and her evidence about this email forms a part of that conclusion. Nevertheless, the orders did not do more than set out one email and did not connect the tone of that email to the other misconduct set out in orders.
Accordingly, to this point in the Commission's consideration, it is likely to be unjust to makes orders relying on SC Cook - Allegation 5, and orders containing reviewable action are likely to be harsh if they rely only on SC Cook - Allegation 5.

[28]

SC Walsh's case

Before the hearing, SC Walsh filed a Case Summary which set out, in part: "… 3. The applicant denies that he issued a Noise Abatement Direction to Noah Sims on false pretences. He maintains that on the evidence available to him at the time, it was open to him to form the view that an offensive noise, in the form of drumming, had been emitted from the premises at 5 Plantation Avenue, Coffs Harbour within the past 7 days and on that basis, it was open to him to issue the Noise Abatement Direction. 4. The applicant contends that on the evidence, it was not open to the respondent to find that he did not hear drumming. 5. The applicant denies that the entry he made on the COPS system was false in any respect. In particular, the applicant maintains that he did hear the sound of loud drums from the police vehicle and that he did hear a bass drum. 6. The applicant contends that any conflict of interest which might have arisen because the complainant was SC Cook's father was managed by him agreeing with SC Cook that he would deal with the complaint. 7. The applicant contends that SC Cook's involvement, in that she spoke to Noah Sims at the front door of the premises, was unexpected by him. 8. The applicant contends that SC Cook's involvement in speaking to Noah Sims did not give rise to an obligation for him to report her conduct in accordance with s 211F of the Police Act 1990. … Harsh Unjust or Unreasonable 10. The applicant contends that the Order subjecting him to a disciplinary transfer from the Lock-Up Keeper's position in Coramba to Coffs Harbour is harsh, unreasonable or unjust. … 11. Primarily the Order is unjust because it relies upon findings that the applicant engaged in misconduct when he had not committed any misconduct. 12. The Order is harsh, because in making it, the respondent failed to give any, or sufficient weight to the applicant's subjective circumstances and to the financial impact the disciplinary transfer would have upon him. 13. Further, the Order is harsh because in making it, the respondent failed to take into account the fact that the applicant has been the subject of an Interim Risk Management Plan which restricted him to performing duties within the Coffs Harbour Police Station since the 5 October 2018. The applicant has found that the restriction on his duties has been onerous and stressful. 14. Further, because his duties have been restricted, the applicant has been unable to perform "User-Pays" shifts, overtime in the field and other duties that would have earned him additional income. 15. The applicant contends that the Order is unreasonable, because it was made nearly 4 years after the respondent became aware of the complaint. 16. The applicant contends that the Order is unreasonable because the evidence does not support a finding that he engaged in misconduct. 17. Further, the applicant contends that the Order is harsh, unjust or unreasonable, because it fails to take into account that he was served with a Region Commander's Warning Notice on the 24 August 2021, over the same incident."
This remained the case of SC Walsh by the end of the hearing.
SC Walsh gave evidence through two witness statements and was cross-examined at length. At a high level his evidence was consistent with his witness statements, and with his statements to Superintendent Clarke before the orders against him were made.
Key aspects of SC Walsh's evidence included that: 1. he had been the police officer who took Mr Cook's noise complaint; 2. at the time he and SC Cook agreed to take the attendance to follow-up the noise complaint he was aware that Mr Cook was SC Cook's father, but was not aware of the assault charge previously laid against Mr Sims as a result of a complaint by Mr Cook; 3. he and SC Cook had agreed she would not be engaged in the attendance at Mr Sims' residence, other than physically being present; 4. there had been no basis for SC Cook to intervene in his conversation with Mr Sims, and that SC Cook's characterisation of Mr Sims as aggressive was false; 5. SC Cook's intervention in his conversation with Mr Sims was a surprise to SC Walsh; 6. he had suffered substantial losses in wages from action already taken against him arising from the events in dispute; 7. the transfer would result in him being forced to relocate from provided accommodation, to which he and his children have significant emotional attachment. That attachment came from the accommodation being the home in which they all lived at the time of his wife's death from cancer; and 8. the events which formed the basis of the allegations occurred four years before the orders, and had been the subject of both criminal charges, non-reviewable disciplinary action, and ongoing restrictions on his duties as a police officer.
SC Walsh's evidence was not without difficulties. In particular, he was not able to adequately explain the reason he issued Mr Sims with a NAD. It is also odd that he readily acknowledged in cross examination that SC Cook intervened in his conversation with Mr Sims, and that she stated that SC Walsh would issue Mr Sims with a NAD, but these words by her did not appear in his witness statement in the proceeding; despite this being a clear finding in the orders.
As to the first of these issues, SC Walsh's answers during cross examination exposed an inability by him to properly explain how any noise emanating from Mr Sims' residence was offensive. The respondent submitted that this was because in fact there was no drumming when the applicants arrived. The Commission accepts that the length of time between the events and the hearing, and the arguably technical nature of what should constitute offensive noise, both reasonably contributed to SC Walsh's inability to defend the issuing of the NAD in strict legal terms.
During cross examination he acknowledged that, even at its highest, his evidence was of limited drumming, certainly as compared with that which had been complained about by Mr Cook. SC Walsh was open to admitting that he may have been in error. The Commission concludes that any criticism of SC Walsh in respect of the issuance of a NAD was more in the nature of a lack of understanding of the legal technicalities, rather than of a police officer deliberately issuing a NAD on a false basis.
Indeed, the overall impression the Commission drew from SC Walsh's evidence was of a witness doing his best to remember events, being willing to acknowledge he may have made errors, but it all times doing his best to directly answer the questions put to him.
On the basis of consideration of only SC Walsh's evidence, the Commission would have been clearly satisfied that sufficient doubt had been raised about whether drums were being played when the applicants arrived at Mr Sims' residence such that the tactical onus would have required evidence or submissions from the respondent in order for the Commission to sustain SC Walsh - Allegation 1 and SC Walsh - Allegation 2.
This is because the Commission considers that SC Walsh should be regarded as a witness who can be believed. The Commission observes that there are some inconsistencies and gaps in the evidence of SC Walsh, but it is reasonable to accept that these are related to the length of time between giving evidence and the events in question.
On the basis of consideration only of SC Walsh's evidence, the Commission would have been clearly satisfied from both the evidence, and the submissions on his behalf, that SC Walsh had persuaded the Commission that SC Walsh - Allegation 3 could not be sustained. The Commission would be persuaded that the failure of SC Walsh to report any conflict of interest in respect of SC Cook did not amount to misconduct, but was an error of judgement.
As set out in more detail below, the Commission does not accept the submissions of the applicants that attendance at a noise complaint can be waived away as some trivial exercise, particularly from the perspective of a citizen confronted by uniformed police at the door of their home. It is apparent from the conversation between the VKG operator and SC Cook, to which SC Walsh was a silent party, that other officers were aware of the conflict inherent in SC Cook "taking the job".
There is therefore criticism to be had of SC Walsh's acquiescence to SC Cook accepting the job on their collective behalf. SC Walsh should have intervened to decline the job.
Nevertheless, it is accepted that from the perspective of SC Walsh any conflict of interest was intended to be managed by SC Cook not actively participating in any conversation with Mr Sims. Importantly SC Walsh was not being aware of the then recently withdrawn assault charges against Mr Sims.
As is also set out below, the Commission finds that SC Cook's conduct amounts to an unambiguous conflict of interest, warranting reporting by any police officer with full knowledge of the relevant events. However as should be clear from the above, SC Walsh was not in possession of all the relevant facts.
In such circumstances it would be unnecessary to consider any of the references provided in support of SC Walsh, the personal circumstances of SC Walsh, or the history of other action taken against SC Walsh arising from the same circumstances.

[29]

SC Cook's case

Before the hearing, SC Cook filed a Case Summary which set out, in part: "… 3. The order is unjust because it relied upon findings that Senior Constable Cook engaged in misconduct when she was not guilty of any misconduct. To the extent that she did things that were 'wrong' they involved nothing more than fairly minor errors of judgment and the comparator of mountains and molehills is apt. 4. The order is unreasonable so far as each allegation was concerned there was no basis to conclude in an objective way that she had committed any of the wrongdoing that was alleged against her. 5. The order is also unreasonable because Superintendent Clarke wrongly took the view that Senior Constable Cook had the 'onus of establishing that the misconduct did not occur' when at all times, including in this proceeding, the onus of proving wrongdoing was on the Commissioner. 6. The order is also unreasonable because Superintendent Clarke did not identify the rule that Senior Constable Cook had broken which grounded the allegation of misconduct. This is especially so far as the first and fifth allegations are concerned 7. The order is harsh because it involved penalising Senior Constable Cook in a manner that was entirely disproportionate to the wrongdoing. 8. The order is harsh in all the circumstances because of the harsh personal affect it will have, especially having regard to her achievements during her employment, her long period of employment and her disciplinary record have upon her. In this regard it needs especially to be borne in mind that Senior Constable Cook: a. has already been penalised by having her Leading Senior Constable position revoked, with a consequential drop in salary from $110454 to $104,329; b. has had her role as a police negotiator withheld since October 2018 which means a further loss of on-call allowance and any associated overtime at job callouts not to mention she has not been able to perform one of the areas of work that she took great pride in; c. was taken off operational duties, after being charged with unauthorised access to COPS (of which she was found not guilty), including relieving in higher duties positions; d. has been denied access to over time shift's including user pays shifts; e. needs to care for her elderly parents, who have separated. This will be very difficult for her because of the travel involved if she is transferred: and f. is held in high regard both in the police community and more widely 9. It is necessary to say something briefly about each of the allegations. Allegation 1 10. Senior Constable Cook has at all times admitted that she accessed the station summary for COPS event E6549773. 11. There was no instruction or procedural directive that proscribed police officers from accessing case summaries. 12. If anything, this allegation makes clear the fact that the Commissioner has no clear policy on police officers accessing case summaries. 13. In fact, and to the contrary there was a custom and practice that involved police officers regularly accessing case summaries. In any event, there could be no conflict of interest as a result of reading a case summary. Allegation 2 14. Senior Constable Cook responded to a fairly low level noise complaint because other officers to whom the job had been allocated were no longer available. In fact, her initial response was 'to stay out of it' and permit Senior Constable Walsh to deal with it. 15. To the extent that there was any conflict of interest Senior Constable Cook took appropriate steps having identified the conflict was because her father was the informant. She avoided the conflict on interest by staying out of things or by managing them in a fairly low key way. 16. In the event that it is considered there was a conflict of interest whether perceived or actual it is fairly to be considered in the circumstances to be at the very low end of the scale of seriousness given that it involved the obtaining and seeking of no benefit, that it was at least initially managed sensibly by having Senior Constable Walsh deal with it and that it did not involve any detriment to anyone. Allegation 3 17. There is no basis at all for the suggestion that Senior Constable Cook was untruthful either in respect of what she said to Mr Sims in the interview with Acting Inspector Peter O'Reilly on 14 October 2019 or in her reply to the investigators report on 20 August 2020. There is no evidence that she was untruthful and she was not untruthful. Allegation 4 18. There is no basis at all for the suggestion that Senior Constable Cook issued a noise abatement direction or was 'instrumental' in issuing such a direction on the false pretence that she heard drumming. She heard drumming. Senior Constable Walsh heard drumming. Senior Constable Walsh issued a direction on that basis which no doubt he would not have issued if he did not consider it appropriate. Allegation 5 19. The email was neither disrespectful nor unprofessional although some of it might have expressed in very firm terms. It appears the phrase 'dick around' is the cause for concern but that is a fairly conventional way of expressing the view that somebody is being treated in a way that is deliberately not helpful or having the time wasted." [Emphasis in original]
This remained the case of SC Cook by the end of the hearing.
SC Cook gave evidence through two witness statements and was cross-examined at length. At a high level her evidence was consistent with her witness statements, and with her statements to Superintendent Clarke before the orders against her were made.
Key aspects of SC Cook's evidence included that: 1. she accessed only a station summary in relation to her father's allegations of assault by Mr Sims, and did not open the detailed COPS event; 2. SC Cook characterised her access to that station summary as being for personal reasons, being her personal development as a police officer; 3. she had been instructed in training that reviewing stations summaries was a practical way to be aware of local crime trends; 4. she and SC Walsh agreed that she would be physically present during their attendance at Mr Sims' residence but otherwise she would not be a part of the interaction with Mr Sims; 5. the noise complaint attendance was so minor and trivial that it could not have been a conflict of interest for her to attend Mr Sims' residence; 6. conducting background checks as to whether there was an existing NAD at Mr Sims' residence was her role as the non-driver in the police team with SC Walsh, but this did not amount to anything more than a background check; 7. SC Walsh was losing control of his conversation with Mr Sims and Mr Sims was becoming aggressive; 8. while she acknowledged incorrectly stating that more than one neighbour had complained, she did this to avoid making the noise complaint about an identifiable person; 9. she could not understand how Mr Sims could lose faith in the police from her attendance because she gave him advice about how to play the drums without making as much noise; 10. she did not accept there was anything wrong with the email she had sent which was the subject of SC Cook - Allegation 5. 11. a transfer to Kempsey Police Station would require a 2 hours and 40 minutes a shift round trip. Given her domestic arrangements it would not be possible for her to relocate her residence to Kempsey; 12. if she were transferred, she would be unable to perform overtime, as she would already be fatigued from the combination of base hours and the required travel time; 13. the events which formed the basis of the allegations occurred four years before the orders, and had been the subject of both criminal charges, non-reviewable disciplinary action, and ongoing restrictions on her duties as a police officer; and 14. she had suffered substantial losses in wages from action already taken against her arising from the events in dispute.
SC Cook's evidence was highly problematic. She was combative, rarely prepared to concede that she may have made an error at any time, and quite upfront that where her recollection or opinion differed from another person's recollection or opinion, hers was always the correct one.
SC Cook's characterisation of her access to the station summary of her father's assault allegations against Mr Sims as personal, in the sense that it was for her personal development, was altogether self-serving. It struck the Commission as an attempt to fit what was clearly access for her familial (personal) reasons into a different form of professional (personal) reasons.
In the circumstances in which she accessed the statement it is nevertheless the Commission's finding that her access did not warrant inclusion in the orders. This is because what she accessed was clearly a high-level summary. Her characterisation of it though speaks of her approach as a witness and the credit which this Commission affords to her in that capacity.
Similarly, the Commission cannot find that the tone and content of the email, the subject of SC Cook - Allegation 5 could warrant inclusion in the orders, but it does speak to SC Cook's approach as a witness.
Given the circumstances in which she found herself some self-reflection would have seen her acknowledge that she could have expressed the email in a less direct form. There was no sense that it had ever occurred to SC Cook that she might have taken a different approach.
SC Cook expressly denied that she had intervened "almost immediately" during the conversation between SC Walsh and Mr Sims, and yet insisted that the conversation between the three of them was very brief as a part of her case that the conversation with Mr Sims was unexceptional. It is frankly undeniable that SC Cook did intervene almost immediately.
SC Cook's evidence that she cannot understand how her attendance at Mr Sims' residence could have left Mr Sims with less faith in the NSW Police Force stretches credulity. Less than a month before her father had an altercation with Mr Sims which resulted in criminal charges being laid against Mr Sims. Those charges had been withdrawn only the day before her attendance at Mr Sims' residence.
The daughter of the person who had made assault allegations against him, appeared in uniform at his front door in relation to a noise complaint made by the same complainant. Of course Mr Sims would have less faith in the NSW Police Force as a result of SC Cook's attendance.
Even on the basis that SC Cook genuinely intended not to partake in the conversation, and genuinely perceived a need to intervene, the manifestation of that need for intervention demonstrates why her attendance at Mr Sims' residence was a conflict of interest amounting to misconduct.
SC Cook was not even prepared to concede that as a Leading Senior Constable, she was senior to SC Walsh. She instead made the case that SC Walsh was senior to her as he had been a police officer for approximately 12 months longer than her 20 years as a police officer.
SC Cook set out in voluminous detail her history as police officer, listed 80 examples of commendation, praise or awards, and attached twenty-five character references from former or serving police officers to her evidence.
The Commission has considered the history set out, and the examples of commendation, praise or awards. They do not, of course, reflect directly on the events in issue before the Commission. Accordingly, while they reflect well on SC Cook, they are not of great assistance in determining whether events occurred as set out in the orders.
The character references also, universally it should be observed, reflect well on SC Cook. Most of them state that the events set out in the order against her are "out of character", using essentially that form of wording. Whether the conduct is out of character is not of direct relevance as to whether it occurred.
To the extent that the character references are relied on as to whether the Commission should determine that the events did not occur as set out in the orders, it is the Commission's own assessment of witnesses before the Commission which is the primary determinant. That is the purpose of the order being appealed to the Commission. The character witnesses do not provide a basis on which the Commission has been persuaded to alter the conclusions set out above as to SC Cook's credit as a witness.
The Commission rejects the case of both applicants that police attendance at Mr Sims' residence can simply be waved away as a "mere low-level noise complaint", and so any conflict of interest is trivial.
The case that the noise complaint was "low level" runs against the applicant's evidence that attending the noise complaint in a timely manner was a priority that overrode SC Cook's conflict in attending to the complaint.
SC Cook gave similar evidence to SC Walsh when it came to the playing of drums, being that drums were heard by the applicants when they arrived at Mr Sim's residence. She also gave evidence that her action in checking whether there was an existing NAD at Mr Sims' residence was background checking, and that she in no way was involved in issuing the NAD to Mr Sims.
It was accepted by SC Cook that she said words to the effect of " … after the officer here gives you a noise abatement direction …", albeit that she did so in the context of advising Mr Sims as to how to play his drums in a way which would emit less noise. She did not dispute SC Walsh's evidence that this statement from her proceeded SC Walsh advising Mr Sims that he was issuing a NAD.
On the basis of consideration only of SC Cook's evidence, the Commission would not have been satisfied that there was sufficient doubt cast on the findings in the orders about drums being played when the applicants approached Mr Sims' residence. This is because of the conclusions as to the credibility of SC Cook as a witness.
On the basis of consideration only of SC Cook's evidence, and as is obvious from the foregoing, the Commission would have positively found that SC Cook's attendance and conduct at Mr Sims' residence was a conflict of interest amounting to misconduct. This was a conflict which she should also have reported.
On the basis of consideration only of SC Cooks evidence, the Commission would not have been satisfied that there was a sufficient doubt cast on the findings that she was instrumental in the issuing of a NAD. This is a more finely balanced outcome. Her case theory as to the background check on whether there was an existing NAD is, to that extent, rational. It is difficult to conclude that this activity alone could demonstrate a predetermination to issue an NAD.
Against this is SC Cook's intervention to announce that a NAD would be issued to Mr Sims before SC Walsh had spoken of such a direction being issued. Given what is set out above as to SC Cook's approach it is possible that she perceived Mr Sims' responses differently and was unable to restrain herself from intervening, albeit inappropriately. Overall, it is difficult to determine whether her intervention demonstrated an attempt by her to influence the issuing of a NAD.
In totality, this would have led to a conclusion that SC Cook had not discharged the requisite onus in relation to the issuing of the NAD, being SC Cook - Allegation 4.

[30]

Consideration of the combination of the applicants' evidence

Of course, the Commission needs to consider findings in both applications in light of the evidence of both SC Walsh and SC Cook.
The Commission has concluded that collectively, the evidence of the applicants has raised sufficient doubt, in the sense set out in Zisopoulos.
To this point, the Commission accepts the evidence of SC Walsh. The Commission observes that the evidence of SC Walsh as to the playing of drums was supported in terms by SC Cook. While the credibility failings of SC Cook are a cause for concern as to the outcome of this question, ultimately any credibility failing of SC Cook does not of itself damage the findings by the Commission that SC Walsh is a witness whose evidence is credible.
Accordingly, SC Walsh - Allegation 1 and SC Walsh - Allegation 2 would be unjust. Similarly, SC Cook - Allegation 3 would also be unjust as far as it related to whether the drums were heard.
On balance, the other aspects of SC Cook - Allegation 3, telling Mr Sims that multiple complaints had been made and that she had no option but to intervene, would have had sufficient doubt raised as to require the respondent to respond. This outcome allows that it may be appropriate for a police officer to raise a noise complaint in a way that does not expressly identify a particular complainant. It also allows that SC Cook may, even if incorrectly, have believed that her intervention was warranted.
It is of course relevant that the person whose identity SC Cook was attempting to obscure was her father. In that context her explanation for protecting the identity of the complainant is less persuasive. Ultimately, the Commission considers her explanation adds to the weight of the findings that her attendance was a conflict of interest.
The addition of the case and evidence of SC Cook does not in my view change the conclusions set out above as to SC Walsh - Allegation 3. This is because SC Walsh - Allegation 3 needs to be assessed on the basis of information known to SC Walsh. Accordingly, SC Walsh - Allegation 3 would be unjust.
Nothing said by SC Walsh impacts the conclusions set out above as to SC Cook - Allegation 1. SC Walsh had no involvement in the events leading to SC Cook - Allegation 1. Accordingly, SC Cook - Allegation 1 would be unjust.
I do not consider that anything said by SC Walsh impacts the conclusions set out above as to SC Cook - Allegation 2. This is because SC Cook - Allegation 2 needs to be assessed on the basis of information known to SC Cook. The reasons the Commission has rejected the submissions of both applicants as to the existence of a conflict of interest are already set out above. Accordingly, SC Cook - Allegation 2 would not be unjust.
The evidence of SC Walsh does impact what is set out set out above as to SC Cook - Allegation 4. Whatever SC Cook's intention may have been as to the issuing of a NAD to Mr Sims, the facts before the Commission establish that SC Walsh issued the NAD. Given that the Commission has accepted SC Walsh's evidence as to the issuing of the NAD, notwithstanding some concerns about his evidence in that respect, SC Cook - Allegation 4 would be unjust as there would be no factual basis for the substance of that allegation.
Nothing said by SC Walsh impacts the conclusions set out above as to SC Cook - Allegation 5. SC Walsh had no involvement in the events underlying SC Cook - Allegation 5. Accordingly, SC Cook - Allegation 5 would be unjust.

[31]

The respondent's case in response to the applicants' cases

As set out above, when the respondent sought to tender the witness statement of Superintendent Clarke, the applicants both objected. Their objections were to the inclusion, as attachments, of statements by people who were not called as witnesses in the proceedings, as to the truth of the contents of those statements. For example, statements of Mr Sims.
Given the outcomes determined following consideration of the cases put by the applicants, it is now necessary to consider whether such material can be admitted as to the truth of its contents, and the weight which should be given to such material.
The Commission was initially reluctant to place any weight on these statements, but as Mr Darams submitted during proceedings, the Commission is not bound strictly by the rules of evidence. This was a point which was implicitly accepted by the applicants in their submissions that little weight should be accorded to such statements.
As set out above when considering the orders, and the reasons and logic set out therein, the orders were the result of a thorough, detailed and logical process. Superintendent Clarke had a significant body of evidence before him, and set out logically why he preferred the version of Mr Sims and his brother to that of the applicants.
The respondent's case that drums were not being played when the applicants approached Mr Sims' residence rested largely on asking the Commission to conclude that the applicants had not discharged their onus to displace the findings of Superintendent Clarke.
The respondent played a series of recordings which she submitted were recordings captured by Mr Sims' neighbour's security camera, and which she submitted demonstrated drums being played at an earlier time in accordance with Mr Sims statement, and not at the time the applicants arrived at Mr Sims' residence.
The respondent's case was that in the event that the respondent bore an onus to reply to the case put by the applicants, the recordings and the accumulation of statements relied on by Superintendent Clarke would discharge that onus.
The Commission has no reason to doubt that the security camera recordings played to the Commission were what that respondent said they were; that is, they were recordings, including audio of the relevant time periods from Mr Sims' neighbour's security camera. The Commission has considerable reason to doubt that the recordings can be relied on as proof that Mr Sims was drumming earlier and not drumming when the applicants arrived at his residence.
The following exchange between the Commission and Mr Reitano fairly summarises the difficulties with accepting the recordings for the purpose submitted by the respondent. "REITANO: … The second matter that you asked Mr Nagle about, that I think you indicated you would direct to me, is the question of whether Senior Constable Cook heard or her evidence about whether she heard voices talking and that you heard them. Now-- COMMISSIONER: My question, to get it in the right context, was is not so much about the truth of what happened on the event, it was what she said she heard on the recording. REITANO: Yes. COMMISSIONER: I heard a conversation which was inaudible to me, the details of it was inaudible. Senior Constable Walsh said, "Yes", he heard them. Senior Constable Cook just point blank said, "No". REITANO: Yes. COMMISSIONER: There was no discussion, no possibility that she was wrong, it just didn't happen on that recording. REITANO: Yes and again, I don't know. I'm not going to venture into whether I heard it or not. I'm not going to venture into whether other people heard it or not. She says she didn't hear it. In terms of the question that was asked her, "Can you hear people talking", the one thing that I think you said in what you just outlined to me was that you couldn't hear what was said. You could hear - I can't remember the words you used and I apologise for not remembering it-- SPEAKER: Inaudible. COMMISSIONER: Sorry, I should have used, if the words weren't distinct, weren't distinct. There was a conversation but it was - the in fact words were not able to be discerned, yes. REITANO: I'm not sure, I can't speak for what the Commission heard, I can't speak for what other people heard. Senior Constable Cook gave evidence that she didn't hear it. You yourself described it and I'm not being smart by suggesting this, you yourself described it as "inaudible". If you can't hear what the words are being spoken, it's difficult to suggest that you can hear a conversation. And if she was asked about "Can you hear a conversation" or "You can hear people talking" and what is heard is something that's inaudible, it's difficult to suggest, as I think the Commission is, that her credit is in some way impugned because she said she couldn't hear it. It's quite an interesting prospect that the Commission's view that it hears something and someone else says they can't hear it in what is less than a desirable, one would have to say, in terms of what occurs by way of sound, a recording, the Commission's view should trump that and it means that the - or that Senior Constable Walsh's view trumps that and that the witness should not be believed on her own. I mean, one would have to concede, if anything, about the sound coming from the CCTV footage overall, it was less than satisfactory, it was less than something that you'd want to make a serious assessment about not wanting to believe someone about. CF again, the issue about what you can hear by way of drums, there was one point at which you could hear very loud drumming, which I think was the 10.30 drumming, but other than that you had to struggle to hear a lot of it. COMMISSIONER: All right. REITANO: There was wind that you could hear, and this is from the footage. Then throw in all the things that Mr Nagle talks about in this room. In my submission-- COMMISSIONER: No, I've been back over that portion of evidence and I accept what you say, in large part, including when I had to ask the court reporter to stop tapping so that it could be heard. REITANO: There was the other one that's referred to, the other one, the other aspect of it that's referred to. I'm relying on the evidence that Mr Nagle gave from the bar table, in para 23 of where he pointed out that the recording had been, at least at that stage, been turned down in volume, that the sound had been turned down in volume. And I give the reference to where it occurred in the transcript. COMMISSIONER: I remember that discussion. REITANO: Now, I didn't look and I'm not, in any way, being critical of anyone and I'm not suggesting that anyone deliberately did anything, but I didn't look at other times to see where the sound level was at when various witnesses were being asked, such as when Senior Constable Walsh was being asked whether he heard people talking or not." [1]
The respondent asked the Commission to be the judge of what was and was not heard on the recordings in circumstances where the volume at which the recording is replayed and the sharpness of a listener's hearing are both capable of distorting what is heard. It is clear that there is a considerable amount of background noise in each recording.
The Commission finds itself unable to rely on the recordings as proof that drums were not being played at the time the applicants approached Mr Sims' residence.
The witness statements relied on by Superintendent Clarke, by those actually in a position to know if drums were being played are the statements of Mr Sims and his brother. They flatly denied that drums were being played at the time in question.
There is nothing inherently implausible in the statements of Mr Sims or his brother. Relevantly, there is a substantial degree of agreement in those statements with the version of events given by the applicants as to the conversation between the applicants and Mr Sims and his brother. The only substantial disagreement between the four people is whether drums were being played.
The Commission does not consider that the remainder of the material relied on by Superintendent Clarke, being the statements of Mr Cook, of Mr Sim's neighbours, the sound engineers or the recreation of the circumstances directly address whether drums were being played.
The respondent's case insofar as she actively led evidence before the Commission was not persuasive. The weight which can be given to other aspects of the respondent's case was not sufficient that they can displace the conclusions the Commission reached after consideration of the applicants' cases.
It is important to set out that the Commission is not making any finding as to the credit of either Mr Sims or his brother. That does not fall to be determined in these proceedings.
It is also important to set out that the Commission has reached the conclusion it has is because of the credit findings made about SC Walsh, not simply because he gave sworn evidence as to the relevant events.
Accordingly, the respondent's case as to SC Walsh - Allegation 1, SC Walsh - Allegation 2, and SC Cook - Allegation 3, doesn't alter the conclusion that the Commission had reached following consideration of the applicants' cases.
As already set out in analysing the applicants' evidence, the Commission considers SC Cook's untrue statements to Mr Sims about the source of the noise complaint really goes to her conflict of interest in responding to the noise complaint.
The respondent's case as to SC Walsh - Allegation 3 developed in two steps: 1. SC Walsh's case was fundamentally based on any conflict being managed by SC Walsh leading the attendance at Mr Sims' residence, and did not adequately address the changed circumstance from SC Cook's intervention; and 2. Even if the initial position was correct, given SC Walsh's evidence that there was no basis for SC Cook to have intervened, her intervention should of itself have caused SC Walsh to understand that the conflict of interest should be reported.
There is force to this argument, particularly as neither applicant adequately addressed the incongruity of SC Cook's words to the effect of " … after this officer issues you with a noise abatement direction … ".
The Commission considers that while it should have struck SC Walsh as a reportable conflict of interest, the gravest aspect of the conflict is the earlier assault charge against Mr Sims, in which Mr Cook was the alleged victim. Regardless of SC Cook's intervention, this was not known to SC Walsh.
Accordingly, the respondent's case as to SC Walsh - Allegation 3 doesn't alter the conclusion that the Commission had reached following consideration of the applicants' cases.
The respondent's case as to SC Cook - Allegation 1 was seriously damaged during the cross examination of Superintendent Clarke when he acknowledged that his findings were based on his understanding that SC Cook had gone beyond a station summary of the relevant COPS event. Superintendent Clarke's findings were premised on an understanding that SC Cook had entered into the more detailed COPS event proper.
While the Commission has serious concerns about the evidence of SC Cook, her evidence on this issue was not challenged by the respondent. Nor was any evidence led which would counter her submission that she did not open the COPS event itself.
Accordingly, the respondent's case as to SC Cook - Allegation 1 doesn't alter the conclusion that the Commission had reached following consideration of SC Cook's case.
Given the Commission's conclusions as to SC Cook - Allegation 2, it is likely unnecessary that the Commission consider the respondent's case in response to this allegation. In the event, the respondent's case was in essence the one set out above in the Commission's findings. Accordingly, the conclusions reached by the Commission, after consideration of SC Cook's case as to SC Cook - Allegation 2, remain.
To the extent that the respondent put a case in response as to SC Cook - Allegation 4, she largely referenced the statement of Mr Sims. The respondent's case was that the intervention of SC Cook to the effect that "… after this officer issues you with a noise abatement direction …" was the basis for Superintendent Clarke's findings.
While there was no logical explanation for SC Cook's intervention, her submission that Mr Sims' perception that she issued the NAD to him was wrong was borne out by the facts. It is understandable that Mr Sims will have perceived that SC Cook issued the NAD, given the conduct of SC Cook, but that perception was not correct.
Accordingly, the respondent's submissions do not alter the findings made by the Commission, set out above as to SC Cook - Allegation 4.
As to SC Cook - Allegation 5, the respondent's case pointed to substantively the same matters as the Commission has already considered.
Accordingly, the respondent's submissions do not alter the findings made by the Commission, set out above as to SC Cook - Allegation 5.

[33]

Consideration of the interests and harshness

Consideration of the interests of SC Walsh are naturally straightforward. As the Commission has concluded that the substance of the allegations against him cannot be sustained, his interests can only properly and adequately be accounted for by revocation of the orders.
In SC Walsh's case the character references and letters of support are therefore of limited value because they are not required. Given the orders have been found to be unjust, there is similarly no need to consider harshness as a basis for revocation.
Consideration of the public interest is also straightforward. Absent a proper factual basis for the orders, it is apparent that the public interest would require revocation of the orders as a matter of fairness.
Consideration of the interests of SC Cook is not straightforward. In her case, the most fundamental interest a police officer would have for revocation exists only for some of the bases on which the order was made. That is, she has succeeded in persuading the Commission only in some cases that there was no factual basis for the allegations against her.
As has already been set out at length, the Commission does not accept her submission that any conflict of interest arising from her attendance at Mr Sims' residence was at the very low end of the scale of seriousness.
SC Cook's submission as to the harshness of the orders referenced her interests in having the orders revoked. She submitted that the required travel, and prior disciplinary history, went to both harshness and her interests.
The Commission finds SC Cook's submissions as to the travel which would be required by the orders, and the prior disciplinary action taken against her, together with the length of time between the events and the orders compelling, both as to harshness, and as to her personal interest in revocation of the orders.
Consideration of the public interest in the case of SC Cook is complex. The fact that the orders have been made, and in the context of the Commission's findings that there was a factual basis for those orders, is obviously strongly supportive of the orders being upheld.
More broadly, the public interest is clearly served by meaningful disciplinary action being taken against a police officer who engages in egregious conduct and then displays no sense of understanding or remorse.
The Commission concludes that the orders against SC Cook should be revoked, both because they are harsh in their effect on her and because her interests in not being the subject of further disciplinary action over events for which she has already been the subject of discipline outweighs the public interest in upholding the orders.
Accordingly, it is not necessary to further consider the character references, and the matters set out in them as to matters such as the public benefit to be gained from not implementing the orders. The Commission observes that, on their face, such matters would not likely persuade the Commission to revoke the orders. The benefits of SC Cook's continuing service as a police officer would have manifested if she had been transferred, albeit by a different local community.

At a glance

Court

Decision date

Source

Judgment (36 paragraphs)

Cases Cited (24)

Cited By (1)