Writer v Commissioner of Police

Non-disclosure orders

1. As the incident involved children I determined to make non-disclosure orders pursuant to s 164A of the Industrial Relations Act 1996 (NSW). Neither SC Writer nor the Police Commissioner objected to me doing so. Those orders are set out at [102] below.
2. While a number of young persons were mentioned in the evidence, only one is strictly relevant for present purposes - that is, the one left alone in the police vehicle. I will refer to that young person as "the Child".

Factual context

1. SC Writer attested as a police officer in April 2004. He has been recognised for good police work on several occasions during his career with NSW Police, including through being awarded the Police Medal following 10 years of "diligent and ethical service".
2. As at April 2016 SC Writer was stationed at the Coraki Police Station. He was the Lock Up Keeper, a position which entitled him to receive subsidised accommodation and other financial benefits.
3. On 13 April 2016, at about 1.10pm, Sergeant ("Sgt") Dean Childs, the supervisor of the Lower Rivers sector of the Richmond Police District, received a report from a member of the community in relation to malicious damage near the Box Ridge Mission. Sgt Childs dispatched SC Writer and SC Quinn to respond to the incident.
4. Upon the officers' arrival at the Box Ridge Mission, a member of the local community identified a number of youths who were involved in damaging a motor vehicle belonging to the local council, one of whom was the Child. SC Writer and SC Quinn located the Child and one other child. They were placed into the transport pod on the rear of the police vehicle, rather than the back seat, and taken to the Box Ridge Mission. The mother of the Child was at work. The other child was delivered into the custody of his mother.
5. At about 2.00pm, SC Writer and SC Quinn returned to the Coraki Police Station with the Child in the back of the police vehicle. On arrival at the police station the officers failed to remove the Child from the vehicle. This was in breach of the procedures set out in the NSW Police Force Handbook, which provides: [1] "Escorting/transporting police When escorting/transporting detainees, the senior escorting officer will thoroughly inspect and search the transporting vehicle prior to and immediately after each transportation. They should also conduct a risk assessment, considering the following issues: … • Does the detainee have any special care needs? [If] they do, make provision for those needs if it is practicable and safe to do so. … Upon arrival at a place of detention, inform the custody officer of the results of the risk assessment and any other information relevant to the care, control or safety of the detainee."
6. SC Writer was the "senior escorting officer" in relation to the transportation of the Child.
7. At the time, the Child was 8 years old. He is Aboriginal. He has a hearing impairment and learning difficulties.
8. Following their return to the station, SC Writer and SC Quinn began making their report into the incident. Shortly thereafter, they were tasked to assist another police officer with an unrelated police investigation and were directed to leave their vehicle with Sgt Childs.
9. At about 2.46pm, after the Child's mother attended the police station, Sgt Childs called SC Writer to ascertain the whereabouts of the Child. SC Childs and SC Quinn then realised that the Child was still in the back of the police vehicle. SC Writer told Sgt Childs to check the back of the police vehicle.
10. Sgt Childs located the Child in the vehicle and immediately removed him. By that time the Child had been left alone in the vehicle for approximately 50 minutes. An ambulance was called. Paramedics attended and found the Child to be in good health with no discernible injuries or symptoms.
11. Sgt Childs deposed that a short while later he received a call from SC Writer. He described their conversation as follows: [2] "Senior Constable WRITER said, 'Serge it's Mick' I said words to the effect of, 'Mick, sorry mate but I had to hang before there was a lot going on' Senior Constable WRITER said, 'Serge I just need to know, is he alright' I said something similar to, 'Yeah it appears he is. I've also notified the Duty Officer, I'm about to update him now' Senior Constable WRITER said words to the effect of, 'Yeah I would expect you to, look I know we've stuffed up and we'll get a kick in the arse I don't care about that as long as he's ok' I said words to the effect of, 'Well he seemed to me to be ok. [Name redacted] and the family are pretty fired up at the moment, and there's a bit of a group forming across the road so I don't want you coming back here at all until I call you and tell you you can." (Sic)
12. A further conversation took place between Sgt Childs and SC Writer at about 7.30pm on 13 April 2016. A record of that conversation described SC Writer saying words to the effect "I feel sick" and "We could have killed that boy today you know, what if it had been the middle of summer" [sic]. [3] SC Writer was described as physically shaking and speaking in an unsteady voice.
13. Following the incident, at the direction of Superintendent ("Supt") Martin, the Commander of the Richmond Police District, SC Writer was tasked to perform duties at the Ballina Police Station rather than Coraki. Chief Inspector ("CI") William McKenna, the Officer in Charge of the Ballina and Lower Rivers Sector of the Richmond Police District, deposed that at the same time SC Quinn was assigned to Lismore. He stated that the decision to move the officers "was made to protect both officers from negative community sentiment and potential community backlash, and also to provide both officers with additional support and supervision". [4] SC Writer commenced performing duties at Ballina on 18 April 2016.
14. On 22 May 2016 SC Writer entered into an Interim Risk Management Plan ("IRMP"). Although the IRMP was not in evidence, the following can be gleaned from the evidence: 1. SC Writer was to be "temporarily relocated to Ballina Police Station, Richmond Local Area Command, where [he was to] perform all aspects of policing duties"; [5] 2. other than in an emergency, SC Writer was not to attend Coraki without permission; and 3. SC Writer was not eligible for higher duties or relieving positions.
15. The IRMP was extended on 4 November 2016. Once again, that document is not in evidence but it appears to have been in the same terms as the IRMP of 22 May 2016.
16. While SC Writer performed duties at Ballina from 18 April 2016, his substantive position remained as Lock Up Keeper at Coraki. Notwithstanding the terms of the IRMP, he remained entitled to reside at the Lock Up Keeper's residence at Coraki, and did so until approximately mid-2017, when he vacated the property for personal reasons.
17. In the meantime, on 11 October 2016 both SC Writer and SC Quinn were charged with two offences: 1. Neglect or refuse to carry out a lawful order contrary to s 201 of the Police Act; and 2. Leave child in motor vehicle causing emotional distress contrary to s 238 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
18. The two allegations were heard by the Local Court of New South Wales constituted by his Honour Magistrate Linden who, on 27 October 2017, delivered judgement dismissing the first charge but finding the second proved in respect of both SC Writer and SC Quinn. In the sentencing proceedings his Honour recorded his satisfaction that the incident was the result of "human error", and dismissed the second offence without recording a conviction pursuant to the provisions of s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
19. On 11 March 2018 SC Writer transferred to a General Duties position at the Ballina Police Station. The circumstances of that transfer are rather opaque. Suffice it to say, from that time the position at Ballina was SC Writer's substantive position. He was no longer the Lock Up Keeper at Coraki.
20. On 24 August 2018, the Police Commissioner, through his delegate A/Supt Toby Lindsay, served SC Writer with a Notice to Show Cause ("Notice") why he should not be the subject of reviewable disciplinary action pursuant to s 173 of the Police Act. The Notice contained the following allegation: "There appear to be grounds on which I it can concluded [sic], on the balance of probabilities, although having regard to the seriousness of the allegation that, on 13 April 2016, while investigating an incident of malicious damage, you detained [the Child] (an aboriginal child) at approximately 1:30pm and then left him unattended in a police vehicle out the front of Coraki police station for approximately 50 minutes. In doing so you: 1. held [the Child] in a police vehicle for longer than what was reasonably necessary; 2. failed to search the transporting vehicle immediately after [the Child] was transported; and 3. failed to conduct the necessary risk assessments. Furthermore, it appears [the Child] was left unattended in the police vehicle in circumstances where he was likely to become emotionally distressed since: 1. he was left alone; 2. he was only 8 years old at the time; 3. he is hearing impaired, has learning difficulties and was not wearing his hearing aids at the time; and 4. the air temperature on 13 April 2016, between 1pm and 3pm, ranged from 24.5 to 24.8 degrees Celsius. In addition, there appears [sic] to be grounds on which I could conclude that your conduct constituted neglect of duty. In the circumstances, there appear to be grounds on which I could conclude that your conduct was contrary to the Police Act 1990, the Children and Young Persons (Care and Protection Act) 1998, the NSW Police Handbook, the NSW Police Force Code of Conduct and Ethics and the Work Health and Safety Act 2011 (NSW)." (Emphasis in original)
21. The Notice went on to state: "Therefore, I hereby give you notice that I propose making the following order under section 173(2) of the Police Act 1990 that: ● your salary increment be deferred for a period of 12 months from the date your next increment is due; and ● you are subject to a disciplinary transfer from the Coraki Police Station, Richmond Police District to Newcastle Police Station, Newcastle City Police District." (Emphasis in original)
22. On 9 October 2018 SC Writer responded to the Notice ("Response"). In that Response he: [6] 1. explained that the events were the result of a mistake, as the Local Court had found; 2. accepted (what he described as) the "disciplinary action" involving the transfer from the Coraki Lock Up Keepers role to Ballina and the deferred salary increment of 12 months, but submitted that further punishment was unfair; 3. set out the personal toll that the incident had already taken on him including leading to the dissolution of his marriage; 4. stated that in May 2018, following separation from his wife, he commenced a relationship with another serving police officer, SC Shannon Hudson, who is stationed at Lismore, and that the forced transfer to Newcastle would unfairly separate them or cause her to choose between her position and their relationship; 5. advised he has built a home with SC Hudson in Lismore that has a $420,000.00 mortgage and that neither of them could afford the commitments if they were separated by the forced relocation to Newcastle; 6. advised both he and SC Hudson have children who reside with or near them in Lismore, including, significantly, SC Writer's youngest child who (at that time) was still in high school completing her Higher School Certificate; and 7. advised that he relies upon SC Hudson for support with the post-traumatic stress disorder from which he suffers and for which he continues to receive treatment.
23. On 9 May 2019, (by then) Supt Lindsay, as the Police Commissioner's delegate, made the Order. He found each of the allegations reproduced at [25] above to have been sustained. He imposed on SC Writer the following action: 1. the 12 month deferral of his next salary increment; and 2. a disciplinary transfer from the Ballina Police Station to the Newcastle Police Station.
24. On 20 May 2019 SC Writer commenced these proceedings, seeking a review of the Order by the Commission pursuant to s 174(1) of the Police Act.

Legal principles applicable on review

1. Section 173 of the Police Act confers on the Police Commissioner the power to take action in response to a police officer's misconduct or unsatisfactory performance. That action can include "reviewable action" and "non-reviewable action": s 173(1). The deferral of SC Writer's salary increment and the disciplinary transfer are both "reviewable action".
2. These proceedings are brought under Pt 9 Div 1A of the Police Act, which relevantly provides as follows: 1. A police officer in respect of whom an order for reviewable action is made under s 173 may apply to the Commission for a review of the order on the ground that it is beyond power or is harsh, unreasonable or unjust: s 174(1). 2. In proceedings before the Commission, and despite any law or practice to the contrary, 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: s 175(2). 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: 1. the interests of the applicant; and 2. the public interest (which is taken to include the fact that the Commissioner made the order pursuant to s 173): s 175(4) 1. Following arbitration, the Commission is to determine the application by: 1. revoking the order; 2. revoking the order and making such other order as it considers appropriate, whether or not an order the Police Commissioner is empowered to make under s 173; 3. upholding the order; or 4. dismissing the application: s 177(1).
3. The jurisprudence of the Commission in proceedings under Pt 9 Div 1A has been developed in a number of cases. The following principles can be distilled from those authorities: 1. In determining the approach to take to cases arising under Pt 9 Div 1A, 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: see for example Saliba v Commissioner of Police [2006] NSWIRComm 200 at [90]-[91]; McDiarmid v Commissioner of Police [2012] NSWIRComm 100 at [88]. At the same time, the relative severity of the sanctions under consideration must be borne in mind when considering authorities dealing with removal orders: A (a pseudonym) v Commissioner of Police [2019] NSWIRComm 1091 at [57]. 2. 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). 3. 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]. 4. Part 9 of the Police Act contemplates that the Commission will assess allegations of misconduct or unsatisfactory performance and determine if those allegations are properly based, and then determine if those matters justify the relevant reviewable orders: A (a pseudonym) v Commissioner of Police at [45]. 5. As s 175(2) of the Police Act makes clear, 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. In comments which I consider are apposite to the present proceedings, in Zisopoulos Wright J (albeit in dissent) observed: "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." 1. The Police Commissioner is required to "answer the applicant's case": Tredinnick v Commissioner of Police [2016] NSWIRComm 14 at [54]. 2. That is, without qualifying the burden imposed on an applicant by s 175(2), 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." 1. The construction of the phrase "harsh, unreasonable or unjust" as it appears in s 174(1) of the Police Act is informed by the way in which it is construed in proceedings under Ch 2 Pt 6 of the Industrial Relations Act 1996 (NSW), allowing for such modifications as are required by the terms of the Police Act: Hosemans at [97], [104]; Beck v Commissioner of Police (No 3) [2015] NSWIRComm 1023 at [28]; Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 at [21]. 2. Each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration; they should not be considered as a "tautological trinity": Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [21]. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 McHugh and Gummow JJ observed (at 465): "It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 1. 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). 2. 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]. 3. At the same time, however, the legislation 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].

Consideration

1. No argument was raised by SC Writer that the Order was beyond power. The Order is challenged on the basis that it is harsh, unreasonable and/or unjust.

Prior good service

1. SC Writer urged the Commission, when considering the Order, to have regard to the fact that the incident on 13 April 2016 was an aberration, inconsistent with his 17 years of service. He noted that earlier in 2016 he had received the Police Medal for 10 years of ethical and diligent service to the community of NSW. His evidence included letters of appreciation and support from the local Coraki community following the incident, as well as commendations and awards during his service as a police officer.
2. The evidence adduced by SC Writer at the hearing included statements in the nature of testimonials from the following: 1. Paul Cowles, a Ranger employed by the Richmond Valley Council; 2. Barry Kneeves, a former hotelier in Coraki; 3. SC Peter Lever of Tweed Heads Police Station; and 4. Sgt Roderick Morris, also of Tweed Heads Police Station.
3. Sgt Childs, SC Writer's supervisor at Coraki for approximately five years, held a good opinion of him as a police officer, describing him as "very competent". [7]
4. I note further: 1. under cross-examination Sgt Childs described as "very genuine" the empathy expressed by SC Writer following the incident on 13 April 2016, and stated that he (Sgt Childs) had "no doubt that it was an accident"; [8] 2. Detective Chief Inspector ("DCI") Cameron Lindsay, the investigator appointed to conduct the departmental investigation into the incident, stated that he had formed the opinion that the incident was the result of an honest mistake by the officers involved; 3. CI McKenna accepted the proposition that the incident was caused by human error, that it was not malicious or deliberate, and that it was an innocent mistake; and 4. Supt Scott Tanner, the Commander of the Richmond Police District, accepted that on 13 April 2016 SC Writer was not acting out of malice "but there was certainly indifference", and it was a "preventable mistake". [9] By way of clarification he stated: [10] "Sorry, I was saying that an eight year old child being placed in the back of a police vehicle, in my 27 years of experience, is completely unacceptable, preventable. Why the child wasn't placed on the back seat of the police vehicle. A child of eight years old can't be prosecuted for any crime. So, that's where I come about saying it's a preventable mistake."
5. I find it difficult to comprehend how two senior constables can each have forgotten that they had an eight year old child locked in the back of the police vehicle. There is no suggestion that anything had occurred that might have distracted them between leaving the Box Ridge Mission and arriving at the police station. And yet the weight of evidence supports a finding that it was simply a mistake. That said, I share the concerns expressed by Supt Tanner and agree that the incident demonstrated indifference.
6. While I note SC Writer's length of service and the evidence attesting to his generally good service record, I accept the following contentions advanced by the Police Commissioner in his written submissions: 1. SC Writer held a senior rank, which adds to the seriousness of the misconduct: Vouden v Commissioner of NSW Police Force [2014] NSWIRComm 25; 2. during his employment, SC Writer had been counselled on four occasions for workplace infractions. This prior disciplinary history is "aggravating in the circumstances"; [11] and 3. SC Writer's conduct "had the real potential to undermine the integrity of, and public confidence in, the [NSW Police Force] generally and specifically in the Coraki community". [12]

Did SC Writer engage in misconduct?

1. The Order was premised on a finding that through his conduct on 13 April 2016 SC Writer had engaged in misconduct. It was alleged he had engaged in conduct contrary to the Police Act, the Children and Young Persons (Care and Protection) Act 1998 (NSW), the NSW Police Handbook, the NSW Police Force Code of Conduct and Ethics and the Work Health and Safety Act 2011 (NSW). SC Writer did not seek to challenge those findings.
2. SC Writer submitted as follows: [13] "21. At the outset the Applicant submits that the Commission should be satisfied that the incident did not involve serious misconduct or a pattern of behaviour. Assuming the correctness of the present lRC jurisprudence, it is conceded that the allegation constitutes misconduct for the purposes of the Act, however it is of a kind that ought be characterised as negligence, error of judgement or innocent mistake, rather than intentional, repeated and serious insubordination: Pillai v Messiter (No 2) (1989) 16 NSWLR 197; McDiarmid v Commissioner of Police [2012] NSWIRComm 100."
3. A footnote to this passage read as follows: "The Commission having held that breaches of the Police Regulation, or the New South Wales Police Force's Code of Conduct, or its policies, will be sufficient to establish misconduct: see Allison v Commissioner of Police [2018] NSWIRComm 1005 at [137] and Grant Hilton Wright v Commissioner of Police [2015] NSWIRComm 1016."
4. SC Writer did not call into question the correctness of the authorities referred to in the passages reproduced at [41]-[42] above. It was not suggested that they not be followed in the present case.
5. Having regard to these matters, particularly the concession at par 21 of the SC Writer's submissions reproduced at [41] above, I do not consider it necessary to examine in detail the allegations against SC Writer. I find that he engaged in misconduct as alleged in the Order.
6. However, as SC Writer further submitted: [14] "3. Accordingly, it does not follow that because the conduct is admitted and has the necessary character of 'misconduct' (as that term is presently defined for the purposes of this review), that the action taken by the [Police Commissioner] is not harsh, unreasonable and/or unjust. … 10. …However, for the reasons addressed in chief, [SC Writer] presses his submission that the conduct should be characterised as an 'error' or 'mistake'. Although unintentional breaches of policies and procedures do amount to misconduct for present purposes, the contradistinction with deliberate and/or premeditated misconduct remains significant. Clearly, the latter category justifies substantial condign punishment, whereas the former would not, at common law, justify any action. In the context of police discipline, [SC Writer] submits that the distinction should be treated as a factor informing the question of whether the proposed disciplinary action is proportionate, reasonable and just." (Emphasis in original, footnote omitted)
7. In reference to these submissions I note the evidence summarised at [37] above.
8. In this context I turn to the question of whether the Order is harsh, unreasonable or unjust.

Deferral of increment

1. In his submissions SC Writer sought revocation of the Order in full, which would result in no reviewable action being taken against him. This would include the deferral of his salary increment. However, he also submitted that his "principal objection" was to the proposed disciplinary transfer. [15] He stated: [16] "41. I know that some remedial action has to be taken against me and I do not take issue with my salary increment being deferred for a period of 12 months and I do not take issue with being subjected to a disciplinary transfer, however my submission is that there is no reason why a disciplinary transfer could not be to the Ballina Police Station and I remain working there, or I am subjected to a disciplinary transfer to Tweed Heads or Byron Bay or Mullumbimby or Murwillumbah or Brunswick Heads or Bangalow, all of which would be easier, and in terms of fatigue and safety, a more safe system of work for me to travel to and from to perform 12-hour shifts."
2. This passage suggests that SC Writer did not seek to challenge the deferral of increment. To the extent that his submissions suggested otherwise, the issue may fall to be determined in the context of an argument he advanced that the Order ought to be revoked as he had already suffered sufficient punishment for the incident. For the reasons set out at [54]-[63] below, this argument does not assist SC Writer.
3. SC Writer did not otherwise provide any evidence, or advance any argument, that would support a finding that in imposing a deferral of increment, whether alone or in conjunction with a disciplinary transfer, the Order was harsh, unreasonable and unjust. I find that the Order cannot be impugned on that basis.

Disciplinary transfer

1. SC Writer resides in Goonellabah, an eastern suburb of Lismore, with SC Hudson. It was common ground that it would not be possible for him to commute from his home to Newcastle at the beginning and end of every shift. If he were subject to a disciplinary transfer to Newcastle he would face the choice of relocating (possibly at the expense of his relationship with SC Hudson), sourcing additional accommodation in Newcastle for the periods for which he is rostered to work or, at the extreme, leaving the NSW Police Force.
2. SC Writer deposed that he could not afford to relocate to Newcastle, or to buy or rent secondary accommodation. In his Response to the Notice, he stated that he and SC Hudson had home loans of $420,000 and a car loan of $70,000. There was little other evidence regarding SC Writer's financial circumstances to support his contentions as to the financial impact of a disciplinary transfer to Newcastle.
3. SC Writer also stated that he needed to remain resident in Goonellabah for family and personal reasons. Combining his statements in these proceedings with his Response, these reasons may be summarised as follows: 1. he wished to remain close to his children. At the time of the hearing, SC Writer's daughter was in Year 11 and can be assumed currently to be in her final year of school. She occasionally stayed with SC Writer and SC Hudson. While his Response stated that one of his sons required assistance with his education, at the date of the hearing that son was working on a fly in/fly out basis at a mine, making the degree of support required from SC Writer unclear; 2. his partner SC Hudson should not have to choose between her career and that relationship. Further, SC Writer is reliant on SC Hudson for emotional support in dealing with post-traumatic stress disorder and depression; 3. his parents, who in 2018 were aged in their mid- to late-70s, live on the family farm at Inverell. SC Writer is currently able to drive to Inverell to help them when needed. He would be unable to do so if he were transferred further away; and 4. he has close community ties throughout the area in which he currently resides.

Double punishment?

1. In his Written Outline of Submissions SC Writer contended that: "20. …In summary, [SC Writer] admits to the conduct that forms the basis for the Order, but he submits that the Commission should set it aside in part or in full because: a) [SC Writer] accepted the transfer (from Coraki to Ballina) previously imposed on him without complaint or objection, and he has restructured his life accordingly, such that the effects of the Order should be considered harsh and unreasonable; and/or b) [SC Writer] has already received sufficient disciplinary punishment of the kind that the [Police Commissioner] seeks to impose (some 4 years after the incident), such that the Order (or part thereof) constitutes double punishment and is therefore unjust."
2. The following further submissions were made in SC Writer's Written Outline of Submissions in Reply: "13. … [SC Writer's] primary case is that being transferred twice for the same incident is harsh and/or unjust. Further, and in the alternative, he submits that the circumstances of the transfer are harsh and/or unreasonable. 14. In respect of [SC Writer's] primary complaint, the [Police Commissioner] appears to accept that [SC Writer] was permanently transferred from Coraki to Ballina (Ballina transfer), for the same reasons that are said to justify the transfer to Newcastle (Newcastle transfer). There appears to be no dispute that [SC Writer] cooperated with management in the Ballina transfer, and that thereafter he re-established himself in the local area - including by building a new home with his partner (secured by a $340,000.00 mortgage). Although, the [Police Commissioner] takes issue with characterising the Ballina transfer as a 'disciplinary transfer', there appears to be no dispute that, shortly after the incident, [SC Writer] was directed to work from Ballina, a transfer which was formalised and made permanent in March 2018, at which time he lost the entitlement to the lockup keeper position and the associated benefits." (Footnote omitted)
3. Building on these passages, and distilled to its essence, the case presented by SC Writer came down to the following propositions: 1. "the transfer to Ballina was punitive action arising from the very misconduct that is alleged in the Order"; [17] 2. that transfer has resulted in SC Writer (and his family) suffering a financial loss; and 3. in the circumstances, a "further transfer would constitute double punishment for what was, on the evidence, an aberrant mistake caused by momentary lapse in concentration and owing, in part, to the vicissitudes of the police working environment". [18]
4. SC Writer was initially assigned to undertake duties in Ballina as part of an interim risk management strategy, in part to protect him from "negative community sentiment and potential community backlash". [19] At the hearing he acknowledged that the incident on 13 April 2016 increased the ill-will felt against him by the local Aboriginal community (see [67(2) below). He ultimately accepted that there were reasons to transfer him out of the Richmond Police District. In those circumstances it is both understandable and appropriate that he may have been relocated as part of an interim risk management strategy.
5. Importantly, SC Writer was not "transferred" to Ballina at that time. His substantive position remained as Lock Up Keeper at Coraki.
6. SC Writer transferred to the Ballina Police Station on 11 March 2018. The reasons for this transfer were not made clear. There is no suggestion that the transfer was a disciplinary transfer within the meaning on s 173(2) of the Police Act.
7. As noted in the submissions reproduced at [55] above, SC Writer contended that as a consequence of this transfer "he lost the entitlement to the lockup keeper position and the associated benefits". This is correct in so far as he was no longer the Lock Up Keeper at Coraki and therefore had no entitlement to reside in the Lock Up Keeper residence. However, the alleged "loss" has to be viewed in context.
8. After he was initially directed to perform duties at Ballina from 18 April 2016, SC Writer was entitled to and did continue to reside in the Lock Up Keeper's residence next door to the Coraki Police Station with his wife and family. He commuted from Coraki to Ballina before and after each shift. Following the breakdown of his marriage, he left the residence in approximately mid-2017. He stated that he moved to "a friend's place in Broadwater" [20] . Having subsequently formed a relationship with SC Hudson, he moved to reside with her in Goonellabah. SC Writer's wife and family remained living in the Lock Up Keeper's residence for some time after he had moved out.
9. There is no evidence to suggest that SC Writer ever intended to return to the Lock Up Keeper's residence after he had vacated it. Indeed, CI McKenna had been required to correspond with him regarding the poor state of repair of the property, which by October 2017 had apparently been "abandoned". [21] In the circumstances, the right to reside in the Lock Up Keeper's residence was an entitlement which SC Writer had apparently relinquished. It is not a "loss" that I consider weighs heavily in his favour in determining whether the Order is harsh, unreasonable or unjust.
10. I am not satisfied on all of the evidence, including the restrictions imposed by the IRMP, that the direction that SC Writer perform duties from Ballina from 18 April 2016, or his transfer to Ballina from 11 March 2018, are properly to be characterised as either a disciplinary transfer or as punitive in nature. I do not accept that a disciplinary transfer now would amount to "double punishment" as contended.

Should SC Writer be subject to a disciplinary transfer?

1. The Police Commissioner offered two primary reasons for the decision to impose the disciplinary transfer on SC Writer: firstly, the damage caused by the incident to the relationship between the local Aboriginal community and NSW Police, and SC Writer in particular, necessitating his transfer out of the Richmond Police District; and, secondly, the need to provide SC Writer with an increased level of supervision. Both of these, and particularly the first, raise significant issues of public interest to be considered. I will address each in turn.

The impact on the Aboriginal community

1. The Police Commissioner led a significant amount of evidence as to the impact that the incident of 13 April 2016 had on the relationship between the Aboriginal community and NSW Police in the Richmond Police District. That evidence included statements from Rosslyn Sten, an Aboriginal Community Liaison Officer with NSW Police; Robyn Kapeen, a counsellor who specialises in or provides services specific to the Aboriginal community; and, a female relative of the Child. The statements of Supt Tanner, DCI Lindsay, CI McKenna and Sgt Childs also traversed these issues to a varying degree.
2. I am cognisant that any difficulties or tension in the relationship between SC Writer and the Aboriginal community may have been caused in part by nothing more than him doing his job. That is, he gave evidence that approximately one third of the people that he had arrested in his time at Coraki were members of the Child's extended family. His evidence otherwise included positive testimonials from members of the community in Coraki.
3. Even taking those matters into account, I am satisfied that: 1. prior to 13 April 2016 there was a strained relationship between the Richmond Police District and SC Writer on one hand, and the local Aboriginal community on the other; 2. the incident "escalated the community ill feeling towards police, and SC Writer in particular". [22] SC Writer acknowledged that it "added to the ill will that was felt towards [him]"; [23] 3. knowledge of the incident was not confined to Coraki and the Box Ridge Mission. Rather, it was a "big topic of conversation" in the Bundjalung Nation across the region; [24] 4. the animosity directed towards SC Writer (and SC Quinn) included the threat of having their vehicle "bottled" if they went to the Box Ridge Mission; 5. there were legitimate concerns for the safety of SC Writer and any police officer in attendance with him; 6. the relationship between NSW Police and the Aboriginal community at the Box Ridge Mission and in Coraki has since improved; 7. however, if SC Writer was required to respond to a job in the Lower Rivers Sector (encompassing Coraki, Woodburn and Evans Head) his presence "would have the potential to escalate the situation"; [25] and 8. police officers at Lismore and Ballina may be required to respond to calls in the Lower Rivers Sector. DCI Chapman stated: "14. In my view, both Ballina and/or Lismore would not be tenable as both locations are too close to Coraki. In the Northern Rivers Sector, Lismore is one of only two 24-hour police stations. 15. There are five officers stationed within the Lower Rivers Sector, which covers Coraki, Evans Head and Woodburn. It is a daily occurrence for officers from Ballina and/or Lismore to need to provide assistance to police officers in the Lower Rivers Sector. … 16. Additionally, Lismore and Ballina fall within the Bundjalung Nation and are part of the same Aboriginal community as that located in Coraki. Many of the Indigenous community members who live in Lismore, Ballina or across the District area have family members within the community at Coraki and specifically within the Box Ridge Mission."
4. Lismore and Ballina fall within the Richmond Police District. In his oral testimony SC Writer conceded that there existed grounds for him to be transferred out of the Richmond Police District. Under cross-examination he had the following exchange with Mr R Coffey of counsel, who appeared for the Police Commissioner: [26] "Q. Mr Writer, do you accept that Superintendent Lindsay, as the then delegate, determined that there was a safety risk with you policing in the Lower Rivers sector and the Richmond police district? A. I understand that's what he says, yes. Q. Do you accept that there's an obligation on the management of the Police Force to take steps to ameliorate that risk? A. Yes. Q. And the risk is not just singled out to you but it's any officer that might work with you on the truck? A. So they say, yes. Q. And do you accept that the Police Force management team or Superintendent Lindsay as the delegate asserts that having you operate for Ballina or for Lismore where you may be required to respond to the Lower Rivers sectors is a risk that cannot be ameliorated? A. (No verbal reply) Q. Could I just clarify - add to that question, by having you remain within the police district? A. I understand that's what they think. Q. Do you agree with that? A. Yeah, to a point I do. Yeah, that's fine. I don't have a question about being removed out of the Richmond LAC. I don't have a drama with it. There's other areas I can go without putting my health at risk or my life at risk having to drive a silly amount of time to get to work. I've got no dramas - I'll go anywhere, as long as it's reasonable and I just, sorry, I don't think that their proposals are reasonable at this stage. Q. So when you say that you accept it and that you will go anywhere, just to be clear, when you say 'go anywhere' do you mean by that go anywhere up into the Tweed Byron police district? A. Yeah, I'd go anywhere north of Grafton to Tweed Heads. It's - I'd go anywhere. I don't have a problem with that. For the fact that Brian Quinn got to go 28 kilometres away from his house and they want to send me to Newcastle, sorry, I just think it's ridiculous. So I understand Mr Lindsay's point of view and I obviously don't want to put any of my colleagues at risk, I don't want to put myself at risk. I don't want to end up wrapped around a tree to get home."
5. On all of the evidence, SC Writer did not provide any basis on which it could be concluded that it was inappropriate for the Police Commissioner to have regard to the impact of the incident on the relationship between NSW Police and the local Aboriginal community. To the contrary, I find that there are legitimate reasons connected to the relationship between NSW Police (and SC Writer in particular) and the local Aboriginal community for SC Writer to be transferred out of the Richmond Police District. In making this finding I have had regard to his concession, albeit perhaps offered reluctantly, that he should be removed from the Richmond Police District, but this has not been determinative.

The need for ongoing supervision

1. Supt Tracy Chapman is the Human Resources Manager for the NSW Police Force Northern Region. She stated: [27] "10. Through my role as the HR Manager for the Northern Region, I am aware of the general nature of the complaint matter against SC Writer. Prior to the s 173(5) Notice being served upon SC Writer by his Commander, I was instructed by the Commander for the Northern Region, Assistant Commissioner Max Mitchell, to identify a location with a 24-hour police station within Northern Region for Superintendent Lindsay into which he could transfer SC Writer. I was informed that the need for a 24-hour police station was to provide SC Writer with increased supervision. In my experience, it is common for police officers who are subject to a disciplinary transfer to be transferred to a police station with increased levels of supervision where a substantial complaint has been sustained against them, such as the complaint against SC Writer."
2. Sgt Childs was clearly sympathetic to SC Writer and, as already stated, held him in good regard. On the question of whether SC Writer required supervision he gave the following evidence under cross-examination: [28] "Q. You ever have any other issue with Senior Constable Writer while you were his supervisor, supervision issues? A. No, he regularly relieved me as sergeant. Q. You wouldn't have any reason to believe, would you, that he was somebody who required ongoing supervision? Close supervision I mean, beyond the normal supervision that all police officers get by those that they report to? A. No, nothing untoward there."
3. SC Writer's position on the need for supervision was effectively encapsulated in the following submission made by Mr A Eurell of counsel, who appeared for SC Writer: [29] "…[SC Writer] takes issue with the proposition that, after an almost 20 year career in the NSW Police, working under limited supervision, he now suddenly requires ongoing supervision, such that a whole range of police stations from the Queensland border down to the Coffs Police District are unavailable to him. What the Commissioner of Police is trying to say here is we've determined, despite the view of Sergeant Childs, that he now needs ongoing supervision because of one isolated error. Therefore, a whole range of police stations along the eastern seaboard are no longer suitable. That seems to me to be an argument which is designed to justify a transfer to Newcastle."
4. In considering this element of SC Writer's case, it bears repeating that he accepted quite properly that the incident on 13 April 2016 was objectively serious. This was reflected in his early expressions of remorse immediately after the incident, which were accepted by Sgt Childs as being genuine. It is reflected further in the suggestion made to CI McKenna in cross-examination, which he accepted, that the incident had a "profound effect on Michael Writer, who was immediately concerned for the welfare of the child". [30] SC Writer acknowledged that the incident was sufficiently serious to warrant him being removed from the Richmond Police District as a result of the negative community sentiment that it engendered.
5. The seriousness with which the incident is to be viewed is relevant to the question as to whether it calls for SC Writer to be subject to a higher level of supervision. I recognise that SC Writer is a reasonably long-serving member of the NSW Police Force who is held in good regard by colleagues in the NSW Police Force and by some members of the public. To the extent that Sgt Childs might be seen to be in disagreement with the premise of the Order that SC Writer be subject to closer supervision - a proposition which was not squarely put to him - it is not determinative of the question. Nor is any sense of umbrage felt by SC Writer at the suggestion that he may require a higher level of supervision than was previously the case.
6. I find that in determining the location to which SC Writer may be transferred, he has not provided a basis on which to find that in making the Order it was inappropriate for the Police Commissioner to have regard to the level of supervision that he may require. The disciplinary transfer cannot be impugned on that basis.

Conclusion

1. I am not persuaded that SC Writer has discharged his onus of demonstrating that a disciplinary transfer, in and of itself, would be harsh, unreasonable or unjust. I find to the contrary. Further, I find that a disciplinary transfer should remove him from the Richmond Police District.
2. The question becomes whether, in contemplating a disciplinary transfer to Newcastle, the Order is harsh, unreasonable or unjust.

The alleged need for a "low Aboriginal population"

1. Supt Chapman deposed: [31] "11. As a result of the nature of the complaint, I was also tasked by Assistant Commissioner Mitchell to identify a location for Superintendent Lindsay within Northern Region with a low Aboriginal population into which he could transfer SC Writer. 12. The Northern Rivers Sector within the Richmond PD has one of the highest Aboriginal community ratio[s] within the Northern Region. 13. According to information I obtained from the 2016 Census data, Newcastle PD has the lowest Aboriginal community population in Northern Region. I understand that this is the reason the Newcastle City PD was determined to be the preferable location for SC Writer to be transferred as a result of this matter and community sentiment."
2. There is a concern arising from this and related evidence adduced by the Police Commissioner. Nothing in the Notice or the Order alleges that SC Writer is prejudiced against Aboriginal Australians, that in the discharge of his duties he has acted in a racist way or has shown a lack of cultural sensitivity, or that the incident on 13 April 2016 was in any way motivated by racism. Indeed, such a suggestion would be inconsistent with the testimony of several of the Police Commissioner's witnesses, including that referred to at [37] above.
3. The allegations against SC Writer set out in the Notice, as found substantiated in the Order (see [25] above), are clear. In taking action to address the findings in the Order it is necessary, as I have found, to have regard to the sentiments that the incident engendered in the Aboriginal community. At the same time, care must be taken not to allow the need to address the community response to the incident to develop into, effectively, an allegation against SC Writer that is not contained in the Notice or Order.
4. In short, there is nothing in the allegation levelled against SC Writer in the Notice and sustained in the Order which properly founds a "complaint" that requires SC Writer to be placed in an area "with a low Aboriginal population". Despite that, the evidence adduced by the Police Commissioner - particularly that of Ms Sten, Ms Kapeen and the Child's relative - went far beyond the consequences of the incident of 13 April 2016 on the relationship between the local Aboriginal community and NSW Police, but sought very much to paint SC Writer as a racist and bigot. In light of the terms of the Order I determined at the hearing to accept that evidence solely on the question of whether there was a legitimate community concern with SC Writer remaining in the Richmond Police District. I am satisfied that such a concern existed. Having regard to the matters set out at [65]-[69] above, I do not propose to further traverse this evidence.
5. The findings contained in the Order do not necessitate a transfer to a location "with a low Aboriginal population". To the extent that the proposed disciplinary transfer to Newcastle was predicated on that consideration, SC Writer has properly called it into question.

Newcastle as a "desirable location"

1. Supt Chapman gave evidence that most of the Police Districts in the Northern Region are "desirable locations" within the meaning of cl 77.3 of the Crown Employees (Police Officers - 2017) Award. This means that they are locations in which demand for placements exceeds the positions available to accommodate them. She stated that due to the demand for placements exceeding supply, there is an application and recruitment process which "tends to be competitive". [32]
2. Supt Tanner stated as follows: [33] "36. By transferring SC Writer to Newcastle City PD, he would be moving to a highly desirable location. In my view, it is important to understand that officers who are not subject to disciplinary action would consider themselves fortunate to secure a position at Newcastle City PD. Many officers perform general duties in and around the Greater Sydney area for many years after attesting from the Police Academy in Goulburn, travelling back and forth from the Central Coast, Newcastle and Hunter areas before being successful in obtaining a transfer to Newcastle City PD or surrounding Police Districts. 37. Newcastle PD is a highly desirable location and I believe that a disciplinary transfer to that District is an exceptional offer. It is also a good opportunity for officers to further their career, as it is a larger PD with enhanced career opportunities, something that may not be possible in a small District such as Richmond PD. 38. I am disappointed by SC Writer's attitude to this matter, particularly as he is being transferred to a desirable location as a result of his misconduct, not because of a meritorious application. 39. All Police Officers are aware when joining the NSW Police Force that we can be moved at any time at the direction of the Commissioner of Police and we agree to be subject to this direction. Despite this undertaking, SC Writer continues to challenge the decision. 40. I maintain that SC Writer should be disciplinarily transferred to Newcastle PD as per the Order. In the alternative, I fully support a disciplinary transfer to Grafton Police Station and believe that is a reasonable compromise in the circumstances."
3. To my mind, whether or not Newcastle Police District is a "desirable location" for the purposes of the Crown Employees (Police Officers - 2017) Award, or in the opinion of Supt Tanner, is of limited relevance. At most it is a factor to weigh in the balance as to whether a disciplinary transfer to Newcastle would be harsh, unreasonable or unjust. However, I would be slow to draw the conclusion, which Supt Tanner's evidence seems to invite, that an officer who challenged a disciplinary transfer to a "desirable location" was necessarily being unreasonable or, indeed, ungrateful.

Alternatives to Newcastle

1. If SC Writer is to be transferred from Ballina, he contended that an alternative station be identified and agreed between himself and NSW Police that recognised the personal and financial impact which the incident had already had on him, reflected the effluxion of time since the incident, took into account his personal circumstances, did not require him to relocate from his home in Goonellabah, and which was commensurate with the action taken against SC Quinn, who had been transferred to Tweed/Byron Police District.
2. SC Writer submitted as follows: [34] "27. In his evidence [SC Writer] stated that he did not have an objection transferring out of the Richmond Police District (which would be to serve the public relations interests of the Police Force), but that transferring to Newcastle (or Grafton) was not practical or desirable given the considerable commuting that would be involved. In this regard, and to his credit, [SC Writer] has demonstrated a willingness to engage in reasonable negotiation and to accommodate a further transfer if it is in the interests of the Police Force. However, it is quite another matter for him to willingly accept an open ended transfer to a location that is further from his established home when there are closer alternatives." (Footnotes omitted)
3. The Police Commissioner submitted, with some persuasion, as follows: [35] "12.12 [SC Writer] maintains that he has demonstrated a 'willingness to engage in reasonable negotiation and to accommodate a further transfer if it is in the interests of the Police Force'. 12.13 However, the [Police Commissioner] submits that [SC Writer] is only willing to engage in discussions if the transfer location is to his liking. The [Police Commissioner] submits that the position adopted by [SC Writer] is contrary to the nature of a disciplinary transfer, where [SC Writer] is being transferred as a direct result of his admitted misconduct. Being permitted to select a location undermines the effect of a disciplinary transfer, bearing in mind that such a transfer is intended to be punitive in nature, and not a reward, due to [SC Writer's] admitted misconduct."
4. Unsurprisingly, the Police Commissioner pressed that the Order be upheld, with the necessary consequence that the disciplinary transfer to Newcastle would be effected. However, since the Order was made Grafton had come to be considered as an alternative to Newcastle. Supt Tanner described himself as "the current Delegate for the Commissioner of Police in this matter and responsible for the decision that [SC Writer] should be subject to a disciplinary transfer" [36] . He deposed that a transfer to the Grafton Police Station would be "a reasonable compromise in the circumstances" which he would "fully support" [37] .
5. SC Writer is opposed to a disciplinary transfer to Grafton. His opposition stems predominantly from the time he says it would take to commute to and from work. He estimated the distance from his home in Goonellabah to the Grafton Police Station to be 145km, requiring a trip time of one hour and 46 minutes. Having regard to the fact that he generally works 12 hour shifts (not including overtime), a requirement to commute for more than three and a half hours each day was more than onerous; it created fatigue-related safety issues.
6. In response, and in summary, the Police Commissioner adduced the following evidence: 1. Supt Chapman stated that "according to Google maps", the distance from Goonellabah to Grafton is 137.1km; [38] 2. once again drawing on Google Maps, CI McKenna estimated the trip from Lismore to Grafton, depending on the route, to be between 131 and 135km, with an estimated travel time of up to 1 hours and 20 minutes. He did not consider such a trip time to be unreasonable. He stated that many police officers "commute considerable distances to work on a daily basis"; [39] and 3. Supt Tanner stated that in September 2020 a new section of the Pacific Highway between Ballina and Woodburn was to open. Based on inquiries that he had made, he understood that once that stretch of highway was open the estimated travel time between Lismore and Grafton would be "about 1 hour and 15 minutes, but on a good day this could be reduced to 1 hour". [40]
7. The evidence does not allow for a conclusive determination of the distance between SC Writer's home and the Grafton Police Station, and the time that trip is likely to take. On balance I consider that the trip, allowing for route variations, would be in the order of 135 to 140km. Even at the shorter distance, a travel time of one hour and 15 minutes seems unlikely, with one hour simply being unrealistic. A trip time of approximately one and a half hours seems more likely.
8. There are two difficulties that I find arise from the case presented by SC Writer. In the first place, I am asked to accept, on the basis of his opinion alone, that a commute of approximately one and a half hours to and from work is necessarily unsafe. The implications of such a finding could be considerable and extend beyond SC Writer's circumstances, and indeed beyond the NSW Police Force. I would be loath to make any findings in this regard without more cogent and persuasive evidence.
9. Secondly, SC Writer's case is premised on the assumption that his place of work will be within commutable distance of his home in Goonellabah. I accept that this stems in part from the contention that, with all that has transpired since April 2016, any further disciplinary transfer is unwarranted and, to the extent that it is imposed, it should not carry with it the requirement that SC Writer move away from his current home.
10. At the same time, and as the Police Commissioner submitted, it must be borne in mind that the transfer is disciplinary in nature. SC Writer cannot insist that it have no impact on his personal life. Further, SC Writer accepted that it was a condition of his employment in the NSW Police Force that the Police Commissioner can transfer him at any time for any reason.

Conclusions - location of transfer

1. I have considered the matters of public interest arising in this case, and in particular those traversed at [65]-[74] above. I have also taken into account SC Writer's interests, including the evidence summarised at [51]-[53] and [86] above.
2. A move to Newcastle would require SC Writer to relocate to at least some degree, causing disruption to his financial and personal affairs. In circumstances where an alternative has been identified, which represented a "compromise" which Supt Tanner would "fully support" (see [89] above), I consider that upholding the Order and, in so doing, compelling the disciplinary transfer to Newcastle would be harsh.
3. Conversely, I do not consider that SC Writer has established that a disciplinary transfer to the Grafton Police Station would necessarily be incompatible with his current domestic or personal arrangements, or require him to relocate or source additional accommodation. Even were such a transfer to cause him to suffer some financial or personal inconveniences, this has not been shown to render such a disciplinary transfer harsh.

Summary of findings and determination

1. I have found as follows: 1. through his conduct on 13 April 2016 SC Writer engaged in misconduct; 2. in so far as the Order imposed on SC Writer a 12 month deferral of his next salary increment it was not harsh, unjust or unreasonable. This is the case regardless of whether it is combined with a disciplinary transfer; 3. a disciplinary transfer in and of itself is not harsh, unreasonable or unjust; 4. the evidence supports the disciplinary transfer of SC Writer out of the Richmond Police District; 5. a disciplinary transfer to the Newcastle Police Station would be harsh; 6. a disciplinary transfer to the Grafton Police Station would not be harsh, unreasonable or unjust.
2. It is appropriate that the Order be revoked and that a new order be made to give effect to these findings.

Orders

1. Pursuant to s 177(1)(b) of the Police Act 1990 (NSW) it is ordered that: 1. the order made by the Commissioner of Police, through his delegate, on 9 May 2019 under s 173(2) of the Police Act 1990 (NSW) is revoked; and 2. in its place: 1. Senior Constable Writer's salary increment be deferred for a period of 12 months from the date his next increment is due; and 2. Senior Constable Writer be subject to a disciplinary transfer from the Ballina Police Station to the Grafton Police Station.
2. Pursuant to s 164A of the Industrial Relations Act 1996 (NSW): 1. Any document that includes the name of a young person that is tendered in evidence will be a confidential exhibit. 2. Except in so far as it is necessary to do so for the proper conduct of the proceedings, no person shall disclose the name, address, picture or any other material that identifies or may lead to the identification of any young person. 3. Except in so far as it is necessary to do so for the proper conduct of the proceedings, no person shall do anything that identifies or may lead to the identification of any young person. This includes the publication of the name of any witness who has a relationship with a young person, and the nature of that relationship. Damian Sloan Commissioner

Endnotes

1. Statement, Scott Tanner, 14 August 2020 at par 26
2. Statement, Dean Childs, 19 September 2019 attachment DC-1
3. Statement, Michael John Writer, 17 July 2019 annexure MJW-1, attachment A
4. Statement, William McKenna, 19 September 2019 at par 15
5. Tcpt, 25 August 2020, p 28(23-25)
6. This summary is drawn from the Written Outline of Submissions of the Applicant at par 17
7. Tcpt, 25 August 2020, p 3(26)
8. ibid., p 5(1-4)
9. Tcpt, 24 August 2020, p 61(10-11)
10. ibid., p 61(42-46)
11. Written Submissions of the Respondent at par 3.8
12. ibid. at par 3.9
13. Written Outline of Submissions for the Applicant
14. Written Outline of Submissions in Reply for the Applicant
15. Written Outline of Submissions for the Applicant at par 3
16. Statement, Michael John Writer, 17 July 2019
17. Written Outline of Submissions for the Applicant at par 25
18. ibid. at par 26
19. Statement, William McKenna, 19 September 2019 at par 15
20. Tcpt, 24 August 2020 p 23(39)
21. Statement, William McKenna, 19 September 2019 at par 19
22. Statement, Rosslyn Sten, 19 September 2019 at par 31
23. Tcpt, 24 August 2020, p 39(35)
24. Tcpt, 25 August 2020, p 34(29) (Rosslyn Sten)
25. Statement, Dean Childs, 17 September 2019 at par 16
26. Tcpt, 24 August 2020, pp 39(44)-40(34)
27. Statement, Tracy Maree Chapman, 16 September 2019
28. Tcpt, 25 August 2020, pp 3(46)-4(4)
29. Tcpt, 26 August 2020, p 15(1-11)
30. Tcpt, 25 August 2020, p 24(28-29)
31. Statement, Tracy Maree Chapman, 16 September 2019
32. Statement, Tracy Maree Chapman, 16 September 2019 at par 17
33. Statement, Scott Tanner, 14 August 2020
34. Written Outline of Submissions for the Applicant
35. Written Submissions of the Respondent
36. Statement, Scott Tanner, 14 August 2020 at par 3
37. ibid. at par 40
38. Statement, Tracy Maree Chapman, 16 September 2019 at par 27(i)
39. Statement, William McKenna, 19 September 2020 at par 29
40. Statement, Scott Tanner, 25 August 2020 at par 8 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2021