Industrial Relations Commission New South Wales Medium Neutral Citation: Morris v Commissioner of Police [2020] NSWIRComm 1041 Hearing dates: 18, 19 and 21 June 2019 Date of orders: 2 June 2020 Decision date: 02 June 2020 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant Decision: Application dismissed Catchwords: POLICE – removal of police officer – review of removal order – admissions by applicant – dispute as to specific alleged facts - whether decision to remove harsh, unreasonable or unjust Legislation Cited: Crimes Act 1900 (NSW) s 61 Evidence Act 1995 (NSW) s 128 Industrial Relations Act 1996 (NSW) Pt 6, ss 84, 146, 164A Police Act 1990 (NSW) s 181D, 181E, 181F Police Regulation 2015 (NSW) cl 76 Cases Cited: Baker v Commissioner of Police [2015] NSWIRComm 14 Beck v Commissioner of Police (No 3) [2015] NSWIRComm 1023 Commissioner of Police v Collins [2008] NSWIRComm 162 Commissioner of Police v Eaton [2013] HCA 2 Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073 Dolan v Australian and Overseas Telecommunications Corporation 114 ALR 231 Hosemans v Commissioner of Police (2004) 138 IR 159 Police Service Board v Morris and Martin (1985) 156 CLR 397 Starr v Commissioner of Police [2001] NSWIRComm 226 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 Van Huisstede v the Commissioner of Police [2000] NSWIRComm 97 Category: Principal judgment Parties: Matthew Morris (applicant) Commissioner of Police (respondent) Representation: Counsel: G Doherty (applicant) D Chin SC (respondent) Solicitors: Walter Madden Jenkins (applicant) Minter Ellison (respondent) File Number(s): 2018/177952 Publication restriction: Pursuant to s164A(1) of the Industrial Relations Act 1996 (NSW): 1. disclosure or publication of the address of Senior Constable White is prohibited; and 2. publication of the following documents or matters contained in documents lodged with the Commission or received in evidence by the Commission is prohibited: (a) paragraphs 55 to 57 of the witness statement of Superintendent Steven Clarke dated 5 December 2018 (Exhibit R10); (b) Annexure SC-3 of Exhibit R10; and (c) Tab 5 of Annexure MM1 of the statement of Matthew Morris dated 26 September 2018 (Exhibit A2); and 3. publication of: (a) the source of the allegation that the applicant punched Mr Seymour to the head or used his arms to apply pressure to choke Mr Seymour; and (b) the name of the daughter of Ms Kyren Moore. DECISION 1. The applicant was a Constable with the NSW Police Force until he was removed by way of an Order dated 24 May 2018. The Order was made by the respondent under s 181D(1) of the Police Act 1990 (NSW) due to the respondent's loss of confidence in the applicant's suitability to continue as a police officer ("the Removal Order"). 2. The Statement of Reasons accompanying the Removal Order ("the Statement of Reasons") sets out the reasons for the respondent's loss of confidence which includes five substantiated findings in relation to the applicant's conduct, judgement and integrity with respect to three incidents of misconduct. 3. On 7 June 2018 the applicant filed with the Commission, an Application for Relief in relation to Unfair Dismissal pursuant to s 181E of the Police Act ("the Application"). 4. The matter was conciliated unsuccessfully by Commissioner Stanton on 10 and 25 July 2018. 5. The Application was heard on 18, 19 and 21 June 2019. 6. At the hearing, the applicant sought, and was granted, a certificate under s 128 of the Evidence Act 1995 (NSW) in relation to answers to questions put to him in cross-examination about the incident involving Mr Richard Seymour which is the subject of Allegation 1. The privilege against self-incrimination is intended to protect the innocent and guilty alike and "it is … wrong to permit an adverse inference from the exercise of the privilege against self-incrimination": Dolan v Australian and Overseas Telecommunications Corporation 114 ALR 231 at 242. The Commission has drawn no inference, adverse or otherwise, from the fact that the applicant sought the certificate. 7. The applicant relies on: statement of Jack Alexander Gilbey dated 3 February 2019 (Exh A1); statement of the applicant dated 26 September 2018 (Exh A2); statement of the applicant dated 5 February 2019 (Exh A3); Statement of William John Wilcher dated 7 September 2018 (Exh A4), statement of Harley Robert Willox dated 3 September 2018 (Exh A5); statement of Gregory Murray Hembrow dated 12 September 2018 (Exh A6); statement of Darren Nolan dated 6 September 2018 (Exh A7); statement of Jeffrey Thompson dated 7 September 2018 (Exh A8); statement of Scott McLean dated 16 September 2018 (Exh A9); statement of Linda Florence King dated 13 September 2018 (Exh A10); statement of Kristy Afutoto Leaegailesolo dated 13 September 2018 (Exh A11); response from the applicant dated 30 January 2018 to the notice issued by the respondent pursuant to s 181D of the Police Act ("Response to the Show Cause Notice") (Exh A12). 8. The respondent tendered: an email from the applicant to himself with the heading "Notes" dated 11 September 2014 (Exh R1); the Removal Order (Exh R2); letter from Greg Willis to Superintendent Holahan dated 25 April 2017 (Exh R3); record of interview with Constable Matthew Morris dated 21 February 2017 (R4); statement made by the applicant dated 22 August 2016 (Exh R5); statement of Richard William Seymour dated 8 February 2019 (Exh R6); statement of Senior Constable Gavin White dated 4 December 2018 (Exh R7); statement of Tyrone Skinner made and signed 3 June 2019, incorrectly dated 5 December 2018 annexing, amongst other things, a statement made by Tyrone Skinner to Police dated 7 August 2016 (Exh R8); statement of Kyla Fahey dated 5 December 2018 (R9); statement of Superintendent Steven Clarke dated 5 December 2018 (Exh R10); affidavit of Jacqueline Cameron sworn 19 June 2019 (Exh R11); statement of Shaun Raymond Byrd dated 5 December 2018 (Exh R12); statement of Senior Constable Richard Beresford dated 5 December 2018 (Exh R13); a bundle of documents (50 Tabs) referred to as the Commissioner's Confidence Documents ("Exh R14"). 9. The respondent also provided to the Commission a USB containing the video evidence which was included as a CD at tab 1 of the applicant's statement of 5 February 2019 which was marked as Exh A3 in these proceedings and tab 1 of the Commissioner's Confidence Documents which was marked as Exh R14 in these proceedings. 10. The applicant, Mr Gilbey, Senior Constable White, Mr Tyrone Skinner, and Mr Seymour were cross-examined. 11. Counsel for both parties provided written submissions to the Commission to support their oral submissions. 12. All of the written material and oral evidence and submissions were considered by the Commission as was the video evidence referred to in paragraph [10]. 13. Orders were made at the hearing pursuant to s164A of the Industrial Relations Act 1996 (NSW) ("the IR Act") as follows: 1. disclosure or publication of the address of Senior Constable White is prohibited; and 2. publication of the following documents or matters contained in documents lodged with the Commission of received in evidence by the Commission is prohibited: 1. paragraphs 55 to 57 of the witness statement of Superintendent Steven Clarke dated 5 December 2018 (Exh R10); 2. Annexure SC-3 of Exhibit R10; and 3. Tab 5 of Annexure MM1 of statement of the Matthew Morris dated 26 September 2018 (Exh A2). Powers of the Commission on review 1. Section 181D of the Police Act gives the respondent the power to remove an officer where the respondent no longer has confidence in the officer's suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct. 2. A person who is the subject of a decision to remove him or her from the Police Force may apply for a review of that decision pursuant to s 181E of the Police Act. Section 181E relevantly provides: 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 1. The manner in which the Commission must conduct the review is set out at s 181F of the Police Act: 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. (a) 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: (i) the interests of the applicant, and (ii) 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). 1. The hearing before the Commission is a hearing de novo, not a review of an administrative act: Hosemans v Commissioner of Police (2004) 138 IR 159 ("Hosemans") at [134]. 2. Section 181F requires the Commission firstly to consider the respondent's reasons for the decision to remove the applicant from the Police Force, which are those set out in the Statement of Reasons. 3. It is then for the applicant to make out a case that the decision to remove him from the Police Force was harsh, unreasonable or unjust: the Police Act, s 181F(2). 4. The purpose of the respondent's case is, as the Police Act provides, and as the Full Bench in Hosemans held, to answer the applicant's case. If the applicant advances any evidence or argument that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that case, including the relevant evidentiary case, then falls on the respondent: Tredinnick v Commissioner of Police [2016] NSWIRComm 14 ("Tredinnick (No 2)") at [78]. 5. Proceedings for review pursuant to s 181E of the Police Act are "essentially the same as the unfair dismissal regime" of the IR Act "subject to specified modifications" (Hosemans at [97], [104]). 6. "Harsh", "unreasonable" and "unjust" have the same meaning in these proceedings as that given to them in proceedings under Part 6 of the IR Act: Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 ("Tredinnick (No. 1)") at [20]. However, the test as to whether the removal of the applicant pursuant to s 181D of the Police Act was harsh, unreasonable or unjust is not identical to that test in the IR Act: Tredinnick (No. 1) at [21] – [29]. 7. The Commission must take into account matters set out in s 181F(3)(b) of the Police Act which the Commission, in an application brought under s 84 of the IR Act, does not have to consider. Amongst other things, in determining an application pursuant to s 181E of the Police Act, the Commission must have regard to a "public interest" which, because it is partly defined at s 181F(2)(ii), is not the same as the "public interest" referred to in s 146(2) of the IR Act: Commissioner of Police v Eaton [2013] HCA 2 ("Eaton") per Heydon J (at [27]). 8. Finally, "each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case": Starr v Commissioner of Police [2001] NSWIRComm 226 at [140]. Respondent's Statement of Reasons 1. The first matter that the Commission is required to consider is the respondent's reasons for the decision to remove the applicant from the Police Force: s 181(F)(1)(a) of the Police Act. These are set out in the Statement of Reasons. 2. In the Statement of Reasons, the respondent sets out, amongst other things: the five substantiated allegations against the applicant which were notified to the applicant in the notice issued by the respondent pursuant to s 181D(3)(a) of the Police Act and served on the applicant on 16 November 2017 ("the Show Cause Notice"), including the background to, and the findings in respect of each of the allegations; the respondent's consideration of the applicant's Response to the Show Cause Notice; and the respondent's determination to make the Removal Order. Investigation P1401877 and Allegation 1 1. The applicant admits much of the conduct underpinning Allegation 1 but denies that he punched Mr Seymour to the head or used his arms to apply pressure to choke Mr Seymour (a "choke hold"). It is useful to set out the background in relation to Allegation 1 as summarised in the Statement of Reasons: Background to P1401877 On 20 April 2014, five months after being confirmed as a Constable, you responded to a report of stealing [of] eggs …. In his statement dated 25 May 2014, Mr Richard Seymour, then aged 18, says he was out driving with his friends, Brent Jeffree, REDACTED, Kyren Moore and Sanden Pearson. REDACTED. Mr Seymour says the vehicle was being driven by Mr Pearson. Mr Seymour says around 5pm they were stopped by police, who stated some eggs had been stolen. He says Mr Pearson was breath tested and was found to be over the prescribed limit. Ms Moore says she stole the eggs. Mr Pearson was placed under arrest and taken away from the scene. .... Cigarette Butt In her statement dated 10 October 2014, Ms Moore, then aged 27, says she was waiting on the side of the road while police were dealing with Mr Pearson. She says she was smoking and admits that she flicked the cigarette butt into the grass on the side of the road. Ms Moore says she had the following exchange with an officer, which appears to be you: You: "Pick up the butt or I am going to charge you." Moore: "How am I supposed to find it?'' Ms Moore says she started to look for the cigarette butt in the grass. ... Mr Seymour says he saw what occurred and heard an officer, believed to be you, state: "I'm going to charge you for that', and Ms Moore respond, ''I'll find it, I'll pick it up". In his statement dated 25 May 2014, Mr Brent Jeffree says he heard you say, "that's a $200 fine, I'm going to fine you". Mr Seymour says he started to film the incident and said, "I'm filming this, this isn't right". He says you approached him and said "I want that phone. That's evidence". Mr Seymour refused stating it was the only way he could contact his daughter. Mr Jeffree says he also heard you tell Mr Seymour to hand over his mobile phone. He says when Mr Seymour refused, you tried to grab the phone. …. [Ms Moore] says she heard police state it was "two police versions versus yours", and heard Mr Seymour respond that he had recorded events on his mobile phone. Ms Moore also says she heard an officer tell Mr Seymour to delete the footage. … Constable White … recalls you saying that Mr Seymour was filming you, and you wanted the footage. … … Ms Moore also says you punched Mr Seymour twice to the left side of the head. She says she told you to "leave him alone". She says her daughter also yelled out at one point "stop hurting him". Mr Howell says he was about six metres away. .... He says … he recalls … you had Mr [Seymour] on the ground. He says he did not see you punch anyone, but he did not maintain eye contact with you at all times. ... Constable White recalls seeing Mr Seymour on the ground, hunched, sitting on one leg underneath his bottom, and you had hold of his left arm, which was up above his head. … …. Arm around throat Mr Jeffree says he saw you with your left arm around Mr Seymour's throat (as you were hitting him in the back of the head). He says Mr Seymour was then picked up and placed in the back of the police truck. Constable White says the following: * he put his right hand on Mr Seymour's upper left arm; * you let go of Mr Seymour's left arm, and put your right arm around his neck; * you placed your left arm over your right; * you flexed your arms, applying pressure to Mr Seymour's neck in a choke hold; * Mr Seymour grabbed and scratched at your arms; * he pushed you off and said, You need to stop that right now"; * you told him that Mr Seymour was under arrest; and * Mr Seymour scrambled away on all fours while yelling "Stop hurting me, please don't fucken touch me. Please oh god no more". Constable White says he then approached Mr Seymour who was cowering, and put his hand on his shoulder. He says Mr Seymour got up, did not resist and was co-operative. He says he walked him to the rear of the police vehicle. Ipad footage The footage, taken by REDACTED, titled 'IMG_1075.mov' shows: * Mr Seymour is sitting on his knees while on the ground: * you and Constable White are by his side; * Mr Seymour is yelling hysterically, "I did nothing what the hell'; * Ms Moore is screaming, "That's assault mate"; * Constable White places his hands on Mr Seymour's left arm and tries to get him up; * when you go to touch Mr Seymour, he visibly recoils; * Mr Seymour struggles, so you lend assistance; * Mr Seymour initially flails out with his legs on the gravel. He subsequently calms, although continues to screech that he ''hasn't done anything", and is assisted across the road to the police vehicle; * REDACTED states "You hit him three times. I saw it" and, "Mummy, they hit Ritchie, Ritchie never done nothing wrong"; and * another male, who appears to be Mr Jeffree, can be heard stating "You hit him three times". From his demeanour, it is apparent that Mr Seymour was frightened. Other witnesses ... Mr McPhee says he saw a police officer on top of a male, and it looked like the male had been pinned to the ground. He says it looked like the police officer had his shoulder in the male's back. Ms Jennie Gerrard says she was about 100 to 150 metres away and her view was obscured by a tree. She says she saw a police officer get hold of a male's arm, put it behind his back and push him to the ground. She did not see the police officer punch anyone. Back at the station … Mr Seymour complained that he had been assaulted. … Mr Seymour's behaviour was suggestive of him being under the influence of alcohol. Constable White says he had the following conversation with you: … White: "You were choking out that guy back there, what the fuck happened, everything was calm and all he wanted to do was keep his phone. This happened over two ticketable offence [sic]. Why didn't you let him delete the footage, we didn't need it, I saw what happened and so did you." You: "I feel I was justified in my actions." Criminal Charges On 7 October 2015, you were charged with: * Assault occasioning actual bodily harm, Crimes Act 1900, s 59(1); and * Common assault, Crimes Act 1900, s 61. * An agreed set of facts … for the purpose of the criminal matter… in short, state: * Ms Moore flicked her cigarette butt to the ground and you told her she would receive a ticket; * Mr Seymour filmed the events and you demanded his phone; * Mr Seymour was not cautioned, nor placed under arrest, for any offence; * Mr Seymour refused to hand over the mobile phone and you tried to take it. But, Mr Seymour placed it behind his back; and * while attempting to seize the phone, you: * forced Mr Seymour to the ground; and * pulled his left arm up sharply above his head. You deny placing Mr Seymour in a choke hold as suggested by Constable White. On 28 June 2016, you were placed on an 18-month good behaviour bond ... ... [Y]ou appealed the severity of the sanction. However, when your appeal came before Judge Solomon on 15 August 2016, a 'Parker Direction' was made and you withdrew your appeal. Response to the investigation On 22 February 2017, you provided a written response to the investigation, via your legal representative. You submit the facts against which your conduct should be assessed are those contained in the agreed facts prepared for the local court matter. You suggest the various witnesses are inconsistent and at times contradictory. …[Y]ou submit [the choke hold] is inconsistent with the available footage... [and] Mr Seymour makes no specific complaint regarding this. You also state that the footage does not show Mr Seymour being co-operative .... You say the footage shows Mr Seymour being more or less carried away, with his feet barely touching the ground. You further submit that Constable White's credibility and reliability is in issue and his account was not relied upon in the criminal proceedings. … [Y]ou say … [Mr Seymour] may have been under the influence of alcohol. …. You believed you had the power to seize the phone because it contained evidence of an offence (littering), but you misunderstood your power under s 21 (2)(b) of LEPRA (The ability to seize evidence for a relevant (indictable) offence). You … refer to the leniency of sentencing, and … the Magistrate's comments that the assault was at the lower end of the scale, Ultimately, you concede that you used excessive force in the apprehension of Mr Seymour as evidenced by your plea of guilty. Response In your Response to my Notice you admit you: * demanded Mr Seymour's mobile phone; * attempted to take his mobile phone from him; * forced him to the ground; and * pulled his left arm up sharply above his head. You … deny punching Mr Seymour to the head, and deny using your arms to exert pressure to choke him. You apologise for the conduct you accept occurred, although you highlight your inexperience at the time and point to a lack of guidance provided by Constable White. You … state you were bullied by Constable White, and believe the animosity that existed between the two of you has clouded his judgement and recollection. You say your plea of guilty demonstrates that you accept responsibility for your actions. … You submit substantial weight should be placed on the agreed facts, and the decision to withdraw the more serious charge of Assault Occasioning Actual Bodily Harm. You state that although reference to a choke hold remained in the Agreed Facts, it was not pressed as the evidence did not satisfy the appropriate test of proof beyond a reasonable doubt. You accept you were not blameless for your actions, and sincerely apologise for your behaviour. You say you participated in … Therapy to ensure there will be no repetition of your behaviour in the future. 1. The Statement of Reasons sets out the following findings by the respondent in relation to Allegation 1: I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that, on 20 April 2014, and following Mr Seymour's decision to film your interaction with Ms Kyren Moore, you: * demanded Mr Seymour's mobile phone; * attempted to take his mobile phone from him; * forced Mr Seymour to the ground; * pulled Mr Seymour's left arm sharply above his head… * punched Mr Seymour to the head …; and * used your arms to exert pressure to choke Mr Seymour Furthermore, I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that your use of force was unreasonable and avoidable. In the circumstances, I conclude that your conduct was contrary to the Police Act 1990, the Crimes Act 1900, and the NSW Police Force Code of Conduct and Ethics. Investigation P1602646 and Allegation 2 1. The applicant admitted the conduct asserted in Allegation 2 in relation to misuse of confidential knowledge. 2. The respondent sets out, in the Statement of Reasons, the content of the Response to the Show Cause, including the applicant's admission and apology for his conduct and his assertion, in mitigation, that it was a stressful time in his life because he had received the court attendance notice for the 2014 incident the subject of Allegation 1. 3. The Statement of Reasons sets out the following finding by the respondent in relation to Allegation 2: I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that, on 16 November 2016, you told Ms Kyla Fay: * that you were a police officer; * several members of the Grafton Brigade had been charged with criminal offences; and * you had recently charged a member of the FRNSW with child abuse. In addition, you did so in circumstances where you were aggrieved at the delay in processing your application to join FRNSW as a retained firefighter. In the circumstances, I conclude that your conduct was contrary to s 7(a) of the Police Act 1990, and Points 1 and 3 of the NSW Police Force Code of Conduct and Ethics .... Furthermore, conclude that your conduct was contrary to [cl 76 of] the Police Regulation 2015 and Point B of the NSW Police Force Code of Conduct and Ethics. Investigation P1603000 and Allegations 3, 4 and 5 1. The applicant: admits Allegation 3 but denies calling Mr Zac Skinner "cunt"; admits Allegation 5; and while denying Allegation 4 nonetheless admits some of the factual basis underpinning the allegation and provides background to his interaction with Mr Zac Skinner including that Mr Zac Skinner was previously charged and convicted of assault against the applicant and asserts that his use of force was appropriate and proportionate in the circumstances. 2. It is useful to set out the background in relation to Allegations 3, 4 and 5 in the Statement of Reasons: Around 10.45pm, on 6 August 2016, you and Senior Constable Tim Bentley attended the address of Zac Skinner (Zac) … to perform a bail compliance check on Zac. Also present at the address was Zac's brother, Tyrone Skinner (Tyrone), their mother, Ms Charmaine Crowther, and Mr Darren Gardiner. Prior encounter … prior to 6 August 2016, Senior Constable Elizabeth Smith recalls taking a phone call from Zac where he reported an interaction he had with you at the Local Court. .... Senior Constable Smith brought the allegation to the attention of Sergeant David Lollback. Sergeant Lollback spoke to you about the incident. …. You denied any wrongdoing and stated "They just want to get me. They hate me. All the Skinners''. …. Bail check … Zac says he was at home [and] … he looked outside and saw police arrive, including you. ... Zac says … he opened the front door and had the following exchange with you: You: "Hey Zac I'm doing a bail compliance check'' Zac: 'Yeah all good' (he says he was about to close the door)· You: "What happened with me and you at court the other day?" Zac: "What, when you grabbed the paper?" You: "No, I didn't touch anything of yours, you are delusional. Next time get your facts straight before getting mummy to call and complain about me." Zac: "First of all, I called and not mum. You are only here for a bail check ok. You've got nothing to say out of uniform, so don't come here talking shit" You: "What you gonna get mummy again?" Zac says he felt like you were trying to provoke him. He admits saying to you on several occasions that 'you've done your bail check now fuck off'. Senior Constable Tim Bentley's … recalls you saying to Zac, ''and you got your mummy to ring up and complain for you". He also recalls you telling Zac not to make false complaints about you. He does not mention you using the word "cunt", In your statement dated 7 August 2016, you admit you referred to a prior incident that occurred at the courthouse a few weeks earlier. However, you do not mention saying anything to Zac about his mother calling to complain about you (you also omit this from your statement dated 22 August 2016). Zac says his brother, Tyrone, then came to the door and stood behind him. … Zac says Tyrone pointed at you and you have the following exchange: Tyrone: "You've done your bail check now bash it cunt." You: ''Did you say you are gonna bash me. I'll be sending you a court notice." … Tyrone admits saying "Bash it cunt". He says he used the term in the same way he uses "Fuck off'. You say Tyrone said, "I'll bash you right up ya Morris", which caused you to feel intimidated and fear for your safety. Senior Constable Bentley says he also heard Tyrone state "I'll bash you right up ya Morris". Tyrone says the screen door opened outwards. He opened it, walked out and stood close to you (about 30 to 40 cm). He says the following exchange occurs: You: "Did you just threaten me" Tyrone: "No" You: "I will be sending you court notices in the mail" Tyrone: "What for, l didn't even threaten you. You have done your job, get the fuck off my property." Tyrone admits he told you to "get the fuck off my property" about three times while pointing at the steps with his left hand. He denies being aggressive or clenching his fists. He says he just wanted you to leave. Zac says he did not think anything was happening at that time and he was waiting to go back inside. He says he heard Tyrone tell you, "No, you are on my property now fuck off cunt". You give a similar description of the conversation but add that Tyrone was 'flinching' towards you and had his fists clenched. You also say you could not move backwards due to a rail on the balcony. Senior Constable Bentley also says that Tyrone was 'flinching', and that Tyrone stood very close to you. In his statement dated 21 September 2016, Senior Constable Bentley estimates that you were standing about 40cm away from the railing. Physical contact Tyrone describes what happened next as follows: • you told him to "get out of my face";· • you pushed him to the chest with both your open hands, • he was forced backwards into the closed door, before getting up (Zac says he fell into the doorway); • you then hit him with a torch to the left side of his forehead; and • you then sprayed him with 'pepper spray' causing his eyes to sting. You state that you were fearful for your safety, and fearful of an imminent assault. Senior Constable Bentley says he had the same view, and he went to place his hand on Tyrone's arm. He says you then used both hands and performed an 'approved' check drill. You say you then used an 'approved' hammer strike while you had your torch in your right hand. You then say Tyrone rushed towards you for a third time so you used your Oleoresin Capsicum (OC) spray. Senior Constable Bentley describes what happened after the check drill as follows: Tyrone has quickly begun moving in an aggressive manner back towards [you] [You] held a small metal torch in your right hand, [You] remained standing in the same location as Tyrone moved quickly towards [you], [You] raised [your] right arm and struck Tyrone above the left eye with the torch using a hammer fist motion. In his further statement, dated 21 September 2016, Senior Constable Bentley says he cannot say whether you deliberately struck Tyrone with the torch. He also says that when you deployed your OC spray he was considering drawing and arming his Taser. Following the incident Tyrone says … his mum took him to hospital for treatment. Zac says he did not see his brother clench his fists or 'egg' you on. He also says some of the OC Spray hit him in the side of his face. ... You say that after using your OC Spray you said to Senior Constable Bentley, "let's go". ... Ms Crowther, Tyrone's mother, took photographs of the blood on the hallway floor and a photograph of Tyrone's injury. The half crescent shaped cut to the left temple appears to be consistent with being struck by the rim of a torch (or another cylindrical shaped implement). Senior Constable Bentley estimates the time that elapsed between you knocking on the front door, until you began walking down the steps to the police car, was one to one and a half minutes. Response to the investigation On 25 April 2017, you provided a written response to the investigation ... You deny using the word "cunt" when speaking to Zac. You point out that nobody else reports that the word was used other than Zac. You also attack the credibility of the witnesses involved and refer to your various interactions with Zac. You do not deny the "Mummy" comment and accept it was inappropriate. … you submit … it Is ludicrous to suggest you should have personally attempted decontamination treatment. You submit it would not have been safe in the circumstances. You say all you could have done was call an ambulance. You further submit that you had to take time off work due to anxiety and stress associated with a diagnosis of PTSD caused by Tyrone's attack. Response In your Response to my Notice, you admit you raised the issue of the complaint made by Zac and made an inappropriate reference to his mother. In relation to Tyrone, you say he was the aggressor and uttered abuse from the outset. You say he was confrontational and you feared for your safety. You rely upon the statement of Senior Constable Bentley in support of your version. You maintain that your use of force was appropriate and proportionate. You say, "the use of the torch was instinctively done for protection without realising what had occurred". You admit you did not assist Tyrone following your use of OC spray, However, you say due to the ongoing commotion with those present, you and Senior Constable Bentley still held fears for your safety. You say you left to avoid the situation escalating further, You say this matter had such a profound effect on you that you have suffered psychological trauma. 1. The Statement of Reasons sets out the following finding by the respondent in relation to Allegation 3: I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 6 August 2016 you: • raised issues concerning a prior complaint Zac had made about your conduct: and • said to Zac something like "No, I didn't touch anything of yours, you are delusional. Next time get your facts straight before getting mummy to call and complain about me cunt". In the circumstances, I conclude that your conduct was contrary to ss 7(a), (c) and (h) of the Police Act 1990, and Points 1, 2 and 4 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1. 1. The Statement of Reasons sets out the following finding by the respondent in relation to Allegation 4: I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 6 August 2016 your conduct towards Zac and Tyrone caused a routine enquiry (bail check) to escalate into a physical confrontation. This has resulted in you: • pushing Tyrone to the chest with both hands; • striking Tyrone to the left side of his forehead while holding a torch; and • spraying him with 'pepper spray' causing his eyes to sting. In the circumstances, I find your use of force could, and should, have been avoided. Furthermore, I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that your decision to 'hammer strike' Tyrone to the forehead while holding a torch was an unreasonable use of force. In the circumstances, I conclude that your conduct was contrary to ss 7(a), (c) and (h) of the Police Act 1990, and the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1. In addition, I conclude that your conduct was contrary to clause 7 of the Police Regulation 2015. 1. The Statement of Reasons sets out the following finding by the respondent in relation to Allegation 5: I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that after spraying Tyrone with OC spray you failed to: • check on his welfare; • ensure that you followed correct decontamination procedures; • provide advice regarding decontamination procedures; and/or • call an Ambulance. In the circumstances, I conclude that your conduct was contrary to Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics (as set out above in relation to Allegation 1), and the NSW Police Force Handbook. Respondent's summary of his consideration in respect of all Allegations 1. In making the Removal Order, the respondent took into account the matters asserted by the applicant in his response to the Investigations and in the Response to the Show Cause Notice including: 1. the fact that the applicant sought medical treatment and the medical reports from psychologists Peter Jenkins and Ian McCombie; 2. the applicant's assurances that, as he has received treatment, there will be no repetition of the behaviour the subject of the Removal Order; 3. the 22 character references from former and serving members of the NSW Police Force, the Police Service and the community that describe the applicant variously as honest, respectful and professional; 4. Mr Seymour did not make any complaint about being choked; 5. the applicant was junior in rank and grade at the time of the incident the subject of Allegation 1; 6. the applicant's apology and guilty plea in respect of Allegation 1; 7. the applicant was dealt with under the criminal law, and placed on an 18 months' good behaviour bond in respect of Allegation 1; 8. the applicant's assertion that Constable White is not a credible witness in respect of Allegation 1; 9. the decision not to rely on Constable White's account in the criminal prosecution in respect of Allegation 1; 10. in respect of Allegation 2, Ms Fay's statement that the applicant was not aggressive with her and the applicant's statement that the information he imparted was in the public domain and he did not come by it as part of his official duties; 11. in respect of Allegation 4, that Mr Tyrone Skinner had used offensive language, the applicant and Senior Constable Bentley thought Mr Tyrone Skinner was acting aggressively and the applicant's assertion that his use of the torch "was instinctively done for protection without realising what had occurred"; and 12. in respect of Allegation 5 that the applicant says he held fears for his safety and he did not want to escalate the matter further. 1. In relation to Allegation 1, the respondent considered that the applicant's actions resulted in a straight forward enquiry escalating unnecessarily, resulting in the applicant using physical force in circumstances where there was no reason for doing so, and that the applicant's decision to pull Mr Seymour's arm above his head to the point he thought his arm would 'pop', demonstrated poor judgement. 2. The respondent was satisfied, on the balance of probabilities, and having regard to the seriousness of the allegation, that the applicant punched Mr Seymour to the head, and choked him when the applicant placed his arm around Mr Seymour's neck. In making this determination, the respondent took into account the matters relevant to Allegation 1 and general matters of mitigation set out in paragraph [38] and the various witness accounts set out within the extract from the Statement of Reasons at paragraph [28] and that Mr Seymour appeared genuinely frightened of the applicant. The respondent was not persuaded that the applicant fully accepted the seriousness of his conduct in respect of Allegation 1. 3. In relation to Allegation 2, the respondent considered that the applicant displayed poor judgement and, instead of displaying the highest standards of behaviour, the applicant identified himself as a police officer and attempted to call into question the character of several members of Fire & Rescue NSW ("FRNSW") by saying they had criminal records, and disclosed that a member of FRNSW had recently been charged with a child abuse offence. The respondent considered that this conduct failed to uphold the values of the NSW Police Force. 4. The respondent did not accept the applicant's claim that the information about the FRNSW member being charged with child abuse was in the public domain, as the person in question had only recently been charged. The respondent considered that the applicant's claim that he "would not be silly enough to disclose a name" suggested the applicant may disclose other confidential information. 5. ln relation to Allegations 3 and 4, the respondent was satisfied that the applicant, while on duty, created a situation that could, and should, have been avoided, displaying a further lack of judgement in his decision making. 6. The respondent considered the applicant's decision to goad Mr Zac Skinner to be unacceptable. The respondent considered the applicant acted with malice and ill will and that the applicant's behaviour was entirely unacceptable, and brought into question his integrity. The respondent was alarmed that the applicant behaved in the way that he did while subject to a good behaviour bond. 7. The respondent did not accept that Mr Tyrone Skinner was responsible for the circumstances that led to Allegation 4. The respondent determined that the applicant did not attempt to de-escalate the situation despite having received comprehensive training to de-escalate situations of that nature. The respondent concluded that the applicant displayed a lack of insight when deciding to use the physical force that he did. 8. The respondent considered that despite the applicant's claim that the use of the torch was instinctive, striking Mr Tyrone Skinner to the forehead while holding a torch was unreasonable and improper. The respondent determined that the applicant failed to uphold the rule of law, failed to uphold a police officer's obligations to reduce violence, crime and fear in the community, and failed to exercise his authority responsibly and adhere to the highest standards of behaviour. 9. In relation to Allegation 5, the respondent was disappointed that the applicant did not offer any guidance or seek medical assistance. 10. The respondent considered that the applicant tends to overreact and deliberately act with malice and on each occasion, it was the applicant's actions that caused the situation to escalate. The respondent noted that the applicant did not display remorse or contrition, and the respondent could not be satisfied that the applicant would act differently if faced with similar circumstances in the future. 11. The respondent had regard for the view of Mr McCombie who believes that the applicant's behaviour of being too zealous will produce problems for the applicant in the long-term if the applicant does not change. 12. The respondent made a determination that he had lost confidence in the applicant's integrity as a police officer and the applicant's ability to make sound and appropriate decisions and removed the applicant from his position as a police officer. 13. For the purposes of s 181D(1), the grounds for the respondent's decision are "conduct" and "integrity". 14. On its face, the Statement of Reasons complies with the requirements of s 181D(4) of the Police Act, in that the reasons provide a basis for the removal action taken by the respondent: Baker v Commissioner of Police [2015] NSWIRComm 14 at [98]. The applicant's case 1. The second matter for the Commission's consideration is the case presented by the applicant as to why his removal was harsh, unreasonable or unjust. 2. If the applicant advances any evidence or argument that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that evidentiary case, then falls on the respondent; however the legal "burden" referred to in s 181F(2) does not shift: ("Tredinnick (No 2)") at [78] and Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073 at [22]. 3. The applicant's primary case is that the Removal Order was harsh. 4. The applicant also asserts that the Removal Order was unreasonable or unjust in relation to particular findings of fact which have been denied. 5. The applicant: 1. admits much of Allegation 1 but denies he punched Mr Seymour to the head and applied a choke hold which is part of the conduct grounding Allegation 1; 2. admits Allegations 2, 3 and 5; 3. admits Allegation 3 but denies using the derogatory word "cunt" which is part of the conduct grounding Allegation 3; 4. denies Allegation 4 but admits that: 1. he pushed Mr Tyrone Skinner in the chest with both hands; 2. he applied a "hammer strike" to Mr Tyrone Skinner's head while holding a torch; and 3. he sprayed Mr Tyrone Skinner with capsicum spray. 1. The applicant says that those facts which have been denied but found sustained aggravate the gravity of the conduct in relation to those Allegations and therefore the veracity or otherwise of those alleged facts is very important to the applicant's case that the Removal Order is harsh. Allegation 1 1. The applicant pleaded guilty to the charge of common assault in relation to the conduct underpinning Allegation 1 but denies that he punched Mr Seymour to the head or used his arms to apply pressure to choke Mr Seymour. The applicant relies on the fact that there is no video footage of him punching Mr Seymour. The video footage of the incident recorded by REDACTED on her ipad commences after the punch and choke hold allegedly occurred. 2. The applicant says that the allegations in relation to the punch to the head and the choke hold are serious allegations, and there is a lack of cogent evidence to make out these allegations to the civil standard. 3. The applicant asserts that REDACTED, is vindictive towards him and has bullied him. Punch to the head 1. The applicant says that the finding that he punched Mr Seymour to the head is unsound because of the following asserted inconsistencies in the evidence: 1. Mr Seymour did not see the punches being thrown; he says he was struck in the back of his head from behind and in cross-examination he said he assumed the contact was from a punch or an elbow; 2. Mr Seymour says he was punched at a time when he had fallen over and the applicant was on top of him; 3. the witness, Mr McPhee, saw a police officer on top of a male who was pinned to the ground and it looked like the policeman had his shoulder into the male's back; 4. Senior Constable White heard Ms Moore yell out: "He fucking hit him in the face"; 5. Ms Kyren Moore's evidence in her statement is that she saw two punches to the left side of the head whilst Mr Seymour's arm was being twisted upwards by the applicant; 6. Mr Jeffree saw three punches to the back of the head delivered using the right fist whilst the applicant had his left arm around Mr Seymour's throat; 7. REDACTED saw the applicant punching Mr Seymour "in the head and kneeing him in the belly"; and 8. the Agreed Facts relied upon by the Director of Public Prosecutions for the assault charge to which the applicant entered a plea of guilty do not allege the applicant punched Mr Seymour but do state: "it appeared to Senior Constable White that the offender applied a chokehold to the victim; this is denied by the offender". 1. The applicant says that when considering and weighing up all of the evidence regarding the applicant punching Mr Seymour, which is a very serious allegation, the Commission must consider the lack of cogency of evidence. Choke hold 1. The applicant says that the finding that the applicant applied a choke hold to Mr Seymour is unsound because when Mr Seymour was interviewed by Sergeant Williams on 25 May 2014 and when he made a signed statement about the incident of 20 April 2014 he referred to the punch but he did not make mention of the choke hold. 2. The applicant says that Mr Seymour's explanation that he did not mention the choke hold because he was traumatised or in shock is implausible in light of Mr Seymour's oral evidence that he remembers the choke almost every day that he wakes up. 3. The applicant points to the following other inconsistencies in the evidence which call into question the finding in respect of the choke hold: 1. Mr Seymour made a second statement on 8 February 2019 in which he states that: "At some point during this assault, Mr Morris also put me in a chokehold. I do not remember exactly when in the sequence this occurred, but I remember it was very painful. Mr Morris had his arm around my neck and I was being pushed into the ground." 1. Mr Seymour's evidence is that, in the period between his first statement and the statement of 8 February 2019, "He forgot a few things and remembered things later"; 2. Mr Seymour's evidence is that when the choke hold was applied he screamed out at least twice words to the effect of "Fuck you're fucking hurting me. Stop"; 3. Mr Seymour's evidence is that when the choke hold was applied he screamed out and did nothing else; 4. Senior Constable White's evidence is that when the choke hold was applied Mr Seymour made a grunting sound and scratched or grabbed at the applicant's arm; 5. Mr Seymour's evidence is that when the choke hold was applied Senior Constable White was behind him and he did not feel Senior Constable White touching him; and 6. Senior Constable White says the sequence of events was: he heard Ms Moore yell out; he was 10 metres away; he turned around and quickly made his way over; Mr Seymour was sitting on the ground; the applicant was standing behind Mr Seymour and had Mr Seymour's left arm raised above shoulder height and was applying a wrist lock; he stood next to them and placed his hand on the applicant's shoulder and asked him to stop; the applicant then placed his arms around Mr Seymour's throat and flexed his arm; 7. Senior Constable White says that although his notebook entry is the only place where he states that he placed his hand on the applicant's shoulder, immediately before the applicant applied the choke hold, this fact was mistakenly omitted from his REDACTED (GW2 to his statement in these proceedings), police statement of 25 May 2014 (GW1 to his statement in these proceedings), and his statement in these proceedings. These omissions have not been satisfactorily explained. His explanation that he mistakenly left it out of his written REDACTED about the applicant's conduct after having refreshed his memory from his notebook is questionable when coupled with his evidence that he did not include it in the police statement because he was not asked about it. 1. The applicant submits that the evidence from Senior Constable White and Mr Seymour is unreliable and that it does not establish sufficient cogency to make out the very serious finding against the applicant that he applied a choke hold. Allegation 2 1. The applicant admits the conduct sustained in Allegation 2. Allegation 3 1. The applicant admits much of the factual basis underpinning Allegation 3 but has consistently denied calling Mr Skinner a "cunt" and provides background to his interaction with Mr Skinner including that Mr Skinner was previously charged with assault against the applicant. 2. The applicant submits that the finding that he used the word "cunt" is unsound because of the following inconsistencies in the evidence: 1. Mr Zac Skinner states that the applicant said words to the effect of "Next time get your facts straight before getting mummy to call and complain about me cunt"; 2. Mr Zac Skinner recites his own words to the effect he used during the incident and he admits that he used the derogative term "cunt". One explanation is that he may have been confused between what the applicant said and what he said; 3. the applicant's evidence is that he said similar words but did not use the derogative word; and 4. Senior Constable Bentley was present for the entire incident and heard the conversation. He recites the words to the effect of the conversation. He does not say that the applicant used the derogative word. 1. Although the applicant maintains his denial of using the word "cunt", he recognises that although use of the word somewhat aggravates the allegation it does not go so far as to sway the result either way. Allegation 4 1. The applicant denies Allegation 4 but the core facts are, in effect, admitted. The applicant says that he was justified in doing what he did, as one would see a defence to an intentional tort case. 2. The applicant asserts that the findings relied upon to ground the allegation and not to accept his assertions that he did not intend to deliver a hammer strike to Mr Tyrone Skinner's head and the actions he took were justified, are unsound because of the following: 1. the applicant was holding the roughly palm sized torch in his hand at all times when Mr Tyrone Skinner was outside on the verandah. The applicant says that he feared he was about to be assaulted; was fearful of being pushed over the balcony railing and falling to the ground below and says that he reacted instinctively and without purposely thinking about performing the hammer strike; 2. Mr Tyrone Skinner's evidence that he did not have any prior dealings, incidents or issues with the applicant was shown to be inaccurate. Mr Tyrone Skinner admitted: he was charged with hindering the applicant in the execution of duty in 2013; he had been told things about the applicant and from what he had heard he thought the applicant was a "fucking cunt"; 3. the evidence of Senior Constable Bentley who was present for the entire incident is consistent with, and corroborates the evidence of the applicant about the circumstances that existed at the time he used the admitted force against Mr Tyrone Skinner. Senior Constable Bentley says: 1. Mr Tyrone Skinner appeared angry and said words similar to ''I'll bash you right up ya Morris"; 2. after saying "I'll bash you right up ya Morris", Mr Tyrone Skinner opened the security door and came out onto the verandah and stood very close to the applicant almost touching him. The applicant was unable to move back away from Mr Tyrone Skinner because the balcony railing was a short distance behind the applicant. Mr Tyrone Skinner had his chest puffed out and stared directly into the eyes of the applicant; he had both of his fists clenched and was flinching towards the applicant with small movements of his head; 3. the applicant told Mr Tyrone Skinner to get out of his personal space. Mr Tyrone Skinner did not move away and remained in the same position and continued making flinching movements towards the applicant. At that point, Senior Constable Bentley thought that the applicant was about to be assaulted so he stepped forward and was about to place his hand on Mr Tyrone Skinner's arm. However, the applicant pushed Mr Tyrone Skinner in the chest using two hands; 4. after Mr Tyrone Skinner was pushed in the chest he quickly moved back in an aggressive manner towards the applicant who was standing close to the balcony railing. The applicant then struck Mr Tyrone Skinner with the torch using a hammer fist motion; and 5. after the hammer strike, Mr Tyrone Skinner took a few steps backwards and again began moving towards the applicant and Senior Constable Bentley. Senior Constable Bentley stepped towards Mr Tyrone Skinner and was about to take hold of him when the applicant used his capsicum spray; and 1. Mr Tyrone Skinner denies moving quickly or aggressively towards the applicant. Unreasonable or unjust 1. The applicant says that the Removal Order is unreasonable and unjust as it relies on findings of fact that are denied by the applicant including in respect of: Allegation 1 that the applicant punched the back of Mr Seymour's head and put Mr Seymour in a choke; and that the use of force in respect of Allegation 4 was proportionate and reasonable. Harsh 1. The applicant accepts that his admitted misconduct is serious. He submits, however, that the Removal Order is harsh for the following reasons: 1. in its consequences for his personal and economic situation; 2. it is disproportionate to the gravity of the Allegations; and 3. it is disproportionate in light of the mitigating factors. 1. The applicant says that facts which have been denied but found sustained aggravate the gravity of the conduct and therefore the Commission should carefully consider the veracity of the disputed facts as part of the applicant's case that the Removal Order is harsh. 2. The applicant set out the financial impact upon him of the loss of his career in the Police Force, including the pressure on his capacity to make mortgage payments and the likelihood that he will need to relocate "to obtain a 'decent' job". 3. The applicant says that as a consequence of the incident on 6 August 2016 he has suffered severe symptoms of anxiety and a decline in his mental health. 4. The applicant says he has apologised to the respondent in the Response to the Show Cause, and by entering a guilty plea he has apologised to the judicial system, in a way, by accepting his responsibility and putting himself before the courts. 5. The applicant relies upon the following factors in mitigation of his misconduct: 1. his relative inexperience as a police officer. He was attested as a Probationary Constable on 14 December 2012 and confirmed as a Constable on 14 December 2013; 2. his conduct in Allegations 1 and 4 was not deliberate or premeditated; 3. his demonstrable remorse, contrition and acceptance of responsibility, demonstrated by: 1. his plea of guilty to the charge of assaulting Mr Seymour at the earliest opportunity; 2. his admission of the allegations and his apology to the Commissioner of Police; 3. obtaining psychological counselling to assist him in his future work as a police officer and address the risk of reoffending and developing his communication skills to de-escalate situations; 4. his acknowledgement that he was overzealous in the execution of his duties and that he antagonised Mr Zac Skinner; and 5. his restudying of the powers of a constable of police. 1. The applicant relies on the uncontested evidence of the eight character witnesses which he says is of the kind and quality that is capable of weighing heavily in favour of him because many of the witnesses encountered him throughout his work as a police officer. It provides a testament to his past good conduct and service to the Police Force and was given in the clear knowledge that the applicant had engaged in misconduct. The evidence is also relevant to the issue of practicability of reinstatement. 2. The applicant submits that his acknowledgement and acceptance of his wrongdoing coupled with the voluntary steps taken by him in rehabilitation and the character evidence supports there being confidence that he has both the capacity and motivation to eliminate the very conduct which caused the respondent to lose confidence. 3. The applicant says it is relevant that after pleading guilty to the charge of common assault of Mr Seymour, the applicant was not convicted. He was placed on a good behaviour bond without conviction and did not breach the bond. He was not charged in relation to the use of force on Mr Tyrone Skinner. 4. Further, following the incident in April 2014, the applicant was monitored under an Interim Risk Management Plan during which he was trusted with his appointments and he performed his duties competently. He was suspended from duties in August 2017. 5. The applicant seeks reinstatement to his former position, continuity of service and any other order the Commission sees fit. The respondent's case 1. The third matter required by the Police Act to be considered by the Commission is the case presented by the respondent in answer to the applicant's case. 2. Factual controversies exist in relation to particulars (e) and (f) of Allegation 1, and certain particulars of Allegations 3 and 4, and to some extent Allegation 2. The respondent submits that it is not necessary for the Commission to resolve these factual controversies in order to find that the decision of the respondent was soundly based and does not warrant disturbance. 3. The respondent says that the High Court in Eaton recognised that the scope for criminal offences by police officers, and removal because of them, is wide. One of the grounds of misconduct relied upon by the Commissioner constituted a criminal offence, common assault of a member of the public in the course of the applicant's duties as a police officer. 4. The respondent submits that only if an applicant has "produced evidence casting sufficient doubt on whether the Commissioner had adhered to the procedures set down by the Act or raised a substantial allegation of an uninformed decision, the burden passed to the Commissioner to demonstrate that the decision was properly made": Starr v Commissioner of Police [2001] NSWIRComm 226 at [171], approved in Tredinnick (No 2) at [70]. The respondent says the applicant has failed to produce evidence to cast sufficient doubt. 5. The respondent submits that the Applicant concedes that he engaged in the essential features of the misconduct found against him and this admitted misconduct demonstrates the applicant's propensity towards the unnecessary and/or premature use of excessive and/or unreasonable force; pattern of overzealous use of authority; lack of judgment; and lack of integrity. Taken together, this conduct is sufficiently serious to justify the Commissioner's decision to remove the Applicant. This decision should not be disturbed by the Commission, as a matter of public interest. 6. The two significant factual controversies relating to the applicant's misconduct are: whether the applicant's physical assault of Mr Seymour included (i) throwing punches or striking the head of Mr Seymour and (ii) applying a choke hold; and the extent to which the applicant's assault of Mr Tyrone Skinner was the result of provocation and whether the applicant intended to deliver a 'hammer strike' to Mr Skinner's head. 7. The respondent says that although it is not necessary to resolve these factual disputes, a review of the evidence will resolve the controversies in the respondent's favour and reinforces the soundness of his decision to remove the applicant. The respondent sets out such a review in his written submissions: The first incident - assault of Mr Seymour … Applicant's evidence 22. Mr Morris admits that he demanded Mr Seymour's mobile phone; attempted to take Mr Seymour's phone; "forced Mr Seymour to the ground"; and pulled his arm up sharply above his head. 23 … [Mr Morris] has never at any time deigned to reveal precisely how he "forced Mr Seymour to the ground". … 24. The Commissioner's finding that Mr Morris' use of force was unreasonable is supported by the unchallenged evidence from the District Commander of Coffs/Clarence Command, Superintendent Clarke. Having reviewed the relevant removal documents and Mr Morris' statement (Ex A2), Superintendent Clarke states that Mr Morris' admitted conduct (indeed, "any physical contact at all in this situation") constituted unreasonable and unnecessary force; Mr Morris had unnecessarily escalated the situation by attempting to exert his authority (threatening to issue an infringement notice for a minor littering offence); and his actions were not compliant with Police Force policy and training. By attempting to seize Mr Seymour's phone, the Applicant also wrongly sought to exert power which he did not in fact possess, contrary to his training. Criminal proceedings … 26. Mr Morris pleaded guilty to common assault. … Mr Morris relied on a statement of agreed facts dated 8 June 2016 which stated, among other things, that 'he forced the victim to the ground'. 27. Mr Morris was sentenced to as 10(1)(b) good behaviour bond for a period of 18 months commencing on 28 June 2016. … a criminal charge of common assault against a police officer is objectively serious, especially in light of the High Court's observations in Eaton ... The punches and choke-hold … 29. The Applicant's denials that he punched and placed Mr Seymour in a choke-hold are directly contradicted by the evidence of Mr Seymour and Senior Constable White, which should be preferred: (a) Senior Constable White directly witnessed [and] demonstrated the choke hold in his evidence in chief; ... SC White has remained entirely consistent and steadfast in his oral evidence and throughout his various statements and notes that he saw Morris place Seymour in a choke hold with his right arm around Seymour's neck and throat. (b) Mr Seymour's evidence clearly demonstrated that he was, and remains, genuinely traumatised by Mr Morris' assault. He has consistently complained that Morris repeatedly struck him in the back of the head in the course of forcing him to the ground in an attempt to forcibly take his phone out of his hands. (c) Mr Seymour also demonstrated Morris' choke hold .... He remained steadfast in his evidence on the chokehold under cross-examination. The omission of a reference to the choke hold in his initial statement to the police … is understandable given his initial focus on what he regarded as the more serious part of the assault (being repeatedly struck in the head by Morris), the shock and trauma inflicted upon him …, and his understandable inability to recall precisely the timing on the choke hold in the sequence of events. (d) …The proposition put to him … - that he did not see the punches thrown by Morris to the back of his head - is self-evidently irrelevant in circumstances where Mr Seymour certainly felt the blows and there is no suggestion that anyone other than Mr Morris was on top of him at the time the blows were delivered. (e) … Senior Constable White' has consistently stated that he heard Kyren Moore complain about Morris punching Seymour, Mr Seymour's face looked red and like he was in pain, and he was extremely distressed - in tears,24 hysterical, cowering and sobbing screaming and making guttural sounds. (f) The video footage … clearly shows both Kyren and Skyler [Moore] in a distressed state, repeatedly and alarmingly stating that Mr Morris had punched Mr Seymour. 30. … Mr Morris has never explained how he "forced Seymour to the ground". He did not do so in his criminal proceedings before the Local Court. He did not do so in his evidence in chief in these proceedings. ... 31. … the NSWIRC presently has no positive evidence from Mr Morris explaining the manner in which he admittedly "forced Mr Seymour to the ground". The only positive evidence before the Commission in this regard is Mr Seymour's evidence. Mr Seymour's evidence should be accepted. 32. … Mr Morris' bare denial in relation to the punches and the choke hold should be rejected [because]: (a) … Mr Morris sought to deflect questions about his failure to fully explain the altercation with Mr Seymour by reference to unidentified "notes" or "emails… [not included] in his evidence in chief… (b) Exhibit R1 contained three significant allegations. First, Morris claimed that he tried to grab the phone from Seymour because Seymour was attempting to delete the footage. Mr Morris had raised this allegation only for the first time in his reply statement in these proceedings …. Secondly, Morris claimed that he asked Senior Constable White for advice before he attempted to seize the phone. Mr Morris raised this allegation for the first time in cross-examination. Third, Morris alleged that the physical altercation was initiated by Seymour… (c) In cross-examination, Mr Morris was evasive as to whether he maintained … Mr Seymour assaulted him. …If, … Morris … believed this allegation to be true, … there can be no rational explanation for his failure to raise the allegation in these proceedings… (d) Mr Morris failed to so because the allegation that Mr Seymour assaulted him is patently false. … Mr Morris ·was not prepared to positively advance this allegation in these proceedings because he knows it to be false. (e) … Mr Morris failed to put to Mr Seymour in cross-examination any allegation that: (a) he assaulted Mr Morris, or (b) he attempted to delete the footage on his phone. Mr Seymour was never given any opportunity to respond to either of these allegations. It would be unfair to Mr Seymour for Mr Morris to rely on these allegations, and contrary to the rule in Brown v Dunn. (f) … The reasonable inference is that Mr Morris has elected to avoid giving any explanation of how he forced Mr Seymour to the ground in favour of maintaining a false denial; and the true position is that Mr Morris did so by and in the course of attacking and striking the back of Mr Seymour's head. … The second incident - disclosing confidential information … 28. On the surface, it appears that Mr Morris purports to confess and admit this allegation unconditionally. 29. … Mr Morris' formal response in the investigation of this matter was to explicitly deny that he acquired any of the information he conveyed to Kyla Fay in his capacity as a police officer... 30. In his interview with the investigator …, Mr Morris claimed that he could not remember how he became aware of the 'child abuse charge' information [and] … asserted that such in information could have been the subject of media reports because there was a lengthy period of 15 months between the laying of the charge on 19 October 2015 and Morris' conversation with Ms Fay (in fact there had only been 1 month between the charge and their conversation which took place on 16 November 2015). 31. … under cross-examination … Mr Morris claimed to have a recollection of the source of the information he conveyed. …. [He] nominated the source … as either coming from a colleague with whom he was playing golf (and was off duty) at the time, or from other social contact with persons connected to the fire station at unspecified 'BBQs'. … 33. … This claim should be rejected. 34. … Mr Morris' claim that he concedes the allegation on the basis of 'community perception' that he had acquired the information from his duties is plainly untenable and should also be rejected. ... 35. Thus, the notion that Mr Morris is prepared to admit guilt as to the second incident in circumstances where he considers that his conduct has not justified the allegations is not credible. The third incident- assault of Tyrone Skinner … 34. There is a factual controversy between Mr Morris and Mr Skinner's evidence as to the extent of the threat posed by Mr Skinner to Mr Morris' safety, and as to the extent to which Mr Morris was compelled to deploy or was reasonably justified in deploying the degree of force that he did [and] the use of the word "cunt". 35. … [T]here was a history of antagonism between Mr Morris and members of the Skinner family; and that Tyrone Skinner did behave in an aggressive and somewhat provocative manner towards Mr Morris … 36. However, … the lion's share of responsibility for the rapid escalation of conflict lies with Mr Morris' bad judgment and excessively authoritarian predisposition. There are 6 principal reasons for this conclusion. 37. First, Mr Morris was the provocateur. …Mr … confront[ed] and … Zac Skinner with his prior complaint, and … issue[d] a school-yard taunt … " ... you are delusional ... next time get your facts straight before getting mummy to call and complain about me" (Morris denies ending this taunt by calling Zac a "cunt"). This exchange caused Tyrone Skinner to intervene in an angry manner, which then lead to Morris' assault upon him. …. [Morris] did so knowing that (a) there was an antagonistic and volatile history and relationship between him and the Skinner family; and (b) he was then still on a risk management plan for his assault of Mr Seymour. 38. Secondly, the physical confrontation was also initiated by Mr Morris. He performed the 'check drill' two-handed push whilst Tyrone Skinner was stationary. This action was inflammatory, and clearly unnecessary. At no time did Mr Morris attempt to leave the premises (as Tyrone Skinner was angrily demanding) even though his primary task of performing the bail check had been completed. Neither did he make any attempt to move away from Tyrone Skinner … 39. Thirdly, whether Tyrone Skinner was quickly moving … towards Morris … or merely resuming his original position after being pushed back by the 'check drill' … Mr Morris again chose to stand his ground, double-down on the use of force and go on the offensive with the hammer strike. … 40. Fourthly, … Mr Morris chose to apply even more force by using the pepper spray - a weapon which Mr Morris' training mandated was to be reserved "only for the protection of human life". 41. Fifthly, REDACTED…, he managed to deploy REDACTED… The unchallenged evidence of Superintendent Steven Clarke is that, even accepting that Tyrone Skinner was moving back towards Morris after being pushed by him, the use of force by Mr Morris in striking him with a hammer blow was inappropriate and unreasonable. 42. Sixthly, … Mr Morris has demonstrated a disturbing lack of appreciation of the extent of his misjudgement. … [E]xpressing superficial contrition whilst refusing in substance to accept … that his "mummy" statement was intended to demean or insult Zac Skinner... (Footnotes omitted) 1. The respondent submits that the Commission could not find that the removal was neither unjust nor unreasonable. On the basis of the applicant's admissions and the matters set out in the extract from the respondent's submissions in [93] the Commission should be satisfied that the applicant has engaged in the conduct that sustained in the Statement of Reasons including: 1. in respect of the first incident of misconduct, the applicant: throwing punches or striking the head of Mr Seymour and applying a choke hold to Mr Seymour; and 2. in respect of the third incident of misconduct, the extent of the applicant's assault of Mr Skinner was not justified by the provocation by Mr Skinner. 1. The respondent says that the removal of the applicant was not harsh having regard to the objective seriousness of the applicant's misconduct, when weighed in light of other matters, such as the public interest in members of the police force conducting themselves with integrity and in a professional (and not disproportionate or excessively authoritarian) manner. 2. The respondent says that the Commission should dismiss the Application. Consideration 1. The applicant admits that he engaged in the essential features of the misconduct found against him. 2. Superintendent Clarke, the District Commander of the Coffs/Clarence Command had, at the time of making his written statement, 31 years' experience in the NSW Police Force. I accept that Superintendent Clarke is well placed to give evidence to the Commission about operational processes within the NSW Police Force, including the proper and usual conduct and the expectations of Police Officers under his command in: the use of force; responding to being filmed; dealing with theft and littering offences; the use and protection of confidential information; performing bail checks; and dealing with the consequences of administrating Oleoresin Capsicum (OC) spray. Superintendent Clarke was not required for cross-examination. 3. Superintendent Clarke, viewed all the relevant removal documents, the Removal Order and the Show Cause Notice; the Response to the Show Cause Notice and the applicant's first statement filed in these proceedings. 4. In respect of the misconduct alleged in relation to the applicant's interaction with Mr Seymour, Superintendent Clarke assessed the appropriateness of the applicant's conduct, even if the choke hold and the punch did not occur, as unreasonable and unnecessary in terms of the use of force. Superintendent Clarke gave the following evidence in his statement at paragraph 27: … I consider that any physical contact at all in this situation is an unnecessary use of force and was not reasonable in the circumstances. The matter was so trivial that it did not warrant any physical contact or aggression. 1. In entering a guilty plea, the applicant himself admitted his conduct was in breach of s 61 of the Crimes Act 1900 (NSW). 2. I agree with the respondent that the applicant's admitted conduct in relation to Mr Seymour demonstrates the applicant's propensity towards the use of excessive and unreasonable force for which he entered a plea of guilty to the criminal charge of common assault; a pattern of overzealous use of authority; and a lack of judgment. 3. I also consider that the admitted conduct was contrary to: 1. s 7 of the Police Act which required members of the NSW Police Force to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of others, … (h) ensures that authority is exercised responsibly and 1. Points 1, 2, 3, 4, and 6 of the NSW Police Force Code of Conduct and Ethics as set out in the Statement of Reasons. 1. The applicant admitted conduct in respect of the disclosure of confidential information about a member of the Grafton Fire Station, and initially denied that he received the information in the course of his duties. Under cross-examination the applicant conceded that his admission to Allegation 2 was on the basis of "community perception" that he acquired the information from his duties, rather than his own acknowledgement of his conduct. I agree with the respondent that this limited admission is untenable. The applicant has admitted to the Allegation but seeks to distance himself from its consequences. 2. The conduct to which the applicant admitted risked serious reputational damage to an individual in FRNSW by disclosing confidential information about him and displayed a lack of judgment and a lack of integrity. The applicant acted in breach of s 7(a) of the Police Act which required him to act in a manner which "places integrity above all". Further, the applicant's conduct was in breach of Points 1, 3, and 8 of the NSW Police Force Code of Conduct and Ethics as set out in the Statement of Reasons, and was contrary to cl 76 of the Police Regulation 2015 (NSW). 3. In respect of the applicant's use of force towards Mr Tyrone Skinner the applicant admits his behaviour but the factual controversy is the question of the extent of the threat posed by Mr Skinner to the applicant's safety, and therefore the extent that the applicant was compelled to deploy or was reasonably justified in deploying the degree of force that he did and the use of the word "cunt". 4. Superintendent Clarke gave the following evidence in his statement about the interaction with Mr Tyrone Skinner: 46. In this scenario, Mr Morris had a number of options available to him, including incorporating sound communication techniques. 47. In my experience, calmly suggesting to a person that they should move away or warning them that they could face a consequence such as arrest (in appropriate circumstances), is often enough to de­escalate the situation. If firm verbal communication does not cause the person to move away, and they are aggressive and in very close proximity, then it may be appropriate to REDACTED. I understand Mr Morris pushed Tyrone to the chest. 48. From this point, I understand Tyrone Skinner regained his footing after being pushed by Mr Morris and moved back towards Mr Morris. Mr Morris then struck Tyrone Skinner with the torch that he was holding in his right hand. 49. I have considered all of the circumstances of this action, and I consider that the use of force by Mr Morris in striking Tyrone Skinner in this manner was inappropriate in the circumstances and an unreasonable use of force for reasons including: (a) it may be appropriate in some circumstances to strike a person if you fear assault, however the strike here was delivered to the head/skull region. REDACTED. I am of the opinion, considering the facts of this matter, that it was not appropriate to strike Mr Skinner to the head, especially where it is available to an officer to strike the person to another "approved" strike zone or part of the body. If a Police Officer in my Command determined it was reasonable to strike someone, I would expect they go to other areas of the body in the first instance, such as the knee or the arm, rather than directly to the head; and (b) there were a number of other options available to Mr Morris in the circumstances, REDACTED. 1. It is necessary to separate the admission from the applicant's asserted justification. The applicant's written submissions at [10.3] – [11] set out the applicant's justification for his actions. In summary, the applicant relies on the following matters to establish that his conduct in respect of Allegation 4 was justified: 1. an antagonistic relationship between the applicant and the Skinners; 2. that Mr Tyrone Skinner said "I'll bash ya right up ya Morris"; 3. Mr Tyrone Skinner standing close to the applicant almost touching him and "flinching" with his chest puffed out and staring into the applicant's eyes and the applicant not being able to move away because the balcony rail was a short distance behind him; 4. the applicant telling Mr Tyrone Skinner to get out of the applicant's personal space, Mr Tyrone Skinner not moving, so the applicant pushed Mr Tyrone Skinner in the chest; 5. Mr Tyrone Skinner then moving forward aggressively, the applicant fearing he was about to be assaulted and pushed over the balcony railing, so the applicant instinctively struck Mr Tyrone Skinner in the head with the torch using a hammer fist motion; 6. after the hammer strike Mr Tyrone Skinner initially took a few steps backwards and then began moving toward the applicant; and 7. Senior Constable Bentley stepped towards Mr Tyrone Skinner and then the applicant used the capsicum spray. 1. The evidence of Senior Constable Bentley about the incident in the Commissioner's Confidence Documents (noting that the applicant did not file any evidence from Senior Constable Bentley) accords largely with the applicant's evidence. 2. Even if the use of force was reasonable and commensurate with the actual or perceived risk to his person or that of Senior Constable Bentley, the applicant's admitted conduct in respect of Mr Tyrone Skinner demonstrates the applicant's lack of judgment; his propensity towards provocation when there was an option to walk away, a failure to follow NSW Police procedures regarding the decontamination procedures following deployment of the OC spray, and a lack of integrity. 3. The applicant's admitted conducted in respect of all of the Allegations would establish a sufficient reason for the respondent to remove the applicant from the NSW Police Force. 4. The respondent says that only if an applicant has produced evidence casting sufficient doubt on whether the Commissioner had adhered to the procedures set down by the Act or raised a substantial allegation of an uninformed decision, the burden passed to the respondent to demonstrate that the decision was properly made. The respondent submits that the applicant has failed to produce evidence to cast sufficient doubt on the Commissioner's decision. 5. As Commissioner Newall stated in Beck v Commissioner of Police (No 3) [2015] NSWIRComm 1023: 96. Having heard Mr Beck's case, counsel for the Commissioner did not proceed to call in evidence the witnesses whose statements had been filed. That is a matter for the Commissioner. The Act does not require the putting on of evidence; it requires that the Commissioner reply to the Applicant's case. That reply was effected in this case by submissions pointing out, correctly in my view, that the case advanced by Mr Beck could not succeed on its own evidence. 97. While there is a 'shifting evidentiary burden' in these cases (Hosemans at [131]), if an applicant's evidentiary case does not require rebuttal by evidence, there is no requirement on the Commissioner to bring evidence. He must, under the Act, reply to the applicant's case. In some cases, such as this one, that is properly done wholly by argument, and by reference to materials put in evidence by the applicant. 1. If the matter were limited to an assessment of whether the decision to remove the applicant was just and reasonable then it would not be necessary to consider the disputed facts. However, the applicant submits that determination of the facts in dispute goes not only to the reasonableness of the Removal Order but also to an assessment of harshness and for this reason it is necessary to consider the disputed facts carefully. 2. The question is whether the applicant's case was sufficient to shift the evidentiary burden to the respondent in respect of the disputed facts by demonstrating a flaw in the respondent's reasoning: Tredinnick (No. 2). 3. I turn to consider each of the disputed facts. Allegation 1 Punch to Mr Seymour's head 1. The applicant says there is a lack of cogency in the evidence about whether the applicant punched Mr Seymour to the head on 20 April 2014. The asserted lack of cogency is summarised at [63]. 2. The applicant pleaded guilty to the charge of common assault but says that the agreed facts which are summarised in the extract from the Statement of Reasons at [28] did not mention the applicant punching the back of Mr Seymour's head. The agreed facts did note that Senior Constable White believed that a choke hold had been applied but that Mr Morris had denied that. The applicant says that the fact that this form of words was not used for the punching allegation is consistent with his case that the Director of Public Prosecutions was not satisfied that the evidence supported this allegation. The applicant says that inclusion of this content in the Local Court document would aggravate the gravity of the conduct in relation to those allegations and is therefore important. 3. There is no evidence about the negotiation of the agreed facts or the withdrawal of the second charge. The Commission is not a criminal jurisdiction. The Commission has not been provided with any assistance with sentencing guidelines that would indicate that an assertion of conduct and a recognition that such conduct is denied in a statement of agreed facts could and/or would be taken into account by a Magistrate in sentencing. Without such assistance I do not accept that could be the case as it is the Commission's expectations that a defendant is sentenced on their proven conduct not their denied conduct. In any event, the fact that there was not a reference to Mr Seymour being punched in the head in the negotiated agreed facts does not prove that the conduct was not engaged in, that is it does not prove a negative, but it is a factor relevant to establishing doubt and if doubt is established, the weighing of the applicant's and respondent's evidence on the balance of probabilities. 4. The applicant submits that Mr Seymour was unclear as to how the applicant forced him to the ground and there is no video footage to assist the Commission. The applicant criticises Mr Seymour's memory of the incident. The applicant seeks to establish doubt in the respondent's finding on the basis that Mr Seymour felt a blow to the head before he fell over and that Mr Seymour says he was punched after he had fallen over. 5. The applicant says that there could be a multitude of explanations as to what one could feel on the back of their head, connecting with it, where they could feel it was a punch, noting that Mr Seymour did not see it and it was at a time when, according to Mr Seymour, he had fallen over or was falling over and Mr Morris was on top of him. However, the applicant does not give the Commission any one of these multitude of explanations. The applicant gives a bare denial about the punch in his evidence although he did offer to explain how Mr Seymour got to the ground in cross-examination. If the applicant had an explanation as to how Mr Seymour ended up on the ground that would cause doubt about the respondent's finding it would be expected he would have put this to the Commission. 6. In cross-examination, it became apparent that, five years after the incident, Mr Seymour did not have a good memory of the events of 20 April 2014. However, Mr Seymour has been clear from his statement of 25 May 2014 about the matter as to how he reached the ground and that he was punched twice. 7. In cross-examination Mr Seymour admitted that he could not see if he was punched or struck by an elbow but he assumed he was hit by a fist. Importantly though, Mr Seymour was resolute in his evidence in cross-examination that he was struck in the back of the head. 8. REDACTED statement to the Police made on 10 October 2014 is in the Commissioner's Confidence Documents and was relied on by the respondent in making his findings. However, REDACTED is not a witness in these proceedings and therefore could not be cross-examined. The applicant submits that REDACTED evidence that the applicant punched Mr Seymour "in the head and knee[d] him in the belly" in her statement to the Police of 10 October 2014 is not supported by other evidence in respect of the allegation that the applicant kneed Mr Seymour in the belly. 9. The applicant says that REDACTED was aged 11 at the time of the incident and her evidence should not be given significant weight because of her age and because she had the ability to hear what was being said by others at the scene. The applicant submits that if people at the scene, including REDACTED mother, Ms Kyren Moore, whose evidence is considered below, exaggerated or had misstated what they had witnessed then REDACTED evidence would be tarnished by this. The applicant submits that without REDACTED being tested in cross-examination it would be dangerous to rely upon her evidence and give it any degree of significant weight. 10. The video footage from REDACTED iPad does not record the applicant punching Mr Seymour. The footage commences from a time shortly following when it is alleged that the applicant punched Mr Seymour. It is clear from the audio that a female, who I accept is REDACTED, on two occasions, states "You hit him three times." REDACTED makes other exclamations and is audibly upset. It is clear to me that REDACTED is distressed by what she has just witnessed. I accept that REDACTED evidence in the audio on the video and in her statement is her own evidence. Despite the applicant's submissions about the inability to cross-examine REDACTED, I consider that her evidence supports Mr Seymour's evidence, on which he was thoroughly cross-examined, and REDACTED evidence should be given weight. 11. The applicant also relies on the account of Mr Ben McPhee, contained in the Commissioner's Confidence Documents, to establish the asserted lack of cogency in the evidence. Mr McPhee says he saw a police officer on top of a male and it looked like the male had been pinned to the ground and the police officer had his shoulder in the male's back. The content of Mr McPhee's statement is not in conflict with a finding that the applicant punched Mr Seymour in the back of the head and is not in conflict in any material sense with the evidence of the other witnesses. 12. The applicant says the evidence of Senior Constable White in his statements of 23 April 2014 and 24 May 2014 that Ms Kyren Moore said "He fucking hit him in the face, I'm the one that took the eggs, why did that officer hit him for?" is inconsistent with Senior Constable White's handwritten notebook entry which records Ms Kyren Moore saying "Don't fucking hit him. Why did you hit him?" At the end of the cross-examination on this point the following exchange occurred: Are you certain that Ms Moore said, "He f-ing hit me in the face", and the reference being to the face? A. Yes. 1. The applicant has sought to convince the Commission that Senior Constable White's evidence about the punch is unsound because he included the additional detail about Ms Kyren Moore's exclamation and changed a detail about Mr Seymour resisting arrest after he reviewed the video footage. 2. Senior Constable White was not defensive or shaken in his evidence about the asserted difference in the content of the statements and in his notebook and explained that he had remembered more details when he drafted his typed statement and that after viewing the video footage for his statement in these proceedings, he corrected a detail about whether Mr Seymour resisted arrest from the content of his typed statement. 3. Senior Constable White was an authentic and credible witness. I accept that Senior Constable White remembered the additional details when preparing the typed report. I accept Senior Constable White's evidence that he remembers hearing Ms Kyren Moore make this statement. Senior Constable White has consistently stated that he heard Ms Kyren Moore complain that the applicant punched Mr Seymour. 4. I have considered Senior Constable White's memory of Ms Kyren Moore's exclamation referring to a punch to the face rather than to the back of the head. Ms Kyren Moore says that she saw two punches to the side of the head. This is consistent with the respondent's finding. 5. Senior Constable White's memory of Ms Kyren Moore's exclamation, and his corrected evidence about Mr Seymour not resisting arrest, do not cause me to doubt the credibility of the evidence that Senior Constable White gave under oath to the Commission. However, his initially flawed memory is a matter to weigh in the assessment of the cogency of all of Senior Constable White's evidence and is a matter relevant to whether doubt has been raised about the respondent's reasoning and findings in the Statement of Reasons. 6. Other than attacking the cogency of the evidence and asserting that Mr Seymour was the aggressor at one point and then backing away from this assertion, the applicant has not called any positive evidence to cast doubt on the respondent's finding. 7. I have considered thoroughly the evidence of the witnesses, and the inconsistencies asserted by the applicant. I do not consider whether Mr Seymour remembers being punched twice or three times to be a matter that establishes sufficient doubt that Mr Seymour was punched in the head by the applicant. After considering all of Senior Constable White's evidence given in person and in writing in relation to the alleged punch I accept his evidence to the Commission is his best memory of the events of 20 April 2014 and this memory has been aided by his notes and the video footage. 8. The differences that the applicant points to in respect of the evidence of Mr Jeffree, REDACTED and Ms Kyren Moore are of specific and relatively minor details about the applicant punching Mr Seymour. Each of these witnesses gave evidence that the applicant punched Mr Seymour. 9. The necessary inference which has been established on the balance of probabilities, taking into consideration all of the evidence and the submissions in the applicant's case, including the applicant's assertion of a lack of the cogency of the evidence, is that the applicant pushed Mr Seymour in the back of the head, Mr Seymour fell over and the applicant punched Mr Seymour in the back of the head at least once, but on more than one instance. 10. I am satisfied that the applicant has not been able to demonstrate a flaw in the respondent's reasoning that Mr Seymour experienced a hit to the back of the head from the applicant. The Choke hold 1. The applicant submits that the respondent's finding that the applicant applied a choke hold on Mr Seymour is not sound because of inconsistencies in the evidence as set out from [65] – [68]. 2. The applicant askes the Commission to place significant weight on Mr Seymour initially not complaining of a choke hold and inconsistencies in Senior Constable White's memory about whether he placed his hand on the applicant's shoulder. 3. The applicant sought to establish that Mr Seymour's evidence was tainted by the preparation of it by the solicitors for the respondent and during cross-examination of Mr Seymour the following exchange occurred: Q. Who is it that took your attention to what happened on the day that made you say something about there being a further incident that happened to you? A. No one made me say anything. Q. Who took your attention to something further on the day happening, Mr Seymour? A. ..(not transcribable - paper hitting microphone).. Someone, one of the - I would assume the barrister from Minter Ellison or whoever wrote the statement down when they took it off me, I further remembered something else that I thought should be definitely added in. Q. Are you saying that the person that was interviewing you to take the statement from you asked you if you'd been the subject of arms around your neck? A. No. Q. Did they ask you if you'd been choked? A. No. Q. Are you saying that your memory improved with the passage of time? A. I'm saying I remembered that specific thing and felt that it should be added to my previous statement because I had not written it in. Q. You made your statement that was the one given to the police officer, it's dated 25 May 2014, about five weeks after this incident, because it happened on 20 April 2014. That's the time period we're talking about, Mr Seymour. You then provided this other statement around December 2018. It's a much lengthier period, isn't it? A. (No verbal reply) Q. It's a much lengthier period, Mr Seymour, isn't it? A. There was a period of time there, yes. Q. Matter of years? A. Mm. Years to watch it replay over and over in my head, exactly what happened, every day, every night before I got to sleep. Q. And a lot of time for you to become mistaken about what had happened, Mr Seymour, isn't it? A. Definitely not. Q. A lot of time for you to invent things and imagine things? A. Definitely not. Q. A lot of time for you to be told things by other people and then to assume it as your own knowledge, Mr Seymour? A. Definitely not. 1. I accept Mr Seymour's demonstration of the choke hold and his steadfast evidence under cross-examination. 2. I agree with the respondent's submissions at paragraph 29(a) and (c) of his written submissions which are extracted at [93] above that the demonstration of the choke hold by both Mr Seymour and Senior Constable White were consistent and that the evidence of Senior Constable White about the choke hold has been consistent in his various statements and oral evidence. 3. The critical matter on which the choke hold allegation rests is Senior Constable White's direct observation, that the applicant placed Mr Seymour in a choke hold which I accept. I do not consider Senior Constable White's failure to include in his written statements, details of whether he placed a hand on the applicant's shoulder that were recorded in Senior Constable White's notebook shortly after the incident to call into question Senior Constable White's evidence that the applicant placed Mr Seymour in a choke hold. 4. I am satisfied that the applicant has not been able to demonstrate a flaw in the respondent's reasoning and finding that the applicant placed Mr Seymour in a choke hold. Allegation 4 1. The applicant denies using the word "cunt". This is an offensive word but little turns on whether he used the word at the end of his taunt to Mr Zac Skinner. I am satisfied that the applicant has raised sufficient doubt about this word to shift the burden and the respondent has not made out his burden to establish the use of the word. 2. I have considered the applicant's case that his action in hitting Mr Tyrone Skinner with a torch and using the capsicum spray was justified which is summarised at [108] above. 3. I have also considered Superintendent Clarke's view that the use of force was unreasonable which is extracted at [107] above. 4. I have considered the evidence of Senior Constable Bentley including the photograph of the balcony and the evidence of Mr Tyrone Skinner, Superintendent Clarke, and the applicant. 5. I agree with each of the six principal reasons set out in paragraphs 38 – 41 of the respondent's submissions extracted at [93] which establish that a significant proportion of responsibility for the rapid escalation of conflict lies with the applicant's bad judgment and excessively authoritarian predisposition. In summary: 1. the applicant was the provocateur who taunted Mr Zac Skinner causing Mr Tyrone Skinner to intervene; 2. the Skinners told the two police officer to leave the property, the bail check had been completed, and it was after 10.45pm at night. At no time did Mr Morris attempt to leave the premises; 3. I accept that Mr Tyrone Skinner was flinching as described and displayed to me by the applicant and was likely upset about what was taking place at his front door. However, the physical confrontation was initiated by the applicant who performed the REDACTED whilst Mr Tyrone Skinner was stationary. This was inflammatory, and unnecessary; 4. whether Tyrone Skinner was quickly moving towards the applicant or not, Mr Morris again chose to stand his ground, double-down on the use of force and go on the offensive with a REDACTED; 5. the applicant applied even more force by using the OC Spray which according to the NSW Police Force REDACTED; 6. REDACTED available the applicant managed to deploy REDACTED; and 7. the applicant has demonstrated a lack of appreciation of the extent of his misjudgement. Expressing superficial contrition whilst refusing in substance to accept that his "mummy" statement was intended to demean or insult Mr Zac Skinner. 1. For those reasons I am satisfied that the applicant has not been able to demonstrate a flaw in the respondent's reasoning that the degree of force used by the applicant was disproportionate, unreasonable, and not justified in the circumstances. 2. Based on the material before me I am satisfied that the finding by the respondent that the five Allegations have been substantiated was correct. Matters required to be considered by s 181F(3) 1. The Police Act sets out at s 181F(3) matters the Commission must consider in determining whether an order to remove was harsh, unreasonable or unjust. The Commission must have regard to the interests of the applicant, and the public interest. The interests of the applicant 1. Pursuant to sub-s 181F(3) of the Police Act, the Commission must have regard to the interests of the applicant. These include, but are not limited to, the consequences for the applicant of his dismissal. 2. It is clear that the effect of the Removal Order set out at [78] to [85], including the loss of a stable career in the NSW Police Force and the reduction of income and the consequent financial hardship on the applicant will be significant. The applicant has pressure on his capacity to make mortgage payments and has given evidence of the likelihood that he will need to relocate "to obtain a 'decent' job". 3. These impacts are similar in the case of any sworn police officer removed from the Police Force, of course, but the effects will be different in fact and degree in each case. In this case, the applicant has mitigated the financial impacts by finding other employment. 4. Others matters that are asserted in mitigation of the applicant's conduct and in support of the applicant's case that the Removal Order is harsh, include: 1. the applicant's relative inexperience as a police officer, particularly at the time of the incident with Mr Seymour. He was attested as a Probationary Constable on 14 December 2012 and confirmed as a Constable on 14 December 2013; 2. eight statements from fellow officers who have worked with the applicant attesting to the applicant's policing conduct and the applicant's character, 3. the applicant's conduct in Allegations 1 and 4 was not deliberate or premeditated; 4. the applicant's severe symptoms of anxiety and a decline in his mental health as a consequence of the events involving the Skinners; 5. the applicant undertaking cognitive behavioural therapy and his personal growth as a consequence including: 1. his reflection on his role in the criminal justice system; 2. acknowledgement of his admitted conduct in respect of Allegation 1 which he describes as "overzealous"; 3. his appreciation of his poor conduct on 20 November 2015 in respect of Allegation 2 and his acknowledgement that he engaged in antagonising behaviour on 6 August 2016 in respect of Allegations 3 and 4; and 4. the applicant's assurances that, as he has received treatment, there will be no repetition of the behaviour the subject of the Removal Order 1. his decisions to: commence employment in the area of disability support; study law and restudy police powers of search and seizure; and his composure when dealing with clients in "a heightened or aggressive state"; and 2. that the applicant was placed on a good behaviour bond without conviction in respect of the incident with Mr Seymour and the applicant did not breach the bond. 1. In considering the matters submitted by the applicant above, I do not accept as set out at [157(5)] that the applicant fully appreciated or acknowledged his behaviour. The applicant's contrition and admissions sought to obtain the benefit of admissions whilst seeking to deny or minimise his behaviour and blame others. 2. The applicant's submission in mitigation that his conduct in Allegations 1 and 4 was not premeditated ignores the fact that the applicant was the provocateur in respect of Mr Zac Skinner, leading to the involvement of Mr Tyrone Skinner and his overzealousness in relation to a cigarette butt in respect of Allegation 1. While I accept that the applicant did not enter into either situation looking for violence, I do not consider this materially diminishes the seriousness of the applicant's conduct. 3. Further, while I accept that the applicant has received psychological treatment that should reduce his likelihood of engaging in the behaviour which led to the Allegations in the future, I do not accept the applicant's assurances that he will not engage in the behaviour in the future at all, in circumstances where the incident with Messrs Zac and Tyrone Skinner occurred while the applicant was on a good behaviour bond for a guilty plea to the charge of common assault. 4. I have taken into consideration the character evidence. 5. Mr Hembrow, a serving police officer of approximately 30 years, considers that the actions of the applicant were "out of character" and that the applicant was a good officer. 6. Mr Wilcher, a barrister, considers the withdrawal of the charge of "Assault Occasioning Actual Bodily Harm" to indicate that the charge could not be made out to the criminal standard and the applicant's mistaken belief that at the time of the incident with Mr Seymour that the applicant had seizure powers to be a mistake of law. Mr Wilcher considers the applicant has the attributes of a fine frontline police officer. 7. Mr Nolan, a serving officer of 14 years, attests to the usual matters one sees in these references such as the applicant's integrity and work ethic. 8. Mr McLean similarly attests to the applicant's diligence and professionalism; Mr McLean also refers to the withdrawal of the charge of "Assault Occasioning Actual Bodily Harm". 9. Ms Leaegailesolo, a paramedic, refers to the applicant as honest and trustful and remorseful for his actions. 10. Ms King, a serving police officer gave her reference in the capacity as friend rather than colleague. She considers that the applicant has great knowledge of the law and she has heard good things about the applicant at Grafton Police Station. 11. Mr Thompson, a personal referee, considers that if the court dealt with the assault charge by issuing a bond then the allegation must be at the lower end of seriousness. Mr Thompson considers that Allegation 1 was as a result of the applicant's misunderstanding of his power of seizure and the remaining allegations were as a result of the applicant's "tenacity for perfection and his single minded determination to be a good officer of the law". Mr Thompson urged the Commissioner to undertake an educational pathway rather than termination. 12. Mr Willox, a former serving officer with 40 years' service, who had supervised and worked with the applicant found the applicant to be respectful to members of the public and the Police Force. Mr Willox would have no difficulty working with the applicant. 13. None of these witnesses were required for cross-examination and their evidence is unchallenged. The witnesses' evidence is consistent in support of the applicant. Public interest 1. Considering the public interest will often depend on a balancing of interests, including competing public interests, and will be very much a matter of fact and degree: Commissioner of Police v Collins [2008] NSWIRComm 162 at [58]. 2. I am obliged to balance the effect of the Removal Order on the applicant against the proposition, which I accept is a valid one, that there is no place in the Police Force for a person who is overzealous in the use of his powers or engages in the use of excessive or unreasonable force. 3. The public interest is prescribed by the Police Act to include the public interest of maintaining the integrity of the Police Force, and also to include the fact that the Commissioner made the order pursuant to s 181D(1). 4. I bear in mind that a person who accepts the role of a police officer also necessarily accepts the levels and standards of discipline that apply within the Police Force as set out by his Honour Justice Brennan in Police Service Board v Morris and Martin (1985) 156 CLR 397 at 412: The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. 1. I accept that the applicant acknowledged his conduct in entering a guilty plea and has made admissions about his behaviour and taken steps to remedy the concerns that the respondent holds in the applicant's ability to be a New South Wales Police Officer. However, the applicant has not fully acknowledged or admitted his conduct and continues to demonstrate insufficient insight to be a New South Wales Police Officer. In light of my factual findings above, I do not accept that substantial weight should be placed on the agreed facts, and the decision to withdraw the more serious charge of Assault Occasioning Actual Bodily Harm. 2. I have considered the views of the eight character witnesses and although there is consistency to their view that the applicant simply made a mistake in respect to Allegation 1 and the issuing of a bond establishes that the matter was not serious, the character witnesses, despite being provided with the Show Cause Notice do not display an understanding of the circumstances of the other sustained Allegations. Accordingly, the evidence of these witnesses cannot be assigned significant weight as support for the applicant's case that the Removal Order is harsh. 3. It is in the public interest that the respondent act so as to preserve the integrity of the Police Force by removing persons who have pleaded guilty to assault, whether a conviction was recorded in this instance or not, and who use excessive force and bring the Police Force into disrepute. The applicant pleaded guilty to assault in respect of his conduct towards Mr Seymour and created a situation with Mr Tyrone Skinner that could, and should, have been avoided. Notably, the applicant behaved in the way that he did with respect to the Skinners while subject to a good behaviour bond displaying a further lack of judgement in his decision-making. The members of the NSW Police Force should minimise the use of or the incidence of violence in the community, not increase it, particularly while on duty. 4. There is the clear public interest in ensuring that those who are vested with the special privileges and powers that come with the office of being a member of the NSW Police Force understand when they can properly use and deploy those powers, so that they use them in a just and reasonable manner: Van Huisstede v the Commissioner of Police [2000] NSWIRComm 97 at [219]. 5. Balancing all of those matters, the public interest is served upholding the order and dismissing the application. Summary and disposition of the matter 1. Given the admissions of the applicant and my findings in relation to the disputed facts and Allegations and balancing the matters relied upon by the applicant in his interests and set out above and the matters relevant to the public interest set out above, it is clear to me that the removal of the applicant from the NSW Police Force was neither unreasonable nor unjust. The public interest is served by upholding the order and dismissing the Application. 2. I have taken into consideration all of the applicant's submissions in relation to his interests and his circumstances. I assess the applicant's conduct to be sufficiently serious that removal from the NSW Police Force is a proportionate penalty for the applicant's conduct. 3. The applicant has not met the task required of him under the statutory scheme, if the review is to succeed, of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust: s 181F(2) of the Police Act. Consequently, I cannot uphold the Application. Orders 1. The Orders I make in this matter are: 1. The application for review pursuant to s 181E of the Police Act by Matthew Morris is dismissed. N J Constant Chief Commissioner ********** Amendments 13 July 2020 - Correction to paragraph 38. 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: 13 July 2020