Industrial Relations Commission New South Wales Medium Neutral Citation: Commissioner of Police v Platts [2021] NSWIRComm 1021 Hearing dates: 15 November 2019, final written submissions received 29 January 2021 Date of orders: 16 March 2021 Decision date: 16 March 2021 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC, Commissioner Constant, Commissioner Webster Decision: (1) Leave to appeal is granted in respect of Grounds 1, 2, 4, and 5. (2) The Appeal is upheld and the decision at first instance is set aside. (3) The application by Phillip Platts filed on 19 August 2016 for review of the order of the Commissioner of Police made on 9 August 2016 pursuant to s 181D of the Police Act is dismissed. Catchwords: APPEAL– leave to appeal – principles to apply – application of the statutory sequence for review under Pt 9 of the Police Act - appeal upheld Legislation Cited: Industrial Relations Act 1996 (NSW) ss 164A, 187, 188, 191 Police Act 1990 (NSW) ss 167A, 181D, 181E, 181F, 181G Road Rules 2008 Cases Cited: Baker v Commissioner of Police [2015] NSWIRComm 14 Byrne v Australian Airlines (1995) 185 CLR 410 Commissioner of Police v Collins (2008) NSWIRComm 162 Commissioner of Police v Eaton [2013] HCA 2 Commissioner of Police v Morris [2017] NSWIRComm 1010 Commissioner of Police v Reid-Frost (2010) 192 IR 363 Commissioner of Police v Sewell [2009] NSWCA 198 Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073 Hosemans v Commissioner of Police (2004) 138 IR 159 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lee v Lee; HSU v RACQ Insurance Ltd [2019] HCA 28 Morris v Commissioner of Police [2016] NSWIRComm 1034 Police Service Board v Morris and Martin (1985) 156 CLR 397 Starr v Commissioner of Police [2001] NSWIRComm 226 Toshack v Commissioner of Police [2009] NSWIRComm 31 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 Category: Principal judgment Parties: Commissioner of Police (Appellant) Phillip Platts (Respondent) Representation: Counsel: Mr M Kimber SC (Appellant) Mr M Seck (Appellant) Mr D Nagle (Respondent) Solicitors: K&L Gates (Appellant) G Willis (Respondent) File Number(s): 2019/150343 Publication restriction: The non-publication order in force in relation to all documents under tabs 7 and 8 of the "key documents" bundle related to the NSW Police Safe Driving Policy, November 2009 and July 2016 tendered by the respondent in the proceedings below (the appellant in the appeal) is continued pursuant to s 164A of the Industrial Relations Act 1996 (NSW). Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2019] NSWIRComm 1023 Date of Decision: 29 April 2019 Before: Commissioner Stanton File Number(s): 2016/249993 DECISION 1. On 29 April 2019, Commissioner Stanton ("the Commissioner"), in Platts v Commissioner of Police [2019] NSWIRComm 1023 ("the Decision"), upheld the application filed by Phillip Platts ("the respondent") on 19 August 2016 for review pursuant to s 181E of the Police Act 1990 (NSW) ("Police Act") of an order of the Commissioner of Police ("the appellant") made on 9 August 2016 pursuant to s 181D of the Police Act 1990 (NSW), removing the respondent from the NSW Police Force ("the Removal Order"). 2. On 10 May 2019, the appellant filed an Application for Leave to Appeal and Appeal ("Appeal") in respect of the Decision. The appellant appeals pursuant to s 187 of the Industrial Relations Act 1996 (NSW) ("IR Act") against "the decision and reasons of the NSW Industrial Relations Commission, and consequent orders". 3. On 28 May 2019, the Commission made Consent Orders staying the orders of Commissioner Stanton until the Full Bench determined this appeal on particular terms agreed by the parties. 4. The appellant filed: a Narrative on Leave and Submissions on Appeal on 17 September 2019 ("Appellant's Submissions"), and submissions in reply on 11 November 2019 ("Appellant's Submissions in Reply"); further submissions on 27 November 2020 ("Appellant's Further Submissions"); and further submissions in reply on 29 January 2021 ("Appellant's Further Submissions in Reply"). 5. The respondent filed: submissions on 23 October 2019 ("Respondent's Submissions"); and further written submissions on 13 January 2021 ("Respondent's Further Submissions"). The Decision 1. For consistency in this decision, we refer to the current Commissioner of Police who instituted the appeal, and the former Commissioner of Police who made the Removal Order, as "the appellant". 2. The respondent, a Senior Constable, who at the time of his removal was a Police Transport Command Officer, was the subject of four sustained allegations of misconduct. The four allegations were the subject of an investigation by the appellant. 3. The four allegations are: 1. Allegation 1 - on 22 October 2014, while driving a police vehicle on duty, the respondent travelled at approximately 72 km/h in a 60 km/h speed zone without lawful reasonable excuse. The respondent's conduct was contrary to: the Police Act; the Road Rules 2008; the NSW Police Force Safe Driving Policy ("the Policy"); and the NSW Police Force Code of Conduct and Ethics ("the Code of Conduct"). 2. Allegation 2 - the respondent falsified an official police record (being the respondent's Police notebook). The respondent's conduct was contrary to the Police Act, and Point 1 of the Code of Conduct. 3. Allegation 3 – the respondent was untruthful in his initial report to Sergeant Tylor dated 12 November 2014 ("the First Report"). In particular, he stated that he: 1. observed a motor vehicle that appeared to cross from lane two to lane one, while it negated bends on the Pacific Highway; 2. from a distance of approximately 30 metres, deciphered the first three letters of the car registration plate as "XCF"; 3. sped up so he could read the remainder of the number plate and possibly start a speed check, before pulling over the driver to speak to them and possibly test their sobriety; and 4. informed Sergeant Chapman of the incident after it occurred. The respondent's conduct was contrary to the Police Act and the Code of Conduct, and contrary to the NSW Police Force Handbook ("the Police Handbook"). 1. Allegation 4 – the respondent was dishonest during his departmental interview on 19 February 2015 ("the Interview"). The respondent's conduct was contrary to the Code of Conduct, the Police Handbook, and s 167A of the Police Act. (collectively "the Allegations"). 1. On 9 August 2016, the appellant, having considered the respondent's conduct and integrity, determined that he did not have confidence in the respondent's suitability to continue as a police officer and made the Removal Order. Annexed to the Removal Order were the appellant's reasons for decision ("Statement of Reasons"). 2. The Statement of Reasons sets out, amongst other things: 1. the "Background to [Investigation] P1500216" including: 1. the factual circumstances of the red light/speed camera activation at the intersection of the Pacific Highway and Romsey Street, Waitara ("the Intersection") when the departmental vehicle driven by the respondent ("PTC115") passed through it including: the speed of the vehicle at that time; the location of the vehicle; and the passengers in the vehicle, Constable Warren Bernhardt and an intoxicated member of the public; 2. the contents of a contemporaneous note made by the respondent in his notebook on 22 October 2014 ("the Notebook Entry"): "About 22:30 I was trying to catch up to a red sedan partial rego XCF*** for crossing into my lane 1 on Pacific Highway just north of the Bluegum Hotel. Trying to catch up to him so I could speak to driver about driving. Car PTC115"; 1. details of a warning letter issued by Roads and Maritime Services ("RMS") in relation to the red light camera activation received by the Police Transport Command on 28 October 2014; 2. a summary of the First Report; 3. a summary of the 10 seconds of camera footage of the Intersection around the time PTC115 passed through it concluding with: "The footage does not show a vehicle being 'approximately 30 metres' in front"; 1. a summary of the record of the Interview: 2. a summary of the information from the RMS camera log obtained after the Interview; and 3. a summary of interviews with Constable Bernhardt on 13 February 2015 and 4 May 2015; and 1. a summary of the respondent's response dated 27 May 2016 to the notice issued on 4 April 2016 by the then Commissioner of Police to the respondent pursuant to s 181D(3)(a) of the Police Act ("the Response to Show Cause"); 2. the substantiated Allegations; 3. a summary of the then Commissioner of Police's consideration of the above matters including: "… In relation to Allegation 1, it appears that you have failed to comply with the road rules. In addition, it appears your actions not only risked your safety, but that of your colleague, your civilian passenger and other members of the public. I am concerned by your assertion in your report dated 12 November 2014, that you acted in accordance with law and placed no others in danger. As a Senior Constable I expect you to be well aware of the dangers associated with speeding. I am particularly concerned regarding Allegations 2 to 4. It appears you have been untruthful in your official police notebook, and in your initial report to Sergeant Taylor. It appears you have then compounded matters by being untruthful to the investigator. Enquiries …. appear to show that the 11 second difference between the vehicle in front and the police vehicle driven by you would mean that, at the time you entered the intersection, the vehicle in front was over 150 m ahead of you. This appears to contradict your version of events that a red sedan may have been committing driving offences. It also appears to contradict your assertion that you identified the vehicle from a distance of 30 m after you had passed through the intersection. It appears that there may have been some discussion with Constable Bernhardt as to what should be reported in relation to the incident. … The evidence appears to suggest that you have failed to demonstrate the minimum standards of candour and integrity I expect from any police officer. I also take into account that Constable Bernhardt has now admitted that his original version of events, which mirrored your version, was untrue. … Your alleged conduct appears to raise serious questions about your integrity. Any form of untruthfulness is entirely unacceptable. As you are aware, integrity is one of the core values of the NSW Police Force. In the circumstances, I would have difficulty relying on your judgement in the future. … … I accept Constable Bernhardt's evidence that you only showed an interest in the vehicle ahead after seeing the speed camera activate… … I expect and the law demands that New South Wales police officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty." 1. In the Decision, the Commissioner: 1. set out the relevant legislative provisions; 2. set out the Allegations; 3. set out the respondent's response to the Allegations as contained in the Response to the Show Cause Notice; 4. considered the Removal Order and the Statement of Reasons and the report prepared at the conclusion of investigation P1500216 which was served on the respondent on 10 July 2015 (referred to below as "the Investigation Report" or "the Investigator's Report"); 5. summarised the evidence presented for the respondent, undertaking a detailed summary of the evidence in his case including his written evidence in chief, in reply, and under cross-examination, and the evidence of Mr Darren Johnson; 6. summarised the respondent's history as a police officer and his claim to be a "proactive Police Officer"; 7. summarised the evidence presented for the appellant, including the evidence of: Constable Bernhardt; and Detective Superintendent Paul Devaney; 8. summarised the submissions for the respondent including that the respondent was justified in speeding and that the investigation was flawed for three major reasons: "- The investigator determined there was no car ahead of the Police vehicle. The RMS CCTV video footage at 0.00 seconds shows a "cat-eye" light up. This element of the applicant's evidence is not subject to any counterfactual put forward by the Commissioner of Police; - The investigator found that there was a car some distance ahead of the Police vehicle. However, the investigator relied on a report prepared by Sergeant Coxon who determined that this vehicle would have been 185 metres ahead if it had maintained a constant speed. Sergeant Coxon assumed that at all times, both vehicles had maintained a constant speed. The evidence of the applicant and Constable Bernhardt was that the Police vehicle accelerated after activating the camera at the intersection of Romsey Street and Pacific Highway. Sergeant Coxon was not called to give evidence. Accordingly, it must be accepted that the Police vehicle was not travelling at a uniform speed; and - The investigator has passed over the untruths told by Constable Bernhardt and ignored his evidence where it corroborates the applicant's evidence. Constable Bernhardt's unchallenged evidence was that he and the applicant did not discuss the matter in any substantive way after 22 October 2014. Constable Bernhardt initiated steps to remedy his initial untruthful account of the incident. His sworn evidence put before the Commission "is his correct and true version". Constable Bernhardt's sworn evidence has served to corroborate the applicant's version of events following camera activation." 1. summarised the submissions presented for the respondent as to why the Removal Order was harsh, unreasonable and unjust, including that the Removal Order was: harsh because of its consequences on the respondent's personal and financial circumstances; and unjust and unreasonable because it was based upon the Allegations which could not be sustained on a proper analysis of the available evidence. The Commissioner then considered further, the evidence of both parties in the light of these submissions and within this consideration, the appellant's case in response to the respondent's case (see [428]); 2. summarised the submissions for the appellant including that: the Allegations were sustained; the respondent sought to conceal his misconduct through ongoing dishonesty; in order for the respondent to establish he did not engage in any of the misconduct found by the appellant, the respondent must present positive evidence and cannot rely on bald assertions; the respondent's case was limited to his own evidence and the surveyor's report; the respondent's evidence was replete with inconsistencies between his version of events and incontrovertible or otherwise objectively reliable evidence and the respondent had not discharged his onus of proving that the Removal Order was harsh, unreasonable or unjust; 3. considered the compliance of the appellant with the process for removal of police officers set out in Pt 9 of the Police Act; 4. determined that: the Statement of Reasons was firmly based on the Investigator's Report (at [372]), and the appellant complied with the provisions of s 181D(3) in terms of setting out the grounds on which he does not have confidence in the respondent's suitability; and he was not satisfied that the appellant gave full and proper consideration to the respondent's written submissions, the RMS CCTV footage and road log data and evidence of Constable Bernhardt that there was no collusion whatsoever between him and the respondent concerning what each would write in their Police notebook; 5. considered the interests of the respondent and the public interest; 6. identified the authorities he considered were relevant to the issues before the Commission including: Byrne v Australian Airlines (1995) 185 CLR 410; Van Huisstede v Commissioner of Police (2000) 98 IR 57 ("Van Huisstede"); Toshack v Commissioner of Police [2009] NSWIRComm 31; and Morris v Commissioner of Police [2016] NSWIRComm 1034 ("Morris No 1"), Baker v Commissioner of Police [2015] NSWIRComm 14 ("Baker"); Commissioner of Police v Collins (2008) NSWIRComm 162 ("Collins"); Hosemans v Commissioner of Police (2004) 138 IR 159 at [134]; and Commissioner of Police v Reid-Frost (2010) 192 IR 363 ("Reid-Frost"); 7. found at [551] – [554]: "… the decision by the Commissioner to remove the applicant was harsh, unjust and unreasonable in the terms enunciated by the High Court in Byrne. The evidence relied upon by the Commissioner in support of the removal order based upon the allegations (1 to 4) put against the applicant is in error and plainly insufficient to make out those grounds. The investigation was also flawed. On the evidence and contrary to the Commissioner's Reasons, it is more probable than not that on the night of the incident, the applicant identified a vehicle, a red sedan "XCF" some 350 metres or so north of Romsey Street on the Pacific Highway, crossing lanes at a speed in excess of 60km/h. It is also more probable than not that in the absence of any contrary eye witness account, the applicant's claim that he increased speed to catch up to the offending vehicle for the purposes of conducting a speed check and activated a speed camera represents a truthful account of what occurred on the night of the incident. I found Detective Superintendent Devaney and Constable Bernhardt to be credible witnesses. Despite an entrenched view on the part of the Commissioner, I also find the applicant to be a credible witness." 1. made the following orders: "(1) Application for review is upheld; (2) The applicant shall be reinstated to the NSW Police Force at the rank and incremental level he held at the date of his removal within 14 days from the date of this decision; (3) The respondent, the Commissioner of Police, shall pay to the applicant an amount equivalent to what he would have earned, but for being removed, between the date of his removal and the date of his reinstatement at the rate of his ordinary rate of pay less any monies/remuneration earned from work undertaken during that period. Those monies shall be paid within 14 days from the date of this decision; and (4) The period of employment of the applicant with the respondent shall be taken not to have been broken by his removal. The intervening period between the date of the applicant's removal and his reinstatement to the NSW Police Force shall be counted for all purposes as a period of employment." The Appeal Questions raised by the Appeal 1. The appellant asserts that the questions raised by the appeal are: "1. whether the Commission failed to have regard to the mandatory considerations in subsection 181F(1) of the Police Act 1990 (NSW); in particular, whether the Commission failed to consider the application for review in the sequence that is mandated by that subsection and to give primacy to the Appellant's Statement of Reasons, as is required by prevailing authorities; 2. whether the Commission failed to apply the onus of proof as required by subsections 181F(1) and (2) of the Police Act 1990; 3. whether the Commission failed to properly apply subsection 181F(3) of the Police Act 1990, particularly in circumstances where the Commission has applied an interpretation of this subsection that is inconsistent with prevailing authorities; 4. whether or not the Commission made findings of fact that were reasonably open to it, in light of the evidence (or lack thereof) before the Commission below; and. 5. whether or not the Commission made orders that were open to it in light of the evidence before the Commission below and prevailing authorities." Reasons leave should be granted 1. The reasons the appellant submits leave to appeal should be granted are described in the Appeal in these terms: "1. The appeal grounds numbered (1) to (6) … raise jurisdictional errors. 2. The appeal raises matters of public importance that will have wider implications for the Commission's approach in considering all applications for review brought before it in the future pursuant to section 181E of the Police Act 1990. 3. The appeal raises issues on the nature and content of the public interest in maintaining integrity of the NSW Police Force. 4. To the extent that the appeal seeks to challenge findings of fact, it raises issues relevant to the administration of justice as the findings were not open or reasonably open on the evidence." Grounds of appeal 1. The notice of appeal identified 15 grounds of appeal which were said to raise the five questions set out at [12]. There is a substantial degree of overlap in the questions and many of the grounds repeat the contentions advanced before the Commission below as to the principles to be applied and the findings which should be made. The grounds of appeal were described in the Appeal in these terms: "1. The Commission erred by failing to follow the prescribed statutory sequence in s 181F(1) of the Police Act 1990, and in particular, by failing to give primacy to the Appellant's Statement of Reasons as the 'centrepiece' of the review, as required by s 181F(1)(a). 2. The Commission proceeded, and determined the case based on, the erroneous premise that the Appellant's case was set out in an investigation report created following an investigation conducted pursuant to Part 8A of the Police Act 1990. To the contrary, the Appellant did not have the investigation report as part of the material before him, did [not sic] have regard to the report in making the order for removal and did not refer to the report in the Statement of Reasons. In so doing, the Commission committed jurisdictional error by not applying s 181F(1)(a) of the Police Act 1990. 3. The Commission erred in having regard to the investigation report in considering the Respondent's case as to why the removal is harsh, unreasonable or unjust in accordance with s 181F(1)(b). If the Appellant did not refer to or have regard to the investigation report, which set out a different case to the Statement of Reasons, then its existence, and the matters canvassed in it, are not determinative as to whether the removal was harsh, unjust or unreasonable. 4. The Commission erred in not considering the case presented by the Appellant in answer to the Respondent's case in accordance with s 181F(1)(c). ln particular, the Commission did not refer to, or consider, in the Judgment, the Appellant's case set out in its written and oral submissions on 1 and 2 November 2017. 5. The Commission's approach in accepting the Respondent's case as a starting point without first having regard to the Appellant's case set out in the Statement Of Reasons, had the practical effect of reversing the onus onto the Appellant to disprove the Respondent's case. In so doing, the Commission failed to apply s 181F(2) of the Police Act 1990 (NSW). In particular, the Commission did not give proper consideration to the questions of whether or not the Respondent had first discharged his onus and, if so, whether or not the onus had 'shifted' to the Appellant to prove the misconduct. 6. The Commission erred by failing to correctly apply the mandatory consideration as required by s 181F(3)(b) of the Police Act 1990 (NSW) by impermissibly conflating s 181F(3)(a) and the public interest test in s 181F(3)(b). That is, in assessing s 181F(3)(b), the Commission erred by not having regard to the public interest in maintaining the institutional integrity and discipline of the NSW Police Force, and wrongly had regard to an irrelevant consideration in the Respondent's interests. 7. The Commission erred by finding that both the Appellant's witnesses and the Respondent were credible without addressing or reconciling the material differences in their evidence. 8. The Commission erred in finding that the Respondent was a credible witness, in circumstances where it was unsafe and unreliable to do so because the finding made in the Judgment was more than two years after the Respondent gave evidence before the Commission. 9. The Commission erred in failing to have regard to and resolving the inconsistencies and implausibilities in the Respondent's evidence in determining whether the Respondent's account of the incident concerning the alleged misconduct was credible. 10. The Commission erred by not giving reasons, or adequate reasons, for finding that the Respondent was a credible witness in light of the inconsistencies in his evidence, as demonstrated by the Appellant expressly in its submissions. 11. The Commission below made significant factual findings not reasonably open on the evidence, including: (a) a determination that the Appellant removed the Respondent from his office as a police officer following a review and adoption of an investigation report, in circumstances where the evidence before the Commission below included the 'Commissioner's Confidence Submission materials, which ·set out all of the material the Appellant had regard to in removing the Respondent from office, and where that material did not include the investigation report, and there was no other evidence adduced from which a finding could be made that the Appellant read or adopted the investigation report (and, indeed, the Appellant did not do so); (b) that the Respondent first saw a red sedan 360 metres prior to the intersection of the Pacific Highway and Romsey Street, in circumstances where the evidence adduced below established this would be physically impossible; and (c) that the Respondent began following the red sedan because it was swerving and speeding, and in so doing, adopted the inconsistencies in the Respondent's evidence. 12. The Commission erred in making an order for reinstatement of the Respondent in the absence of determining whether reinstatement was impracticable in accordance with s 89(2) of the Industrial Relations Act 1996 (NSW). 13. The Commission erred in not giving reasons for determining that reinstatement was the appropriate remedy to be ordered. 14. The Commission erred in ordering back pay in circumstances where the evidence before the Commission below was that the Respondent had not taken reasonable steps to mitigate his loss." The legislative scheme 1. Appeals such as those presently before this Full Bench are conducted in accordance with the provisions of Pt 7 of Ch 3 of the IR Act and may only be made with the leave of the Full Bench: s 188 of the IR Act. 2. The relevant sections from the Police Act in relation to the Commission's power to review an order of the appellant made pursuant to s 181D of the Police Act, the subject of this Appeal, are: 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). 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). Leave to appeal 1. The appellant submits that this application for leave to appeal raises: 1. substantial issues at law (including jurisdictional issues) having wider implications for the jurisprudence of the Commission; and 2. challenges to critical findings of determinative facts that were not open on the evidence and were demonstrably wrong, which are issues going to the proper administration of justice. 1. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188 of the IR Act. 2. Where an appeal raises issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application, leave to appeal would normally be granted. 3. The principles in relation to the grant of leave to appeal of a decision of the Commission were summarised in Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 ("Zopf") at [22] – [27]. The principles set out in Zopf were earlier confirmed in respect of appeals in matters brought pursuant to s 181E of the Police Act in Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073 ("Zisopoulos No 2"). 4. Subject to the comments and clarifications on specific matters below we apply the principles set out in Zopf and Zisopoulos No 2. Leave to appeal granted 1. The notice of appeal identified 14 Grounds of Appeal set out at [14] which were said to raise five questions. We have decided to grant leave to appeal in relation to Grounds 1, 2, 4, and 5 as we have formed the view that the Commissioner fell into error in the application of the scheme set out in the Police Act such that the administration of justice dictates leave should be granted to appeal on these Grounds. The Appeal 1. We now consider the arguments raised by the appellant on appeal in respect of the matters for which leave is granted, all of which are matters arising from the manner in which the Commissioner applied the statutory scheme. 2. Each of the Grounds (Grounds 1, 2, 4 and 5) for which leave has been granted, which are extracted in full at [14], assert the Commissioner failed to comply in some way with the requirements of ss 181F(1) and (2) of the Police Act. 3. Ground 1 asserts error in the failure to follow the statutory sequence in s 181F(1) of the Police Act by failing to give primacy to the Statement of Reasons as the "centrepiece of any assessment". 4. Ground 2 asserts an error of law by the Commissioner in determining the case based on the erroneous premise that the appellant's case was set out in the Investigation Report resulting in jurisdictional error by the Commissioner in not applying s 181F(1)(a). 5. Ground 4 asserts that the Commissioner failed to consider the case presented by the appellant in answer to the respondent's case in accordance with s 181F(2) of the Police Act, in particular the appellant's case as set out in its written and oral submissions. 6. Ground 5 asserts that the Commissioner accepted the respondent's case as a starting point which had the practical effect of reversing the onus effectively requiring the appellant to disprove the respondent's case. In so doing, the appellant submits that the Commissioner failed to apply s 181F(2) of the Police Act. 7. In the Appellant's Submissions, the appellant set out six key features relevant to the Appeal, arising from the statutory scheme of review by the Commission pursuant to Pt 9 of the Police Act. 8. The first of these asserted features is that the Commission must give "presumptive primacy to the appellant's justification for the removal of the police officer". The appellant relies on the statement of the plurality at [76] in Commissioner of Police v Eaton [2013] HCA 2 ("Eaton"): "Part 9 maintains a focus on the Commissioner's decision, a focus which is not provided by the general provisions of the IR Act. Part 9 elevates the Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force. The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material." 1. The second feature is that the Statement of Reasons is the product of a statutory regime mandating that in making an order for removal, the appellant gives the police officer procedural fairness and takes into account certain matters, including the police officer's response to the allegations against him or her. 2. The third feature according to the appellant is that in prescribing: "[i]n conducting a review under this Division, the Commission must proceed as follows", s 181F(1) establishes a mandatory statutory sequence in which the Commission must conduct its review. 3. Fourth, according to the appellant, s 181F(1) specifies the order in which the Commission must consider the case presented by the parties. In stipulating the order of consideration by using the words "firstly", "secondly" and "thirdly" in ss 181F(1)(a), (b) and (c) respectively, the Commission is required to turn its mind to each matter in turn, in a deliberate and defined progression. 4. The appellant initially submitted that the fifth feature was that s 181F(1) requires that each matter specified in paragraphs 181F(1)(a) to (c) be considered separately from one another in the prescribed order and not as part of a synthesised evaluation of the Statement of Reasons and of each party's case. However, on the basis of the majority's reasoning in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 ("Zisopoulos No 3") that all evidence is to be considered together, the appellant withdrew this submission in the Appellant's Further Submissions. 5. The last key feature, according to the appellant, is that under s 181F(1)(b), the case by the applicant for review (in this matter the respondent to the Appeal) as to why the removal is harsh, unjust or unreasonable, is made in response to the Statement of Reasons. 6. The Appellant's Submissions set out six errors that the appellant asserts the Commissioner made that resulted in the Commissioner not following the requirements of ss 181F(1) and (2) of the Police Act such that the appeal should be allowed. 7. The appellant says that the first of these errors is that the Commissioner did not consider the Statement of Reasons as setting the parameters, as a first step of conducting his review of the Removal Notice. 8. The Commissioner dealt firstly (at [22]-[44]) with the Show Cause Notice, and then the Response to the Show Cause Notice. The Commissioner set out the Allegations which underpinned the findings of misconduct within these paragraphs and the appellant's sustained findings in respect of: Allegation 1 at [30]; Allegation 2 at [32]; Allegation 3 at [42] and Allegation 4 at [42]. 9. The Decision addressed (at [45]-(46]) the Removal Order and extracted a part of the Statement of Reasons. 10. The appellant submits that in this part of the Decision, the Commissioner did not extract or consider the most critical aspect of the Statement of Reasons, namely the appellant's findings of misconduct against the respondent. According to the appellant, this led to the first of the errors alleged, the Commissioner's failure to consider the Statement of Reasons as setting the parameters for his review of the appellant's removal order. 11. The Commissioner set out under the heading "Case for the Commissioner", the matters the appellant considered relevant to the determination of the Removal Order at [358] – [366] which included the sustained Allegations. 12. The Commissioner reviewed the Statement of Reasons and set out in the Decision at [415] – [425] under the heading "Commissioner's Statement of Reasons" the following: "Commissioner's Statement of Reasons 415 I have carefully reviewed the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force as set out above in considerable detail. 416 The Statement of Reasons that accompanied the applicant's s 181D(1) order comprised 12 pages and sets out all of the documents and other evidentiary material upon which the Commissioner of Police relied upon in determining that the Commissioner does not have confidence in the applicant's suitability to continue as a member of the New South Wales Police Force. 417 In adopting the findings of the investigation report without question, the Commissioner's Statement of Reasons falls into error. Detective Superintendent Devaney also adopted the Statement of Reasons without question. 418 The Statement has addressed the applicant's response to the four allegations put before him. Those allegations were both articulated in the Statement of Reasons and well ventilated by respective counsel during the course of proceedings. However, on the evidence before the Commission, both the investigation report and the Commissioner's Statement of Reasons are flawed. 419 Section 181F(1)(a) is a mandatory provision which requires the Commission to consider the Statement of Reasons for the decision to remove the applicant from the NSW Police Force. The Statement of Reasons must explain why, following careful analysis of all the material available to the Commissioner, the decision to remove the applicant was made. In that regard, I adopt the observations of Kite AJ as he then was in Baker v Commissioner of Police [2015] NSWIRComm 14 at [98]: The adequacy of the content of the reasons is to be measured in this context. The essence of the reasons is to explain why the decision has been taken. It is not necessary, in the reasons, expressly to negate every possibility: cf Lawrance at [274]-[276]. It remains open to the applicant in the review to establish that the removal was harsh by reason of a failure to adopt an alternative and appropriate sanction. 420 The Commissioner of Police has considered the allegations put against the applicant and determined that he did not have confidence in the applicant's suitability to remain a member of the NSW Police Force. 421 Following the investigation report, the Commissioner made findings that the applicant's "conduct" and "integrity" was contrary to the provisions of the Police Act, the Road Rules 2008, the NSW Police Force Safe Driving Policy, the NSW Police Force Code of Conduct and Ethics and the NSW Police Handbook in force at the time of the incident. 422 The Commissioner's Statement of Reasons which accompanied the s 181D order also contained the following statement: I am satisfied that the available evidence demonstrates that you travelled at speed without legal reason or excuse and risked, not only your own safety but that of your colleague … passenger and other members of the public." 1. We agree with the appellant that although the Commissioner set out the matters the appellant considered relevant to the determination of the Removal Order at [358] – [366] which included the sustained Allegations, the Commissioner did not consider the Statement of Reasons and the misconduct that the appellant had found sustained as setting the parameters as the first step of the review. In considering the Statement of Reasons in the manner in which he did, the Commissioner failed: to analyse the case the respondent led as a response to the Allegations, that the respondent increased his speed to follow a car driving erratically; and to make factual findings about the implausibility of that version of events and the inconsistencies in the evidence. 2. The appellant initially submitted that the Commissioner's second error was that when he dealt with the Statement of Reasons at [415] - [425] of the Decision, rather than elevating the Statement of Reasons to a decision made in the public interest, the Commissioner's first step was to deconstruct and evaluate the Statement of Reasons which involved a significant departure from the mandatory obligations in s 181F(1)(a) of the Police Act. In the Appellant's Further Submissions the appellant accepts that the Commissioner was entitled to evaluate the Statement of Reasons but only if that was the case the respondent was presenting. The appellant says that the respondent did not challenge the Statement of Reasons other than to assert that it was based on the Investigation Report. 3. The Statement of Reasons has the function of facilitating the conduct of the review by placing the burden upon the respondent to establish that the removal was harsh, unreasonable or unjust by reference to the statutory sequence in s 181E(1) by undertaking a fresh and independent review decision: Baker at [97]. 4. In the Decision, the Commissioner recognised the status of the Statement of Reasons at [363] – [364] as follows: "363 The Review provided by s181F presumes that the Commissioner's reasons for the applicant's removal are justified. The regime has the effect of requiring an applicant to prove that his removal was unjust, that is, he did not engage in the misconduct as alleged. Any bald denial of the alleged misconduct and nothing more would be inconsistent with s 181F(1) and (2) and insufficient to prove that the conduct did not occur. 364 The Commissioner contended that the applicant's evidentiary case was limited solely to his own evidence and the surveyor's report. Put alternatively, the applicant's case was that he had a lawful excuse to travel 72 km/h in a 60 km/h speed zone on the night of the incident." 1. The Commissioner also stated, throughout the Decision (see for example [18] and [363]), that the burden of proof was upon the respondent to prove that his removal was harsh, unjust or unreasonable and he set out the relevant provisions of the Police Act at [18] and [371] of the Decision. 2. We do not accept the respondent's submission that the appellant is seeking that the Commission "rubber stamp" the appellant's decision, nor is the appellant asking the Commission to accept that his decision is determinative, which it is not: Commissioner of Police v Sewell [2009] NSWCA 198 the Court of Appeal (per Spigelman CJ, Macfarlan JA, Young JA) at [75] – [76]. However, we do not accept the appellant's submission that the deconstruction of the Statement of Reasons, as the starting point of the review in the manner the Commissioner undertook, was, of itself, a departure from the obligations in s 181F(1)(a). Rather, we consider that the Commissioner was in error because he evaluated the Statement of Reasons by reference to the alleged errors in the Investigation Report which is Ground 2 of the Appeal and which is considered below. As a consequence, the Commissioner did not maintain a focus on the appellant's reasons for the Removal Order consistent with the High Court's statement in Eaton set out at [30] above. 3. The appellant submits that the Commissioner's third error was conflating the steps set out in s 181F(1) and considering the matters in ss 181F(1)(a) to 181F(1)(c) together, leading to a critique of the Statement of Reasons by reference to a distorted amalgam of the evidence adduced by the respondent and the appellant. The appellant submits that this: led to a failure to make many critical findings, has resulted in unclear and inconsistent findings in the Decision: is inconsistent with the statutory sequence prescribed in s 181F(1) of the Police Act; and has resulted in jurisdictional error. The appellant submits further that in conflating the matters in sub-ss 181F(1)(a) to 181F(1)(c), the Commissioner failed to apply appropriately, the onus of proof and the Commissioner considered whether the appellant had proven the alleged conduct of the respondent, rather than the correct approach of considering whether the respondent had proven the factual assertions put forward in his case. 4. We agree with the respondent that the determination of relevant facts involves a process of challenge and weight and that a decision maker must compare and contrast the competing contentions in relation to facts. 5. The Commissioner acknowledged the appellant's submissions about the alleged inconsistencies in the respondent's versions of events: [366] of the Decision. Nevertheless, after a review of all the evidence, the Commissioner found that the respondent was truthful in his evidence. It is not clear from the Decision that, in making the assessment that the respondent was truthful, how the Commissioner synthesized each of the different accounts of events given by the respondent which were set out in the appellant's written submissions in the matter below dated 2 November 2017. 6. In Zisopoulos No 2 the Full Bench having reviewed the authorities on the onus of proof and undertaken a consideration of Tredinnick v Commissioner of Police [2016] NSWIRComm 14 said: "23. Thus unlike unfair dismissal proceedings, concerned with termination for serious misconduct in which the employer is required to prove the fact of misconduct, the Commissioner of Police is not required to do so – unless, as will be seen, an applicant succeeds in shifting the evidentiary burden. The obligation of the Commissioner extends no higher than answering the applicant's case. The emphasised passages in (1) and (2) at [22] make that proposition clear. The emphasised sentence in (3) identifies the burden imposed on the applicant for review. It should be noted that the burden on the appellant is to demonstrate "the flaw or inadequacy in [the appellant's] reasons". That, as the Full Bench went on to observe, may be done in a number of ways. 24. It is important to bear this last proposition in mind when examining the decision in Tredinnick. It is necessary to distinguish the principles from examples of factual contexts used to illustrate those principles. The burden on the applicant for review is to demonstrate the flaw in the respondent's reasons. That may be done, as the Commission said at [66] by bringing "evidence to explain why the Certificate did not demonstrate the consumption of illicit drugs". Establishing that proposition need not go so far as proving, as the appellant submits, that an applicant did not in fact consume illicit drugs or that the test result was "caused by actual external contamination"." (Emphasis in original) 1. On this question, the Commissioner correctly stated: [303] The applicant contends that his removal was unjust because he did not engage in any of the misconduct found by the Commissioner in his Statement of Reasons. Accordingly, the applicant must establish, by addressing positive evidence, that he did not engage in the misconduct set out in Allegations 1 to 4 of the Commissioner's Reasons or, that the Commissioner's findings in relation to those allegations are premised upon a misunderstanding or misapprehension of the facts. The applicant cannot discharge this burden through a bald denial of the misconduct. To do so would ignore the specific statutory regime in Part 9 of the Police Act. [304] The Review provided by s181F presumes that the Commissioner's reasons for the applicant's removal are justified. The regime has the effect of requiring an applicant to prove that his removal was unjust, that is, he did not engage in the misconduct as alleged. Any bald denial of the alleged misconduct and nothing more would be inconsistent with s 181F(1) and (2) and insufficient to prove that the conduct did not occur. 1. Throughout the Decision, the Commissioner recognised the statutory requirements in undertaking the review. At [17] – [21] the Commissioner set out the relevant legislation and the approach to be taken as outlined by Commissioner Newall in Morris No 1 which was affirmed on appeal: Morris v Commissioner of Police [2016] NSWIRComm 1034. Following the Commissioner's setting out of the parties' evidence and cases and in the introductory paragraphs after the heading "Consideration", the Commissioner quoted s 181F of the Police Act: Decision at [371]. 2. The Commissioner then went on to analyse the Investigation Report and how the findings in the Statement of Reasons came to be made. The Commissioner stated at [372] – [373]: 372 The Commissioner's Statement of Reasons was firmly based on the Investigator's Report. 373 I am comfortable that the Commissioner of Police has complied with the provisions of s 181D(3) in terms of setting out the grounds on which the Commissioner does not have confidence in the applicant's suitability and affording him 21 days to make written submissions in relation to the proposed penalty action. 374 However, I am unable to be comfortably satisfied that the Commissioner has given full and proper consideration to the applicant's written submissions, the RMS CCTV footage and road log data and evidence of Constable Bernhardt that there was no collusion whatsoever between the applicant and himself concerning what each would write in their Police notebook. 1. At [303] – [304] of the Decision, the Commissioner recognised: that the respondent must cast "sufficient doubt" on the Police Commissioner's reasoning process so as to justify the Commission's intervention; that "sufficient doubt" is not "any doubt", and the raising of a doubt, sufficient or otherwise, does not alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. This is consistent with the majority's judgment in Zisopoulos No 3: at [84]. 2. Despite the Commissioner setting out correctly his obligations under the Police Act, the analysis of the respondent's and appellant's evidence in the Decision resulted in the onus being placed on the appellant to prove the misconduct and this is considered further below from [64]. 3. The fourth error according to the appellant is that the Commissioner proceeded on the erroneous basis that the appellant had adopted "the findings of the investigation report without question", and in so doing, the Statement of Reasons, "fell into error" (see Decision at [417]). 4. We accept that the Statement of Reasons recites facts and many of the facts contained in the Statement of Reasons are as found by the Investigator, including the distances and speeds of the police vehicle and the other vehicle. We also agree with the Commissioner's determination that key facts from the Investigation Report were relied upon by the appellant in the Statement of Reasons. 5. However, the Commissioner's description of the appellant's adoption of the Investigation Report as being "without question" at [417] is not reasonably open on the evidence before the Commissioner. 6. Relevantly, and consistent with his view that the appellant adopted the Investigation Report into the Statement of Reasons, the Commissioner determined at [4] of the Decision: "[4] The applicant has at all times maintained that he was following a red sedan when he activated the speed camera. The investigation report and the Commissioner's findings determine the red sedan did not exist and the applicant had lied to his chain of command and the Investigators." 1. There is nothing in the Statement of Reasons to suggest that the appellant embraced the notion that the existence of the red car was a fabrication. The Statement of Reasons works on the premise that there was such a car, and importantly, the Commissioner found at [515] of the Decision: "In relation to the RMS CCTV footage and road data log, the Commissioner of Police noted the red sedan pass through the intersection at a speed of 60.6 to 60.7 km/h and the police vehicle passed through 11 seconds later at 72.8 km/h." Contrary to the notion that the appellant embraced a fabrication, the appellant's reasons expressly acknowledge the existence of the car. This is the real import of the Commissioner's determination about the content of the Investigation Report." 1. A significant factor in the Decision was that the Commissioner wrongly considered that the appellant's justification for removal and the appellant's case was set out in the Investigation Report rather than in the appellant's Statement of Reasons under s 181F(1)(a) and in his evidence and submissions in the Commission below pursuant to s 181F(1)(c). 2. The appellant initially submitted that the Commissioner's fifth error was, in failing to follow the prescribed statutory sequence, he failed to apply the onus of proof as required by s 181F(2) correctly. Initially, the appellant contended that from paragraph [426] of the Decision and onwards, the Commissioner impermissibly conflated the respondent's case with the case presented by the appellant in response. However, the appellant accepts, in the Appellant's Further Submission, that in view of Zisopoulos No 3, the Commissioner did not err in considering the evidence adduced by both parties but maintains his contention that the Commission did err by failing to properly apply the onus of proof. 3. Section 181F(1)(b) of the Police Act required the Commissioner to consider the respondent's case and determine whether or not he discharged his onus of proof by presenting a coherent, consistent and persuasive case. 4. The Commissioner set out in detail the evidence in the respondent's case at [127] – [245] of the Decision. Following this summary of the respondent's evidence, from [254] – [349] the Commissioner set out the evidence of the appellant. 5. The Commissioner then set out the submissions of counsel for both parties; the respondent from [354] – [357], and the appellant from [358] – [366]. 6. From [426] the Commissioner considered the respondent's case as to why the removal was harsh, unreasonable or unjust and the case presented by the appellant in response together: see [428]. 7. We agree with the appellant that the Commissioner's reasoning does not disclose that he considered whether the respondent's case was coherent and consistent, and whether the respondent discharged his burden in establishing that the Removal Order was harsh, unjust or unreasonable. 8. The last error, initially submitted by the appellant is that, even if the Commissioner had found that the respondent had discharged his burden of proof, the Commissioner was then required to have regard to the appellant's evidentiary case under s 181F(1)(c) as a final discrete stage in the conduct of the review. 9. The appellant concedes, in light of Zisopoulos No 3, that the Commissioner was not required to consider the evidence in discrete stages. However, we agree with the appellant that the Decision does not address the significant inconsistencies in the respondent's evidence in relation to critical questions and the implausibility of his various accounts based on the physical characteristics of the terrain, the lack of visibility and the other objective evidence. The Commissioner, in effect, began with the mistaken position that the respondent's version of events was correct and the appellant bore the evidentiary onus to disprove that version. That is contrary to the requirements of ss 181F(1) and (2). 10. The correct approach, under s 181F(1)(b) requires the Commission, after considering the Statement of Reasons pursuant to s 181F(1)(a), to consider the case by the applicant for review (the respondent to the appeal) and determine whether he has met his onus to establish that the dismissal was harsh, unjust, or unreasonable. This may require the evaluation of the evidentiary cases of both parties but the legal onus remains always with the applicant (respondent here) to establish their case that the order was unfair at all times. The burden never shifts to the respondent. The respondent (appellant here) may evaluate that he has no case to answer with respect to the applicant's case and adduce no evidence to answer it. It will only become necessary for the respondent to do so if sufficient doubt is cast upon the Statement of Reasons by the applicant for review. If the applicant for review has raised sufficient doubt then the Commission must consider the case of the appellant in reply, but this may occur in the context of evaluating all of the evidence against the applicant for review's case why the order is unfair. 11. After undertaking a review of the Statement of Reasons and the respondent's evidence, the Commissioner considered that the appellant's reasons for decision were flawed and that the evidence relied upon in support of the Removal Order was in error and insufficient to make out the Allegations: Decision at [551]. In making that determination, the Commissioner accepted that the Investigation Report was flawed for three major reasons: the investigator had determined that there was no red car; the investigator relied on a calculation that the car in the RMS CCTV footage would have been 185 metres ahead; and the investigator passed over untruths told by Constable Bernhardt: Decision at [357]. The Commissioner found that the Statement of Reasons was firmly based on the Investigator's Report. 12. The Commissioner then erred in effectively determining the matter on the basis that the appellant bore the evidentiary onus to disprove the respondent's version of events, rather than pausing at that point to determine whether the respondent had established sufficient doubt to justify his intervention: Zisopoulos No 3 at [84], and then if he was satisfied sufficient doubt existed to require his intervention, considering the appellant's case in answer to the respondent's case. 13. Based on the errors in the application of the statutory sequence set out above, the appeal is allowed. Disposition of the appeal once error is established 1. The appellant says that, but for the errors in the application of the statutory sequence which resulted in effect, in the appellant being required to prove the misconduct, the respondent would have failed in his application for review. The appellant says on the respondent's case alone, and the notional pausing at the end of it, that on the evidence before the Commissioner there was no proper basis for the Commissioner to be satisfied, on balance, that the respondent had a lawful excuse for speeding. Thus the respondent had not made a sufficient case on the evidence for the Commissioner to be satisfied that the respondent had given a plausible explanation that was credit-worthy and honest and the Commissioner was not capable of reaching the affirmative finding in favour of the respondent. 2. The appellant says that if the Commission finds error in this case it should not be remitted and the appropriate way forward is for the Full Bench to substitute the correct decision, being that the respondent's application be dismissed because the applicant did not discharge his onus to establish that he had a lawful excuse and did not establish that he was honest at all material times and candid about what happened on the night in question. 3. The respondent accepts that if the Full Bench finds an error of law then it can remake the decision or remit the matter to the Commissioner or another member. The respondent submits that, in this matter, if the Full Bench were to find that there was an erroneous approach then the respondent's application for review should be remitted to a single member to take final submissions, again in light of the findings of credit and matters of fact that need to be determined. This is particularly so as the Commissioner heard the evidence from the respondent (the applicant for review) over two and a half days of cross-examination and found him to be a witness of credit, separately from anything that might be problematic with the Investigator's Report or the content of it, meaning that there remain serious questions to be determined. 4. In the circumstances, where the incident that led to the Removal Order took place in 2014 and all of the material that was before the Commissioner is before the Full Bench, we consider that the Full Bench should take the approach urged by the appellant. 5. As the Full Bench has found that the Commissioner has not correctly exercised his jurisdiction under the statutory scheme, it is proper under the principles in House v The King (1936) 55 CLR 499, for the Full Bench to conduct a review of the evidence before the Commissioner and make its own determination. Accordingly, arguments about the applicability of Lee v Lee; HSU v RACQ Insurance Ltd [2019] HCA 28 ("Lee") to appeals under s 187 of the IR Act, do not need to be resolved in this matter. Consideration of the evidence before the Commissioner 1. In undertaking the review of the case before the Commissioner, the Full Bench is required to apply the statutory sequence under s 181F of the Police Act including considering the respondent's case under s 181F(1)(b). The Commissioner's reasons (s 181F(1)(a)) 1. We consider first the appellant's reasons for having come to the view that he had lost confidence in the respondent as a police officer. They are set out in the Statement of Reasons, portions of which are extracted at [10(4)] above. 2. What is required of the Statement of Reasons is that it explains why the decision has been taken: Baker v Commissioner of Police [2015] NSWIRComm 14 at [98]. On its face, the Statement of Reasons complies with the requirements of s 181D(4) of the Police Act, in that it provides a basis for the removal action taken. Case presented by the respondent (applicant below) (s 181F(1)(b)) 1. The onus is on the respondent to make out his case that the removal was harsh, unjust, or unreasonable, in response to the appellant's reasons for the Removal Order set out in the Statement of Reasons. The Commission, in considering the respondent's case under s 181F(1)(b), must evaluate whether the respondent's accounts were inconsistent or implausible on key issues, and evaluate the different accounts to determine if the respondent's case was at least "as likely", or "more likely", than the facts as determined by the appellant: Zisopoulos No 2 at [180] and Zisopoulos No 3 at [91] and [162] and; whether the respondent has established sufficient doubt in the Statement of Reasons such that the appellant must answer the respondent's case. 2. In each of the respondent's accounts of the incident on 22 October 2014, he claimed that he had been speeding at the time he went through the speed camera in order to catch up with a red sedan ahead of him that he suspected was being driven unsafely. 3. The point at which the respondent first saw the red sedan committing a potential offence is critical to him being able to discharge his onus in the review proceedings. If the respondent cannot provide a plausible explanation of where he saw the red sedan and what it was doing before the intersection of Romsey Street and the Pacific Highway then he cannot show that he had a lawful excuse for speeding. Without a lawful excuse for speeding from the respondent, the appellant's finding that the respondent sped up to the sedan after activating the speed camera, with a view to deceptively trying to legitimise his speeding, cannot be disturbed. 4. The respondent says that at some distance before the intersection of the Pacific Highway and Romsey Street, he observed a red sedan moving in and out of lanes. The respondent decided to follow the red sedan in order to observe the driving of the vehicle more closely and potentially, to speak with the driver of the vehicle. The respondent says he increased his speed in order to do this, and, as a consequence, passed through the red light/speed camera at the corner of the Pacific Highway and Romsey Street at a speed of approximately 72 km/hour. 5. The respondent submits that the different versions of the events on 22 October 2014 referred to in: 1. the Allegations which are set out at [8] above being those in: 1. his notebook entry of 22 October 2014; 2. his report dated 12 November 2014; 3. the Interview on 19 February 2015; and 1. the versions in: 1. the Response to the Show Cause Notice dated 27 May 2016; and 2. his affidavit filed in the proceedings and his cross-examination do not mean the matters contained in each version are inconsistent, by either omission or addition. 1. In undertaking our consideration of the respondent's case, we note first that we do not agree with the characterisation by the Commissioner that the Statement of Reasons was flawed due to a finding the red sedan did not exist. The Investigation Report determined that no vehicle could be seen travelling in front of the Police vehicle on the RMS camera footage. The Commissioner extrapolated from this that the Investigation Report had found that the other vehicle did not exist. However, the Investigation Report, which was tendered in the respondent's case, found the red vehicle did exist, as it makes reference to the car that was travelling in front of the Police vehicle, the speed at which it was travelling when it passed through the intersection, and a mathematical analysis of the potential distance between that vehicle and the Police vehicle. The Statement of Reasons found that the red vehicle did exist and made reference to its speed and potential distance from the Police vehicle. The Statement of Reasons determined that the rear tail lights of another vehicle, well in the distance, can be seen on the RMS footage. 2. We consider next the reasons and particulars given by the respondent about why he was speeding. 3. In the First Report, the respondent said he saw a red sedan around the intersection of Hornsby Street which is about 360 metres from Romsey Street: As I drove along in lane 1 (gutter lane) of the Pacific hwy from the approximate cross road of Hornsby st, I noticed a red sedan with what I believe to have yellow and black number plates XCF*** appeared to cross from lane 2 into lane 1 as it negated a series of bends on the Pacific hwy. The red sedan drove in a manner as if it was cutting the corners and crossing into lane 1 from lane 2. From the distance I observed this care (sic) from (approximately 30 metres), I got the first 3 letters of the number plate only. I intended on stopping this vehicle in order to speak to the driver about the offence of not drive in lane on multi lane road … or not use indicator when changing lanes … and do an assessment of the driver's sobriety, but from the time I first saw the red sedan it was gaining distance on my vehicle. I sped up so I could carry out my intentions of getting close enough to the red sedan so I could read its number plate and possibly start a speed check on the red sedan's average speed before pulling the driver over to talk to them about their driving and test their sobriety. 1. In the Notebook Entry which is set out above at [10(1)(b)], the respondent said he observed the vehicle just north of the Blue Gum Hotel (which is at the Romsey Street intersection). This is consistent with the respondent's evidence in the Interview where he claims to have observed the red sedan at around the Waitara Caltex (just before Romsey Street). 2. Having considered the maps and photographs tendered at the hearing below which show the curvature and rise of the road, and taking into account the objective evidence from the RMS footage as to how far behind red sedan the Police vehicle was at the time the red sedan reached Romsey Street, and that this occurred at night, it is the view of the Full Bench that if the red sedan was located at Hornsby Street, it would have been physically impossible for the respondent to have seen the vehicle. 3. The respondent also provided inconsistent evidence as to what he observed and his justification for speeding including: 1. in his Notebook Entry, he made no reference to the speed of the vehicle. In his Report, he refers to the possibility of conducting a "speed check". In his Interview, he did not state that he formed the view the red sedan was speeding. In his evidence to the Commission, he initially stated he thought the red sedan may have been speeding [1] , and he later gave evidence that it definitively was speeding [2] ; 2. in the First Report, Interview and his affidavit filed 30 January 2017, he stated that the red sedan crossed from lane 2 to lane 1 as it negotiated a series of s-bends and he had concerns about the driver's sobriety as the red sedan was gaining distance, he refers to possibly doing a speed check; 3. in his Response to the Show Cause [3] , the respondent said: "I had reasonable grounds to believe that the driver of the red sedan may be affected by alcohol or drugs, given the manner of driving that I had observed prior to my Police vehicle activating the speed camera"; and 4. in cross-examination, he gave evidence that he thought the red sedan may have been speeding [4] and that the driver may have been influenced by drugs and alcohol because it was moving between lanes [5] . 1. Even if we accept that the respondent saw the vehicle from a distance of 360 metres, this does not address the inconsistencies with the versions the respondent gave in his Notebook Entry, First Report and the Interview. 2. The respondent's suggestion that the red sedan was moving between lanes as it negotiated s­bends is not supported by evidence. The maps show that there are no s-bends before or after Hornsby Street. There is a small bend in the road approaching Romsey Street. The Pacific Highway is otherwise a straight road before and after the Romsey Street intersection. 3. In cross-examination of the respondent, his evidence was consistent that from his viewpoint it looked to him like the red vehicle was moving from lane to lane even though in his affidavit in the proceedings below [6] , he deposed that he could not see line markings on the road. We have taken into consideration the respondent's evidence that he had driven this road many times before and it looked to him as though the other vehicle was cutting in and out of its lane. 4. We have taken into consideration that the Commissioner below, who had the benefit of observing the witness in person, did not form the view that the respondent had lied or had fabricated the actions of the red car. However, the Commissioner, in forming the view that the respondent was a credible witness, did not resolve the implausibility in the respondent's case or the significant inconsistencies in his evidence. These are matters that can be determined or inferred from the objective evidence, thus the Commissioner's findings on credit do not prevent the Full Bench from making a different assessment. 5. In circumstances where the respondent admits he could not see the line markings on the road where the car was located, we do not accept that it was as likely as not that he observed the sedan swerving in and out of its lane. 6. The respondent's claim that the red sedan was, or may have been, speeding, or that he thought that it was appropriate to speed up to do a speed check before the intersection, is implausible because: 1. if the respondent saw the red sedan for the first time at Hornsby Street then he must have been close to it, because the road turns sharp left and the respondent could have only had a line of sight of less than 75 metres. We accept the respondent's calculation that this would have meant that the respondent was only about 4 seconds behind the red sedan. As there is a period of approximately 11 seconds between the red sedan and the respondent's vehicle passing through the speed camera, on the respondent's version, the red sedan must have accelerated to create a greater distance between them and then slowed down again as it went through the speed camera at 60.7 km/h (this purportedly occurred within a distance of approximately 350 metres, i.e between Hornsby Street and Romsey Street); 2. if the red sedan sped up such as to open a gap of more than 11 seconds and then slowed down, no speed check would have been necessary because it would have been obvious to the naked eye that such a large gap was created by the red sedan speeding, especially given that it would then have had to slow down quickly to cross the speed camera at 60km/h. This does not take into account the respondent's view that he was accelerating to try to catch up; and 3. the respondent, on his own account, increased his speed to 72 km/h before he reached the intersection in a bid to try and catch up to the red car. If this is correct and, as the respondent said, the red sedan was gaining distance on him as it approached the intersection, then the red sedan must have been travelling at well over 60 km/h at the time that it went through the intersection. However, the red sedan was detected going through the intersection at 60.6km/h. The most likely inference is that the red car had been either maintaining a speed at approximately 60 km/h in the last 200 to 300 metres before the camera or was slowing down to 60.6 km/h during that time, i.e. it was not speeding up. 1. The implausibility that the respondent observed speeding or erratic driving before the speed camera flashed, is confirmed by the inconsistent and implausible accounts that he gave as to what occurred after going through the speed camera: 1. the respondent admitted in cross-examination that he knew of the Policy and its contents. He did not have authority to engage in urgent duty to follow the vehicle under the Policy which states: "REDACTED" He should have notified the matter by police radio; 2. the Policy states that REDACTED. If the respondent's account was correct, then his only option was to have called local police for support; but he did not do so at any time; 3. even if the respondent could have engaged in urgent duty, to fall within the exemption in the Road Rules, he needed to show it was reasonable not to use flashing lights and a siren. He did not activate a siren or warning lights and claimed that he did not want to alarm other vehicles. This is not an accepted foundation for not activating lights/sirens; 4. the respondent applied the brakes immediately after the speed camera's light had been triggered at the Romsey Street intersection and then Constable Bernhardt felt an acceleration and says that he saw the respondent focused on the car in front. If the respondent had been following a speeding vehicle and was trying to close the distance between him and the vehicle, there was no reason for applying the brakes after triggering a speed camera. The act of braking is more consistent with the respondent reacting instinctively when realising he had been caught speeding; 5. the respondent continued to follow the red sedan but then abandoned the pursuit even though he was within 30 metres of the vehicle and could make out, on his account, the first three letters of its number plate. If the red sedan had been speeding or driven recklessly by a person suspected of being affected by drugs or alcohol, it is less likely that a proactive police officer would suddenly abandon the pursuit (when he did not call the matter in on police radio); and 6. the respondent's justification for abandoning the pursuit is unconvincing. The respondent claimed that as the red sedan was changing lanes, which he described to be the "pettiest of offences" and that it was no longer speeding, his main job was to convey the passenger back to Central Station. However, this was the same offence that the respondent alleges gave him a legitimate reason to pursue the red sedan for more than a kilometre, to get so close and take down the number and to speed through the intersection. 1. In assessing the respondent's versions of the incident on 22 October 2014 we have taken into account that he was described as a proactive policeman. The Commissioner considered this supported the respondent's asserted reason for speeding. However, the respondent said nothing about his reason for speeding to Constable Bernhardt, an officer the respondent was mentoring in "proactive policing". We consider that this is another factor going to the implausibility of the respondent's account. 2. We do not accept that it is as likely as not that the respondent was speeding in an effort to catch up to the red sedan which he had observed being driven unsafely. Accordingly, the respondent has not made out his burden to disturb the Commissioner's sustained finding in respect of Allegation 1. 3. As the Full Bench has accepted that Allegation 1 is substantiated, this necessarily involves a corollary finding that the respondent's subsequent assertions to the contrary are untruthful and that Allegations 2 to 4 must be made out. 4. In relation to each of the Allegations set out in the Statement of Reasons we make the following determinations: 1. Allegation 1 - the Commissioner determined that the respondent did not have a lawful excuse under the Road Rules and the Policy. The respondent has not made out his burden to disturb the Commissioner's sustained finding; 2. Allegation 2 - for the reasons set out above, we do not accept that the respondent has raised sufficient doubt in the appellant's finding that the Notebook entry which stated that the respondent's assertion that he was trying to catch up with the driver of a red sedan partial rego XCF*** for crossing into his lane 1 on the Pacific Highway just north of the Bluegum Hotel was false, to require the appellant to go into evidence; 3. Allegation 3 - the respondent has not raised sufficient doubt in respect of the appellant's finding that the respondent was untruthful in the First Report to Sergeant Tylor. In particular, we do not accept the respondent's assertions that he observed a motor vehicle which appeared to cross from lane two to lane one, while it negated bends on the Pacific Highway and that he sped up so he could read the remainder of the number plate and possibly start a speed check, before pulling the driver over to speak to them and possibly conduct a sobriety test are as likely as not; 4. Allegation 4 - the respondent has not raised sufficient doubt in respect of the appellant's finding that the respondent was dishonest during the Interview in which he said, amongst other things "… I was driving to catch up to a car to have a chat with them about their driving. During this time I have set off the speed camera". 1. The respondent did not make out his onus to establish sufficient doubt in the appellant's reasons for removal to require the appellant to answer his case. The interests of the respondent (applicant below) (s 181F(3)(a)) 1. The Commissioner came to the conclusion that the Removal Order was harsh because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct which was limited to the finding that the respondent was travelling at 72 km/h in a 60 km/h without a lawful excuse and: at [550] and [556]. 2. In making that determination, the Commissioner took into account a number of mitigating factors which included the respondent's personal circumstances at [168]: he was 40 years of age, single and lived by himself in a house that was subject to a mortgage; he had plans to marry his girlfriend and start a family but those plans had been put on hold; prior to joining the Police Force he was a furniture maker; he pursued a career in policing "to make a contribution to the community through [his] work"; at the time of hearing, he had earned $7140 from casual labouring work but was unable to continue that casual work, "because of the time [he] needed to prepare for these proceedings". The Commissioner also took note of the respondent's reputation as a proactive police officer and the respondent's disciplinary record at [367] – [370]. 3. The Full Bench has also taken into account in our assessment, the interests and circumstances of the respondent found by the Commissioner which facilitated his conclusion that the respondent's dismissal was harsh. The public interest (s 181F(3)(b)) 1. The public interest is prescribed by the Police Act to include the public interest of maintaining the integrity of the Police Force, and the fact that the Commissioner made the order pursuant to s 181D(1). 2. 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. It is in the public interest that the appellant act so as to preserve the integrity of the Police Force by removing persons who are dishonest. 2. There is a clear public interest in ensuring that those who are vested with the special privileges and powers that come with being a member of the 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 at [219]. 3. In addition to the matters the appellant considered went to the integrity of the respondent, being sustained Allegations 2, 3, and 4, a further matter that goes to the integrity of the respondent is that before proceedings commenced on the second day of the hearing, while the respondent was under oath and part way through being cross-examined, the respondent spoke to his surveyor, Mr Harvey. 4. When asked about this conversation, the respondent said he could not remember its contents. Consequently, the Commissioner made an order that Mr Harvey put on an affidavit to explain the conversation with the respondent and that Mr Harvey be available for cross-examination on this affidavit. The respondent did not comply with that order and put on an affidavit from a different person. No explanation was given as to why that order was not complied with, and the most obvious inference, is that the respondent did not want Mr Harvey to be cross-examined because Mr Harvey might have contradicted his evidence about why he spoke with Mr Harvey. We agree with the appellant that this is a matter that goes to the credit and integrity of the respondent and the integrity of the Police Force. The respondent's inability to perceive the improper nature of his actions, and failure to comply with the Commissioner's order, is, in itself, evidence of his unsuitability to be a police officer. The tripartite test 1. Taking into account the matters the Commission is required to consider pursuant to the statutory scheme including the interests and personal circumstances of the respondent, and the public interest, it is not, in our view, harsh, unreasonable, or unjust to remove a police officer whom the appellant found to have falsified, or been dishonest in, an official police record, and been untruthful in disciplinary interviews, in order to avoid the consequences of travelling at 72 km/hour in a 60 km/hour zone without a lawful excuse. Conclusions 1. For the reasons set out above, we are satisfied that the appellant has made out a case for the grant of leave to appeal in respect of Grounds 1, 2, 4, and 5. 2. For the reasons set out above, we are satisfied that the appellant has established that the Commissioner erred in the Decision in the application of the requirements of s 181F of the Police Act. 3. Where the ground of appeal involves a point of law, then the Full Bench can do what, in its determination, the Commissioner should have done. Given: the material before us, including the full record of the proceedings before the Commission; the time since the Removal Order was made; and the conclusions reached in this Appeal, we have decided to exercise our discretion in these circumstances to determine this matter and make final orders. 4. The respondent has not met the task required of him under the statutory scheme, if the review pursuant to s 181E of the Police Act is to succeed, of "establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust": Act, s 181F(2). Accordingly, we cannot uphold the application by Phillip Platts filed on 19 August 2016. 5. We find further, that in all the circumstances, and taking into account the provisions of s 181F and s 181G, the respondent's removal under s 181D(1) was not harsh. 6. The application at first instance should, therefore, be dismissed. Orders 1. The Full Bench makes the following orders: 1. Leave to appeal is granted in respect of Grounds 1, 2, 4, and 5. 2. The Appeal is upheld and the decision at first instance is set aside. 3. The application by Phillip Platts filed on 19 August 2016 for review of the order of the Commissioner of Police made on 9 August 2016 pursuant to s 181D of the Police Act is dismissed. ********** Endnotes 1. Tcpt 10/4/2017 p 92 at line 44; Tcpt 11/4/2017 p 42 at line 10 2. Tcpt 11/4/2017 p 43 at lines 11-12 3. at [1.3] 4. Tcpt 10/4/2017 p 92 at line 44 5. Tcpt 11/4/2017 p 17 at lines 3-9 6. at paragraph 164 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: 24 March 2021