Moylan v Commissioner of Police [2021] NSWIRComm 1095

Industrial Relations Commission New South Wales Medium Neutral Citation: Moylan v Commissioner of Police [2021] NSWIRComm 1095 Hearing dates: 9, 10, 11 November 2020; 23 February 2021; 1 June 2021 Date of orders: 13 December 2021 Decision date: 13 December 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Application dismissed Catchwords: POLICE – removal of police officer – s.181D Police Act 1990 – review under s.181E of the Police Act - statutory scheme – onus on applicant to demonstrate decision 'harsh, unreasonable or unjust' – evidentiary burden – applicant found to have engaged in misconduct by entering dock and making physical contact with a person in custody – credibility of the applicant - applicant did not act in self-defence – if the applicant acted in self-defence, his response was unreasonable - applicant gave evidence that was untruthful or at the very least less than fully frank in respect of the incident - applicant's personal circumstances considered – public interest considered – application dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 61, 418, 419 Law Enforcement (Powers & Responsibilities) Act 2002 (NSW), s 230 Police Act 1990 (NSW), ss 7(a), 181D, 181E, 181F Police Regulation 2015 (NSW), cl 8 Work, Health and Safety Act 2011 (NSW), s 28 Cases Cited: Amoco Oil Co. v Parpada Shipping Co. Ltd (The "George S.") [1989] 1 Lloyd's Law Reports 369 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458 Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 Katarzynski [2002] NSWSC 613 Lees v Commissioner of Police [2019] NSWIRComm 1045 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 Police Service Board v Morris and Martin (1985) 156 CLR 397 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Starr v Commissioner of Police [2001] NSWIRComm 226 Storey v Commissioner of New South Wales Police Force (No 2) [2020] NSWSC 1429 Toshack v Commissioner of Police [2009] NSWIRComm 31 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Woodley v Boyd [2001] NSWCA 35 Category: Principal judgment Parties: Shaun William Moylan (applicant)