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) Commissioner of Police (respondent) Representation: Counsel: Mr G Doherty (for the applicant) Mr M Seck and Mr R Coffey (for the respondent) Solicitors: Walter Madden Jenkins (for the applicant) Makinson d'Apice Lawyers (for the respondent) File Number(s): 2020/71736 Publication restriction: Order made on 9 November 2020: 1. Pursuant to section 164A of the Industrial Relations Act 1996 (NSW), the Industrial Relations Commission of NSW make an order prohibiting the disclosure or publication of any of the contents of annexures "RW8", "RW9", "RW10" and "RW11" to the statement of Inspector Robert Winkler filed on 7 July 2020. Additional Orders made on 12 November 2020 pursuant to section 164A of the Industrial Relations Act 1996 (NSW). decision 1. Before the Commission is an application by Mr Shaun Moylan (the applicant), a former Police Officer of approximately 10 years standing, for review of an order made by the respondent, the Commissioner of Police (the respondent), removing the applicant from the NSW Police Force (NSWPF) pursuant to s 181D of the Police Act 1990 (NSW) (Police Act) (the application). 2. The respondent removed the applicant from his position as a Police Officer with the NSWPF after forming the view he no longer had confidence in the applicant's suitability to remain a Police Officer, having regard to both the applicant's conduct and integrity. 3. This decision followed three separate findings by the respondent that the applicant had engaged in misconduct on 26 April 2015, which can be summarised as follows: 1. The applicant had used an unreasonable amount of force in dealing with a person detained in police custody following his arrest (Allegation 1); 2. The applicant was untruthful, or at the very least less than fully frank, in the evidence that he gave in the Local Court in criminal proceedings against him (Allegation 2); and 3. The applicant placed himself and other police officers in a position of danger by opening the door to the detained person's dock, exposing himself and his colleagues to an unnecessary risk of harm (Allegation 3). 1. I have decided to dismiss the application for the reasons set out in this decision. Background 1. The applicant was on duty at Dee Why Police Station (the Station) within the then Northern Beaches Local Area Command, performing duties as the internal station supervisor on the night shift from 6pm on 25 April 2015 to 6am on 26 April 2015. 2. About 8.30pm on 25 April 2015, a male, Mr Mark Adamski, was arrested by Police Officers and transported to the Station. Mr Adamski was intoxicated and uncooperative. During the relevant shift, Leading Senior Constable Daniel Gill was performing duties as the custody manager at the Station. 3. At the time of the incident, there were CCTV cameras operating in the custody area of the Station (Ex R12). The CCTV Footage in evidence was captured from three locations, namely, above the custody area counter; facing Dock 2 and Dock 3; and to the left of the custody area counter, facing the entry door to the custody room. 4. At or about 12:22 am on 26 April 2015, Leading Senior Constable Gill left the custody area and attended the front station area where the applicant was located and requested that he assist in reviewing the charge information relating to Mr Adamski. The applicant obliged and entered the custody area a short time later. 5. Despite the benefit of the CCTV Footage, the parties were in dispute about what happened after this. What is not in dispute is that the applicant was involved in an incident with Mr Adamski at around 12:25 am on 26 April 2015 which resulted in the applicant pushing Mr Adamski twice whilst he was in custody. 6. On 24 July 2015, the applicant had criminal charges laid against him accusing him of assault occasioning actual bodily harm and common assault. 7. On 9 to 10 March 2016 and 11 to 12 July 2016, the criminal charges against the applicant were heard before her Honour Magistrate McIntyre in the Local Court. On 9 September 2016, the applicant was found guilty of the offence of assault occasioning actual bodily harm. The applicant filed an appeal to the District Court. 8. On 15 December 2017, the applicant's appeal was heard by his Honour Judge Arnott SC in the District Court. The appeal was allowed and the conviction quashed. 9. On 17 May 2018, the respondent served the applicant with a copy of the investigator's report. 10. On 28 June 2018, the applicant advised the respondent, through his legal representatives, that he did not intend to respond to the investigator's report. 11. On 9 May 2019, the Applicant was served with a show cause notice by the respondent pursuant to sub-s 181D(3)(a) of the Police Act (Show Cause Notice). The Show Cause Notice was accompanied by the Commissioner's Confidence Supporting Documents (Ex R1). 12. On 27 June 2019, the applicant provided written submissions to the respondent in response to the Show Cause Notice (Response). 13. On 27 February 2020, the respondent issued an Order to the applicant pursuant to sub-s 181D(1) of the Police Act (Order), with an accompanying Statement of Reasons, informing the applicant that the respondent had lost confidence in the applicant's suitability to remain a member of the NSWPF, and removing him from his position as a Police Officer (Reasons). 14. On 5 March 2020, the applicant filed an application for review pursuant to s 181E of the Police Act. Relevant legislation and legal principles 1. The applicant was removed from the NSWPF pursuant to s 181D of the Police Act. Section 181D empowers the respondent to remove a Police Officer in whom he has lost confidence, having regard to the officer's competence, integrity, performance or conduct. It is in the following terms: "181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) …. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force." 1. Apart from a review of this Commission pursuant to Division 1C of the Police Act, there is no capacity for the applicant to effectively appeal against the respondent's decision to remove him: sub-s 181D (7) of the Police Act. 2. Division 1C of Part 9, is entitled, "Review of Commissioner's decision under Division 1B". Section 181E 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. Section 181F dictates the order in which proceedings on a review are to take place. Sub-section 181F(1) provides: "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." 1. Sub-section 181F(2) of the Act states: "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." 1. The approach the Commission is required to take in reviews of this kind has been the subject of a number of recent decisions, including by the NSW Court of Appeal in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 (Zisopoulos) and by the Supreme Court of New South Wales in Storey v Commissioner of New South Wales Police Force (No 2) [2020] NSWSC 1429 (Storey). 2. In Zisopoulos, regarding the onus of proof in review proceedings under s 181E of the Police Act, the majority (Bell P, with whom Macfarlan JA separately agreed) concluded (at [84]-[89] and [96]) that the reference in sub-s 181F(2) to the burden of establishing that the removal is harsh, unreasonable or unjust is a reference to the applicant's legal onus, which at all times rests on the applicant to the proceedings before the Commission, and is not a reference to any "evidentiary" or "tactical onus" which may shift during the course of the proceedings. 3. In its decision, the Court of Appeal quoted with approval [176] of Starr v Commissioner of Police [2001] NSWIRComm 226 at [86]: "If the case presented by the applicant raises a basis for the Commission's intervention, it will be for the Commissioner, in answer to the applicant's case, to introduce evidence sufficient to demonstrate that the removal was warranted. This is not a matter that depends on onus. It is simply that once the applicant establishes a case then a burden may shift to the Commissioner to respond to relevant aspects of that case. In some matters, such as the present, this may include a burden to produce evidence vindicating the factual findings made, having regard to deficiencies in the process adopted by the Commissioner. (emphasis added)" 1. The Court of Appeal decision implicitly endorses the approach adopted in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 (Tredinnick). In particular, reference was made with approval (as it was in Tredinnick) to the passage by Lord Donaldson of Lymington MR in Amoco Oil Co. v Parpada Shipping Co. Ltd (The "George S.") [1989] 1 Lloyd's Law Reports 369 at p 370 (cited at [69] of Zisopoulos): "I now turn to the burden of proof. It is trite law that the legal burden lies upon the claimant. He who alleges must prove. The appellants allege a short delivery and consequential loss and they must prove both. How they prove it and the evidential burden involved is another matter. Proof must be met by counterproof and that in turn by a reinforcement of the original proof (Smith v. Bedouin per Lord Shand at p. 79). If at any particular stage in the evidence one party would succeed, it is for the other party to adduce further or better evidence and, if he does so and thereby achieves a contingently winning position, the first party must do likewise or lose. In other words, the evidential burden swings or may swing between the parties throughout the hearing, but in the end, in the context of a claim for short delivery, the owner of the cargo must prove the short delivery if he is to succeed in his claim and the shipowner must either prevent his doing so or prove affirmatively that, although there was indeed a short delivery, it occurred in circumstances for which he was not responsible." 1. Importantly, Bell P made the following observation with respect to the nature of the review proceedings at [83]: "The nuanced nature of a s 181E review based upon the statutory criteria of harsh, unreasonable or unjust is one that the legislature has entrusted to a specialist tribunal in the form of the IRC. The IRC's review is not "de novo" but, on the other hand, as Mr Kirk accepted in oral argument, is closer to a merits review than judicial review. Assessment as to whether a particular decision of the Police Commissioner engages the statutory criteria necessarily must have regard to the basis and reasoning employed by the Police Commissioner in any given case." 1. Macfarlan JA agreeing with the reasons given by the President, observed at [96] that: "the better view of the judgements under review is that in referring to an evidential onus passing to the Police Commissioner as a result of the evidence called in Mr Zisopoulos' case being adduced, Murphy C and the Full Bench were referring to the "tactical onus" described by Sir Nicolas Browne-Wilkinson CV in Brady (Inspector of Taxes) v Group Lotus Car Cos plc [1987] 2 All ER 674 at 686-7… that is, a practical burden to adduce further evidence because the other party has produced enough evidence to win if that does not occur." 1. Macfarlan JA concluded that there is good reason to avoid reference to the practical burden that may arise during a hearing because it may not be known during the course of the hearing if it has arisen and that if it is referred to in a judgement in retrospect, the term "tactical onus" should be used to avoid ambiguity: see [98]. 2. Zisopoulos makes clear that the role of the Commission in these review proceedings is to analyse the case being presented by the applicant, identifying the factual contentions being advanced, and determine whether those matters are proven or not. It is the applicant who must prove his or her case, including the factual contentions in support of that case, consistent with what the Full Bench of the Commission held in Tredinnick. Whether or not an applicant succeeds in proving his or her case turns on the Commission's assessment of the evidence adduced by the parties, including inferences to be drawn from the failure of either party to call particular evidence. 3. Returning to the Police Act, the Commission must take into account both the interests of the applicant and the public interest as provided by sub-s 181F (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))." 1. The requirements of the Police Act were succinctly summarised by Wright J in Storey at [126]-[128], where his Honour stated, after setting out sub-s 181F (2): "126. This makes it clear that the applicant for review bears at all times the burden of leading evidence to establish, on the balance of probabilities, all of the factual elements of his or her case and of making good the propositions that those factual elements mean that the removal was "harsh", or "unreasonable" or "unjust", on the proper construction of those words in ss 181E and 181F the Police Act. 127. Section 181F also, in effect, establishes a number of mandatory considerations which the IRC "must consider" or "must have regard to", namely: 1. the Police Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, set out in the removal order as required by s 181D(4): s 181F(1)(a); 2. "the case presented by the applicant as to why the removal is harsh, unreasonable or unjust": s 181F(1)(b); 3. "the case presented by the [Police] Commissioner in answer to the applicant's case": s 181F(1)(c); 4. "the interests of the applicant": s 181F(3)(a); and 5. "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))": s 181F(3)(b). 128. The applicant for a review under s 181E(1) will generally seek to discharge the burden of establishing that the removal was harsh, unreasonable or unjust by leading evidence and making submissions before the IRC. That evidence and those submissions will be "the case presented by the applicant". Examples of the type of case an applicant might present in order to establish that their removal was harsh, unreasonable or unjust can be drawn from the joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; [1995] HCA 24 including that: (1) the removal was harsh because of its consequences for the personal and economic situation of the officer or because the removal was disproportionate to the gravity of the misconduct in respect of which the Police Commissioner acted; (2) the removal was unreasonable because it was based upon inferences which could not reasonably have been drawn from the material before the Police Commissioner; or (3) the removal was unjust because the employee was not guilty of the misconduct on which the Police Commissioner acted." 1. I have applied these principles to this matter. The Reasons 1. Pursuant to sub-s 181F (1)(a), the Commission is to first consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force. 2. The respondent made three separate findings of misconduct on the part of the applicant to support the removal. In summary, the respondent determined: Allegation 1: on 26 April 2015, the applicant used an unreasonable amount of force in dealing with Mr Adamski when he: pushed Mr Adamski to the chest area, causing him to step backwards and make contact with the rear of the wall of the dock; and grabbed Mr Adamski by the throat, pushed him up against the rear of the dock and forced him into a seated position. Allegation 2: on 12 July 2016, the applicant was untruthful, or at the very least less than fully frank, in the evidence that he gave in the Local Court proceedings, when he stated he: initially opened the door to dock number 2, being the dock that Mr Adamski was located in, "as a matter of courtesy" and to try and calm Mr Adamski down, rather than due to the applicant being annoyed and/or insulted by Mr Adamski's comments; and became fearful that Mr Adamski was going to assault him. Allegation 3: on 26 April 2015, the Applicant placed himself in a position of danger by opening the door to Mr Adamski's dock. As a result of his actions, he exposed himself and his colleagues to an unnecessary risk of harm. 1. The respondent concluded, after considering the applicant's Response, that he had engaged in the conduct set out in all three allegations. The respondent consequently concluded that the applicant had contravened: * section 7 of the Police Act; * section 230 of the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW); * sections 61 of the Crimes Act 1900 (NSW); * clause 8 of the Police Regulation 2015 (NSW); * chapters C and U of the NSW Police Force Handbook; * the Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence); * the NSW Police Force Code of Conduct and Ethics; and * section 28 of the Work, Health and Safety Act 2011 (NSW) (WHS Act). 1. I have considered the respondent's Reasons in the context of each of the allegations below and when considering if the Order was harsh, unreasonable or unjust. The case presented by the applicant 1. The applicant relied upon the following written witness statements: 1. Statements of the applicant filed 27 July 2020 (Ex A1) and 19 May 2020 (Ex A2); 2. Statement of Ms Sarah Lyn Moylan filed 27 July 2020 (Ex A3). Ms Moylan is the applicant's wife; and 3. Statement of Mr Kevin John Morton dated 19 May 2020 (Ex A4). Mr Morton is a sworn Police Officer holding the rank of Sergeant and Vice President of the Police Association of NSW (hereafter Sergeant Morton). 1. During the hearing, the applicant was granted leave to file additional evidence with respect to the issue of whether he had been untruthful in his evidence when denying he had had a romantic and or sexual relationship REDACTED. For reasons upon which I will elaborate, I have decided that it is unnecessary to consider that aspect of the case in finalising the matter. 2. The applicant, Ms Moylan and Sergeant Morton were cross-examined in the proceedings. 3. The applicant relied upon written submissions dated 26 March 2021 (the applicant's submissions) and 25 May 2021 (the applicant's submissions in reply). Counsel for the respondent addressed the Commission with respect to the applicant's case on 1 June 2021. The case presented by the respondent 1. The respondent relied upon the following written witness statements: 1. Statement of Mr Brendan Kitchener filed 7 July 2020 (Ex R2). Mr Kitchener is a sworn Police Officer holding the rank of Senior Constable (hereafter Senior Constable Kitchener). Senior Constable Kitchener was assisting Leading Senior Constable Gill in the Custody Room on the night of the incident. He directly observed the relevant events. He appropriately conceded under cross-examination, that his recollection of the events had deteriorated since giving evidence in the criminal proceedings. 2. Statement of A (a pseudonym) filed 7 July 2020 (Ex R3). Ms A is a sworn Police Officer holding the rank of Senior Constable (hereafter Senior Constable A). Senior Constable A did not directly observe the relevant events and gave evidence with respect to what the applicant said to her after the incident. REDACTED. 3. Statement of Mr Bryce Sutcliffe filed 7 July 2020 (Ex R8). Mr Sutcliffe is a sworn Police Officer holding the rank of Constable (hereafter Constable Sutcliffe). Constable Sutcliffe did not directly observe the incident. 4. Statements of Mr Simon Harrison filed 7 July 2020 (Ex R6) and 5 November 2020 (Ex R7). Mr Harrison is a sworn Police Officer holding the rank of Senior Constable (hereafter Senior Constable Harrison). Senior Constable Harrison did not directly observe the incident but witnessed some events in the Dock surrounding the relevant events. 5. Statement of Mr Daniel Gill filed 7 July 2020 (Ex R11). Mr Gill is a sworn Police Officer holding the rank of Leading Senior Constable. Leading Senior Constable Gill directly observed the incident. 6. Statement of Mr Winkler filed 2 July 2020 (Exhibit R9). Mr Winkler is a Detective Inspector within the NSW Police Force (hereafter Detective Inspector Winkler). At the time he made his statement, he occupied the role of the Human Resources Duty Officer at Sydney City Police Area Command managing the Human Resource issues for the Command. He did not directly witness the event and gave evidence about other matters, including the complaint lodged by Mr Adamski, the respondent's practices and policies, the training received by the applicant, and whether the applicant should be reinstated. 1. Each of the respondent's witnesses attached the statement(s) they made in the context of the criminal proceedings brought against the applicant. Also in evidence was interviews conducted by Inspector Susan Preston with Leading Senior Constable Gill and Senior Constable Kitchener. 2. All of the respondent's witnesses were cross-examined, except for Leading Senior Constable Gill. 3. The respondent relied upon submissions filed on 7 May 2021 (the respondent's submissions) and addressed the Commission orally on 1 June 2021. Allegation 1 1. Allegation 1 against the applicant was as follows: Allegation 1: on 26 April 2015, the applicant used an unreasonable amount of force in dealing with Mr Adamski when he: pushed Mr Adamski to the chest area, causing him to step backwards and make contact with the rear of the wall of the dock; and grabbed Mr Adamski by the throat, pushed him up against the rear of the dock and forced him into a seated position. 1. In the Reasons, the respondent found that the applicant used an unreasonable level of force against Mr Adamski. The respondent expressed that he could not see how the applicant's actions could be excused or defended in the circumstances, particularly in light of what is recorded on the CCTV Footage. The respondent indicated that he considered the applicant's conduct towards Mr Adamski alone to be of sufficient gravity to warrant his removal. The respondent found that the evidence did not support the applicant's submission that Mr Adamski presented a risk at the and that this was supported by the fact that no other Police Officer felt compelled to approach the Dock despite Mr Adamski's behaviour. 2. The respondent took into account the appeal judgment of Judge Arnott SC in quashing the conviction imposed by Magistrate McIntyre but observed that the standard of proof applied in the District Court was "beyond reasonable doubt" which is different to that required in a NSWPF disciplinary matter, namely, the balance of probabilities. Based on this standard, the respondent found that Allegation 1 had been established based on the observations that could be made on the CCTV Footage and, to the extent necessary, his acceptance of the evidence of the police witnesses based on the fact that they had nothing to gain by providing false accounts. 3. The applicant admitted that on the first occasion he pushed Mr Adamski, he pushed him in the chest area and that his shoulder hit the rear wall of the Dock: Ex A1 at [112]. 4. The applicant admitted that on the second occasion he pushed Mr Adamski, he pushed him around his collarbone at the base of his throat and his head and back hit the rear wall of the Dock. He denies he grabbed Mr Adamski by the throat and pushed him up against the rear wall: Ex A1 at [113]-[114]. 5. The applicant denied that he used an unreasonable amount of force and that his actions constituted an assault. He says he was acting in self-defence. The applicant referred the Commission to ss 418 and 419 of the Crimes Act 1900 (NSW) (Crimes Act) and the test under sub-s 418(2) as described by Howe J in Katarzynski [2002] NSWSC 613 at [22]-[24]. 6. The Crimes Act has no application to these proceedings. These proceedings are to be determined pursuant to the Police Act including sub-s 181F(2) which provides that the applicant bears the onus at all times. However, it is appropriate that the Commission consider whether the applicant acted in self-defence and whether the actions he took were a reasonable response to the threat as the applicant perceived it to be. In determining whether the applicant acted in self-defence, the standard of proof is the balance of probabilities and the principles espoused in Briginshaw apply. As stated by the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449: "… The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society did not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." 1. Whether the applicant was acting in self-defence requires an evaluation of the circumstances as perceived by the applicant himself. Whilst he is the only person able to give direct evidence of what he perceived, other evidence, including the CCTV Footage and what was observed by other people who witnessed the same events may also be relevant to an evaluation of whether the applicant's evidence as to his perception should be accepted. In this matter, given the applicant's evidence that he perceived he was under threat by Mr Adamski and the respondent's rejection of this explanation, the applicant's credibility as a witness is a central issue for determination. The applicant's credibility and integrity are also called into question in Allegations 2 and 3 and the Commission is required to consider the integrity of the applicant in the context of the respondent's decision to remove him from the NSWPF. 2. The applicant gave evidence in his written statement about the incident and the events surrounding it. He stated that at about 9:16 pm on 25 April 2015, observing CCTV Footage from another room, he saw Mr Adamski sitting on the bench in Dock 2 in the Custody Room with the Dock Door closed and what appeared to be Constable Pfeiffer sorting through what appeared to be Mr Adamski's property. He also gave evidence that later that night, he heard a loud raised voice coming from the Charge Room, including swearing, words of complaint and threats which he believed to be coming from Mr Adamski. He also gave evidence that he saw Mr Adamski pacing back-and-forth in his Dock and gesturing towards the Police Officers who were in the Charge Room. 3. The applicant gives the following account of the incident at [146]-[175] of the applicant's statement: "146. As I entered the Charge Room Mr Adamski shouted, "How long is this going to take, you fat bald cunt?" I did not say anything. I walked directly to the Charge Room Counter to access the computer and in doing so, I walked behind the counter and behind Constable Kitchener and in front of Leading Senior Constable Gill. I sat down in front of the computer. I began to read the document that was on the screen. Mr Adamski continued to shout and swear. 147. When Mr Adamski shouted, "How long is this going to take, you fat bald cunt?" I assumed he was directing his comment to me, but I ignored him. I knew Mr Adamski had earlier in the evening been involved in a verbal confrontation with Sergeant Morton and it crossed my mind that he might be confusing me with Sergeant Morton and was being hostile, thinking I was him. 148. After a short time of about 10 seconds in the Charge Room trying to work at the computer and hearing Mr Adamski shouting, I looked at him and told him to "Shut up". I continued to try and concentrate on reading the computer document. He took no notice and continued to swear and yell. I couldn't concentrate on what I needed to do and I wanted him to stop making noise so I could concentrate on getting the job done. 149. I walked from behind the Charge Counter to stand in front of the door of Dock 2. As docks are enclosed in Perspex, in my experience, a person sitting in a dock with the door closed finds it is quite difficult to hear conversations spoken at a normal level by persons outside of the dock. If a person's voice is raised, quite often it sounds distorted and muffled and it is difficult to hear what a person is saying. 150. I did not want to engage in a shouting match with Mr Adamski. I thought if I opened the dock door and spoke to him face-to-face, he might see reason and calm down. I have used this approach on other occasions with difficult people in custody and I have found difficult people come around and respond more favourably when spoken to calmly and in a civil manner without shouting. My aim was to get Mr Adamski to see reason about quietening down and cooperating in this way so that in the end he would benefit from this by being released from custody quicker, which was his main complaint. 151. I accept I should not have opened the door. I acknowledge that what I did was a poor choice. Although it was difficult for me to concentrate, I should have kept working and left [Mr Adamski] in the safety of the dock and not opened the door and exposed him to the risk of needing to be physically restrained by the use of force or, the risk of him harming me or the other police officers in the Charge Room. It was an error of judgment on my part for which I accept full responsibility. 152. I did not open the door out of a loss of self-control, out of anger or because I wanted to physically reprimand Mr Adamski. The factors that I took into account when deciding to open the door were those explained above about the benefit of speaking to him face-to-face and because my assessment of him as not showing signs of physical aggression, such as kicking the door or hitting the Perspex with his hands, although he was being loud and verbally abusive. I did not think Mr Adamski would be physically aggressive toward me or that he would be prone to having a physical altercation with me and I certainly had no intention of engaging him in an altercation. I knew and fully appreciated at the time that there were other police in the Charge Room and that everything I did was being filmed by the CCTV cameras and recorded. 153. As previously stated in [40] above, I practised and studied French Foil fencing for several years prior to joining the police force. I advanced to the stage where I was competing at State level against the best athletes in the State and I was quite successful at it. When competing in a bout, both my opponent and I wore specialised equipment for protection, which includes a helmet that covers the front of your head with a mask made from a metal mesh. The mask completely obscures the face. 154. As the facial features of an opponent are obscured, the only indication that the opponent is going to launch an attack comes from observing their body language and positioning. I have spent many an hour being trained and practising how to read cues from the movement and position of an opponent's body. I have trained to quickly make these observations and to react instantly. I still possess these specialised skills which in my police work results in me being highly observant of body positioning and movement when in close quarters. I find I am able to quickly assess perceived threats and spontaneously react by either moving my body out of range or preparing to fend off or block an attack. 155. At the time, the locking bolt on Dock 2 was a bit distorted which makes it difficult to slide the bolt to the open position. Because Mr Adamski had both his feet resting up on the dock door the outward pressure from his feet made it too difficult to slide the locking bolt across. I asked Mr Adamski to get his feet off the door and at the same time, I gestured with my left hand, pointing at his feet. He removed his feet from the door, and I slid the locking bolt back to the open position. I then opened the door. 156. I leaned into the dock with my left hand held on the door and my right (dominant) hand on the door frame. Mr Adamski was seated with both arms crossed across his chest. I said words to the effect of "The sooner you quieten down, the sooner you will be out of here". Mr Adamski suddenly uncrossed his arms and clenched his hands into fists. He raised his clenched hands up so that they were level with his face. He started to move forward off the seat towards me and said words to the effect of "I'll fucking have you". 157. The instant I heard him say "I'll fucking have you" and move his hands up beside his head and his body moving forward and upwards, I perceived he was positioning himself to launch an attack. I felt threatened and was fearful that he was going to physically attack me. I did not know if or when he was going to stop advancing and where his hands were going to end up. I thought that if he were to throw a punch with his strength and the weight of his body rising behind the blow, he could injure me. 158. I was in a poor position to counter a forward moving physical attack. I was off balance and my body was completely open to attack. I could not move fast enough to bring my hands up in front of me to fend off an attack. I panicked and reacted instinctively intending to place the door between me and Mr Adamski and, once closed lock it. I quickly stepped backwards, removed my hands from the door and the door frame and slammed the door shut. 159. Under normal circumstances, I would not slam a dock door shut because in an area the size of the Charge Room, slamming the door creates a very loud noise. The doors and frame are made of steel and the door is quite heavy to swing on its hinges and the weight of the door makes it build up momentum. Also, due to the weight of the door I am aware that if I inadvertently left any of my fingers between the door and the frame it would cause a bad injury if the door was shut with force. 160. The locking mechanism of the door is a horizontally sliding bolt that must be manually manipulated to lock. Slamming the door shut resulted in the door bouncing back open making it ajar from the frame, which made it difficult for me to position the door in the home position if I was going to be able to slide the bolt home to lock the door. 161. As the door bounced off the frame it came back towards me, so I took hold of it with my left hand in order to prevent it from swinging completely open. At this time, Mr Adamski was standing and moving towards me and I did not know what he was going to do. I desperately wanted to close and lock the door but realised I could not safely do so unless he was seated, which was necessary to remove the risk of him using his body weight to push the door open. The heavy door could have struck me and caused a nasty injury, especially to my face. 162. As Mr Adamski was on his feet and moving towards me, I said, "Sit down". He ignored me and continued to move toward me. I reacted by using a single left-handed "Check Drill" manoeuvre, which had the desired effect of forcing Mr Adamski rearwards away from me. I also moved my open right hand in front of my chest to fend off any strike levelled at me by him. 163. I am right-hand dominant. My left hand (which I used to apply the "Check Drill") does not have as much strength, control, or coordination as my right hand. 164. The "Check Drill" manoeuvre is a defence tactic I learned as part of my training as a police officer in both my initial and ongoing training. The manoeuvre is used in a close quarters situation where distance needs to be created between the police officer and an attacker. The manoeuvre is usually deployed by a solid strike with the open palms of both hands to the chest area of an attacker to propel the attacker in a rearward direction away from the police officer. It can also be done with one hand with less force than when two hands are used. 165. When Mr Adamski was forced backwards with the single-handed Check Drill his shoulder hit the rear wall of the dock. He remained standing and came straight back towards me. I reacted by closing the door but in the pressure of the moment I fumbled with the sliding bolt and I couldn't get the bolt home to the locked position. 167. As I was struggling with locking the door, Mr Adamski moved to a position of about 20 centimetres from the door. His hands were clenched in fists and his arms were projected out wide on each side of his body, in what I perceived was an aggressive and threatening stance. He stood with his body almost leaning against the dock door and shouted "You're gone! I'm going to fucking have you". He continued to shout obscenities. My biggest fear was that he would throw his entire body weight on the unlocked door and it would hit me, and I would lose control of the situation. 168. I believed that Mr Adamski's aggressive posturing and proximity to the door made him a major threat. I believed that I would be unable to safely lock the dock door unless I could get him into a passive seated position. 169. To safely close and bolt the door, I believed that I needed to move Mr Adamski back from the door and force him down into a seated position on the bench seat, which would give me time to safely bolt the door. I pulled the door open and pointed at Mr Adamski with my right hand and said "Sit down" in a loud voice. He ignored me so I continued to point and again said "Sit down". He said, "Fuck you. I'm not sitting down." 170. I believed that Mr Adamski was going to continue to ignore me and I wasn't going to be able to safely close and bolt the door. I placed my open right hand on his collarbone area and in doing so openly cupped my open hand just below the base of his throat. I did not close my palm to create a grip nor did I grab hold of his throat or neck. I kept my palm open and pushed him backwards. 171. My intention was to force Mr Adamski down onto the bench seat which was attached to the rear wall with the wall being the backrest of the bench. With my hand remaining open and in the position explained in the previous paragraph, I applied downward pressure on his collar bone to force Mr Adamski down into a seated position and, while doing this I said "Sit down" in a loud voice. 172. Mr Adamski hit the rear wall and I moved my open left hand in front of my body in order to prevent him from striking me with his hands or knees. Using my right hand, I continued to apply pressure to his collarbone until he was down seated on the bench seat. 173. Once I had forced Mr Adamski into a seated position, I discontinued the use of force and backed out of the dock and immediately closed and locked the door using the sliding bolt. 174. If I had used both of my hands, I could have used much more force than I did. I was trying not to injure Mr Adamski and I only wanted to apply enough force to get him to sit down on the bench seat, so that I could safely close and lock the door. 175. I did not push Mr Adamski for any reason other than I genuinely feared his intentions at close distance, in the circumstances as I perceived them to be. 176. I felt very shaken by what had just happened. I walked back behind the counter and sat down in front of the computer and started reading through the text on the computer screen. Mr Adamski continued to yell threats and insults. I heard and saw him hit the wall of the dock several times with his fists. I did my best to ignore him." 1. The CCTV Footage in evidence is visual only and does not include audio. In the CCTV Footage the applicant can be observed entering the Charge Room and he moves swiftly to the Charge Bench, past Senior Constable Kitchener with Leading Senior Constable Gill. The applicant is seated behind the Charge Bench and a computer which he observes for a few second before his attention is diverted away from the computer to Mr Adamski in Dock 2, which is situated in front of, and to the right of the Charge Bench. The applicant moves his head from behind the computer, towards the direction of Mr Adamski. The applicant's attention then returns briefly to the computer before he is once again diverted and this time, he rises from his chair and walks swiftly towards Dock 2 in a purposeful manner. 2. The Dock area is very small. Mr Adamski is seated on the bench at the back of the Dock which utilises the backwall as a backrest and his feet are resting on the Dock Door. Upon reaching Dock 2, the applicant takes the latch to the Dock with his right hand and speaks to Mr Adamski through the Perspex and gestures with his left hand at his feet. Mr Adamski then removes his feet and the applicant opens the Dock latch and leans the top half of his body into the Dock and speaks for about 4 or 5 seconds with Mr Adamski seated in a slouched position, his legs ajar and his arms folded. While still seated, Mr Adamski then appears to start speaking, raising his open hands to about his head level before throwing them downward. This is a fluid movement and Mr Adamski does not make a fist. Mr Adamski starts to move to his feet, in a relatively slow movement while appearing to speak. 3. As Mr Adamski is rising to his feet, the applicant closes the Dock Door with enough force that it bounces back and reopens. The applicant catches the rebounding door with his left hand. The applicant then re-enters the Dock and pushes Mr Adamski with his left hand in the chest area, causing him to stumble backwards, although he remains standing. At the time the applicant strikes Mr Adamski, his arms are not raised. The applicant then closes the Dock Door and appears to fumble with the latch. Mr Adamski, having recovered from the push, is standing at the front of the Dock with his hands by his side appearing to speak in an animated manner. He is not touching the Dock Door. 4. The applicant abruptly stops fumbling with the Door latch and opens the Dock Door again with his left hand and uses his right index finger to point directly in Mr Adamski's face. The applicant's right hand then moves from that position to cup Mr Adamski's neck area, with the applicant stepping further forward into the Dock until Mr Adamski moves backwards and hits his head on the back wall and sits on the bench. Mr Adamski's hands were by his side at the time the applicant made contact with his neck area. When the applicant forced Mr Adamski backwards, his mouth was opened and his arms raised beside his torso, in what appears to be an instinctive reaction to the use of force. 5. Mr Adamski remains seated and can be seen speaking to the applicant who then closes the Dock Door. As the applicant latches the Dock Door, Mr Adamski stands up and appears to be speaking to the applicant, who swiftly returns to the computer. During this sequence, Mr Adamski places his left hand behind his head. The applicant is then observed working on the computer with Leading Senior Constable Gill looking on. In the 60 seconds after the applicant returns to the computer, Mr Adamski can be observed standing and speaking at the front of the Dock in an aggressive manner. He is grabbing his shirt and shorts and appears to point to the applicant, bangs the door with both hands open, punches the air and cups his own neck whilst yelling in the direction of the applicant. The applicant appears to interact with Mr Adamski, gesticulating with his hands. The applicant's left hand is raised with his fingers motioning up and down. Shortly after this, Mr Adamski sits down. 6. The time taken between the applicant standing from the computer and moving towards Dock 2 and sitting back down again in the same place was about 38 seconds. The incident in Dock 2 occurs within about 19 seconds. 7. There are a number of aspects of the applicant's account that are not consistent with the CCTV Footage. 8. Firstly, the manner in which the applicant approaches and leans into the Dock, and Mr Adamski's reaction to this initial interaction is not consistent with the applicant's account, that he had hoped to speak to Mr Adamski in a civil and calm manner in order to calm him down. The applicant does not look calm as he approaches the Dock. The applicant's manner is more in keeping with someone who has lost their temper and more likely to create a sense of fear rather than calm. 9. Secondly, the body language of Mr Adamski does not support the applicant's account that he believed that he was about to be attacked at any point during the encounter, even accepting (as I do) that he threatened that, "I'll fucking have you" at some stage during the incident: see [80] below. When the applicant first entered the Dock, Mr Adamski, who is sitting on the bench, did not clench his fists and only raised his hands momentarily before putting them back down beside his torso whilst moving to a standing position. The applicant closes the Door with enough force for it to bounce back before Mr Adamski reached a standing position. Mr Adamski's arms were beside his torso when the applicant made contact with his neck area. 10. Thirdly, the applicant's account that at the time he took hold of the swinging Door, Mr Adamski "was standing and moving towards" him, is not correct: [161] Ex A1. The time between the applicant slamming the door and then striking Mr Adamski in the shoulder is very short. When the applicant struck Mr Adamski, he had only just risen to his feet and he had not moved forward. 11. Fourthly, after the applicant strikes Mr Adamski for the first time, he regains his balance and stands with his hands either side of his torso and moves slowly towards the Door of the Dock which the applicant appears to be attempting to close. His hands do not appear to be clenched and although the applicant says he "stood with his body almost leaning against the dock door", it is important to observe that he makes no contact with the Door. 12. Fifthly, the applicant claims that after he opened the Door again, he pointed at Mr Adamski telling him to "sit down" twice before Mr Adamski responded "Fuck you. I'm not sitting down." It is difficult to reconcile this account with the very limited timeframe within which the applicant reopens the Door and makes contact with Mr Adamski's neck area. 13. Sixthly, the applicant does not appear "very shaken" by the encounter in the CCTV Footage, as he returns swiftly to the computer after he latches the Dock Door and then continues to review the charge sheet on the computer. 14. Seventhly, during the entire encounter, neither Leading Senior Constable Gill nor Senior Constable Kitchener move to assist the applicant. This supports the conclusion that Mr Adamski was not behaving in a manner which caused them to be concerned for the applicant's safety. 15. The CCTV Footage does not support the applicant's version of events that he was in fear of Mr Adamski and was reacting in self-defence after he opened the Dock Door (which he admits was the wrong thing to do). 16. I have been unable to accept the applicant's version of events that he was afraid of Mr Adamski and was acting in self-defence. Ultimately, I found the applicant to be an unimpressive witness whose evidence lacked credibility. 17. Under cross-examination, the applicant often appeared anxious. It was clear that he has been affected by his removal from the NSWPF. The applicant was often definitive in giving his answers, despite the passage of time that has elapsed since the incident. Sometimes the applicant was definitive in his answers, even where they defied logic. 18. There was a significant diversion in the proceedings as the respondent pursued a further allegation that the applicant had given untruthful evidence when he denied a romantic and sexual relationship REDACTED. Given my findings with respect to the applicant's credibility, and those relating to Allegation 2, it has not been necessary to determine this issue to dispose of these proceedings. 19. Even if the applicant's account was accepted and he did apprehend fear during the incident in respect of Mr Adamski, I am of the view that his response was unreasonable and disproportionate. For example, the applicant could have kept the Dock Door closed and found the latch before he opened it to strike Mr Adamski a second time. Even if he was afraid, the decision to make contact with Mr Adamski's neck area with such force that he hit his head on the back wall of the Dock was a particularly violent response applied to a person who had not attempted to make any physical contact with the applicant at that time. 20. In arriving at the view, I have had due regard to the principles espoused by the Court of Appeal (Haydon JA (Davies and Foster AJA concurring)) in Woodley v Boyd [2001] NSWCA 35 in which it was said that: "… Any evaluation of police conduct must be made with the 'pressure of the events and the agony of the moment' in mind and not by the application of hindsight.": at [1]. 1. In addition, I have considered the comments of Haydon JA that: "… Arrests are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the Police Force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and then make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.": at [37]. 1. I do not read these observations as allowing the use of unreasonable force by Police Officers in circumstances such as the present, where the applicant had other less confrontational options available to him if he was afraid of Mr Adamski. I have also considered the decision of Judge Arnott SC in the District Court appeal and note that the Commission is bound to make its own findings and determinations on the balance of probabilities, taking into account the principles in Briginshaw. 2. In my view, the applicant never shifted the tactical burden with respect to Allegation 1 to the respondent. However, for completeness I have considered the respondent's case in respect of Allegation 1. 3. The respondent relied upon the evidence of Detective Inspector Winkler, Leading Senior Constable Gill and Senior Constables Kitchener, Harrison, A and Constable Sutcliffe. Given the significant passage of time since the incident, it is perhaps not surprising that the recollection of these witnesses of the minutiae of the relevant events, which were of less than a minute in duration, had faded. 4. The respondent's evidence in the proceedings was consistent that Mr Adamski was a very difficult prisoner and he had been abusive towards Police Officers whilst in custody both before, and after, the incident. Senior Constable Kitchener gave evidence that Mr Adamski had stated that he wanted to fight the applicant after the incident and Detective Inspector Winkler gave evidence that Mr Adamski was abusive when he attended the station to report the incident, giving evidence that he stated, "I'll fucking get you! I'll fucking get you!": Ex R9 at p 18, [11]. This evidence lends support to the applicant's account that Mr Adamski said to him, "I will fucking have you" during the incident and I have accepted that at some stage during the incident, words to that effect were spoken by him. 5. The respondent's witnesses gave evidence about the applicant's demeanour and his general disposition. However, this evidence was not consistent. Senior Constable Kitchener expressed an opinion that the applicant is a "hot head". He gave evidence of a specific incident where the applicant pulled a firearm on a person of interest, the inference being that this was an unnecessary and excessive step. Senior Constable A gave evidence that the applicant's mood could be "very up and down" and that this could make a shift difficult as when the applicant "was in a bad mood he was angry or had a short fuse towards members of the public, often making situations much worse." Detective Inspector Winkler gave evidence about the applicant's demeanour from his interactions with him over approximately 5 years. He stated, amongst other things, that he found his general demeanour to be angry and direct: Ex R9 at [20]. 6. On the other hand, Leading Senior Constable Gill gave evidence that the applicant and he were mates, that the applicant was an exceptional Police Officer and they had a good working relationship. He described the applicant as dependable and of great assistance to him professionally. Constable Sutcliffe similarly described the applicant as a friend, a mentor and that, he trusted him and looked up to him: Ex R8 at [5]-[6]. 7. Given the inconsistency in this evidence, I have decided that there is an insufficient basis on which to conclude that the applicant had a particular disposition that would render it more likely that he engaged in the conduct alleged against him. 8. Senior Constable Kitchener and Leading Senior Constable Gill gave evidence that went directly to the reason the applicants approached Dock 2 and in particular, if he did so out of anger and a reaction to what Mr Adamski had said to him, or for the reasons he gave, namely to calm him down. Leading Senior Constable Gill stated that his perception was that the applicant was angry and that he had taken exception to what had been said to him by Mr Adamski: Ex R11 at [24]; p 10; p 14. He also stated in an interview with Inspector Preston that he could not recall the words exchanged between the applicant and Mr Adamski but that the applicant was "being baited": Ex R11 at p 11, question 21. 9. Senior Constable Kitchener gave evidence that Mr Adamski said something offensive to the applicant and that the applicant reacted to the comment. He explained his reasoning for that conclusion in his statement, that "immediately upon being verbally abused by Mr Adamski, Mr Moylan walked quickly around towards cell 2 from behind the custody counter, opened the cell door and engaged in a shouting match with Mr Adamski." Under cross-examination Senior Constable Kitchener indicated that he could not recall the words that were used at this time and that the applicant reacted in less than a minute, but he could not recall if it was "immediate". 10. Senior Constable Kitchener also gave evidence that the applicant should not have opened the Dock Door. He stated that he, and Leading Senior Constable Gill, had been able to hear Mr Adamski through the cell door all night, although he conceded that it is "slightly" more difficult to communicate with the door closed: Ex R2 at [17]-[18], Tcpt, 10 November 2020, p 135 (4). 11. Taken together, I have found the accounts of Senior Constable Kitchener and Leading Senior Constable Gill's observations and perceptions of the applicant's decision to approach Dock 2 to be relatively consistent and supported by the CCTV Footage, including the manner in which the applicant approached Dock 2. Their evidence supports the conclusion that the applicant did not approach Dock 2 to calm down Mr Adamski, but as a reaction to comments made towards him and out of anger. In this regard, I note that Leading Senior Constable Gill was not required for cross-examination and that he had a positive relationship with the applicant. 12. Also consistent with the CCTV Footage, Leading Senior Constable Gill gave evidence that he did not perceive that he had to intervene or render assistance to the applicant during the incident and at no time did he see Mr Adamski with his fists up or any indication that he was going to assault the applicant or try to escape police custody. He stated that he did not think the actions of the applicant were appropriate but that he did not believe they constituted an assault at the time, but rather, "he would have to justify his actions. Absolutely, that he would have to justify his actions": Ex R11 at p 14 question 39. This evidence was given in the context of Leading Senior Constable Gill being disciplined for not reporting the incident. 13. Senior Constable Kitchener also expressed the opinion that what happened was "wrong" and that the applicant's actions were "inappropriate" and that he had shared views to that effect to Leading Senior Constable Gill. 14. It is appropriate to take into account the views of Leading Senior Constable Gill and Senior Constable Kitchener in that they, too, are Police Officers with relevant experience and their reactions to the incident and what they observed and perceived is probative as to whether the applicant's version of events, including his perception of the situation, should be accepted. 15. Senior Constable A gave evidence that the applicant stated to her words to the effect, "I shouldn't have gone in there" when he left the Custody Room and returned to the Front Desk area. Even if these words were spoken by the applicant, it is not clear how this evidence is probative to any fact in issue in the proceedings, given the applicant admits that he did the wrong thing when he decided to open the Dock Door. 16. Also relevant to the question of whether the applicant felt threatened and acted in self-defence, Detective Inspector Winkler gave evidence that if that was the case, he would have taken one of a number of available steps to record the incident in official police records, or informed a supervisor: [30] of Ex R9. It is not believable that the applicant would not have taken one of those steps if his account of the event was truthful. 17. The applicant's evidence in chief was that he was executing a "check drill", a defensive measure taught to Police Officers to create distance between themselves and another person posing a threat. Detective Inspector Winkler gave evidence of the "check drill" technique and the circumstances under which it is used. Ultimately, the applicant agreed that he was not deploying a check drill as demonstrated or approved in the NSWPF training manual. I reject the evidence that the applicant was using any defensive technique condoned or taught by the NSWPF during the incident. 18. The respondent led evidence from Senior Constable Kitchener that when leaving the Custody Room, the applicant stated to Mr Adamski, words to the effect of, "Do you want me to get a female police officer in here so you can bash her?" Under cross-examination, Senior Constable Kitchener confirmed that he had given evidence of words to that effect being spoken by the applicant, but it is unclear whether he still recalled this independently from the making of his statement: Tcpt, 10 November 2020 p 330 (35). Constable Sutcliffe gave evidence that he heard a very similar statement being made by the applicant. He gave evidence that the applicant said words to the effect, "I have a couple of females at the front counter if you want to hit them" and maintained that this was truthful evidence in his statement and under cross-examination. Senior Constable Harrison gave evidence that he heard the applicant state words to the effect, "There's a female police officer just next door if you want to come and break her jaw too." 19. I am persuaded by the evidence that the applicant did state words to the effect suggested by the respondent's witnesses. Even though I have reservations about the reliability of the evidence of Senior Constable Harrison, given his frank concession that his memory had been impacted by viewing the CCT Footage, it is inherently unlikely that three Police Officers would give evidence so specific and similar if it was not a reflection of what happened. The truthfulness of their accounts is supported by the corroboration of each other's evidence and the fact that there was, indeed, a female officer on the front desk that evening, Senior Constable A. I also note that beyond not having an obvious motivation to invent the evidence, Constable Sutcliffe gave a positive account of his relationship with the applicant. 20. Overall, the respondent's witness evidence reaffirms the impression conveyed by the CCTV Footage that the applicant was not acting in self-defence and if he was, he acted unreasonably. Although Mr Adamski was being difficult and provocative, the applicant's conduct in entering the Dock and then the actions he took in making physical contact with him were unnecessary, and dangerous. The applicant demonstrated a lack of accountability for the actions he took after he opened the Dock Door, demonstrating he does not appreciate the responsibilities he held as a Police Officer to provide a safe environment for persons in custody and his work colleagues. Allegation 2 1. Allegation 2 was that the applicant was untruthful, or at the very least less than fully frank, in the evidence that he gave in the Local Court proceedings, when he stated he: 1. initially opened the door to dock number 2, being the dock that Mr Adamski was located in, "as a matter of courtesy" and to try and calm Mr Adamski down, rather than due to the applicant being annoyed and/or insulted by Mr Adamski's comments; and 2. became fearful that Mr Adamski was going to assault him. 1. In respect of Allegation 2, the respondent found that, in light of Allegation 1 being established, the applicant was untruthful, or less than fully frank, when giving evidence in the Local Court proceedings on 12 July 2016. The respondent indicated that he was "disappointed" that the applicant failed to demonstrate the minimum standards of candour expected of a Police Officer, even when there may be repercussions. Further, he considered that members of the public were entitled to expect the highest standards of conduct and integrity of Police Officers when giving evidence. The respondent said that he would have difficulty in continuing to have confidence in the applicant's conduct and integrity if the applicant was called upon to perform policing duties in the future, including in the context of giving evidence in other unrelated court proceedings. 2. The applicant's evidence in the Local Court that is relied upon by the respondent for the first aspect of Allegation 2 is that (Ex R1 p 332 T258.45): "… At that stage [Mr Adamski] was yelling obscenities and complaining, I think, basically about how long he'd been in custody. I looked up briefly and said, "Shut up", to him and went back to reading through the facts of the charge; the narrative. He took no notice of me and continued to yell and scream. So at that point I thought I don't want to engage in a shouting match with this man, as a matter of courtesy I'll open the door of the dock and actually talk to him and try and calm him down. In my experience that approach has worked in the past, a bit of humanity." 1. The second aspect of Allegation 2 is that the applicant was untruthful, or at the very least less than fully frank regarding his evidence that he became fearful that Mr Adamski was going to assault him. The applicant's evidence in the Local Court that is relied upon by the respondent for the second aspect of Allegation 2 is set out on page 21 of the Reasons but is more fully in evidence at Ex R1 at p 333. 2. A finding of untruthfulness, or of being less than fully frank, is a serious finding and different to a finding that certain evidence cannot be accepted: see Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 268 and 271 and O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204. 3. As the Full Bench (Boland J President; Walton J Vice-President; Staff J) in Toshack v Commissioner of Police [2009] NSWIRComm 31 emphasised, the application of the substance of the Briginshaw standard is important, stating (at [36]): "We consider that the Briginshaw standard should have been applied in relation to what the letter revealed about the appellant's intentions. And had it been, it would inevitably have led to the conclusion that the contents of the letter constituted only inexact proof or an indirect inference that fell short of what was required to establish that the appellant deliberately set out to deceive his superiors." 1. With respect to Allegation 2, the applicant referred the Commission to the reasoning of Judge Arnott SC where he analysed and rejected the Magistrate's reasons for finding that the applicant did not make a favourable impression upon her; starting off with her finding that "It is not difficult therefore to reject Mr Moylan's contention that he didn't want to engage in a shouting match" (Ex R1, Tab 30, T12.40 – T13.15): "… Next, her Honour found no meaningful reason for the appellant to have opened the cell door in the first place and rejected his explanation that he simply wanted to talk to [Mr Adamski] to calm him down and that he told him the sooner he quietened down the sooner he would be out of there. She considered the appellant was motivated by an aggressive reaction to being insulted. I share her Honour's view that the appellant reacted quickly and aggressively to being insulted by [Adamski] and not calmly, but this does not necessarily mean that the appellant did not tell [Adamski] that the sooner he quietened down the sooner he would be out of there, nor necessarily colour or reveal his true later intentions. Her Honour took into account the fact that the two other officers present in the room with the appellant did not hear [Adamski] threaten the appellant with the words, "I'll fucking have you" and her Honour being unable as she said, upon viewing the CCTV footage, to see "mouth or facial movements from [Adamski] that reflected such words being spoken nor do any of his body movements appear threatening or intimidating." It is important to bear in mind, however, that Constable Kitchener did not say [Adamski] did not say these words. He said there was much yelling and he could not recall what was said. I consider the CCTV footage is not clear enough to be able to safely draw any conclusion about mouth or facial movements." 1. The applicant further submitted that the Court's finding that Mr Adamski said, "I'll fucking have you", is highly relevant to the applicant's subjective belief and a finding that he was being untruthful, or less than fully frank about his fear. 2. For the reasons I have set out above, I am of the view that the evidence is convincing that the applicant was untruthful, or at the very least not fully frank that he approached the Dock as a courtesy and to calm Mr Adamski down, and not because he was annoyed or insulted by his comments. Even accepting the applicant's evidence that he told Mr Adamski that "the sooner he quietened down the sooner he would be out of there", the manner in which he approached the Dock after telling him to "shut up" is entirely inconsistent with approaching Mr Adamski as a courtesy and to calm him down. Beyond preferring the evidentiary case of one party over another, I am of the view that there is a proper and appropriate basis upon which to find that the applicant was not truthful, or at the very least not fully frank, when he gave his evidence about his motivation and intention in approaching the Dock in the Local Court. 3. I am also convincingly persuaded that the applicant was untruthful, or at the very least, not fully frank when he gave evidence that he was afraid of Mr Adamski. I have taken into account, and accepted, that on balance Mr Adamski did state "I'll fucking have you", but I am of the view that an objective analysis of the relative circumstances of the applicant to Mr Adamski does not support the contention that he was, subjectively, afraid of the applicant during the encounter. Allegation 3 1. Allegation 3 was that the applicant placed himself in a position of danger by opening the door to Mr Adamski's dock. As a result of his actions, he exposed himself and his colleagues to an unnecessary risk of harm. This aspect of the respondent's case was admitted by the applicant. 2. In respect of Allegation 3, the respondent states that he was "alarmed" by the applicant's disregard for his obligations under the WHS Act to take reasonable care for the health and safety of himself and his colleagues. The respondent determined that the applicant's conduct had the real potential to place the applicant, and other Police Officers, at an unnecessary risk of harm had Mr Adamski overpowered the applicant and escaped the Dock. 3. Although the applicant admitted Allegation 3, he relied upon [148] of Ex A1 (as set out above) to contextualise his conduct as set out above. Was the removal order harsh, unreasonable, or unjust? 1. The Reasons set out the applicant's responses to the three allegations at length, additional information about his childhood, education, family, employment prior to the NSWPF, medical history, the financial impact of the suspension, both with and without pay, character references and the applicant's submissions that the removal would not only be disproportionate to the gravity of the conduct, but also harsh because of the consequences both personally and financially. The respondent noted he was required to weigh this impact against the respondent's obligation to preserve the integrity of the NSWPF and maintain public confidence in Police Officers. The respondent also sets out the applicant's disciplinary history in the Reasons. 2. Irrespective of the findings of the Commission regarding the applicant's conduct, consideration must still be given to whether the removal of the applicant was justified in the circumstances. The Commission is required to consider, in addition to other matters, the interests of the applicant and the public interest, which is taken to include the interest of maintaining the integrity of the NSWPF, and the fact that the respondent made the Order. 3. Having considered the allegations against the applicant, I have decided that the removal is not unjust or unreasonable as I am satisfied that the applicant has engaged in the conduct alleged to the Briginshaw standard. There remains open the issue of whether the decision was harsh. 4. The applicant is aged in his mid-forties, having joined the NSWPF in 2004 at the age of 29. In 2009, he was appointed as a Senior Constable. In 2010, the applicant was promoted to the rank of "Acting Sergeant" in the role of Region Events Coordinator in South West Metropolitan Region, acting in this role for about 3 years: Exhibit A1 at [72]. In 2014, he was appointed as a Leading Senior Constable. 5. The applicant had completed about 10 years of service at the time of the incident. He was suspended from duties for the first time on 27 July 2015. This is a relatively long period of service weighing in the applicant's favour, although this needs to be considered in the context of his overall service history. 6. The applicant had received some accolades of his work in the NSWPF including being awarded a Local Area Commander's Certificate of Merit in 2007. He also received a Local Area Command Award for Police Officer of the Month in 2008. 7. The applicant does not have a good disciplinary history within the NSWPF. He had been subject to counselling on five occasions, a Warning Notice from his Local Area Commander (Superintendent) on one occasion and on another occasion, received a Region Commander's Warning Notice (Assistant Commissioner) and was subject to a 12-month conduct management plan. The misconduct related to both an improper arrest and use of force, failing to comply with policies and off duty related alcohol use. 8. It was evident that the applicant had been personally impacted by his removal. The applicant socialised outside of work with his work colleagues. The removal of the applicant will have a significant impact upon him and his family from a financial, social and mental health perspective. He is devastated by his removal. 9. A significant passage of time elapsed from the time of the incident to the respondent's decision to remove him from the NSWPF. The respondent's decision to remove the applicant occurred over 2 years after the appeal was determined in the applicant's favour. The applicant submitted that this uncertainty had the effect of putting his life on hold, impacting on his, and his wife's decision to have children and placing his marriage under strain: Ex A3 at [25]; A1 at [200]. I agree the delay in finalising all matters relating to the incident was unfortunate and this has had a compounding impact on the applicant. 10. The applicant submitted that he has limited options for re-employment outside of the NSWPF and does not possess the knowledge or skills to go back to his mechanical engineering trade, which he last practised in 2003: Ex A1 at [202]. The applicant gave evidence of receiving some paid work as a contract handyman, although he expressed some concerns about the sustainability of this arrangement in view of some hip pain he had experienced. His financial circumstances have also been impacted by the need to fund the criminal proceeding relating to the incident. 11. The applicant gave evidence that he expects he and his wife will have to sell their home due to an inability to keep up his mortgage: Ex A1 at [205]. The applicant gave evidence of a desire to assist his and his wife's elderly parents. In particular, the applicant's father-in law is reliant upon he and his wife to drive him to medical appointments and this may not be possible if they were required to move to a different suburb. At the time he gave his evidence, the applicant and his wife had two properties with a total mortgage of $780,000. The Commission has no evidence of the value of those properties. The applicant gave evidence that since his suspension in 2015 until he was removed from the Police Force, he lost approximately $104,000, with losses continuing. 12. I agree the applicant may find it difficult in the short term to find alternative employment, but with the certainty of the outcome of these proceedings, he should be able to recover and find an alternative career path, given he still has a significant work life ahead of him and the skills he has acquired from the Police Force are transferable into other areas and industries. 13. I am satisfied on the evidence that the applicant is contrite and remorseful for having opened the Dock Door on the night in question and I do not believe that he would make the same error of judgement again. The applicant acknowledged the seriousness of his actions and that this ultimately resulted in Mr Adamski sustaining an injury that could otherwise have been avoided. 14. The applicant has not accepted wrongdoing with respect to the actions he took after he opened the Dock Door and he did not concede that he could have dealt with the situation with less force, or differently. This leaves open the question of the applicant's capacity to act appropriately and proportionately when conducting Policing Duties in the future. Furthermore, the applicant has made no concessions about the frankness, or truthfulness, of the evidence he gave in the Local Court about the incident. 15. As discussed above at [82]-[84], there was inconsistent evidence before the Commission with respect to the applicant's character. I acknowledge he had good personal relationships with some of his peers who held him in very high regard as a person and a Police Officer. Sergeant Morton, who directly supervised the applicant for 14 months gave evidence that he found the applicant to be a respected member of the team, who junior staff would turn to for advice and guidance. He took pride in the fact that junior staff sought him out for advice and his temperament never wavered from total commitment to assisting them, regardless of his workload. He gave evidence that the applicant was a valuable member of the Police Force: see Ex A4. This evidence was given in the knowledge of the conduct alleged against the applicant, although he admitted his knowledge of the CCTV Footage was poor, but his knowledge of the applicant was not. Under cross-examination, Sergeant Morton made a point that in 30 years of policing, he has only ever given one reference, and that was for the applicant. 16. The Commission is required to take into account the public interest in determining these proceedings. 17. It is essential that a Police Officer act with integrity, both on and off duty. The Commissioner's reasons for making the Order may include questions of personal integrity (as is the case here). 18. The applicant's misconduct in opening the Dock Door in the circumstances and then applying an unreasonable use of force to Mr Adamski are, alone, a sufficient basis of his removal. While it must be acknowledged that the applicant was provoked by Mr Adamski, as an experienced and respected Police Officer, the applicant's conduct was serious and inexcusable. 19. The Commission's findings that the applicant was not truthful, or at the very least not fully frank, when giving evidence in the Local Court are particularly grave and support the conclusion that the applicant has not acted with integrity, contrary to his statutory duty to place integrity above all: Police Act, s 7(a). The applicant's lack of integrity and honesty demonstrated by the evidence he gave in the Local Court and repeated in these proceedings is irreconcilable with the applicant being reinstated to the NSWPF. 20. In his role as a Police Officer, the applicant would be entrusted to give truthful evidence on a regular basis before the Courts. It is also reasonable for the public to expect that they can trust Police Officers to act with integrity, without exception. 21. In Lees v Commissioner of Police [2019] NSWIRComm 1045, Kite CC, after concluding the applicant was untruthful, evasive and lacked candour, concluded as follows (at [163]): "The Applicant's dishonesty and lack of candour, persisting as it did, provides ample justification for the respondent's decision to remove him from the Police Force. That is reinforced by the applicant's willingness to place his personal interests above those of the Force." 1. The Commission is also required to consider institutional integrity, namely "the interest of maintaining the integrity of the NSW Police Force". This should be understood as including any issues of integrity that arise with respect to the order for removal of the particular officer: Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458, Spigelman CJ (Macfarlan and Young JJA agreed) at 469 [72]. Furthermore, as observed 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." 1. The applicant submitted that there is a public interest in maintaining the employment of members of the Police Force such as the applicant, who have been trained over many years at a significant cost to the public purse. Whilst I accept this is the case, this is significantly outweighed by the other public interest factors relevant in these proceedings. Conclusion 1. In weighing the arguments regarding harshness against the seriousness of the proven misconduct, the applicant's interests and the public interest, I am disinclined to set the Order aside. In forming this view, I have considered the applicant's case for reinstatement carefully, including the great personal impact this will have upon him, his length of service and his contrition for opening the Dock Door. However, the applicant's lack of candour with respect to the incident before the Local Court, his lack of judgement in opening the Dock Door and unreasonable use of force are of great concern. In these circumstances, the applicant has not demonstrated that he has the necessary quality of integrity that is required of a Police Officer. 2. The sustained allegations involve serious misconduct. There is a public interest in ensuring the safety of persons in custody and in the maintenance of a Police Force where the public can have confidence that Police Officers will exercise their powers proportionately. These requirements also outweigh the interests of the applicant in being reinstated. The applicant has not shown that the decision to remove him was harsh, unreasonable, or unjust. Orders 1. The application is dismissed. Janine Webster Commissioner ********** 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: 22 December 2021