Hanna v Commissioner of Police, NSW Police Force [2024] NSWIRComm 1058

Industrial Relations Commission New South Wales Medium Neutral Citation: Hanna v Commissioner of Police, NSW Police Force [2024] NSWIRComm 1058 Hearing dates: 29, 30, 31 August and 8 December 2023, final submissions 20 December 2023 Date of orders: 26 September 2024 Decision date: 26 September 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: (1) The applicant's removal under s 181D(1) of the Police Act 1990 was unjust and unreasonable; (2) The applicant is reinstated to the NSW Police Force; (3) The Commission orders that the period of employment of the applicant with the employer shall be taken not to have been broken by the removal. The intervening period between removal and reinstatement of the applicant shall be counted for all purposes as a period of employment; and (4) If the payment of income protection insurance to the applicant had ceased before the date of these orders, the applicant has liberty to have the matter restored to the list within 14 days of the date of these orders. Catchwords: POLICE – removal of police officer – s. 181D Police Act 1990 – application for review of order of Commissioner of Police – alleged possession of child abuse material in four videos – applicant claimed he was not in possession of three videos – applicant also claimed one video he possessed was not child abuse material – application of criminal judgements in the Industrial Commission – applicant did not possess three videos – material applicant possessed not child abuse material – removal was unjust and unreasonable –consideration of whether reinstatement practicable – applicant reinstated with no compensation. Legislation Cited: Criminal Code 1995 (Cth) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Industrial Relations Act 1996 (NSW) Police Act 1990 (NSW) Cases Cited: Allison (a pseudonym) v R [2021] VSCA 308 Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 Budlong v NCR Australia Pty Limited Pty Ltd [2006] NSWIRComm 288 Commissioner of Police and Wayne Edward Collins [2008] NSWIRComm 162 Commissioner of Police v Ross [2012] NSWIRComm 17 Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492 Dumas v Industrial Relations Secretary (obh of Dept of Communities and Justice) [2029] NSWIRComm 1071 Hanna v Director of Public Prosecutions [2022] NSWDC 491 Hansen v Secretary of the Department of Transport [2016] NSWIRComm 1011 He Kaw Teh v R (1985) 157 CLR 523 Konopka v Commissioner of Police (No 2) [2018] NSWIRComm 1001 Morris v Commissioner of Police [2016] NSWIRComm 1034 Moylan v Commissioner of Police [2021] NSWIRComm 1095 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Nicolson v Heaven & Earth Gallery Pty Limited (1994) 1 IRCR 199 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 R v Fagundez (No 2) [2023] NSWDC 526 Ross and Commissioner of NSW Police [2011] NSWIRComm 92 Saller & Danell [2017] FamCA 161 Toshack v Commissioner of Police (2009) 181 IR 420 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Texts Cited: NIL Category: Principal judgment Parties: Peter Guirguis Hanna (applicant)