Industrial Relations Commission New South Wales Medium Neutral Citation: Herring v Commissioner of Police, New South Wales Police Force [2024] NSWIRComm 23 Hearing dates: 22, 23 and 24 October 2024 Date of orders: 19 December 2024 Decision date: 19 December 2024 Jurisdiction: Industrial Relations Commission Before: Paingakulam J, Deputy President Decision: Application dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Police — Application under s 181E Police Act 1990 (NSW) for review of removal order — Allegations of misconduct — Public interest —Application dismissed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Industrial Relations Act 1996 (NSW) Police Act 1990 (NSW) Police Regulation 2015 (NSW) Cases Cited: Baker v Commissioner of Police [2015] NSWIRComm 14 Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 Hessenberger v Commissioner of Police [2009] NSWIRComm 89 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 Lambert v Commissioner of Police [2022] NSWIRComm 1078 Lawrance v Commissioner of Police (2010) 199 IR 139; [2010] NSWIRComm 149 Storey v Commissioner of the New South Wales Police Force (No 2) [2020] NSWSC 142 Stuart Boyd Formston v New South Wales Police [2006] NSWIRComm 88 Toshack v Commissioner of Police [2008] NSWIRComm 150 Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 Vizzone v Commissioner of Police [2020] NSWIRComm 1034 Category: Principal judgment Parties: Andrew Herring (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Counsel: D Nagle (Applicant) M Watts (Respondent) Solicitors: Nikolovski Lawyers (Applicant) Kingston Reid (Respondent) File Number(s): 2024/61385 Publication restriction: Pursuant to s 164A of the Industrial Relations Act 1996 (NSW), there shall be no publication of the names and other identifying details of the two members of the public who were identified during the proceedings, in reports of the proceedings or reports of this decision. DECISION 1. On 5 February 2024, Andrew Herring (the applicant) was removed from the New South Wales Police Force pursuant to an order made by the Commissioner of Police (Police Commissioner) under s 181D(1) of the Police Act 1990 (NSW) (Police Act) (Order). At the time of dismissal, he was employed as a Senior Constable Level 4 Step 2 at the Lake Illawarra Local Area Command. 2. On 16 February 2024, the applicant filed with the Industrial Registrar an application seeking a review of the Order pursuant to s 181E(1) of the Police Act (Application). The Application contends that the Order was harsh, unreasonable and unjust. The applicant seeks an order reinstating him to the NSW Police Force with continuity of employment. He also seeks backpay to the date of his termination but does not press that claim in the event that the Commission has reservations about his conduct. 3. The Police Commissioner opposes the Application. She seeks an order that the Application be dismissed. Determination 1. I have determined to dismiss the Application. My reasons follow. Process culminating in the Order 1. In a document dated 11 September 2023 and served on the applicant on 19 September 2023, the Police Commissioner gave the applicant notice that she was considering his suitability to continue as a police officer, taking into account his integrity, conduct and performance (Notice). The Notice was stated to have been issued pursuant to s 181D(3)(a) of the Police Act. 2. It is not necessary to explore the Notice in detail. The Notice informed the applicant of 12 allegations against him, and the bases on which those allegations were said to arise. Ten of those allegations arose as a consequence of the applicant's investigation of two unrelated domestic violence complaints. The remaining two allegations arose from events at a team Christmas party. The Notice stated that the Police Commissioner was considering making an order for the applicant's removal from the NSW Police Force under s 181D of the Police Act. The Notice advised the applicant that he had 21 days from the date of service of the Notice to make written submissions in relation to the proposed action if he wished to do so. The Notice was accompanied by supporting documentation which the Police Commissioner stated she had considered before issuing the Notice. That material was in evidence before me as part of Exhibit A. However, it was made clear by the applicant that the material was tendered for the limited purpose of providing the Commission with a copy of the material served upon him. 3. On 31 October 2023, the applicant submitted a written response to the Notice (Response), which extended to 22 pages. Again, it is not necessary to traverse the details of the Response. The applicant admitted in part the conduct alleged against him, but provided what he believed were reasonable explanations for it and submitted that he should be "afforded counselling and remedial training and education" if he were found to lack the skills and training to deal with a domestic violence matter. He contended that the 12 separate allegations, considered as a cumulative set of issues, did not justify his dismissal from the NSW Police Force. 4. The Police Commissioner made the Order on 5 February 2024. The Order had the effect of removing the applicant from the NSW Police Force on that day. Annexed to the Order was a document titled "Statement of Reasons", which was signed by the Police Commissioner on the same day. Legal principles applying on review 1. Part 9 of the Police Act is titled "Management of conduct within NSW Police Force". For the purposes of these proceedings, this Part relevantly includes the following provisions: Division 1B Summary removal of police officers in whom Commissioner does not have confidence 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. … (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. … Division 1C Review of Commissioner's decision under Division 1B 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. … 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)). 1. The terms of Part 9 Divisions 1B and 1C of the Police Act were the subject of consideration in Commissioner of Police, New South Wales Police Force v Zisopoulos (2020) 299 IR 314; [2020] NSWCA 236 (Zisopoulos). In that case, Bell P (as his Honour then was), with whom Macfarlan JA agreed, observed: "82 The central issue will always be whether or not the decision to remove the officer was 'harsh, unreasonable or unjust'. These concepts overlap but are not synonymous. The three criteria may be established in various ways or by different means. And they are alternatives. So much is illustrated in the following well known passage taken from the joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; [1995] HCA 24: 'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.' 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. 84 Depending upon the basis of the Police Commissioner's decision, as the Full Bench said at [27] citing Starr, the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust may be satisfied in a given case by casting sufficient doubt on the Police Commissioner's reasoning process so as to justify the IRC's intervention. But it is important always to remember that 'sufficient doubt' is not 'any doubt', and the raising of a doubt, sufficient or otherwise, does not in any way 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. So also, the mere 'going into evidence' by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that a removal was harsh, unreasonable or unjust nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner's original decision and of the strength of the evidence led by the removed officer and or the credibility of the alternative hypothesis. 85 If what the Full Bench in the present case referred to as 'sufficient doubt' is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust." 1. I have also had regard to the observations of Wright J in Storey v Commissioner of the New South Wales Police Force (No 2) [2020] NSWSC 1429 at [125]–[128]. I will not reproduce those passages. 2. As Bell P observed in Zisopoulos at [83], the Commission's review "is not 'de novo' but … is closer to a merits review than judicial review". This is reflected in the observations of the Full Bench of the Commission in Court Session in Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253 at [134]: "The correct approach is that the Commission is to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted. Further, that review process is to be undertaken in accordance with the provisions of s 181F(1) of the Police Act…". 1. As to the onus borne by an applicant in proceedings under s 181E, in Tredinnick v Commissioner of Police [2016] NSWIRComm 14, the Full Bench observed: "55 … That burden falls to an applicant for review under s 181E although a closer alignment with the provisions of Divs 1B and 1C of the Act would have that conclusion expressed thus: the burden falling upon an applicant is to establish the removal was harsh, unreasonable or unjust. In the case of an applicant contending that a removal was unjust because the applicant did not engage in some or any of the 'misconduct' or infringements to the officer's duties and responsibilities (of the kind referred to under s 181D(1)), the burden falls upon the officer to prove that he is not guilty of misconduct (or 'conduct') in that respect. This may mean the provision of proof there is no basis in fact from the allegations or that the allegations involve a misunderstanding or a misapprehension of the facts." 1. The Full Bench went on to observe at [61] that an applicant "may satisfy the burden imposed by s 181F(2) if he or she satisfies the Commission that the reasons for removal provided by the respondent are flawed or defective either in a procedural or substantive sense". The Police Commissioner's reasons for removal – s 181F(1)(a) 1. The Police Commissioner's reasons for removing the applicant from the NSW Police Force were set out over 26 pages in the Statement of Reasons. The applicant's dismissal was based on 12 allegations arising from three separate incidents which occurred between 25 September 2022 and 27 November 2022. Briefly, the Police Commissioner contends that the applicant failed to properly investigate two unrelated allegations of domestic violence, engaged in sexual harassment of fellow officers at a Christmas party, and was dishonest or at least disingenuous when interviewed about each of those matters. 2. The Police Commissioner considered these allegations in the context of the applicant's disciplinary history. Briefly, that is as follows: * On 27 November 2019, the applicant was issued with a Commander's Warning Notice for failing to activate his Body Worn Video (BWV) in contravention of the Body Worn Video Standard Operating Procedures (BWV SOPs). He was placed on a six month conduct plan which commenced on 27 November 2019 and concluded on 13 July 2020. * On 8 October 2021, the applicant was the subject of an Interim Risk Management Plan which included an express requirement that he comply with the BWV SOPs and the Domestic and Family Violence Standard Operating Procedures 2018 (DV SOPs) by thoroughly investigating all domestic violence incidents as well as record the same. * On 26 October 2021, the applicant was provided with counselling/advice and guidance following a complaint that he failed to record an incident on the Computerised Operational Policing System (COPS). * On 3 February 2022, the applicant was issued with a Commander's Warning Notice when he failed to create a COPS Event in relation to a complaint of alleged domestic violence offences. The applicant's explanation was that the complainant became upset and left the station in response to his probing questions to establish whether an offence had occurred, and that he could not create a COPS Event without any personal information, which he could not require to be provided as the complainant left the station of his own accord. He was placed on a three-month Conduct Management Plan which ended on 11 August 2022. 1. Each of the Commander's Warning Notices stated that any future unsatisfactory conduct could lead to the applicant's removal from the NSW Police Force. Failure to Adequately Investigate Domestic Violence Allegations (September 2022 Incident) 1. On 25 September 2022, Complainant A attended the Lake Illawarra Police Station alleging that her ex-partner had breached an Apprehended Domestic Violence Order (ADVO). 2. The applicant and Probationary Constable Tyrone Sibraa conducted a Domestic Violence Evidence in Chief (DVEC) with Complainant A. In it, Complainant A alleged that her ex-partner had taken intimate photographs and videos of her without her knowledge or consent and had been distributing these images online, including posting advertisements depicting her to be a sex worker alongside her home address. She showed the applicant and Probationary Constable Sibraa a Microsoft Word document containing screenshots of messages and pictures that she said her ex-partner had sent to her. These screenshots included an intimate video captioned with her home address, intimate videos posted on Instagram, and advertisements posted on an online classified advertising website including images of her vagina, backside and her full body engaged in sexual acts, all taken without her consent. 3. The DVEC interview records the applicant asking Complainant A detailed questions about the intimate images and videos, including about the hotel in which they had been taken, why she and her former partner had been at that hotel and even who paid for it. The applicant asked Complainant A to explain how she was not aware of her former partner taking the photographs and exactly what parts of her body they depicted. Complainant A was unable to play any videos because she did not have an internet connection. Complainant A confirmed that her ex-partner had not sent her the entire video posted online. The applicant then said to her: "So the only thing you have received from him today is a screenshot of what appears to be something that may have been uploaded. Correct?" 1. As a result of her inability to play the video due to the absence of an internet connection, Complainant A offered to email the Microsoft Word document containing the screenshots of the alleged breaches to the applicant. However, the applicant did not, at that point, offer an email address to which the document could be sent. 2. It is not in dispute that, approximately 10 minutes after the DVEC concluded, Complainant A abruptly left the interview room and the police station. She did so after the applicant asked her whether she had considered changing her telephone number and deleting her social media accounts to prevent her ex-partner from contacting her. A Domestic Violence Safety Assessment Tool (DVSAT) was not performed. 3. The applicant then created a COPS Event in which he recorded an incident of Actual Breach of ADVO. In the narrative section, he detailed approximately 38 messages sent to Complainant A by her ex-partner. However, he made no reference to Complainant A's allegation regarding intimate images of her both taken and posted on the internet by her former partner without her consent. The COPS Event recorded that Complainant A left the police station before the DVSAT questions could be asked. 4. On 4 October 2022, Sergeant Andrew Birch spoke to Complainant A, who reported that the applicant had not contacted her since she attended the station on 25 September 2022. Complainant A's ex-partner was eventually charged with multiple domestic violence offences. None of the breaches reported to the applicant on 25 September 2022 were included in the charges. 5. On 13 October 2022, the applicant provided a response to a directive memorandum regarding this incident. On 11 April 2023, he attended a directed interview. The Statement of Reasons summarised the information provided by the applicant on both occasions as follows: "On 13 October 2022, you provided a response to a directive memorandum in which you said, inter alia: • 'The Victim showed us a couple of photographs which she claimed were to be "intimate". Of the two intimate images I was shown, I asked the Victim to explain to me what I was looking at, as I found it very difficult to workout [sic] what part of her body was being shown in the small pictures. No genitalia or breasts were displayed in the pictures.' • 'I also explained to the Victim that even though she has provided us with this evidence, Police would still need to speak with the Accused and offer him the opportunity to provide his version of the events. Police would also look to collect further evidence to prove the offences beyond a reasonable doubt. I explained that, although we believe the Accused was the person posting/sending these messages/images further evidence would still need to be gathered to mitigate any doubt that could be raised by the defence.' • 'I listened to her version, asked appropriate questions to the investigation and created the correct recordings of the incident on the COPS system as per the Domestic Violence Standard Operating Procedures.' • 'It was clear from the outset the Victim was never going to be satisfied with the actions of Police. I found the Victim to be quite rude and abrupt anytime we were asking clarifying or probing questions.' On 11 April 2023, you attended a directed interview with A/Inspector Danielle Bastin. During this interview, you: • indicated the reason you did not include information about the intimate images being taken and distributed without [Complainant A's] consent on the COPS record was that you had not finished your investigation and/or narrative. • said that after you created the COPS event, the matter was taken over by the DV arrest team. You said your investigation was still ongoing at the time the offender was charged. From the point the DV team charged [Complainant A's ex-partner], you were under the impression the DV team had carriage of it. • said the reason you had only completed half the narrative was because you had other jobs to attend and respond to that shift. You said that [Complainant A] told you during the DVEC that she would email you evidence relating to her accusations and never did so. You said you had no evidence to support her claims. When questioned further, you said 'Besides the DVEC, I had no other evidence to support her claims'. • admitted you had not undertaken any steps to contact [Complainant A] since 25 September 2022. You said the reason you had not contacted her was because you learned she had made a complaint about you and you wanted to prevent any further allegations being made. Further, you understood [Complainant A's ex-partner] had been extradited and charged and you presumed, in those circumstances, that she had been contacted by other police. • accepted that as at 11 April 2023, you were still recorded on COPS as the officer in charge for H90665012." 1. The Statement of Reasons recorded the following allegations in respect of this incident: "Allegation 1 There appear to be grounds on which I could conclude that you failed to investigate, or, at the very least, you conducted an inadequate investigation into, allegations reported to you on 25 September 2022 that an offender had taken intimate photographs of a person without their consent and distributed them without that person's consent. Furthermore, there appear to be grounds on which I could conclude that you failed to conduct any follow up with the victim. … Allegation 2 There appear to be grounds on which I could conclude, that on 25 October 2022, you failed to apply the DVSAT to a domestic and family violence incident. … Allegation 3 There appear to be grounds on which I could conclude, that on 25 September 2022, you failed to create a COPS entry of allegations reported to you of intimate images being taken and distributed without a victim's consent. … Allegation 4 There appear to be grounds on which I could conclude, that you created a false, or at the very least misleading, official record. In particular, that the narrative you included in COPS Event E90922948 that indicated [Complainant A] left the Station before police could ask her the DVSAT questions was false, or at the very least misleading. … Allegation 5 There appear to be grounds on which I could conclude that you were dishonest, or at the least disingenuous, in your response to the directive memorandum on 13 October 2022 and during the interview on 11 April 2023. In particular, there appear to be grounds on which I could conclude that the responses you gave that were to the effect that: • the reason you omitted any detail about the taking and sharing intimate images without consent in the narrative in the Event E90922948 was because you had other jobs to attend to and respond to that shift; • you had no evidence to support [Complainant A's] allegations regarding [her ex-partner] taking and sharing intimate images of her without her consent; • the reason you did not ask the DVSAT questions was because [Complainant A] left before you could pose them to her; and • that the entry 'Victim Did not answer Part-A DVSAT Questions' and the narrative 'Left before Police could ask' on Event E90922948 were accurate reflections of what occurred, were dishonest, or at the least disingenuous." … Allegation 1 1. The Statement of Reasons summarised the information concerning Allegation 1 provided by the applicant in the Response as follows: "Your Response to Allegation 1 In your response you: • state that the allegation should not be sustained • accept you met with [Complainant A] on one occasion, being the occasion that was recorded on [BWV] • state that [Complainant A] walked out following the footage that was record on [BWV] and claim that you did not have an opportunity to record further responses from her • state that [Complainant A] met with other officers on numerous other occasions • accept you created the [COPS] event but say that you had not completed your investigation • point out that you took 5 or 6 days of planned leave after that shift ended and say that during that absence, you believe the accused… was extradited from Queensland and charges were created • submit the investigation progressed without your further involvement and led to a successful conviction." 1. The Police Commissioner determined that there were reasonable grounds for her to conclude that the applicant conducted an inadequate investigation into allegations reported to him on 25 September 2022 that an offender had taken intimate photographs of a person without their consent and distributed them without that person's consent, and that he had failed to conduct any follow-up with the victim. The Police Commissioner found the applicant's conduct to be contrary to: 1. Section 7 of the Police Act; 2. Regulation 8 of the Police Regulation 2015 (Police Regulation); 3. The NSW Police Force Domestic and Family Violence Policy (NSWPF DV Policy); 4. The NSW Police Force DV SOPs; 5. The NSW Police Force Handbook; 6. Points 1–3 of the NSW Police Force Code of Conduct and Ethics (Code of Conduct); and 7. The Oath of Office. Allegation 2 1. The Statement of Reasons summarised the information concerning Allegation 2 provided by the applicant in the Response as follows: "Your Response to Allegation 2 In your Response, you: • maintain that the allegation should not be sustained • deny that you failed to apply the DVSAT • insist that [Complainant A] left the station following the interview and say that it was not possible to render any further assistance or apply the DVSAT • claim [Complainant A] did not wish to provide any further information at that time • say that [Complainant A] attended additional interviews with police officers after that point and the necessary information was obtained • point out that [Complainant A] alleged a series of breaches of an ADVO and the breaches disclosed to you were but one in the series • extract a section of the DV SOPs which points out that were a victim does not engage with the DVSAT process, the officer is to provide the victim with a Domestic Violence Referral card or a local victim support card and update this as an action within the event • state that despite your name appearing as the Officer-in Charge, it was not an accurate reflection of how the investigation progressed. You point out that specialist DV Officers were involved with [Complainant A] both before and after your interview and they progressed the matter to prosecution • state your belief that the reason [Complainant A] complained was due to the sensitive nature of the questions you asked her. You say you can understand that the topics were sensitive and potentially offensive, but you were only trying to do your job." 1. The Police Commissioner determined that there were reasonable grounds for her to conclude that, on 25 September 2022, the applicant failed to apply the DVSAT to a domestic and family violence incident. The Police Commissioner found the applicant's conduct to be contrary to: 1. Section 7 of the Police Act; 2. Regulation 8 of the Police Regulation; 3. The NSWPF DV Policy; 4. The NSW Police Force DV SOPs; 5. Points 1–3 of the Code of Conduct; and 6. The Oath of Office. Allegation 3 1. The Statement of Reasons summarised the information concerning Allegation 3 provided by the applicant in the Response as follows: "Your Response to Allegation 3 In your Response, you: • state the allegation should not be sustained • state you created further records on the COPS system being E90922948 which related [to] charge number H90665012 • state that all other relevant information was captured by Constable Sibraa on his BWV and his notebook." 1. The Police Commissioner determined that there were reasonable grounds for her to conclude that on 25 September 2022, the applicant failed to create a COPS entry of allegations reported to him of intimate images being taken and distributed without a victim's consent. The Police Commissioner found the applicant's conduct to be contrary to: 1. Section 7 of the Police Act; 2. Regulation 8 of the Police Regulation; 3. The NSWPF DV Policy; 4. The NSW Police Force DV SOPs; 5. Points 1–3 of the Code of Conduct; and 6. The Oath of Office. Allegation 4 1. The Statement of Reasons summarised the information concerning Allegation 4 provided by the applicant in the Response as follows: "Your Response to Allegation 4 In your Response, you: • state the allegation should not be sustained • say that [Complainant A] left the building shortly after the conclusion of your meeting • say that [Complainant A] provided numerous subsequent records to police and you are unaware of what other DVSATs had been completed either before or after your encounter with her." 1. The Police Commissioner determined that there were reasonable grounds for her to conclude that the applicant created a false, or at the very least misleading, official record. In particular, the Police Commissioner was satisfied that there were grounds for her to conclude that the narrative which the applicant included in the relevant COPS Event indicating that Complainant A left the station before police could ask her the DVSAT questions was false, or at the very least, misleading. The Police Commissioner found the applicant's conduct to be contrary to: 1. Section 7(a) of the Police Act; 2. Point 1 of the NSW Police Force Standards of Professional Conduct; and 3. The Oath of Office. Allegation 5 1. The Statement of Reasons summarised the information concerning Allegation 5 provided by the applicant in the Response as follows: "Your Response to Allegation 5 In your Response, you: • state that the allegation should not be sustained • claim there is no evidence on which I could reasonably conclude you were dishonest or disingenuous • state you provided your recollection of what happened and that to the extent I conclude you omitted information or information you provided was inaccurate, it was an inadvertent mistake • suggest the material impact of any error on your part was negligible, given the accused person was ultimately extradited from Queensland and convicted • describe yourself as 'blunt' and say that in domestic violence matters you can come across as less empathetic compared to other officers • acknowledge that your 'approach and appearance' may be unwelcome, particularly where a domestic violence matter involves men • point out that you may need to attend two to four domestic violence complaints each day and suggest that they are difficult to manage • say [Complainant A] did not provide you with all relevant information • insist you did your best during the interaction with [Complainant A] • claim it was not immediately apparent that the images [Complainant A] showed you were intimate • claim the BWV does not provide context in relation to [Complainant A's] attendance. You say she left abruptly following the exchange that was recorded • accept that there was further information that you could have obtained from [Complainant A] but she did not wish to remain at the station and discuss matters further • state you had a single meeting with [Complainant A] before you commenced a period of leave. The matter was investigated by a specialist domestic violence team thereafter. Although you were recorded as the officer in charge, you were not involved in the matter from the period you commenced leave • submit that it was clear [Complainant A] was never going to be satisfied with the actions of police • allege [Complainant A] was rude and abrupt whenever you asked probing or clarifying questions. You suggest it was as though you were not allowed to ask her anything outside the scope of what she was telling you and questioning the evidence constituted you 'not being interested' • state you created correct recordings on COPS as per the Domestic Violence Standard Operating Procedures." 1. The Police Commissioner determined that there were reasonable grounds for her to conclude that the applicant was dishonest, or at the least disingenuous, in his response to the directive memorandum on 13 October 2022 and during the interview on 11 April 2023. In particular, the Police Commissioner was satisfied that the following responses given by the applicant were dishonest or at least disingenuous: • "the reason you omitted any detail about the taking and sharing of intimate images without consent in the narrative in the Event E90922948 was because you had other jobs to attend to and respond to that shift; • you had no evidence to support [Complainant A's] allegations regarding [her ex-partner] taking and sharing intimate images of her without her consent; • the reason you did not ask the DVSAT questions was because [Complainant A] left before you could pose them to her; and • that the entry 'Victim Did not answer Part-A DVSAT Questions' and the narrative 'Left before Police could ask' on Event E90922948 were accurate reflections of what occurred." 1. The Police Commissioner found the applicant's conduct to be contrary to: 1. Sections 7(a) and 167A(2) of the Police Act; 2. Point 1 of the NSW Police Force Standards of Professional Conduct; and 3. The Oath of Office. Failure to Adequately Investigate Domestic Violence Allegations (October 2022 Incident) 1. On 12 October 2022, the applicant and Leading Senior Constable Nathan Curry (LSC Curry) attended Complainant B's residence following an allegation that her ex-partner had breached an ADVO by repeatedly calling, texting and leaving her voice messages after a phone call with her son. Complainant B stated that she received 35 calls in the space of 20 minutes. The 11 voicemail messages were harassing and intimidatory. In them, her ex-partner accused Complainant B of hanging up the phone, but she stated that it was her son who ended the call. 2. The interaction between Complainant B, the applicant and LSC Curry was captured on Complainant B's home CCTV camera. Neither the applicant nor LSC Curry asked Complainant B her name or date of birth or confirmed the premises as her address. They listened to only two of the voicemail messages. The applicant removed his notebook four and a half minutes into the five minute 17 second video but did not take any notes. 3. The interaction ended with the following: "Applicant: Until it reaches a criminal element, there's nothing the police can do. [Complainant B]: Yeah, well. This is a bit ridiculous if you think about it. Applicant: Well, we're going to have to ask for his side of the story and he may have a very different version to your side of the story. And if it's reasonable that he believes that he was cut off talking to his son and he's upset about it and he's tried to call back immediately. [Complainant B]: Ok well so what, him calling me all the names under the sun – Applicant [speaking over [Complainant B]]: Being rude is not – [Complainant B]: Threatening, threatening." 1. Neither the applicant nor LSC Curry activated their BWV during this interaction. A DVEC did not occur and DVSAT questions were not asked. 2. On 18 October 2022, Senior Constable Ben Adams undertook a DVEC with Complainant B about this incident. He created a COPS Event and recorded that Complainant B received 35 calls and 11 harassing and intimidatory voicemails from her ex-partner in the space of 20 minutes. Complainant B's ex-partner was charged with contravening an apprehended violence order and stalking or intimidation with intent to cause fear of physical and mental harm as a result of Senior Constable Adams' investigation. 3. The applicant created a COPS Event regarding this interaction on 28 October 2022, two weeks after it occurred. In this COPS Event, he recorded that the incident had started because "Victim took the phone off the son and ended the call without notifying the POI". 4. The applicant was interviewed about this incident twice, on 19 November 2022 and again on 16 March 2023. The Police Commissioner's Statement of Reasons recorded a detailed summary of each interview, which included the following content: "In summary, you denied you failed to investigate the matter and maintained your investigation was adequate. You said the investigation involved attending the scene and asking the female probing questions, such as whether she considered it unreasonable that her ex-partner had called back after she had 'abruptly [ended the call] without telling him'. As a result of your probing questions 'to support or refute her version' you say the female shut down and asked you and LSC Curry to leave. You said (in effect): • you did not take a statement from [Complainant B]; • you did not take an electronic recording of the interaction, but you thought your BWV was activated; • you did not record the mobile phone messages or voice messages which you observed and listened to while on the premises; • you made no further attempt to engage with [Complainant B] after that night; and • you did not create a COPS Event because you did not know the name of the victim or the offender, adding that you cannot create a Domestic Violence incident on WEBCOPS without adding a victim (although you later created an Event (referred to below) borrowing information from a separate report). During your first interview you were asked the following: Q44. With your investigation skills, utilising the COPS System, CAD message submitted on the night, the enforceable AVO, could have you utilised this information to create a report regarding the incident? A. I could not be 100% certain that the female was one and the same. Without knowing her name and date of birth. There is a possibility that the female we spoke to was not listed as a person who resided at that address. There was a chance if I had of created an event it may have contained the incorrect information. I didn't want to falsify a COPS event. Q45. Did you consider creating an 'Occurrence Only Event' indicating the information you had, the investigation you had completed and the obstacles you experienced, which limited you from creating a Domestic Violence Incident? A. Knowing I had attended a domestic violence incident, it is against SOPS to create an 'Occurrence Only Event' for this incident. … At the conclusion of your first interview, you added: 'Of the two voice messages I heard, I do not believe they met the threshold of an intimidation or harassment nor a breach of an AVO as it would be reasonable for a father to call back to speak with his son after the phone was terminated by the female without any knowledge as to why. This was only based off the information we were provided at the time.' … You said you spoke to Sergeant Peterson about the interaction at the end of his shift…" 1. The Police Commissioner found that the following allegations stemmed from this conduct: "Allegation 6 There appear to be grounds on which I could conclude that you failed to investigate, or at the very least conducted an inadequate investigation into, allegations reported to you on 12 October 2022 that an offender had breached an ADVO. … Allegation 7 There appear to be grounds on which I could conclude, that on 12 October 2022, you failed to create a COPS entry of the allegations reported to you of a breach of an ADVO. … Allegation 8 There appear to be grounds on which I could conclude, that on 12 October 2022, you failed to apply the DVSAT to a domestic and family violence incident. … Allegation 9 There appear to be grounds on which I could conclude that you failed to ensure your BWV was activated during your interaction with [Complainant B] on 12 October 2022. … Allegation 10 There appear to be grounds on which I could conclude that you were dishonest, or at the least disingenuous, during the interviews on 19 November 2022 and 16 March 2023. In particular, there appear to be grounds on which I could conclude that the statements you made that were to the effect that: • You believed you reported the incident with [Complainant B] to Sergeant Peterson • You believed your BWV was active during the interaction with [Complainant B] • The reason you did not create a COPS record in relation to the incident was that you had not positively identified the person you spoke to as [Complainant B], were dishonest, or at the least disingenuous." … Allegation 6 1. The Statement of Reasons summarised the information concerning Allegation 6 provided by the applicant in the Response as follows: "Your Response to Allegation 6 In your Response, you: • state the allegation should not be sustained • state that [Complainant B] ended your conversation abruptly before you had concluded your inquiries • says she subsequently provided the information necessary to pursue a conviction of her ex-partner for the breach of the ADVO to dedicated domestic violence officers." 1. The Police Commissioner determined that there were grounds for her to conclude that the applicant failed to investigate, or at the very least conducted an inadequate investigation into allegations reported to him on 12 October 2022 that an offender had breached an ADVO. The Police Commissioner found the applicant's conduct to be contrary to: 1. Section 7 of the Police Act; 2. Regulation 8 of the Police Regulation; 3. The NSW Police Force Handbook 4. The NSWPF DV Policy; 5. The NSW Police Force DV SOPs; 6. Points 1–3 of the Code of Conduct; and 7. The Oath of Office. Allegation 7 1. The Statement of Reasons summarised the information concerning Allegation 7 provided by the applicant in the Response as follows: "Your Response to Allegation 7 In your Response, you: • state the allegation should not be sustained • extract part of your record of interview on 19 November 2022, in which you said (in effect): ○ you did not have the offender or victim's details ○ you were trying to speak to [Complainant B] but she became hostile and slammed the door shut ○ you did not have the information to progress the report ○ you could not create a COPS event as you did not know the identity of the victim • accept you should have created an event on 12 October 2022, but state you were not comfortable doing so with the limited information you had obtained from [Complainant B] • repeat that you did not have enough details for you to complete an event in relation to the matter • claim that had you created an event, you would have been open to criticism for creating an 'Occurrence only event', or for falsifying a COPS event • say you were only able to create an event on 28 October 2022 because you had obtained further information (though you do not state what information you had obtained in the interim) and you otherwise appear to accept you had no contact with [Complainant B] other than the interaction with her on 12 October 2022." 1. The Police Commissioner determined that there were grounds for her to conclude that, on 12 October 2022, the applicant failed to create a COPS entry of the allegations reported to him of a breach of an ADVO. The Police Commissioner found the applicant's conduct to be contrary to: 1. Section 7 of the Police Act; 2. Regulation 8 of the Police Regulation; 3. The NSW Police Force Handbook 4. The NSWPF DV Policy; 5. The NSW Police Force DV SOPs; 6. Points 1–3 of the Code of Conduct; and 7. The Oath of Office. Allegation 8 1. The Statement of Reasons summarised the information concerning Allegation 8 provided by the applicant in the Response as follows: "Your Response to Allegation 8 In your Response, you: • state the allegation should not be sustained • submit that there was no opportunity to ask further questions consistent with the DVSAT." 1. The Police Commissioner determined that there were grounds for her to conclude that on 12 October 2022, the applicant failed to apply the DVSAT to a domestic and family violence incident. The Police Commissioner found the applicant's conduct to be contrary to: 1. Section 7 of the Police Act; 2. Regulation 8 of the Police Regulation; 3. The NSWPF DV Policy; 4. The NSW Police Force DV SOPs; 5. Points 1–3 of the Code of Conduct; and 6. The Oath of Office. Allegation 9 1. The Statement of Reasons summarised the information concerning Allegation 9 provided by the applicant in the Response as follows: "Your Response to Allegation 9 In your Response, you: • state the allegation should not be sustained • state the DV SOPs do not mandate the use of BWV • claim you have received no specific direction in relation to the use of BWV • suggest it is common for police officers not to use BWV when speaking to members of the public • extract various provisions from the LECC Report Recommendation that relate to the use of BWV in family and domestic violence incidents • extract sections of the record of interview with LSC Curry • state [Complainant B's] account is dishonest and inaccurate • say that [Complainant B] became hostile and ended your conversation before you could ask further questions and obtain relevant information • state that the CCTV footage has been edited and allege [Complainant B] intentionally removed footage that was inconsistent with her account." 1. The Police Commissioner determined that there were grounds for her to conclude that the applicant failed to ensure his BWV was activated during his interaction with Complainant B on 12 October 2022. The Police Commissioner found the applicant's conduct to be contrary to: 1. Section 7 of the Police Act; 2. Regulation 8 of the Police Regulation; 3. The NSWPF DV Policy; 4. The NSW Police Force DV SOPs; 5. Points 1–3 of the Code of Conduct; 6. The Oath of Office; and 7. BWV SOPs. Allegation 10 1. The Statement of Reasons summarised the information concerning Allegation 10 provided by the applicant in the Response as follows: "Your Response to Allegation 10 In your Response, you: • state the allegation should not be sustained • deny you were dishonest • indicate that, to the extent that I find you omitted a process, you apologise for that failure/failures, but state it/they were unintentional and not motivated by malice • submit your actions do not raise concerns about your integrity • point out the CCTV footage is incomplete and claim the CCTV footage has been edited to remove the salient portions that would otherwise support your version of events • say [Complainant B] ended your conversation abruptly, and then closed her door • suggest there was little scope for progression of the investigation with [Complainant B] • claim [Complainant B] was not willing to provide more information • state [Complainant B's] preference was to deal with the female officer that she was already familiar with. On that basis, you believe your attendance that evening was unlikely to satisfy her. • suggest that A/Inspector Peterson distances himself from any responsibility • submit, in relation to both domestic violence matters, that these matters were reported by women to two male officers (it is not clear what point you are submitting, but I take it to imply that their gender meant they were somehow predisposed not to want to speak to you) • suggest blame should not be squarely placed at your feet • submit that unless I considered the statement of LSC Curry, it would constitute a selective assessment of the evidence (in this respect, I note that I have considered the statement of LSC Curry) • suggest that adopting Inspector Peterson's version of events presents an 'obvious bias' because he is also an interviewer of the alleged conduct • suggest that A/Inspector Peterson's email 'conveniently deflects any conduct issue' • maintain that you reported the matter to Inspector Peterson (in fact you state that both you and LSC Curry reported it to him) • state you had no motive not to report it to Inspector Peterson • suggest (in effect) that LSC Curry should be disciplined and that you should not be 'singled out.'" 1. The Police Commissioner determined that there were grounds for her to conclude that the applicant was dishonest, or at the least disingenuous, during the interviews on 19 November 2022 and 16 March 2023. In particular, she was satisfied that there were grounds for her to conclude that the following statements made by the applicant were dishonest, or at the least disingenuous: • "you believed you reported the incident with [Complainant B] to Sergeant Peterson • you believed your BWV was active during the interaction with [Complainant B] • the reason you did not create a COPS record in relation to the incident was that you had not positively identified the person you spoke to as [Complainant B]." 1. The Police Commissioner found the applicant's conduct to be contrary to: 1. Section 7 of the Police Act; 2. Points 1–3 of the Code of Conduct; 3. The NSW Police Force Standards of Professional Conduct; and 4. The Oath of Office. Sexual Harassment of Police Officers 1. The final two allegations arise from the 2022 "Yellow Team Christmas Party", which was held at a private apartment on 27 November 2022. That venue was organised by the applicant. Prior to the party, a rumour that a topless waitress was to be booked for the party was circulating at Lake Illawarra Police Station. A topless waitress did attend the party in the early evening. 2. On 20 December 2022, Constable Joshua Tiedeman told A/Inspector Peterson that he had organised and paid for the waitress, and that no one else was involved. 3. On 17 February 2023, the applicant was interviewed about the incident. The Statement of Reasons records the following excepts from that interview: "On 17 February 2023, you were interviewed about the matter. During the interview, you said (in effect): • you had organised the apartment at which the Party was held, but had not organised the topless waitress • although there had been some 'off the cuff comments' about a topless waitress attending the Party, there was no intent for one to attend and the comments were all 'jovial' • you were never spoken to individually about it being a bad idea for a female stripper to attend a work Christmas party • when you let the woman into the premises, you did not know she was a topless waitress and assumed she was someone's friend • you only realised the woman was a topless waitress once she had removed her top • after you permitted the woman into the premises, you went upstairs and vomited due to your advanced state of inebriation. You could not say whether the topless waitress followed you upstairs or vice versa • the only thing you remember after that point was being downstairs in the kitchen and the woman was topless • you cannot recall any specific conversations you had with anyone about the woman but said you were as surprised as everyone else that she was in attendance • those people who did not want to be in the woman's company left the Party and around a dozen or so people remained • Constable Tiedeman had arranged and paid for the topless waitress to attend the Party • there were other attendees at the Party, including higher ranking officers. No one asked the woman to leave. You did not understand why it was your sole responsibility to remove her from the premises. You felt as though you were being targeted because of your complaints history." 1. The Police Commissioner found that the following allegations stemmed from this conduct: "Allegation 11 There appear to be grounds on which I could conclude that you engaged in sexual harassment. In particular, there appear to be grounds on which I could conclude that: • On 27 November 2022, you permitted a topless waitress to attend a work Christmas party that you had organised by granting her access to the premises; and • You allowed her to remain at the premises despite knowing she was a topless waitress. … Allegation 12 There appear to be grounds on which I could conclude that you were dishonest, or at the least disingenuous, during the interview on 17 February 2023. In particular, there appear to be grounds on which I could conclude that the statements you made that were to the effect that: • Although there had been some 'off the cuff comments' about a topless waitress attending the Party, there was no intent for one to attend and the comments were all 'jovial' • You were never spoken to individually about it being a bad idea for a female stripper to attend a work Christmas party • When you let the woman into the premises, you did not know she was a topless waitress and assumed she was someone's friend • You only realised the woman was a topless waitress once she had removed her top • You cannot recall any specific conversations you had with anyone about the woman but said you were as surprised as everyone else that she was in attendance were dishonest, or at least disingenuous." … Allegation 11 1. The Statement of Reasons summarised the information concerning Allegation 11 provided by the applicant in the Response as follows: "Your Response to Allegation 11 In your Response, you: • state the allegation should not be sustained • say that the former police officer, Josh Tiedeman organised the waitress and paid for her and that you organised the venue • say you had no greater involvement in permitting the waitress to remain at the premises than any other person at the Party • state that soon after she arrived, you felt ill from alcohol and you were not in a condition to do anything further in relation to her presence at the Party • state your belief that it was not your role to challenge the topless waitress's attendance." 1. The Police Commissioner determined that there were grounds for her to conclude that the applicant engaged in sexual harassment. In particular, the Police Commissioner was satisfied that there were grounds for her to conclude that: • "on 27 November, you permitted a topless waitress to attend a work Christmas party that you had organised by granting her access to the premises; and • you allowed her to remain at the premises despite knowing that she was a topless waitress." 1. The Police Commissioner found the applicant's conduct to be contrary to: 1. Sections 7(a), (b) and (c) of the Police Act; 2. Points 1, 3, 4 and 6 of the Code of Conduct; 3. Section 22A of the Anti-Discrimination Act 1977 (NSW); and 4. The Respectful Workplace Behaviours Policy Statement. Allegation 12 1. The Statement of Reasons also summarised the information concerning Allegation 12 provided by the applicant in the Response. That summary included the following: "Your Response to Allegation 12 In your Response, you: • state the allegation should not be sustained • insist you have always been full and frank about your involvement in organising the Party • submit you went to sleep after the topless waitress arrived and you were considerably intoxicated by alcohol • state that you were all letting off steam • repeat that anyone else could have asked the waitress to leave and that no one did • state you have seen a great deal more serious and offensive events on and off duty than a topless waitress, as had all police officers in attendance • point out that it was held in a private premises and the other police officers were off duty • again state that it was Josh Tiedeman who organised and paid for the waitress • state that you acted as a host of the party and you let the waitress up to the room • state you were not offended by her presence and you believed many others felt the same way • state that other officers, including more senior and junior officers, female officers, and the officer who organised the waitress could have ejected her • extract sections of Senior Constable Burnett's response as well as from your response in the interview on 17 February 2023 • claim the 'general vibe' was that it would be a 'fairly loose affair' • state your belief that there would not be strict compliance with police policies • say no one 'went out of their way to offend anyone' and it was intended to be good fun • deny responsibility for the topless waitress." 1. The Police Commissioner determined that there were grounds for her to conclude that the applicant was dishonest, or at the least disingenuous, during the interview on 17 February 2023. In particular, the Police Commissioner was satisfied that there were grounds for her to conclude that the following statements made by the applicant were dishonest, or at the least disingenuous: • "although there had been some 'off the cuff comments' about a topless waitress attending the Party, there was no intent for one to attend and the comments were all 'jovial' • you were never spoken to individually about it being a bad idea for a female stripper to attend a work Christmas party • when you let the woman into the premises, you did not know she was a topless waitress and assumed she was someone's friend • you only realised the woman was a topless waitress once she had removed her top • you cannot recall any specific conversations you had with anyone about the woman but said you were as surprised as everyone else that she was in attendance." 1. The Police Commissioner found the applicant's conduct to be contrary to: 1. Section 7 of the Police Act; 2. Points 1–3 of the Code of Conduct; 3. The NSW Police Force Standards of Professional Conduct; and 4. The Oath of Office. Other issues raised in the Response 1. The Statement of Reasons also summarised the information provided by the applicant in the Response, in addition to the material which specifically addressed the allegations, as follows: "I note in your Response under the heading 'Harsh Unreasonable & Unjust', in addition to repeating many of the points described above in relation to the specific allegations above, you: • state that you intended to work as a police officer for the foreseeable future and that dismissing you would cause significant and immediate financial difficulty as you rely on the it for your livelihood • submit you are not well suited to domestic violence investigations and that the women who complained have preferred to be interviewed by, and to disclose intimate details to female officers or dedicated DV investigation officers • state that I have chosen to rely on BWV and CCTV that has obviously been doctored to omit footage that is 'inconvenient to the narrative that you have adopted' • suggest I do not consider various matters relating to [Complainant A], including your period of after your interview with her • state I must consider LSC Curry's record of interview regarding the attendance at [Complainant B's] premises • in relation to deficiencies in your investigation, you state the primary redress ought to be by way of additional resourcing and training • make a number of a points regarding the seriousness and urgency of the incidents you investigated, and state that your failures were 'objectively less serious' • extract sections from the Law Enforcement Conduct Commission's Review of NSW Police Force Responses to domestic and family violence incidents dated June 2023 (as well as attach a copy of the document) • state your education and training has not kept pace with changes to NSW Police Force Policy and legislation regarding domestic and family violence. • claim you have been the subject of a 'targeted witch hunt'. I also note in your Response, that you: • refer to two complimentary remarks (one in 2019 and the other in 2020) in respect to matters involving domestic violence • state that in respect to the Commander's Warning Notice on 2 February 2022, there were no other additional remedial outcomes implemented, despite there being some available, including coaching, mentoring and increased supervision. You suggest had you received other support, it would have had a more meaningful and beneficial effect on your ability to attend to and investigate domestic violence matters • state I have not provided you with opportunity for further education and training." Conclusions 1. It was not in dispute that the Notice was served on the applicant pursuant to s 181D(3)(a) of the Police Act, and that he was given 21 days to make a written response to the Police Commissioner in accordance with s 181D(3)(b). He availed himself of that opportunity in providing the Response. Both the Order and the Statement of Reasons suggest that the Response was taken into consideration, as required by s 181D(3)(c). 2. In Baker v Commissioner of Police [2015] NSWIRComm 14, Kite AJ observed: "95 The Commissioner is obliged by s 181D(4) of the Act to give reasons. This statutory duty is an exception to the common law position in relation to administrative decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. The adequacy of the content of those reasons is to be determined, absent any express requirements in the legislation, by an exercise of statutory construction: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 303 ALR 64; 88 ALJR 52. 96 The statutory purpose may be inferred from the surrounding provisions, in particular s 181D(7) and Division 1C of the Act. One purpose which may be inferred is to inform the officer directly affected as to why the decision has been taken so as to allow that officer to decide whether to commence review proceedings. Another purpose which may be inferred is to facilitate any such review. 97 That then requires a consideration of the nature of these proceedings. As observed above, while the starting point in such proceedings is the Commissioner's reasons, the burden is upon the applicant to establish 'that the removal was harsh, unreasonable or unjust'. The Commission hears the applicant's case and the Commissioner's case in response, and then makes a 'fresh and independent review [of the] decision itself'. 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]…" 1. The Statement of Reasons explains how the Police Commissioner determined that each of Allegations 1 to 12 had been substantiated. The gravity with which those findings were to be viewed was assessed in the context of the applicant's disciplinary history. 2. Under the heading "Consideration", the Police Commissioner noted her concerns about the applicant's integrity, particularly in relation to Allegations 4, 5, 10 and 12. She did not accept the applicant's denials and otherwise did not accept that his displays of dishonesty, or at least disingenuity, could be attributed to inadvertent mistakes or difficulties with recollections. Further, she found that the applicant failed to demonstrate the fundamental requirement of a police officer: to be completely truthful in all circumstances. In addition, the Police Commissioner expressed concerns about: 1. The applicant's tendency to shift blame to complainants by suggesting that they were never going to be satisfied with any level of assistance provided, and downplay his own culpability for his failures; 2. The applicant's lack of accountability and apparent unwillingness to genuinely consider and reflect on his contribution to matters; 3. The applicant's claim that he is the target of a "witch hunt"; 4. The applicant's statement that he was not provided with any remedial action in February 2022 or any opportunities for further education and training in view of the Conduct Management Plan imposed upon him in February 2022; and 5. The conduct in relation to Allegations 1 to 10, in light of the applicant's disciplinary history and his notification that further conduct of the kind in which he has engaged could result in his removal. 1. Individually, several of the allegations would not provide a reasonable basis for the Order. However, they need to be viewed collectively. Further, each of Allegations 4, 5, 10 and 12 would justify the Order on their own. Accordingly, on its face, the Statement of Reasons provided a basis for the Order. The case presented by the applicant – s 181F(1)(b) 1. The applicant's evidentiary case was contained in a statement that he had prepared for the purposes of these proceedings, together with his evidence before the Commission. The applicant also relied on the evidence of two additional witnesses. 2. In his statement, Mr Joshua Tiedeman stated that he organised and paid for the topless waitress and that the applicant had no involvement in that process. In cross-examination, Mr Tiedeman stated that he decided to organise the topless waitress while he was at the party and that he did not discuss it with anyone before he did it. He further stated that he had not suggested organising the topless waitress prior to the date of the party and that he asked the applicant to let the topless waitress in, but said only that she was "a friend". 3. In his statement, Mr Matthew Beretov stated that he arrived late to the Yellow Team Christmas party, that most people, including the applicant, were very intoxicated at that point, and that there was an uproar when a topless waitress came downstairs to the party. Mr Beretov's evidence was that party attendees became upset with the applicant and Mr Commachio, the other organiser of the party, when the topless waitress' presence became known. Mr Beretov stated that he put the applicant to bed on account of him being intoxicated. He then asked the topless waitress to leave. When she declined to leave, he left the party. In his oral evidence, Mr Beretov confirmed that there was an uproar when the topless waitress came down the stairs, but not before that point. 4. The applicant also relied on written submissions, supplemented by oral submissions at the conclusion of the evidence. Allegation 1 1. The applicant denied Allegation 1, which he characterised as harsh, unjust and unfair. He contended that he "attempted to investigate all avenues of injury with [Complainant A], including asking clarifying and probing questions about the allegations…". He stated that, at the conclusion of the DVEC, he "informed [Complainant A] of the process moving forward and out of concern for [Complainant A's] safety … suggested preventative strategies to avoid any contact from the accused, including changing her mobile number, email address and removing herself from social media". The applicant stated that Complainant A "became upset and irate and slammed her computer shut and left the interview room". 2. The applicant's evidence was that he created a COPS Event in relation to his interaction with Complainant A, in accordance with the DV SOPs. He then took five or six days of planned leave. On return to work, he believed that the accused had been extradited from Queensland and charged, and the matter proceeded to conviction without any further involvement from him. 3. Under cross-examination, the applicant confirmed that he did not speak to Complainant A after 25 September 2022 because she made a complaint about him while he was on leave. He stated that he did not ask for someone else to follow up with her because upon his return from leave, he became aware that the domestic violence arrest team had already extradited the accused and charged him with over 200 offences. The applicant maintained that he never saw any evidence to support Complainant A's claim that images had been posted online of her vagina, backside and body otherwise engaging in sexual acts. He said he had been awaiting evidence that Complainant A was to email to him but did not. The applicant accepted that the accused was not charged in respect of the intimate images that were brought to his attention on 25 September 2022. However, he stated that the DVEC was uploaded and that the charges could have been laid based on that material. 4. In oral submissions for the applicant, it was emphasised that he was asking appropriate questions, including questions to try and determine the nature of the images. Further, Complainant A was well known to NSW Police, and there was already an ADVO in place to protect her from her former partner who resided in Queensland. The applicant was working a night shift on the day in question and did not think it appropriate to follow up with Complainant A during the night. He then went on leave and, upon his return, was made aware that Complainant A had lodged a complaint against him. Further, the accused had been extradited by that time and he understood the domestic violence team to have taken over the matter. Allegation 2 1. The applicant denied Allegation 2, which he characterised as a duplication of Allegation 1. He "unequivocally refute[d]" the allegation that he "failed to apply the DVSAT to a domestic and family violence incident". In cross-examination, the applicant accepted that neither he nor Probationary Constable Sibraa asked the DVSAT questions but, as recorded in the COPS Event, that was because Complainant A left the police station before they could do so. He stated that it was his practice to ask the DVSAT questions at the end of an interview once he had all the information, and he had never seen the DVSAT Standard Operating Procedures (DVSAT SOPs) which stated otherwise. He accepted that the DVSAT questions could be asked in about five minutes. 2. The applicant's evidence was that in the 10 minutes between the conclusion of the DVEC and Complainant A leaving the police station, they discussed preventative measures to stop the accused contacting her, alongside the extradition process for the accused to be brought from Queensland to New South Wales to be charged. He denied that he was wrapping up his interaction with Complainant A at that point. 3. Significantly, the applicant stated that when Probationary Constable Sibraa asked him about "the AVO questions" and he replied that there was no need to ask them because there was already an ADVO in place, he did not understand Probationary Constable Sibraa to be referring to the DVSAT questions. Rather he was referring to the AVO questions on the back of the DVEC guide and, as there was one already in place, those questions were not necessary. This was the first occasion on which he had given that explanation. 4. In oral submissions for the applicant, it was emphasised that it would have been unlawful for the applicant to have detained Complainant A in order to ask the DVSAT questions once she had made the decision to leave. The conversation to that point was organic and they had been discussing strategies that he thought might be appropriate to limit contact when Complainant A got up and left. At that point, he was trying to be helpful. There was no policy that the DVSAT questions had to be administered at the outset and the applicant's practice was to administer them once he had obtained the necessary information. Further, the fact that an ADVO was already in place had a bearing on the importance of those questions in this case. Additionally, it was not open to find that Probationary Constable Sibraa's reference to "the AVO questions" was a reference to the DVSAT questions in circumstances where he was not called to give evidence. Allegation 3 1. The applicant refuted Allegation 3, which he characterised as harsh, unjust and unfair. His evidence was that he created COPS Event E90922948, that all other relevant information had been captured by Probationary Constable Sibraa on his BWV and in his notebook, and that his investigation had not concluded and was ongoing, pending receipt of further evidence from Complainant A, who had undertaken to email him the document containing the intimate images. 2. Under cross-examination, the applicant maintained that the COPS Event that he created was accurate to the point that he had completed it, but stated that "a large portion" of the narrative was not complete due to his need to attend other jobs prior to the end of his shift. He accepted that there was a requirement to finish a COPS Event before the end of a shift. He also accepted that the COPS Event that he created made no reference to the intimate images taken without consent that he was shown by Complainant A. As noted above, the applicant stated that the DVEC was uploaded and the domestic violence team could have obtained the necessary information from that to lay charges in relation to Complainant A's 25 September 2022 complaint about the accused taking intimate images without her consent and posting them on the internet. 3. In oral submissions for the applicant, it was emphasised that general duties policing was very busy, with the applicant attending 20 to 30 jobs per night; that failing to complete a COPS Event narrative was not grounds to terminate him; that he had been anticipating the provision of further information from Complainant A to finish the COPS narrative, but events overtook it; and that the charging officers could have accessed the missing information from the DVEC. Allegation 4 1. The applicant's evidence to this allegation included that the COPS Event he created "in my view was accurate and reflected my interaction with [Complainant A]". He stated that Complainant A "left the interview room at about 12.50pm … before we were able to ask the DVSATs" and noted that they could not be asked during the DVEC. The applicant's evidence when cross-examined about that matter is as set out in the context of Allegation 3. The submissions made on behalf of the applicant in the context of Allegation 5 apply equally to this allegation. Allegation 5 1. In his statement, the applicant reiterated his belief that the COPS Event was a true and accurate reflection of his interaction with Complainant A. He further stated that the accused was extradited from Queensland, entered pleas of guilty to the charges and was convicted, so that the material effect of any "alleged error" on his part was negligible upon the outcome. 2. The applicant maintained what he has said in the Response as follows: "I reiterate what I write in my Directive Memorandum response: 'It was clear from the outset the Victim was never going to be satisfied with the actions of Police. I found the Victim to be quite rude and abrupt anytime we were asking clarifying or probing questions relating to the alleged offences and or explaining the investigative process. It was as though we weren't allowed to ask her anything outside the scope of what she was telling us and questioning the evidence she provided was us "not being interested". I was at no time rude to the Victim. I listened to her version, asked appropriate questions to the investigation and created the correct recordings of the incident on the COPS system as per the Domestic Violence Standard Operating Procedures.'" 1. It was not expressly put to the applicant during cross-examination that he was untruthful in his response to the directive memorandum or his interview on 11 April 2023. However, his alleged dishonest or disingenuous accounts were challenged in the context of the previous allegations. 2. In oral submissions, counsel for the applicant relied on [110]–[111] of the decision of Sloan C in Lambert v Commissioner of Police [2022] NSWIRComm 1078: "110 DSS Lambert tendered a document from the NSW Police intranet titled 'Untruthfulness by subject officers during Part 8A investigations' ('Part 8A Policy'). It states: 'A finding that a person has been untruthful will lead to a serious finding of misconduct and therefore cannot be based simply on the investigator's opinion. Untruthfulness is more than simply being evasive or not being fully frank and forthright. For a finding of untruthfulness to be sustained it must be established that the subject officer said something they knew to be untrue. There must be a factual basis for the decision. Where there are conflicting versions of a factual issue, it does not automatically follow that one person has been untruthful. It is possible for persons to perceive and remember events differently.' 111 It is apparent from this extract that the NSW Police Force regards being untruthful as more than being 'less than fully frank'. It does not, however, explain what it means to be less than fully frank, and when that would rise to the point of being misconduct warranting disciplinary action under s 173 of the Police Act. The Part 8A Policy was put to Det Supt Doherty in cross-examination, but he was not asked as to his understanding as to the distinction between being 'untruthful' and being 'less than fully frank'." 1. Accordingly, it was submitted on behalf of the applicant that being less than fully frank did not amount to dishonesty, and that the meaning of "or at least disingenuous" was unclear in the context of NSW Police Force policy. Allegation 6 1. In his evidence, the applicant stated that this allegation should not be sustained, noting that Complainant B terminated the conversation abruptly before enquiries had been completed, and that she subsequently provided the necessary information to dedicated domestic violence officers. The applicant further stated that the investigation continued on his rostered day off and that there was "no opportunity" for him to conduct an adequate investigation when this had been done by the domestic violence team. 2. In cross-examination, the applicant clarified that the above evidence referred to Complainant A rather than Complainant B, and stated that the investigation into Complainant B was cut short due to her asking that he and LSC Curry leave the property. He did not accept that the investigation was inadequate. Rather, the applicant maintained that there was no opportunity for him to continue his investigation. The applicant accepted that after he left Complainant B's property, he did nothing to investigate any of the matters that she had raised. He provided the following explanation: "[Complainant B] made it clear that she didn't want my services and asked me to leave, so I no longer further investigated the matter." 1. When it was put to the applicant that the reason for his limited information about Complainant B was because he did not ask her basic questions such as her name or details about the ADVO that was in place, he reiterated that the investigation was cut short by Complainant B, "and I didn't get to that point in the investigation". The applicant also stated that he had apologised to Complainant B and that he had been told prior to the start of the relevant shift that his grandfather had been put into palliative care and had been given only a couple of weeks to live, and so he "probably wasn't in the best frame of mind on the night". 2. In oral submissions for the applicant, it was emphasised that he had apologised to Complainant B and that "it was not his best night". It was also pointed out that the more senior officer in attendance, LSC Curry, did nothing to try and recover the situation. Allegation 7 1. The applicant similarly stated that Allegation 7 should not be sustained, and that he did not have the details of either Complainant B or the offender as Complainant B "became hostile and slammed the door shut". He "accept[ed] that I should have created an event on 12 October 2022, but was not comfortable doing so with the limited information obtained from [Complainant B]". The applicant stated that there were not enough details for him to complete an Event in relation to the matter and that, had he done so, he could have been criticised for falsifying a COPS Event on the limited information available to him. He noted that he was able to create an Event after 12 October 2022 with the benefit of further information that he had obtained. 2. In cross-examination, the applicant maintained that he was not "100% sure" that the person to whom he spoke was Complainant B, and therefore he did not want to create a falsified COPS record that may have led to the arrest of an innocent person. He accepted that he had the Computer Aided Dispatch (CAD) message and that he had attended at the address recorded in that message. He was unable to confirm whether he would have read that CAD message during the shift when he attended upon Complainant B, and stated that there was "a good chance" that he had not done so because he was the driver of the vehicle that attended Complainant B's premises, and it was generally the passenger who writes off the CAD data at the end of the shift. 3. In oral submissions for the applicant, it was emphasised that he had produced a notebook to start making notes, but the exchange was terminated by Complainant B less than a minute later. He maintained that the information from the CAD message should not be put straight into COPS. It was again accepted that the applicant could have done a better job, but the circumstances of the night were such that he was not at his best. Allegation 8 1. The applicant's statement was that the attendance at Complainant B's residence on 12 October 2022 was terminated abruptly by her, and that there was no scope to "reinvigorate the investigation" at that time, and therefore no opportunity to ask "further questions consistent with the DVSAT". In cross-examination, the applicant maintained that the DVSAT questions conclude the investigation and should not be asked before an investigation occurs. 2. In closing submissions, the applicant maintained that there was no specific order in which investigative steps needed to be taken and that it was appropriate to hear the person's narrative, get their details, assess their demeanour and then run through the DVSAT questions. Allegation 9 1. The applicant's statement included that the DV SOPs do not mandate the use of BWV at domestic and family violence incidents and that he had "received no specific direction in relation to the use of BWV". He conceded that, in hindsight, BWV would have assisted, but that "there is no basis for a conduct issue to arise due to the non-activation of the BWV". The applicant reiterated his earlier evidence that he thought he may have activated his BWV but did not. In oral submissions for the applicant, it was emphasised that the operation of the BWV was not mandatory and, even it if were mandatory, in the context of the circumstances of that night it was not "such a gross breach that it needs anything more than monitoring going forward". Allegation 10 1. The applicant's statement was that he did not believe he was dishonest and that if he did omit a process as part of his investigations, then those failures (for which he apologised) were unintentional errors and not motivated by malice. He stated that he "did what I could in the circumstances". The applicant's statement in relation to this incident also included the following content: "Noting that I was the junior officer and I was not alone in speaking with [Complainant B]. I have no ill will toward LSC Curry, but it is illogical that I alone would be singled out and punished with respect to this matter, in the same way I was identified as the subject officer in relation to complaints made by [Complainant A]." 1. In cross-examination, the applicant rejected the proposition that he knowingly provided false evidence in his response when he stated that he spoke to Sergeant Peterson about this matter upon his return to the station. He was not asked about the content of his interviews. 2. In closing submissions for the applicant, it was emphasised that Sergeant Peterson's evidence before the Commission was that he could not recall whether he had been consulted by either the applicant or LSC Curry regarding this matter. Further, that was entirely different to what was put to him in his interview, namely that Sergeant Peterson had said he was not consulted about it. It was submitted on the applicant's behalf that he believed both that he had operated his BWV and that he had contacted Sergeant Peterson about the matter. Allegation 11 1. The applicant denied any conduct which could amount to sexual harassment. He noted that Mr Joshua Tiedeman organised and paid for the topless waitress. He stated that, during the night, Mr Tiedeman asked if he could let a friend into the unit, and as the person with the fob key access, he accompanied Mr Tiedeman to allow the person in. He stated that the "friend" appeared to be dressed normally and there was nothing about her to suggest that she was a topless waitress. He then went to the bathroom and was sick from the alcohol that he had consumed. He stated that, when he left the bathroom, there was "an uproar by many of the attendees as it transpired that the 'friend' of Mr Tiedeman was in fact a topless waiter". 2. The applicant further stated that he did not permit the waitress to remain at the premises "any more than the other people in attendance", noting that not long after she arrived, Mr Beretov assisted him to bed as he was unwell, and he took no further part in the festivities. 3. In cross-examination, the applicant stated that the Yellow Team Christmas party was open for family and friends to attend, but accepted that none attended. He also accepted that the email invitation which he had sent to Yellow Team members said nothing about family and friends attending the party. He maintained that Mr Tiedeman had told him only that a friend had arrived and stated that he did not ask Mr Tiedeman any questions about the identity of the friend. 4. The applicant stated that he did not recall any conversation with Mr Tiedeman and the woman as they walked from the building entrance to the elevator and travelled to the top floor where they accessed the party venue. His evidence was that he then went to the bathroom to be sick and that he did not know where Mr Tiedeman and the woman went. He reiterated that there was an uproar as he was leaving the bathroom. 5. The applicant's evidence was that he then went downstairs and started drinking again. He walked past Mr Tiedeman and the woman but did not speak to them or hear their conversation. He also stated that he only became aware that the woman was a topless waitress when he was downstairs with his drink and the woman came into the kitchen with her top off. A number of people then left the party. He continued to drink and party for a short period but then went to bed. The applicant stated that he did not say anything to Mr Tiedeman about the "friend" whom he invited being a topless waitress. 6. In closing submissions on his behalf, it was emphasised that there was no evidence that the applicant was aware that the woman attending the party was a topless waitress at the time when he granted her access to the party. Allegation 12 1. The applicant denied being dishonest or disingenuous during his interview on 17 February 2023 and stated that he had "always been full and frank about my involvement in the organising of the Christmas Party", noting that he was in possession of the fob key required to gain access to the premises for much of the night. The applicant's evidence also included the following content: 1. He had seen "a great deal more serious and offensive events on and off duty than a topless waitress, as had all other police officers in attendance that evening"; 2. The Christmas party was not in a public location and the police officers in attendance were all off duty; 3. He was not offended by the presence of the topless waitress and did not eject her from the premises; many other officers in attendance felt the same way, and it was a festive occasion where alcohol was being consumed; 4. "It was an end of year Christmas party. [The] general vibe was that it would be a fairly loose affair and I do not believe those in attendance indeed [sic] that there would be strict adherence or compliance with police policies. No one went out of their way to offend anyone and it was all intended to be in good fun"; and 5. There was nothing preventing anyone else from ejecting the topless waitress, including more senior officers, and that responsibility was "not my burden alone", adopting the following content from his 17 February 2023 interview: "…There were 20-30 people who attended the function. Some more senior to myself and of a higher rank. And from my understanding at no time has anyone asked the female to leave. I don't understand why it is my sole responsibility to be the one to remove her from the unit. There were people who left the unit due to the scenario but as I said earlier there were more than a dozen who remained behind who clearly had no issues with her presence. About 20 minutes after her arrival, I went back up to my room was sick in the toilet and went to bed and slept. I was next woken up at 2.30am. Everyone was very intoxicated at the work Christmas party. And I also want to say that I feel I am being targeted due to this matter and due to my complaints history…" 1. The evidence given by the applicant in cross-examination about the circumstances in which he admitted the topless waitress to the party is set out above. Oral submissions for the applicant pointed to the evidence of Mr Tiedeman and Mr Beretov in supporting the applicant's account as accurate. Harsh, unreasonable or unjust 1. In the Application, the applicant contends that the Order was unjust because it was based, in part, on sustained findings in relation to integrity and conduct that ought not to have been made. It was unreasonable because it was based, in part, on inferences that should not reasonably have been drawn by the Police Commissioner, and the Police Commissioner made findings of fact against him that were not reasonable to make. The applicant also contends that his dismissal was unreasonable because the Police Commissioner did not give any or sufficient weight to the content of his response, including but not limited to the length and meritorious nature of his service. The applicant further contends that the order was harsh because the Police Commissioner failed to give sufficient weight to the mitigating factors and the nature and extent of the subjective factors upon which he relies. Finally, the applicant contends that the response of the Police Commissioner was disproportionate to the conduct upon which she relied, having regard to the consequence of the Order for the applicant's personal and economic situation. 2. The applicant's evidence-in-chief before the Commission directed at this question, which was reinforced in closing oral submissions, included the following matters: 1. He did not act maliciously, nor did he intentionally fail to investigate the domestic violence complaints; 2. He worked in general duties on a regular basis, and investigated domestic violence matters regularly, and it was often the case that the matters were complex, the subject matter difficult and the victims sensitive and did not necessarily wish to speak with men; 3. The NSW Police Force has called into question his integrity and suitability to be a police officer, which does not accurately reflect the circumstances; 4. He had committed himself to the NSW Police Force, was a senior constable and had intended to work as a police officer for the foreseeable future; 5. The NSW Police Force "appear[ed] untroubled by reliance on footage that has obviously been doctored to omit footage that is inconvenient to the narrative that has been adopted"; 6. There was nothing "specifically inimical in relation to my conduct that is deleterious of my integrity"; 7. "I am not particularly well suited to DV investigations and … the women who have complained have preferred to be interviewed by, and to disclose intimate details to, female officers or dedicated DV investigation officers"; 8. The BWV and CCTV footage on which the NSW Police Force relies do not provide the context in which the situations arose; 9. The NSW Police Force has preferred the evidence of Complainant B to that of sworn police officers "despite the CCTV being edited"; 10. If it is the case that there are identified deficiencies in his investigation of domestic violence matters, the primary means of redress ought to be resourcing and training; 11. The non-reviewable warning imposed on him in February 2022 provided no additional remedial outcome despite Schedule 1 of the Police Act contemplating a number of remedial actions available to the delegate, including coaching, mentoring, training and development, increased professional administrative or educational supervision, counselling, retraining and personal development; 12. He had not been provided with opportunities for further education and training in relation to domestic violence matters; 13. He had always been full and frank in the disclosure of his truthful version of events and the various commendations that he had received through his career evidenced the highest level of integrity in what he did; and 14. The Police Commissioner gave little weight to his submission in deciding to issue the Order. 1. It was further noted in closing submissions that the incidents before the Commission represent a very small percentage of the domestic violence matters attended by the applicant given the number of domestic violence complaints typically attended in a general duties shift, and that the applicant had a number of commendations on his record in that regard. 2. On the question of public interest, the applicant's submissions included that it was well known that the NSW Police Force is currently experiencing recruitment challenges and that he was a committed police officer with 13 years of knowledge and experience. It was further submitted that the applicant's commitment to the NSW Police Force was demonstrated by his desire to return to his police role notwithstanding his considerably greater income in his secondary role of mortgage broking. The case presented by the Police Commissioner in answer – s 181F(1)(c) 1. The Police Commissioner submitted that the factual contest between the parties was limited and that much of the applicant's case amounted to explanations for his conduct. She relied on affidavits from Senior Constable Skye Van Uden, Sergeant Anthony Peterson and Sergeant Paul Brodie, each of whom gave evidence at the hearing. In addition, the Police Commissioner relied on the affidavit of Complainant B. Allegations 1–5 1. In his affidavit, Sergeant Brodie stated that the COPS Event created by the applicant in relation to his interaction with Complainant A on 25 September 2022 did not contain any record of the intimate images about which Complainant A spoke during the DVEC. That COPS Event contained a single incident, being "Breach of AVO – Domestic". No incident was created concerning the recording and distribution of intimate images without consent. As a consequence, the accused was not charged with any offences associated with that conduct. Sergeant Brodie further stated that the role of the Domestic Violence Action Team was to arrest and charge the accused based on the information contained in the COPS Event, and that ongoing responsibility for the investigation remained with the applicant. 2. In cross-examination, Sergeant Brodie agreed that there were a lot of people involved in the investigation of the accused and that Complainant A regularly attended the police station to make further notifications of potential ADVO breaches, including distribution of intimate images. He accepted that Complainant A was dealing with a number of officers at Lake Illawarra, that her ex-partner was extradited from Queensland and charged with approximately 110 to 120 offences, and that he was ultimately convicted and sentenced to a term of imprisonment in excess of two years. Sergeant Brodie also accepted that Complainant A had been unhappy with the manner in which Lake Illawarra police station more generally had investigated her complaints, notwithstanding those police had spent hundreds of hours on the investigation, which was a massive job. When asked about "the AVO questions", he stated that he did not know what that referred to. In re-examination, his evidence was that he could not recall whether or not such questions exist. 3. Sergeant Brodie further stated that it would have been prudent for the officer charging the accused to have watched the DVEC video that was uploaded into the COPS Event created by the applicant. His evidence was that the approval of a supervisor was required to defer the completion of a COPS Event beyond the end of the relevant shift, but that it did happen on occasion. 4. In relation to these allegations, the Police Commissioner submitted that: 1. There was no dispute that the applicant did nothing other than create a COPS Event after meeting with Complainant A, and that his evidence was an "attempt to explain that failure" (Allegation 1); 2. The applicant's evidence was inconsistent in that he said both that he was waiting for Complainant A to email the evidence to him (in circumstances where she did not have his email address) and that he had no further involvement – both because of the complaint lodged by Complainant A about him and because the matter had been overtaken by the domestic violence team (Allegation 1); 3. There was no debate that the applicant did not in fact ask Complainant A the DVSAT questions (Allegation 2); 4. The DVSAT SOPs stated that the DVSAT questions should be asked before the DVEC but, as the applicant had not read them, he would not know this (Allegation 2); 5. There was opportunity to ask the DVSAT questions in the 18 minutes between the pre-interview conducted by Probationary Constable Sibraa and the DVEC, or in the 10 minutes after the DVEC concluded before Complainant A left the police station (Allegation 2); 6. Probationary Constable Sibraa's reference to "the AVO questions" should be understood as the DVSAT questions (Allegations 2 and 5); 7. The COPS Event did not record any allegation, as made by Complainant A, that her ex-partner was posting intimate images and videos of her online without her consent, which was the key information (Allegation 3); 8. It was only in cross-examination that the applicant stated that the COPS Event was incomplete – in his evidence-in-chief he stated that he had created further COPS Events in relation to the incident and that the remaining information had been captured by Probationary Constable Sibraa (Allegation 3); and 9. Allegations 4–5 largely rise and fall with Allegation 3. Allegations 6–10 1. Sergeant Peterson's affidavit evidence was that he did not recall the applicant or LSC Curry consulting him about their attendance on Complainant B during their shift. He set out the directions that he would have given if consulted and stated that he "would never give advice to just forget the job or disregard it". In cross-examination, Sergeant Peterson confirmed that while he did not recall the applicant or LSC Curry raising the matter with him, he could not positively say that they did not, as his role was a very busy one. He also stated that the staffing situation at Lake Illawarra was at about 80%, which was the most short-staffed that it had ever been. 2. In her affidavit, Complainant B stated that she was upset with the officers who attended her premises on 12 October 2022, because she felt like they were not listening to her or providing any help. She stated that she was "scared for my life" at that point because of the actions of her ex-partner towards her. She stated the interaction ended when she told the police officers to "fuck off" as she was very upset that they were dismissing her. Complainant B also stated that the CCTV footage which she provided to police was recorded on an inexpensive camera. She noted that the footage skipped occasionally, and that she did not edit it. 3. Complainant B's affidavit attached a statement that she had previously made in which she gave an account of her interaction with the police who attended her premises on 12 October 2022 and stated that she was polite when she terminated contact with the police. In her later affidavit, Complainant B stated that she had read that statement and believed it to be accurate. 4. In relation to these allegations, the Police Commissioner submitted that: 1. The applicant "embraces his own inaction but seeks to explain away those failures" (Allegation 6); 2. The applicant's evidence that he was intending to ask additional questions is difficult to reconcile with his telling Complainant B that police were unable to do anything if the conduct did not reach a criminal element, the fact that he did nothing to pass the matter on to other police officers when he was going off on leave, and his evidence in cross-examination that he had no further concerns about Complainant B (Allegation 6); 3. The applicant's personal situation might explain him being a bit rude or a bit short with someone, but it did not explain him taking no further action when he left Complainant B's home (Allegation 6); 4. The applicant admitted that he should have created a COPS Event and his case was, again, an attempt to explain his failure to do so until 27 October 2022, when he used the content of Senior Constable Adams' COPS Event (Allegation 7); 5. The applicant accepted that he did not ask the DVSAT questions or activate his BWV and invited the Commission to accept his excuses for his failures (Allegations 8 and 9); 6. Allegation 10 largely rises and falls on the evidence in relation to Allegations 6–9; 7. It could be inferred from the fact that no further action was taken that night in relation to Complainant B's complaint that the incident was not reported to Sergeant Peterson (Allegation 10); and 8. The applicant's "constant stream of excuses" demonstrated his lack of insight and failure to take responsibility for his own behaviour. Allegations 11–12 1. In her report provided in response to a directive memorandum, Senior Constable Skye Van Uden stated that she was not aware, prior to the event, that a topless waitress would be attending the Yellow Team Christmas party. She became aware of that circumstance when an unknown woman attended, and she was told that the woman was a topless waitress. At that point she said to the applicant, "This is inappropriate and you're stupid". She assumed that the applicant had knowledge that the woman was a topless waitress because he let her inside and was standing next to her. In cross-examination, Senior Constable Van Uden confirmed that she assumed that the applicant had organised the topless waitress, but she was not told that and did not know who had organised for the topless waitress to attend the Christmas Party. 2. In relation to these allegations, the Police Commissioner submitted that: 1. The applicant admitted that he gave the topless waitress access to the party (Allegation 11); 2. The applicant's evidence that the party was open to family and friends should be rejected (Allegation 11); 3. The applicant's account about the circumstances in which he let the topless waitress into the party should be rejected as implausible (Allegation 11); 4. Allegation 12 largely, although not entirely, rises and falls with Allegation 11, including the factual findings made by the Commission in that regard; 5. Mr Tiedeman's evidence that his decision to organise a topless waitress to attend the party was spontaneous was contrary to the overwhelming evidence of the rumours circulating prior to the party that there would be a topless waitress in attendance; and 6. The undertaking given from the bar table that the applicant would not drink at NSW Police events if reinstated needed to be given by the applicant in evidence and should not be considered. 1. In addition, it was submitted for the Police Commissioner that the applicant had presented no evidence at all in relation to harshness and that the public interest was served by removing a police officer who failed to properly investigate domestic violence offences and who tolerated sexual harassment. Further, the Police Commissioner was well aware of recruitment challenges in the NSW Police Force but was prepared to remove the applicant from the NSW Police Force in that context on account of his lack of integrity. 2. The Police Commissioner submitted that having regard to these matters, the applicant had not discharged his onus of proving that his removal from the NSW Police Force was harsh, unreasonable or unjust. She contended that the Application should be dismissed. Consideration Allegation 1 1. As submitted by the Police Commissioner, there was little factual dispute between the parties concerning the incident giving rise to this allegation. Rather, the applicant sought to provide reasons as to why he did not investigate or sufficiently investigate the allegations reported by Complainant A or conduct any follow-up with her. Those explanations largely do not justify the applicant's failure to adequately investigate Complainant A's allegations. 2. The applicant's evidence that the COPS Event he created in relation to Complainant A's matter was not completed on 25 September 2022 because he had "15 other jobs we had to attend to in an urgent manner" was a bare assertion unsupported by any evidence. Given he knew that he was commencing a period of leave, it was important that the information was available to other officers at the end of his shift. There was no evidence that he had supervisor approval to complete this COPS Event at a later time. 3. The applicant's explanation that his investigation was ongoing, and awaited receipt of additional evidence from Complainant A was not reflected in the COPS Event that he created. Further, as submitted by the Police Commissioner, the applicant knew that he had not provided his email address to Complainant A before she left the police station. Accordingly, that explanation is difficult to accept. 4. The applicant submits that, by the time he got back from leave, charges had already been laid by the specialist domestic violence team, so that his actions were not detrimental to the investigation. However, no charges were laid in relation to the images which were the subject of this complaint, precisely because they were not contained in the COPS Event prepared by the applicant. 5. The existence of an active complaint made by Complainant A against the applicant provides a valid explanation for him failing to personally follow up with her after 25 September 2022. However, it does not provide a reasonable explanation for his failure, as the officer in charge of the investigation, to ask another police officer to follow up with Complainant A to ensure that the complaint made by her about the intimate images was appropriately actioned. 6. The applicant did undertake some brief investigation of Complainant A's matter. He conducted a DVEC alongside Probationary Constable Sibraa and created an incomplete COPS Event for the matter. However, as he himself accepts, he did nothing in relation to the matter from that point. 7. I find that the applicant has failed to establish that the Police Commissioner's reasons were flawed or defective in relation to this allegation. Allegation 2 1. Again, the conduct at the core of this allegation is not in dispute. The applicant accepted in evidence that he did not ask Complainant A the DVSAT questions. It is the characterisation of that circumstance as the applicant having failed to ask Complainant A the DVSAT questions that is in issue, because of the abrupt manner in which Complainant A terminated the interview. 2. The applicant's submission that he did not have the opportunity to ask Complainant A the DVSAT questions ignores the context in which Complainant A left the police station. The applicant's attempt to shift blame onto Complainant A displays a lack of insight into his own behaviour and a failure to take responsibility for his own actions. The reason the DVSAT questions were not asked in this matter is not simply because Complainant A left the police station abruptly. Rather, it is because the applicant's manner of investigation offended Complainant A, causing her to leave. 3. Further, as submitted by the Police Commissioner, the COPS Event records that Complainant A remained in discussion with the applicant and Probationary Constable Sibraa for 10 minutes at the conclusion of the DVEC, before she left the premises. The applicant accepted that the DVSAT questions consisted of 25 yes or no questions which could be administered in around five minutes. 4. However, the Police Commissioner's Statement of Reasons contains the following statement in relation to Allegations 1–5: "The DVEC recording captures Constable Sibraa asking you 'Do we have to do the AVO questions?' You respond with 'No there's already an AVO in place'." 1. As noted above, the applicant's evidence was that the AVO questions were different to the DVSAT questions. Sergeant Brodie could not shed any light on the issue and the Police Commissioner did not call Probationary Constable Sibraa. On that basis, the Police Commissioner cannot rely on the above exchange to substantiate Allegation 2. 2. Further, contrary to the submission on behalf of the Police Commissioner, the DVSAT SOPs does not require the DVSAT questions to be administered before taking a complainant's statement. Rather, it provides that the sticker with the DVSAT questions should be "the first thing in a police officer's notebook" so as not to form part of the police brief. The procedure contained in the DVSAT SOPs is that the police officer takes the victim's statement, gets the victim's up to date contact details and then asks the DVSAT questions. Accordingly, there was nothing inappropriate concerning the order in which the applicant undertook the various steps of the investigative process. 3. Notwithstanding those matters, I find that the applicant failed to ask Complainant A the DVSAT questions in connection with her complaint on 25 September 2022. While that is largely a consequence of the manner in which the investigation was conducted, which is the subject of Allegation 1, I find that he could have done so at the conclusion of the DVEC. Allegation 3 1. Again, it is common ground that the COPS Event created by the applicant made no reference to Complainant A's allegation that her ex-partner was sharing intimate images and videos of her online without her consent. I accept that the relevant information not contained in the COPS Event had been captured by Probationary Constable Sibraa's BWV (which was uploaded to the COPS Event) and in his notebook. I also note Sergeant Brodie's evidence that it would be prudent for the charging officer to watch the DVEC video while reviewing COPS Events. However, as the applicant himself says, general duties officers at Lake Illawarra were very busy in September 2022. Had he recorded the complaint in the COPS Event, watching the DVEC video would not have been necessary. 2. I have addressed the applicant's explanation that his investigation was ongoing, and that he awaited receipt of additional evidence from Complainant A in the context of Allegation 1. In that context, I have also addressed the applicant's mitigatory submissions about the otherwise successful conclusion of the matter. I accept, however, that the impact of the absence of charges in respect of Complainant A's 25 September 2022 allegation on the sentence ultimately imposed upon the offender was likely nugatory in the context of well over 100 rolled up charges. 3. Of more concern is the impact of the applicant's inaction on the reputation of the NSW Police Force in dealing appropriately with domestic violence matters. That the applicant went on leave the day after his interview with Complainant A only serves to emphasise the importance of his having completed the COPS Event before commencing leave. He was well aware of that expectation of him. 4. I find that the applicant has failed to establish that the Police Commissioner's reasons were flawed or defective in relation to this allegation. In making that finding, I reject the submission of the Police Commissioner (which formed no part of her Statement of Reasons) that it was only in his cross-examination that the applicant stated that the COPS Event was incomplete. He plainly did so in his response to the Police Commissioner. Allegation 4 1. The circumstances which led to Complainant A's departure from the police station have been addressed at [140]. As noted in the context of Allegation 2, I do not accept that she left the police station before the DVSAT questions could be asked. Even if that were so, the COPS Event does not accurately reflect the circumstances which brought that about. 2. In addition, the applicant's evidence before the Commission that "it was clear from the outset that the Victim was never going to be satisfied with the actions of police" demonstrates a failure to recognise his role in what occurred. It was his manner of "questioning the evidence" that Complainant A provided which communicated to her a disinterest in her complaint. 3. Accordingly, I find that the applicant has failed to establish that the Police Commissioner's reasons were flawed or defective in relation to this allegation. Allegation 5 1. It follows from my reasons in relation to Allegations 1–4 that the content of the applicant's directive memorandum on 13 October 2022 and his responses at interview on 11 April 2023 were dishonest or at least disingenuous as found by the Police Commissioner, notwithstanding my finding above at [143]. The applicant's account for the absence of any reference to Complainant A's complaint about the intimate images in his COPS Event included explanations that were inconsistent. Either he was waiting for Complainant A to send in the Microsoft Word document containing the information and the images in order to progress the matter, or he was not. If he was, then it was not his workload on 25 September 2022 that prevented him from including this information in the COPS Event. As I have already noted, it is difficult to accept that he was genuinely waiting for that information when he knew that Complainant A did not have his email address. 2. Secondly, it is difficult to accept that the applicant believed that he had no evidence to support Complainant A's claims concerning the taking and distribution of intimate images without consent. Indeed, when questioned further during his interview, he conceded that he had no evidence "besides the DVEC". The DVEC contained statements of Complainant A that the photos and videos were taken without her consent, alongside BWV footage containing screenshots of intimate images and videos uploaded on various websites. 3. Thirdly, as noted above, the explanation that the applicant's failure to ask the DVSAT questions was due to Complainant A having left before they could be asked ignores the circumstances in which that occurred. The same is true of the narrative in the COPS Event. Further, that explanation is inaccurate in view of my finding that an opportunity existed to ask the DVSAT questions at the conclusion of the DVEC. I make that finding without relying on the evidence of the applicant telling Probationary Constable Sibraa that the AVO questions were not required. Allegation 6 1. As was the case with Allegation 1, the absence of any significant investigation was not the subject of any factual dispute between the parties. Rather, the applicant sought to explain his lack of action in relation to Complainant B's complaint. It is common between the parties that the applicant and LSC Curry left the premises after Complainant B told them to "fuck off" before closing her front door and turning out the light. 2. While the evidence concerning the applicant's grandfather may be true, I do not accept that it had a significant bearing on what occurred in circumstances where the applicant made no reference to it in his response, in either of his interviews about this incident or in his evidence-in-chief. Further, the applicant's evidence-in-chief to the Commission was that: "I appreciate that the complainant may have been in a fragile state and did not wish to respond to certain questions." 1. In addition, the applicant's contention that the termination of the exchange by Complainant B deprived him of the opportunity to undertake these basic investigatory tasks cannot be reconciled with his earlier evidence concerning his general practice in administering the DVSAT questions to complainants: "Every police officer investigates in their own different order. I would choose to write details in my notebook first. So I knew I had those details before I went onto getting into this sort of detail. We never start talking to someone and asking these before I'd written down who they were, address, the purpose of being there." 1. The applicant failed to ask even the most basic questions in his interaction with Complainant B, such as her name, the conditions of the ADVO, and whether anyone else was in the home. He failed to take any notes at all. He then relied on the absence of that information to explain his inaction thereafter. 2. Even accepting that the applicant had not anticipated being required to leave Complainant B's premises in the circumstances that he did, there were further investigative steps he should have taken to progress her matter. He should have requested for another team to follow up with Complainant B during his shift to ensure her safety and the progress of the investigation into her complaint. That he did not do this is consistent with his evidence in cross-examination that he had "no further concerns" about Complainant B. 3. The applicant contends that the Police Commissioner's finding was unfair because: * LSC Curry was a superior officer and he also failed to do any of the things that the applicant failed to do; * Nothing that he did was going to satisfy Complainant B; * Complainant B wanted to speak to a female officer whom she trusted and did not want his services; * Complainant B's account was untruthful; and * The CCTV footage on which the Police Commissioner relied had been edited to remove material inconsistent with her allegations. 1. These responses again demonstrate the applicant's inability or unwillingness to take responsibility for his conduct. As submitted by the Police Commissioner, relying on Hessenberger v Commissioner of Police [2009] NSWIRComm 89 (Hessenberger), Stuart Boyd Formston v New South Wales Police [2006] NSWIRComm 88 and Vizzone v Commissioner of Police [2020] NSWIRComm 1034, the determination of whether the applicant's termination was unfair is not informed by a comparison with the manner in which the Police Commissioner dealt with others. In Hessenberger, Marks J held at [142]–[144]: "142 It was part of the applicant's case that in all the circumstances his removal was harsh when compared with the penalties suffered by other officers. 143 There is, in my opinion, a fundamental difficulty in accepting this submission. If it were appropriate to undertake some analysis of the penalty imposed on each of the other officers, it would be necessary to take into account all of the circumstances that pertained to those officers including their previous police record, their co-operation or otherwise with investigating police officers and any relevant background circumstances which applied to them. Furthermore, it would be necessary to undertake a detailed analysis of the part that each of them played in the context of what happened on 16 April 2006. 144 Whilst I recognise that a similar approach might be appropriate in relevant circumstances when considering criminal penalties to be imposed on offenders who participated in the same criminal activity, those circumstances do not apply in the context of these proceedings." 1. The apology that the applicant afforded to Complainant B is a further demonstration of his unwillingness to take responsibility for his conduct. He did not apologise for his actions. Instead, he apologised if she was unhappy with his service. 2. I accept that Complainant B's initial statement to police was false to the extent that her evidence was that she was polite when she told police to leave. However, little turns on this, particularly in circumstances where the salient evidence is the CCTV footage. 3. I find that the applicant has failed to establish that the Police Commissioner's reasons were flawed or defective in relation to this allegation. Allegation 7 1. Again, it is common ground that the applicant did not create a COPS Event concerning his interaction with Complainant B on 12 October 2022. I accept his evidence that without basic details such as the name of the complainant, it was not possible to do so. However, in cross-examination, the applicant accepted that the CAD message would have provided the necessary details to create a COPS Event. I accept that he had not verified those details. However, in circumstances where the complaint recorded in the CAD message was consistent with Complainant B's narrative and was made by a person at the address recorded in the CAD message, it was available to the applicant to create some kind of narrative in COPS. The applicant's case is both that he "was not comfortable" doing so based on the limited information he obtained from Complainant B, and that had he done so, he would have been criticised for "falsifying a COPS Event". Any doubt could have been alleviated by a note in the COPS Event stating that although it is highly likely that this was the person who the applicant spoke to, their details were not confirmed. The applicant failed to make any record at all of the incident during his shift. 2. It is also common ground that the applicant did create a COPS Event concerning his 12 October 2022 attendance on Complainant B on 28 October 2022. He did so using the COPS Event created by Senior Constable Adams concerning the same conduct. However, the narrative of this COPS Event included the line "The Victim took the phone off the son and ended the call without notifying the POI". This statement is inconsistent with both Complainant B's account on the night in question and Senior Constable Adams' COPS Event. It appears to be an attempt to justify the applicant's earlier inaction in respect of the matter. 3. I find that the applicant has failed to establish that the Police Commissioner's reasons were flawed or defective in relation to this allegation. Allegation 8 1. Again, it is common ground that the applicant did not ask Complainant B the DVSAT questions. Instead, his case concerns the events giving rise to that circumstance. For the reasons outlined above, and similar to Allegation 2, the characterisation of what occurred as nothing more than a lack of opportunity to ask the DVSAT questions ignores the applicant's role in bringing that about. His lack of opportunity to ask Complainant B the DVSAT questions was a direct consequence of the manner of his investigation. 2. However, this incident was distinct from Allegation 2 in that, because of the way the events unfolded, it is apparent that the applicant did not have any opportunity at all to ask the DVSAT questions. As noted in the context of Allegation 2, the DVSAT SOPs required him to take Complainant B's statement first. It was at that stage that the investigation process fell apart. As the applicant stated, on being told in no uncertain terms to leave, he was required to do so. The real gravamen of this incident is the way that the applicant conducted the investigation which led to him being asked to leave without asking the DVSAT questions and his inaction thereafter. That is the subject of Allegations 6 and 7. 3. Accordingly, I find that the applicant has established that the Police Commissioner's reasons were flawed or defective in relation to this allegation. Allegation 9 1. Again, there is no factual dispute that the applicant did not activate his BWV when he attended Complainant B's home on 12 October 2022. I do not accept the applicant's evidence that he thought that he may have done so, but did not. If he was under the misapprehension that his BWV had been activated, he ought to have informed Complainant B that their conversation was being recorded. That did not occur. 2. It is true that the BWV SOPs do not mandate the use of BWV. However, the BWV SOPs say that BWV should be used in the following circumstances: • "when police would normally use their official police notebook to record information to capture evidence or record something of relevance. • … • first response crime and incident investigation. BWV can be very effective for recording the location of objects and evidence at the scene of a crime or during a search situation in the field. • conversations with members of the public that relate to an incident, is relevant to an investigation, potential criminal proceedings, or contain possibly valuable information. The primary investigating officer at the scene of an incident should activate their BWV camera to record any evidence relevant to the investigation." 1. The Law Enforcement Conduct Commission Review of NSW Police Force responses to domestic and family violence incidents, on which the applicant relied in his response to the Police Commissioner, contains the following content on the use of BWV (footnotes omitted): "The DV SOPS do not mandate the use of Body Worn Video (BWV) at domestic and family violence incidents. However, the mention the benefits of using BWV at those incidents, such as: • obtaining a brief version of the complaint from the victim • capturing the scene of the incident • recording any admissions or denials from the offender to the allegations that a domestic and family violence offence has been committed. The NSW Police Force Body-Worn Video Standard Operating Procedures, April 2023, (BWV SOPs) state: 'Police should use the BWV camera during their shift to record incidents they attend, evidence they see and conversations they have with members of the public'. While the BWV SOPs state that it is mandatory 'where practicable' for operational police officers to wear BWV, the activation of BWV is left to the police officer's own judgement." 1. The applicant does not say that his failure to active his BWV during this incident was a judgement call in the circumstances. Further, the allegation needs to be considered in the context of the applicant's disciplinary history. On 27 November 2019, he received a Commander's Warning Notice stating that he had contravened section 2.4 of the BWV SOPs by failing to activate his BWV during an incident. He was placed on a six-month Conduct Management Plan regarding that episode. 2. I find that the applicant has failed to establish that the Police Commissioner's reasons were flawed or defective in relation to this allegation. Allegation 10 1. The evidence supports the Police Commissioner's allegation that three of the responses which the applicant gave in a directed interview were dishonest, or at least disingenuous. The first is that the applicant "believed" he reported the incident with Complainant B to Sergeant Anthony Peterson. That reflects the applicant's evidence in his 19 November 2022 interview. Curiously, the applicant's evidence-in-chief before the Commission on the subject was more definite. He stated that he and LSC Curry did report the matter to Sergeant Peterson. I do not accept either that the applicant reported the incident to Sergeant Peterson, or that he believed that he did so. It follows that the response given by the applicant in that respect was not truthful. I arrive at that conclusion because: * The applicant took no other action in respect of his attendance on Complainant B on 12 October 2022, and did not even have regard to the CAD message concerning the incident; * Sergeant Peterson had no recollection of the matter being reported to him; * No other police officer attended on Complainant B that night, or for a period of five days; and * The applicant's evidence on the subject became more definite before the Commission, as noted above. 1. Nor do I accept that the applicant believed his BWV was active during the interaction with Complainant B, for the reasons already stated in the context of Allegation 9. Hence, I find the applicant was dishonest when he said he believed his BWV was active during the interaction with Complainant B. 2. Finally, the applicant's statement that he did not create a COPS Event in relation to the incident because he had not positively identified the person he spoke to as Complainant B was at least disingenuous. As noted in the context of Allegation 7, it ignores the information contained in the CAD message and otherwise says nothing of how that circumstance arose. 3. Accordingly, I find that the applicant has failed to establish that the Police Commissioner's reasons were flawed or defective in relation to this allegation. Allegation 11 1. The applicant's account that he had no idea that the previously unknown woman that he admitted to the party was a topless waitress strains credulity. The uncontested facts in relation to this allegation include that: 1. The party was a Yellow Team Christmas party; 2. The email which the applicant sent to Yellow Team members made no reference to attendance at the party of family and friends (including, for example, needing to establish numbers in order to determine a suitable venue); 3. Only police officers were in attendance at the party; 4. The party was not family-friendly; 5. Prior to the party, there had been rumours circulating about a topless waitress being in attendance; 6. The applicant was party to conversations during which he was expressly told that it was inappropriate for a topless waitress to attend the party (which appears to be conceded by virtue of his evidence that he was never spoken to "individually" about that subject); 7. The applicant gave the topless waitress access to the building and escorted her up the lift to the top floor of the building; and 8. The applicant sent a text message to Mr Tiedeman after the party which said, "Give me a call when you get a sec, I fly out today". 1. In the context of that factual matrix, the applicant would have the Commission believe that Mr Tiedeman told him that he had a "friend" arriving, that he went down with Mr Tiedeman to provide access to the building to Mr Tiedeman's "friend" without asking any further questions, that nothing said by the topless waitress from when he met her at the building entrance until she entered the party on the top floor gave him any idea that she was a topless waitress and that, despite his "shock" at what occurred, he said nothing at all about it to Mr Tiedeman at the party. 2. I do not accept the applicant's account in light of the undisputed factual matters set out above. In addition, his statement that he did not know the woman that he admitted to the premises was a topless waitress until she entered the kitchen in that state is inconsistent with Senior Constable Van Uden's statement that, when the topless waitress arrived, Senior Constable Van Uden was told that the woman arriving at the party was a topless waitress and she confronted the applicant about it. Further, it is hard to reconcile the applicant's "shock" at the attendance of the topless waitress with his consistent account that he was not offended by her and his failure to say something to Mr Tiedeman about it. I find that the applicant did know that the woman attending the party was a topless waitress at the time that he let her in. 3. In coming to this conclusion, I acknowledge Mr Tiedeman's evidence that his decision to engage the topless waitress was spontaneous and that the applicant did not know the "friend" that he admitted into the party was a topless waitress. That evidence too is difficult to accept in light of the rumours that had been circulating. It also has to be viewed in the context of Mr Tiedeman's evidence that he did not know that the party was work-related – he thought it was just a group of friends, and even when he arrived and realised it was a team Christmas party, "I still don't think it had anything to do with New South Wales Police". That evidence is simply implausible. It is also revealing that Mr Tiedeman stated both that he recalled asking the applicant to go and let his "friend" into the building and the party and "[i]n all honesty, I have no idea how she got in". 4. As for the applicant permitting the topless waitress to remain at the premises despite knowing she was a topless waitress, I do not accept that his level of intoxication prevented him from doing anything else. I do accept that the applicant was highly intoxicated while the topless waitress was in attendance at the party, and that his level of intoxication impaired his ability to recall events. I also accept that the applicant's level of intoxication may have resulted in him being less aware of his surroundings than he would have been if sober. However, it is difficult to accept the applicant's evidence that, having consumed alcohol to the point where he was in the bathroom vomiting, he then went downstairs and continued drinking, however briefly. Further, the applicant's failure to eject the topless waitress from the party is consistent with his evidence that he and others who remained at the party after she arrived were not offended by her presence. 5. Therefore, I find that the applicant has failed to establish that the Police Commissioner's reasons were flawed or defective in relation to this allegation. In making that finding, I acknowledge the evidence that Mr Beretov did ask the topless waitress to leave and that she resisted that request. However, that occurred only after Mr Beretov had put the applicant to bed. The applicant does not say that he asked the topless waitress to leave once he became aware of who she was. Rather, he describes the party as a "fairly loose affair" and claims a belief that "there would not be strict adherence or compliance with police policies". It is not apparent how he could have held that belief after being party to conversations about the inappropriateness of what eventually transpired. Allegation 12 1. It follows from my findings above that some of the applicant's responses in his directed interview were indeed dishonest and that others were at least disingenuous. The intent for a topless waitress to attend the party was demonstrated by the fact that one did in fact attend. Accordingly, the comments were not all "jovial". The applicant's response that he was "never spoken to individually" about it being a bad idea for a female stripper to attend a work Christmas party was plainly disingenuous in the context of the discussions to which he had been a party. Nor can the applicant seriously contend, in view of the police sexual harassment policy, that he was unaware that organising a female stripper was "a bad idea", because nobody told him so. 2. Given my finding that the applicant was aware that the woman he let into the party was a topless waitress, it follows that his denial of that fact, his stated realisation that the woman was a topless waitress only after she had removed her top and his surprise at her attendance were all dishonest. Accordingly, I find that the applicant has failed to establish that the Police Commissioner's reasons were flawed or defective in relation to this allegation. The applicant's interests and the public interest The applicant's interests 1. The applicant attested to the NSW Police Force on 27 August 2010. At the time of his removal, he had more than 13 years' service in the NSW Police Force. 2. The applicant gave evidence of having received numerous "complimentary remarks" and "complimentary letters" during his service. These include three acknowledgments of good police work, seven Complimentary Remarks, two Region Commander Certificates of Merit, a Commissioner of Police Emergency Commendation and the NSW Police Medal. 3. The applicant's length of service with the NSW Police Force cannot be viewed in isolation from his disciplinary history over the last five years. That history significantly compromises the weight that otherwise might be attached to a tenure of more than 13 years. 4. The applicant has secured employment as a mortgage broker and earns significantly more than he did as a police officer. Accordingly, no claim of financial hardship is made. The public interest 1. By s 181F(3)(b), the public interest is taken to include the interest in maintaining the integrity of the NSW Police Force and the fact that the Police Commissioner made the Order. The public interest also includes the elimination of conduct which may bring the NSW Police Force into disrepute: Lawrance v Commissioner of Police (2010) 199 IR 139; [2010] NSWIRComm 149 at [319]. 2. The applicant submitted that there was a public interest in returning to the police force an officer "who can and does perform the role well", particularly in the current environment where recruiting new police officers is a challenge. That submission does not sit easily with the applicant's disciplinary history over the last five years. 3. As submitted by the Police Commissioner, there is a strong public interest in police officers properly investigating domestic and family violence offences. There is also a strong public interest in the NSW Police Force not tolerating sexual harassment, including in order to combat current recruitment challenges. 4. Apart from Allegation 8, which was not made out, the applicant's conduct was unacceptable. I accept the Police Commissioner's submission that members of the public are entitled to expect that police officers will not repeatedly misconduct themselves, will take action to investigate and action complaints of domestic violence and will not engage in sexual harassment. 5. Further, it follows from my findings that, in addition to being dishonest or disingenuous in his responses to NSW Police Force investigations, the applicant's evidence before this Commission lacked candour. In that regard, both parties referred me to the decision of Toshack v Commissioner of Police [2008] NSWIRComm 150, in which Marks J held at [43] that the failure of the applicant in that matter to give evidence in a forthright manner and his propensity to rationalise evidence reflected adversely on his integrity. Such findings are apt in this matter. Conclusion 1. The decision of the Police Commissioner to remove a police officer with more than 13 years of service must be viewed as a response to the totality of the allegations. Nor do they stand in isolation. As noted at the outset, the applicant's disciplinary history, which included conduct similar to that caught by Allegations 1–10, afforded him multiple opportunities to improve his behaviour to the standard expected of him and warned him in clear terms of the consequences of failing to do so. 2. Save for Allegation 8, the applicant has not persuaded me that the allegations made by the Police Commissioner in her Statement of Reasons cannot be established. As noted at [72], each of Allegations 4, 5, 10 and 12 could, of themselves, justify the Order. Accordingly, my finding concerning Allegation 8 is immaterial to the reasonableness of the Order. I find that the applicant has failed to demonstrate that the Order was unreasonable or unjust. 3. On the question of harshness, I accept that the applicant is aggrieved at being removed from his chosen occupation. I note that his removal did not bring with it the adverse financial consequences often seen when a serving police officer is removed from the NSW Police Force. In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 (in the context of s 84 of the Industrial Relations Act 1996 (NSW)) the Full Bench observed at [35] that harshness involves a consideration of " … whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the [applicant]." 1. In all the circumstances, I am not persuaded that the applicant's removal from the Police Force was disproportionate to the gravity of his conduct. I find that the applicant has failed to demonstrate that the Order was harsh. 2. Having determined that the Order was not harsh, unjust or unreasonable, the only appropriate order is that the Application be dismissed. Order 1. The Application is dismissed. ********** 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: 19 December 2024