Industrial Relations Commission of New South Wales CITATION : Laird v Commissioner of Police [2001] NSWIRComm 253 APPLICANT: Christoper Laird PARTIES : RESPONDENT: Commissioner of Police FILE NUMBER: 3022 of 2001 CORAM: Grayson DP whether increment deferrment was harsh unreasonable or unjust, whether appropriate sanction, application of Police Service policy, inexperience of applicant, impecable character of applicant, whether adequate weight given to submissions of legal representative, intention of parliament in enacting reviewable sanctions, sanction disproportionate to misconduct, public interest not affected CATCHWORDS : Held, order harsh, unreasonable and unjust, order revoked LEGISLATION CITED : Police Service Act 1990 Telecommunication (Interception) Act 1979 (Cth) Byrne v Australian Airlines Ltd (1995) 185 CLR 410 CASES CITED : Wells v Commissioner of Police (2000) 100 IR 106 Van Huisstede v Commissioner of Police (2000) 98 IR 57 HEARING DATES: 08/24/2001; 10/15/2001 DATE OF JUDGMENT: 10/22/2001 APPLICANT Mr B Docking of counsel instructed by Mr E Oates Oates & Smith Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr J Graves of senior counsel instructed by Mr N Ball Court & Legal Services, NSW Police Service JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: GRAYSON DP Date: 22 October 2001 Matter No. 3022 of 2001 CHRISTOPHER LAIRD v COMMISSIONER OF POLICE Application by Constable Christopher Laird under s174 of the Police Service Act 1990 ______________________________________________________________________ 1 In this matter I am asked to decide whether as the applicant asserts an order under s173 of the Police Service Act 1990 (the Act) deferring his increment for a period of twelve months was harsh, unreasonable or unjust such that upon review by the Commission in the course of these proceedings, it should be revoked or varied. 2 The matter came on for preliminary hearing on 28 May 2001 at which time conciliation was attempted without success. 3 Directions were made as to the filing and exchange of evidence and the matter was listed for hearing on 24 August 2001. 4 At the readiness mention on 20 August 2001, the Commission was informed that notwithstanding the applicant's evidence having been filed that day (almost a month late), the respondent would use its best endeavours to be ready for hearing on the given dates. 5 The matter went over accordingly and in the result, proceeded to hearing on 24 August 2001 with Mr B Docking of counsel appearing for the applicant and Mr J Graves of senior counsel appearing for the respondent. 6 Oral evidence was taken that day from the applicant, from Superintendent Frank Hansen, the Cabramatta Local Area Commander and the decision maker at first instance, and from Detective Superintendent Paul Jones "in charge of Organised Crime South East Asian" and "responsible for Strike Force Portville" (Exhibit 3). 7 Additionally, there was documentary evidence adduced by both sides to which reference will be made in the course of these reasons as thought necessary. 8 The facts which are not disputed may be briefly set out as follows. 9 After six months probationary service some of which was carried out with Castle Hill Patrol and some with Cabramatta Local Area Command, the applicant was confirmed as a Constable in January 1998. 10 He thereafter continued his general duties work at Cabramatta with emphasis on drug related crime in the area. 11 In February 2000 he was seconded to Organised Crime-South East Asia (OCSEA) Crime Agencies and performed duty on Strikeforce Portville utilising the facilities of the Crime Commission of New South Wales. 12 His task, among others, was to occupy a covert listening post which intercepted and recorded telephone calls to and from persons suspected of involvement in criminal conduct in particular shooting offences. 13 On 19 April 2000, the applicant played an intercepted telephone call to his friend Constable Rachel Dowd of Cabramatta Local Area Command. 14 He also played the intercepted call to Detective Sergeant Fuller and Detective Sergeant Stek both of whom were members of the investigative team and thereby entitled to hear such material. 15 Constable Dowd however was not attached to Strikeforce Portville and was not entitled to hear the call. 16 The call was made by a Strikeforce Portville "target" to a 0055 sex hotline and is not said to have disclosed material sensitive to the police investigations. 17 By various means which do not require exposition here the matter was reported to Detective Superintendent Jones on 26 April 2000 who then conducted an investigation under Part 8A of the Police Service Act 1990 culminating in a comprehensive report of 19 June 2000. 18 Detective Superintendent Jones concluded that the complaint against the applicant namely: "That Constable C Laird on (sic) officer on-loan from Cabramatta Local Area Command to Crime Agencies Strike Force Portville, played a lawfully intercepted telephone call to a friend, not lawfully entitled to hear such a call, over the telephone line. That friend was identified as Constable Rachel Dowd of Cabramatta Local Area Command was made out and recommended that the applicant be dealt with under s173 of the Police Service Act 1990. He received and accepted advice from senior legal officer Inspector Trichter that he was justified in not initiating criminal proceedings against the applicant under the Telecommunications (Interception) Act 1979 (Cth). 19 He based his recommendation on the following: · "The offence is not a prevalent one, · The offence is one unlikely to be committed by a member of the public and therefore a judgment of what would be done should the offence have been committed by a member of the public cannot be made, · The call was unlawfully played to one person · Constable Laird readily admitted the offence when interviewed, · The offence appears 'opportunistic' rather that (sic) planned · There appears no corrupt intent in the commission of the offence, though Constable Laird did not acknowledge the potential for the investigation to be compromised · There appears no benefit gained by the commission of the offence · The remorse and contrition shown by Constable Laird · The overall level of experience of Constable Laird · Otherwise, Constable Laird is (sic) worthwhile officer and, · The likelihood the officer would not be dismissed pursuant to Section 181D" (Exhibit 2, attachment FH1) 20 Detective Superintendent Jones recommended that in dealing with the applicant's misconduct under s173 of the Police Service Act that he: · "be reduced in seniority by eighteen months · not be permitted to work on a major crime strike force or other sensitive investigations for two years and · be counselled in the strongest terms in respect of his actions 21 Those recommendations were then reviewed in accordance with Police Service policy, by a Corporate Internal Review Panel on 23 June 2000 which resolved to recommend the following action be taken against the applicant: · That Constable Laird's next increment be deferred for twelve months; · That an open ended period apply in respect of Constable Laird's non-attachment to any Strike Force or major investigation and that such period would be determined by the Local Area Commander; · That Constable Laird work under a mentor for a period set by the Local Area Commander; · That training concerning privacy issues be addressed by the mentor; and · That quarterly reviews be conducted by the mentor concerning the work performance of Constable Laird 22 The above recommendations were then transmitted to Superintendent JP Sweeney, the Cabramatta Local Area Commander who adopted them and on 11 August 2000 served a show cause letter on the applicant giving notice under s173(5) of the Police Service Act 1990 of intention to make the order presently under review. 23 The letter stated among other things that: "In accordance with section 173(5) of the Police Service Act 1990, I hereby give notice that I am considering making a reviewable order against you in the following terms: 1. That your next increment to Senior (sic) Constable Level 5, due on 14 February 2001 be deferred for a period of twelve months. Thereafter, pending appropriate performance, you progress to Level 5 on 14 February 2002; 2. That you work under a mentor, Detective Sergeant R Francis, for a period of 12 months to commence from the date of either your acceptance of the reviewable action stipulated in this Notice or at such time when the matter is determined before the Industrial Relations Tribunal; 3. That training concerning privacy issues be addressed by the mentor; and 4. That quarterly reviews be conducted by the mentor concerning your work performance; 5. That you not be considered for attachment to any Strike Force or major investigation for a period of time to expire on submission of four favourable quarterly reviews by the mentor assigned to you. " 24 Although little turns on it as will shortly be seen, it is nonetheless the case that only the first of the five components of the above proposed order would appear to constitute "reviewable action" within the meaning of s173 of the Police Service Act the remaining four components arguably coming within the definition of "non-reviewable action" to be found in Schedule 1 to the Act. 25 At all events, the applicant's response to the show cause letter was prepared and forwarded to Superintendent Sweeney by Oates and Smith, solicitors on 17 November 2001. 26 The matter was the subject of further deliberation by an Internal Review Panel on 11 January 2001 who as the documentary material in evidence reveals, recommended no change to the management plan. 27 This recommendation was duly communicated to Superintendent Frank Hansen who had by then replaced Superintendent Sweeney as Cabramatta Local Area Commander and on 10 April 2001, the applicant was served with an order in the following terms: "I, Superintendent Frank Hansen, having considered your misconduct which came to light as a result of a complaint that has been investigated under Division 5 of Part 8A of the Police Service Act, have determined that a reviewable order pursuant to Section 173 of the Police Service Act be made against you for the following reasons: Ground One That on 19 April 2000, at premises occupied by Strike Force Portville at crime Agencies, you played a lawfully intercepted telephone call to Constable Rachel Dowd, of Cabramatta Local Area Command, that Constable not being lawfully entitled to hear such a call over the telephone. In reaching my decision, I have considered the submission made on your behalf by your legal representatives, Messrs Oates & Smith, solicitors, together with supporting documentation and an analysis of that submission, and have taken them into account. I have also noted the views of the former Commander at Cabramatta Local Area Command, Superintendent J Sweeney, together with comments made by members of the Police Service who convened as an Internal Review Panel on 11 January 2001. The views expressed by Commander Sweeney and the Internal Review panel are such that the following orders be made: 1. That your next increment to Senior (sic) Constable Level 5, due on 14 February 2001 be deferred for a period of twelve months. Thereafter, pending appropriate performance, you progress to Level 5 on 14 February 2002; 2. That you work under a mentor, Detective Sergeant R Francis, for a period of 12 months to commence from the date of either your acceptance of the reviewable action stipulated in this Notice or at such time when the matter is determined before the Industrial Relations Tribunal; 3. That training concerning privacy issues be addressed by the mentor; and 4. That quarterly reviews be conducted by the mentor concerning your work performance; 5. That you not be considered for attachment to any Strike Force or major investigation for a period of time to expire on submission of four favourable quarterly reviews by the mentor assigned to you. " Rights of Appeal You have the right to appeal a s173 order to the Industrial Relations Commission on the grounds that the order is beyond power or is harsh, unreasonable or unjust. You have twenty one (21) days to lodge your appeal from the date of service of the order. There is also a provision for administrative review within the Supreme Court Jurisdiction. You should seek independent legal advice in relation to your rights and obligations. This order takes effect twenty one (21) days from the date of service upon you or in the case of an appeal lodged, after the Industrial Relations Commission has determined the matter. Supreme Court action may effect the date upon which the order becomes effective (Exhibit A, annexure D) 28 The applicant thereafter instructed his solicitors to commence these proceedings and maintains in all the circumstances that the order is harsh, unreasonable and unjust. 29 On 22 August 2001, Superintendent Hansen revoked those aspects of the order which were arguably non-reviewable for reasons briefly set out in his affidavit evidence as follows: "Order 2-5 in the Notice have not to date been implemented, as they were erroneously considered to have been stayed along with the reviewable order (order 1), once the Applicant had filed his Application with this Honourable Commission. Steps have been taken to revoke orders 2-5 of the Notice. The predominant reason for that revocation is the time that has elapsed during which those orders have not been implemented. I consider that due to that delay the orders and actions embodied in those orders are stale" (Exhibit 2) 30 It thus remains for the Commission to determine whether the order for deferral of increment should be revoked, replaced by an order considered appropriate or upheld (s177(1) of the Act). 31 Turning then to consider the merits of the opposing arguments. It is useful to note in the interests of completing the evidenciary picture, that the applicant was summarily removed from Strikeforce Portville and returned to his command at Cabramatta on 26 April 2000 when his indiscretion was made known to Detective Superintendent Jones. 32 He remained there on general duties until 3 July 2001 when he transferred to Traffic Services, Ferguson Centre, Parramatta where he was still serving at the time the matter came on for hearing. 33 It might also be usefully observed at this point that I do not accept as Mr Docking submits that the erroneous reference in the order under review to the applicant's next increment as being "Senior Constable, Level 5" rather than "Constable, Level 5" renders the order incurably bad and I propose to follow the course suggested by Mr Graves of senior counsel namely, to read the order as if the word "senior" is not present. 34 To do otherwise, in my opinion would be to elevate what is plainly an unintended typographical error to a level of significance in the overall scheme of things which it does not warrant. 35 There can be no doubt that the applicant was at the time of and since his indiscretion, a highly regarded serving police officer as the evidence on both sides of the record reveals. 36 There is equally no doubt that the indiscretion of 19 April 2000 was an aberration in the course of otherwise commendable work by a young man of twenty-three years of age with less than three years police service at the relevant time. 37 The personal and professional regard in which he is held is evident from the various statements taken by Detective Superintendent Jones in the course of his investigations one of which came from Detective Senior Constable Stek as follows: "I can not speak highly enough of Constable Laird. During the short time I have known him - (since the commencement of Strikforce Portville) I have found him to be a very effective operational investigator. His capability certainly exceeds his three years of experience. His knowledge of Asian Organised Crime in the Greater Hume Region is highly commendable, and I believe that his actions on the day of 19 April 2000 were totally out of character. I firmly believe that the inroads that have been made during Strike Force Portville would not have been possible without the likes of Constable Laird" (Exhibit 2, annexure FH1) 38 It is also evident from the concession of area commander Superintendent Sweeney who said in correspondence he forwarded to the employee management branch on 19 December 2000 that the applicant: "is an extremely bright, intelligent and capable officer" (Exhibit 2, annexure FH1) 39 It is further yet evident from the testimonials attached to the applicant's response to the show cause notice (Exhibit A, attachment C) those testimonials being from: · Detective Superintendent K Seddon · Detective Sergeant MPT Priest · Sergeant G Byrne · Senior Constable V Fusca · Sergeant G Mills · Senior Constable S Urio · Detective Senior Constable C Kostakidis · Sergeant R Francis 40 In that same response to the show cause letter is the further evidence on which the applicant relies in mitigation of his offence and in support of his contention that he has been harshly dealt with. 41 It is convenient to set out the relevant parts of the response in that regard: "It was due to his achievements that he was invited to join Crime Agencies Strike Force Portville and, understandably as the junior officer, he was given the responsibility of monitoring the telephone intercepts, working 12 hour shifts, during the course of the investigation. During one of those shifts, at the end of a two week stint of such duty, our client committed his error of judgment permitting a non-authorised person, Constable Rachel Dowd, to listen to a small segment of content from one of the telephone intercepts. While nothing can justify Constable Laird's decision to permit Constable Dowd to listen to material, we would like to point out that our client did not telephone Constable Dowd for the purposes of playing the tape to her. Rather Constable Dowd telephoned our client and he on the spur of the moment, perhaps being somewhat fatigued after two weeks of such monotonous duty, allowed her to listen to some of the material. Secondly the material was not "on point" with respect to the investigation but was of a, at least to the Constables, humorous nature. The operation was not compromised in any way in a real sense. Our client was confronted by investigating police and made full and frank disclosures as to his conduct. In short, immediately admitted his mistake, a course often commended by the commissioner of police who encourages police to admit their honest mistakes. Our client has not yet been the subject of a complaint before this matter and has been considerably distressed by the investigation itself and acutely embarrassed by his own conduct and the difficulties which have flowed from it for the Police Service and the Crime Commission. He was immediately relieved of his position at the Crime Commission and was ignominiously returned to Cabramatta Police Station where he has had ample time to reflect upon the folly of his conduct. He understands that he has damaged his reputation in the eyes of his peers and commanders and has sought through his own efforts to redress that situation by applying himself to his duties. Constable Laird has brought upon himself stress, embarrassment and grief and blames no person but himself, being deeply ashamed about his conduct and the embarrassment that it caused the Police Service in the eye of the Crime Commission. However, as one might expect from a person of Constable Laird's calibre, he has attempted to overcome this setback, becoming even more motivated to perform his duties to the upmost of his ability. Constable Laird aspires to become designated as a Detective and as we understand it he is performing duties to a high standard as the policy research officer to the Crime Manager. His motivation is also manifest in submissions he has produced for the enquiry by the Legislative Council of the New South Wales Parliament into police resources in Cabramatta submitted 21 July 2001. We enclose a copy of that document for your information, together with comprehensive link diagram entitled "Recent Gang Related Events in Cabramatta and Green Valley LACs" and a further document entitled "Time line of events in Cabramatta and Green Valley LAC". Both the latter documents were prepared by our client notwithstanding he was not tasked to do so. It is a true reflection of his motivation and capacity that such documents have been produced. Moreover, the quality of the material speaks for itself, being comprehensive and insightful. It is our submission that the conduct of our client was an error of judgment, the magnitude and gravity which has now been brought home fully to him through the departmental investigation and your notice asking him to show cause why an order should not be made under section 173(5) of the Police Service Act. When one takes into account the "punishment" our client has already suffered, particularly his immediate removal from the strike force and being regarded askance by his peers, we submit it is appropriate to deal with this matter not by deferral of his increment but rather by education in the area of privacy issues, as described in item 3 of your notice. In short we submit that items 1 and 5 of the notice are unnecessary and overly harsh in the circumstances of our client's case. Our client has no objection however to accepting the guidance of Sergeant Francis as his mentor, receiving training in privacy issues and being the subject of quarterly reviews by Sergeant Francis. We are confident our client has truly appreciated the error of his conduct and is determined that he will not again err. It is our submission that if any further action is warranted, which we respectfully suggest is not, it be limited to items 2,3 and 4 of the section 173(5) notice." 42 To the extent that the submissions set out above did not find favour with the ultimate decision maker I am inclined to think they were not given adequate weight. 43 Plainly, there is no attempt by the applicant to hide from or disguise his wrongdoing and it would be difficult to imagine a higher degree of remorse and embarrassment than that demonstrated by the applicant and on the evidence acknowledged by those who dealt with his wrongdoing. 44 Further and as Mr Docking submits with some persuasive force, the intention of the NSW Parliament in enacting the present legislation as is evident from the Hansard record of the Minister's Second Reading Speech to which the Commission was taken was to provide among other things, for reviewable sanctions such as reduction in rank or grade, in seniority or deferment of increment in more serious cases where some form of personal penalty is required to act as a deterrent. 45 In this case Mr Docking submits the facts and circumstances do not constitute a more serious case in the overall scheme of misconduct by police officers and furthermore, a personal penalty in the form of increment deferral is not required to act as a deterrent for the applicant. 46 Further yet, the sanction if imposed would be harsh in its consequences for the personal and economic situation of the applicant or because it is disproportionate to the gravity of the misconduct (see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 which was applied by Peterson J in Wells v Commissioner of Police (2000) 100 IR 106. 47 These are matters which, in my opinion are well supported by the evidence of this applicant who was an impressive witness in his own cause as I am disposed. 48 Having regard to the applicant's interests and to the public interest (s175(4) of the Act), I note the following affidavit evidence given by the applicant: "I understand that through my own conduct I have lost this opportunity both as a prospective career and in a financial sense. I have since abandoned my career aspirations of becoming a Detective and have transferred to Traffic Services with the hope of becoming an investigator in crash investigations. I have suffered considerable stress as a result of this matter and other events which have befallen me after my return to Cabramatta in April 2000. I had difficulty dealing with the stress and embarrassment of the investigations and performing duties under a difficult management environment which has been under scrutiny from the Police Service, the media and the community, as well as the Parliamentary General Purpose Standing Committee into Resources at Cabramatta Local Area Command." (Exhibit A, par 25, 26) 49 In my judgment and quite independently of any sanction which may be imposed by means of the order under review, the applicant has suffered significant detriment as a result of an act of foolishness which on any reasonable view, was totally out of character for him. 50 As to the public interest, it seems to me that the observations of Walton J, Vice President when dealing with the relevantly similar provisions of s181F(3) of the Act - that is to say, relevantly similar to s175(4), are apposite here and I would respectfully adopt them. 51 In Van Huisstede v Commissioner of Police (2000) 98 IR 57, his Honour said this: 216. "The intent of the subsection is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interest and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. 217. However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other." 52 I am satisfied, on balance, that the applicant has discharged the onus be bears under s175(2) of the Act. 53 I find that the order under review is harsh, unreasonable and unjust and I revoke it accordingly. 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.